In re: Yve S.
Nos. 24 & 50, September Term, 2002
FAMILY LAW - PARENTAL RIGHTS AND DUTIES - CARE AND CONTROL OF
CHILDREN - PARENT WITH MENTAL ILLNE SS - Juvenile Judge’s orders of long
term and permanent foster care were clearly erroneous where evidence at relevant
permanency plan hearings mandated by statute showed no likelihood of future neglect or
abuse by the parent who concededly had been diagnosed previously as suffering from mental
illness, but controlled it through medication and other treatment for the prior 2 years.
Circuit Co urt for Mo ntgomery C ounty,
Juvenile Division
Case No. 6-J-98-1032A
IN THE COURT OF APPEALS OF
MARYLAND
Nos. 24 & 50
September Term, 2002
IN RE: YVE S.
Bell, C.J.
Eldridge
Raker
Wilner
Cathell
Harrell
Battaglia,
JJ.
Opinion by Harrell, J.
Filed: March 27, 2003
I.
These combine d cases aro se initially from a d etermination by the District C ourt of
Maryland, sitting in Montgomery County as the Juven ile Court, 1 to change the permanency
plan for a twelve year-old child, Yve S., from the goal of reunification with her biological
mother, Yvonne S., to one of long-term foster care. The Montgom ery County Department
of Health and Human S ervices (the “Departm ent”) initiated the proceedings on 26 February
1997 by filing a petition with the District Court alleging that Yve S. was a Child in Need of
Assistance (“CINA” ).2 On 10 June 1997, following thre e days of hearings, the juvenile co urt
found Yve S. to be a CINA and committed her to the Department for foster care. After 13
months, on 31 July 1998, Yve S. was returned, temp orarily as it turned out, to her mother,
Yvonne S., under an Order for Protective Supervision. Eleven days later, on 11 August
1998, the juvenile c ourt held an emergen cy hearing and, again, placed Yve S. in the
Department’s custody and returned her to foster care.
A little over 7 months later, in March of 1999, the juvenile court convened a
permanency planning hearing for Yve S. At the end of four non-consecutive days of
hearings, the court ordered, on 20 September 1999, that the goal of the permanency plan for
Yve S . should be term ination o f paren tal rights ( “TPR ”) and a doptio n.
1
Late in the c ourse of th ese procee dings, the ju risdiction for actions involving
juveniles in Montgomery County was moved from the District Court to the Circuit Court for
Montgom ery County. See Chapter 41 4, Laws 200 1 (effective 1 M arch 2002).
2
See Maryland Code (1974, 2002 Repl. Vol.), Courts & Judicial Proceedings Article,
Subtitle 8, Juvenile Causes - Children in Need of Assistance.
On 20 M arch 200 0, the court c onvened a perman ency plannin g review that would
spread over more than a year. By the time of a hearing on 20 October 2000, the Department
advocated changing the permane ncy plan goa l from TP R/adoptio n to reunific ation with the
mother; however, the court declined to change the goal of the plan. The court held additional
review hearings on 13 and 20 December 2000, 15 and 1 6 February 2001, and 28 March 2001.
On 28 March 2001, at the conclusion of the last day of the hearing process that had begun
the previous March, the court changed the permanency plan from TPR/adoption to long-term
foster c are. Yv onne S . noted a timely app eal to the Court o f Spec ial App eals.
On 8 November 2001, while Yvonne S.’s first appeal was pending in the Court of
Special Appeals, the juvenile court convened another review hearing.3 The juvenile court
concluded that hearing on 20 December 2001, at which time it issued an order reaffirming
the conten t of its 28 M arch 200 1 order. Y vonne S . noted a sec ond app eal.
On 23 January 2002, the Court of Special Appeals filed an unreported opinion in the
first appeal affirming the juvenile court’s 28 March 2001 order, which had changed Yve S.’s
permanency plan to long-term foster care. Yvon ne S. filed a petition for writ of ce rtiorari
asking this Court to review that decision . Thereafte r, Yvonn e S. petitioned this Court to
3
The actual purp ose of this hearing w as made s omew hat unclear by the juvenile
judge’s comment on the record. She stated that it was not a “review hearing,” but rather was
to receive information and psychologica l evaluations of the child which had been ordered at
the conclusion of the prior permanency hearing. Nevertheless, this hearing resulted in the
judge issuing a reaffirmation of the 28 March 2001 permanency plan determination, which
suggests that this was indeed a review h earing und er the applica ble statue, as explained infra.
2
issue a writ of certiorari to the Court of Special Appeals before it could decide her second
appeal regarding the 20 December 2001 order of the juvenile court. On 8 May 2002, this
Court granted both petitions an d cons olidated the case s. In Re: Yve. S., 369 Md. 178, 798
A.2d 551 (20 02).
Sub sequ ently, on 20 April 2 002 and 16 July 2002, the ju venile cou rt - now the Circuit
Court for Montgo mery County (see n. 1 supra), but with the same judge sitting by special
designation during cale ndar 200 2 - held another review hearing in Yve S.’s case and entered
a new order establishing permanent foster care as the goal of the permanency plan. Yvonne
S. noted a third appeal to th e Court of Special A ppeals and shortly thereafte r filed with
regard to that appeal a petition for writ of certiorari with this Court. On 22 August 2002, we
granted that petiti on, In re Yve S., 370 Md. 268, 805 A.2d 265 (2002), and transferred the
appeal to our regular docket.
