IN RE TA'NIYA C

91, 937 A.2d at 185. Rather, it required only a finding that terminating parental rights was in the child's best interest. See id. Thus, in Rashawn, a mother, whose parental rights had been terminated, argued that Maryland's TPR statute was unconstitutional because it did not take into consideration the parent's Constitutionally-based right to raise his or her children. Id. at 494-95, 937 A.2d at 187-88. In considering the mother's claim, we recognized the presumption that it is in the best interest of children to remain in the custody of their parents. Id. at 495, 937 A.2d at 188. We emphasized, however, that the parents' right is not absolute and "must be balanced against the fundamental right and responsibility of the State to protect children, who cannot protect themselves, from abuse and neglect." Id. at 497, 937 A.2d at 189. Therefore, this parental presumption "may be rebutted upon a showing either that the parent is `unfit' or that `exceptional circumstances' exist which would make continued custody with the parent detrimental to the best interest of the child." Id. at 495, 937 A.2d at 188.

At the time the mother's rights were terminated in Rashawn, the statutory standards governing termination of parental rights were set forth not in FL Section 5-323 (1984, 2006 Repl.Vol. 2009 Supp.), but instead in FL Section 5-313 (1984, 2004 Repl.Vol.), which likewise did not specifically mention parental unfitness or exceptional circumstances.

Even though at that time our TPR statute did not call for the finding of either parental unfitness or exceptional circumstances, we nevertheless found that this necessary finding was "implicit from the statutory scheme." Rashawn, 402 Md. at 498, 937 A.2d at 190. Accordingly, in order to protect parental rights, we pointed out that in applying the statutory provisions, juvenile courts must keep in mind "three critical elements." Id. First, the court must focus on the continued parental relationship and require that "facts . . . demonstrate an unfitness to have a continued parental relationship with the child, or exceptional circumstances that would make a continued parental relationship detrimental to the best interest of the child." Id. at 499, 937 A.2d at 190. Second, the State must show parental unfitness or exceptional circumstances by clear and convincing evidence. Id. Third, the trial court must consider the statutory factors listed in subsection (d) to determine whether exceptional circumstances warranting termination of parental rights exist. Id. What has proved to be elusive in this equation is defining "exceptional circumstances," and determining its interaction with the "child's best interests" standard.

The same considerations apply now that FL Section 5-323 specifically calls for a finding of parental unfitness or exceptional circumstances that would make continuation of a parental relationship detrimental to the child's best interest. See FL Section 5-323(b) (1984, 2006 Repl.Vol., 2009 Supp.).

In addition to these 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." Pastore v. Sharp, 81 Md.App. 314, 320, 567 A.2d 509, 512 (1989), cert. denied, Pastore v. Sharp, 319 Md. 304, 572 A.2d 182 (1990).

Because the juvenile court in Rashawn did not articulate its findings with respect to either parental unfitness or exceptional circumstances, we remanded the case for further proceedings in accordance with the correct standard. Rashawn, 402 Md. at 505, 937 A.2d at 194.

Probing The Meaning Of Rashawn

Rashawn explicitly reiterated that "the best interest of the child remains the ultimate governing standard" in contested adoption cases, TPR proceedings, and permanency plan proceedings. Id. at 496, 937 A.2d at 189. Rashawn also made clear that the 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. Id. at 499, 937 A.2d at 190. In its words, "[The statutory] factors, though couched as considerations in determining whether termination is in the child's best interest, serve also as 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.

Despite these clear pronouncements that the child's best interest infuses every element of a court's analysis in TPR cases, other language crept into the opinion and apparently caused confusion. Specifically, citing McDermott v. Dougherty, 385 Md. 320, 869 A.2d 751 (2005), Rashawn said that if no parental unfitness or exceptional circumstances exist, "there is no need to inquire further as to where the best interest of the child lies." Rashawn, 402 Md. at 495, 937 A.2d at 177. This "other language", which we call the "no further inquiry" language, could be interpreted to mean that parental unfitness, exceptional circumstances and the child's best interests are different and separate analyses, and even that the child's best interest inquiry does not come into play until there is a finding of parental unfitness or exceptional circumstances. This may explain here the juvenile judge's belief, albeit mistaken, that Rashawn "changed the law" and moved our analysis away from the "best interests of the child" standard. Such a reading, however, is misguided. In explaining the "no further inquiry" language, we trace its origin and examine its context.

