In Re: Adoption of Victor A.

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In re: Adoption/Guardianship of Victor A., No. 72, September Term, 2004. [Family Law: Termination of Parental Rights - B est Interest of C hild Standard - Child w ith Severe Disabilities. In a termination of parental rights proceeding, the trial judge may consider long-term p lacement o ptions for c hildren with special needs; however, the existence of special needs does not in depende ntly enter into the court s decision to terminate parental rights. Case rem anded to th e trial court to m ake the req uisite findings in support of any decision to terminate the parent s parental rights based upon Md. Code, §§ 5-313(c) and (d) of the F amily La w Art icle in the best inte rests of the child .] IN THE COURT OF APPEALS OF MARYLAND No. 72 September Term, 2004 IN RE A DOPT ION/GU ARDIA NSHIP OF VICTOR A. Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Battaglia, J. Filed: April 12, 2005 In this case, the Prince George s Department of Social Services petitioned for guardians hip of Victor A., a child with severe disabilities. The trial court granted the petition and terminated the parental rights of Victor A. s parents, Mr. A. and Ms. A. We have been asked to consider whether the Court of Special Appeals, in its remand, applied a different standard to determine the best interests of ch ildren with special nee ds, than is app lied to children withou t such n eeds in a termin ation of parenta l rights p roceed ing. I. Facts and Procedural History Victor A. wa s born o n Ma rch 26, 2 000, to M s. A. an d Mr. A . He tested positive for cocaine and amp hetamine s at birth and was diagnosed with severe mental and physical disabilities, including Cerebral Palsy, Mental Retardation, Dysphagia, Myopia, Reflux, Global Developmental Impairment Microcephaly, Encephalopathy, and Failure to Thrive. As a resu lt, Victor A. is severely spastic and is unable to control any of his extremities; he is unable to speak or walk and has a swallowing disorder requiring that he be fed through a gastronomy tube. He must use a wheelchair and braces to keep his legs straight and other supports for his body; he also takes several medications to alleviate his discom fort and to help his breathing. As part of his care, Victor A. requires 16 hours a day of in-home nursing services and has n umerou s doctors to h elp manage his disabilities, including a pediatrician, gastrologist, orthopedist, pulmonologist, and an opthamologist. He also receives speech therapy, physical therapy, and occupational therapy to prevent further deterioration that may result fro m his d isabilities . At the time of Victor A. s birth, Ms. A. was an active drug user, and Mr. A. also was undergoing assessment as a substance abuser; neither could care for Victor A., who, after birth, remained in the hosp ital for appro ximately three m onths. On July 3, 2000, the Prince George s County Departm ent of Social Services (P GDSS ), filed an emergency shelter care petition in the Circuit Court for Prince George s County, Division of Juvenile Causes, after which a hearing1 was held and temp orary custody of Victor A . was aw arded to P GDS S with instructions to place him with a relative, who PGDSS identified as his maternal aunt. The court allowed M s. A. to have supervised visitation with Victor A. if she participated in a drug treatment program and rem ained drug free fo r three months; Mr. A. was permitted liberal unsupervised visitation unless he was found to have a substance abuse problem, which eventually turned out to be unsu bstantiated. Thereafter, Victor A. was d eclared a ch ild in need of assistance ( CINA ) 2 and was released from the hospital. He resided with his aunt until October of 2000, when Ms. A. alleged that Victor A. had b een sexu ally abused by his 1 Shelter care means a tempora ry placemen t of a child outside of the home at any time before disposition. Md. Code (1973, 2002 Repl. Vol.), § 3-801(w) of the Courts and Judicial Proceedings Article. A shelter care hearing means a hearing held before disposition to determine whether the temporary placement of the child outside of the h ome is w arrante d. Md. Code (1973 , 2002 Repl. Vo l.), § 3-801(x) of the Courts and Judicial Proceedings Article. 2 Md. Code (1973, 2002 R epl. Vol.), § 3-801(f) of the Courts and Judicial Proceedings Article defines a CINA as: Child in need of assistance means a child who requires court intervention because: (1) The child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and (2) The child s parents, gu ardian, or cu stodian are u nable or unwilling to give prop er care and attention to the child and the child s n eeds. 2 aunt s son. W hile the a llegation s of ab use w ere bein g inves tigated, P GDSS placed Victor A. in foste r care, du ring w hich tim e Mr. A . visited V ictor A . several times a week. The allegations of abuse were never corroborated, but when Victor A. s aunt was asked to resume caring for him, she declined. On January 25, 2001, the Circuit Court conducted a review hearing, during which the judge established a permanency plan3 of reunification and aw arded f ull custo dy to Mr . A. 3 Md. Code (1 984, 199 9 Repl. Vol., 2003 Cum . Supp.), § 5-525(e) of the Family Law Article states: Development of a permanency plan. (1) In developing a permanency plan for a child in an out-of-home placement, the local department of social services shall give primary consideration to the best interests of the child. The local department shall consider the following factors in determining the permanency plan that is in the best interests of the child: (i) the child s ability to be safe and healthy in the home of the child s parent; (ii) the child s attachment and emotional ties to the child s natural parents and siblings; (iii) the child s emotional attachment to the child s current c areg iver and the c areg iver s fa mily; (iv) the length of time the child has resided with the current caregiver; (v) the potential emotional, developmental, and educational harm to the child if moved from the child s current placement; and (vi) the potential harm to the child b y remaining in State custody for an excessive period of time. In addition, Md. Co de (1973, 2002 R epl. Vol.), § 3-823 (e) of the Courts and Judicial Proceed ings Article s tates: Determinations to be made at hearing. At a permanency planning h earing, the co urt shall: (contin ued...) 3 Three months later, PGD SS filed a petition alleging that V ictor A. s medical needs w ere not being met, and during a hearing on the matt er, th e tria l cou rt res cind ed M r. A. s cu stod y, declared Victor A. to be a child in need of assistance for a second time, and placed him in foster care, but allowed Mr. A. and Ms. A. to have daily unsupervised visitation. In order to regain custody of Victor A ., Mr. A. sign ed service a greemen ts to comple te parenting s kills classes, to participate in a support gro up for pa rents of spe cial needs c hildren, and to obtain adequate housing. Ms. A. also agreed to undergo psychological evaluation s, to participate in parenting skills classes, an d to continu e her drug treatment un der a service agreeme nt. Thereafter, on May 28, 2002, the judge changed the permanency plan from reunification with Mr. A. to adoption, after PGDSS had reported that both parents had failed to meet some of the conditions set forth in the various service agreements. PGDSS then 3 (...continued) (1) Determine the child s permanency plan, which may be: (i) Reunification with the parent or guardian; (ii) Placement with a relative for: 1. Adoption; or 2. Custody and guardianship; (iii) Adoption by a nonrelative; (iv) Guardianship by a nonrelative; (v) Continuation in a specified placement on a permanent basis because of the child s special needs or circumstances; (vi) Continua tion in placem ent for a sp ecified period because of the child s special needs or circumstances; or (vii) Independent living; and (2) For a child who has attained the age of 16, determine the services needed to