In Re ANDRE J.

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1845

September Term, 2014

IN RE: ANDRE J.

Woodward,
Kehoe,
Arthur,

JJ.

Opinion by Arthur, J.

Filed: June 1, 2015
In 2003, when he was eight years old, Andre J. was found to be a child in need of

assistance (CINA)1 and removed from his mother’s care and custody. He has remained in

foster care since that time. When Andre was 19 years old in 2014, the Circuit Court for

Montgomery County, sitting as a juvenile court, issued an order changing his permanency

plan from reunification with his mother to another planned permanent living arrangement

(APPLA). Andre’s mother appeals from that order and asks: “Did the court err by

changing Andre’s plan from a sole plan of reunification to a sole plan of APPLA?” For

the reasons that follow, we answer in the negative and affirm the order of the circuit

court.

F ACTUAL AND P ROCEDURAL B ACKGROUND

A. Andre’s Family Background and CINA Determination

Andre J. was born in December 1994. Ms. Amanda G. (“Ms. G.”) is Andre’s

biological mother. The identity of Andre’s father is unknown. Between 1996 and 1999,

Ms. G. gave birth to four children (two half-sisters and two half-brothers of Andre).

From his mother, Andre inherited Fragile X syndrome, a genetic condition that

causes significant intellectual disabilities, particularly among males. Andre’s full-scale

IQ has been measured as 42. His diagnoses include pervasive developmental disorder,

1
The term “child in need of assistance” or “CINA” means “a child who requires
court intervention because: (1) [t]he child has been abused, 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 (1974, 2013 Repl. Vol.), § 3-801(f)-(g) of the Courts and
Judicial Proceedings Article.
communication disorder, and separation anxiety disorder. His mother and his two

younger brothers also have special needs.

In 2003, the Montgomery County Department of Health and Human Services (“the

Department”) received a report of neglect. An investigation revealed that Andre and his

siblings lacked adequate food, clothing, furnishings, and supervision in Ms. G.’s home.

On the basis of that investigation, the Department filed a petition in the Circuit

Court for Montgomery County sitting as juvenile court, alleging that Andre and his

siblings had been neglected by their mother, and that she was unable to give proper care

and attention to the needs of her children. The petition stated that Ms. G. appeared to

have limited cognitive abilities and that she lacked basic parenting skills. The

Department proved the allegations, and the court adjudicated Andre and his four siblings

as children in need of assistance.

Andre, who was eight years old at the time of the CINA determination, was

committed to the custody of the Department and placed in specialized foster care apart

from his siblings. The court established a permanency plan of reunification with Andre’s

mother and, to that end, granted her liberal visitation. After evaluating Ms. G., the

Department recommended that Andre’s maternal grandmother, Ms. Carolyn A. (“Ms.

A.”), should serve as the primary care provider, because Ms. G. would probably be able to

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function only “as a supportive, secondary maternal figure to her children.” 2

In October 2003, Andre was placed in a therapeutic foster home in Gaithersburg,

Maryland. Since that time, Andre has resided with his foster mother, a special education

teacher. Andre reportedly made an excellent adjustment to foster care. His functioning

has consistently improved with the assistance of medication monitoring, a stable

environment, and structured daily routine.

B. Evolution of Andre’s Permanency Plan

In accordance with statutory requirements, Andre’s permanency plan was reviewed

every six months. See Md. Code (1974, 2013 Repl. Vol. & 2014 Supp.), § 3-823(h)(1) of

the Courts and Judicial Proceedings Article (“CJP”). As circumstances evolved, the court

modified Andre’s permanency plan and visitation schedule several times.

In 2004, Ms. G. relocated to Washington, D.C. Soon thereafter, the court changed

Andre’s permanency plan to placement with a relative (Ms. A.) for custody and

2
Reports from the Department indicate that Ms. G.’s full-scale IQ is 56 and that
Ms. A.’s full-scale IQ is 71. An IQ score of 70 or below, approximately two standard
deviations below the mean, is one of the major criteria for the diagnosis of intellectual
disability. The American Psychiatric Association’s Diagnostic and Statistical Manual of
Mental Disorders (5th ed. 2013) classifies intellectual disabilities according to the
severity of the person’s adaptive functioning. Although IQ is not the sole determinant,
individuals with an IQ between 55 and 70, such as Ms. G., typically fall within the “mild”
range. Persons such as Andre, with an IQ between 40 and 55, typically fall within the
“moderate” range. Many adults with mild intellectual disability are capable of gaining
employment and living independently with only intermittent support. Because adults with
moderate intellectual disability have comparatively greater limitations on their
communication and self-help skills, they often require more extensive support at home.

