In Re W.Y.

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2726
September Term, 2014
_________________________
IN RE: W.Y.
_________________________
Berger,
Nazarian,
Zarnoch, Robert A.,
(Retired, Specially Assigned),
JJ.
_________________________
Opinion by Nazarian, J.
_________________________
Filed: July 26, 2016
Section 5-607 of the Family Law Article (“FL”) of the Maryland Code allows a
court to order an out-of-state placement for a child who has been adjudicated delinquent so
long as the child is given a hearing with notice to his parent or guardian and, after that
hearing, the juvenile court makes specific findings. W.Y. (“W”) was a juvenile (he’s now
over 18) who pled involved to his most recent set of charges and was adjudicated
delinquent. Using a form order edited by hand, the Circuit Court for Prince George’s
County ordered W placed in a facility in Pennsylvania; he contends on appeal that the
process and findings underlying the placement decision failed to comply with FL § 5-607.
In the time since the court entered its order, W completed the out-of-state program, and we
agree with both parties that the case is moot. Nevertheless, there are no reported Maryland
appellate opinions to guide the juvenile courts in their application of this statute, and
because the issues are important and likely to evade review, we find this an appropriate
case to exercise our discretion to address the merits of W’s contentions.
I. BACKGROUND
W has a long history with the juvenile justice system. He was first adjudicated
delinquent on March 13, 2012, also by the Circuit Court for Prince George’s County, after
pleading involved to a count of robbery. While wearing a black ski mask and wielding
what the victim believed to be a handgun (later found to be a BB gun), W demanded the
victim’s book bag and laptop. The victim recognized W from prior encounters, and even
called W by name during the robbery. When police officers stopped him shortly after the
incident, W admitted to the robbery and consented to a search of his home, during which
the victim’s property was recovered. The court, sitting as a juvenile court, committed W
to the Department of Juvenile Services (“DJS”) and recommended a Level B placement,
which in Prince George’s County meant a staff-secured, non-community residential
facility.1 DJS placed W at the Victor Cullen Center2 in Sabillasville, Frederick County,
Maryland, where he remained from May 2, 2012 until he was successfully discharged on
October 17, 2012. Upon discharge, the juvenile court rescinded the commitment order and
placed W on probation.
W was arrested again in the early hours of May 26, 2014. Police found W sitting
on the steps of a townhome in Landover, Maryland, and approached him because he
matched the description of the suspect in a nearby robbery. As they neared, W stood up,
drew a .38 caliber handgun (containing three live rounds) from the waistband of his pants,
1
Level B and level A placements are non-community residential facilities, with level B
being staff-secure and level A hardware-secure.
2
At the time of W’s first disposition, Victor Cullen only provided level B services; by the
time W was adjudicated delinquent in the case before us, Victor Cullen offered both level
B and level A facilities. In fact, Victor Cullen is the only level A facility for boys in
Maryland. See http://www.oag.state.md.us/JJMU/reports/15_Quarter2.pdf;
http://www.djs.maryland.gov/victor-cullen.asp.
2
threw the gun to the ground, and began to walk away. When questioned by the officers,
W said the weapon was his, but “[he] wasn’t going to do anything with it” and further
stated that he had no knowledge of or involvement in the robbery. He was indicted as an
adult, but his case was waived to the juvenile court. W again admitted to his actions, and
again pled involved, this time to possession of a regulated firearm by a person under age
21. The court also found W in violation of his probation.
The court held a hearing3 on October 20, 2014 to review W’s detention status; W
was present with his attorney. The judge told W’s attorney to “let [W] know he may not
be going home.” W then interjected: “And I’m getting a lot better, out of the prison.” The
court turned its attention to the attorneys to schedule a hearing for the following month,
then adjourned.
At an adjudicatory hearing on November 18, 2014, the court accepted W’s plea of
involved, and asked him to explain his actions:
THE COURT: Okay. Young man, why did you do this?
[W]: It was an honest mistake, Your Honor. I
really shouldn’t have done this.
THE COURT: Okay. So, why did you do this?
[W]: There is no explanation for why I did it.
3
Many hearings were scheduled between May and October. Most of these were short
hearings to address W’s needs for the period between his arrest and DJS placement, such
as establishing GPS monitoring, placing him in a community support program, and
confirming his detention status. The rest of the hearings were postponed, bringing us to
October 20.
3
THE COURT: Okay. So, why did you do it?