Because the third appeal raised issues concerning the
jurisdiction of the juve nile court to act while an appeal of its earlier order on the same subject
matter was pending, it was not consolidated with the earlier cases, but w as br iefe d sep arate ly.
All of the cases, however, were argued on the same day. We shall decide all issues raised
with th is single opinio n.
II.
Issues
Petitioner, Yvonne S., presents the following questions for our consideration, which
we rephrase as follows:
3
1.
Does the fact that a parent has a mental illness that is b eing succe ssfully
managed nevertheless provide a “compelling reason” to deny reunification and
instead adopt a permanency plan of long-term foster care?
2.
Is it proper to allow a social worker to give her opinion as to the demeanor of
the parent w hen the pa rent testified, an d to give her opinion of the substance
of th e par ent’s test imony?
3.
Did the trial court err in refusing to recuse itself from further participation in
his case?
4.
Whether the trial court erred in changing the perm anency plan from lon g-term
foster care to permanent foster care during the pendency of the appeal on the
former determination?
III.
Yve S. entered into the Mo ntgomery County foster care system in February of 1997,
at the age of six, after the Departm ent received reports that sh e was no t being fed adequate ly
and that she and her mother, Yvonne S., were homeless. Prior to this, Yvonne S. and Yve
S. led a no madic lifestyle. In 1990, th ey lived in Ke y West, Florida, where Yve S. was born.
In 1991, they lived in Maryland; in 1992, they lived in M artinsburg, West Virginia. In 1993,
they lived in Millville, West Virginia, where Y ve S. was first taken into fo ster care. In 1994,
they moved to G aithersburg, Maryland, and the n to Westminister, M aryland, in 1995. In
1996, they moved to North C arolina. Fina lly, in 1997, the y returned to M ontg ome ry Co unty.
Soon after Yve S. was placed in foster care in Montgomery County, the Department
learned that Yv onne S . had been diagnosed with bipolar disorder and schizo-affective
disorder, dating back to her teens. A psychiatric e valuation o f Yve S . resulted in a d iagnosis
of “acute stress reaction,” ch ronic post-traumatic stress disorder, and dissociative disorder.
4
Yve S. also displa yed symptoms of possible physical and s exual abu se and, in July of 1997,
alleged that she had been molested by a boyfriend of Yvonne S.
Yvonne S. complied with the Department’s recomm endations f or mental h ealth
treatment and parenting classes. As a result, she and Yve S. were reunited in June of 1998.
In July 1998, the juvenile court ap proved Yvo nne S.’s request to move to the Outer Banks
of North Carolin a, where she had leased a mobile hom e. Montgom ery County, however,
never initiated a home study nor completed a proper interstate compact for the D are C ounty,
North Carolina, fam ily welfare autho rities to implem ent. After o nly a few da ys in North
Carolina, the Dare County Department of Social S ervices fou nd it necessary to remove Yve
S. from Yvonne S.’s care . Yvonne S. had been evicted from the trailer, and allegedly had
left Yve S. in the ca re of a “ know n sex o ffend er,” though there is no reco rd that this person’s
status as such was known to Yvonne S. T he Dare C ounty Dep artment plac ed Yve S. in
emergency shelter care and then returned her to Montgomery County, where she was placed
with a fos ter ca re fa mily.
Yvonne S. remained in North Carolina for a time following Yve S.’s return to foster
care in Maryland. During that time, in August 1998, she entered into a service agreement
with the Montgomery County Department in which she agreed to obtain treatment for her
mental illness and maintain stable ho using and emp loyment. Yvonne S .’s tenure in North
Carolina concluded with a psychiatric hospitalization, after she stopped taking her
5
medications. When she was discharged in late February 1999, she was given a two-week
supp ly of h er medic ation s and a one-w ay bus tick et to M ontg ome ry County.
In March, 1999, Yvonne S. began receiving mental health treatment at St. Luke’s
Hospital in Montgomery County, under the care of Dr. James Harold, a psychiatrist, and also
began having visitation with Yve S. on a regular basis With further assistance from the
therapists and social workers at St. Luke’s, as well as guidance and support from her church
com mun ity, Yvonne S. stabilized, became employed, and established a home. In June 1999,
she obtained a job at a local nursing home as a housekeeper. By the end of August 1999,
Yvonne S. had adv anced to the position of activities coordinator and had obtained her own
apartm ent.
By the summer of 2000, Yvonne S. had maintained the same job and apartment for
more than a year. She consistently attended her treatment at St. Luke’s. By the end of that
summer, Yvonn e S. was h aving w eekend-lo ng visits with Yve S., and, in light of Yvonne
S.’s apparen t stab ility, the Department advocated that the permanency plan for Yve S., which
previously had been “T PR / adoption,” be c hanged to “reunifica tion” with her mothe r.