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guardianship. The court’s order stated that Ms. G. would reside with Ms. A. so that

Andre and his siblings would “have the added benefit and security of both caretakers.” In

2006, however, the court ordered that the permanency plan be changed to APPLA,

because Andre’s “mother and grandmother are cognitively limited and are unable to

discern the needs of [Andre] and his siblings.”

In 2008, Andre’s two younger sisters were reunified with their mother. At that

time, Ms. G. was receiving extensive services through the Department on Disability

Services (DDS), an agency in Washington, D.C., while Ms. A. continued to provide

ongoing support to her grandchildren. In 2009, the court approved a new permanency

plan for Andre of reunification and a concurrent plan of APPLA.

In 2010, the court authorized monthly unsupervised visitation for Andre and his

mother. After his unsupervised visits, however, Andre began to exhibit unsafe behaviors,

including an attempt to jump out of a moving vehicle. He was hospitalized and treated

for stress-induced anxiety attacks. In an emergency order, the court required that Andre’s

visits with his mother be supervised.

Although the Department requested that the court change Andre’s permanency

plan to a sole plan of APPLA at that time, the court re-authorized the concurrent plan of

reunification and APPLA. The court reaffirmed that plan until 2012, when it changed the

plan to a sole plan of reunification.

C. Efforts to Achieve Reunification Before Andre’s Twenty-First Birthday

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After Andre reached the age of 18 in December 2012, the court continued to order

that Andre remain a CINA under the court’s jurisdiction. Because the CINA proceeding

would terminate when Andre turned 21 (CJP § 3-804(b); see also CJP § 3-819(k)), the

Department began a more aggressive push to prepare for a transition out of the foster care

system. The primary goal was to return Andre to his mother in Washington, D.C., before

his twenty-first birthday. As a last resort, the Department also began to explore the

possibility of placing Andre in an adult male group home through Maryland’s

Developmental Disabilities Administration (DDA).

The Department engaged DDS, the District of Columbia agency that had been

providing services to Ms. G. in Washington, to request that support services be put in

place prior to Andre’s relocation. This partnership was not successful. DDS indicated

that Andre would be ineligible for services until he became a full-time resident of the

District of Columbia, a process that would take between 90 and 120 days. Furthermore,

even after Andre established residency, there would be an additional period of delay

before Andre could receive his full service plan, and his eligibility could not be

guaranteed.

Around the same time as these outreach efforts, DDS dramatically reduced its level

of services to Ms. G., deeming her to have increased her level of independence. Ms. G.’s

long-time service coordinator also left DDS, and her replacements were less reliable than

the former employee had been in coordinating with the Department.

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In an attempt to bridge a possible service gap, the Department focused its efforts

on improving Ms. G.’s ability to handle Andre’s more challenging behaviors. Although

Andre was more mature and better able to communicate than he had been in the past,

Andre often needed behavioral interventions from adults to help him complete daily tasks.

Even more important, Andre still required constant supervision to protect against threats

to his safety (e.g., threats from crossing the street without looking or touching hot

objects).

The established visitation schedule included a supervised monthly visit with Ms.

G. at her home in Washington and a supervised monthly visit with Ms. G. and with

Andre’s brothers at a visitation house in Maryland. To help the Department assess Ms.

G.’s ability to meet Andre’s needs, the court modified the visitation schedule to include a

full-day, lightly supervised visit at the mother’s home, as well as an optional Saturday

visit.

Both Ms. G. and Andre, however, began to avoid the contact necessary to make

progress toward reunification. Ms. G. frequently declined the opportunity for weekend

visits with Andre. Family visitation in Maryland was inconsistent because Ms. G. often

was extremely late for scheduled visits, cancelled at the last minute or after the visit was

scheduled to begin, or did not show up at all. Andre began to display anger towards his

mother during and after visits.

Andre also started to verbalize his trepidation about moving to Washington. He

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became even more resistant after the court authorized unsupervised visits at Ms. G.’s

home in March 2014. Andre became extremely upset during his second unsupervised

visit, and then he completely refused any further visits to Washington, no matter what

conditions were put in place to help him overcome his anxiety.