[W]: I just—I made an honest mistake. I tell
you the reason why I did it would be an
excuse . . . and there is no excuse for that.
THE COURT: So, why did you do it?
[W]: I was being a bonehead.
THE COURT: Pardon me?
[W]: I was being a knucklehead, thinking that I
could get away with things I can’t get
away with.
THE COURT: Well, so why did you do it? You already
had a robbery with a deadly weapon
charge . . . . Now you [have] possession
of a gun. Another one.
[THE STATE]: There was not a gun in the prior—
[W]: I understand, Sir. I understand what I
done. I apologize for—
THE COURT: No, I am just asking why did you do it.
Because you are going to – you went to a
placement, didn’t you?
[W]: Yes, Sir.
THE COURT: How can I release you back into the
community?
* * *
THE COURT: No, let me stop you. I just asked—
because if you don’t change your lifestyle
in what you are doing, you will end up
4
dead out here. . . . Or you going to end up
killing somebody. . . . [L]ast time I asked
you the same thing, why you walking
around with a ski mask in the middle of
the summer . . . with a deadly weapon. I
am just saying—you got to change.
Would I give you a break and put you
back in the community—
[W]: If I could say one thing on my behalf is
that this charge and that I went to
[detention] and understand that I could
have faced even wors[e] charges and time
for it.
I[‘m] really mature, and my age and I
know that it’s time to stop playing games
and do something with my life or I’m
going to throw it away. And I really don’t
- - I’m not ready for my life - - I got
dreams and goals and things that I need to
do. And with the support from my family
that - - I can’t keep doing this.
The judge then scheduled a December hearing with counsel and ordered W’s detention in
the interim.
W’s disposition hearing—the purpose of which was to determine W’s level of
placement, i.e., whether he should remain in a level B facility or move to level A—took
place on December 11, 2014. After an inaudible bench conversation, the State and W’s
attorney agreed that W should maintain his level B placement, while DJS requested a level
A commitment. The judge questioned W about the incident, again emphasizing the
similarities between his two arrests:
5
THE COURT: I am asking him a question because when
is he going to learn his lesson.
[W]: I mean I can’t make you believe me but—
I honestly feel like that the lesson I
learned when I was up in [detention]
facing that—
THE COURT: Wait, whoa, whoa, wait, how long were
you gone the other time?
* * *
[W]: Eight months.
THE COURT: And you didn’t learn you lesson then?
[W]: I did. I just—I am telling you—I made a
mistake, I—
THE COURT: No, no, no. It is not a mistake when you .
. . put a gun in your hand. That’s not a
mistake.
[W]: It wasn’t a mistake, it was more of a
defense. But I should have went about it
differently than what I did. And I can’t
really take it back now, I mean.
THE COURT: So, what am I supposed to do with - - the
mistakes that you keep making?
[W]: I accept any consequences, Sir.
(Inaudible) on behalf of the mistakes that
I know that (Inaudible).
THE COURT: You have any—the problem is you are
putting yourself in harm’s way.
[W]: Exactly.
6
THE COURT: I am not asking for a response. I am
just—this is ridiculous.
[W]: I am ashamed of myself, too, Sir.
THE COURT: Madam Clerk, the Court will in fact
commit [W] to Level A. I agree, you got
to stop this, young man. You are going to
wind up getting yourself killed out here.
* * *
And since he has already been at Victor
[Cullen Center] he is not going back to
Victor [Cullen Center].
* * *
[THE STATE]: Your Honor, can we have a review
[hearing] for placement, it is just today—
I am sorry, I just realized that—
THE COURT: No problem. You got [January 13, 2015].
After the hearing, the court issued a written Disposition Order, dated December 11,
2015, which ordered that W “be and hereby is placed in Level A . . . .” The Order consisted
of a template that stated the three classification levels for placement facilities—level A, B,
and C—into which the judge inserted an additional limitation (which we have italicized):
A – Secured Facility – [W] is not be placed at Victor Cullen
because he was placed there in 2012.
**Equivalent facilities for the juvenile are not available in the
State of Maryland; and institutional care in the other
jurisdiction is in the best interest of the juvenile and will not
produce undue hardship.**
7
At the follow-up hearing on January 13, 2015, in a broken and mostly inaudible
transcript, the court confirmed that DJS had not yet placed W, and the case was continued
until January 20, 2015. On January 16, W filed a Motion to Modify Court Order and
Request for a Hearing pursuant to Md. Rule 11-116, asking the court to strike the language
italicized above from the Disposition Order. In this sixteen-page Motion, W asked the
court to place him at the Victor Cullen Center, disputed the findings in the juvenile judge’s
Disposition Order, and asked to be heard regarding his placement. We will discuss the
facts and arguments set forth in this Motion in greater detail in the Discussion.