In a letter to the juvenile court, dated 26 September 2000, the foster parents made a
plea for the court to reject the Department’s recommendation for reunification, arguing that
Yvonne S., with her mental illness, could not raise a child with Yve S.’s needs. At a review
hearing held on 20 October 2000, the court distributed copies of this letter to the parties, and
6
shortly thereafter, the Department changed its position from reunifying Yve S. with her
mother to one of placing Yve S. in long term foster care with the foster parents.
On 20 December 2000, 15 and 16 February 2001, and 28 March 200 1, the juven ile
court condu cted the perma nency pl anning hearing require d by statute .
4
Only a few days
before her testimony in this important hearing, Yvonne S. lost her job at the nursing home.
Despite the fact that she also was working part-time as a pet sitter, doing housecleaning for
hire, and volunteering at a woman’s homeless shelter at the time of the hearing, she was
understan dably nervous during he r testimo ny. On the Sunday prior to the 28 March 2001
hearing, Yvonne S. and Yve S. drove from Yvonne S.’s home in Gaithersburg to Bethesda
to tour the grounds of the Bethesda Naval Hospital, so that Y ve S. could see a particular
statue deemed pertinent to her heritage. They then traveled to Rockville for a 10:00 a.m.
church service, which they attended with a woman whom Yvonne S. had met while working
at the homeless shelter during the preceding week. This level of activity was viewed as
extraordinary by the Department’s assigned social worker, Ms. Carolyn Rose. Ms. Rose
testified, over objection, to that effect, and that, in her view, that level of activity, combined
with Yvonne S.’s nervousness on the witness stand, indica ted to her the imminent onset of
a manic episode on the part of Yvon ne S. Despite testimony by the treating psychiatrist, Dr.
Harold, that a manic episode was not imminent, Ms. Rose, immediately following the 16
4
Maryland Cod e (1974, 2002 R epl. Vol.), Cts. & Jud. Proc. A rt., § 3-823(b).
7
February 2001 hearing, reduced the vis itation from weekend-long visits to one hour of
superv ised visi tation, late r increa sed to a few h ours on ce a w eek.
On 28 Ma rch 2001 , the juvenile judge ordered that the permanency plan pursue long
term foster care as its goal. The hearing judge affirmed her permanency plan determination
at the conclusion of another review hearing on 20 December 2001, despite testimony that Ms.
Rose’s forecast of a manic episode had failed to materialize, Yvonne S. was employed
making a higher income than before, and all visitation had gone well. Similarly, the
Departm ent, through M s. Rose, con tinued to ref use to return visitation to its prior frequency
and duration. The plan goal became permanent foster care by virtue of the court’s 16 July
2002 order. Additional facts will be supplied as appropriate to our discussion of each issue.
IV.
From time to time we confront cases which present issues which merit even more
extensive discussion of the legal principles involved than flows from our normal close
attention of each c ase. Sometimes this is becau se of the highly technical or com plex nature
of the case.
Other times it is because of the fundamental nature of the rights and
responsibilities of the parties involved. The present case is situated on the frontier of what
State action may be permissible in the face of fundamental rights possessed by its citizens,5
5
As recently noted in Shurupo ff v. Vockroth , 372 M d. 639, 814 A.2d 54 3 (2003), it is
meaningful in the proper analysis of cases where parental rights collide with the best interest
of the child standard what the context is in which the con flict arise s. Id. at 656-59, 814 A.2d
at 554-55. For example, on one hand the Court’s due process analysis, under Matthews v.
(contin ued...)
8
and involves standards which, while their names suggest intuitive definitions and means of
application, are in fact highly technical and complex in nature, an d contain well established
elemen ts whic h are no t as self-e vident in applica tion as th eir titles su ggest.
The fundam ental doctrina l problem presented by this case is the proper definition and
application of the “be st interest of the child” standard. The problem arises in large part
because the name of the standard itself invites an “intuitive” understanding which, upon
examination, bears little resemblance to how the standard has been defined by our cases. The
standard does not re quire simp ly that a determination be made that one environment or set
of circumstances is sup erior to another. If that were the case, child custod y matters wo uld
involve relatively simple c hoices. Alt hough much of wh at we inclu de in this opin ion is
derivati ve, there is value in mass ing it in th is appro priate ca se.
A.
THE FUNDAMENTAL RIGHTS OF A PARENT
5
(...continued)
Eldridge, 424 U.S . 319, 96 S .Ct. 893, 47 L.Ed. 2d 18 (1976), in a termination of parental
rights (TRP ) case. differs from that in a p arent ve rsus third party cust ody case . Id. The
distinction in analysis is prem ised on the f ormer inv olving “a singular private interest [the
parent’s righ t to raise his or he r child] being attacked by the State, in its capacity as parens
patriae” (Shurupo ff, 372 M d. at 657, 81 4 A.2d a t 554), wh ile the latter invo lves two p rivate
interests in a mo difiable custod y situation . Id. at 256- 57, 814 A.2d at 554 . In the present
case, the juvenile c ourt orders in question ca ll for long term and, later, permanent foster care,
coupled with an administrative decision by the Departm ent to limit severely visitation by the
mother. The present situation, for analytical purposes, falls between the two paradigms
considered in Shurupo ff, but closer to a TPR situation.