D. Change in Permanency Plan to Eliminate Goal of Reunification

On October 13, 2014, less than two months before Andre’s twentieth birthday, the

Department issued a report recommending that Andre’s permanency plan be changed

from reunification to APPLA. The report cited Ms. G.’s history of missing scheduled

visits, Andre’s increasing frustration with that inconsistency, Andre’s refusal to travel to

Washington for visits, and Andre’s preference to remain in Maryland. The Department

took the position that it had exhausted efforts to achieve reunification: partnering with

DDS to implement a service plan for Andre in Washington was no longer a viable option,

and Ms. G.’s limitations were too severe to enable a safe transition without those

supports.

In short, the Department concluded: “The time and work that still needs to be done

for [reunification] to become a possibility far exceeds the amount of time Andre has left”

in the child welfare system. The Department recommended that it was in Andre’s best

interest to focus immediately on working with Maryland’s DDA to develop an

individualized plan of residential, day programming, and support services for Andre after

he would leave foster care.

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The Department argued its position at a permanency plan review hearing on

October 23, 2014. A licensed graduate social worker recounted the case history and

explained the reasons for the Department’s recommendations. Andre’s court-appointed

special advocate voiced further support for the change in permanency plan. Andre,

through his attorney, also agreed with the Department’s position.

The court consulted with Andre on the record to obtain his views on permanency.

When the court asked Andre for his “thoughts on staying in Maryland, as opposed to

going down to D.C.,” he answered: “No. Maryland’s okay.” When asked specifically

about his thoughts about moving to Washington, Andre said: “It’s going to be hard.”

Andre confirmed that he had not visited Washington since the previous review hearing.

Ms. G. also testified at the hearing. Through her attorney, Ms. G. opposed any

change in permanency plan. She argued that Andre’s reluctance to move to Washington

simply resulted from his desire to avoid change. She further argued that, because it was

inevitable that Andre would need to leave his foster home anyway, it was in Andre’s best

interest to return to his biological family rather than to be placed in a group home.

Counsel also suggested that the Department should try once more to make Andre

eligible to receive support services in Washington. The court responded, “we’ve been

trying that for about five years . . . and we have never gotten anywhere with D.C.”

Ruling from the bench, the court explained that it would change Andre’s

permanency plan from reunification to APPLA. As a “critical reason” for the plan

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change, the court cited the need to “start now to find an appropriate place for Andre” after

he reached the age of 21. The court commented that it had “absolutely no confidence in

D.C. DDS,” and that the Maryland DDA would need time to set up the appropriate

placement for Andre. The court further explained that it was “not going to just ignore”

Andre’s stated preference, because Andre had “gone down to D.C.” and he had “come to

understand what that feels like.”

In a written order entered on October 24, 2014, the court ordered that Andre

continue to be a CINA committed to the Department; that Andre’s permanency plan

should change to APPLA; that Andre be co-committed to the DDA to facilitate a

transition when Andre turned 21; and that the Department explore options for a future

guardianship and placement after Andre’s twenty-first birthday. The court also modified

the visitation schedule, ordering only one monthly visit with Andre’s brothers in

Maryland.

Ms. G. has appealed from the court’s order. Both the Department and Andre,

through his attorney, filed briefs asking that the order be affirmed.

M OTION TO D ISMISS

The Department has moved to dismiss this appeal (see Md. Rule 8-602(a)) on the

grounds that no appeal is authorized by statute. The Department contends that the

juvenile court’s order is neither a final judgment nor an appealable interlocutory order.

In general, the right of appeal exists from a final judgment entered by a circuit

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court in a civil case. CJP § 12-301. Parties are also authorized to take immediate appeals

from certain categories of orders that are not final. Of central importance here, “[a] party

may appeal from . . . [a]n order . . . [d]epriving a parent, grandparent, or natural guardian

of the care and custody of his child, or changing the terms of such an order.” CJP §

12-303(3)(x).

In view of § 12-303(3)(x), many “orders of court regarding permanency plans are

immediately appealable” “despite their interlocutory nature.” In re Yve S., 373 Md. 551,

583 (2003) (citation omitted). To be immediately appealable under CJP § 12-303(3)(x),

“‘court orders arising from the permanency plan review hearing must operate to either

deprive [a parent] of the care and custody of her children or change the terms of her care

and custody of the children to her detriment.’” In re Karl H., 394 Md. 402, 428 (2006)

(quoting In re Billy W., 387 Md. 675, 691-92 (2005)).