At the January 20 hearing, counsel for W obtained a continuance to provide the
juvenile judge an opportunity to review the January 16 motion. After agreeing on a hearing
date, counsel for the State initiated another broken and inaudible—yet seemingly
important—conversation regarding W’s placement:
[THE STATE]: Your Honor, may I ask a quick question.
It is about, [W] is likely to be placed at
Mid-Atlantic prior to that, would he need
to appear for [the next] hearing or if he
can—
THE COURT: If he is placed, no.
[THE STATE]: So, no.
THE COURT: Counsel, would you approach?
(Whereupon, a Bench Conference [begins].)
THE COURT: Well, frankly I (Inaudible) placement.
Anything?
8
MS.4: (Inaudible)
THE COURT: I know.
MS.: (Inaudible)
THE COURT: Yes. I will probably rule on it some time
this week.
MS.: Okay.
THE COURT: Yes. And that (Inaudible) do whatever
they want to do?
[THE STATE]: (Inaudible)
THE COURT: Okay.
[THE STATE]: (Inaudible)
MS.: (Inaudible)
THE COURT]: No, (Inaudible). Somebody, it looked like
it was filed late Friday, yes. Okay. Thank
you.
MS.: (Inaudible)
THE COURT: Yes.
(Whereupon, the Bench Conference was concluded.)
THE COURT: I am going to have it sent to Chambers
today, [counsel].
4
There is no name for the inaudible speaker in the transcript; it appears here just as it does
in the record. The only females present (according to the record) at this hearing were W’s
co-counsel. Both of his attorneys spoke on the record and are referred to earlier in the
transcript by name. We suspect that one of W’s attorneys was inquiring as to the status of
his Motion to Modify Court Order and Request for a Hearing, which was filed on a Friday.
9
[COUNSEL FOR W]: Thank you.
(Whereupon, the hearing was concluded.)
At the conclusion of this January 20 hearing: (1) W had yet to be placed; (2) the juvenile
judge had not reviewed W’s Motion, nor addressed the requested hearing; (3) the parties
agreed to return on February 2, 2015; and (4) the State indicated that W would be placed
prior to the hearing.
On January 28, 2015, W was placed by DJS at the Mid-Atlantic Youth Service’s
Secure Male Program (“MAYS”) in Pittston Township, Pennsylvania. Two days later, the
juvenile judge ruled on W’s Motion to Modify Court Order and Request for a Hearing.
When W filed the Motion on January 16, he had included a proposed order; the judge used
the proposed order as a template, but modified it by crossing out portions shown below in
a blue pen:
Having reviewed Respondent’s Motion to Modify Court Order
and Request For A Hearing and that Motion having merit,
Respondent’s Motion is hereby GRANTED. The following
language shall be stricken from this Court’s [Disposition
Order]: “Respondent not to be placed in Victor Cullen.”
AND
The following language shall be stricken from this Court’s
[Disposition Order]: “Equivalent facilities for the juvenile are
not available in the State of Maryland; and institutional care in
10
other jurisdiction is in the best interest of the juvenile and will
not produce undue hardship.”
OR
A hearing on Respondent’s Motion shall occur at 9:00 in the
morning on the ___ day of ______, 201__.
The court signed the area indicated by the gray circle and at the bottom of the page, then
dated the order January 30, 2015; it was entered on the docket on February 5, 2015.
As directed, the parties reconvened on February 2. By this point, W was in
Pennsylvania, but his counsel was present. After the State disclosed that W had been
placed at MAYS, the court reset the case for October 15, 2015 for a permanency hearing.
W filed a timely notice of appeal.5 Then, on October 7, 2015, the court rescinded the
December 11, 2014 commitment order and placed W on probation, with conditions, and
ordered him released on electronic monitoring.
II. DISCUSSION
W does not dispute the finding of delinquency. Instead, he challenges his out-of-
state placement, and specifically whether the disposition proceedings complied with FL
5
In his Notice of Appeal, W refers to the January 30 Order as granting in part and denying
in part the January 16 Motion. In his brief, W interprets the blue pen marks as denying his
requests to strike the language regarding the availability of equivalent facilities in
Maryland and to schedule a hearing, but granting his first request, i.e., to strike the
limitation on placement at the Victor Cullen Center. W takes the position that the partial
denial creates a final, appealable order, and the State does not contest this interpretation.