assist the child to make the transition from placem ent to ind epend ent livin g. 4 petitioned the court for a termination of the parental rights of Mr. A. and Ms. A., and on December 24, 2002, the court granted PGDSS limited guardianship and reduced each parent s visits to once per month. Sub sequ ently, on July 18, 2003, the court conducted a two-day termination of parental rights hearing, during which PGDSS sought guardianship of Victor A. for the purpose of having him pla ced fo r adopt ion. The judge asse ssed Victo r A. s need s in terms of his medical care and each parent s ability to care for him. Although the judge determined that both parents, for th e most par t, had com plied with th e service ag reements by attending the parenting classes, he also found that Ms. A. had participated in the drug treatment program, submitted to psychological evaluations, and regularly visited Victor A . The cou rt, however, concluded that M s. A. w as unab le to care for Victor A. because she had an ongoing substance abuse p roblem and he ld that, th e return of Vic tor, Jr., to his mom does pose an unaccep table risk to [his] future safety[.] While the judge ex pressed satisfaction as to M r. A s compliance with the service agreements and noted that Mr. A. maintained regular contact with and provided fo r Victor A. financially, he found unacceptable that M r. A. had fa iled to secure adequate housing to accommo date Victor A. s needs, despite Mr. A . s assurances that he wo uld find approp riate hou sing if V ictor A . were r eturned to his ca re. At the conclusion of the hearing , the judge sta ted that he w as clearly convinced that the County [was] a better parent and that it [was] in the better intere sts of [Victor A.]. But whether it [was] in the best interests to terminate his parents rights [he was] not sure. Thus, 5 the judge reserved ruling on the matter to consider the evidence presented during the hearing regarding the available placement options for Victor A. and whether Mr. A. and M s. A. could maintain visitation rights if their parental rights were terminated . After the hearing, the court made the following findings in an order issu ed on Se ptember 2 3, 2003: This matter, having been brought before this Court by the Prince George s County Office of Law on a Petition for Termination of Parental Rights which was here by held befo re this Court for trial on July 18, 2003 and furthe r hearing he ld on August 14, 2003, and having heard testimony and having weighed the relevant factors in this matter, it is on this 23 rd day of September 10, 2003, by the Circuit Court for Prince George s County, hereby ORDERED, that this Court concludes that it is in the best interests of Victor [ A.] for term ination of h is natural pare nts rights;[4] and is further ORDERED, that this Court hereby grants the Prince George s County D epartmen t of Social Services (hereinafter referred as Department ) petition to be granted guardianship of Victor [A.], with the right to consent to adoption and/or long term care, and further the right to mak e application to this Court for a change of name; and it is further ORDERED, that the Court also finds that until such time as the Departmen t identifies such adoptive or lon g-term resource, that it is in th e best in terests o f Victo r [A.] to continue visitation with [Ms. A .] and [Mr. A.] under the supervision of the D epartm ent. ORDERED, that the above-captioned cases are hereby 4 The court s ability to term inate parental rights is governed by Md. Code (1984, 1999 Repl. Vol.), § 5-313 of the Family Law Article, which w e cite in full infra and reads in part: (a) In general. A co urt may grant a decree of adoption or a decree of guardianship, without the consent of a natural parent otherwise required by §§ 5-311 and 5-317 of this subtitle, if the court finds by clear and convincing evidence that it is in the best interest[s] of the child to terminate the natural parent s rights as to the ch ild . . . 6 closed statisti cally. Mr. A. and Ms. A. appealed the judgment terminating the ir parental rights to the Court of Special Appea ls, arguing that PGD SS had failed to estab lish by clear and convincing evidence that termination of their parental rights was in Victor A. s best interests. The intermediate appellate court agreed with Victor A. s parents in In re Ado ption/Gu ardiansh ip of Victor A., 157 Md.App. 412, 852 A.2d 976 (2004), and held that the trial court did not make adequate factual findings to support a termination of their parental rights. In reaching its decision, the Court of Special A ppeals op ined that the tria l court did n ot explain its mixed conclusion of fact and law that termination of the As parental rights [was] in Victor [A.] s best interest in light of the numerous findings in favor of preserving the parental rights and that it had failed to determine how continuation of parental rights would harm or diminish Victor A. s prospects for adoption, pursuant to Maryland Code, Section 5-313 (a)(3)(iv) of the Fam ily Law Artic le (1984, 19 99 Rep l. Vol.).5 Thus, the Court of Special Appea ls vacated the judgment terminating Mr. A. and Ms. A s parental rights and remanded the case to the trial court to assess all the available permanent placement options for Victor A. in deciding whether termination of parental rights would be appropriate. PGDSS filed a petition for writ of certio rari in this Cou rt and the Pu blic Justice Center 5 Md. Code (1984, 1999 R epl. Vol.), § 5-313 (a)(3)(iv) reads: [A] con tinuation of the relationsh ip between the natural parent and the child would diminish greatly the child s prospects for early i nteg ratio n into a stable and perm anen t fam ily. 7 filed a Petition and Me morandum in Support 6 thereof and asked to participate as amici curiae. We granted bo th petitions and issued the w rit of certiorari7 to consider the following questions, which we have renumbered to clarify the issues in this case: 1. Did the Court of Special Appeals err in reaching and deciding the question of the com pleteness o f the trial court s findings, when that question, which does not pertain to the jurisdiction of either the trial court or the appellate court, was not raised by the appellants? 2. Did the Court of Special A ppeals err in h olding that a different standard applies to determining whether adoption or long-term f oster care is in the best interest of disabled children than applies to nondisabled children, in contravention of the American with Disabilities Act and the strong legislative policy, recognized and approved by this Court s binding precedent, favoring permanency for all children? For the reasons stated herein, we affirm the judg ment of th e Court of Special A ppeals vacating the order terminating both parent s parental rights and remanding the case to the trial court for further proceedings. II. Standard of Review We utilize three interrelated standards to review a trial court s dec ision to termin ate parental righ ts, as set forth in In re Yve S., 373 M d. 551, 819 A.2d 10 30 (2003 ): [W]e point out three distinct aspects of review in child custody disputes. When th e appellate court scrutinizes factual findings, the clearly erroneous standard of [Rule 8-131 (c)] applies. [Seco nd,] [i]f it appears that the [court] erred as to matters of law, further proceedings in the trial court will ordinar ily be required unless the error is determined to be harm less. Fina lly, 6 The Maryland Disability Law Center joined in the amicus curiae. 7 In re Victor A., 383 Md. 211 , 857 A.2d 112 9 (2004). 