In re: M.H.

In re M.H.
No. 1267, September Term 2020
Opinion by Ripken, J.
Family Law – Children in Need of Assistance – Evidence at Adjudication
Pursuant to Courts and Judicial Proceedings § 3-817(b), when there is a contested
adjudicatory hearing the department of social services is required to submit evidence, in
compliance with the Maryland Rules, to support the allegations in the Petition.
Circuit Court for Cecil County
Case No. C-07-FM-20-000074
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1267
September Term, 2020
______________________________________
IN RE: M.H.
______________________________________
Kehoe,
Friedman,
Ripken,
JJ.
______________________________________
Opinion by Ripken, J.
______________________________________
Filed: July 29, 2021
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2021-07-29 13:19-04:00
Suzanne C. Johnson, Clerk
This case is before us from the Circuit Court for Cecil County, sitting as the juvenile
court, where minor child M.H. was determined to be a Child in Need of Assistance
(“CINA”) after contested adjudication and disposition hearings.1 On appeal, M.H., Jr.
(“Father”) raises four issues. First, he contends that the court erred in failing to grant his
motion to dismiss the CINA Petition (“the Petition”) for failure to comply with Courts &
Judicial Proceedings (“CJP”) § 3-811 (2013 Repl. Vol.). Second, Father contends that the
court’s findings of fact at adjudication were clearly erroneous. Third, Father contends that
the court erred in finding M.H. a CINA at adjudication. Last, Father contends the court’s
disposition order was clearly erroneous. For the reasons discussed below, we shall vacate
the court’s adjudication and disposition order in its entirety and remand for further
proceedings in accordance with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
On June 5, 2020, E.D.C. (“Mother”) made a statement to police that Father burned
M.H., their 2-year-old child, with a cigarette and that Mother and Father were using
methamphetamines in the presence of M.H. As a result of Mother’s statement, the Elkton
Police Department obtained and executed a search warrant on the family residence. The
police requested a case worker with the Department of Social Services for Cecil County
(“the Department”) be present at the home to ensure M.H.’s welfare. Brittany Lester
(“Lester”), a social worker for the Department, subsequently arrived at the residence. At
1
A CINA is 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.” CJP § 3-801(f).
that point, Father had been arrested and taken into custody and was no longer at
the residence.
Lester observed that the home was “in disarray” and “posed many safety hazards”
within reach of toddler M.H. There were snap rat traps, which close at a high velocity when
triggered, on the floors and tables throughout the home. A large hunting knife was in an
open drawer. Numerous pill and alcohol bottles, food waste, and trash were scattered across
the floor of the home and in the bedroom where Mother, Father, and M.H. slept. In the
bedroom there was an inflatable mattress propped against the wall, which Lester posited
was laid down on top of the debris at night for the family to sleep. Lester transported M.H.
to the Elkton police station and met there with Mother and Father. M.H. was placed in
shelter care through the Department the same night, and the Department filed an
Emergency Shelter Care Report (“the Report”) with the Circuit Court for Cecil County on
June 10, 2020, as a result of which M.H. remained in shelter care.
In the Report, Lester, on behalf of the Department, articulated several reasons that
M.H. should remain in shelter care rather than return to Mother and Father’s physical
custody. These allegations included drug use in the presence of 2-year-old M.H., domestic
violence in the home, Mother and Father’s inability or unwillingness to protect M.H. from
present dangers, and that there was no substitute caretaker to ensure M.H.’s safety. The
Report recounted Lester’s observations from her June 5 visit to the home, as well as details
from Mother’s interview at the police station.2 According to the Report, Mother stated she
2
The Report is ambiguous as to the date of the police interview, the identity of the
interviewer, and whether anyone else was present.
2
had an active protective order in place against Father, which gave her full custody of M.H.
Despite the protective order, Mother permitted Father to stay in the family residence.
The Report further recounted Mother’s recollection of the early morning hours of
June 5, 2020. Mother was in the living room while Father was in the kitchen lighting a
cigarette from the stovetop. She then heard M.H. “scream loudly and cry” from the
bedroom. When Mother looked in the bedroom, she saw M.H. and Father on the air
mattress under the covers. Mother observed a circular burn on M.H.’s knee with a ring of
ash around it. Father informed Mother that M.H. was jumping on the mattress, resulting in
the accidental burn. Mother placed ointment and a bandage on the wound. Mother also
reported that there had been “multiple incidents” of Father hitting M.H. hard on the arms,
thighs, and buttocks.
Mother further stated she had a history of drug use, she and Father regularly used
drugs together, and Father would get angry if she did not use drugs. Mother alleged that
Father had over one gram of cocaine in the home in addition to methamphetamines. Mother
previously requested that Father move the drugs to another location because they were
accessible to M.H., but Father responded “shut the f*** up.” Mother alleged that Father
did not permit her to clean the home and that there were frequent verbal altercations
between herself and Father, which sometimes escalated to Father throwing objects at her
and accidentally hitting M.H. instead.
The Report indicated that Lester attempted to develop a safety plan with Mother to
identify an alternate relative caretaker, but Lester was unable to contact paternal or
maternal relatives. As there were several cases involving Mother and Father in various
3
counties related to domestic violence, substance abuse, and child abuse and neglect, the
Department recommended shelter care as the best means of protecting M.H. from
immediate danger.
