In re: Adoption/Guardianship of H.W., No. 70, September Term, 2017, Opinion by Adkins, J.

FAMILY LAW — TERMINATION OF PARENTAL RIGHTS — FAMILY LAW 

ARTICLE § 5-323 — EXCEPTIONAL CIRCUMSTANCES: In assessing whether to 

terminate parental rights, a juvenile court must consider the statutory factors set forth in 

Md. Code (1984, 2012 Repl. Vol.), § 5-323 of the Family Law Article and make findings 

by clear and convincing evidence whether a parent is either unfit to remain in a parental 

relationship or exceptional circumstances exist that would make a continuation of the 

parental relationship detrimental to the best interests of the child such that terminating 

parental rights is in the child’s best interests. 

FAMILY LAW — TERMINATION OF PARENTAL RIGHTS — EXCEPTIONAL 

CIRCUMSTANCES — CONSIDERATION OF NON-STATUTORY FACTORS: A 

court must assess whether exceptional circumstances exist that would make a continuation 

of the parental relationship detrimental to the best interests of the child according to the 

statutory factors set out in Md. Code (1984, 2012 Repl. Vol.), § 5-323(d). These factors 

are criteria for determining whether exceptional circumstances exist that rebut the 

presumption favoring a continued parental relationship. Consideration of any nonstatutory factors must be tailored to the inquiry of whether the continued parental 

relationship is detrimental to the child’s best interests. A juvenile court should closely 

adhere to the statutory factors. 

FAMILY LAW — TERMINATION OF PARENTAL RIGHTS — FAMILY LAW 

ARTICLE § 5-323 — FACTORS PERTAINING TO CUSTODY: When terminating 

parental rights pursuant to Md. Code (1984, 2012 Repl. Vol.), § 5-323 of the Family Law 

Article, a juvenile court must base its assessment on the statutory factors set forth in § 5-

323(d). Consideration of exclusively custodial factors risks according equal standing to 

third-party custodians, and a decision to justify terminating parental rights must focus on 

the continued parental relationship, not custody. In this termination of parental rights 

proceeding, the juvenile court’s inclusion of the Ross v. Hoffman, 280 Md. 172 (1977),

factors used in third-party custody disputes did not impermissibly taint its decision because 

it made specific findings under each required statutory factor and its Ross findings were 

substantively the same as the statutory findings. 
Circuit Court for Baltimore City

Case No.: T15280012

Argued: April 6, 2018

IN THE COURT OF APPEALS

OF MARYLAND

No. 70

September Term, 2017

IN RE: ADOPTION/GUARDIANSHIP OF H.W.

Barbera, C.J.

Greene

Adkins

McDonald

Watts

Hotten

Getty,

JJ.

Opinion by Adkins, J.

Hotten, J., concurs and dissents.

Filed: July 16, 2018
Proceedings to terminate parental rights necessitate maintaining a delicate balance 

between a parent’s constitutional right to raise their children, the State’s interest in 

protecting children, and the child’s best interests. Here, we return to the often-complicated 

question of exceptional circumstances in the context of terminating parental rights (“TPR”) 

under Md. Code (1984, 2012 Repl. Vol.), § 5-323 of the Family Law Article (“FL”). We 

consider if, when assessing whether exceptional circumstances exist that make continuing 

the parental relationship detrimental to a child’s best interests, a juvenile court errs by 

considering custody-specific factors used to determine exceptional circumstances in thirdparty custody disputes. See, e.g., Ross v. Hoffman, 280 Md. 172 (1977). 

FACTS AND LEGAL PROCEEDINGS

H.W. was born in April 2012 to S.B. (“Mother”), an 18-year-old former CINA1and 

M.W. (“Father”). Father had been convicted in Connecticut seven years earlier of sexual 

assault in the first degree and was released in 2009. Four months before H.W. was born, 

Father was extradited from Maryland to Connecticut and incarcerated there. Father was 

released in January 2013 and remained in Connecticut on probation. He has never seen H.W. 

 

1

“CINA,” as defined by Md. Code (1973, 2013 Repl. Vol., 2016 Supp.), § 3-801(g) 

of the Courts and Judicial Proceedings Article (“CJP”) means a “child in need of 

assistance.” CJP 3-801(f) defines a child in need of assistance as:

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, guardian, or custodian are unable or 

unwilling to give proper care and attention to the child and 

the child’s needs. 
2

In October 2012, Mother left H.W. unattended during a bath. When she returned, she 

found him face down in the water. H.W. was hospitalized and on life support for two weeks. 

In December 2012, H.W. was found to be a CINA and was placed in Mother’s care under an 

Order of Protective Supervision. Some months later, the Baltimore City Department of 

Social Services (“Department”) sought emergency removal of H.W. from the home, which 

a juvenile court granted. In July 2013, H.W. was returned to Mother’s care under another 

Order of Protective Supervision, which was rescinded in December 2013. 

Mother gave birth to twins, H.J. (“Brother”) and H.J. (“Sister”)2in January 2014. 

In June 2014, Mother was bathing Brother in the kitchen sink under running water. Sister 

was in her car seat in a different room with a bottle. Sister began choking and Mother left 

Brother unattended to respond. When Mother returned to the kitchen, she discovered that 

Brother had suffered severe burns. He was hospitalized for nearly a month. The 

Department promptly filed Petitions with Requests for Shelter Care for all three children, 

which the juvenile court granted. H.W. and Sister were placed in a foster home belonging 

to Mr. and Mrs. M. on June 20, 2014. After being discharged from the hospital, Brother 

was placed in a separate foster home to address his specific medical needs, but he 

eventually joined H.W. and Sister at the M. home.3 All three children were declared CINA. 

 

2 Because the twins have the same initials, we refer to them as “Sister” and “Brother” 

for convenience. 

3 Mother and the twins’ father consented to adoption of the twins by the M. family 

and their parental rights have been terminated. At argument, the Department informed the 

Court that the M. family has adopted the twins. 
3

At the time H.W. was removed, he had a healed burn on the side of his forehead. 

Mother told the Department caseworker that H.W. had run into a lit cigarette while playing. 

Mother reported that she contacted his pediatrician, who advised her to put Vaseline on the 

burn, but sought no other medical attention. 

Lori Lee, H.W.’s caseworker, attempted to locate Father in July 2014 and received 

information that he was incarcerated in Kentucky. She sent a letter to him but received no 

response.4 In late 2014, while on probation in Connecticut, Father learned that H.W. was in 

the State’s custody, through either a summons or a letter from Lee. Father obtained 

permission to travel to Baltimore for a CINA hearing in December 2014. Mother introduced 

Lee to Father the morning of the hearing. Father had thought the hearing was in the morning

and he wanted to visit H.W. When Lee explained that the hearing was scheduled for the 

afternoon, Father informed Lee that he would not be able to stay because he had to return to 

Connecticut. Lee told Father why H.W. was in the State’s care, and that she would like for 

him to visit with H.W. Father indicated that he would speak with his probation officer, so 

he could return to Baltimore to visit with H.W. Father, however, did not immediately return 

to Connecticut. Instead, he left the courthouse with Mother and made alternate travel 

arrangements to leave the next day. He did not attend the December 2014 hearing. 

In January 2015, Lee had a phone conversation with Father’s probation officer while 

Father was present. Father wanted to attend an upcoming hearing and his probation officer 

indicated that she and Father would discuss whether or not he would receive permission to 

 

4 Other than information about Lee’s efforts to locate Father, the record does not 

reflect that Father was ever incarcerated in Kentucky. 
4

do so. Later that month, Lee sent a letter to Father’s probation officer providing additional 

information about the hearing. She did not receive a response and Father did not attend the 

hearing. Lee sent additional letters to Father in July and August, notifying him of upcoming 

hearings and enclosing copies of court orders. She invited Father to contact her to “discuss 

any questions you may have regarding [H.W.] and [to] schedule visits.” Lee did not receive 

a response. In August 2015, Father was incarcerated again for violating his probation. 

Father wrote Lee a letter in October 2015, notifying her of his incarceration. He 

identified an aunt and his brothers as relative resources for H.W. He included contact 

information for his aunt and mother, but not for his brothers. Father expressed that he 

wanted to be in H.W.’s life. He claimed that his probation officer had refused to allow him 

to attend hearings in Maryland. Father had “requested to be sentenced to prison in pursuit 

of no more probation, which will allow [him] to relocate back to Baltimore . . . .”