8 when the appellate court views the ultimate conclusion of the [court] founded upon sound legal principles and based upon factual finding s that are not clea rly errone ous, the [court s] decision should be disturbed o nly if there has been a clear abuse of disc retion. Id. at 586, 819 A.2d at 1051, quoting Davis v. D avis, 280 Md.119, 122-26, 372 A.2d 231, 232-34 (1977); see also Robinson v. Robinson, 328 Md. 507, 513, 615 A.2d 1190, 1193 (1992); McCready v. McCready, 323 Md. 476 , 484, 593 A.2d 1 128, 1131 (199 1). III. Discussion PGDSS contends that the Court of Special Appeals erred by enunciating a different standard for assessing the best interests of children with special needs or circumstances than is applied to childr en with out suc h need s. In PGDSS s view, the statutory time lines for achieving permanence were intended to apply to all children without regard to a child s disabilities. PGDSS also asserts that the Court of Special Appeals decided an issue that was not before the court when it addressed whether the trial court had made all of the requisite findings needed to terminate pa rental rights. A ccording to PGDSS, Mr. A. and Ms. A. raised only two claims in the intermediate appellate court: that [Vic tor A. s] disab ilities make it more appropr iate to lea ve him in defi nitel y in foster care than to free him for adoption and that the trial court had erred in finding that neither of them [Mr. A. and Ms. A.] will become able to care for [V ictor A.] in the reasonably foreseeable future, which did not include a determ ination a bout th e trial cou rt s find ings. To the contrary, Mr. A. and Ms. A. maintain that the Court of Special Appeals did not 9 apply a differen t standard to d etermine the best interests o f children w ith disabilities than that is applied to children without special needs. Victor A. s parents contend that the Court of Special Appeals s explanation of the applicable statutes did not distinguish between disabled and nondisabled child ren and tha t the holding was limited to the trial court s findings in terminating their parental rights. Mr. A. and M s. A. further assert that the trial court s findings were properly raised because the Court of Special Appeals was asked to determine whether the trial court ha d erred in term inating their p arental rights and within this inquiry was whether the trial court s findings adequately supported the trial court s decision. In this case we are presented with a unique issue of whether children with spec ial needs in the child welfare system are subject to a different legal standard in the determination of the best interests standard than is applied to children without such needs. The fundamental problem presented by this case warrants discussion of the child welfare system s purpo se and p rinciple s. A. Funda mental Righ ts of Parents The appropriate starting point in our analysis w hen the Sta te intervenes in family relations is the fundam ental rights of a parent. Certain fundamental rights are protected by the United States Constitution, and among th ose rights are a parent s rig ht to raise his or her children withou t undue interfer ence b y the State . In re Yve S., 373 Md. at 565, 819 A.2d at 1039; In re Adoption /Guardianship Nos. J9610436 and J9711031, 368 Md. 666, 692, 796 A.2d 778, 793 (2002); In re Mark M., 365 Md. 687, 70 5, 782 A.2d 332, 342 (2001). The 10 United States Supreme Court has long recognized that a pare nt has a con stitutionally protected funda menta l right to ra ise his or her child ren. See In re Yve S, 373 Md. at 566-67, 819 A.2d at 10 39; In re Mark M., 365 Md. at 705, 782 A.2d at 34 2-43; In re Adoption/Guardianship No. 10941, 335 M d. 99, 11 2-13, 6 42 A.2 d 201, 2 08 (19 94). Most recently, in In re Yve S., we affirmed this principle and stated that a p arent s interest occupies a unique place in our legal culture, given the centrality of family life as the focus for personal mean ing and responsibility. [F]ar more precious . . . than property rights, parental righ ts have bee n deeme d to be am ong those essential to the orderly pursuit of happin ess by fre e men . . . . Id. at 567, 819 A.2d at 1039, quoting In re Adoption /Guardia nship No. 10941, 335 Md. at 113, 642 A.2d at 208, in turn quoting Lassiter v. Department of Social Services, 452 U.S. 18, 101 S .Ct. 2153, 6 8 L.Ed.2d 640 (198 1); In re Mark M., 365 Md. at 705, 782 A.2d at 342-43. Likewise, in In re Mark M., we emphasized the importa nce of pa renting as a f undame ntal right: A parent s intere st in raising a ch ild is, no do ubt, a fundamental right, recognized by the United States Supreme Court and this Court. The U nited States Supreme Court has long avowed the basic civil right encompassed by child rearing and family life. See Troxel v. G ranville, 530 U.S. 57, 66, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 4 9, 57 (200 0) (stating that the Fourteen th Amendment protects the fundamental right of parents to make decisions concernin g the care, cu stody, and con trol of their children ); See also Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982) (discussing the fundamental liberty interest of natural parents in the care, custody, and man agemen t of their child ); Stanley v. Illino is, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972) (stating that [t]he rights to conceive and to raise 11 one s children have been deemed essential, and that [t]he integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment . . . the Equal Protection Clause of the Fourteenth Amendment . . . and the Ninth Amendment . . . . ) (internal citations omitted)). Maryland, too, has declared a parent s intere st in raising a child to be so fun damenta l that it canno t be taken aw ay unless clearly justified . Boswe ll v. Boswe ll, 352 Md. 204, 218, 721 A.2d 662, 669 (1998)(citing In re Adoption No. 10941, 335 Md. 99, 112, 642 A .2d 201 (1998 )). Id. at 705, 782 A.2d at 342-43. In termination of parental rights proceedings where the State has intervened through the exercise of its generally recognized power to protect the child by reason of the natural parent s unfitness, the standard is based upon the best interests of the c hild, see McD ermott v. Dougherty, et al., __ Md. __, __, __ A .2d __, __ (2 005); In re Adoption/Guardianship No. 10941, 335 Md. at 112, 642 A.2d at 208, and there is a strong presumption in favor of maintaining parenta l rights to serve th e child s best inte rests. See In re Yve S., 373 Md. at 571, 819 A.2 d at 1042; In re Adoption/Guardianship No. 10941, 335 Md. at 112, 642 A.2d at 208; In re Adoption /Guardianship Nos. J9610436 and J9711031, 368 Md. at 692, 796 A.2d at 793. We explained this presumption in In re Yve S.: The best interests of the child standard embraces a strong presumption that the child s best interests are served by maintaining parental rights. If it were otherwise, the most disadvantaged of our adult citizens always would be at greater risk of losing custody of their children than those more fortunate. Those of our citizens coping with emotional or mental difficulties could be faced with such discrimination. Id. at 571, 819 A.2d at 1 042 (internal citations omitted). 12 A parent s right to raise his or her children, however, is not beyond limitation, and there may be cou ntervailing co nsiderations that the State, pursuant to its parens patriae authority, must protect. We emphasized these considerations in In re Mark M.: That fundamental interest [in raising a child], however, is not absolute and does not exclude other important considerations. Pursuant to the doctrine of parens patriae, the State of Maryland has an interest in caring for those, such as minors, who cannot care for themselves. See Bosw ell, 352 Md. at 218-19, 721 A.2d at 669. We have held that the best interests of the child may take preceden ce over the parent s liberty inte rest in the course of a custo dy, visitatio n, or ado ption d ispute. Boswe ll, 352 Md. at 219, 721 A.2d at 66 9; see also In re Adoption No. 10941, 335 Md. at 113, 642 A.2d at 208 (stating that the controlling factor . . . is . . . what best serves the interest[s] of the child ). That which will best promote the child s welfare becomes particularly consequential where the interests of a child are in jeopardy, as is often the c ase in situation s involving sexual, physic al, or emotional abuse by a parent. As we stated in In re Adoption/Gu ardiansh ip No. A91-71A, 334 Md. 538, 640 A.2d 1085 (1994), the child s welfare is a consideration that is of transcendent importance when the child