In re R.S.

470 Md. 380

235 A.3d 914

IN RE: R.S.

No. 58, Sept. Term, 2019

Court of Appeals of Maryland.

August 17, 2020

Argued by Janet Hartge, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Petitioner.

Argued by Deborah A. Ullmann (Pocomoke City, MD), on brief, for Respondents.

Amicus Curiae Maryland Legal Aid in Support of Petitioner: Joan F. Little, Esquire, Legal Aid Bureau, Inc., Charles H. Dorsey, Jr., Building, 500 East Lexington Street, Baltimore, MD 21202.

Amicus Curiae Brief on Behalf of National Association of Counsel for Children: Scott M. Swafford, Esquire, Swafford Law, LLC, 41 State Circle, Annapolis, MD 21401.

Barbera, C.J., McDonald, Watts, Hotten, Getty, Booth, Biran, JJ.

Hotten, J.

In February 2018, the Circuit Court for Worcester County, sitting as a juvenile court, found, after a hearing, that R.S.¹ was a child in need of assistance ("CINA").² The juvenile court awarded joint custody of R.S. to the non-custodial, biological father and paternal grandparents, based on the determination that the Interstate Compact for the Placement of Children ("ICPC")³ applied to the placement of the child in the care of her biological father. R.S. noted an appeal to the Court of Special Appeals, which vacated and remanded to the juvenile court, holding that the plain language of the ICPC, codified in Md. Code, Fam. Law Art. ("Fam. Law") §§ 5-601 – 5-611, does not apply to out-of-state placements of a child in the care of a biological, non-custodial parent. Subsequently, the Worcester County Department of Social Services filed a petition for writ of certiorari on October 10, 2019. We granted the petition to address the following questions, which we have slightly rephrased:

1. Did the Court of Special Appeals err in its interpretation of the Interstate Compact on the Placement of Children, Md. Code (2019 Repl. Vol.) § 5-601 – 5-611 of the Family Law Article ("ICPC"), by invalidating Maryland Code of Regulations ("COMAR") 07.02.11.28 and holding that the ICPC does not apply to out-of-state, non-custodial parents?

2. Did the Court of Special Appeals err in reversing both the juvenile court's order that R.S. was a CINA and the award of joint custody of R.S. to her father and paternal grandparents, based on the holding that the juvenile court should not have ordered an investigation under the ICPC of a non-custodial father?

For reasons explained infra , we answer both questions in the negative and affirm the judgment of the Court of Special Appeals.

FACTUAL AND PROCEDURAL BACKGROUND⁴

June 2016-November 2016: Allegations of Neglect and Shelter Care

In June 2016, the Worcester County Department of Children and Family Services ("the Department") learned that S.S. may have neglected her nineteen-month-old daughter, R.S., and that both were living in her minivan.⁵ Upon locating S.S. and R.S., the Department observed that the interior of the van was covered with trash, smelled of spoiled food, and contained black trash bags filled with dirty laundry. S.S. and R.S. had been living in the van for a month before the Department became aware of the situation. The Department subsequently arranged long-term shelter care for S.S. and R.S., but S.S. left the shelter with R.S. and continued living in her vehicle. The allegations of neglect persisted until November 4, 2016, when the Department removed R.S. from the care of S.S. and placed her in emergency foster care with foster parents ("the foster parents"). Soon thereafter, the Department filed a Petition for Continued Shelter Care and a Petition for Child in Need of Assistance in the Circuit Court for Worcester County, sitting as a juvenile court ("the juvenile court").⁶ On November 10, 2016, the juvenile court held a hearing, and thereafter, ordered that R.S. remain in foster care, pending an adjudicatory hearing on the CINA petition. The Department advised the juvenile court that S.S. had informed the Department that R.S.’s biological father, T.S., resided in Delaware. The Department contacted T.S. by phone and apprised him of the upcoming adjudicatory hearing scheduled for December 2016.

December 2016: Adjudicatory Hearing and Beginning of Disposition Hearing⁷

T.S. appeared pro se⁸ at the adjudicatory hearing before the juvenile court on December 2, 2016.⁹ T.S. advised the juvenile court that he suffered from memory loss and learning disabilities, as the result of a previous traumatic brain injury. T.S. requested, and the juvenile court permitted, the assistance of his father during the hearing. T.S. indicated that he recently became aware that R.S. might be his daughter and agreed to submit to a court-ordered paternity test.