Father explained that he had difficulty communicating with Mother by phone but

occasionally reached her through social media. He stated that Mother became “stubborn and 

withdrawn when [he] asked of [H.W.]’s whereabouts.” Father also asked Lee for resources, 

“I don’t know what you can do for [H.W.] and I, but I am sincerely asking for your help for 

our unity?” Father anticipated being “incarcerated for approximately 2 y[ea]rs” but hoped 

that “you and your department have left me some options as [H.W.]’s father.” He asked Lee 

to send “any information about the progress that has been made with [H.W.]’s placement.” 

Lee investigated Father’s aunt, who passed her fingerprint and background checks. 

When Lee contacted the aunt about completing a home inspection, she declined to be a 

resource. Rather, she was willing to be “a back-up plan to [the Department’s] back-up 
5

plan” and thought it best that H.W. remain with his foster family. Lee sent Father a letter 

in November 2015 notifying him of this development and informing him that his brothers 

had not contacted her regarding H.W. 

Lee explained that H.W.’s foster family was willing and able to adopt him, and that 

H.W. was having behavioral issues. She also advised Father of an upcoming hearing in 

December and asked him to contact her if his situation changed, or if he had other relatives 

the Department could investigate. Between March and November 2016, Lee sent Father 

six more letters with copies of court orders concerning H.W. Father did not respond. 

In October 2015, the Department filed a Petition for Guardianship with the Right to 

Consent to Adoption or Long Term Care Short of Adoption for H.W. Father and Mother 

objected, but later consented. Father, however, withdrew his consent and the matter 

proceeded to a contested hearing in 2017. 

The TPR Hearing 

Lee testified at the hearing, describing her meeting with Father in 2014, subsequent 

attempts at communication with him, and her investigation of Father’s aunt. Lee 

acknowledged that Father had been under legal constraints since before H.W. went into 

care. During her testimony, she also described H.W.’s placement with the M. family and 

her monthly visits with the children. H.W. had some special needs relating to behavioral 

problems and had been diagnosed with ADHD. He was receiving treatment and the M. 

family worked with him through therapy. The M. family was in contact with Mother 

through phone and e-mail. 
6

Lee testified that H.W. is emotionally attached to Mr. and Mrs. M., and calls them 

PopPop and Mommy. H.W.’s twin siblings are also placed with the M. family and H.W. 

has bonded with them—“truly a big brother.” Lee stated that she had no concerns about 

H.W.’s care and opined that it would be detrimental to H.W. to remove him from the M. 

home because of his emotional attachments and because it would “set him backwards in 

his treatment, the therapy that he’s been going through for his behavioral problems.” Lee 

recommended that Mr. and Mrs. M. adopt H.W.

Father testified by phone from the Brooklyn Correctional Facility in Connecticut, 

where he was serving a 30-month sentence for violating his probation. During his testimony, 

Father explained that Mother did not contact him after he was extradited from Maryland in 

2011. He had sporadic contact with Mother and, although he always asked to speak to H.W. 

during phone calls, this rarely happened. Mother did not share much information about H.W. 

with him, and on at least one occasion, they argued about money. Father explained that his 

probation officer had denied him permission to attend other hearings for H.W. 

Father had several probation violations and had tested positive for marijuana. He 

explained that since he had been in Connecticut, “the majority of [his] situation has been 

homelessness,” and that he had not been able to provide for himself. Father had been 

employed during his probation with a fast food restaurant and with a printing company. In 

early 2014 he sent money to his brother, who babysat H.W., for “Pampers, . . . for food, 

for a haircut, things like that.” 

Father’s mandatory release date was in February 2018, but he anticipated release as 

early as November or December 2017 based on earned credits. Upon release, he would no 
7

longer be subject to probation conditions. He testified that he enrolled in a program called 

“Good Intentions[,] Bad Choices” but that no other programs had been recommended to, or 

required of him. He had been referred to programs during his probation, including a drug 

treatment program, which he had not completed. Father did not think he needed counseling, 

explaining that he writes in his journal and has been doing his own reading to educate himself. 

After release, Father planned to come to Baltimore and obtain custody of H.W. 

Although most of Father’s family is in Baltimore, he did not have any resources identified in 

Baltimore—he was not in “re-entry stage” to “transition back into society” yet. He was unsure 

where he would live in Baltimore but hoped that family might help him. Father admitted that 

he had “no support at all.” He was not sure how long he would stay in Baltimore, but if he did 

obtain custody of H.W., the maximum he would stay would be five years. 

Father said he would keep H.W. in contact with the twins, and introduce H.W. to his

teenage daughter, who lives in Philadelphia with her mother. Father explained that he was 

changing his life and did not want to give his son away to another family. He testified that 

he wanted to keep his parental rights because he wanted to be a “present” and “active” father. 

The Juvenile Court’s Findings

The juvenile court considered Lee’s and Father’s testimony, as well as court orders, 

H.W.’s medical records, Lee’s letters to Father, Father’s letter to Lee, and a bonding 

evaluation between H.W. and the M. family.5 Acknowledging the fundamental right of 

parents, the court also emphasized that the State has an interest in protecting vulnerable 

 

5 Mother did not appear for her bonding evaluation. The evaluation states that 

Father could not be evaluated because he was incarcerated. 
8

children and that the juvenile court must give “primary consideration to the health and 

safety of the child and consideration to all other factors needed to determine whether 

terminating a parent’s rights is in the child’s best interests . . . .” The court then analyzed 

the statutory factors set forth in FL § 5-323(d),

6

as well as nine additional factors7to

“determin[e] whether exceptional circumstances exist[ed]:”

1. Length of time child has been away from the biological 

parent[;] 

2. Age of child when care was assumed by caretakers[;] 

3. Possible emotional effect on child if custody changed to 

biological parent[;]

4. Possible emotional effect on child if custody is given to 

caretaker[;]

5. Period of time which elapsed before parent sought to 

reclaim child and efforts made toward reclamation[;] 

6. Nature and strength of ties between child and current 

caretaker[;]

7. Intensity and genuineness of parent’s desire to have the 

child[;] 

8. Stability and certainty as to child’s future in the custody of 

the parent[; and]

9. Stability and certainty as to child’s future in custody of the 

caretaker. 

Based upon the statutory factors in FL § 5-323(d), the juvenile court concluded that 

there was not clear and convincing evidence that Father was unfit. The juvenile court found 

“by clear and convincing evidence[,] based on the relevant statutory factors[,] that 

 

6 The juvenile court determined that Md. Code (1984, 2012 Repl. Vol.), § 5-323(c)

of the Family Law Article (“FL”) did not apply. We discuss the court’s specific findings 

in greater detail, infra. 

7 The factors are substantially the same as those in Ross v. Hoffman, 280 Md. 172, 

191 (1977), but the juvenile court did not identify the factors as such. 
9

exceptional circumstances exist[ed] to make the continuation of the parental relationship 

detrimental to the best interests of the child.” It awarded guardianship to the Department. 

The Court of Special Appeals vacated the juvenile court’s decision. See In re 

Adoption/Guardianship of H.W., 234 Md. App. 237 (2017). It concluded that the juvenile 

court erred by using four factors related exclusively to custody of the child in deciding to 

terminate Father’s parental rights. Id. at 251. Based on the differences between a proceeding 

to terminate parental rights and a custody proceeding, the Court of Special Appeals reasoned 

that factors relating solely to custody did not belong in a TPR analysis. Id.

We granted certiorari to resolve the following question:

8

1. Are juvenile courts permitted to consider custody-specific 

factors in termination of parental rights proceedings, 

specifically: (a) the potential emotional effect of the change 

in custody; (b) the instability and uncertainty of the child’s 

 

8 Petitioner presented the following questions, which we have consolidated and 

rephrased: 

1. Did the Court of Special Appeals improperly proscribe 

juvenile courts from considering factors critical to the 

determination of a child’s best interests when it held that, 

in determining whether to terminate parental rights, 

juvenile courts may not consider either the emotional 

effects of a change in custody upon the child or the stability 

and certainty of a child’s future? 

2. In determining that it is in five-year-old H.W.’s best 

interests to terminate the parental rights of an incarcerated 

father, whom the child has never met, did the juvenile court 

permissibly consider the following factors: (a) the potential 

emotional effect on the child of a change of custody; (b) the 

instability and uncertainty of the child’s future in the 

custody of the father; and (c) the stability and certainty of 

the child’s future in the custody of the prospective adoptive 

parents? 
10

future in the parent’s custody; and (c) the stability and 

certainty of the child’s future in the custody of the 

prospective adoptive parents? 