On June 10, 2020, the same day the Report was filed in the circuit court, the
Department filed a CINA petition alleging that M.H. was a CINA. The Petition identified
Mother and Father as M.H.’s natural parents, provided the parents’ addresses, and indicated
M.H. was taken from his parents’ custody before entering shelter care. Under the “facts in
support of this Petition” section, the Department wrote the facts “are as contained in the
Shelter Care Report which is incorporated in this Petition, and which demonstrate that:
Intervention by this Court is necessary to protect the child[.]” In addition to the CINA
Petition, the Department filed a Petition for Continued Shelter Care.
On June 23, 2020, the court held a hearing on the Department’s request for
continued shelter care of M.H. The court granted continued shelter care of M.H. pending
the adjudicatory hearing on the CINA Petition. The court found the “Department attempted
to identify possible relative resources” but was unsuccessful; therefore, M.H. was placed
in the custody of the Department rather than with a relative. The court appointed M.H. an
attorney to advocate for his best interests.
After several postponements at Father’s request, the court held an adjudicatory
hearing on October 6, 2020. At the beginning of the hearing, the Department gave a brief
summary of the case, updating the court that Mother had passed away since the last hearing
due to an apparent overdose. The Department stated it would “submit on the report.” Father
made an oral motion to dismiss, alleging the Petition lacked “clear and simple language”
4
articulating the facts in support of the allegations of abuse, abandonment, disability, or
neglect, as required by CJP § 3-811(a)(1). Father argued the incorporation of the
Emergency Shelter Care Report into the Petition did not provide sufficient information
about the allegations that M.H. was a CINA. Furthermore, Father observed that the
Department had four months to amend the Petition to provide sufficient facts yet failed to
do so. Father also argued the Report contained inadmissible hearsay and its admission into
evidence during the adjudicatory hearing would violate the rules of evidence.3
In response to the motion, the Department stated the following:
As far as the point that this should be dismissed, counsel’s not the first person
to question the practice in Cecil County of using the court report. Over the
last twenty years that I’ve been doing this, it’s come up maybe two or three
times. It’s a practice that Cecil County has been doing for at least thirty years,
maybe more, and I mean I feel that it’s an acceptable way to handle these
cases. Maybe sometime in the future everybody will sit down and decide that
we need to do it a different way. But, you know, right now—and I didn’t
make this up, I inherited this approach to CINA cases. . . .
***
[B]ut I hear counsel, I mean I’ve read the statute too, and you can argue that,
you know, the petition has to be a numbered list of specific items. It’s just
one of those local practices that has been ongoing for decades and I don’t
think we need to answer that today cause [sic] it sounds to me like we’re all
in a position where we can almost agree on what the court needs to do.
The court agreed, and it stated that the Department’s approach comported with the
longstanding practice in Cecil County CINA cases.
3
At least one subsequent report regarding M.H.’s status in shelter care was filed on August
13, 2020, with the court. Because this report is not referenced by any of the parties, was
not marked as an exhibit as required by Md. Rule 2-516, and was not admitted into
evidence, we will not consider it in our analysis.
5
The focal point of the hearing was M.H.’s placement in foster care rather than
placement with relatives. Father alleged that M.H. should have been placed with one of his
relatives, as the statute prioritizes relatives over foster care. Father identified at least two
relatives who were available to take custody of M.H., including one who had done so in
the past. The Department indicated they had trouble contacting the relatives to begin the
screening process. The parties agreed that the adjudicatory hearing should be reconvened
in two weeks to provide the relatives with sufficient time to undergo the screening process.
The court did not explicitly rule on Father’s motion to dismiss.
On October 20, 2020, the court reconvened the adjudicatory hearing. The
Department opened by providing a brief overview of the case and commented “it’s clear
we have a CINA case” because one parent, Mother, is deceased and the other parent,
Father, is “not able to care for M.H. at this time.” Counsel for M.H. then provided facts
that it contended to be in support of the position the Department articulated, including:
There was a social worker (undecipherable) enforcement observed the
conditions in the home. The Department had worked with the family in the
past, and unsuccessfully apparently, because it reached this point where the
child needed to be placed in foster care. [M.H.] does have considerable
delays. He has been evaluated by Mount Washington and he has fine motor
skill, gross motor skill, speech, multiple delays, a whole laundry list of
delays, your Honor. So he does need services. He was evaluated by Infants
and Toddlers, in fact initially and then he was evaluated at Mount
Washington. But, your Honor, clearly he does need services.
Neither counsel for M.H. nor the Department moved to admit any evidence or call any
witnesses to support this proffer. In response, Father re-emphasized that most of the
Report, which the Department submitted as its case-in-chief, contained inadmissible
hearsay. Furthermore, he pointed out that the Department’s failure to call witnesses at the
6
adjudicatory hearing meant that no evidence—beyond the unadmitted Report—was
provided in support of its Petition. In addition, Father stated the Report alone was
insufficient to establish that M.H. was a CINA. Father referenced dismissal once again, to
which counsel for M.H. stated dismissal would not be in M.H.’s best interests. The
Department again stated it would “submit on the report” and asserted that the Report was
admissible under the public records exception to the hearsay rule. The Department further
argued that Mother’s allegations in the Report were admissible under the unavailable
witness exception to the hearsay rule. The Department opposed Father’s request for
dismissal. Neither the Report nor any other evidence was ever moved or admitted into
evidence, nor was any witness testimony taken at the adjudicatory hearing.