9
The proper startin g point for legal analysis w hen the Sta te involves itse lf in family
relations is the fundamental constitutional rights of a parent. Certain fundamental rights are
protected under the U.S. Constitution, and among those rights are a parent’s Fourteenth
Amendment 6 liberty interest in raising his or her children as he or she sees fit, without undue
interference by the State. The rights and protections afforded a parent, as recognized by the
United States Supreme Court, were gathered recently in the well researched opinion of
Wolinski v. Browneller, 115 Md. App. 285, 693 A.2d 30 (1997), from which w e shall quote
at length.
Beginning with Meye r v. Neb raska, 262 U.S. 390, 67 L. Ed. 1042, 43
S. Ct. 625 (1923) and Pierce v. Society of Siste rs, 268 U.S. 510, 69 L. Ed.
1070, 45 S. Ct. 571 (1 925), the Supreme Court, in a variety of contexts, has
recognized that freedom of personal choice in matters of marriage, family life,
and the upbring ing of child ren is a liberty interest protected by the Fourtee nth
Amen dment. See M.L.B v. S.L.J., U.S. LEXIS, 136 L. E d. 2d 473 , 117 S. Ct.
555 (Dec. 16, 1996) (termination of parental rights); Santosky v. Kramer, 455
U.S. 745, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1 982) (sam e); Parha m v. J.R .,
442 U.S. 584, 61 L. Ed. 2d 101, 99 S. Ct. 2493 (1979) (right to care for mental
health of child); Moo re v. City of East Clevel and, 431 U.S. 494, 52 L. Ed. 2d
531, 97 S. Ct. 1932 (1977) (right of extended fam ily to live together);
Wisconsin v. Yoder, 406 U.S. 205, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972)
(right to direct children's education, coupled with right to freedom of religion);
Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972) (right
to raise children ); Prince v. Massachusetts, 321 U.S. 158, 88 L. Ed. 645, 64 S.
Ct. 438 (194 4) (right to allow child to wo rk); Pierce v. Society of Sisters, 268
U.S. 510, 69 L. Ed. 1070, 45 S. Ct. 571 (1925) (right to direct upbringing and
education of children ); Meye r, 262 U .S. 390 , 399, 67 L. Ed. 1042, 43 S. Ct.
6
See In re Adoption/Guardianship Nos. J9610436 and J9711031, 368 Md. 666, 67173, 796 A.2 d 778, 78 1-82 (200 2); In re Adoption / Guardianship No. TPR970011, 122 Md.
App. 462, 473 -74, 712 A.2d 5 97, 602 (1998).
10
625 (announ cing the liberty inte rest "to engage in any of the common
occupatio ns of life, to acquire useful knowledge, to marry, establish a home,
and bri ng up c hildren ").
Within the narrower context of the parent-child relationship, the
Supreme Court has deemed the right to rear a child "essential," id., and
encompassed within a parent's "basic civil rights." Skinner v. Oklahoma, 316
U.S. 535, 541, 86 L. Ed. 1655, 62 S. Ct. 1110 (1942). Maryland has
consistently echoed the Supreme Court, declaring a parent's liberty interes t in
raising a child a fundamental o ne that cann ot be taken away unles s clearly
justified. In re Adoption/Guardianship No. 10941, 335 Md. 99, 112, 642 A.2d
201 (1994); In re Adoption/Guardianship Nos. CAA92-10852 & CAA9210853, 103 Md. App. 1, 12, 651 A.2d 8 91 (1994) ("This righ t is in the nature
of a liberty interest that has long been recognized and protected u nder the state
and federal constitutions."). In In re Adoption/Guardianship No. 10941, the
Court of Appeals quoted with approval from Justice Blackmun's dissent in
Lassiter v. Dep artme nt of So cial Ser vs., 452 U.S. 18, 68 L. Ed. 2d 640, 101 S.
Ct. 2153 (1981):
At stake here is "the interest of a parent in the companionship,
care, custody, and management of his or her children." T his
interest occupies a unique pla ce in our leg al culture, given the
centrality of family life as the focus for personal meaning and
respon sibility. "[Far] mo re precious ... than property rig hts,"
parental rights have been deemed to be among those "essential
to the orderly pursuit of happiness by free men ...".
Id. at 38 (citations omitted), quoted in In re Adoption/Guardianship No. 10941,
335 M d. at 113 . See also In re Ado ption/Gu ardiansh ip No. 93321055/ CAD,
344 Md. 45 8, 491, 687 A.2d 68 1 (1997); In re: M atthew R., 113 Md. App.
701, 721, 688 A.2d 95 5 (1997); Coffey v. Dep't of Social Servs., 41 Md. App.
340, 357, 397 A .2d 233 (1979).
115 Md. App at 298-99 , 693 A.2d at 36 (som e internal citation s omitted). W e recently
reiterated the importance of these constitutional protections of parental interests in In re
Adoption /Guardia nship Nos. J9610436 and J9711031, 368 Md. 666, 796 A.2d 778 (20 02),
where w e pointed o ut that:
11
Most recently, in In re Mark M., 365 Md. 687, 705, 782 A.2d 332, 34243 (2001), this Court reiterated the notion of parentin g as a fun damenta l right:
"A parent's interest in raising a child is, no doubt, a fundamental
right, recognize d by the Un ited States Suprem e Court an d this
Court. The United States Supreme Court has long avowed the
basic civil right encompassed by child rearing and family life.