We shall conclude that, when terminating parental rights, a juvenile court must base 

its assessment on the statutory factors set forth in FL § 5-323. Consideration of exclusively 

custodial factors risks blurring important distinctions between parents and third-party 

custodians. In this case, the juvenile court’s inclusion of custody-specific factors did not 

taint its decision because it made specific findings on each relevant statutory factor and its

Ross findings were substantively the same as its more appropriate statutory findings.

STANDARD OF REVIEW 

We use three distinct, but interrelated standards to review a juvenile court’s decision 

to terminate parental rights. In re Adoption of Ta’Niya C., 417 Md. 90, 100 (2010). The 

juvenile court’s factual findings are left undisturbed unless they are clearly erroneous. We 

review legal questions without deference, and if the lower court erred, further proceedings 

are ordinarily required unless the error is harmless. Id. The lower court’s “ultimate 

conclusion,” if it is “founded upon sound legal principles and based upon factual findings 

that are not clearly erroneous,” will be “disturbed only if there has been a clear abuse of 

discretion.” Id. (quoting In re Adoption/Guardianship of Victor A., 386 Md. 288, 297 

(2005)) (brackets omitted). 

DISCUSSION 

The Department and H.W. contend that the Court of Special Appeals committed 

legal error when it decided that use of the Ross v. Hoffman, 280 Md. 172, 191 (1977),

factors relating to custody was impermissible in a TPR proceeding under FL § 5-323. They 
11

assert that the statute does not create an exclusive list of factors to assess both exceptional 

circumstances and analyze a child’s best interests. Because the ultimate standard is the 

child’s best interests, they reason that a juvenile court should be free to assess any relevant 

factors, including custody. Further, they argue that FL § 5-323 specifically includes 

custodial factors relating to the child’s placement. 

Father concedes that a court may look beyond the statutory factors, but he maintains 

that the juvenile court must restrict its extra-statutory analysis to factors relevant to whether 

termination of parental rights is in the child’s best interests. Father, relying on In re 

Adoption/Guardianship of Rashawn H., 402 Md. 477 (2007), argues that because custody 

and TPR are separate inquiries, factors relevant to a custody analysis do not translate to the 

TPR context because parental success in TPR “merely preserves the possibility of future 

reunification . . . .” (Emphasis in original). Custody-specific considerations cloud the 

analysis, he reasons, because the question in a TPR proceeding is not whether the existing 

custodial arrangement is in the child’s best interests, rather, it is whether continuing the 

parental relationship is detrimental to the child. 

In Ross, 280 Md. at 179, we addressed whether exceptional circumstances were 

present in a custody dispute between a parent and a third party that merited granting 

custody to the third party. We identified several factors that we considered “of probative 

value in determining the existence of exceptional circumstances[,]” including: 

the length of time the child has been away from the biological 

parent, the age of the child when care was assumed by the third 

party, the possible emotional effect on the child of a change of 

custody, the period of time which elapsed before the parent 

sought to reclaim the child, the nature and strength of the ties 
12

between the child and the third party custodian, the intensity 

and genuineness of the parent’s desire to have the child, [and] 

the stability and certainty as to the child’s future in the custody 

of the parent.

Id. at 191. 

The parties do not challenge the use of some of these factors in the proceeding 

below. Rather, their dispute centers on four factors: (1) the possible emotional effect on 

the child if custody was changed to the biological parent; (2) the possible emotional effect 

on the child if custody was given to the caretaker; (3) the stability and certainty as to the 

child’s future in the custody of the parent; and (4) the stability and certainty of the child’s 

future in the custody of the caretaker.

We look first to the fundamental principles associated with a court’s decision to 

terminate parental rights and the statutory scheme set forth in FL § 5-323. 

The Transcendent Standard And FL § 5-323

This Court has long recognized that parents have a fundamental right to raise their 

children and make decisions about their custody and care. See In re Adoption of Jayden 

G., 433 Md. 50, 66–67 (2013); In re Adoption/Guardianship of Victor A., 386 Md. 288, 

298–99 (2005). As we explained in Rashawn H., 402 Md. at 495, there is “a presumption 

of law and fact—that it is in the best interest of children to remain in the care and custody 

of their parents.” These principles are not absolute—they are tempered by the State’s 

interest in protecting children. See Jayden G., 433 Md. at 68. The “transcendent” standard 

in TPR proceedings has always been the child’s best interests. Ta’Niya C., 417 Md. at 112; 

Jayden G., 433 Md. at 67; Rashawn H., 402 Md. at 496. 
13

The General Assembly has established a legal framework to assess whether it is in 

a child’s best interests to terminate parental rights that balances the child’s best interests 

and the appropriate protection for parental rights. FL § 5-323(b) establishes the burden of 

proof and findings required for a juvenile court to terminate parental rights: 

If, after consideration of factors as required in this section, 

a juvenile court finds by clear and convincing evidence that 

a parent is unfit to remain in a parental relationship with 

the child or that exceptional circumstances exist that would 

make a continuation of the parental relationship 

detrimental to the best interest of the child such that 

terminating the rights of the parent is in the child’s best 

interests, the juvenile court may grant guardianship of the 

child without consent otherwise required under this subtitle 

and over the child’s objection. 

(Emphasis added). Subsection (d) requires that the juvenile court “shall give primary 

consideration to the health and safety of the child and consideration to all other factors 

needed to determine whether terminating a parent’s rights is in the child’s best 

interests . . . .” and it provides a list of factors that must be considered. 

Rashawn H. And The TPR Analysis

We offered some guidance interpreting the TPR statute in Rashawn H.9 The 

statutory scheme for terminating parental rights has “three critical elements in . . . balance 

that serve to give heightened protection to parental rights in the TPR context.” 402 Md. at 

 

9 We considered both then-FL § 5-313 and its successor, FL § 5-323. In re 

Adoption/Guardianship of Rashawn H., 402 Md. 477, 499 (2005).
14

498. First, although not “expressly articulated” in the statute,10 there is an implicit

presumption that “the interest of the child is best served by maintaining the parental 

relationship . . . .” Id. This presumption is rebuttable “only by a showing that the parent 

is either unfit or that exceptional circumstances exist that would make the continued 

relationship detrimental to the child’s best interest.” Id. The parental relationship 

presumption originates from our precedent on parent-third party custody disputes, but the 

concepts of unfitness and exceptional circumstances have a substantially different 

meaning in TPR cases. Id. 

In custody cases, unfitness “means an unfitness to have custody of the child, not an 

unfitness to remain the child’s parent; exceptional circumstances are those that would make 

parental custody detrimental to the best interest of the child.” Id. (emphasis in original). 

Facts that might demonstrate unfitness or exceptional circumstances in a custody case are 

not always sufficient to terminate parental rights. Therefore, to justify a TPR decision,

“the focus must be on the continued parental relationship, not custody.” Id. at 499 

(emphasis added). The facts must show that the parent is unfit to continue the relationship, 

or exceptional circumstances make the continued relationship detrimental to the child’s 

best interests. Id. 

Second, the “State must overcome a much higher substantive burden by a higher 

standard of proof.” Id. It must establish unfitness or exceptional circumstances by clear 

 

10 The General Assembly amended FL § 5-323(b) in 2009 to include this 

presumption. See 2009 Md. Laws, Ch. 350, § 1; see also In re Adoption/Guardianship of 

Amber R., 417 Md. 701, 710 n.8 (2011). 
15

and convincing evidence rather than the preponderance standard applicable in custody 

cases. Id. Terminating parental rights is “a total rescission of the legal relationship 

between parent and child, and . . . is generally final.” Id. at 496. Further, in custody 

disputes, the State serves as a neutral judicial forum, whereas in TPR proceedings, the State 

is “a moving party, acting in its capacity as parens patriae[,]” to terminate a parental 

relationship and transfer those rights to itself. Id. 

Third, the Legislature has “carefully circumscribed the near-boundless discretion 

that courts have in ordinary custody cases to determine what is in the child’s best interests.” 

Id. at 499. The statutory factors are both considerations in determining whether TPR is in 

a child’s best interests, and “criteria for determining the kinds of exceptional 

circumstances that would suffice to rebut the presumption favoring a continued 

parental relationship and justify termination of that relationship.” Id. (emphasis 

added). See also Ta’Niya C., 417 Md. at 104 (“[T]he same factors that a court uses to 

determine whether termination of parental rights is in the child’s best interest under the 

TPR statute equally serve to determine whether exceptional circumstances exist.”). The 

TPR statute “appropriately looks to . . . whether the parent is, or within a reasonable time 

will be, able to care for the child in a way that does not endanger the child’s welfare.” 

Rashawn H., 402 Md. at 499–500. 