The court began to make factual findings, although initially it made incorrect
findings based on another child’s CINA file. Counsel for M.H. alerted the court to its
mistake and proffered additional facts not previously discussed at the hearing and not
mentioned in the Report, such as that M.H. arrived at his foster home with lice. The court
promptly acknowledged and corrected its error. Upon Father’s inquiry, the court then
clarified that it had moved from adjudication to disposition. The court then found M.H. to
be a CINA and stated as follows:
[T]he court makes the finding that based on the conditions in the house, the
lice, Mom’s drug use, injuries that were examined at A.I. Dupont Hospital,
based on all of that the court finds that he’s a child in need of assistance and
I advocate for the least restrictive placement, I concur with [counsel for
M.H.] on that. A relative placement appears to be the least restrictive at this
time and that’s what the court suggests. Is there anything else that needs to
be on the record?
7
All parties stated nothing else needed to be placed on the record. On October 22, 2020, the
court issued the Adjudication and Disposition Order. In the adjudication section of the
Order, the court found:
[T]hat the allegations in the Child in Need of Assistance (CINA) petition
have been proven by a preponderance of the evidence, and that the following
facts as alleged in the petition were sustained: (1): [M.H.] was removed after
the mother went to the Elkton Police Station, and reported that the father had
burned the child with a cigarette. Upon arriving at the residence, Department
workers observed numerous dangerous conditions in the home. Several rat
traps were placed where the child could easily come in contact with them.
Trash and remnants of old food were scattered on the floor throughout the
home. Numerous beer cans and liquor bottles were easily in reach of the
child, and several pill bottles were strewn around the floor. (2): The mother
reported that she and the father have been using cocaine and
methamphetamines in front of the child, and that the substances were kept
within reach of the child. (3): The mother passed away from a drug overdose
on or about August 20, 2020. (4): The father was arrested on charges related
to the report of a burn on the child. However, after the mother passed away,
these charges were dismissed. (5): The father has entered an in-patient drug
rehabilitation facility, and is not currently in a position to be able to directly
care for the child[].
In the disposition section, the court further found M.H. had been neglected in that
his “[p]arents were abusing cocaine and methamphetamines in the presence of the child,
and the substances were kept in the open within easy reach of the child,” and the “[h]ome
conditions were unsafe for the child.” The court found neither Mother, who was deceased,
nor Father, who was in a drug treatment program, were able to care for the child. The court
ordered Father to participate in drug and alcohol, psychological, parenting, and domestic
violence evaluations. This timely appeal followed. Additional facts will be provided below.
ISSUES PRESENTED FOR REVIEW
On appeal, Father asks us to review the following questions:
I. Did the juvenile court err in failing to dismiss the Department’s CINA petition?
8
II. Were the juvenile court’s findings of fact clearly erroneous?
III. Did the juvenile court err in finding M.H. CINA at adjudication?
IV. Was the juvenile court’s disposition order erroneous?
For the reasons discussed below, as to the first issue, we hold that the juvenile court did
not err in denying Father’s motion to dismiss the Petition prior to adjudication. As to the
second issue, we hold that the juvenile court’s findings of fact were clearly erroneous;
therefore, we vacate the court’s Adjudication and Disposition Hearing Order. We remand
with instructions to the court to hold new adjudicatory and disposition hearings consistent
with the requirements discussed herein. Our decision as to the second issue renders
consideration of the third and fourth issues unnecessary.
CINA OVERVIEW
Prior to delving into the issues presented, we offer a brief overview of the CINA
procedural requirements and process. The broad purpose of the CINA statute is to ensure
that “juvenile courts (and local departments of social services) exercise authority to protect
and advance a child’s best interests when court intervention is required.”4 In re Najasha
4
Pursuant to CJP § 3-802(a), the purposes of the CINA statute are:
(1) To provide for the care, protection, safety, and mental and physical
development of any child coming within the provisions of this subtitle;
(2) To provide for a program of services and treatment consistent with the
child’s best interests and the promotion of the public interest;
(3) To conserve and strengthen the child’s family ties and to separate a child
from the child’s parents only when necessary for the child’s welfare;
(4) To hold parents of children found to be in need of assistance responsible
for remedying the circumstances that required the court’s intervention;
(5) Except as otherwise provided by law, to hold the local department
responsible for providing services to assist the parents with remedying the
circumstances that required the court’s intervention;
9
B., 409 Md. 20, 33 (2009) (citing CJP §§ 3-801(f); 3-802). The CINA statute sets forth
detailed requirements for a CINA petition and the types of hearings required at each stage
of the proceedings. Pursuant to CJP § 3-809(a):
On receipt of a complaint from a person or agency having knowledge of facts
which may cause a child to be subject to the jurisdiction of the court . . . , the
local department shall file a petition . . . if it concludes that the court has
jurisdiction over the matter and that the filing of a petition is in the best
interests of the child.[5]
(6) If necessary to remove a child from the child’s home, to secure for the
child custody, care, and discipline as nearly as possible equivalent to that
which the child’s parents should have given;
(7) To achieve a timely, permanent placement for the child consistent with
the child’s best interests; and
(8) To provide judicial procedures for carrying out the provisions of this
subtitle.