See Troxel v. G ranville, 530 U.S. 57, 66, 120 S. Ct. 2054,
2060, 147 L. Ed. 2d 49 , 57 (2000 )(stating that 'the F ourteenth
Amendment protects the fundamental right of parents to make
decisions concernin g the care, cu stody, and con trol of their
children'); See also Santosky v. Kramer, 455 U.S. 745, 753,
102 S. Ct. 13 88, 139 4-95, 7 1 L. Ed . 2d 599, 606 (1982)
(discussing 'the fundam ental liberty interest of natural parents in
the care, custody, and management of their child'); Stanley v.
Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed.
2d 551, 558-59 (1972) (stating that 'the righ ts to conceiv e and to
raise one's children have been deemed "essential,"' and that 'the
integrity of the family unit has found protection in the Due
Process Clause of the Fourteenth Amendment ... the Equal
Protection Clause of the Fourteenth Amendment ... and the
Ninth Amendment ..." (internal citations omitted)). Maryland,
too, has declare d a parent's inte rest in raising a child to be so
fundamental that it 'cannot be taken away un less clearly
justified .' Boswell v. Boswe ll, 352 Md. 204, 218, 721 A.2d 662,
669 (1998) (citing In re Adoption No. 10941, 335 Md. 99, 112,
642 A .2d 201 (1994 )).”
368 Md. at 671, 796 A.2d at 780-81; see also Sh urupoff v. V ockroth, 372 Md. 639, 649-50,
814 A.2d 54 3, 550 (2003). 7
B.
THE BEST INTEREST OF THE CHILD
7
For a discu ssion of the history of paren tal rights at com mon la w, see Montgomery
County Department of Social Services v. Sanders, 38 Md. App., 406, 414-21, 381 A.2d 1154,
1160-63 (197 8).
12
The rights of a p arent in the raising of his or her children, however, are not absolute.
One need not w ander far in to the thickets of family law before running into situations and
circumstances where application of an absolute right of the parent would fail to produce a
just result. Divorce is perhaps the most obvious situation. Where two parents have equal
constitutional rights as parents, and both are exercising those rights to opposing ends, what
is to become of the child or children involved? What are the child’s rights in such a
situation, and by what standard is a court to avail itself in order both to uphold the rights of
the parents while reaching an outcome society finds acceptable for the blameless offspring?
Further, in a variety of situations, such as the one sub judice, a court must ask to what extent
the State has an interest in the child as parens patriae – a corollary of the State's interes t in
protecting the health, safety, and welfare of its citizenry. Again, quoting extensively from
Wolinski:
The Supreme Court has emphasized, however, that "rights of
parenthoo d are [not] beyond limitation," and that the "state has a wide range
of power for limiting parental freedom and authority in things affecting a
child 's welfare ....". Thus, a parent's right to direct his or her child's upbringing
is not absolute. Rather, Due Process analysis requires the delicate balancing
of all of the com peting interests involved in the litigation. In the context of
most family law disputes over children, the State's interest is to protect the
child's best interests as parens patriae – a derivatio n of the S tate's interest in
protectin g the heal th, sa fety, a nd w elfa re of its cit izen ry.
The importance of those State interests that successfully override
parental autonomy in raising children is determined by the nature of the
individual liberty interests upon which the State laws or regulations impinge.
A regulation or law significantly curtailing a fundamental right must undergo
strict scrutiny -- it must be na rrowly tailored to serve a com pelling pub lic
interest. Restrictions upon rights not deemed fundamental need only be
rationally related to some purpose within the competency of the S tate. Fina lly,
13
there are those restrictions upon rights deemed "substantial," though not
fundam ental, that must undergo intermediate-level scrutiny -- governmental
interference is sanctio ned only w hen the in terfe renc e is su pported by a
substantial go vernmen tal interest.
As noted abo ve, the State's inte rest in all custody, adoption, and
visitation disputes is to protect the best interests of the child caught in the
middle of the fight. The Court of Appeals has often reaffirmed that this interest
takes precedence ove r the fundamen tal right of a parent to raise his or her
child. The cou rts have said time and a gain that the b est interest stand ard is
dispositive in custody awards. In the context of adoption cases, the Court of
Appea ls has labeled "compelling" the State's interest in securing permanent
homes for children placed into its custody because of an inability or
unw illing ness of th eir paren ts to c are f or them p rope rly.
115 M d. App . at 300- 302, 69 3 A.2d at 37-3 8 (intern al citation s omitte d).
In the case of In re Mark M., 365 Md. 687, 782 A.2d 33 2 (2001), th is Court rec ently
reiterated these considerations:
That fundamental interest [in rasing a child], however, is not absolute
and does not e xclude oth er importan t consideratio ns. Pursua nt to the doctrine
of parens patriae, the State of Maryland has an interest in caring for those,
such as minors, who cannot care for themselves. We hav e held that "the best
interests of the child may take precedence over the parent's liberty interes t in
the course of a custody, visitation , or adoption dispute." Th at which w ill 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. As we stated in In re
Adoption /Guardia nship No. A91-71A, 334 Md. 538, 640 A.2d 1085 (1994),
the child's welfare is "a consi dera tion that i s of 'trans cend ent im portance '"
when the child might o therwi se be in jeopard y. Id. at 561, 640 A.2d at 1096
(citation omitted). Therefore, visitation may be restricted or even denied when
the child's health or welfare is threatened.