11
§ 5-607 and afforded him due process before the court placed him out of state.6 First, W
argues that he was denied due process because the court failed to notify him or his parents
that it was contemplating an out-of-state placement, and thus denied him and his parents a
meaningful opportunity to be heard on whether the contemplated placement was in his best
interest or would pose an undue hardship on his family. Second, W claims that the juvenile
court ignored the requirements of FL § 5-607 when it did not hear evidence or consider
any facts before concluding that there was no equivalent facility in Maryland, that the
MAYS placement was in his best interest, and that sending him to MAYS would not cause
any undue hardship for his family.
In reviewing the circuit court’s decision in a juvenile delinquency matter, “[w]e
review any conclusions of law de novo, but apply the clearly erroneous standard to findings
of fact.” In re Elrich S., 416 Md. 15, 30 (2010). A decision regarding disposition is
6
W phrased his Questions Presented as follows:
1. Did the juvenile court violate Family Law Article § 5-607
and due process of law by failing to notify [W.Y.] and his
parents that it was considering authorizing out-of-state
placement and to give them a meaningful opportunity to be
heard before finding in its December 11, 2014 disposition
order that “[e]quivalent facilities for the juvenile are not
available in the State of Maryland; and institutional care in
the other jurisdiction is in the best interest of the juvenile
and will not produce undue hardship”?
2. Were the juvenile court’s findings regarding out-of-state
placement premature, unsupported by the record, and
clearly erroneous?
12
committed to the discretion of the trial judge and will be reversed only if there has been an
abuse of discretion. In re Hamill, 10 Md. App. 586, 592 (1970). An abuse of discretion
occurs “‘where no reasonable person would take the view adopted by the [trial] court,’ or
when the court acts ‘without reference to any guiding rules or principles.’” Pickett v. State,
222 Md. App. 322, 331 (2015) (quoting Nash v. State, 439 Md. 53, 67 (2014)).
A. This Appeal Is Moot.
Initially, though, we have to confront the ongoing justiciability of the case in light
of the fact that the order from which W appeals is no longer in force. The State filed its
brief in this Court on October 13, 2015, six days after the circuit court rescinded the
commitment order, and argues that this development mooted W’s appeal. W acknowledges
that the appeal is moot, but urges us to “address the merits of the issues raised because they
are unresolved issues of important public concern on which guidance would be helpful,”
and because the error he asserts “is not merely capable of repetition; it has been repeated
in numerous cases.”
Courts decide live disputes, and we normally should decline to address the merits
of a moot case. Lloyd v. Bd. of Sup’rs of Elections of Balt. Cty., 206 Md. 36, 41 (1954)
(citations omitted). “A case is moot when there is no longer an existing controversy
between the parties at the time it is before the court so that the court cannot provide an
effective remedy.” Coburn v. Coburn, 342 Md. 244, 250 (1996). And that is the case here:
the juvenile court’s partial denial of W’s motion to modify that Order was effectively
granted at the time of rescission, so there is no relief for us to grant him.
13
In rare instances, however, courts can decide to address the merits of a moot case
when the issues concern matters of great importance, the public interest will be affected,
or there is a likelihood that the wrongdoing will soon be repeated if not immediately
resolved. Lloyd, 206 Md. at 42-43 (requiring a “concurrence in sufficient weight of the[se]
factors which together add up to the exception”). And this is such a case.
First, this case raises matters of great public importance. “This Court . . . may
address the merits of a moot case if we are convinced that the case presents unresolved
issues in matters of important public concern that, if decided, will establish a rule for future
conduct.” Coburn, 342 Md. at 250 (citing State v. Peterson, 315 Md. 73, 82-83 (1989)).
Section 5-607 involves critical due process and liberty interests for juvenile defendants and
their families. Although the language of FL § 5-607 seems straightforward, no Maryland
appellate court has interpreted or applied it. And the allegations underlying this case—that
the mandatory findings required by FL § 5-607 are being inserted verbatim into form orders
and juveniles placed out-of-state without the required findings—are serious. W argues that
“the effect of these boilerplate findings is that they pave the way for DJS to place a child
out-of-state, even though the issue was never raised in the hearing.” If true, such a practice
raises due process concerns that deserve appellate attention.