Unfitness or exceptional circumstances do not, by themselves, mandate a decision 

to terminate parental rights. See Jayden G., 433 Md. at 94. Rather, they demonstrate that 

the presumption favoring the parent has been overcome. The decision to terminate parental 
16

rights must always revolve around the best interests of the child.11 Id. The three 

concepts—unfitness, exceptional circumstances, and best interests—“are fused together, 

culminating in the ultimate conclusion of whether terminating parental rights is in a given 

child’s best interests.” Id. at 96 n.32. 

Judge Wilner clarified the appropriate balance between a parent’s interest and the 

best interests of a child: 

The court’s role in TPR cases is to give the most careful 

consideration to the relevant statutory factors, to make specific 

findings based on the evidence with respect to each of them, 

and, mindful of the presumption favoring a continuation of the 

parental relationship, determine expressly whether those 

findings suffice either to show an unfitness on the part of the 

parent to remain in a parental relationship with the child or to 

constitute an exceptional circumstance that would make a 

continuation of the parental relationship detrimental to the best 

interest of the child, and, if so, how. If the court does that—

articulates its conclusion as to the best interest of the child in 

that manner—the parental rights we have recognized and the 

statutory basis for terminating those rights are in proper and 

harmonious balance.

Rashawn H., 402 Md. at 501 (emphasis in original). This, we reiterated in Ta’Niya C., 417 

Md. at 111, “should be the touchstone for courts in TPR cases.” 

With this framework established, we next consider whether a juvenile court is 

permitted to deviate from the statutory framework by including other factors. 

 

11 If, however, the juvenile court does not find either exceptional circumstances or 

unfitness, the court may not re-examine best interests without keeping the constitutionallybased parental presumption firmly in mind. In re Adoption of Ta’Niya C., 417 Md. 90, 111 

n.19 (2010).
17

The Presence Of Additional Factors 

FL § 5-323(d) requires the juvenile court to “give primary consideration to the 

health and safety of the child and consideration to all other factors needed to determine 

whether terminating a parent’s rights is in the child’s best interests, including . . . .” 

(Emphasis added). Thus, although the statute limits the juvenile court’s discretion and sets 

forth criteria a juvenile court must consider in making the exceptional circumstances and 

best interests analyses, the statutory language does not contemplate that those factors are 

exclusive. See Rashawn H., 402 Md. at 499. 

Additional criteria may come into play in the exceptional circumstances analysis. 

For example, in Ta’Niya C., 417 Md. at 104 n.11, we explained that in a TPR exceptional 

circumstances analysis, “[i]n addition to . . . statutory factors, courts may consider ‘such 

parental characteristics as age, stability, and the capacity and interest of a parent to provide 

for the emotional, social, moral, material, and educational needs of the child.’” (quoting 

Pastore v. Sharp, 81 Md. App. 314, 320 (1989), cert. denied, Pastore v. Sharp, 419 Md. 

304 (1990)). These additional factors are germane to statutory criteria, such as a parent’s 

efforts to alter circumstances to make it in the child’s best interests to return to the parent’s 

home. See FL § 5-323(d)(2); see also id. (d)(2)(ii) (parent’s contributions to child’s care). 

They also directly relate to the statutory inquiry regarding a parent’s unfitness or the 

presence of exceptional circumstances that make continuing the relationship detrimental to 

the child’s best interests. See Rashawn H., 402 Md. at 499. 

H.W. asserts that this Court applied the Ross factors in Ta’Niya C. In that case, we 

analyzed language from Rashawn H. that was directly traceable to Ross. Ta’Niya C., 417 
18

Md. at 106. Our discussion of Ross was intended to clarify the relationship between the 

presumption accorded to parents and the paramount standard in TPR proceedings—the 

child’s best interests. Id. at 105. We did not apply the Ross factors or endorse application 

of those factors in our decision to remand the case to the juvenile court for an appropriate 

assessment of whether exceptional circumstances existed. Id. at 116–17. 

In re Adoption of K’Amora K., 218 Md. App. 287, 305–06 (2014), similarly does 

not demonstrate that the Ross factors are utilized to assess exceptional circumstances in 

TPR proceedings under FL § 5-323. There, the Court of Special Appeals explained that 

this Court had included a parent’s behavior or character in the exceptional circumstances 

analysis in another case, In re Adoption/Guardianship No. A91-71A, 334 Md. 538 (1994). 

K’Amora K., 218 Md. App. at 306. But the Court of Special Appeals drew from a portion 

of No. A91-71A that discussed factors other than those set forth in Ross. Id. (citing No. 

A91-71A, 334 Md. at 562–63). Specifically: the effect upon the child’s stability of having 

the particular relationships continue; abandonment by a parent; and a failure to support or 

visit the child. These behaviors provided “insight into the parent’s character, motivation, 

or ability to fulfill parental responsibilities.”12 No. A91–71A, 334 Md. at 563. These factors 

do not address custody—rather they reflect on the nature of the parent-child relationship 

that a TPR proceeding would sever. 

 

12 These factors are already encompassed in the statute. See, e.g., FL § 5-323(d)(2)(i)

(parent’s efforts to maintain regular contact with child); id. (d)(2)(ii) (parent’s contribution 

to child’s care and support); id. (d)(4)(iii)–(iv) (child’s feeling about TPR and impact of 

terminating parental rights on child’s wellbeing). 
19

The Department and H.W. maintain that the Court of Special Appeals’ decision 

directly conflicts with In re Adoption/Guardianship of C.A. and D.A., 234 Md. App. 30 

(2017), because the Court approved “use of the Ross factors in a guardianship action.” In 

C.A. and D.A., after explaining that the factors in FL § 5-323 serve as mandatory criteria 

to determine exceptional circumstances that would rebut the parental presumption, the 

intermediate appellate court identified “[o]ther criteria relevant to an exceptional 

circumstances determination,” specifically: 

the length of time that the child has been with his adoptive 

parents; the strength of the bond between the child and the 

adoptive parent; the relative stability of the child’s future with 

the parent; the age of the child at placement; the emotional 

effect of the adoption on the child; the effect on the child’s 

stability of maintaining the parental relationship; whether the 

parent abandoned or failed to support or visit with the child; 

and, the behavior and character of the parent, including the 

parent’s stability with regard to employment, housing, and 

compliance with the law. 

Id. at 50 (citing No. A91–71A, 334 Md. at 562–64). These factors, drawn from No. A91–

71A, are modified from independent adoption cases relying on Ross.

13

 Compare id., and

No. A91-71A, 334 Md. at 562–64, with Ross, 280 Md. at 191. Notably, the Court of Special 

 

13 The Ross factors have surfaced in independent adoption cases under FL § 5-3B-22, 

which authorizes courts to grant adoption without a natural parent’s consent under certain 

circumstances. See In re Adoption/Guardianship No. 3598, 347 Md. 295, 325–26 (1997); 

In re Adoption/Guardianship No. A91-71A, 334 Md. 538, 561–62 (1994). In both cases, 

the prospective adoptive parents had taken custody of the child and the natural parent 

sought the child’s return. See No. 3598, 347 Md. at 327; No. A91-71A, 334 Md. at 545. 

FL § 5-3B-22(b) specifically requires that the prospective adoptive parent have had 

custody of the child for a specific period of time. Finally, the dispute, between two private 

parties, bears greater resemblance to third-party custody cases in which the State serves as 

a neutral forum, rather than an active participant. 
20

Appeals did not include the custody-specific factors from Ross that triggered the 

controversy in this case.14 

The Ross Factors And The TPR Statute

The Department and H.W. contend that the Ross factors pertaining to custody are 

effectively encompassed in FL § 5-323. A child’s home life is part of the TPR analysis, 

which, they assert, necessarily includes custody. They reason that because the guardianship 

statute gives juvenile courts discretion in making decisions concerning the child’s best 

interests, custody-specific factors are entirely appropriate elements to include in the FL § 5-

323 calculation. 

The Court of Special Appeals determined that some Ross factors were consistent 

with statutory factors, particularly those set forth in FL § 5-323(d)(4), and relevant to the 

central question of whether the continued parental relationship would be detrimental to a 

child’s best interest. H.W., 234 Md. App. at 251. But, it cautioned, factors that “expressly 

pertain to custody—the possible emotional effect on the child of a change in custody and 

the stability and certainty as to the child’s future in the custody of the parent—do not belong 

in a TPR analysis.” Id.

 

14 The Court of Special Appeals included a factor considering the “emotional effect 

of the adoption on the child.” In re Adoption/Guardianship of C.A. and D.A., 234 Md. App. 

