In re O.P.

470 Md. 225

235 A.3d 40

IN RE: O.P.

No. 26 Sept. Term, 2019

Court of Appeals of Maryland.

August 14, 2020

Argued by Ann M. Sheridan, Asst. Atty. Gen. (Julia Doyle Bernhardt, Asst. Atty. Gen. and Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD) for Petitioners/Cross-Respondents.

Argued by Margaret F. Holmes (Legal Aid Bureau, Inc., Annapolis, MD), on briefs, for Petitioners/Cross-Respondents.

Argued by Nenutzka Villamar, Assistant Public Defender (Paul B. DeWolfe, Public Defender of Maryland, Baltimore, MD) for Respondent/Cross-Petitioners.

Argued by Jonathan Gladstone, Assistant Public Defender (Annapolis, MD), on briefs, for Respondent/Cross-Petitioners.

Barbera, C.J., McDonald, Watts, Hotten, Getty, Booth, Glenn T. Harrell, Jr. (Senior Judge, Specially Assigned), JJ.

McDonald, J. Under State law, a local department of social services that has reason to believe that a child is a victim of abuse or neglect may initiate an action in a juvenile court to have the child declared a "child in need of assistance" – commonly known by the acronym "CINA." If the juvenile court ultimately finds that the child is a CINA, further proceedings ensue to provide the necessary assistance to the child.

This appeal relates to the period during which the CINA case is pending. Upon receiving the allegations of abuse or neglect on which the CINA case is based, a local department is authorized to place the child in emergency shelter care if it believes certain statutory criteria are met. However, it immediately falls to the juvenile court to hold a hearing to assess whether those criteria are satisfied and whether the temporary shelter care should continue for up to 30 days while the abuse or neglect allegations are adjudicated in the CINA case. This appeal concerns the standard of proof that the juvenile court is to apply in making that temporary shelter care decision.

In this case, an infant, whom we shall refer to as "O.P.," was hospitalized with serious unexplained brain injuries several days after an incident at home where he stopped breathing. Petitioner Anne Arundel County Department of Social Services (the "Department"), alleging that the injuries were the result of abuse or neglect, placed him in emergency shelter care and immediately filed a CINA petition with a request for continued temporary shelter care pending resolution of the CINA petition. Pursuant to statute, the Circuit Court for Anne Arundel County, sitting as a juvenile court, held a hearing on the request for continued temporary shelter care. Conflicting evidence was presented as to whether O.P.'s brain injuries occurred at home or while he was in the neonatal intensive care unit for seven weeks after his birth. The juvenile court denied the Department's request for continued shelter care, finding that the Department had failed to establish the statutory criteria by a preponderance of the evidence. O.P. was returned to the custody of his parents.

On appeal, the Department and the counsel appointed for O.P. challenged the juvenile court's use of a preponderance standard for determining whether to authorize continued shelter care. The Court of Special Appeals held that the juvenile court used the correct standard of proof. Concluding that the juvenile court's fact findings were not clearly erroneous and that it did not abuse its discretion in denying continued shelter care, the intermediate appellate court affirmed the juvenile court's decision.¹

The Department and counsel for O.P. pursued a further appeal to this Court. However, in the meantime, the parties reached a settlement in the CINA case under which O.P. was declared a CINA, but remained with his parents subject to the Department's supervision. This rendered moot the Department's request to place him in shelter care. Although the issue of shelter care in this particular case is moot, we exercise our discretion to decide the legal issues presented by the parties – the appealability of a shelter care decision and the appropriate standard of proof to be applied in a shelter care proceeding – because these are issues "capable of repetition, yet evading review."

We hold that a juvenile court's decision to deny continued shelter care is appealable under the collateral order doctrine. With respect to the standard of proof to be applied by the juvenile court in such a proceeding, the court may authorize continued shelter care under the relevant statute for up to 30 days if it finds reasonable grounds to conclude that (1) return of the child to the child's home is contrary to the safety and welfare of the child and (2) either (i) removal from the 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 to eliminate the need to remove the child from the home, but were unsuccessful. The juvenile court need not make those findings by a preponderance standard, although it must do so to extend shelter care beyond 30 days.