This quotation appeared as part of the following paragraphs:

The great majority of custody (and visitation) disputes, of course, are between the child's parents, neither of whom, at least since the adoption of our State Equal Rights Amendment (Md. Decl. of Rts., Art. 46), has any preference over the other in that regard. In that setting, the governing standard, here and throughout the country, is and long has been the child's best interest. See McDermott v. Dougherty, 385 Md. 320, 353-55, 869 A.2d 751, 770-71 (2005). Custody and visitation decisions in disputes between the parents are made based on what the court finds to be in the child's best interest. That decision generally lies within the sound discretion of the trial judge and is rarely disturbed on appeal. See Domingues v. Johnson, 323 Md. 486, 492, n. 2, 593 A.2d 1133, 1136, n. 2 (1991).

A different element, though not a different standard, comes into play when the dispute is between a parent and a third party, for in that setting, there is a legal preference. In those cases, we have recognized that parents have a fundamental, Constitutionally-based right to raise their children free from undue and unwarranted interference on the part of the State, including its courts. See, most recently, Koshko v. Haining, 398 Md. 404, 921 A.2d 171 (2007); also McDermott v. Dougherty, supra, 385 Md. 320, 869 A.2d 751; Shurupoff v. Vockroth, 372 Md. 639, 814 A.2d 543 (2003); Ross v. Hoffman, 280 Md. 172, 372 A.2d 582 (1977). Even in those cases, however, we have not discarded the best interest of the child standard, but rather have harmonized it with that fundamental right.

We have created that harmony by recognizing a substantive presumption — 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. The parental right is not absolute, however. The presumption that protects it may be rebutted upon a showing either that the parent is "unfit" or that "exceptional circumstances" exist which would make continued custody with the parent detrimental to the best interest of the child. In McDermott, the Court made clear that, in a parent-third party custody dispute, the initial focus must be on whether the parent is unfit or such exceptional circumstances exist, for, if one or the other is not shown, the presumption applies and there is no need to inquire further as to where the best interest of the child lies. In Koshko, we extended that approach to parent-third party visitation disputes as well.

Rashawn, 402 Md. at 494-495, 937 A.2d at 177 (emphasis added).

Although borrowed from McDermott, the "no further inquiry" language actually can be traced to our decision in Ross v. Hoffman, 280 Md. 172, 372 A.2d 582 (1977). Ross is a seminal custody case that involved a custody dispute between the natural mother and third parties who cared for the child full-time for over eight years. Id. at 181-82, 372 A.2d at 589-90. Despite the presumption that being in the custody of a natural parent is in the child's best interest, we upheld the award of custody to the third parties because (1) there were exceptional circumstances that would have made giving custody to the natural mother detrimental to the child's best interest, and (2) remaining in the custody of the third parties was in the child's best interest. Id. at 192, 372 A.2d at 594. In so holding, we emphasized that the child's best interest is "always determinative in child custody disputes." Id. at 178-79, 372 A.2d at 587.

The Ross Court also laid out the following factors for deciding whether there are exceptional circumstances that would make parental custody detrimental to the child's best interest:

[T]he 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 between the child and the third party custodian, the intensity and genuineness of the parent's desire to have the child, the stability and certainty as to the child's future in the custody of the parent.

Id. at 191, 372 A.2d at 593. We also observed that "[t]he child may be so long in the custody of the nonparent that, even though there has been no abandonment or persistent neglect by the parent, the psychological trauma of removal is grave enough to be detrimental to the best interest of the child." Id. at 191, 372 A.2d at 594-95 (emphasis added).

The "no further inquiry" language cropped up there for the first time. After clear iteration that the child's best interest is "always determinative in child custody disputes," the Court immediately added that "in parent-third party disputes over custody, it is only upon a determination . . . that the parent is unfit or that there are exceptional circumstances . . . that the court need inquire into the best interest of the child in order to make a proper custodial disposition." Id. at 178-79, 372 A.2d at 587. The potential for this language to mislead has lingered.