In In re Damon M., 362 Md. 429 (2001), the Court of Appeals held that a parent

could immediately appeal from an order changing a permanency plan from reunification

to a plan of foster care or adoption. Id. at 438. The Court explained that, even though the

permanency plan does not constitute a final custody determination, the amendment of a

permanency plan from reunification with a parent amounts to a change in the terms of the

custody order. Id. at 437.

The permanency plan . . . 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. . . .

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It is true, of course, that a parent will have lost custody before
a permanency plan will have been developed. Nevertheless,
once determined, . . . the permanency plan sets out the
anticipated permanent placement, to the achievement of
which the “reasonable efforts[]” . . . must and will be directed
. . . . [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. That
is, after all, the point of the plan . . . .

Id. at 436-37.

Maryland courts have consistently held that an order changes the terms of a child’s

care and custody to the detriment of the parent, and thus is immediately appealable, when

it includes a substantial departure from the goal of reunification. See In re Ashley S., 431

Md. 678, 702 n.15 (2013) (“[a] change in a permanency plan to eliminate reunification

with a parent is appealable as an interlocutory order”); In re Adoption/Guardianship of

Cross H., 431 Md. 371, 373 n.1 (2013) (reasoning that order changing plan from

reunification with parent to non-relative adoption would be appealable because it would

“extinguish the expectation of regaining custody”); In re Joseph N., 407 Md. 278, 291-93

(2009) (holding that mother could appeal order reaffirming permanency plan of

reunification while shifting physical custody from foster care to father, because order

“represented a meaningful shift in direction vis a vis [mother], and possible restoration of

her rights as a parent”); In re Karl H., 394 Md. at 430-31 (holding that a concurrent plan

established at initial permanency hearing “that includes the option of adoption is

sufficiently far enough along the continuum of depriving a parent of a fundamental right

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[so that it] is immediately appealable”); In re Joy D., 216 Md. App. 58, 73 n.10 (2014)

(order waiving requirement that local department make reasonable efforts to reunify

parent with child is appealable); In re James G., 178 Md. App. 543, 564-65 & n.14 (2008)

(order changing plan from reunification with parent to placement with relative is

appealable).

The Department nonetheless contends that Ms. G. has no right to appeal because

her child has reached the age of 18. The Department asserts that “the plan change did not

diminish Ms. G[.]’s custodial rights because Andre is an adult, and a parent has no

custodial rights to an adult child.” Further, the Department theorizes that Ms. G. may

“establish custody over her adult child” only by first petitioning for guardianship of

Andre as a disabled adult. For several reasons, we reject the argument that the juvenile

court’s order did not change the terms of Andre’s care and custody to Ms. G.’s detriment.

As used in the Maryland Code, the term “‘[a]dult’ means an individual at least 18

years old.” Md. Code (2014), General Provisions Art., § 1-103(a). The term “‘minor’

means an individual under the age of 18 years.” Id. § 1-103(b) Standing on its own,

however, the term “child” contains no age restriction. See id. § 1-106 (definition

providing that the term “child” generally includes illegitimate children, but establishing

no age restriction). For this reason, statutes will often refer to a “minor child” when

describing a parent’s relationship with a child who is under the age of 18, and to an “adult

child” when describing a parent’s relationship with a child over the age of 18. Compare

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Md. Code (1984, 2012 Repl. Vol.), § 5-203(a) of the Family Law Article (“FL”)

(providing that “parents are the joint natural guardians of their minor child”), with id. §

13-102(b) (establishing parent’s financial obligation to support a “destitute adult child”).

We are unconvinced that the appellate jurisdiction conferred by CJP §

12-303(3)(x) is limited to orders affecting the care and custody of minors. The language

of this particular provision is not limited to an order involving a “minor child”; rather, it

speaks of an order depriving a parent of “the care and custody of his child.” Nor is the

term “child” otherwise restricted within the Courts and Judicial Proceedings Article (see

CJP § 1-101), or within the title that governs appeals. See CJP § 12-101.

Moreover, Andre belongs to a small category of adults under the age of 21 who are

still considered to be “children” for the purposes of the juvenile court’s CINA

jurisdiction. Within the CINA subtitle, the term “child” generally refers to persons under

18. See CJP § 3-801(e). As an exception, however, once the court obtains jurisdiction

over the child, “that jurisdiction continues in that case until the child reaches the age of 21

years, unless the court terminates the case.” CJP § 3-804(b); see also CJP § 3-819(k)

(“[a]n order vesting legal custody of a child in a person or agency is effective for an

indeterminate period of time, but is not effective after the child reaches the age of 21”).