30, 50 (2017). We consider that proper framing of this factor is set forth in FL § 5-323(d)(4),

specifically, the child’s emotional ties to individuals who significantly affect his or her best 

interest, the child’s feelings about ending the parent-child relationship, and the impact of 

terminating parental rights on the child’s well-being. Adoption may follow a TPR decision, 

but the court assessing whether to terminate parental rights must focus on whether the 

parent is unfit to have a continued relationship with the child, or that exceptional 

circumstances make continuing the relationship detrimental to the child’s best interests,

and whether TPR is in the child’s best interests. Rashawn H., 402 Md. at 499. 
21

We agree with the Court of Special Appeals that some Ross factors demonstrate 

reasonable overlap with certain statutory factors in FL § 5-323(d). The chart below 

illustrates the overlap: 

Ross Factors FL § 5-323(d)

Length of time the child has been away 

from the biological parent. 

FL § 5-323(d)(2)(iv) (additional services 

bring about parental adjustment to return 

child in ascertainable time not greater than 

18 months from date of placement unless it 

in child’s best interests to extend the time).

FL § 5-323(d)(4)(i) (child’s emotional ties 

with and feelings towards parents, siblings, 

others who may affect child’s best interests 

significantly). 

FL § 5-323(d)(4)(iii)–(iv) (child’s feelings 

about severing parent-child relationship 

and likely impact of TPR on child’s wellbeing). 

Age of child when care assumed by third 

party.

FL § 5-323(d)(2)(iv) (see supra). 

FL § 5-323(d)(4)(ii) (child’s adjustment to 

community, home, placement). 

FL § 5-323(d)(4)(iii)–(iv) (see supra). 

The period of time elapsed before the 

parent sought to reclaim the child. 

FL § 5-323(d)(2) (results of parent’s effort 

to adjust parent’s circumstances, condition, 

or conduct to make it in child’s best 

interests to be returned to parent’s home). 

FL § 5-323(d)(2)(i) (extent to which parent 

has maintained regular contact with child). 

The nature and strength of the ties between 

the child and the third-party custodian. 

FL § 5-323(d)(4)(i) (see supra). 

FL § 5-323(d)(4)(ii) (see supra). 

The intensity and genuineness of the 

parent’s desire to have the child. 

FL § 5-323(d)(2) (see supra). 

FL § 5-323(d)(4)(i), (iii)–(iv) (see supra). 

Ta’Niya C., 417 Md. at 104 n.11. 

The custody-specific factors—the possible emotional effect on the child of a change 

of custody and the stability and certainty as to the child’s future in the custody of the 
22

parent—present different considerations.15 To be sure, FL § 5-323(d) requires the juvenile 

court to consider “all other factors needed to determine whether terminating a parent’s 

rights is in the child’s best interests . . . .” before supplying a list of considerations that 

must be included. (Emphasis added). And we observe that trial courts are accorded 

significant discretion in making assessments about a child’s best interest. See In re 

Adoption/Guardianship of Amber R., 417 Md. 701, 713 (2011). Although the custodyspecific Ross factors relate to certain statutory factors, the relationship alone does not 

resolve this case. We assess these factors, and whether they pose impermissible 

considerations that may lead a juvenile court’s TPR analysis astray. 

The child’s emotional attachments and the potential emotional effect on the child 

from a change of custody falls well within the explicit statutory factors a court must address 

in assessing the child’s placement. See FL § 5-323(d)(4)(i) (consider “child’s emotional 

ties with and feelings toward . . . others who may affect child’s best interests 

significantly”); id. (d)(4)(ii) (child’s adjustment to community, home, placement, and 

school). And, as in this case, that placement may be a foster family who wishes to adopt 

the child. See, e.g., Jayden G., 433 Md. at 91; Amber R., 417 Md. at 707; Ta’Niya C., 417 

Md. at 95–96. 

The stability and certainty as to the child’s future in the custody of the parent relates 

to statutory factors considering whether the parent “is, or within a reasonable time will be, 

 

15 At oral argument, we sought clarification on whether the juvenile court 

independently added the Ross factors to the analysis. A review of the record reveals that 

the Department relied on the Ross factors during its closing argument and specifically 

discussed custodial considerations. 
23

able to care for the child in a way that does not endanger the child’s welfare.” Rashawn 

H., 402 Md. at 500; see also FL § 5-323(d)(2) (parent’s efforts to adjust circumstances to 

make it in child’s best interests for child to be returned to parent’s home); id. (d)(2)(iv) 

(whether additional services could bring about “lasting parental adjustment” to return child 

to parent in ascertainable time). These factors are connected—albeit loosely—to the best 

interests analysis FL § 5-323 requires. 

On the other hand, we have cautioned that:

a child’s prospects for adoption must be a consideration 

independent from the termination of parental rights . . . in that 

“the 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.” 

Victor A., 386 Md. at 317 (quoting Cecil Cty. Dep’t of Soc. Servs. v. Goodyear, 263 Md. 

611, 615 (1971)). This Court has consistently emphasized that custody proceedings are 

“on a different plane than TPR proceedings.” Rashawn H., 402 Md. at 495–96; see also 

Burak v. Burak, 455 Md. 564, 631–32 (2017) (declining to adopt FL § 5-323(d) criteria as 

standard for unfitness in third-party custody dispute). Rashawn H., teaches us that the 

statute cabins the “near-boundless discretion” that courts have in custody cases. 402 Md. 

at 499. FL § 5-323 balances a court’s inquiry into whether the continued parental 

relationship is in the child’s best interests with the appropriate consideration owed to a 

parent’s fundamental rights. Id. Courts must address the presumption accorded to parents, 

“[r]ather than deciding at the outset what living arrangement is in the child’s best 
24

interests . . . .” Jayden G., 433 Md. at 95. To do otherwise risks “creat[ing] the impression 

that the natural parents and a third party stood on the same footing.” Id. 

Our decision in this case turns on harmonizing these competing considerations. We 

are mindful that the best interests of a child require flexibility based on the circumstances 

unique to each child. Id. at 86. We must decide whether, in this case, the juvenile court’s

inclusion of custody-specific factors unduly tipped the balance between a parent’s rights, 

the State’s interest in protecting vulnerable children, and the child’s best interests. 

The Juvenile Court’s Findings

The juvenile court first considered “all services offered to the parent before the 

child’s placement, whether offered by a local department, another agency or a 

professional[,]” FL § 5-323(d)(1)(i), and the “extent, nature, and timeliness of services 

offered by a local department to facilitate reunions of the child and parent . . . .” Id.

(d)(1)(ii). Father’s whereabouts were unknown when H.W. came into care in 2014 and 

“no services could be provided prior to the child’s placement.” Lee had communicated 

with Father and explored the resources he offered when he asked for assistance in his 

October 2015 letter. Lee and Father had not discussed service agreements. Father’s 

incarceration made it difficult to offer reunification services, and Father did not testify that 

he had “availed himself of any services or programs while incarcerated.” Because there 

were no service agreements, the juvenile court was unable to make findings under 

subsection (d)(1)(iii), regarding the extent to which the Department and Father had fulfilled 

obligations under any service agreements. 
25

Turning to subsection (d)(2), which assesses “the results of the parent’s effort to 

adjust the parent’s circumstances, condition, or conduct to make it in the child’s best 

interests for the child to be returned to the parent’s home,” the juvenile court considered 

Father’s efforts to maintain regular contact with H.W., the Department, and the M. family. 

See id. (d)(2)(i). Father has never met H.W. Although Father asked to visit his son when 

he was at the December 2014 hearing and presumably was available because he stayed an 

extra day, he chose not to see H.W. Father had “limited contact” with the Department and 

there is no evidence that he had contact with the M. family. The juvenile court also found 

under subsection (d)(2)(ii) that Father had not provided support to H.W. 

In considering Father’s incarceration, the juvenile court observed that TPR 

proceedings involving an incarcerated parent turn on the specific facts of each case. The 

court considered precedent demonstrating that lengthier sentences of incarceration may 

weigh in favor of terminating parental rights, but the ultimate consideration was the best 

interests of the child. Under subsection (d)(2)(iii), Father’s incarceration was not a parental 

disability, but it impacted H.W.’s wellbeing. Father had been incarcerated or under 

supervision throughout H.W.’s life, and he would be incarcerated for approximately 

another year. Although this was “short term” incarceration, the court found that Father’s 

incarceration and lack of contact did not serve H.W.’s best interests. 