We confronted this potential in Shurupoff v. Vockroth, which was a custody dispute case between a natural father and maternal grandparents. 372 Md. 639, 814 A.2d 543 (2003). There we reiterated that "[t]he court must always, necessarily, inquire into what is in the child's best interest, for that is the ultimate, determinative factor." Id. at 662, 814 A.2d at 557. We explained that when we said in Ross that there was no need to inquire into the child's best interest if the parent was fit and there were no exceptional circumstances, we "simply intended to make clear that, because of the presumption [favoring parental custody], a parent and a third party do not stand on an equal footing, and that, before the third party may be granted custody, he or she must rebut the presumption[.]" Id. To clarify even further, we continued,

[s]o long as the best interest of the child remains the definitive standard and there is any reasonable alternative, it defies both logic and common sense to place a child in the custody of anyone, including a parent, when either that person is unfit to have custody or such action, because of exceptional circumstances, would be detrimental to the child's best interest. What Ross teaches is that (1) the best interest standard applies and prevails, and (2) that standard is gratified by giving custody to the parent when the presumption has not been rebutted and by denying custody to the parent when it has been rebutted.

Id.

Two years later, however, in McDermott, a custody dispute between a father and maternal grandparents, the "no further inquiry" language was re-introduced, but only for instances when private third parties seek custody against the will of a parent. McDermott, 385 Md. at 374, 869 A.2d at 782. The Court stated that it did not intend to alter the child's best interest standard that governs visitation and custody disputes, id. at 354, 869 A.2d at 770, but nevertheless held:

Judge Wilner, concurring in the judgment only, disagreed with the majority's mischaracterization of the governing standard in custody disputes. Id. at 437, 869 A.2d at 819-20 (Wilner, J., concurring). He reiterated our statement in Ross, where we emphasized that "the best interest of the child standard is always determinative in child custody disputes." Id. (quoting Ross, 280 Md. at 178-79, 372 A.2d at 587) (emphasis in the original). Judge Wilner explained that under the child's best interest standard, "[t]he presumption afforded under Ross is rebutted only when the evidence shows that the parent is unfit to have custody or that exceptional circumstances exist which would make parental custody detrimental to the child's best interest." Id. at 439-40, 869 A.2d at 821. Moreover, he pointed out, even if one were to view parental unfitness/exceptional circumstances and the child's best interest as separate analyses, a court would still "necessarily" need to "examine and be governed by what is in the child's best interest." Id. at 440, 869 A.2d at 821. After all, he urged, both parental unfitness and exceptional circumstances are measured in terms of detriment to the child's best interest. Id.

[I]n private actions in which private third parties are attempting to gain custody of children of natural parents over the objection of the natural parents, it is necessary first to prove that the parent is unfit or that there are extraordinary circumstances posing serious detriment to the child, before the court may apply a "best interest" standard.

Id. at 374-75, 869 A.2d at 783 (emphasis added). Indeed, McDermott went as far as to say that in private custody disputes between a parent and a third party, "the constitutional right [of the parent] is the ultimate determinative factor." Id. at 418, 869 A.2d at 808. The opinion disavowed Shurupoff's clarification of Ross, id., at 435 n. 49, 869 A.2d at 819 n. 49, thereby making it sound again as if "exceptional circumstances" and the child's "best interest" were separate and distinct standards, at least in private custody disputes. McDermott, 385 Md. at 374, 869 A.2d 751.

In McDermott, our analysis of the Shurupoff and Hoffman cases was as follows:

At the conclusion of the Shurupoff opinion, we announced an interpretation of Hoffman's main holding by stating that we, in Hoffman, "should have stopped there. Instead, we continued, in the very next sentence: . . ." and we proceeded to describe the qualifying language from Hoffman. Our Shurupoff opinion stated:

"Having first announced that the best interest of the child `is always determinative in child custody disputes,' we did muddy the waters a bit by stating that, unless the trial court finds unfitness or exceptional circumstances that would make custody in the parent detrimental to the child's best interest, it need not `inquire into the best interest of the child in order to make a proper custodial disposition.'" Shurupoff, 372 Md. at 661-62, 814 A.2d at 557.

We then continued by stating, without overruling the language from Hoffman, that "the court must always, necessarily, inquire into what is in the child's best interest, for that is the ultimate, determinative factor." Shurupoff, 372 Md. at 662, 814 A.2d at 557. With that additional language, if it stands, Maryland has gone from, questionably, the majority view in this country as to private third-party custody actions to clearly the minority view. That was not the intention of the Court.

This history of shifting standards can be disconcerting, but as Justice Cardozo wrote, "we should know . . . that magic words and incantations are as fatal to our science as they are to any other." Benjamin N. Cardozo, The Growth of the Law, Yale University Press 66 (1924).