During the proceedings, the allegations of neglect were focused on S.S., so the juvenile court proceeded with the adjudicatory hearing before establishing paternity, prior to the final disposition hearing. At the conclusion of the adjudicatory hearing, the juvenile court sustained the allegations contained in the CINA petition and proceeded with the disposition hearing. The juvenile court considered testimony from a Worcester County child protective services employee, who testified that it would be helpful to conclusively establish T.S.’s paternity before continuing with the disposition hearing.

Counsel for R.S.¹⁰ requested supervised visitation with T.S. and his parents, if paternity was established, but the request was denied. Finding good cause for a continuance, the juvenile court, with the agreement of the parties, continued the disposition hearing pending the results of the paternity test, because "if, in fact, [T.S.] is determined to be the father of R.[S.] then of course he is a party of the case and has all of the rights and responsibilities ... that a biological parent has[.]"

January-June 2017: Continued Disposition Hearings and Visitation

The juvenile court resumed the disposition hearing on January 9, 2017. Based on the outcome of the paternity test, the juvenile court determined that T.S. was the biological father of R.S. T.S. requested a postponement to demonstrate parental fitness.¹¹ In the interim, the juvenile court ordered that the Department facilitate supervised visits for T.S.¹² and provide parenting classes and other services, including mental health and substance abuse evaluations. The juvenile court also ordered that the Department transition T.S. to unsupervised visitation, if parental fitness was demonstrated, and arrange a home study of the paternal grandparents’ home in Delaware.¹³

On January 30, 2017, T.S. and the paternal grandparents attended a family involvement meeting regarding R.S.’s continued placement in foster care. The Department alleged that T.S. and his parents agreed to undergo an ICPC home study, so that they could be considered as a viable placement option for R.S. Counsel for R.S. was not present due to a scheduling conflict.

T.S. successfully completed the required substance abuse and mental health evaluations. The Department arranged supervised visits between T.S. and R.S. The Department reported that T.S. had not missed any of his weekly visits with R.S. and was amenable to accepting support and guidance from the Department and other family members in developing a relationship with his daughter. The Department further reported that T.S. had maintained stable employment and housing, as required by the agreement between the Department and T.S.

On March 13, 2017, the disposition hearing resumed. Counsel for R.S. expressed concern regarding R.S.’s continued placement in foster care, asserting that the Department had not encouraged the development of a parent-child relationship between T.S. and R.S. Counsel for R.S. also argued that R.S. was not a CINA, because the allegations of neglect were sustained against one parent, S.S., leaving T.S. willing and able to care for his daughter. Accordingly, counsel for R.S. moved to dismiss the CINA petition and requested that the juvenile court grant custody to T.S., pursuant to Cts. & Jud. Proc. § 3-819(e).¹⁴ The juvenile court denied the request because the CINA petition was not dismissed once T.S. was found to be an able and willing parent.¹⁵ Operating under the assumption that it was too late to dismiss the CINA petition because it was not dismissed "at the time of adjudication," the juvenile court concluded that the ICPC applied to the request. T.S. requested, and the juvenile court granted, an order expediting the ICPC home study.

In a June 2017 status report prepared by the Department, it was reported that T.S. had transitioned to weekly unsupervised visits and that he continued to attend every scheduled visit. It was also reported that R.S. had begun to recognize T.S. as her "daddy." Over time, R.S. told T.S. that she loved him, gave him kisses, and expressed a desire to speak with him on the phone in between visits. The report also noted that R.S. was staying overnight with T.S. and the paternal grandparents. However, a Delaware social worker did not believe that placement with T.S. was appropriate.

On June 26, 2017, the juvenile court held the final disposition hearing. The Department advised the juvenile court that Delaware denied T.S.¹⁶ as a viable placement option after conducting the ICPC home study, but that the paternal grandparents, with whom T.S. resided, were being considered as a placement option. The Delaware social worker who conducted the home study deemed a placement with T.S. inappropriate because T.S. suffered from memory loss and had been forgetful in following up with her. In turn, the social worker was concerned that T.S.’s "disability" would impede his ability to care for R.S. Counsel for R.S. again argued that T.S. was entitled to custody and that the ICPC did not apply to placement with T.S. because the compact "only applies to foster care or pre-adopt placements."

The juvenile court considered whether the court could "go back [to the adjudicatory hearing] and say dad is fit and we should dismiss the CINA[,]" absent...