Second, this issue is likely to recur, but will escape appellate review due to the
limited duration of most juvenile commitments and the continuing jurisdiction of the
juvenile court to modify or rescind commitment orders. Secure residential treatment
programs, including the programs at Victor Cullen Center and MAYS, typically last six to
14
nine months. See DJS: VICTOR CULLEN CENTER, www.djs.maryland.gov/victor-
cullen.asp; MAYS: SECURE RESIDENTIAL TREATMENT,
www.midatlanticyouth.com/programs/residential.shtml. We agree with W that “[b]etween
the time it takes for the record to be compiled and transmitted, the time involved in briefing
and argument, and the time necessary for the Court to generate its opinion and mandate,
the appellate process will often last longer than the juvenile commitment.” We have, in
fact, seen this issue present itself repeatedly in recent months, and we are persuaded it is
worthy of a reported appellate opinion.7
B. The Juvenile Court Abused Its Discretion By Limiting The
Commitment Beyond The Type Of Facility.
W does not challenge his level A placement, a decision grounded in and supported
by the evidence and testimony the court considered during the December 11, 2014 hearing.
Both W and the State accepted a level B commitment, but DJS pressed for a level A
commitment, not least because W had previously completed a level B commitment at
Victor Cullen for eight months. The court gave W an opportunity to speak about the
incident underlying these charges and his prior commitment, and concluded that W had
7
At the time the briefs were filed, at least three other such cases were pending in this Court:
In re Alante B., Sept. Term 2014, No. 2724 (decided December 15, 2015); In re James W.,
Sept. Term 2014, No. 1278 (disposition pending as of this publication); In re Malik L.,
Sept. Term 2014, No. 1500 (decided September 1, 2015); In re Shane M., Sept. Term 2014,
No. 2414 (decided September 2, 2015).
15
been insufficiently rehabilitated after eight months in a level B commitment at Victor
Cullen and should be sent to a level A facility.
That’s fine as far as it went. But accompanying the level A indication on the
Disposition Order was a direction that W was “not to be placed at Victor Cullen because
he was placed there in 2012.” Relying on In re Demetrius J., 321 Md. 468 (1991), W
argues that the juvenile court “exceeded its authority and interfered with a prerogative of
DJS when it prohibited placing [him] at the Victor Cullen facility.” The State does not
address this contention. We agree with W that the juvenile court abused its discretion by
limiting the commitment beyond the type of facility.
Pursuant to the Juvenile Cases subtitle of the Courts and Judicial Proceedings
Article (“CJP”), a juvenile court may place a child on probation, under supervision in his
own home, or in custody or care outside of his home “upon terms the court deems
appropriate . . . .” Md. Code (1974, 2013 Repl. Vol., 2015 Supp.), § 3-8A-19(d)(1)(i) of
the CJP Article. If committing the child to custody or guardianship outside of his own
home, the court may assign the child to DJS, the Department of Health and Mental Hygiene
(“DHMH”), or an agency “to meet the priorities set forth in CJP § 3-8A-02[8] of this
8
These priorities are set forth in CJP § 3-8A-02:
(a) The purposes of this subtitle are:
(1) To ensure that the Juvenile Justice System balances the
following objectives for children who have committed
delinquent acts:
16
subtitle, including designation of the type of facility[ 9 ] where the child is to be
accommodated . . . .” Id., (d)(1)(ii). But the precise scope of the juvenile court’s authority
under this subtitle has received little appellate attention.
(i) Public safety and the protection of the
community;
(ii) Accountability of the child to the victim and the
community for offenses committed; and
(iii) Competency and character development
to assist children in becoming responsible and
productive members of society;
(2) To hold parents of children found to be delinquent
responsible for the child’s behavior and accountable to the
victim and the community;
(3) To hold parents of children found to be delinquent or in
need of supervision responsible, where possible, for remedying
the circumstances that required the court’s intervention;
(4) To provide for the care, protection, and wholesome
mental and physical development of children coming within
the provisions of this subtitle; and to provide for a program of
treatment, training, and rehabilitation consistent with the
child’s best interests and the protection of the public interest;
(5) To conserve and strengthen the child’s family ties and
to separate a child from his parents only when necessary for his
welfare or in the interest of public safety;
(6) If necessary to remove a child from his home, to secure
for him custody, care, and discipline as nearly as possible
equivalent to that which should have been given by his parents;
(7) To provide to children in State care and custody:
(i) A safe, humane, and caring environment; and
(ii) Access to required services; and
(8) To provide judicial procedures for carrying out the
provisions of this subtitle.