IShelter Care Proceedings in CINA Cases

The law governing CINA proceedings must accommodate both a vital constitutional and human right with the State's special responsibility for the welfare of children. The liberty interest of parents to raise their children as they see fit without undue interference by the State is a fundamental right under the Fourteenth Amendment of the United States Constitution. In re Yve S. , 373 Md. 551, 565, 819 A.2d 1030 (2003). However, "the best interests of the child may take precedence over the parent's liberty interest in the course of a custody, visitation, or adoption dispute." Boswell v. Boswell , 352 Md. 204, 219, 721 A.2d 662 (1998). Moreover, "[t]hat which will best promote the child's welfare becomes particularly consequential where the interests of a child are in jeopardy, as is often the case in situations involving sexual, physical, or emotional abuse by a parent." In re Mark M. , 365 Md. 687, 706, 782 A.2d 332 (2001). Under the doctrine of parens patriae , the State has an interest, and a responsibility, to protect the health, safety, and welfare of children. In re Yve S. , 373 Md. at 569, 819 A.2d 1030. In fashioning the CINA statute, the General Assembly has been cognizant that the law must accommodate these sometimes competing interests.²

The central issue in this appeal concerns the standard of proof that a juvenile court is to apply in determining whether to authorize continued shelter care for a child after that child has been removed from the home pending the outcome of a CINA proceeding. To place this issue in context, we provide a brief overview of the statutory scheme pertaining to CINA cases generally and shelter care proceedings in particular.

A. CINA Cases

The procedures governing proceedings when a child is alleged to be a CINA are set forth in Maryland Code, Courts & Judicial Proceedings Article ("CJ"), § 3-801 et seq. A CINA is a child who requires court assistance because he or she has been abused or neglected, or has a developmental or mental disability, and there is no a caretaker to give proper attention to the child's needs. CJ § 3-801(f), (g). Related provisions concerning child abuse and neglect are found in Maryland Code, Family Law Article ("FL"), § 5-701 et seq .³ The Maryland Rules complement these provisions in specifying some of the procedures applicable to CINA cases. See Maryland Rule 11-101 et seq.⁴

Petition Alleging Child is a CINA

If a local department of social services receives a complaint of child abuse or neglect, and it concludes that the juvenile court has jurisdiction and that filing a CINA petition is in the child's best interests, the local department must file a petition alleging that the child is a CINA and setting forth supporting facts. CJ §§ 3-809(a), 3-811(a)(1). Once a petition has been filed, the juvenile court may order the local department to conduct a study concerning the child, the child's family, the child's environment, and other matters relevant to the case.⁵ CJ § 3-816(a). As a part of a study, the court may order that the child or any parent or guardian be examined by a physician, psychiatrist, psychologist, or other professionally qualified person. CJ § 3-816(b).

The juvenile court proceeding to determine whether the child is a CINA consists of two stages – an adjudicatory hearing and a disposition hearing.

Adjudicatory Stage

As a first stage in resolving a CINA petition, the juvenile court is to hold an adjudicatory hearing to determine whether the department's factual allegations in the CINA petition are true. CJ §§ 3-801(c), 3-817(a) ; Maryland Rule 11-114. At the adjudicatory hearing, the rules of evidence apply and the allegations in the petition must be proved by a preponderance of the evidence. CJ § 3-817(b) - (c) ; Maryland Rule 11-114(e).

Disposition Stage

If the court finds that the allegations in the petition are true, the court then holds a separate disposition hearing to determine whether the child is, in fact, a CINA and, if so, the nature of any necessary court intervention. CJ §§ 3-801(m), 3-819(a). Although the disposition hearing is "separate" from the adjudicatory hearing, the two hearings are ordinarily to be held on the same day. CJ § 3-819(a). At the disposition stage, it is left to the discretion of the juvenile court whether to insist on strict application of the rules of evidence.⁶ Maryland Rule 5-101(c)(6). The court may find that the child is not a CINA and dismiss the case. CJ § 3-819(b)(1)(i). Alternatively, the court may determine that the child is a CINA, in which case it may take one of three actions: (1) decide not to change the child's current custody; (2) commit the child to the custody of a parent, relative, or another suitable individual; or (3) commit the child to the custody of the local department of social services or the Maryland Department of Health. CJ § 3-819(b)(1)(iii).⁷ If the child is placed out of the home, the court must later hold a permanency planning hearing...