[5]
Md. Rule 11-103 provides further requirements on the detail of a juvenile petition.
Subsection (a) outlines the contents required:
(2) Contents. The petition shall state: (a) The respondent’s name, address and
date of birth. If the respondent is a child, it shall also state the name and
address of his parent. (b) Allegations providing a basis for the court’s
assuming jurisdiction over the respondent (e.g., that the respondent child is
delinquent, in need of supervision, or in need of assistance; that the
respondent adult violated Section 3-831 of the Courts Article; that the action
arises under the Interstate Compact on Juveniles; or that the action arises
under the compulsory public school attendance laws of this State). (c) The
facts, in clear and simple language, on which the allegations are based. If the
commission of one or more delinquent acts or crimes is alleged, the petition
shall specify the laws allegedly violated by the respondent. (d) The name of
each witness to be subpoenaed in support of the petition. (e) Whether the
respondent is in detention or shelter care; and if so, whether his parent has
been notified and the date such detention or shelter care commenced.
10
A CINA petition under this subtitle shall, among other requirements, “allege that a
child is in need of assistance and shall set forth in clear and simple language the facts
supporting that allegation.” CJP § 3-811(a). The facts in the petition must support an
allegation that the child “(1) 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.”
CJP §§ 3-801(f), 3-817(c); In re Nathaniel A., 160 Md. App. 581, 595 (2005).
After a CINA petition is filed, the court shall hold an adjudicatory hearing to
determine the veracity of the allegations within the petition. CJP § 3-817(a). Adjudicatory
hearings can be uncontested, meaning the facts in the petition are stipulated by the parties,
or contested, meaning the facts are in dispute. See In re Blessen H., 392 Md. 684, 698
(2006). In a contested adjudicatory hearing, the Department must present evidence
sufficient to prove the petition’s allegations by a preponderance of the evidence. CJP
§ 3-817(c). The rules of evidence apply. CJP § 3-817(b).
If the court determines that the allegations in the Petition are sustained by a
preponderance of the evidence, the case moves to the disposition stage to determine
whether the child is a CINA. CJP § 3-819(a). The rules of evidence do not strictly apply at
the disposition hearing. Md. Rule 11-115(b); In re Ashley E., 158 Md. App. 144, 159
(2004), aff’d, 387 Md. 260 (2005) (explaining the court may decline to strictly apply the
rules of evidence at disposition hearings when in the interest of justice). If the court
determines the child to be a CINA based on evidence in the record, the court shall consider
the appropriate custody placement for the child. CJP § 3-819(b)(1)(iii). “Unless good cause
11
is shown, a court shall give priority to the child’s relatives over nonrelatives when
committing the child to the custody of an individual other than a parent.” CJP
§ 3-819(b)(3). After disposition, a permanency hearing is held to evaluate the parents’
progress towards reunification or to pursue adoption. CJP § 3-823(b)(1).
While CINA hearings require flexibility based on the individual circumstances of
the child, parents, or caretaker, this does not mean the statutorily required procedures are
optional. Before we begin to review the particular issues raised on appeal in this case, we
observe one common phenomenon throughout these proceedings: informality. The lack of
formality in CINA cases, but particularly in this case, is the crux of the issue. As we will
further discuss below, adhering to statutory requirements, both procedural and substantive,
is critical when the safety of the child and the fundamental rights of parents are at issue.
DISCUSSION
In discussing the procedure for CINA cases in Cecil County, the circuit court stated
that if the practices adopted by the trial courts in that jurisdiction were incorrect, the Court
of Special Appeals would indicate as much. We now write to clarify that the informal
practice of “submitting on the report” at the adjudicative stage indeed falls below the
statutory standards for CINA proceedings.
There are three distinct but interrelated standards to our review of CINA
proceedings. In re Yve S., 373 Md. 551, 586 (2003). First, “[w]e review legal questions
without deference, and if the lower court erred, further proceedings are ordinarily required
unless the error is harmless.” In re Adoption/Guardianship of H.W., 460 Md. 201, 214
(2018) (citing In re Adoption of Ta’Niya C., 471 Md. 90, 100 (2010)). Second, we review
12
the juvenile court’s finding of fact for clear error. Md. Rule 8-131(c); In re Yve S., 373 Md.
at 586. “A finding of a trial court is not clearly erroneous if there is competent or material
evidence in the record to support the court’s conclusion.” Lemley v. Lemley, 109 Md. App.
620, 628 (1996). Finally, we review the court’s ultimate decision for abuse of discretion.
In re Yve S., 373 Md. at 585–86.