Subsection (d)(2)(iv) requires considering whether additional services are likely to 

bring about an adjustment “so that the child could be returned to the parent within an 

ascertainable time not to exceed 18 months from the date of placement[.]” A juvenile court 

may extend that period for an identifiable time upon a specific finding that it is in the child’s 
26

best interests to do so. Id. The juvenile court found that H.W. had been in the Department’s 

care for almost three years, and Father had been incarcerated, or out of state, and had only 

minimal contact with the Department. Although Father planned to return to Baltimore and 

attempt reunification, he would be incarcerated for another year and had no concrete plans 

or resources available upon his release. The court concluded that it would not be in H.W.’s 

best interests to leave the case open for an additional year in the hope that Father would 

come to Baltimore to reunify with H.W. “The Court can point to no behavior or pattern of 

the father that would persuade the Court to believe that additional time . . . [or] additional 

services would be likely to bring about a lasting parental adjustment so that the child could 

be returned to the parent.” 

The juvenile court determined that subsections (d)(3)(ii)–(v)16 did not apply, but 

concluded that under (d)(3)(i), which considers whether “the parent has abused or 

neglected the child or a minor and the seriousness of the abuse or neglect,” Father had 

“responsibility for the supervision of the child[,]” and his “inability through his actions that 

have resulted in incarceration ha[ve] resulted in [n]eglect by omission.” 

FL § 5-323(d)(4)(i) requires the juvenile court to assess “the child’s emotional ties 

with and feelings towards the child’s parents, the child’s siblings, and others who may 

affect the child’s best interests significantly.” The court referred to the bonding study with 

 

16 These subsections address: (1) results of drug tests at birth for a child; (2) whether 

the parent has subjected the child to torture, abuse, sexual abuse, or chronic and lifethreatening neglect; (3) a parent’s convictions for crimes of violence against his or her 

offspring or another parent of the child; and (4) whether a parent has involuntarily lost 

parental rights to a sibling of the child. See FL § 5-323(d)(3)(ii)–(v). 
27

the M. family and observed that H.W. has bonded with his siblings. Although Father said 

he would keep H.W. in touch with the twins, Father expressed an intention to take H.W. 

away from Baltimore, which would separate him from his siblings. 

Subsection (d)(4)(ii) examines the child’s adjustment to the community, home, 

placement, and school. The juvenile court cited Lee’s testimony about H.W.’s current 

placement and his attachment to the M. family. Subsections (d)(4)(iii) and (iv) look to the 

effect terminating parental rights would have on the child. In considering H.W.’s feelings 

about the severance of the parent-child relationship under subsection (d)(4)(iii), the court 

found that H.W., who was four at the time of the hearing, had never met Father and did not 

know that Father existed. Applying (d)(4)(iv), the hearing judge concluded that 

terminating parental rights would impact H.W.’s well-being by permitting him to be 

“adopted with [his] siblings by [his] current caregiver . . . .” who had cared for him “for 

the majority of his 4 years of life.” 

The juvenile court then considered nine additional factors, which it identified as

“[f]actors for determining whether exceptional circumstances existed.” The juvenile 

court’s finding under the first factor, the “[l]ength of time [the] child has been away from 

the biological parent,” was identical with its finding under subsection (d)(2)(i)—that H.W.

has never been in Father’s care and Father has never seen H.W. Under the second factor, 

the “[a]ge of [the] child when care was assumed by [the] caretakers,” the court found that 

H.W. had been placed with the M. family since June 20, 2014. 

The third factor the court applied was the “[p]ossible emotional effect on [the] child 

if custody changed to the biological parent.” It found that “[a]ny change that would remove 
28

the child from a home that he has only known would more than likely have a detrimental 

effect” and that H.W. “does not know his father . . . .” Here, the court was repeating 

assessments it had already made in analyzing the factors in subsections (d)(4)(ii) and (iii). 

With regard to the fourth factor, the “[p]ossible emotional effect on [the] child if 

custody is given to the caretaker[,]” the court concluded: 

[H.W.] has been in the care of the current caretakers not to[o] 

long after his birth. . . . [H.W.] is in the unique position of 

being placed with his two other siblings in a home that has been 

characterized as loving. . . . [He] is bonded to the only parents 

he has known since birth. Remaining with the current 

caretakers would continue the positive emotional effect 

on . . . [H.W.]. 

The length of H.W.’s placement with the M. family, the positive nature of his placement 

and emotional attachment to the M family, and his relationship to his siblings had already 

been addressed in the court’s earlier findings under subsection (d)(4)(ii). 

The fifth and seventh factors, the time elapsed before Father sought to reclaim H.W., 

his efforts towards reclamation, as well as the “intensity and genuineness” of his desire to 

have H.W., necessitated examination of facts and circumstances related to Father’s efforts 

under (d)(1)–(2). The juvenile court found that Father “has stated in a letter and in 

testimony a desire to have the child but has done nothing further to promote that agenda. 

Father has shown no genuineness or intensity to have his child.” Here too, the juvenile 

court’s analysis and findings were consistent with its existing statutory findings. In 

considering the sixth factor, the “nature and strength of the ties between [the] child and 

current caretaker,” the juvenile court repeated its findings from Lee’s testimony about her 
29

recent visit to the M. family, which it had already set forth under findings for subsection 

(d)(4)(ii). 

Regarding factor eight, the stability and certainty as to H.W.’s future in Father’s 

custody, the juvenile court reiterated its findings under subsections (d)(1)(i)–(ii), regarding 

Father’s incarceration, and that he had not sought any services or programs while 

incarcerated. The hearing judge also found that Father could be released in a year and 

intended to come to Baltimore, but he “does not have any resources in place to provide 

stability for himself[,] let alone a child.” Further, 

[t]he father’s family in Baltimore is not a resource for him, let 

alone a child. . . . Father did not, while on parole, seek any 

stability. Father could not successfully complete the terms of 

his probation, which resulted in his current 

incarceration. . . . [H.W.’s] stability and certainty . . . in 

[F]ather’s care would be one of instability and uncertainty . . . . 

The juvenile court had already made these findings under subsection (d)(2)(iv), when it 

considered whether additional services could bring about a lasting parental adjustment to 

permit H.W. to return to Father’s care. The juvenile court’s specific conclusion regarding 

Father’s stability, although not identical to other findings, was consistent with the court’s 

earlier determination that Father had not demonstrated any “behavior or pattern” that 

persuaded the court that “additional services would be likely to bring about a lasting 

parental adjustment” such that he could safely and appropriately care for H.W. within the 

statutory timeframe. 

Finally, in considering the ninth factor, the stability and certainty as to H.W.’s future 

in the custody of the M. family, the juvenile court determined only that “[H.W.] has gained 
30

stability and certainty in the care and custody of the current caretaker and has thrived and 

progressed under their care.” This conclusion recycled the juvenile court’s previous 

statutory findings regarding H.W.’s placement. 

Analysis 

As we have explained supra, the focus of the inquiry in a TPR proceeding revolves 

around whether the continued parental relationship is detrimental to the child’s best 

interest. See Rashawn H., 402 Md. at 499. The juvenile court thoroughly considered the 

relevant statutory factors in relation to the available evidence and made detailed findings 

while keeping the presumption of the continued parental relationship in mind. See id. at 501. 

An exceptional circumstances analysis must turn on whether the presence—or 

absence—of particular facts and circumstances makes continuation of the parental 

relationship detrimental to the child’s best interests. See, e.g., In re Adoption/Guardianship 

of Alonza D., Jr., 412 Md. 442, 462–63 (2010) (“Passage of time, without explicit findings 

that the continued relationship with [the parent] would prove detrimental to the best 

interests of the children, is not sufficient to constitute exceptional circumstances.”). 

Consideration of any non-statutory factors in a TPR proceeding must be tailored to that 

inquiry. Custodial decisions necessitate different considerations than the decision to 

terminate parental rights. Rashawn H., 402 Md. at 498–99. Using purely custodial Ross 

factors runs the risk of ignoring the essential assessment of the parental relationship that 

is necessary to decide whether to terminate that relationship. Drawing comparisons 

between a parent and a third party in TPR proceedings may risk according the third party 

equal footing, particularly if the juvenile court fails to make findings in accordance with 
31

the statute. Although some Ross factors are related to the statutory factors, it is 

undoubtedly the best practice for juvenile courts to adhere to FL § 5-323(d). See id. at 501; 

see also Ta’Niya C., 417 Md. at 104 & n.11. 