Consequently, even though Andre was 19 years old at the time of the order, he was still

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deemed to be a child in need of assistance subject to juvenile court jurisdiction.3

In the exercise of that jurisdiction, the juvenile court’s order made a number of

changes to the terms of Andre’s care and custody. By ordering that Andre be co-

committed to the DDA, the court transferred custody to a new entity. See CJP § 3-801(h)

(“‘Commit’ means to transfer custody”). The court also ordered the Department to pursue

a guardianship for Andre after he reached 21 years of age. The order thereby created a

new expectation that some person or entity other than Andre’s mother would exercise

custodial rights in the future.

The order also reduced Ms. G.’s visitation rights. The previous review hearing

order had entitled Ms. G. to full-day, unsupervised visits in her home each month, with

the option of an additional supervised weekend visit each month. The new order

eliminated those visits, maintaining only one visit for two hours each month with Andre’s

younger brothers at a Maryland visitation house. Pursuant to CJP § 12-303(3)(x), an

order that modifies visitation to a parent’s substantial detriment is also appealable. See In

re Billy W., 387 Md. 405, 425-26 (2005) (holding that mother could immediately appeal

3
Andre was also a “child” under the regulations that govern Maryland’s out-of-
home placement programs, which include foster care through a local department of social
services. Those regulations define a “child” as “an individual younger than 18 years old,
or between 18 and 21 years old if the court retains jurisdiction over the child and the
individual meets [] eligibility requirements[.]” COMAR 07.02.11.03(10). Andre
remained eligible for out-of-home placement, because he was then completing a
secondary education program at Gaithersburg High School. See COMAR
07.02.11.04(B).

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order that eliminated unsupervised visitation because it infringed upon mother’s

“opportunities to interact with, and care for, the [children] and to potentially build

stronger relationships with them[,]” and also holding that father could immediately appeal

order that required that the father hire an off-duty police officer to supervise visitation,

because that restriction “constitute[d] a detrimental change in [the father’s] visitation

rights”).

In determining whether an order affecting care and custody is immediately

appealable, “the focus should be on whether the order[,] and the extent to which that

order[,] changes the antecedent custody order.” In re Karl H., 394 Md. at 430; see In re

Katerine L., 220 Md. App. 426, 440 (2014). The reunification plan created a justifiable

expectation that the Department would make efforts to reunify Ms. G. with her adult

child, and it mandated unsupervised and supervised visits to help achieve that goal. The

revised plan eliminated the goal of reunification, established that the Department would

pursue a permanent adult guardianship for Andre with the DDA, and drastically reduced

Ms. G.’s visitation rights.

In sum, the juvenile court’s order changed the terms of Andre’s custody and

visitation (and had the potential to determine the outcome of his future custody) in a way

that detrimentally affected his mother’s existing rights. Even though Andre is more than

18 years old, Ms. G. may appeal from this interlocutory order, because it is an order

“[d]epriving a parent . . . of the care and custody of [her] child, or changing the terms of

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such an order.” CJP § 12-303(3)(x).4

D ISCUSSION

A. Standard for Reviewing Change of Permanency Plan

In cases where a child in need of assistance has been placed outside of the family

home, the juvenile court must determine a permanency plan consistent with the child’s

best interests. See CJP § 3-823(b). The court must consider the following factors in

selecting the plan:

(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

4
The Court of Appeals has commented that one purpose of permitting immediate
appeals under CJP § 12-303(3)(x) is to safeguard a parent’s natural rights, which have
constitutional dimensions. See In re Samone H., 385 Md. 282, 299-300 (2005); Frase v.
Barnhart, 379 Md. 100, 117-18 (2003). Here, the prior permanency orders vested Ms. G.
with certain rights to the care and custody of Andre. Under these circumstances, it would
be both unnecessary and unwise to address whether Ms. G. also possessed any “natural”
or “fundamental” right to direct Andre’s upbringing after he reached the age of 18. See
Sumpter v. Sumpter, 436 Md. 74, 91-92 (2013) (avoiding potential issue regarding
mother’s constitutional interest in the care and custody of her children and invoking well-
settled principle that courts should not decide a constitutional issue when a non-
constitutional ground presents itself).

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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.

FL § 5-525(f)(1); see also CJP § 3-823(e)(2).

“In developing a permanency plan, the juvenile court is to give primary

consideration to the ‘best interests of the child.’” In re Ashley S., 431 Md. at 686.