I. THE CINA PETITION WAS MINIMALLY SUFFICIENT, THEREFORE THE JUVENILE
COURT DID NOT ERR IN DENYING FATHER’S MOTION TO DISMISS PRIOR TO
ADJUDICATION.6
Father first contends that the juvenile court erred by denying his motion to dismiss
the CINA Petition for failing to meet the requirements of CJP § 3-811. Specifically, he
argues that the Petition did not set forth facts supporting the Department’s allegations in
“clear and simple language.” Father further argues the Petition failed to meet due process
standards of notice as to the nature of the proceedings, the basis of the allegations that M.H.
is a CINA, and the requirement that witnesses be listed. The Department first contends that
this issue was not properly preserved for appeal, given the court never ruled on Father’s
motion to dismiss, or alternatively, that Father abandoned the motion by agreeing to
continued shelter care and postponement of the adjudicatory hearing. In the event the issue
is preserved, the Department argues that the Petition, which incorporated the Report,
contained sufficient information to give notice to Father to prepare for the hearings. We
6
While the juvenile court did not explicitly deny Father’s motion to dismiss, for the
purposes of this opinion, we shall treat the court’s decision to move forward with both the
adjudication and disposition hearings as a denial of the motion.
13
first review whether the issue was properly preserved for appeal, then address the parties’
substantive arguments.
A. Preservation of the Issue on Appeal
“[T]he right to appeal may be lost by acquiescence in, or recognition of, the validity
of the decision below from which the appeal is taken or by otherwise taking a position
which is inconsistent with the right of appeal.” In re Nicole B., 410 Md. 33, 64 (2009)
(quoting Osztreicher v. Juanteguy, 338 Md. 528, 534 (1995)). In Nicole B., a father
contested the trial court’s closure of a CINA case as being in violation of the Indian Child
Welfare Act (“ICWA”). Id. at 59–60. The Court of Appeals evaluated whether the father
waived his right to appeal because he conceded during the permanency hearing that he was
not fit to take custody of the children. Id. at 64–65. The Court held that the father had not
acquiesced to the closure of the CINA case despite his concession regarding custody
because a question remained regarding the CINA statute’s prioritized placement with the
children’s tribe, which was distinct from his ability to care for the children.7 Id.Similar to Nicole B., Father did not acquiesce to the trial court’s denial of his motion
to dismiss, and he may pursue his claims on appeal. Father’s oral motion initially occurred
on October 6, 2020, during the first day of the adjudicatory hearing when the shelter care
order was still in effect, meaning M.H. was not in Father’s physical custody at the time and
M.H. was not yet determined to be a CINA. Rather than ruling on the motion, the court
7
The Court noted that, had the issue on appeal been about custody, the father’s concession
at the permanency planning hearing would have meant the issue was one in which he
acquiesced. In re Nicole B., 410 Md. at 64.
14
asked Father whether he would agree to continued shelter care while the Department
investigated potential relative placement. Father’s agreement to a continuance to allow the
Department to evaluate potential relative placements—something already required when
initiating CINA proceedings under CJP § 3-815(c)(5)—was not a contrary position to his
motion to dismiss. As in Nicole B., Father’s agreement to the child’s continued shelter care
before the court reconvened the adjudicatory hearing two weeks later did not preclude or
undermine a ruling on Father’s motion to dismiss. In addition, although he did not formally
renew his motion, Father continued to argue for dismissal of the Petition at the October 20
hearing and the Department and counsel for M.H. responded to this argument, further
supporting the conclusion that Father did not abandon his claim. We conclude this issue is
properly preserved for review.
B. The Circuit Court Did Not Err in Denying Father’s Motion to Dismiss.
CJP § 3-811(a) requires that a CINA petition include “clear and simple language”
upon which the allegation is based. The purpose of the statute, as articulated in CJP
§ 3-802, is to ensure the child’s best interests. See In re Najasha B., 409 Md. at 33 (“The
broad policy of the CINA Subtitle is to ensure that juvenile courts (and local departments
of social services) exercise authority to protect and advance the child’s best interests when
court intervention is required.”). As to what “clear and simple language” means, In re Gault
elucidates the requirements of a petition’s elements to satisfy due process. 387 U.S. 1, 33–
34 (1967). While Gault was a juvenile delinquency case, the Court held that regardless of
whether a case is civil or criminal, a petition must set forth the alleged misconduct with
particularity so as to give adequate notice for the respondent to prepare a defense. Id. at 33.
15
A juvenile petition’s particularity can be evaluated by determining whether the who, what,
when, and where of the allegation is provided. See id. at 33–34; In re Roneika S., 173 Md.
App. 577, 593 (2007).
Father alleges the Petition, which simply incorporated the Report by reference, is
insufficient to meet the requirement of “clear and simple language.” In support of this
argument, Father argues the Report is full of conclusory statements without support. For
example, the Report alleges “the caregivers suspected or observed drug/alcohol use places
2-year-old, [M.H.], in immediate danger,” but, Father argues, the facts to support this
conclusion are not presented. In addition, the Report included statements collected from
Mother at the police station and what appears to be the social worker’s observations and
impressions, without clear delineation between the two. Finally, there was no witness list
provided to Father, as required pursuant to Md. Rule 11-103(d).
We agree that the Petition had certain deficiencies, the failure to contain a witness
list as well as the failure to follow the format prescribed by CJP § 3-811 and Md. Rule
11-103. We balance these deficiencies and the related motion to dismiss prior to
adjudication against the overall purpose of the CINA statute.8 Father was provided with
minimally sufficient information on the who, what, when, and where regarding the
8
In addition, the Court of Appeals has stated that when a department seeks dismissal of a
CINA petition prior to adjudication and the child objects, the trial court shall proceed with
the CINA case and hold an adjudicatory hearing on the merits to ensure the child is
“receiving proper care and attention.” In re Najasha B., 409 Md. 20, 34 (2009); see also In
re Blessen H., 392 Md. at 694 (explaining the Court has interpreted the parens patriae
doctrine to mean that “the best interest of the child may take precedence over the parent’s
liberty interest in the course of a custody, visitation, or adoption dispute. . . .”) (quoting
Boswell v. Boswell, 352 Md. 204, 218–19 (1998)).