As we explained earlier, the final decision of a juvenile court is subject to review 

for abuse of discretion. Ta’Niya C., 417 Md. at 100. Although by incorporating these 

factors the juvenile court came perilously close—indeed, we consider this as far as a 

juvenile court can go—it did not cross the line. The juvenile court did not make separate

findings based on the Ross factors. Rather, the bulk of the court’s conclusions repeated its 

findings properly made under the statutory factors. We conclude that, under these 

circumstances, injecting the Ross factors did not upset the legislatively crafted balance set 

out in FL § 5-323. 

Father asserts that the trial court “impermissibly contrasted H.W.’s respective 

futures with [Father] and his foster parents[,]” by considering these custodial factors. He 

also maintains that the juvenile court failed to properly consider whether he would be 

capable of caring for H.W. within a reasonable amount of time. The TPR statute explicitly 

requires the court to consider factors associated with the child’s placement, see FL § 5-

323(d)(4), and the parent’s efforts to adjust their circumstances to be reunited with the 

child. See id. (d)(1)–(2). We have directed courts to proceed with caution in assessing the 

factors relating to a child’s foster care placement, and not to rely on bonding with a foster 

family as the primary justification for terminating parental rights. 

In Alonza D., 412 Md. at 464, we observed that it was reasonable to presume that a 

“successful foster care placement has at its foundation a level of bonding by the children 
32

with the caretaker.” Bonding alone cannot be a dispositive factor—the juvenile court must 

assess whether the continued relationship with a biological parent is detrimental to the 

child’s best interests. Id. Otherwise, we reasoned, “reunification with a parent would be a 

mere chimera . . . .” Id. 

Although H.W. had thrived in his foster care placement, that is not enough reason 

to sever Father’s parental rights. “For exceptional circumstances to exist, the court must 

also find that the passage of time when the parent and the child were apart makes 

continuation of the parental relationship detrimental to the best interest of the child.” 

Ta’Niya C., 417 Md. at 112. Here, the juvenile court properly looked to Father’s conduct. 

H.W. did not have any ties to Father. He was unaware that Father existed. The evidence 

demonstrated that Father had been relatively indifferent to his obligations to his child. 

Father did not know that H.W. was in the Department’s custody for a prolonged period of 

time. He had only minimal contact with the Department regarding reunification and 

visitation. When Father had the opportunity to visit with H.W., he chose not to do so. 

From this, the juvenile court reasonably concluded that continuing the legal relationship in 

the hope that Father might make changes in his life to permit reunification was unlikely 

based on Father’s past behavior, and it was not in H.W.’s best interests to do so. 

Father’s incarceration made it difficult for the Department to offer reunification 

services. As we explained in Rashawn H., 402 Md. at 500, the Department must offer a 

reasonable level of services to assist in reunification. See also FL § 5-525(e) (requiring 

reasonable efforts to make it possible for a child to return to the child’s home). These 

efforts need not be perfect, In re James G., 178 Md. App. 543, 601 (2008), but are judged 
33

on a case-by-case basis. In re Shirley B., 419 Md. 1, 25 (2011). Here, Father had only 

sporadic contact with the Department, rendering this task even more difficult. In short, 

there was no evidence that Father could, “or within a reasonable time w[ould] be, able to 

care for the child in a way that does not endanger the child’s welfare.” Rashawn H., 402 

Md. at 500. 

CONCLUSION 

The juvenile court gave “most careful consideration to the relevant statutory factors,” 

and made specific findings based on the available evidence. Id. at 501. Although factors 

pertaining exclusively to custody have no place in TPR assessments under FL § 5-323, the 

juvenile court did not abuse its discretion when, based on these circumstances and an 

appropriate statutory analysis, it terminated Father’s parental rights. 

JUDGMENT OF THE COURT OF 

SPECIAL APPEALS REVERSED. CASE 

REMANDED TO THAT COURT WITH 

INSTRUCTIONS TO AFFIRM THE 

JUDGMENT OF THE CIRCUIT COURT 

FOR BALTIMORE CITY AND REMAND 

THE CASE TO THAT COURT FOR 

PROCEEDINGS CONSISTENT WITH 

THIS OPINION. COSTS TO BE PAID BY 

RESPONDENT M.W. 
Circuit Court for Baltimore City 

Case No. T15280012

Argued: April 6, 2018 IN THE COURT OF APPEALS

OF MARYLAND

No. 70

September Term, 2017

__________________________________

IN RE: ADOPTION/GUARDIANSHIP 

OF H.W.

__________________________________

Barbera, C.J.,

Greene,

Adkins,

McDonald,

Watts,

Hotten,

Getty,

JJ.

__________________________________

Concurring and Dissenting Opinion by 

Hotten, J.

__________________________________

Filed: July 16, 2018
Respectfully, I must concur in part, and dissent in part with the Majority’s holding.

Using the four factors related exclusively to a custody determination is not appropriate in 

deciding whether to terminate the parental rights of H.W.’s father, M.W. (“Father”). I 

agree with the Majority’s rationale that “[c]onsideration of exclusively custodial factors 

risks blurring important distinctions between parents and third-party custodians.” Majority 

Slip Op. at 10. However, in acknowledging that an analysis of custody factors blurs 

important distinctions, I do not know whether the injection of custody factors tainted the 

juvenile court’s decision. I agree with the Court of Special Appeals that consideration of 

custody factors was reversible error.

At issue are the factors that a court must adhere to in rendering its findings in a TPR 

proceeding. Maryland Code (1984, 2012 Repl. Vol.), § 5-323(b) of the Family Law Article 

(“Fam. Law”) allows for the termination of parental rights if “a juvenile court finds by 

clear and convincing evidence that a parent is unfit to remain in a parental relationship with 

the child or that exceptional circumstances exist that would make a continuation of the 

parental relationship detrimental to the best interests of the child such that terminating the 

rights of the parent is in a child’s best interests[.]” The two threshold considerations are 

parental unfitness or exceptional circumstances. However, when a court exercises its 

discretion to terminate parental rights, the most critical overarching determination is the 

child’s best interest. In re Adoption of Jayden G., 433 Md. 50, 82, 70 A.3d 276, 295 (2013). 

Fam. Law § 5-323(d)(1) expressly provides the factors to be considered, including:

(1)(i) all services offered to the parent before the child’s placement, whether 

offered by a local department, another agency, or a professional;
2

(ii) the extent, nature, and timeliness of services offered by a local 

department to facilitate reunion of the child and parent; and

(iii) the extent to which a local department and parent have fulfilled 

their obligations under a social services agreement, if any;

(2) the results of the parent’s effort to adjust the parent’s circumstances, 

condition, or conduct to make it in the child’s best interests for the child 

to be returned to the parent’s home, including:

(i) the extent to which the parent has maintained regular contact with:

1. the child;

2. the local department to which the child is committed; and

3. if feasible, the child’s caregiver;

(ii) the parent’s contribution to a reasonable part of the child’s care and 

support, if the parent is financially able to do so;

(iii) the existence of a parental disability that makes the parent 

consistently unable to care for the child’s immediate and ongoing 

physical or psychological needs for long periods of time; and

(iv) whether additional services would be likely to bring about a lasting 

parental adjustment so that the child could be returned to the parent 

within an ascertainable time not to exceed 18 months from the date of 

placement unless the juvenile court makes a specific finding that it is in 

the child’s best interests to extend the time for a specified period;

(3) whether:

(i) the parent has abused or neglected the child or a minor and the 

seriousness of the abuse or neglect;

(ii) 1. A. on admission to a hospital for the child’s delivery, the mother 

tested positive for a drug as evidenced by a positive toxicology test; 

or

 B. upon the birth of the child, the child tested positive for a drug as 

 evidenced by a positive toxicology test; and

2. the mother refused the level of drug treatment recommended by 

a qualified addictions specialist, as defined in § 5-1201 of this title, 

or by a physician or psychologist, as defined in the Health 

Occupations Article;

(iii) the parent subjected the child to:

1. chronic abuse;

2. chronic and life-threatening neglect;

3. sexual abuse; or

4. torture;

(iv) the parent has been convicted, in any state or any court of the United 

States, of:

1. a crime of violence against:

A. a minor offspring of the parent;

B. the child; or
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C. another parent of the child; or

2. aiding or abetting, conspiring, or soliciting to commit a crime 

described in item 1 of this item; and

 (v) the parent has involuntarily lost parental rights to a sibling of the 

child; and

(4)(i) the child’s emotional ties with and feelings toward the child’s parents, 

the child’s siblings, and others who may affect the child’s best interests 

significantly;

(ii) the child’s adjustment to:

1. community;

2. home;

3. placement; and

4. school;

(iii) the child’s feelings about severance of the parent-child relationship; 

and

(iv) the likely impact of terminating parental rights on the child’s wellbeing.