9
The “type of facility” refers to its level of security. Although the labels vary by county
(e.g., levels I, II, II or levels A, B, C), DJS defines hardware-secure, staff-secure, and
community detention as the three most restrictive types of out-of-home commitments:
17
In the consolidated appeal of In re Demetrius J., 321 Md. 468 (1991), a juvenile
court committed three delinquent juveniles to DJS, and further directed that they be placed
at a specific private Pennsylvania facility. At the bottom of each disposition order was a
handwritten command: “Respondent to be placed at the Glen Mills School.” Id. at 477. In
the lead case, the court was expressly aware that it did not have the authority to direct
Hardware Secure Facility: A facility that relies primarily on
the use of construction and hardware such as locks, bars, and
fences to restrict freedom.
Staff Secure Facility: Programs where a youth’s movement is
controlled by staff supervision rather than by restrictive
architectural features.
Community Detention (CD): The supervision and guidance
of juveniles under court ordered placement to the DJS
Community Detention Program. DJS ensures youth
compliance with the terms and conditions of community
detention through supervision, field visits, surveillance, and
electronic monitoring.
The State has at least one facility available within each classification type. For
example, Victor Cullen Center is the only state-operated hardware-secure facility for
males. Males sent to hardware-secure facilities are usually repeat and/or violent offenders.
There are at least five State-operated staff-secure facilities that house non-violent or non-
chronic offenders. Secure facilities also feature addiction programs, behavioral programs,
and group homes with schools on-site. Community detention encompasses many less
restrictive community-based placements, including foster care, group homes, and
independent living programs. DJS: RESIDENTIAL AND COMMUNITY-BASED SERVICES GAP
ANALYSIS, http://www.djs.state.md.us/docs/2013_GAP%20analysis.pdf; DJS: DATA
RESOURCE GUIDE FY 2012,
http://www.djs.maryland.gov/drg/DRG_2012_Whole_book_with_Pullouts_updated_reci
divism_data.pdf.
18
placement in a specific facility. Id. at 480. Nevertheless, the court reasoned that it was not
actually directing DJS to place the juveniles in that particular facility, but rather named that
facility as an example of the “type of facility” where DJS was to place the juvenile:
[I]t’s always been my understanding as a juvenile judge and as
the administrative judge of this court that I had the authority to
designate the type of institution that a juvenile was to be
committed to and the statute confirmed that and that’s all I have
done here. By using the key words, Glen Mills, I have
designated a bundle of characteristics of an institution, which I
felt, after everyone agreed, had the appropriate characteristics
for Demetrius, for his well-being, his best interest, for society’s
best interest, for Juvenile Services’ best interest.
Id.DJS noted that “[t]he court, however, neither described nor made any findings of
fact as to this ‘bundle of characteristics.’” Id. And after analyzing the text of the statute
and the legislative intent, the Court of Appeals concluded that the juvenile court lacked
authority to order placement of a committed child at a specific facility:
The question concerning the authority to designate a specific
facility resulted in a compromise reflected in the present
statute. The statute, as we have seen, permits the court to name
the type of facility but generally bestows no authority on the
court to specify a particular facility. The compromise was
encouraged in significant part by the hope that it would avoid
[separation of powers] considerations.
Id. at 476. Accordingly, the Court reversed the trial court’s order. Id. at 481. Cf. In re
Appeal No. 653, 277 Md. 212, 219 (1976), superseded by statute, CJP 3-8A-19, as
recognized in Demetrius, 321 Md. at 476 (affirming a juvenile court’s commitment to
DHMH but reversing the court’s command to place the child in a treatment facility
19
“separate from adult patients” because mandating separation was the prerogative of
DHMH); In re George G., 64 Md. App. 70, 81-82 (1985) (reversing a disposition order
that sentenced the juvenile to a “court-controlled commitment” and further specified that
the child was not to receive leave of any kind for six months); Md. DHMH v. Prince
George’s Cty. DSS, 47 Md. App. 436, 445 (1980) (reversing juvenile court’s order that
DHMH pay the cost of a child’s placement, stating that our disposition statute “empowers
the court to commit a child to the custody of DHMH; it does not confer upon the court any
right to mandate the specific terms of the commitment”).10
This separation of powers concern re-emerges in a later provision of the Juvenile
Cases subtitle that addresses the transfer of juveniles already committed to DJS:
(1) When necessary to appropriately administer the
commitment of the child, the [DJS], on approval
of the Director of Behavioral Health, may
transfer a child committed for residential
placement from one facility to another facility
that is operated, licensed, or contracted by [DJS].