Another major purpose of the CINA statute, however, is to “conserve and strengthen the

child’s family ties and to separate a child from the child’s parents only when necessary

for the child’s welfare[.]” CJP § 3-802(a)(3). To this end, “[t]he statutory scheme

presumes that, ‘unless there are compelling circumstances to the contrary, the plan should

be to work toward reunification, as it is presumed that it is in the best interest of a child to

be returned to his or her natural parent.’” In re Joy D., 216 Md. App. at 74-75 (quoting In

re Yve S., 373 Md. at 582).

The court must consider the following hierarchy of placement options, in

descending order of priority: (1) reunification with the child’s parent or guardian, (2)

placement with a relative for adoption or custody and guardianship, (3) adoption by a

nonrelative, (4) custody and guardianship by a nonrelative, or (5) “[a]nother planned

permanent living arrangement that . . . [a]ddresses the individualized needs of the child,

including the child’s educational plan, emotional stability, physical placement, and

socialization needs; and . . . [i]ncludes goals that promote the continuity of relations with

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individuals who will fill a lasting and significant role in the child’s life.” CJP §

3-823(e)(1)(i). The court may not continue a child’s out-of-home placement under a plan

of APPLA “unless the court finds that the person or agency to which the child is

committed has documented a compelling reason for determining that it would not be in

the best interest of the child” to pursue other permanent placement options. CJP §

3-823(f).5

“Once set initially, the goal of the permanency plan is re-visited periodically at

hearings to determine progress and whether, [because of] historical and contemporary

circumstances, that goal should be changed.” In re Yve S., 373 Md. at 582. At review

hearings, the court must “[c]hange the permanency plan if a change in the permanency

plan would be in the child’s best interest.” CJP § 3-823(h)(2)(vi); see also In re Adoption

of Cadence B., 417 Md. 146, 157 (2010) (“if there are weighty circumstances indicating

that reunification with the parent is not in the child’s best interest, the court should

modify the permanency plan to a more appropriate arrangement”) (citation omitted).

In this appeal, Ms. G. does not contend that the court erred in any of its factual

5
More specifically, CJP § 3-823(f) requires a showing of a compelling reason that
it would not be in the child’s best interest to: (1) return home; (2) be referred for
termination of parental rights; or (3) be placed for adoption or guardianship with an
appropriate relative or guardian. Here, the court’s order documented the Department’s
“compelling reasons” not to pursue any of these options, and this appeal focuses on the
reasons why it was not in Andre’s best interest to return home.

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findings or legal conclusions.6 Instead, she challenges the court’s ultimate exercise of

discretion in changing Andre’s permanency plan. See Cadence B., 417 Md. at 155 (where

parent challenges ultimate decision to change permanency plan rather than any findings of

fact, appellate court must determine whether juvenile court abused its discretion); In re

James G., 178 Md. App. at 565 n.14 (“[a]n order changing a permanency plan is subject

to overall review for abuse of discretion”) (citing In re Yve S., 373 Md. at 583).

In this context, an abuse of discretion exists “where no reasonable person would

take the view adopted by the [trial] court, or when the court acts without reference to any

guiding rules or principles.” In re Yve S., 373 Md. at 583 (citation and quotation marks

omitted). A trial court’s exercise of discretion in changing a permanency plan will be

reversed if the court’s decision is “‘well removed from any center mark imagined by the

reviewing court and beyond the fringe of what that court deems minimally acceptable.’”

Cadence B., 417 Md. at 155-56 (quoting In re Yve S., 373 Md. at 583-84).

Here, the court summarized the basis for its decision in its written order:

[I]t is in Andre’s best interest to change the plan to APPLA.
Previous attempts to engage D.C. [DDS] in planning for
Andre have been unsuccessful. He has expressed a desire to
remain in Maryland and does not wish to relocate to the
District of Columbia. Given his age and his ability to express

6
Maryland appellate courts apply three different standards of review to different
aspects of a court’s decision in child custody cases: we scrutinize factual findings for
clear error; we determine whether the juvenile court erred as to matters of law and if so
whether those errors were harmless; and then we evaluate the juvenile court’s ultimate
decision for abuse of discretion. See In re Shirley B., 419 Md. 1, 18 (2011) (quoting In re
Yve S., 373 Md. at 586).

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himself, the Court gives considerable weight to his stated
wishes. In addition, efforts need to begin now to transition
Andre into a safe and appropriate environment as he nears the
age of 21.

As to the “compelling reasons” for placement under APPLA, the court stated:

[I]t is not in the best interest of the Child to be returned home
because the limitations of both Andre and Ms. G. are too
severe to realistically continue to pursue a plan of
reunification. Reunification efforts have been considerable
over the past several years and have not proved fruitful.