16
allegations to provide notice to prepare for his defense. To be sure, the Petition identified
Mother and Father as M.H.’s natural parents, provided the parents’ addresses, referenced
the Report—which included details about the cigarette burn, the unkept condition of the
home and the hazards throughout it, the parents’ consistent drug use in the presence of
M.H., indicated M.H. was taken from his parents’ custody before entering shelter care, and
identified Lester as the author. Although no witness list was provided, the Report included
the names of all potential witnesses and no witnesses were called during the hearings. With
this information, Father had minimally sufficient details to prepare for the
CINA proceedings.
We hold that the court did not err in denying Father’s motion to dismiss prior to
adjudication. To be clear, the Department’s incorporation of the emergency shelter care
report to satisfy the requirement of “clear and simple language” upon which the allegations
are based is not the best practice for drafting CINA petitions, and may very well lead to
deficient CINA petitions in the future. Nevertheless, we conclude the Petition before us
was minimally sufficient to inform Father of the who, what, when, and where regarding the
allegations in the Petition sufficient to prepare for his defense.
II. THE JUVENILE COURT’S FINDINGS OF FACT AT ADJUDICATION WERE CLEARLY
ERRONEOUS.
Next, Father contends that the Report is inadmissible hearsay; therefore, the court’s
findings of fact at adjudication, which were solely based on the Report, were clearly
erroneous. Father further contends that the court’s sustained factual findings in the Order
were clearly erroneous because the Report was not admitted into evidence. Finally, Father
17
argues there were facts in the court’s Order that were not included in the Report, further
supporting a clearly erroneous holding. In response, the Department contends that the
admissibility of the Report is not preserved for review. The Department also contends that,
even if the issue is preserved, the Report is admissible because it qualifies under the public
records exception to the hearsay rule. As we explain below, we hold that the court’s
findings of fact at the contested adjudicatory hearing were clearly erroneous because they
were based solely on proffers from counsel and the unadmitted Report.
A. Preservation of the Issue on Appeal
Ordinarily, we will only decide an issue that “plainly appears by the record to have
been raised in or decided by the trial court.” Md. Rule 8-131(a). However, we may “decide
such an issue if necessary or desirable to guide the trial court or to avoid the expense and
delay of another appeal.” Id. Our review of the record reveals that Father’s references to
the Report containing “inadmissible hearsay” during the adjudicatory hearing sufficiently
demonstrate his objection to the court’s reliance on the Report. Regardless, the
Department’s failure to present evidence at adjudication because “the practice in Cecil
County” is to “submit on the Report,” indicates to us that guidance on the evidentiary
requirements at adjudication is necessary.
B. The Burden of Proof During an Adjudicative Hearing
Pursuant to CJP § 3-817(c): “The allegations in a petition under this subtitle shall
be proved by a preponderance of the evidence.” At the adjudicatory hearing, the Maryland
Rules apply despite the informality of the hearing. CJP § 3-817(b); In re Rachel T., 77 Md.
18App. 20, 31 (1988). Therefore, the Department must prove, by a preponderance of the
evidence, that the allegations in the petition are true. Md. Rule 11-114 (c), (e)(3).
Parties must present evidence, in compliance with the rules of evidence, in order for
the court to make factual findings at an adjudicative hearing. CJP § 3-817(b). Certain
evidence is prohibited during the adjudicative hearing. For example, under CJP § 3-816,
any professional reports ordered by the court to examine the child, the child’s family, or
the child’s environment are not admissible during the adjudicative hearing, but such reports
may be admitted at the disposition stage. Any evidence that is relevant is generally
admissible unless otherwise stated by the rules of evidence. Md. Rule 5-402. Hearsay is an
out of court statement offered for the truth of the matter asserted, and it is inadmissible
unless it falls under an enumerated exception. Md. Rules 5-801, 5-802. One such exception,
under Maryland Rule 5-803(b)(8)(A), exists for reports prepared by a public agency
pursuant to a “duty imposed by law, as to which matters there was a duty to report.”
C. Admissibility of Documentary Evidence During Various Stages of CINA
At the outset, we offer a brief overview of previous decisions addressing the
admissibility of certain documentary evidence during CINA proceedings. In Priscilla B.,
we reviewed a circuit court’s consideration of prior CINA proceedings during a new CINA
proceeding. In re Priscilla B., 214 Md. App. 600, 627 (2013). In that case, a father appealed
the circuit court’s finding that his child was a CINA and argued that the evidence presented
at adjudication indicating there were prior CINA proceedings was inadmissible. Id. at 629.