might otherwise be in jeopa rdy. Id. at 561, 6 40 A.2 d at 109 6 (citatio n omitte d). *** We have reco gnized tha t in cases where abuse or neglect is evidence d, particularly in a CINA ca se, the court s r ole is necessarily more p ro-activ e. See In re Justin D., 357 Md. at 448, 745 A.2d at 417. *** A trial court, acting under the State s parens patriae auth ority, is in the unique position to m arshal the ap plicable facts, assess the situation, and determine the correct means of fulfilling a child s b est intere sts. Id. at 705- 06, 782 A.2d a t 343. B. The Child Welfare System 13 The fundam ental right of parents to rais e their children is no t only well settled in our common law, but also is reflected in federal and Maryland le gislation. Th e role of federal and Maryland statutes relating to the child welfare system was explained in In re Yve S., quoting from Judge Karwacki in In re Adoption/Guardianship No. 10941, 335 Md. 99, 10306, 642 A.2d 2 01, 203-05 (199 4): The Maryland General Assembly has enacted a comprehensive statutory scheme to address those situations where a child is at risk because of his or her parents inability or unwillingn ess to care for him or her. Title 5 of the Family Law Article of the Maryland Code (1984 , 1991 Repl. Vo l.) (Hereinafter F.L. ) governs the custody, guardianship, adoption and general protection of children who be cause of a buse or ne glect come within the purview of the Department of Human Resources . . . . *** During the 1970's, nationwide concern grew regarding the large number of children who remained out of the homes of their biological parents througho ut their childhood, frequently moved from on e foster care situation to another, thereby reaching majority without belonging to a permanent f amil y. This phenomenon became known as foster care drift and resulted in the enactment by Congress of Public Law 96-272, the Adoption Assistance and Child Welfare Act of 1980, codified at 42 U.S.C. §§ 6 10-679 (1988 ). One of the important purposes of this law wa s to eliminate foster care drift by requiring states to adopt statute s to facilitate permanent placement for children as a condition to receiving federal fu nding fo r their foster care and adoption assistance programs. Under the federal act, a state is required, among other things, to provide a written case plan for each child for whom the state claims federal foster care maintenance payments. 42 U.S.C. § 671 (a) (16). The case plan must include a description of the home or institution into which the child is plac ed, a discussion of the appropriateness of the placement, and a description of the services provided to the parents, child and 14 foster parents to facilitate return of the child to his or her own home or to establish another permanent placement for the child. 42 U.S.C. § 675 (1). The state must also implement a case review system that provides for administrative review of the case plan at least every six months and judicial review no later than eighteen months after plac ement an d periodica lly thereafter. 42 U.S.C. § 675 (5)(B) and (C). The purpose of the judicial review is to determine the future status of the child including whether the child should be returned to its biological parents, continued in foster care for a specified period, placed for adoption, or because of the child s special needs or circumstances, continued in foster case on a long term basis. 42 U.S.C. § 675 (5)(C ). Maryland receives considerable federal fu nds pursu ant to this Act. Accordingly, the Maryland General Assembly has enacted legislation to comply with the federal requirements. Under Maryland s statutory scheme, for those children committed to a local department of social services the department is required to d evelop an d implem ent a permanency plan that is in the best interests of the child. F.L. § 5-525. In developing the permanency plan, the departm ent is required to consider a statutory hierarchy of placement options in descending orde r of priority. F.L. § 5-525(c). First and foremos t, the department must consider returning the child to the child s natural parents or guardian s. F.L. § 5-525(c)(1). If reunification with the biological parents is not possible, the department must consider placing the child with re latives to whom adoptio n, guardianship, or ca re and cus tody, in desc ending o rder of priority, are planned to be granted. F.L. § 5-525(c)(2). If placem ent with relatives is not possible, then the department must consider adoption by a current foster parent or other approved adoptive family. F.L. § 5-525(c)(3 ). Only in exceptional situations as defined by rule or regu lation is a child to be placed in long term foster care. F.L. § 5-525(c)(5 ). If it is determined that reunification is not possible and that adoption is in the child s best interests, the juvenile court lacks jurisdiction to finalize this pla n. In re Darius A., 47 Md.App. 232, 235 , 422 A.2d 71, 72 (19 80); see also F.L. § 1201. Instead, unless the parents con sent to the adoptio n of their child, the department is required to petition the circuit court for 15 guardians hip pursuant to F.L. § 5-313. If the circuit court finds by clear and convincing evidence, after considering the statutorily enumera ted factors, th at it is in the best interests of a child previously ad judicated a C INA fo r parental rights to be terminated, the circuit court has authority to grant the department s petition for guard ianship. Su ch award carries with it the right for the department to consent to the adoption of the child. F.L. §§ 5-311 an d 5-317(f). The overriding theme of both the federal and state legislation is that a child should have permanency in his or her life. The valid premise is that it is in a child s best interest to be placed in a perma nent home and to spend as little time as possible in foster care. Thus, Title 5 of the Fam ily Law Artic le seeks to prevent the need for removal of a child from its home, to return a child to its home when possible, and where returning home is not possible, to place the child in another permanent placem ent that h as legal s tatus. Id. at 573-76 , 819 A.2d at 1043-4 5; see also In re Adoption/Guardianship Nos. J9610436 and J9711031, 368 Md. at 676-78, 796 A.2d at 783-85. This overall statutory scheme essentially has remained in place since this Court s description in 1994, notwithstanding various amendments to the provisions governing the child welfare system. 1. Permanency Planning for Children in Foster Care The initial assessment in child placement where the State acts as parens patriae, is the development of a permanency plan by the Department of Social Services (DSS) to set the direction in which the parent, agencies, and the court will work in terms of reaching a satisfactory conclusion to the situation. In re Yve S., 373 Md. at 582, 819 A.2d at 1049. In developing a permanency plan DS S must ad here to the mandates enumerated in Section 5525(e)(1) of the Family Law Article, which states: 16 Development of a permanency plan. (1) In developing a permanency plan for a child in an out-of-home placement, the local department of social services shall give primary consideration to the best in terests of the child. The local department shall consider the following factors in determining the permanency plan that is in the best interests of the child: (i) the child s ability to be safe and healthy in the home of the child s parent; (ii) the child s attachment and emotional ties to the child s natural parents and siblings. (iii) the child s emotional attachm ent to the child s current c areg iver and the c areg iver s fa mily; (iv) the length of time the child has resided with the current caregiver; (v) the potential emotional, developmental, and educational harm to the child if moved from the child s current placement; and (vi) the potential harm to the child b y remaining in State custody for an excessive period of time. Md. Code (1984, 1999 Repl. Vol.), § 5-525(e)(1) of the Family Law Article. The statutory hierarchy of placement options