In re K.Y-B.

242 Md.App. 473

215 A.3d 471

IN RE: K.Y-B.

No. 3150, Sept. Term, 2018

Court of Special Appeals of Maryland.

August 30, 2019

Submitted by: Tamara D. Sanders (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.

Submitted by: Hilma J. Munson (Brian E. Frosh, Atty. Gen., Marianne Sierra, Legal Aid Bureau, Inc., on the briefs), Baltimore, MD, for Appellee.

Panel: Kehoe, Arthur, Reed, JJ.

Arthur, J.

This appeal challenges an order of shelter care for K.Y.-B. (the "Child"), who was placed into the custody and care of the Baltimore City Department of Social Services (the "Department") on January 4, 2019, two days after his birth. Through a series of subsequent orders, he remains in shelter care more than seven months later, pending the adjudication of the Department's petition to have the Circuit Court for Baltimore City, sitting as a juvenile court, declare him to be a child in need of assistance ("CINA").

Appealing a shelter care order entered on January 22, 2019, the Child's mother, appellant N.Y.-F. ("Mother"), raises the following questions:

1. Did the court err in awarding shelter care of K. Y.-B. to the Baltimore City Department of Social Services?

2. Did the court err by granting the Department's request to consent to immunizations for K. Y.-B. over the religious objections of his mother?

The Child moves to dismiss this appeal, arguing that it has been mooted by subsequent orders resulting from proceedings at which Mother allegedly waived her objections. In response, Mother concedes that she consented to shelter care at a hearing on April 4, 2019, but insists that she has maintained her religious objection to vaccinations from the outset of these proceedings and that she renewed her objection to shelter care at the latest shelter care hearing on May 17, 2019.

We conclude that Mother has waived her right to contest the shelter care order by consenting to shelter care at a later hearing, but that the order regarding vaccinations remains ripe for a decision. We shall also conclude that the juvenile court did not err or abuse its discretion in authorizing the Department to obtain vaccinations for the Child. In doing so, we shall clarify the standards governing a parent's religious objection to vaccination in the context of a shelter care proceeding.

STANDARDS GOVERNING CINA AND SHELTER CARE PROCEEDINGS

Our discussion of the record and issues raised by the parties will be aided by a preliminary review of the law protecting a child for whom the Department has sought assistance.

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." Md. Code (1974, 2013 Repl. Vol., 2018 Supp.), § 3-801(f), (g) of the Courts & Judicial Proceedings Article ("CJP"). In In re O.P. , 240 Md. App. 518, 205 A.3d 129 (2019), cert. granted , 464 Md. 586, 212 A.3d 395 (2019), this Court summarized the statutory scheme governing CINA proceedings:

Subtitle 8 [of the Courts and Judicial Proceedings Article] establishes a comprehensive statutory scheme to govern proceedings when a child is alleged to be a CINA. The statute gives "exclusive original jurisdiction" to a juvenile court over proceedings arising from CINA petitions, id. § 3-803(a)(2), and establishes, among other things, the scope of the court's jurisdiction over children, venue for proceedings, assignment of judges, the appointment and authority of juvenile magistrates, the review of decisions or recommendations of magistrates to the juvenile court, the confidentiality of proceedings, the scope of a local department's obligation to make reasonable efforts to reunify children and parents, and the State's obligation to provide counsel to represent children, as well as indigent parents and guardians of an alleged CINA, in CINA proceedings, id. §§ 3-804, 3-805, 3-806, 3-807, 3-810, 3-812, & 3-813.

A local department of social services is required to file a CINA petition if, after receiving "a complaint from a person or agency," "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." Id. § 3-809(a). "A CINA petition ... shall allege that a child is in need of assistance and shall set forth in clear and simple language the facts supporting that allegation." Id. § 3-811(a)(1). Once a CINA petition is filed, a juvenile court "shall hold an adjudicatory hearing[,]" id. § 3-817(a), for the purpose of "determin[ing] whether the allegations in the petition, other than the allegation that the child requires the court's intervention, are true[,]" id. § 3-801(c). At the adjudicatory hearing, the rules of evidence apply and the allegations of the petition must "be proved by a preponderance of the evidence." Id. § 3-817(b), (c).