B. Consideration of Child’s Views on Permanency

Ms. G.’s appeal focuses on one aspect of the court’s reasoning. She contends that

“Andre’s preference not to move to [Washington] should not have been dispositive or

given significant weight.” She argues that Andre could not form a rational judgment on

the issue of permanency. In support, she refers to a report that had been submitted in

connection with the previous review hearing, in which a court-appointed special advocate

expressed concern that Andre might not have understood that, under any arrangement, he

could not stay in his foster home after reached the age of 21.

Andre, through his attorney, argues that the juvenile court appropriately considered

his preference not to move to Washington. The Department contends that the court was

not only permitted to consider Andre’s views on the permanency plan, but was in fact

required to do so.

At least every 12 months, at a permanency planning review hearing, the court

“shall consult on the record with the child in an age-appropriate manner to obtain the

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child’s views on permanency.” CJP § 3-823(j)(1). With respect to matters of both

custody and visitation, this Court has held that “‘[w]hen a child is of sufficient age and

has the intelligence and discretion to exercise judgment as to his or her future welfare,

based upon facts and not mere whims, those wishes are one factor that, within context,

should be considered by the trial judge . . . .’” In re Barry E., 107 Md. App. 206, 220

(1995) (quoting Leary v. Leary, 97 Md. App. 26, 48 (1993)); see also In re Iris M., 118

Md. App. 636, 648 (1998) (explaining that wishes of child who was almost 15 years old

and who requested not to have visitation with her father should be given some

consideration, but should not be the sole determinant of visitation decision).

In addressing whether it was appropriate for the court to consider Andre’s

preference, we acknowledge that the trial court “‘is in the unique position to marshal the

applicable facts, assess the situation, and determine the correct means of fulfilling a

child’s best interests.’” In re Karl H., 394 Md. at 415 (quoting In re Samone H., 385 Md.

282, 301 (2005)). Despite his cognitive and verbal deficits, Andre was nearly 20 years

old when he testified at the hearing. The trial judge had the opportunity to observe Andre

and to assess his affect. After Andre’s testimony, the court-appointed special advocate

commented: “He has come a long way, and I’m so impressed with how he can express his

emotions . . . and thoughts clearly.” A report from the Department’s assigned social

worker, who had extensive familiarity with Andre’s development, stated: “Though

[Andre’s] comprehension around this [issue] may be fragmented and loose, he is

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distinctly aware that he feels more support in Maryland rather than D.C.” Moreover, the

case history revealed a consistent, longstanding pattern of distress during and after

Andre’s unsupervised visits with his mother in Washington. The court here reasonably

concluded that Andre’s preference not to move to Washington was sufficiently intelligent

and more than a mere whim.

C. Consideration of Other Factors

In any event, the trial court did not, as Ms. G. asserts, consider only Andre’s

“present desires” without considering “his future needs.” To the contrary, Andre’s

preference was neither the sole factor nor the predominant factor in the court’s decision.

The overriding consideration that properly informed the court’s determination was

Andre’s “ability to be safe and healthy in the home of [Andre’s] parent.” FL §

5-525(f)(1)(i). The Department here made extensive efforts for several years to ensure

that Andre would be safe in Ms. G.’s home in Washington, but the limitations of Andre

and his mother, in combination with the unavailability of support services, made that goal

impossible to achieve.

The Court of Appeals has emphasized that, in deciding a permanency plan for a

child who has been declared a CINA because of a parent’s abuse or neglect, the court

should remain mindful that custody may not be granted to the parent unless the court

makes a specific finding that there is no likelihood of further abuse or neglect in the

parent’s custody. See In re Shirley B., 419 Md. 1, 21-22 (2011) (citing FL § 9-101); In re

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Yve S., 373 Md. at 587-88 (explaining that this requirement “focuses the court’s attention

and gives clear direction in the exercise of [the court’s] discretion”). Furthermore, “[t]he

previously abusive or neglectful parent shoulders the burden of proving that the past

conduct will not likely be repeated.” Cadence B., 417 Md. at 157.