We have recognized that in cases where abuse or neglect is evidenced,
particularly in a CINA case, the court's role is necessarily more pro-active. In
fact, whe reas the stand ard f or de nying pare ntal v isitat ion is gen erall y quite
strict - i.e. "it would only be in an exceptional case and under extrao rdinary
circumstances that the right of visitation will be denied" (see Boswell v.
14
Boswe ll, 352 M d. at 220, 721 A.2d at 670 (1998)(stating that "visitation
rights... are not to be denied even to an errant parent unless the best interest of
the child would be endangered by such contact")(quoting Roberts v. Roberts ,
35 Md. App. 497, 507, 371 A.2d 689, 694 (1977)) - in cases where evidence
of abuse exists, courts are required by statute to deny custody or unsupervised
visitation unless the court makes a specific fin ding that the re is no likelihood
of further child abuse or neglec t. See Maryland Code, § 9-101 of the Family
Law Article (1984, 1999 Re pl. Vol.).[8] Thus, courts have a higher degree of
respon sibility wh ere abu se is pro ven.
367 Md at 705-06, 782 A.2d at 342-43(emph asis in original)(some internal citations omitted).
The best interests of the child standard embraces a strong presumption that the child’s
best interests are serv ed by ma intainin g paren tal rights. See In Re: Adoption J9610436, 368
Md. 666, 692-93, 796 A.2d 778, 793 (2002). If it were otherwise, the most disadvantaged
of our adult citizens always would be at greater risk of losing custody of their children than
those more f ortuna te. Id. 368 Md. at 673-74, 699-700, 796 A.2d at 782-83, 797-98. Those
of our citizens coping with emotional or mental difficulties could be faced with such
discrimination. As the C ourt of Sp ecial App eals pointed out in In re: Barry E., 107 Md.
8
Md. Code (1974, 1999 R epl. Vol.), Family Law Article, § 9-101 states:
(a) Determination by court. - In any custody or visitation proceeding, if the court has
reasonab le grounds to believe that a child has be en abuse d or neglec ted by a party to
the proceedin g, the court sh all determine whether abuse or neglect is likely to occur
if cu stod y or visitati on rights are g ranted to the p arty.
(b) Specific finding required. - Unless the court specifically finds that there is no
likelihood of further child abuse or ne glec t by the par ty, the court shall deny custody
or visitation rights to that party, except that the court may approve a supervised
visitation arrangem ent that assure s the safety and the physiologic al, psychologic al,
and emotional well-being of the child.
15
App. 206, 667 A.2d 931 (1995), the emotional or mental difficulties experienced by a parent
are not sufficient reason for removing a child except in more extreme cases:9
The fact that appellant has a mental or emotional problem and
is less than a perfect parent or that the children may be happier
with their foster parents is not a legitimate reason to remove
them from a natural parent competent to care for them in favor
of a stranger.
107 Md. App. at 220, 667 A.2d at 938.
The Supreme C ourt placed its imprimatur on the presumption that parents act in the
best interests of their children in Parham v. J.R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed. 2d
101 (1979), noting that in most cases, “the child’s interest is inextricably linked with the
parents’ interest in and obligation for the welfare and health of the child....” Id. 442 U.S. at
600. Explaining the basis for this conclusion, the Court stated:
The law’s concept of the family rests on a presumption that
parents po ssess wha t a child lacks in maturity, experience, and
capacity for judgm ent required for makin g life’s difficult
decisions. More importantly, historically, it has recognized that
natural bonds of affec tion lead pa rents to act in the be st interests
of their children.
Id. 442 U.S. at 602.
This presumption also is a w ell established principle of M aryland law. As the Co urt
of Special Appeals pointed out in Wolinski:
9
See also In re Adoption/ Guardianship Nos. J9610436 and J9711031, 368 Md. at
704-707, 796 A .2d at 800-802 (dissenting opinion).
16
Maryland has adopted, in termination of parental rights,
adoption, and custody proceedings, a prima fac ie presumption
that a child's welfare will be best served in the care and custody
of its parents rather than in the custody of others. That
presumption is overcome if opposing parties show that the
natural parent is unfit to have custody, or exceptional
circumstances make parental custody detrimental to the best
interests of the child.
Wolinski, 115 Md. App. at 311, 693 A.2d at 42-43 (internal citations omitted). In whatever
context the best interest of the child is the applicable standard, the presump tion exists, until
rebutted, that it is in the child’s be st interest to be p laced with a parent.
C.
THE RELATIO NSHIP OF THE STA TUTES
AND THE COMMON LAW STANDARDS
1.