Following an adjudicatory hearing, the juvenile court must "hold a separate disposition hearing," either "on the same day as the adjudicatory hearing" or later. Id. § 3-819(a). With respect to a child who is alleged to be a CINA arising from abuse or neglect, the court's disposition may entail (1) finding that the child is not a CINA and terminating the case, (2) finding that the child is not a CINA and awarding custody to a noncustodial parent, or (3) finding that the child is a CINA and making a custody determination from among various options. See generally id. § 3-819.

Id. at 547-49, 205 A.3d 129.

Shelter care proceedings occur under a separate but related statutory scheme, which authorizes removal of a child alleged or adjudicated to be a CINA from his parents' custody in an emergency:

Section 3-815 of the Courts and Judicial Proceedings Article authorizes a local department that believes a child may be a CINA to place the child in emergency shelter care under certain circumstances. As explained further below, shelter care is not a necessary stage in a CINA proceeding but instead is a parallel proceeding to provide interim protection for a child pending completion of the adjudicatory hearing and disposition. Subsection (a) of § 3-815 provides the general authorization for emergency shelter care: "In accordance with regulations adopted by the Department of Human Services, a local department may authorize shelter care for a child who may be in need of assistance and has been taken into custody under this subtitle." Subsection (b) then establishes the following parameters:

(b) A local department may place a child in emergency shelter care before a hearing if:

(1) Placement is required to protect the child from serious immediate danger;

(2) There is no parent, guardian, custodian, relative, or other person able to provide supervision; and(3) (i) 1. The child's continued placement in the child's home is contrary to the welfare of the child; and

2. Because of an alleged emergency situation, removal from the home is reasonable under the circumstances to provide for the safety of the child; or

(ii) 1. Reasonable efforts have been made but have been unsuccessful in preventing or eliminating the need for removal from the child's home; and

2. As appropriate, reasonable efforts are being made to return the child to the child's home.

Following placement of a child in emergency shelter care, "the local department shall immediately file a petition to authorize continued shelter care." Id. § 3-815(c)(1). The court is required to "hold a shelter care hearing on the petition before disposition to determine whether the temporary placement of the child outside of the home is warranted." Id. § 3-815(c)(2)(i). Absent good cause, the hearing must "be held not later than the next day on which the circuit court is in session." Id. § 3-815(c)(2)(ii).

....

Subsection (d) provides the criteria for the circuit court to use in determining whether to authorize continued shelter care:

(d) A court may continue shelter care beyond emergency shelter care only if the court finds that:

(1) Return of the child to the child's home is contrary to the safety and welfare of the child; and

(2)(i) Removal of the child from the child's home is necessary due to an alleged emergency situation and in order to provide for the safety of the child; or

(ii) Reasonable efforts were made but were unsuccessful in preventing or eliminating the need for removal of the child from the home.

The duration of a term of shelter care is expressly limited: "A court may not order shelter care for more than 30 days except that shelter care may be extended for up to an additional 30 days if the court finds after a hearing held as part of an adjudication that continued shelter care is needed to provide for the safety of the child." Id. § 3-815(c)(4).

Id. at 549-51, 205 A.3d 129 (emphasis added).

BACKGROUND

On January 2, 2019, Mother gave birth to the Child, her eighth, at a Baltimore hospital. On January 4, 2019, before the Child was discharged from the hospital, the Department filed a CINA petition in which it sought immediate emergency shelter care for the Child. The Child was placed into shelter care.

In the initial petition, the Department alleged that five of Mother's seven living children had been found to be CINA and had been committed to the Department. The petition made the following allegations about Mother:

Mother was not cooperative with hospital staff at Mercy Medical Center regarding [the Child's] medical care. Mother refused referrals for services and was not forth-coming [sic] with information about her children in [Department] custody. She stated to the hospital that her mother was responsible for the children being removed because her mother used witchcraft. Mother did not begin prenatal care until she was in her second trimester, citing religious reasons. Later, [M]other stated that the reason she waited so long to get prenatal care was that she did not want to go out in the community

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