We noted that the information regarding the prior proceedings properly came in from a
department employee’s “testimony, her notes (admitted as Exhibit 1), and the testimony of
19
[the child’s mother] and [g]randmother,” rendering it admissible. Id. We held that the court
did not err in considering the prior CINA proceedings. Id.In H.R., the children were determined to be CINAs at disposition after an
uncontested adjudicatory hearing, in which the father stipulated to the facts in the CINA
petition. In re H.R., 238 Md. App. 374, 382 (2018). At the permanency planning hearing,
counsel for the department of social services moved its status reports into evidence to
support its position that adoption by a nonrelative and termination of parental rights were
in the best interests of the minor children, to which the father objected, alleging the reports
constituted inadmissible hearsay. Id. at 402–03. The trial court found that the status reports
were required by law pursuant to CJP § 3-826(a)(1) and COMAR 07.02.11.20 and were
therefore admissible under the public records exception.9 Id. at 406. The father appealed
the order terminating his parental rights, arguing the status reports were inadmissible
hearsay because they were prepared in anticipation of litigation and should not have been
admitted into evidence. Id. This Court held that the trial court did not err in admitting the
reports into evidence when the department was under a statutory obligation to provide the
court with status updates. Id. The reports were presumptively admissible under the public
records exception to the rule against hearsay. Id. at 406. In addition, the father failed to
9
Reports Prior to Hearings; Custodian Progress Reports, CJP § 3-826(a): “Unless the
court directs otherwise, a local department shall provide all parties with a written report at
least 10 days before any scheduled disposition, permanency planning, or review hearing
under § 3-819 or § 3-823 of this subtitle.” Permanency Planning Hearings, COMAR
07.02.11.20: “At least 10 days before the permanency planning hearing, the local
department shall: . . . [p]repare a written report setting forth the local department’s
recommendations . . . .”
20
rebut this presumption by demonstrating the reports lacked trustworthiness given they
comprised “factual recitations about routine matters, such as the children’s academic
progress, their medical appointments, the dates and times of contacts between the
department and the parents, and referrals made for the parents and the children.” Id. at 406–
07. Finally, we held that the opinions of the department worker contained in the reports
“were cumulative of the opinion testimony” given by three department employees, who
were subject to cross-examination. Id. at 407.
In Nathaniel A., we reviewed whether the department’s submission of a prior CINA
proceeding transcript as evidence during an adjudicatory hearing was permissible. In re
Nathaniel A., 160 Md. App. at 597. During the prior CINA proceedings, the facts
underlying the CINA proceedings were identical to those underlying the present
adjudicatory hearing, and the mother was a represented party and had the opportunity to
defend herself on cross-examination. Id. at 598. Additionally, “the prior transcripts
pertained to judicial findings deciding the allegations by the same circuit court; the
transcripts were identified, moved into evidence, and made a part of the record; and the
circuit court independently analyzed the evidence before it and made its own conclusion.”
Id. Based on these circumstances, we held that the reports were admissible, and the court
was not clearly erroneous in relying on the reports to find sufficient evidence that the minor
child was a CINA. Id. at 601.
In Priscilla B., the department called witnesses to testify about the allegations in the
CINA petition during adjudication, and through them moved department notes and reports
into evidence. In re Priscilla B., 214 Md. App. at 629. In Nathaniel A., the department
21
submitted into evidence transcripts from prior CINA proceedings, which included
testimony and cross-examination from the same parties as the second proceeding, as
evidence at adjudication. In re Nathaniel A., 160 Md. App. at 598. Although no evidence
was presented in the adjudicatory hearing in H.R., that hearing was uncontested and the
parties stipulated to the facts, therefore no formal presentation of evidence was necessary.
In re H.R., 238 Md. App. at 382. As these cases demonstrate, despite the informality of
adjudicatory hearings, a broad range of evidence is admissible under the Maryland Rules
when submitted into evidence. Unlike all of these cases, no evidence or testimony was
offered at any point during the contested adjudicatory hearing in the case before us.
D. The Circuit Court’s Findings of Fact Are Clearly Erroneous.
The circuit court’s finding that the Department proved the Petition’s allegations by
a preponderance of the evidence and the specific findings in the Order are clearly erroneous
because they are not supported by competent evidence. Here, no evidence was presented
and no witnesses were called during the contested adjudicatory hearing.
In the October 6 adjudicatory hearing, the Department began by stating it would
“submit on the report.” In support of the Department’s approach, Counsel for
M.H. stated:
[H]istorically our court and our jurisdiction has utilized the petition, as well
as the court report and the social workers being available for testimony to
support the facts in the petition. Certainly the social worker is available to
testify to the home where [M.H.] was removed from and I understand that
[Father] is no longer there.
While Lester may have been available to testify regarding the conditions of the home when
M.H. was removed, no such testimony was ever provided. The Report, which was the
22
substance of the allegations in the Petition, was also not admitted into evidence. In short,
the Department did not offer, and the court did not admit, any evidence to support the
allegations in the Petition.
In fact, the “evidence” at adjudication was more akin to a proffer. In Damien F., we
reviewed the sufficiency of proffers at a shelter care hearing when the material aspects of
the allegations were in dispute. In re Damien F., 182 Md. App. 546, 584 (2008). The trial
court accepted only proffers and refused to hear testimony during an emergency shelter
hearing. Id. at 553–54. In reversing, this Court emphatically stated that “unless the disputed
allegation is probatively [sic] inconsequential to a determination . . . the court must receive
testimony as to the material, disputed allegations and a denial of the request to produce
witnesses, in that instance, is an abuse of discretion.” Id. at 584. While the juvenile court
in the instant case did not affirmatively refuse to hear testimony or accept evidence, this
case is nonetheless analogous to Damien F. because the court accepted contested proffered
information and found that the allegations in the Petition were substantiated at adjudication
despite a lack of evidence.