In Cadence B., the child was found to be a CINA as a result of the neglect of her

father, who also had a proven history of neglectful conduct towards his five other

children. Id. at 149. The Court of Appeals held that the juvenile court did not abuse its

discretion in changing Cadence’s permanency plan from reunification to adoption after

she had spent over a year and the majority of her life in foster care. Id. at 149-50. The

Court highlighted testimony that “any path to reunification would require a gradual

increase in the hours of permissible visitation so that the Department could monitor the

interactions until it was satisfied that Cadence would be safe in her father’s custody.” Id.

at 163. The father, however, participated infrequently in visitation despite the local

department’s efforts to facilitate more frequent visits. Id. Similarly here, Ms. G.’s poor

record of attending scheduled visits in Maryland, and her choice not to attend optional

weekend visits, made it unlikely that Ms. G. would make the necessary progress toward

reunification within any time frame consistent with Andre’s welfare.

In determining Andre’s permanency plan, the court was also required to consider

Andre’s attachment and emotional ties to his natural parent and siblings. See FL §

5-525(f)(1)(ii); CJP § 3-823(e)(2). With respect to this factor, the court noted: “Andre

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has connections to biological family, but these are superficial and fragmented at best. . . .

Andre sees his brothers once a month, regardless of whether Ms. G. visits or not.” These

considerations properly guided the court’s ultimate decision to eliminate the goal of

reunification. See In re Ashley S., 431 Md. at 717 (in opinion affirming change of

permanency plan from reunification to adoption, noting that emotional ties between

mother and children “were weakened substantially by [the mother’s] failure to arrive at

visitation appointments on time – if she arrived at all”).

Nonetheless, even if the lack of progress towards reunification could not be

attributed to any failing of Ms. G., the central issue for the court remained whether Andre

in fact would ever be safe in Ms. G.’s care. See In re Shirley B., 419 Md. at 33-34. In

Shirley B., four children, each of whom had special needs, were found to be CINA upon

proof of abuse and neglect by their parents. Id. at 5-6. Over a period of 28 months, the

local department made efforts to connect the mother with services to meet her

individualized needs, but the funding for most of the recommended services was not

available. Id. at 6. The Court of Appeals acknowledged that the mother had been

“largely cooperative” with the local department and that the mother’s “inability to

improve her situation” was “arguably through no fault of her own[.]” Id. at 33.

Nevertheless, the Court reasoned that the statute requires the courts to “balance

[the mother’s] interests with the [c]hildren’s health and safety.” Id. at 33-34 (citing FL §

5-525(f)(1)(i)). The Court held that the juvenile court did not abuse its discretion in

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changing permanency plans of the children from reunification for adoption, because the

mother’s cognitive “limitations prevented her from providing a safe home for her children

in the foreseeable future[.]” In re Shirley B., 419 Md. at 7. For similar reasons, we

conclude here that changing Andre’s permanency plan to another planned permanent

living arrangement suited to his special needs and circumstances was a choice well within

the bounds of the court’s discretion.

As a final objection, Ms. G. complains that the permanency plan of APPLA failed

to include sufficient “goals that promote the continuity of relations with individuals who

will fill a lasting and significant role in the child’s life[.]” CJP § 3-823(e)(1)(i)(5). Ms.

G. argues that only Andre’s biological family, and not his present care providers and

mentors, would fill any role in Andre’s life after he would age-out of the child welfare

system in December 2015.

The court, however, did seek to preserve meaningful contact with Andre’s family.

In stating the compelling reasons for the plan of APPLA, the court’s order specifically

found that it was not in Andre’s best interest to terminate Ms. G.’s parental rights,

“because Andre and Ms. G. do have a connection that should be preserved.” The court

continued to order monthly visits for Andre with his mother and his two brothers at a

visitation house in Maryland and also ordered the Department to pursue the availability of

“food vouchers” to aid those visits. At the hearing, the court explained that once Ms. G.

established a “better track record” of attending those visits, “maybe we can then branch

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out and try to have something with Andre and his mother[.]”

C ONCLUSION

The circuit court was not required to continue to pursue reunification with Andre’s

mother in Washington, where there was no likelihood that Andre would be safe and

healthy in the mother’s home within the time that he would remain under the court’s

jurisdiction, and where Andre’s emotional connections to his mother had been weakened

over many years in part by his mother’s inconsistent participation in visitation. The court

did not abuse its discretion in determining that it was in Andre’s best interests to change

his permanency plan. See In re Shirley B., 419 Md. at 7; Cadence B., 417 Md. at 163-64.

APPELLEE’S MOTION TO
DISMISS DENIED. ORDER OF THE
CIRCUIT COURT FOR
MONTGOMERY COUNTY
AFFIRMED. COSTS TO BE PAID
BY APPELLANT.

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