that DSS should co nsider is set fo rth in Section 5-525(e)(2) of the Family Law Article, which provides: To the extent consistent with the best interests of the child in an out-of-home placement, the local department shall consider the follo win g permanency pla ns, in desc ending o rder of priority: (i) returning the child to the child s parent or guardian, unless the department is the guardian; (ii) placing the child with relatives to whom adoption, guardianship, or care and custody, in descending order of priority, are planned to be granted; (iii) adoption in the following descending order of priority: 1. by a current foster parent with whom the child has resided continually for at least the 12 m onths prior to developing the permanency plan or for a sufficient length of time to have established positive relationships and family ties; or 17 2. by a noth er ap prov ed ad optive fa mily; (iv) placing the child in a court approved permanent foster home w ith a specific caregiver; (v) an independent living arrangement; or (vi) long-term foster care. Md. Code (1984, 1999 Repl. Vol.), § 5-525(e)(2) of the Family Law Article. Likewise, the role of the courts in ensuring that the appropriate permanency plan is implemented was described by this Court in In re D amon M.: [T]he court has the responsibility for determining the permanency plan . . . and justifying the placement of children in out of home placements for a specified period or on a long-term or permanent basis . . . in addition to c onducting periodic, six month review s. *** Section 3-826.1 [ now co dified as Se ction 3-823 of the Co urts and Judicial Proceedings Article] requires the court, not later than 11 months after a child found to be in need of assistance has been p laced in foster c are, see also Md. Code (1989, 1991 Repl. Vol., 1 997 Cum. Supp.) § 501(m) of the Family Law Article, to hold a permanency planning hearing to determine the permanency plan for that child. § 3-826.1(a)(1) [now § 3823(b)(1)]. At that hearing, for each c hild in placem ent and in determining the plan, the c ourt is require d to make certain decisions and findings, § 3-826.1(c), [now § 3-82 3(e)] spec ifica lly, whether the child should be: returned to the parent or guardian, § 3-826.1(c)(1)(I) [now § 3-823(e)(1)(I)]; placed with relatives to whom adoption or guardianship is granted, § 3826.1(c)(1 )(ii) [now § 3-823(e)(1)(ii)]; placed for adoption, § 3826.1(c)(1 )(iii) [now § 3-823(e)(1)(iii)]; emancipated, § 3826.1(c)(1)(iv) [now deleted]; or because of the child s special needs or circumstances, continued in placement on a permanent or long-term basis or for a specified period. § 3-826.1(c)(1)(v) and (vi) [now § 3-82 3(e)(1) (v) and (vi)]. There are restrictions on the court s ability to continue a child in placement because of the child s special needs or circumstances. § 3-826.1(d) [now § 3-823(f)]. That section prohibits the court from using 18 that option un less it finds that the agency to which the child is committed has docum ented a compelling reason for determining that it would not be in the best interest of the child to: (1) Return home; (2) Be referred for termination of parental rights; or (3) Be placed for adoptio n or guar dianship w ith a specified and appropriate relative or legal guardian willing to ca re for the ch ild. Id. at 432 n.1, 765 A.2d at 625 n.1 (some internal citations omitted) (emphasis added). We continued to explain: Section 3-826.1(f) [now § 3-823(h)] mandates periodic reviews of the permanency plan by the cou rt. Subsection (f)(1)(i) provides [now § 3-823(h)(1)(i)] that such reviews will be no less frequently than every six mo nths until com mitment is rescind ed. If, however, at the permanency planning hearing or a subsequent review hearing, the cou rt, inter alia, orders a child continued in permanent foster care, the court is no longer required to hold the re view hea rings at six m onth intervals. Subsection (f)(1)(ii) [now § 3-823(h )(1)(ii), is revised to require review hearings every 12 months.]. As is true of the initial permanency planning hearing, the court must make some determinations at the hearing to review the permanency plan. § 3-826.1(f)(2) [now § 3-823(h)(2)]. Among other things, in addition to determining whether the commitment remains necessary and appropriate, subsection (f)(2)(i) [now § 3823(h)(2)(i)], and evaluating the progress m ade toward alleviating or mitigating the causes o f the com mitment, subsection (f)(2)(iii) [now § 3-823(h )(2)(iii)], the court is required to determine the extent of compliance with the permanency plan, Subsection (f)(2)(ii) [now § 3-823 (h)(2)(ii)], and to change it if a change in the permanency plan would be in the ch ild s bes t interest. Subsection (f)(2)(v) [now § 3-823 (h)(2)(vi)]. Id. 19 A review of the legislative history of Section 3-826.1 of the Courts and Judicial Proceedings Article reveals that the stated purpose of the statute was to establish the court s ability to review the impleme ntation of a permane ncy placeme nt plan for c hildren in need of assistan ce. See 1996 M d. Laws , Ch. 595. P reviously, Sectio n 3-826.1 provided that: [t]he court sh all: (1) Determin e the child s permanency plan, including whether the child sho uld be: (v) Because of the child s special needs or circumstances, continued in placement on a permanent or long-term basis ; or (vi) Because of the child s special needs or circumstances, continued in placement for a specified period. Md. Code (1984, 1998 Repl. Vol.), § 3-826.1(c)(1)(v)-(vi) of the Courts and Judicial Proceedings Article (emph asis add ed). In 2001, Section 3-826.1 was repealed and recodified as Section 3-823 of the Courts and Judicial Proceedings Article, and the provisions relating to placement of children with special needs or circumstances were changed to read: [t]he court sh all: (1) Determine the child s permanency plan, which may be: (v) Continua tion in a specified placement on a perm anent bas is because of the child s special needs or circumstances; (vi) Continuation in placement for a specified period because of the child s special needs or circumstances. See 2001 Md. Laws, Ch. 415 (emphasis added). Thus, the General A ssembly replaced longterm basis with continuation in a specified placement on a permanent basis, with a named care-gi ver. 2. Termination of Parental R ights We have explained that the adoption statutes of Fam ily Law Sub title 3 and the c hild 20 welfare statutes of Family Law S ubtitle 5 are to be read in relation to one another, [Maryland Code, Section 5-304 of the Family Law Article], [and] termination of parental rights and adoption come into play when called for by the permanency plan. In re Adoption /Guardia nship No. 10941, 335 Md. at 121, 642 A.2 d at 212. In c ases whe re a child has been declared in need of the court s assistance, the decision leading to a termination of parental rights is necessarily part of a continuous process to determine the child s best interests and to p lace the child in a perma nent an d stable enviro nmen t. The ove rlapping consideration that is reflected throughout the permanency planning stage of the process to the termination of parental rights is the safety and health of the child, which is of paramount importance. See Md. Code (1984, 1999 Repl. Vol.), § 5-525(e)(1)(i)-(iii) of the Family Law Article; Md. C ode (198 4, 2002 R epl. Vol.), § 3-823(h)(2)(v) of the Courts and Judicial Proceedings Article; Md. Cod e (1984, 1999 Repl. Vol.), § 5-313(c)(1) and (2)(iii) of the Family L aw A rticle. To prevent ch ildren from languishing in foster care the General Assembly established certain time frames to which DSS and the courts must adhere. In instances where the child s placement in foster care is voluntary, the p lacement s hould not last for more than six months. See Md. Code (1984, 1999 Repl. Vol.), § 5-525(a)(1) of the Family Law Article.8 For 8 Md. Code (1984, 1999 Repl. Vol.), § 5-525(a)(1) of the Family Law Article stated: (a) Established. Th e Adm inistration shall e stablish a program of out-of-home placement