In re Alijah Q.

7 A.3d 106

195 Md.App. 491

In re ALIJAH Q.

No. 2634, Sept. Term, 2009.

Court of Special Appeals of Maryland.

Oct. 27, 2010.

Nenutzka C. Villamar (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.

Hilma J. Munson (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: HOLLANDER, WRIGHT and IRMA S. RAKER (Retired, specially assigned), JJ.

HOLLANDER, J.

In December 2008, the Prince George's County Department of Social Services (the "Department" or "DSS"), appellee, alleged that Alijah Q., appellee, the son of Lisa Q., appellant, and Antoine A.,¹ was a Child in Need of Assistance ("CINA"). Following a hearing in February 2009, Alijah was declared a CINA, and placed in the care and custody of his father. After a review hearing in May 2009, the juvenile master recommended that Alijah remain in Mr. A.'s care, with supervised visitation granted to appellant, and that the court terminate its jurisdiction. Unhappy with that recommendation, appellant noted her exceptions. The Circuit Court for Prince George's County held a de novo exceptions hearing on October 23, 2009, and overruled Ms. Q.'s exceptions on December 23, 2009.

This appeal followed. Appellant presents two questions, which we quote:

I. Did the court err in discharging the mother's counsel [at the exceptions hearing] without first obtaining a valid waiver of her right to counsel?

II. Did the court err in denying the mother custody and unsupervised visitation?

For the reasons set forth below, we shall vacate and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Alijah was born on December 14, 2007. On December 17, 2008, DSS filed a CINA petition alleging, inter alia, that Ms. Q. had a history of drug use; that Alijah was born exposed to drugs; that Ms. Q. had been absent from the family home; and that both parents had exposed Alijah to domestic violence.

At a preliminary proceeding on January 14, 2009, both parents were advised of their rights, including the right to counsel. Both requested legal representation by the Office of the Public Defender. In preparation for a CINA hearing on February 10, 2009, DSS submitted a report dated February 3, 2009. It alleged, inter alia, that Ms. Q. had not yet entered an inpatient treatment program; ² that Ms. Q. admittedto smoking crack cocaine on Christmas Day; that domestic violence between Ms. Q. and Mr. A. continued to be a problem; that Ms. Q. "reported that if Mr. [A.] obtains care and custody of Alijah, then she would leave Alijah"; and that she "threatened the Agency ... stating that if the Agency does not intervene with the ongoing domestic violence within the home, then she would drop Alijah off at the Department." Further, the report stated:

Ms. Q. reported to the Agency that she felt as though the petition was being prejudice [sic] against her. She stated "Mr. [A.] treats me in a demeaning way. He is a master of manipulation." Ms. [Q.] remains vague in her description of Mr. [A.]'s behavior. She acknowledges that he is a good father and provides for his child.

At the hearing on February 10, 2009, Ms. Q. was represented by the Office of the Public Defender; Mr. A. proceeded without legal counsel. Evidence and proffers were presented to the master.

Thereafter, the circuit court issued an "Adjudication And Disposition Hearing Order," dated March 5, 2009. It found that the allegations in the CINA petition, as amended, had been proven by a preponderance of the evidence, and that Alijah was a CINA. Further, the court ordered that Alijah remain in the custody of Mr. A., under the protective supervision of DSS. However, it also stated that the child could be placed with Ms. Q. in an inpatient substance abuse program, or, if she were not to pursue such a program, then she "shall" be granted "liberal" visitation. In addition, the court ordered DSS to provide referrals for various services,³ and ordered the parties to enter into a service agreement.

On March 31, 2009, Ms. Q. filed a "Motion for Immediate Hearing on Visitation," which she amended on April 7, 2009. At an emergency review hearing before the master on April 20, 2009, DSS presented a report discussing visitation. It said, in part:

Ms. [Q.] expressed concerns of not being able to see her son on a regular basis. Ms. [Q.] reported that when she visited her son, he began to cry hysterically, bite and scratch himself. She also reported that when she picked him up, heturned away from her.... Worker offered to pick Alijah up and bring him to the office, as deemed necessary for the well-being of the child. Worker does not have a telephone number or address of Ms. [Q.]; therefore, the arrangement/visitation has been difficult to plan.

It has been reported that Ms. [Q.] visits the home of Mr. [A.] to visit her son. The visits do not appear to be conducive to the welfare of the child. During one visit, it was reported that Ms. [Q.] became hostile toward Mr. [A.] in the presence of her son Alijah. Ms. [Q.] reported that she only kicked the door. Worker was on the phone and overheard Ms. [Q.] in the background kicking andscreaming. Mr. [A.] acknowledged that he went to his neighbor's home and later went to sit in his car until Ms. [Q.] calmed down.