As both the Majority and the Court of Special Appeals have alluded to, Fam. Law

§ 5-323(d) does not confine the court’s analysis to the factors specifically enumerated. The 

express text of the statute allows a court to give due “consideration to all other factors 

needed to determine whether terminating a parent’s rights is in the child’s best interests[.]”

Fam. Law § 5-323(d).

In the case at bar, after considering each of the relevant statutory factors in Fam. Law

§ 5-323(d), the juvenile court could not find clear and convincing evidence of Father’s 

unfitness to remain in a parental relationship with H.W. Consequently, the juvenile court 

examined whether the Department had shown by clear and convincing evidence,

exceptional circumstances that rendered a continuation of the parental relationship 

detrimental to the best interest of the child. In order to determine whether exceptional 

circumstances existed, the juvenile court relied on four custody-specific factors which are 

not expressly stated in § 5-323(d) and which we have addressed within the context of a 
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child custody action. Those factors were: (1) the possible emotional effect on the child if 

custody changed to biological parent; (2) the possible emotional effect on the child if 

custody is given to a caretaker; (2) the stability and certainty as to the child’s future in the 

custody of the parent; and (3) the stability and certainty as to the child’s future in the 

custody of the caretaker. See Burak v. Burak, 455 Md. 564, 659, 168 A.3d 883, 938–39

(2017) (citing Ross v. Hoffman, 280 Md. 172, 191, 372 A.2d 582, 593 (1977)). After 

considering these factors, the juvenile court determined that exceptional circumstances 

existed to terminate Father’s parental rights. 

This Court has continually grappled with balancing a child’s best interest and

finding parental unfitness or exceptional circumstances. Writing for this Court, Judge 

Wilner first endeavored to interpret the factors considered in a TPR proceedings in In re 

Adoption/Guardianship of Rashawn H. (“Rashawn H.”), 402 Md. 477, 937 A.2d 177 

(2007). Rashawn H. may not have provided as clear guidance as the Majority suggests.

As explained by the Majority, Rashawn H. struck a balance between a parent’s and child’s 

interest: 

The court’s role in TPR cases is to give the most careful consideration to the 

relevant statutory factors, to make specific findings based on the evidence 

with respect to each of them, and, mindful of the presumption favoring a 

continuation of the parental relationship, determine expressly whether those 

findings suffice either to show an unfitness on the part of the parent to remain 

in a parental relationship with the child or to constitute an exceptional 

circumstance that would make a continuation of the parental relationship 

detrimental to the best interest of the child, and, if so, how. If the court does 

that—articulates its conclusion as to the best interest of the child in that 

manner—the parental rights we have recognized and the statutory basis for 

terminating those rights are in proper and harmonious balance.
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Id. at 501, 937 A.2d at 192; see Majority Slip Op. at 16. However, Rashawn H. did not 

interpret the necessity to adhere to the expressly enumerated factors in § 5-323(d), or the 

consideration of “other factors” referenced within the statute. Rashawn H.’s focus was on 

drawing the distinctions between custody and TPR proceedings. The extensive legislative 

and historical analysis in Rashawn H. provides guidance on the appropriateness of TPR 

proceedings, but not necessarily on how juvenile courts should approach a finding of 

parental unfitness or exceptional circumstances. Notwithstanding the unsettled areas of 

Rashawn H., its discussion makes clear that “[t]o justify a TPR judgment, therefore, the 

focus must be on the continued parental relationship, not custody.” Rashawn H., 402 Md. 

at 499, 937 A.2d at 190. 

The Rashawn H. Court highlighted three elements to distinguish the heightened 

standards in TPR proceedings that are not utilized when considering child custody. Id. at 

498, 937 A.2d at 190. First, a presumption exists that it is in the best interest of the child 

to maintain the parental relationship, which may be rebutted by a showing of unfitness or 

exceptional circumstances that would make the continued relationship detrimental to the 

child’s best interest. Id. Second, this presumption must be established by clear and 

convincing evidence, a heightened burden than the preponderance of the evidence standard 

applied in custody cases. Id. at 499, 937 A.2d at 190. Third, the Court reasoned that the 

General Assembly limited a juvenile court’s discretion by expressly including factors to 

determine exceptional circumstances that justify termination of a parental relationship. Id. 

Considering the clarification of those elements, the Court remanded the matter for the 
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juvenile court “to make clear and specific findings with respect to each of the relevant 

statutory factors[.]” Id. at 505, 937 A.2d at 194. 

Upholding the juvenile court’s application of custody factors in TPR proceedings is 

fundamentally at odds with the three critical elements outlined in Rashawn H. and 

subsequent decisions relying on Rashawn H.’s elements. The first element in Rashawn H.

dictates that it is in the best interest of a child to maintain the parental relationship. Unless 

there is a finding of unfitness or exceptional circumstances, the parental relationship should 

not be terminated. In the custody context, unfitness “means an unfitness to have custody 

of the child, not an unfitness to remain the child’s parent; exceptional circumstances are 

those that would make parental custody detrimental to the best interest of the child.” Id. at 

498, 937 A.2d at 190 (emphasis in original). In applying the factors enunciated in Fam. 

Law § 5–323(d), the juvenile court could not find parental unfitness or exceptional 

circumstances that would result in a detriment to H.W. Additional factors may be 

considered in the analysis, as long as the best interest of the child is “the touchstone for 

courts in TPR cases.” In re Adoption of Ta’Niya C., 417 Md. 90, 111, 8 A.3d 745, 757 

(2010). As the Majority points out, those factors should “relate to the statutory inquiry 

regarding a parent’s unfitness or the presence of exceptional circumstances that make 

continuing the relationship detrimental to the child’s best interests.” Majority Slip Op. at 

17. The custody factors considered by the juvenile court indicated supra, are directly 

correlated to a child’s best interest in the custody of a particular caretaker. Utilizing 

custody factors may ultimately bolster a finding of exceptional circumstances where one 

may not have existed. Although the Majority posits that the juvenile court’s reliance on 
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custody factors did not taint the TPR decision, there is, ultimately, no way to guarantee that 

it did not. Juvenile courts should be cautioned against improperly piecemealing factors 

from other statutes or cases to bootstrap the desired goal of terminating a parent’s rights.

The second element from Rashawn H. similarly leads to a conclusion that custody 

factors have no place in a TPR proceeding. A heightened burden of proof reflects the 

seriousness of TPR proceedings. Because a TPR proceeding could result in a complete 

rescission of the parental-child relationship, the specific factors enumerated in Fam. Law

§ 5–323(d) are necessary measures to ensure protection of a parent’s fundamental right to 

raise a child. See Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 2060 (2000) 

(protecting the right “to make decisions concerning the care, custody, and control of their 

children[ ]” under the Fourteenth Amendment of the United States Constitution.).

As the Court in Rashawn H. articulated in its third element, the express inclusion of 

factors to consider in Fam. Law § 5–323(d) indicates that the General Assembly sought to 

focus a juvenile court’s discretion when determining exceptional circumstances that justify 

termination of a parental relationship. “[I]t is clear that the General Assembly’s extensive 

list of factors, when considered in the light of the standing presumption favoring parental 

rights, reflect the spirit that termination is an alternative of last resort, and is not to be taken 

lightly.” In re Adoption/Guardianship of Amber R., 417 Md. 701, 715, 12 A.3d 130, 138 

(2011). This Court recognized that TPR proceedings are “different in kind and not just in 

degree[ ]” from custody disputes, Rashawn H., 402 Md. at 496, 937 A.2d at 188 and that 

the General Assembly “set forth criteria to guide and limit the court[.]” Id. at 499, 937 

A.2d at 190. Although similar factors may be relevant in both contexts, the ultimate 
8

inquiries are distinct. Much like we have explained that “a child’s prospects for adoption 

must be a consideration independent from the termination of parental rights,” In re 

Adoption/Guardianship of Victor A., 386 Md. 288, 317, 872 A.2d 662, 679 (2005), 

similarly custody is too. Although a juvenile court may consider a host of other relevant 

factors, the statutory directive must be followed.

In sum, it was reversible error for the juvenile court to consider the four custody 

factors utilized to find exceptional circumstances. “[I]f no parental unfitness or exceptional 

circumstances exist, there is no need to inquire further as to where the best interest of the 

child lies.” Ta’Niya C., 417 Md. at 105, 8 A.3d at 753 (internal quotations and citations 

omitted). If the court could not find parental unfitness or exceptional circumstances, the 

court’s analysis should have gone no further. Accordingly, I would affirm the judgment 

of the Court of Special Appeals.