for minor children: (1) who are placed in th e custody of a local department, for a period of not more than 6 months, by a parent or legal guardian (contin ued...) 21 8 (...continued) under a written ag reement v oluntarily entered into with the local departm ent[.] This language was amended in 2003 to state 180 days rather tha n six m onths. See 2003 Session Laws, Ch. 250. In addition, the General Assembly added Sections 5-525(a)(2)(i) and (ii). Those sections pertained to the length o f time a child with disab ilities may remain in foster care: A child . . . may remain in an out-of-home placement under a voluntary placemen t agreeme nt for mor e than 180 days if the child s disability necessitates care or treatment in the out-ofhome placemen t and a juve nile court makes a finding that continuation of the placement is in the best interests of the child[.] Md. Code (1984, 1999 Repl. Vol., 2003 Cum. S upp.), § 5-5 25(a)(2)(ii) of the Family Law Article. Likewise, Section 5-525(a)(2)(i) states: A local department may not seek legal custody of a child under a voluntary placement agreement if the child has a developmental disability or a mental illness and the purpose of the voluntary placement agreem ent is to obtain treatment or care related to the child s disability that the p arent is unab le to provide. Md. Code (1984 , 1999 Repl. Vol., 2003 Cum. Supp.), § 5-525(a)(2)(i) of the Family Law Article. To p revent a child with special needs from being separated f rom his or h er family solely based upon the financial burdens related to caring for the child, Section 5-525(c)(2 )(i) was amended to state: A child may not be committed to the custody or guardianship of a local department and placed in an out-of-home- placement solely because the child s parent or guardian lacks shelter or solely because the c hild s paren ts are financ ially unable to provide treatment or care for a child with a developmental disability or mental illness. Md. Code (1984 , 1999 Repl. Vo l., 2003 Cum. Sup p.), § 5-525(c)(2)(i) of the Family Law Article. (contin ued...) 22 children who have been in foster care during 15 of the most recent 22 months, DSS m ust initiate a termin ation of parenta l rights w ithin 12 0 days. See Md. C ode (19 87, 1999 Repl. Vol.), § 5-525.1(a)-(b) of the Family Law Article.9 Once the petition to terminate parental rights is filed, the local department shall identify, recruit, process, and seek to approve a qualified family for adoption, guardianship, or other permanent placement. Md. Code (1987, 1999 Repl. Vol.), § 5-525.1(c) of the Family Law Article. If DSS determines that 8 (...continued) The purpose of the amendments was to, among other things, prohibit a local department from seeking legal c ustody of a ch ild with certain disabilities und er certain circumstances; authoriz[e ] a child with certain disab ilities to remain in an out-of-home placement for more than a specified period of time under certain circumstances; prohibit[] a child from being committed to the custody or guardianship of a local department solely for certain reasons; and generally relating to children with disabilities. 2003 Session Laws, Ch. 250. These amendments certainly do not create d ifferent per manenc y goals for ch ildren with disabilities, and is reflected in the stated purpose of the changes and addition to the statutes. 9 Md. Code (1 984, 199 9 Repl. Vol.), § 5-5 25.1 of the Family Law A rticle states in part: (a) Determination of child s best interest. If a child placement agency to w hich a child is committed under § 5-525 of this subtitle determines that adoption of the child is in the best interest of the child, the child placement agency shall refer the case to the age ncy at torney within 60 days of the determination and the agenc y attorney shall file a p etition for termination of the natural parent s rights with the court w ithin 60 days of receipt of the referral. (b) Termination of parental rights. (1) E xcept as pro vided in paragraph (3) of this subsection, a local department to which a child is committed under § 5-525 of this subtitle shall file a petition for termination of parental rights or join a termination of parental rights action that has been filed if: (i) the child has been in an out-of-home placement for 15 of the most recent 22 months; (ii) a court finds that the child is an abandoned infant; or (iii) a court f inds tha t the natu ral pare nt has b een co nvicted . . . 23 adoption is the appropriate permanency plan for a c hild, a petition f or guardian ship 10 may be filed by the child s placement agency, absent consent by the biological parents, to enable the child to be ad opted. See Md. C ode (19 87, 199 9 Rep l. Vol.), § 5-525.1 (a), (b) of the Fam ily Law Article.11 10 Guardianship means guardianship with the right to consent to adoption or long-term care short of adoption. Md. Code (1984, 1999 Repl. Vol.), § 5-301 of the Family Law Article. Petitions for g uardiansh ip are filed pu rsuant to Md. Code (1984, 1999 Repl. Vol.), § 5-317 o f the Fam ily Law Artic le and read s in part: (a) In genera l. A petition for a decree of adoptio n ma y be preceded by a petition for guardianship of the child. *** (f) Effect of guardianship decree. A decree of guardianship: (1) terminates the natural parents rights, duties, and obligations toward the child; (2) subject to § 5-319 of this subtitle, eliminates the need to give notice to the natural parents of the filing of a petition for adoption of the child; (3) eliminates the need for a further consent by the natural parents to an adoption of the child; and (4) subject to § 5-319 of this subtitle, au thorizes the c hild placement agen cy to c onse nt to joint gua rdianshi p, cu stod y, or other long-term p lacement th at the agenc y determines to be in the child s best in terest. 11 One anomaly in th e statute is that the court retains th e authority to review the adoption plan if the child has not been adopted within two years and may take whatever action the courts deems appropriate in the child s best interests, including placing the child in long-term care. See Md. Code (1984, 1999 Repl. Vol.), § 5-319 of the Family Law Article, which states in part: (b) In general. Ex cept as prov ided in sub section (g) o f this section, a guardian with the right to consent to adoption who was appointed without the consent of the natural p arents, shall file a written report with the court and give notice of the child s status to each natural parent of th e child und er the guard ianship and to the child s court-appointed counsel if: (contin ued...) 24 There may be instances, however, where adoption is not the appropriate permanency goal and placement on a long-term basis is more appropriate. Accordingly, the General Assemb ly has created three separate bases for long-term placement, rather than adoption: if the child is being cared for b y a relative, if DSS has a compelling reason why termination of parental righ ts would n ot be in the c hild s best intere sts, or if DSS has not pro vided time ly reunification services for the parent and child. See Md. Code (1987, 1999 Repl. Vol.), § 5525.1 (b)(3) of the Family Law Article.12 These pr ovisions ap ply to all children in foster care 11 (...continued) (1) a placement for adoption is not made within 9 months of the decree of guardianship; (2) a placement for adoption is made within 9 months of the decree of guardianship, but there is disrupted placement, and a new placemen t is not make within 120 days of the disrupted placement; or (3) a final decre e of adop tion is not entered within 2 years after placement for adoption. *** (f) Hearing; orders. On receipt of the guardian s report under subsection (b) of this section, and every 12 months there after, the court: (1) shall hold a hearing to review the progress which has been made toward the child s adoption and to review whether the child s current placement an d circumstances are in the child s best interest; and (2) shall then tak e whate ver action the court considers approp riate in th e child s best inte