In re B.S.

IN RE: B.S.

No. 1891

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

May 20, 2020

Circuit Court for Montgomery County

Case No: 06-I-19-164

UNREPORTED

Meredith, Arthur, Friedman, JJ.

Opinion by Meredith, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104. J.O. ("Mother"), appellant, appeals from an order entered by the Circuit Court for Montgomery County, sitting as a juvenile court, adjudicating her child ("B.S.") to be a child in need of assistance ("CINA") and committing B.S. to the Montgomery County Department of Health and Human Service ("the Department") for placement in foster care.¹

On appeal, Mother first contends that the court made "two significant errors in its evidentiary rulings" during the testimony of Dr. Evelyn Shukat, the expert in pediatrics and child-abuse pediatrics called as a witness by the Department. Mother argues that the court erred when it "admitted as substantive evidence inadmissible hearsay underlying Dr. Shukat's expert opinion," and also erred when it "allowed Dr. Shukat to vouch for the credibility of [B.S.'s treating pediatrician,] Dr. Warner." Mother also contends that the court erred "when it found B.S. to be a CINA and ordered the child removed from Ms. O's care." Only counsel for B.S. filed a brief as appellee, urging this Court to affirm the juvenile court's disposition. For the reasons that follow, we shall affirm the judgment of the circuit court.

FACTS AND PROCEDURAL BACKGROUND

The facts, as set forth herein, are drawn from the testimony and exhibits entered into evidence during the CINA adjudication hearing held on October 31 and November 1, 2019.

The Child's Family History

B.S. was born to Mother on January 24, 2018. There is no father identified on B.S.'s birth certificate. But Mother was married to T.L. at the time of B.S.'s birth. When Mother "conceived and gave birth" to B.S., Mother and T.L. were "separated" and "in the process of waiting the year to file for a divorce." The putative biological father of B.S.—Mr. S.—did not participate in the CINA proceedings. Although T.L. was present for the first day of the CINA proceedings underlying the present appeal, he expressed indifference as to the result and "voluntarily absented" himself from the remainder of the proceedings.²

Mother reported having suffered "a long-standing history of depression," including post-partum depression. In connection with these proceedings, it was noted by the Department that, in 2012, Mother had "cognitive impairment, emotional and behavioral issues, poor judgment, and a limited physical and mental capacity to protect herself from dangerous situations."

Mother uses a wheelchair, although the precise nature and extent of her physical impairment is unclear. Mother has described herself as "being paraplegic," and as being a "partial paraplegic" with "full sensation in [her] legs" and the ability to "stand with help, with therapists, with orthopedic surgeons." Mother advanced several conflicting accounts as to the cause of her paralysis. In one account to child protective services ("CPS"), Mother "reported that she along with several others were on the eight[h] floor" of a building "whenthe floor collapsed," resulting in the death of "125 people" and leaving her the "sole survivor." But, when asked about this account on cross-examination, Mother denied being injured in the building collapse. A separate report to CPS indicated that Mother "was reported to have hurt herself when she jumped from a window." In another account, Mother stated that, "when she was 18 years old, a [third-story] balcony she was standing on gave way," forcing her to jump "directly off of it because it started coming off," and, as a result, she sustained a "crushed spinal cord and torn left knee ligaments." Mother also communicated to Children's Hospital in 2019 that she was "active duty military" and that she was "injured while deployed."

Events Leading Up to the Department's CINA Petition

In March 2018, CPS received a report that five-week-old B.S. had been "shaken," "fed cow's milk past the expiration date by his maternal grandmother," and "smacked and grabbed . . . too hard by the arm" by Mother. Mother reported that she and Mr. S. were living with "family friends" in Bowie at the time, having recently left the home of her adoptive mother (the "maternal grandmother" of B.S.). Mother reported that living with maternal grandmother was a "stressful arrangement" in which the "grandmother provided little support to the family," and that the two "did not get along." Mother admitted to "smack[ing]" B.S., "grabb[ing] him too hard by the arm," and "'patting' [B.S.] too hard over his diaper area . . . when he was crying and couldn't be soothed." In speaking with CPS, Mother acknowledged having "symptoms of postpartum depression" and "thoughts of choking [B.S.]" when "frustrated," though she "denied she would ever do anything likethat." CPS observed, however, that, at that point (March 2018), Mother "was attentive and appropriate with [B.S.]." Following a psychiatric assessment clearing Mother, CPS ruled out physical abuse and recommended that the family "[c]ontinue to work with PG County Infants and Risk and the Healthy Families America Program."

