In re M.H.

252 Md.App. 29

256 A.3d 365

IN RE: M.H.

No. 1267, Sept. Term, 2020

Court of Special Appeals of Maryland.

July 29, 2021

Argued by: Deborah A. Ullmann, Pocomoke City, MD, for Appellant.

Argued by: Janet Hartge (Brian E. Frosh, Atty. Gen., Baltimore, MD, Bonnie Laakso Baynes, Michael Stuart Katz, Darlene A. Wakefield, Law Offices of Darlene A. Wakefield, PA, Towson, MD), for Appellee.

Panel: Kehoe, Friedman, Ripken, JJ.

Ripken, J.

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 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 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 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" 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.

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." Coun...