(2) A facility to which a child is transferred under
paragraph (1) of this subsection shall be:
(i) Consistent with the type of facility
designated by the court under subsection
(d)(1)(ii) of this section; or
(ii) More secure than the type of facility
designated by the court under subsection
(d)(1)(ii) of this section.
10
These three latter cases spurred passage of CJP § 3-8A-19, the current disposition statute.
See Demetrius, 321 Md. at 476.
20
CJP § 3-8A-19(l)(1)-(2). Again, DJS controls the specific placement of delinquent
juveniles and the constraints on the court’s authority: the court may designate the type of
facility, but DJS handles the details. And once the court designates the type of facility, that
disposition serves as a starting point, or floor, from which DJS assumes monitoring and
control—DJS can, by statutory design, increase the restrictiveness of the child’s placement
without consulting the court.
Demetrius compels the conclusion that the juvenile court abused its discretion when
it ordered that “[W] is not to be placed at Victor Cullen because he was placed there in
2012.” We see no principled distinction between a court that designates a particular
facility—e.g., ordering a juvenile to Glen Mills School—and a court that excludes a
particular facility—e.g., precluding a juvenile from going to Victor Cullen Center. As the
Court of Appeals held in Demetrius and we restated in In re Julianna B., juvenile courts
may only designate the type of facility; the specific assignment within that type remains
the prerogative of DJS. 179 Md. App. 512, 562 (2008), vacated as moot, 407 Md. 657(2009) (citing Demetrius, 321 Md. at 475-76) (explaining that the General Assembly
intended that the particular facility in which a delinquent child may be placed is within the
exclusive discretion of DJS). The court was well within its authority to commit W to a
level A, or hardware-secure, placement, but exceeded its statutory authority in excluding
him from the Victor Cullen Center. The court is, of course, free to offer recommendations,
and the suggestion that W would be better off not returning to the site of his last placement
21
could be a sensible one. But the statute gives DJS, not the court, the ultimate authority to
place the child so long as the facility was of the same (or more restrictive) type of placement
as the judge ordered.
C. The Disposition Proceedings And Order Did Not Comply With
FL § 5-607.
FL § 5-607 is part of the Interstate Compact on the Placement of Children (“ICPC”),
which was enacted in Maryland by Chapter 266 of the Acts of 1975 and is codified now in
Md. Code (1984, 2012 Repl. Vol.), §§ 5-601 to 5-611 of the Family Law Article (“FL”).11
The ICPC is a platform for “the party states to cooperate with each other in the interstate
placement of children,” such that:
(1) Each child requiring placement shall receive the maximum
opportunity to be placed in a suitable environment and with
persons or institutions having appropriate qualifications
and facilities to provide a necessary and desirable degree
and type of care.
(2) The appropriate authorities in a state where a child is to be
placed may have full opportunity to ascertain the
circumstances of the proposed placement, thereby
promoting full compliance with applicable requirements
for the protection of the child.
(3) The proper authorities of the state from which the
placement is made may obtain the most complete
information on the basis of which to evaluate a projected
placement before it is made.
11
All fifty states, the District of Columbia, and the U.S. Virgin Islands have enacted the
ICPC. See AMERICAN PUBLIC HUMAN SERVICES ASSOCIATION, Association of
Administrators of the ICPC, http://icpc.aphsa.org/content/AAICPC/en/about.html (last
visited May 17, 2016).
22
FL § 5-602. The juvenile court’s authority to place delinquent children outside of
Maryland arises from FL § 5-601(7): “Any court having jurisdiction to place delinquent
children may place such a child in an institution of or in another state pursuant to § 5-607
of the [ICPC].” And FL § 5-607 defines the procedural safeguards and factual findings
that must be satisfied before ordering such a placement. These lie at the substantive heart
of this case.
FL § 5-607 contains a notice requirement and a findings requirement, discrete
prerequisites separated by the conjunctive “and”:
A child adjudicated delinquent may be placed in an institution
in another party jurisdiction pursuant to [the ICPC] but no such
placement shall be made unless the child is given a court
hearing on notice to the parent or guardian with opportunity
to be heard, prior to the child being sent to such other party
jurisdiction for institutional care and the court finds that:
(1) equivalent facilities for the child are not available in the
sending agency’s jurisdiction; and
(2) institutional care in the other jurisdiction is in the best
interest of the child and will not produce undue hardship.