Additionally, a progression of the law on this topic that involves adjustments and corrections is explainable in part by the tremendous difficulty in formulating clear rules and standards to instruct judges how to handle cases requiring insight and intuitive judgment about individuals and their frailties, as well as the wisdom to deal with the clashing of parental constitutional rights against a child's future.

Two years after McDermott, Judge Wilner, writing for the Court in Rashawn, undertook the difficult task of synthesizing and harmonizing the Court's decisions on this topic. His opinion carried forward the precept from earlier TPR cases that the child's best interests and exceptional circumstances are inseparable:

Nonetheless, our case law has been clear and consistent, that, even in contested adoption and TPR cases (and in permanency plan proceedings that may inevitably lead to a TPR case), where the fundamental right of parents to raise their children stands in the starkest contrast to the State's effort to protect those children from unacceptable neglect or abuse, the best interest of the child remains the ultimate governing standard.

Rashawn, 402 Md. at 496, 937 A.2d at 189. The opinion also recognized that "the child's welfare is a consideration that is of transcendent importance when the child might otherwise be in jeopardy." Id. (internal quotations and citations omitted).

Thus, the court impliedly disapproved the inconsistent language in McDermott saying that "the constitutional right [of the parent] is the ultimate determinative factor." 385 Md. at 418, 869 A.2d at 808.

Judge Wilner then harmonized the earlier cases, as he explained how to achieve the appropriate balance when the interests of parents and the interests of children conflict in a TPR case:

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.

Id. at 501, 937 A.2d 177 (emphasis in original). This harmonizing synthesis of the law should be the touchstone for courts in TPR cases.

The Court in Rashawn also elaborated on what it meant by the child's "best interest":

We agree with Ms. F. that poverty, of itself, can never justify the termination of parental rights. The fundamental right of parents to raise their children is in no way dependent on their affluence and therefore is not diminished by their lack thereof. Nor will homelessness, alone, or physical, mental, or emotional disability, alone, justify such termination. That is not what the statute permits, however. What the statute appropriately looks to is 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. As former FL § 5-313(c)(1) and current § 5-323(d) make clear, primary consideration must be given to "the safety and health of the child."

402 Md. at 499-500, 937 A.2d at 190-91.

A careful examination of Rashawn reveals that, despite inclusion of the "no further inquiry" language, the Court intended only to place the parent's important rights in proper perspective, not to elevate it above the child's best interest, which is the standard infusing all elements of the typical child custody analysis. As we explained in Rashawn, while the parental rights are recognized and the statutory requirements of FL Section 5-525 must be met, the child's best interest standard trumps all other considerations. The present case simply presents an example of how the "no further inquiry" language can be misleading to trial courts and others unless understood properly, and why the new harmonizing language penned by Judge Wilner that we set forth above is a better guide for trial courts to follow.

Rashawn also shed light on how we may interpret the "no further inquiry" phrase That phrase should not be read to mean that a court may focus exclusively or even primarily, on the parent, or her interests or perspectives, in determining "exceptional circumstances" and then, finding none, fail to treat the child's best interest as transcendent. Rather, it just means that in deciding the "best interest" of the child, the court should always keep in mind the presumption that a child is better off with his parent. So, in examining all of the parent's and the child's circumstances, if the court fails to find "exceptional circumstances," then the presumption will resolve the issue. The "no further inquiry" phrase simply means that after a court does this analysis, and finds no exceptional circumstances showing that it is in the child's best interest to be in the custody of someone other than the parent, it should not then undo that decision by re-examining the child's best interest without also keeping in mind the constitutionally based parental presumption.

Likewise, in In re Karl H. and Anthony H., 394 Md. 402, 906 A.2d 898 (2006), while holding that a concurrent permanency plan calling for adoption and reunification is immediately appealable, we stated:

[T]he best interests of the child may take precedence over the parent's liberty interest in the course of a custody, visitation, or adoption dispute. A State's role in a child's care and protection should take on utmost importance, while a parent's right may not be absolute. A parent's rights may be diminished, when there is a conflict between the rights of the parents or legal guardian and those of the child, the child's best interest shall take precedence.

Id. at 402, 416, 906 A.2d at 906 (internal citations and quotation marks omitted).