THE STATUES
The fundamental right of parents to raise their offspring is not only well established
in our common law traditions, but also in the relevant enactments of the federal and
Maryland legislatures. Due to the prominent role of these statutes in the case sub judice, we
shall include at length here the seminal dissertation on them found in In re:
Adoption /Guardia nship No. 10941, 335 Md. 99, 642 A.2d 201(1994), in which Judge
Karwa cki, writing for the Court, c ompreh ensively addressed the state and federal statutory
schemes. Judge Karwacki stated:
The Maryland General Assemb ly has enacted a comprehensive statutory
scheme to address those situations where a child is at risk because of his or her
parents' inability or unw illingness to care for him or her. Title 5 o f the Fam ily
Law Article of the Maryland Code (1984, 1991 Repl. Vol.) (hereinafter "F.L.")
governs the custody, guardianship, adoption and general protection of children
17
who because of abuse or neglect come within the purview of the Department
of Human Resources. This case involves the interplay between the child
welfare statutes, F.L. § 5-501 et seq., under juvenile jurisdiction, and the
adoption statutes, F.L. § 5-301 et seq., under e quity jurisd iction.
Subtitle 7 of Title 5 of the Family Law Article concerns the protection
of children who have been abused or neglected by their biological parents.
Pursuant to this subtitle, certain authority figures, such as health practitioners,
police officers, educators and human service workers, are required to report
cases of suspected abuse or neglect. F.L. § 5-704. The local department of
social services is then required to investigate such reports. F.L. § 5-706.
Thereafter, in accordance with its findings and treatment plan, the local
department is required to render appropriate services in the best interests of the
child,2 including, w hen indica ted, petitioning the juvenile c ourt to commit the
child to its care and custody. F.L. § 5-710(a). If the juvenile court determines
that the child is a child in need of assistance (C INA), 3 it has discretion to order
that the child be committe d to the local department "on terms that the court
considers approp riate ... including d esignation o f the type of fa cility where the
child is to be accommodated, until custody ... is terminated with approval of
the court" or the child turns 21 years old. M d. Cod e (1974 , 1989 R epl. Vo l.)
§ § 3-820(c)(1)(ii) and 3-825 of the Courts & Judicial Proceedings Article.
Such out-of-home placement can include placement in a licensed foster home,
F.L. § 5-525, or placement with relatives.
2
The local department should first assist in preventing the
necessity of removing the child from the child's natural parent
or guardian. If removal does become nece ssary, the department
should then attempt to reunite the child with the child's natural
parent or guardian . Where e fforts at reunification fail, however,
the Legislature has provided a comprehensive statutory scheme
to enable the child to find a permanent home with another
fam ily.
3
Md. Code (1974, 19 89 Rep l. Vol., 1993 Supp.), § 3-801 of the
Courts and Judicial Proceedings Article defines "child in need
of as sista nce" thus ly:
(e) Child in need of assistance. - 'Child in need of
assistance' is a child who requires the assistance
of the court because:
(1) He is mentally handicapped or is not receiving
ordinary and proper care and attention, and
18
(2) His parents, guardian, or custodian are unable
or unwilling to give proper care and attention to
the child and his proble ms pro vided, h owev er, a
child shall not be deemed to be in need of
assistance for the sole reason he is being
furnished nonmedical remedial care and treatment
recognized by State law.
During the 1970's, nationwide co ncern grew rega rding the large number
of children wh o remaine d out of the homes o f their biolog ical parents
throughout their childhood, frequen tly moved from one foster care situation
to another, the reby reaching majority witho ut belonging to a p ermanen t fam ily.
This phenomenon became known as "foster care drift" and resulted in the
enactment by Congress of Public Law 96-272, the "Adoption Assistance and
Child Welfare Act of 1980," codified at 42 U.S.C. § § 670-679 (1988). One
of the important purposes of this law was to eliminate foster care drift by
requiring states to adop t statutes to facilitate permanent placement for children
as a condition to receiving fed eral fundin g for their foster care and adoption
assistance programs.
Under the federal act, a state is required, among other things, to provide
a written case plan for ea ch child for whom the state claims federal foster care
maintenance paymen ts. 42 U .S.C. § 671(a)(16). The case plan must include
a description of the home or institution in to whic h the ch ild is plac ed, a
discussion of the appropriateness of the placement, and a description of the
services provided to the parents, c hild and fo ster parents to facilitate return of
the child to his or her own home or to establish another permanent placement
for the child. 42 U.S.C. § 675(1). The state must also implement a case
review system that provides for administrative review of the case plan at least
every six months and judicial review no later than eighteen months after
placement and periodically thereafter. 42 U.S.C . § 675(5)(B) and (C). The
purpose of the judicial review is to "determine the future status of the child"
including whether the child should be returned to its biological parents,
continued in foster care for a specified period, placed for adoption, or because
of the child's special needs or circumstances, continued in foster care on a long
term basis. 42 U.S.C. § 6 75(5)(C).
Maryland receives considerable federal funds pursuant to this Act.
Acc ordingly, the Maryland General Assembly has enacted legislation to
comply with the federal requ irem ents. Under M arylan d's statutory scheme, for
19
those children committe d to a local department of social services the
department is required to develop and imple ment a pe rmanenc y plan that is in
the best interests of the child. F.L. § 5-525.