rest. 12 Md. Code (1 987, 199 9 Repl. Vol.), § 5-525 .1 (b)(3) of the Family Law Article states: A local depar tment is not required to file a petition or join an action if: (i) the child is being cared for by a relative; (ii) the local department has documented in the case plan, which (contin ued...) 25 and recognize that there could be compelling reaso ns for long-term placem ent without regard to whe ther the c hild has special n eeds. To guide the court in dec iding wh ether paren tal rights are to be terminated, Section 5-313 of the Family Law Article sets forth the standards a court must follow: (a) In general. A court ma y grant a decree of adop tion or a decree of guardianship, without the consent of a natural parent otherwise required by §§ 5-311 and 5-317 of this subtitle, if the court finds by clear and convincing evidence that it is in the best interest[s] of the child to terminate th e natural pa rent s rights as to the child an d that: (1) the child is abandoned as provided in subsection (b) of this section; (2) in a prior juvenile proceeding, the child has been adjudicated to be a child in need of assistance, a neglected child, an abused child, or a de pendent child; or (3) the following set of circumstances exists: (i) the child has been continuously out of the custody of the natural pare nt and in the custody of a child placement agency for at least 1 year; (ii) the conditions that led to the separation from the natural parent still exist o r similar cond itions of a po tentially harmful n ature still exist; (iii) there is little likelihood that those conditions will be remedied at an early date so that the child can be returned to the natural parent in the immediate future; and (iv) a continua tion of the re lationship between the natural parent and the ch ild would diminish greatly the child s prosp ects 12 (...continued) shall be available for court review, a compelling reason why termination of parental rights would not be in the child s best interests; or (iii) the local departme nt has not p rovided se rvices to the f amily consistent with the time period in the local department s case plan that the local department considers necessary for the safe return of the child to the child s home. 26 for e arly in tegration into a stable a nd permanen t fam ily. *** (c) Required considerations. In determining whether it is in the best interest[s] of the child to terminate a natural parent s rights as to the child in any case, except the case of an abandoned child, the court shall give: (1) primary consideration to the safety and health of the child; and (2) consideration to: (i) the timeliness , nature, and e xtent of the services offered by the child placement agency to facilitate reunion of the child with th e natural pa rent; (ii) any social servic e agreem ent betwe en the natural parent and the c hild plac eme nt ag ency, and the extent to which all parties have fulf illed their obliga tions unde r the agreem ent; (iii) the child s fe elings tow ard and em otional ties w ith the child s natural parents, the child s siblings, and any other individuals who may significantly affect the child s best interest; (iv) the child s adjustment to home, school, and com mun ity; (v) the result of the effort the natural parent has mad e to adjust the natural parent s circumstances, conduct, or conditions to make it in the best interest of the child to be returned to the natural parent s home, including: 1. the extent to which the natural parent has maintained regular contact with the child under a p lan to reunite the child with the natural parent, but the court may not give significant weight to any incidental visit, communication, or contribution; 2. if the natural p arent is financially able, the payment of a reason able part of the child s substitute physical care and maintenance; 3. the maintenance o f regular communication by the natural parent with the custodian of the child; and 4. whether additional services would be likely to bring about a lasting parental adjustment so that the ch ild could be returned to the natural parent within an ascertainable time, not exceedin g 18 mo nths from the time of p lacement, but the court may not consider whether the maintena nce of the parentchild relat ions hip m ay serve as an inducement for the natural 27 parent s rehabilitation; and (vi) all services offered to the natural parent before the placement of the child , whether o ffered by the agency to which the child is committed or by other agencies or professionals. (d) Considerations following juvenile adjudication. (1) In determinin g wheth er it is in the best interest of the child to terminate a natural parent s rights as to the child in a case involving a child who has been adjudicated to be a child in need of assistance, a neglected child, an abused child, or a dependent child, the court shall consid er the factor s in subsectio n (c)of this section and whether any of the following continuing or serious conditions o r acts exist: (i) the natural parent has a disability that renders the natural parent con sistently unable to care for the immediate and ongoing physical or psychological needs of the child for long periods of time; (ii) the natural p arent has committed acts of abuse or neglect towa rd an y child in the fam ily; (iii) the natural parent has failed repeatedly to give the child adequate food, cloth ing, shelter, and education or any other care or control necessary for the child s ph ysical, mental, or emotional health, even though the natural parent is physically and financially able; (iv) 1. the child was born: A. addicted to or dependent on cocaine, heroin, or a derivative thereof; or B. with a significant presence of cocaine, heroin, or a derivative thereof in the child s blood as evidenced by toxicology or other appropriate tests; and 2. the natural parent refuses admission into a drug treatment program or failed to fully participate in a drug treatme nt prog ram . . . . Md. Code (1984, 1999 Repl. Vol.), § 5-313 of the Family Law Article. We have con sistently acknow ledged tha t the court s power to terminate parental righ ts in cases in volvin g the St ate, is gro unded in statute . See Carroll County Dep t. of Social Services v. Edelmann, 320 Md. 150, 175, 577 A.2d 14, 26 (1990). In such cases, under 28 Section 5-313(a), a court may terminate parental rights, without consent, upon a finding by clear and convincing evidence, that termination is in the best interests of the child and one of three circumstances exist: the child has been abandoned; in a prior proceeding the child was adjudicated a child in ne ed of assista nce; or certain circumstances warranted a termination of parental rights. Md. Code (1984, 1999 Repl. V ol.), § 5-313(a) o f the Fam ily Law Article.13 In this case, the Court of Special Appeals rema nded the case to hav e the trial court make additional fa ctual finding s to determin e whethe r Victor A . s prospects for permanent placement with an adoptive family would be diminished by continuing Mr. A. and Ms. A . s parental rights, as provided in Section 5-313(a)(3)(iv) of the Family Law Article. PGDSS, in its petition before this Court, suggests, however, that the issue of Victor A. s likelihood 13 Specifically, Section 5-313(a)(3) states: (3) the following set of circumstances exists: (i) the child has been continuously out of the custody of the natural parent and in the custody of a child placement agency for at least 1 year; (ii) the conditions that led to the separation from the natural parent still exist or similar con ditions of a p otentially harmful n ature still exist; (iii) there is little likelihood that those conditions will be remedied at an early date so that the child can be returned to the natural parent in the immediate future; and (iv) a continuation of the relationship between the natural parent and the ch ild would d iminish gre atly the child s prospects for early integration into a stable and permanent family. Md. Code (1984, 19 99 Rep l. Vol.), § 5-31 3(a)(3) of th e Family Law Article (em phasis added ). 