Recently, in In re Adoption/Guardianship of Alonza D., we applied the teachings of Rashawn. We were asked to determine whether proof that a child has been in foster care for a lengthy time, without a finding that continuation of the parental relationship would be detrimental to the child, would amount to exceptional circumstances. In re Adoption/Guardianship of Alonza D., 412 Md. 442, 460, 987 A.2d 536, 547 (2010). "Underscor[ing] that the children's welfare continues to be of paramount concern," id. at 464, 987 A.2d at 549, we held that "passage of time" alone "is not sufficient to constitute exceptional circumstances," id. at 463, 987 A.2d at 548. 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 parental relationship detrimental to the best interest of the child. See id.

Examination of these cases, spanning 33 years of Maryland jurisprudence on the topic, reveals that despite occasional rhetoric suggesting otherwise, the child's best interest has always been the transcendent standard in adoption, third-party custody cases, and TPR proceedings. Mindful of this precept, we now turn to the trial court's rulings on the specific facts of this case.

We do not address today the appropriate standard in third-party visitation cases.

Applying The Best Interest Standard

Ta'Niya argues that the juvenile court erred in denying DSS's petition for termination of Ms. L.'s parental rights because the court failed "to apply previous case law and the statutory factors to determine whether exceptional circumstances existed." Ta'Niya attributes this failure on the juvenile court's part to the court's misinterpretation of this Court's holding in Rashawn, as shifting the best interest consideration from the child to the parents. Ta'Niya contends that such an interpretation was erroneous because, in deciding Rashawn, this Court noted that "[it] did not regard this Opinion as changing any substantive law." (Quoting Rashawn, 402 Md. at 505 n. 12, 937 A.2d at 194 n. 12). Ms. L. counters by arguing that the juvenile court correctly understood Rashawn. According to Ms. L., the court properly did not find exceptional circumstances because, as the court stated, "although it wasn't a great performance by the mother, she did much of what she was asked for. Not timely, not well-documented, but what she didn't do I don't think rises to the level of extraordinary circumstances that would justify termination."

In order to assess Ta'Niya's contention that the juvenile court misinterpreted our holding in Rashawn, prompting it to erroneously focus on the parent's circumstances rather than the child's best interest, we must examine the record. First, we see the juvenile court's ruling and the discussion with counsel that preceded it, during which the juvenile court repeated three times that " Rashawn changed the landscape." Next, during DSS's closing argument, the court observed that in Rashawn, "[t]he Court of Appeals made new law. . . . They took something and they made a new requirement and it overcomes all the past." Then, during DSS's closing argument, the juvenile court explained, "[t]he Court of Appeals has changed it now from how it looks to the child to what should happen regarding the parents. . . . It's gone from best interest of the child to best interest of the parents." (Emphasis added). Still later, when DSS attempted to point out that Rashawn did not change the fact that the child's best interest was "still the governing standard," the court disagreed, "[o]h yes it did, I think it did. It changed it from the focus on the best interest, although they refer to that, it really is about a new requirement."

Although the Court of Special Appeals concluded that "notwithstanding [the juvenile court's judge's] colorful description of the holding in Rashawn, he remained focused on the appropriate legal standard and considered the relevant statutory factors," we do not think the record supports such a conclusion. By its own admission, the juvenile court "[went] through [FL Section 5-323] D [sic] considerations very quickly," almost as an afterthought, following its finding that there were no exceptional circumstances, and apparently giving little, if any, weight to the FL Section 5-323(d)(4) factors that address termination of parental rights from the point of view of the child's circumstances.

In its finding that there were no exceptional circumstances that would make continuation of parental relationship detrimental to Ta'Niya, the court focused on Ms. L.'s circumstances, not Ta'Niya's best interest. For instance, at the very beginning of its bench opinion, the court observed that "overall, although it wasn't a great performance by the mother, she did much of what she was asked for. Not timely, not well-documented, but what she didn't do I don't think rises to the level of extraordinary circumstances that would justify termination." Later, the court reiterated, "[t]his mother is not ready, I don't know if she'll ever be ready, but [either] she has not proved herself and [DSS] hasn't proved her to be [] unfit or [the] failure for lack of timely performance do[es] not amount to exceptional circumstances that justify termination of parental rights."