The practice of “submitting on the report” in a contested adjudication is flatly
contrary to the CINA statute. Section 3-817(b) states that the rules of evidence apply at
adjudicatory hearings and the Department has the burden of proving the allegations in a
petition by a preponderance of the evidence. CJP § 3-817 requires the Department to
submit evidence in support of the Petition. Reliance on this purported practice, tradition,
23
or custom in Cecil County CINA cases10 is also foreclosed by Md. Rule 1-102, which
plainly states that there shall be no circuit and local rules.11 The Report cannot be used to
both state the allegations in the Petition and as evidence to substantiate the allegations in
the Petition. The Petition may not prove itself in an adjudicatory hearing. To hold otherwise
would undermine the primary purpose of the adjudicatory hearing: the court ascertaining
whether the allegations in the CINA petition are substantiated. To be clear, the Department
may no longer prove its case in a contested hearing by submitting on shelter care reports.
We hold that the court’s factual findings in the contested adjudicatory hearing, which were
based solely on the unadmitted Report and proffers by the parties, are clearly erroneous.
E. Remand Is the Appropriate Remedy in This Case.
Father also argues that dismissal is the proper remedy for the Department’s failure
to offer evidence. We disagree. “[T]he special purpose of Maryland’s juvenile statutes is
not ordinarily best served by dismissal of the proceedings and . . . dismissal is not proper
absent ‘extraordinary and egregious circumstances.’” In re Keith G., 325 Md. 538, 545
(1992) (quoting In re Keith W., 310 Md. 99, 109 (1986)). Our decision as to disposition is
guided by the totality of the circumstances and the purpose of the CINA Statute. Keith W.,
10
In re J.R., a CINA case from Cecil County in which the Department offered testimony
to substantiate a CINA petition, indicates this practice may not be as common as the
Department and counsel for M.H. suggested at the hearing. 246 Md. App. 707, 728 (2020).
11
Limited exceptions to Md. Rule 1-102 are as follows: “Unless inconsistent with these
rules, circuit and local rules regulating (1) court libraries, (2) memorial proceedings, (3)
auditors, (4) compensation of trustees in judicial sales, and (5) appointment of bail bond
commissioners and licensing and regulation of bail bondsmen, are not repealed.” Md. Rule
1-102.
24
310 Md. at 109. Father contends the Department’s failure to present evidence at
adjudication warrants dismissal, and he relies on two criminal cases and one bond surety
case in support of this assertion.12 While the juvenile court’s adjudicative order was clearly
erroneous given the Department did not present evidence at adjudication, we look to the
totality of the circumstances and the purpose of the CINA statute. The Report, which was
incorporated into the Petition, alleged in part that 2-year-old M.H. was burned by a
cigarette, was in an extremely unkept home, and was in the presence of Mother and Father
while they used drugs. The primary purpose of CINA proceedings is to “provide for the
care, protection, safety, and mental and physical development of any child coming within
the provisions of this subtitle.” CJP § 3-802(a)(1). In light of M.H.’s circumstances and the
purpose of the CINA statute, we remand for further proceedings in accordance with this
opinion. See In re Michael G., 107 Md. App. 257, 268–69 (1995) (remanding a CINA case
for additional proceedings when the minor child’s statements were improperly admitted
at adjudication).
On remand, the juvenile court is instructed as follows. The custody arrangement for
M.H. in place at the time of the issuance of the mandate shall be maintained while the
juvenile court conducts hearings in accordance with this opinion. Pursuant to CJP § 3-817,
12
See Denisyuk v. State, 422 Md. 462, 487 (2011) (explaining that a court’s factual finding,
which relied on a defendant’s representation of his state of mind when entering into a plea
deal, was not clearly erroneous); Allegheny Mut. Casualty Co. v. State, 35 Md. App. 55, 60
(1977) (explaining a bond surety was not entitled to remand when the record was
“completely devoid” of evidence supporting the surety’s burden); Pyle v. State, 34 Md.
App. 60, 60 (1976) (reversing and remanding a criminal case for dismissal of charges when
a defendant’s right to a speedy trial was violated).
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the court shall promptly hold an adjudicatory hearing to determine whether the allegations
in the CINA Petition are proven by a preponderance of the evidence. If the allegations in
the Petition are disputed, a contested adjudicatory hearing will ensue. The Department must
present evidence in support of the Petition. The evidence shall comply with the Maryland
Rules on Evidence as required by CJP § 3-817(b). If the Department does not meet its
burden of proof, the Petition shall be dismissed. If the Department satisfies its burden, the
court shall then hold a disposition hearing pursuant to CJP § 3-819 to determine whether
the facts, as adduced during the adjudicatory hearing, establish that M.H. is a CINA. A new
adjudication and disposition order shall be entered after these hearings, along with a
permanency plan.
JUDGMENTS OF THE CIRCUIT COURT
FOR CECIL COUNTY VACATED AND
REMANDED FOR FURTHER
PROCEEDINGS IN ACCORDANCE WITH
THIS OPINION. COSTS TO BE PAID BY
APPELLEE.
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