29 of adoption was not an appropriate inquiry by the Court of Special Appeals. 14 Nevertheless, although the A. s did not expressly challenge the trial court s findings under Section 5313(a), they did argue in their appeal that the trial court was incorrect in finding their parental rights should be terminated. Subsu med within that que stion was whe ther the trial court adequate ly addressed all of the required factors of Section 5-313 of the Family Law Article, which , as we h ave state d, gove rns the d ecision to termin ate pare ntal righ ts. In his findings during the termination hearing, the trial judge acknowledged that Victor A. [had been] adjudicated a CIN A prev iously . . . under Section 5-313(a)(2), but also addressed whether circumstances warranted a termination of parental rights under Section 5-313(a)(3) of the statute. The plain language of Section 5-313(a), however, indicates that once the trial judge had determined that Victor A. was a CINA, he need not have addressed any of the ad ditional circumstances construed in Section 5-313(a)(3), but should have proceeded to the required findings under S ections 5-313 (c) and (d). See In re Adoption /Guardia nship No. 10941, 335 Md. at 112, 642 A.2d at 208; In re Adoption /Guardia nship No. 87A262, 323 Md. 12, 18, 590 A.2d 165, 168 (1991). We, therefore, conclude that trial court in this instance was not required to assess whether Victor A. s chances f or perman ent placem ent with a f amily would be diminished by continuation of M r. A. and Ms. A . s paren tal rights u nder S ection 5 -313(a )(3). 14 Mr. A. and Ms. A. presented the following question for review in the Court of Special Appeals: Did the trial court err in terminating both M r. A. s and Mrs. A . s parental rights of their son, Victor? 30 We have held, heretofore, that a child s prospects for adoption must be a consideration independent from th e termin ation of parenta l rights, see Cecil County Dept. of Soc. Servs. v. Goodyear, 263 Md. 611, 615, 284 A.2d 426, 428 (1971), in that [t]he facts should first be considered as if the State were taking the child from the parent for some indefinite placement and upon that determination open the question of the suitability of the proposed adoption and its relation to the child s welfare. Id. at 616-17, 284 A.2 d at 428; see also Winter v. Director of Dept. of P ublic Welfa re of Baltim ore City, 217 Md. 391, 394, 143 A.2d 81, 83 (1958), cert. denied 358 U.S. 912, 79 S.Ct. 242, 3 L.Ed.2d 233 (1958) (holding that adoption may be considered only after a hearin g the court f inds that suc h consen t or consen ts [to adoptio n] are w ithheld c ontrary to the bes t interests of the c hild. ). Whether children with special needs are subject to a different legal standard in the determination of their best interests is the next question we address and conclude that none of the relevant statutes defining the child welfare system nor cases interpreting those sections suggests that a different standard should apply for the placement of children with special needs or for the decision concerning whether the rights of their parents should be terminated.15 Although Section 3-823(e) of the Courts and Judicial Proceed ings Article permits children with special needs or circumstances to remain in long-term placement on a permanent basis, no analogous provision regarding special needs exists in the termination 15 A court should address whether the biological p arent has a d isability that renders h im or her incapa ble of carin g for the ch ild, but such a determina tion wou ld apply to eve ry child in the foster care syste m dec lared to b e in nee d of the court s a ssistanc e. See Md. Code (1984 , 1999 R epl. Vo l.), § 5-31 3(d)(1) (i) of the Family L aw A rticle. 31 of parental rights statute. Stated otherwise, while the trial judge may consider long-term placement options for children with special needs, the existence of special needs does not independ ently enter into the c ourt s decisio n wheth er to termina te parental rights.16 To the extent th at the op inion o f the C ourt of Specia l Appe als states otherw ise, we d isagree . In the present case, in the absence of sufficie nt findings , the Court o f Special A ppeals ordered a r emand o f the case to have the trial c ourt explain why termination of Mr. A. and Ms. A. s parental rights would be in Victor A. s best interests and thereby, to make the requisite find ings in su pport of any decision to terminate Mr. A. and Ms. A. s rights based upon Sections 5 -313(c) an d (d) of the Family Law Article in the best interests of Victor A.17 16 The Ame ricans w ith Disa bilities A ct, 42 U .S.C. § 12131 et seq. (1990), which prohibits discrimination against individuals with disabilities, is not implicated in the case sub judice based upon our holding that the provisions governing the child welfare system do not create d ifferen t standa rds for c hildren with di sabilities . 17 Consistent with this view, courts of other jurisdictio ns have h eld that the best in terests standard continues to guide the decision to terminate the parental rights of parents who have children with special needs in which the State has intervened in its role as parens patriae. See In re G uardia nship o f Etajaw a A., 759 N.Y.S.2d 35, 37 (N.Y.App.Div. 2003) (concluding that the best in terests of the c hild were s erved by term inating pare ntal rights because the biological mother had failed to acquire the parenting skills necessary to care for the child); In the Matter of Alex Ostrer, 19 P.3d 980, 986 (Or.App. 2001) (holding that it was in the child s best interests to terminate the mother s parental rights because she was unfit to care for he r child with seve re emotion al and beh avioral prob lems); In re Jon N., 754 A.2d 346, 348-50 (Me. 2000) (determining that the child s best interests were served by terminating the mother s parental rights because she was unable to care for the child s special needs); Adoption of Warren, 693 N .E.2d 1 021, 1026 (Mass.A pp.Ct. 1998) (finding that [t]he specialized needs of a particular child when combined with the deficiencies of a paren t s character, temperam ent, capacity, or co nduct ma y clearly establish pare ntal unfitnes s to determine the best interests o f a child in a te rmination o f parental rig hts hearing ); In re Interest of Constance G., 575 N.W.2d 133, 142 (Neb. 1998) (holding that child s special (contin ued...) 32 We agree. Upon remand, the trial court must address each of the required considerations of Sections 513(c) and (d) and make specific findings as to each of the factors identified in the statute p rior to a d ecision wheth er to term inate the parenta l rights o f Mr. a nd M s. A. JUDGMENT OF THE COURT OF SPECIAL APPEALS MODIFIED TO PROVIDE THAT THE CASE IS REM AND ED TO THE C IRCUIT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION, AND, AS MODIFIED, THE JUDGMENT OF THE COURT OF SPECIAL APPEALS IS AFFIRMED. COST S IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY PETITIONER. 17 (...continued) needs due to emotional and behaviora l problems in and of itself does not provide a basis for terminating the father s p arental rights; rather such a determination must be based upon the best interests of the child); Shaw v. Shelby County Dept. of Public Welfare, 584 N.E.2d 595, 600-01 (Ind.App . 1992) (co ncluding th at termination of parenta l rights of child with behavioral difficulties was in the best interests of the child becau se of the pa rent s inability to care for the child s special nee ds); In the Interest of S.J., 451 N.W.2d 827, 830-31 (Iowa 1990) (determining that best interest of ch ild with seve re learning a nd behav ioral disability would not be served by terminating m other s parental rights); In re Interest of S.P.W., 761 S.W.2d 193, 198 (Mo.App. 1988) (finding that termination of parental rights would protect children s best interests because mother was unable to care her children with emotional and physical problems). 33

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