In October 2018, CPS again became involved when B.S. was "observed with two half circle shaped injuries on his left check," which CPS described as a "bite mark." In Mother's explanation of the source of the mark, she admitted that she "nipped" B.S. on his face because he had bitten her while breastfeeding. She then tried to conceal the injury on B.S.'s left cheek with makeup when they attended a housing interview. No other marks or injuries were observed on B.S. at that time. Mother reported to CPS that she was again residing with maternal grandmother and that she was seeking "housing at the [redacted] House for herself and [B.S.]."

CPS performed a follow-up home visit with Mother and B.S. in November 2018, at which time Mother "reported that she bit her son . . . to teach him not to bite." On that occasion, CPS observed that Mother was "limited by her mobility" due to her wheelchair and that she "appeared easily frustrated when [B.S] wanted to grab things off the table and move around." In December 2018, the Department concluded that "[t]here was no evidence to support the allegations of neglect" and "there [were] no CPS concerns" at that time. Further, on December 11, 2018, a notice of investigation closure was sent to Mother, informing her that "physical abuse was ruled out."

Six months later, in June 2019, B.S. was taken by Mother to Suburban Hospital due to fever. Mother reported to the hospital that B.S. "fell and hit [his] head [two times] yesterday and [one time] on Sunday." The record does not disclose the circumstances of these falls.

In July 2019, B.S. was transported to Children's National Hospital by ambulance "with a head injury resulting from a direct blow." On that occasion, Mother reported to the hospital that B.S. was "throwing a temper-tantrum" when he "banged his head against the bars covering a window and went limp and lost consciousness for 5 minutes." Mother also reported that B.S. "bangs his head a lot."

In August 2019, while accompanied by Mother, B.S. was bitten on the head by a "cane corso" (a large breed of dog). In describing how the incident transpired, Mother testified that B.S. loves dogs, but "does not understand [that] he cannot grab the front of a dog's face," and, in this particular instance, the dog "decided to bite him" when B.S. "pulled on his whiskers." Mother reported that, at the time of the incident, the dog "appeared rabid-red eyes and drooling profusely." The hospital report notes that Mother reported that the dog "was shot and killed and was confirmed to have rabies." In contrast, during the CINA proceedings, Mother testified that the hospital told her that the dog had been shot.

As a result of the dog bite, B.S. was taken to Children's National Hospital by ambulance, where he received "rabies shots and a tetanus shot." Mother reported to the hospital that the "encounter with the dog occurred in their neighborhood." But Motherlater testified that the bite occurred on the "metro." When asked at the CINA hearing why she would allow her young son to come into contact with a dog "capable of killing" B.S., Mother stated:

It should not matter about aggression or what type of breed it is. I believe every single breed has a personality. It all depends on how you raise them. So when you say that a Cane Corso could kill my son, yes, I'm aware of that. But I believed at the time that that dog would not harm my son, and I was wrong. But incidents happen all the time, and I was told by Children's Hospital that it is very common for all types of dog bites, not let alone a Cane Corso. But every other dog I have ever come in contact with, any other aggressive breed, has not harmed my son. No. This is the first time my son has ever been aggressively bit.

Mother further testified that she "believe[s] all dogs are friendly until they're proven otherwise." Mother conceded that the incident with the cane corso was not the first time B.S. had ever been "nipped" by a dog. She testified that, on three prior occasions, B.S. "[had] been rough with other dogs at the park, and he [had] been nipped." In each instance, B.S. had done something that caused the dogs to nip at him.

On September 15, 2019, during a follow-up medical visit for B.S.'s fifth rabies shot, Mother reported that a "newspaper box fell on top of [B.S.]," resulting in "some bruising over his mid back." Additionally, Mother testified about an occasion when B.S. "was out in [her] yard" and he climbed up brick stairs and fell, sustaining "some scrapes." At the time, B.S. was being supervised by his...