(Emphases added.)
We review a court’s factual findings as to the § 5-607 factors for clear error, In re
Shirley B., 419 Md. at 11, 18 (2011), and “if there is any competent, material evidence to
support the factual findings below, we cannot hold those findings to be clearly erroneous.”
Cannon v. Cannon, 156 Md. App. 387, 404 (2004) (internal citations and quotations
23
omitted), aff’d 384 Md. 537 (2005). W argues that the juvenile court failed to comply both
with the notice and the findings requirements, and we agree.
The requirement that the juvenile and his parent must have notice and an
opportunity to be heard is rooted in the principle that out-of-state placements of delinquent
children “are similar to probation or parole supervision,” and thus a restriction on liberty
that cannot be imposed without due process. Sinhogar v. Parry, 412 N.Y.S.2d 966, 973
(N.Y. Sup. Ct. 1979) (in decisions separating the parent and child, “there is a legally
recognizable interest to which the due process requirement of the Constitution attaches”).
The State maintains that “[W] and his counsel and family were apprised . . . of the time of
his various adjudicatory, disposition and review hearings,” and that they “had an
opportunity to appear and be heard” at each of his proceedings. The State also refers to the
(mostly inaudible) bench conference at the January 20 hearing, and contends that no one
opposed W’s potential commitment to MAYS. But the record contains no evidence that
W or his family were notified of the potential out-of-state placement in advance of the
hearing, and the State cites no authority for the proposition that being told at the hearing
satisfies due process.
At the December 11, 2014 disposition hearing, the judge discussed with W the
reasons for his delinquent actions and asked whether he had learned his lesson. But that
was the extent of W’s communication with the court regarding his disposition. After
hearing from W, the judge ordered level A placement and announced that Victor Cullen
could not be an option, after which the State requested a subsequent hearing to discuss W’s
24
placement. The court set the review hearing for January 13, but that was continued to
January 20, and then that hearing was postponed to February 2, by which time W was at
MAYS. This left no opportunity for W or his family to be heard on this issue before the
placement occurred.
Although the judge stated in open court during the December 11 hearing that W was
committed to a level A placement other than Victor Cullen, this declaration could not serve
as notice to W and his family because that information doesn’t mean to them what it does
to the court: W’s family can’t be charged with knowing that the only in-state level A
facility is Victor Cullen. And nothing in the record prior to the December 11 hearing put
W or his family on notice that W might be sent to another state—to the contrary, at his
November 18, 2014 adjudication hearing, W signed an “Admission (Plea) Under Rule 11-
107” agreement, which stated, “I fully understand that the worst the Court can do to me is
send me to a State juvenile institution until I turn 21.” Merely apprising the family of the
hearing dates does not provide notice of the possibility that a juvenile faces an out-of-state
placement, nor does it afford the juvenile or his family an opportunity to be heard. See
Mullane v. Cent. Hanover Tr. Co., 339 U.S. 306, 313 (1950) (due process requires
adjudication “preceded by notice and opportunity for hearing appropriate to the nature of
the case”). The record in this case reflects that neither W nor his family was given an
opportunity to address his exclusion from Victor Cullen or the appropriateness of the
intended out-of-state placement because he was placed at MAYS before the scheduled
hearing, and this lack of notice failed to comply with FL § 5-607.
25
From there, the commitment decision itself suffers from a lack of evidence bearing
on the issues one way or the other. The commitment hearing addressed only W’s
delinquent act, and the commitment order consists of a form list that includes the statutory
language for Type A, B, and C commitments and inserts only language designating Level
A. The record contains nothing relating to the presence or absence of equivalent facilities,
W’s best interests, or the potential hardship to him or his family from an out-of-state
placement.
We are not saying that an out-of-state placement in this case was per se improper,
nor are we saying that Victor Cullen Center was the best placement for W, nor are we
saying that MAYS was an inappropriate placement—the record contains no facts or
testimony to support any of these possible conclusions. Nor are we saying that courts
cannot use form orders to streamline the process of documenting its decisions. We are
saying, however, that a juvenile court must establish an affirmative factual record that
supports the FL § 5-607 findings that justify an out-of-state placement for the particular
juvenile, and that the court’s order, however generated, must reflect those findings.
APPEAL DISMISSED. COSTS
TO BE PAID BY APPELLEE.
26