In an "Emergency Review Hearing Order" dated May 8, 2009, the circuit court ordered liberal, supervised visitation for Ms. Q. In addition, the court again ordered a "[d]evelopmental assessment" for Alijah and various services for Ms. Q.

At a permanency plan review hearing before the master on May 11, 2009, appellant did not appear. However, her attorney was present. Mr. A. submitted documentation of his completion of a domestic violence intervention program. DSS submitted a report dated April 24, 2009, stating, in part: "It was agreed that Ms. [Q.] would enter into Crownsville on several occasions. To date, she has refused to enter into treatment." In addition, the report noted that Ms. Q. had not participated in any of the supervised visits with Alijah scheduled by DSS. Moreover, the Department documented that Alijah was doing well in his father's care, and recommended that Mr. A. be granted sole custody of Alijah, with liberal and supervised visitation awarded to Ms. Q. Because DSS was of the view that there no longer existed child welfare issues requiring the continued involvement of DSS or the juvenile court, it asked the court to close the case.

In a "Review Hearing Order" dated May 12, 2009, the master found:

Respondent ... has remained in the custody of his father, [Mr. A.], during this review period. The Department has retained protective supervision. Alijah continues to receive the appropriate care in his father's custody. Mr. [A.] provided documentation of completion of the domestic violence classes.... The court noted Ms. [Q.'s] counsel's comments regarding some of the information in the court report about Ms. [Q.'s] other children not being backed up by any evidence. Ms. [Q.] has not entered into Crownsville as she indicated she would at the emergency hearing ... nor has she entered any treatment program. Ms. [Q.] has not been available for any of the supervised visits at the Department and she did not appear for today's hearing.

Further, the master recommended that Alijah remain in the custody of Mr. A., with liberal, supervised visitation granted to Ms. Q. The master also recommended rescission of DSS's protective supervision and termination of the court's jurisdiction, stating that "the father is providing the proper care and attention needed to care for the child and that continuing jurisdiction is contrary to the Respondent's best interests."

On May 21, 2009, Ms. Q. noted exceptions, complaining that the master's findings, conclusions, and recommendations were contrary to the evidence. In particular, Ms. Q. asserted that the "Father is not a fit and proper person to have custody of the minor child"; that "she is the proper person to have custody of the minor child"; and that "supervised visitation ... is not in the best interests of the child." She also requested a de novo hearing.

In preparation for the exceptions hearing scheduled for August 21, 2009, ⁴ DSS submitted a report to the court filed August 10, 2009.⁵ It said:

[7 A.3d 110, 195 Md.App. 498]

On July 31, 2009, Ms. [Q.] visited her son at the Agency as arranged. Ms. [Q.] fed her son his lunch for breakfast instead of giving him the oatmeal that was placed in his bag. Ms. [Q.] brought a new pair of shoes for her son. She fitted the shoes on his feet without taking the stuffing in the toe area out. She also allowed her son to walk outside with one shoe on and the other shoe was off his foot.

To date, Ms. [Q.] has yet to enter into an inpatient drug treatment program. She refused to give worker any information pertaining to her treatment....

Ms. [Q.] visited the Agency.... Ms. [Q.] verbally reported to the team that it was her goal to get Mr. [A.] locked up. She noted that if he goes to jail then she would be able to obtain care and custody for her son.... She noted that she will do whatever it takes to get her son back because she is not going to allow Mr. [A.] to keep Alijah.

The exceptions hearing was subsequently postponed until October 23, 2009. About two weeks earlier, on October 9, 2009, Vicki Wolfson, Esquire submitted a line striking her appearance as counsel for appellant and entering the appearance of Susan Gilhooly as counsel for Ms. Q.

Prior to the hearing, Ms. Gilhooly never filed a motion to withdraw her appearance, pursuant to Maryland Rule 2-132. Instead, at the outset of the hearing on October 23, 2009, she orally moved to be discharged, and the court granted that request.⁶ The following colloquy is relevant:

[MS. GILHOOLY]: Good afternoon, Your Honor. Susan [Gilhooly], attorney from the Public Defender's Office. It was my intention, and I came here prepared to enter my appearance-just give me a second here-on behalf of Ms.[Q.], mother of the child. However, she's just most

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