In contrast, the court did not address Ta'Niya's emotional ties or lack thereof toward Ms. L. or her half-sibling, Jamiara, under FL Section 5-323(d)(4)(i), or Ta'Niya's feelings about the severance of her relationship with Ms. L. under FL Section 5-323(d)(4)(iii). With respect to the likely impact the termination of Ms. L.'s parental rights would have on Ta'Niya under FL § 5-323(d)(4)(iv), the court found that "it would be very upsetting going from where she is now to some place else. I mean, she is in a good circumstance[,]" but noted that " Rashawn would almost ask us to ignore that." The court did, however, under FL Section 5-323(d)(4)(ii), find that Ta'Niya was "[v]ery good with the foster parents," "very good in the community, the home, the placement, and the school since she's been with [the foster parents]."

The court declined to interview Ta'Niya in camera, explaining that interviews of young children tend to produce unreliable testimony and cause children unnecessary trauma. We do not profess an opinion as to whether this was an abuse of discretion, except to say that the judge did exercise his discretion. Despite his admittedly strong opposition to interviewing children because of the potentially adverse effects, the judge did not embrace an absolute prohibition against such interviews: "[Interviewing] may work in some situations and when I find that situation I will do it. But I'm so concerned about hurting a child just to have . . . something that might influence my decision. . . . So I will decline the request."

Further evidence that Ms. L.'s interests, as opposed to Ta'Niya's best interest, played the primary role in the juvenile court's determination that no exceptional circumstances existed is the court's apparent belief that a finding of exceptional circumstances is not unique to a particular child. The court was so troubled by the fact that DSS sought to terminate Ms. L.'s parental rights with respect to Ta'Niya after it had returned Jamiara to her, that it could not see how there could be exceptional circumstances with respect to Ta'Niya. The court expressed this belief, saying "there's only one mother and you want to label her as unfit, you want to say that all of the factors that are in [FL Section] 5-323, if they are looked upon as supporting exceptional circumstances, then it's the same with respect to Ja'Mira [sic] as it is with respect to Ta'Niya[.]" The court elaborated further, "[i]f the mother is unfit or if exceptional circumstances exist which would justify terminating the parental relationship between her and Ta'Niya, I just cannot see that being consistent, or the placement of Ja'Mira being consistent with granting the Petition to Terminate Parental Rights with respect to a sibling."

Such a characterization of the exceptional circumstances analysis is incorrect as it does not take into account circumstances particular to an individual child. A court may reach different conclusions under FL Section 5-323(d) regarding different children of the same parent. Indeed, as the facts of this case demonstrate, a parent may, for example, have regular and frequent contact with one child, but not the other, and have varying degrees of success in completion of different service agreements with respect to each child. Also, depending on the age at which the children of one parent were placed in foster care, the length of time they spent in foster care, and the frequency of contact with the natural parent, one child may have maintained or formed an attachment to the natural parent, while the other child has not.

The Circuit Court's approach fails to treat the child's best interest as the transcendent standard, perhaps because of the "no further inquiry" language from Ross and McDermott. The observations and findings by the juvenile court convince us that the court did not just give Rashawn a "colorful description," as the Court of Special Appeals found, but that it applied the wrong standard.

The trial court, of course, did not have the benefit of this opinion in its interpretation of the cases which caused it to conclude that the child's best interest could be trumped by parental rights that were in direct and irreconcilable conflict with the child's best interest.

As we instructed in Rashawn, the factors under FL Section 5-323(d) serve both as the basis for a court's finding (1) whether there are exceptional circumstances that would make a continued parental relationship detrimental to the child's best interest, and (2) whether termination of parental rights is in the child's best interest. Id. at 499, 937 A.2d at 190. Since one cannot make a determination of whether there are exceptional circumstances that would overcome the presumption of parental rights and make continuation of parental rights detrimental to the child's best interest without looking into the child's best interest, the ultimate focus of the juvenile court's inquiry must be on the child's best interest.

Conclusion

Because the juvenile court applied an incorrect standard in deciding whether to terminate Ms. L's parental rights, we vacate its judgment and remand this case for further proceedings in accordance with this opinion. On remand, the parties should be given an opportunity to present additional evidence on the current status of Ms. L. and Ta'Niya.

JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO VACATE THE JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AND REMAND THE CASE TO THE CIRCUIT COURT FOR PROCEEDINGS IN ACCORDANCE WITH THIS OPINION. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT.

HARRELL and MURPHY, JJ., concur.

Judge GREENE joins in judgment only.