In developing the perm anency plan, the depa rtment is requ ired to
consider a statutory hierarchy of placement options in descending order of
priority. F.L. § 5-525(c). First and foremost, the department must consider
returning the child to the ch ild's natur al paren ts or gua rdians. F.L. § 5525(c)(1). If reunifica tion with the biological parents is not possible, the
department must consider placing the child with relatives to whom adoption,
guardianship, or care and custody, in descending order of priority, are planned
to be granted. F.L. § 5-52 5(c)(2). If placement with relatives is not possible,
then the department must consider adoption by a current foster parent or other
approved adoptiv e famil y. F.L. § 5-525(c)(3). Only in exceptional situations
as defined by rule or regulation is a child to be placed in long term foster care.
F.L. § 5-525(c)(5).
If it is determined that reunification is not possible and that adoption is
in the child's best interests, the juvenile court lacks ju risdiction to fin alize this
plan. In re Darius A., 47 Md . App. 232 , 235, 422 A .2d 71, 72 (1 980); see also
F.L. § 1-201. Instead, unless the parents consent to the adoption of their child,
the department is required to p etition the circuit court for guardian ship
pursuant to F.L. § 5-313. If the circuit court finds by clear and convincing
evidence, after considering the statutorily enumerated factors, that it is in the
best interest of a child previously adjudicated a CINA for parental rights to
be terminated, the circuit court h as authority to grant the department's petition
for guardianship. Such award carries with it the right for the department to
consent to the adoption of the child. F.L. § § 5-31 1 and 5-317(f).
The overriding theme of both the federal and state legislation is that a
child should have permanency in his or her life. The valid prem ise is that it is
in a child's best interest to be placed in a permanent home and to spend as little
time as possible in foster care. Thus, Title 5 of the Family Law Article seeks
to prevent the need for removal of a child from its home, to return a ch ild to
its home when possible, and where returning home is not possible, to place the
child in another permanent placement that has legal status.
335 Md. at 103-06, 642 A.2d at 203-05.
20
2.
THE ROLE OF AND REQUIREMENTS ON THE TRIAL COURT
We explained the role of and requirements on trial courts in applying Subtitle 8
of Maryland’s Family Law Article in our opinion in In re: Damon M., pointing ou t that:
Prior to 1998, the responsibility for developing a perm anency plan for a child
in foster care was entrusted to the local department of social services. Md.
Code (1984, 1991 Rep l. Vol., 1995 Cum. S upp.) § 5-5 25 (c) of th e Family
Law Article. Before 1996, a plan developed by the local department was
reviewed by the court, together with the report and recommendation of the
Foster Care Review Board, as a part of the disposition review hearing the court
was required to conduct. M d. Code (1984 , 1991 Repl. Vo l. ) § 5-544 (3) of the
Family Law Article. As a result of the amendment of the Juven ile Causes Act
in 1996, see Ch. 595, Laws of 1996, the juvenile court was mandate d to "hold
a hearing to review the implementation of a permanency plan" for each child
in foster care within 10 months of the disposition hearing in which the CINA
finding was made. Md. Code (1996 , 1997 C um. Su pp.) § 3 -826.1 of the Co urts
and Judicial Proceedin gs Article. It is of interest to note that the statute
provided that if the child was to be "continued in placement for a specified
period ," then the co urt would have to de termine "the extent of c omplianc e with
the permanency plan." § 3- 826.1 (d). The subsequent amendment to § 3-826.1,
see ch. 539, Laws of 1998, to make it conform with the Federal Adoption and
Safe Families Act of 1997 effected a significant change. Now, the court has
the responsibility for determining the permanency plan, § 3-826.1 (a) (1) and
justifying the placement of children in out of home placements for a specified
period or on a long-term or perm anent basis , § 3-826.1 ( d), in addition to
condu cting pe riodic, six month review s. § 3-82 6.1 (f).
In re: Damon M., 362 Md. at 430-31 n.1, 765 A.2 d 624 n.1 . We con tinued, exp laining that:
21
Section 3-826.1, [now c odified as §3-823]
[10]
requires the court, not
10
Effective October 1, 2001, the portion of Title 3 of the Courts and Judicial
Proceedings Article con taining the sta tutory provision s governin g child in need of assistance
proceedings (the “Juvenile Causes Act”) was recodified. Section 3-826.1, recodified as §3823, now reads as follows:
§ 3-823. P ermanen cy plan for ou t-of-hom e placeme nt
(a) Definition. -- In this section, "out-of-home placement" has the meaning
stated in § 5-50 1 of the Family L aw A rticle.
(b)permanency plann ing hearing. -(1) The co urt shall hold a permane ncy planning hearing:
(i) No later than 11 months after a child in a
CINA proceeding enters an out-of-home
placement to determine the permanency plan for
the child committed under § 3-8 19 (b) of th is
subtitle; or
(ii) Within 30 days after the court finds that
reasonab le effo rts to reun ify a child with the
child 's parent or guardian are n ot required based
on a finding that a circumstance enumerated in §
3-812 of this su btitle has occurr ed.
(2) For purposes of th is section, a ch ild shall be co nsidered to
have ente red an ou t-of-hom e placeme nt 30 days afte r the child
is placed into an o ut-of-h ome p laceme nt.
(3) If all parties agree, a permanency planning hearing may be
held on the sam e day as th e reaso nable e fforts h earing.
(c) Same -- Reque sts for review. -(1) On the written re quest of a party or on its own motion, the
court may schedule a hearing at any earlier time to determine a
permanency plan or to review the implementation of a
permanency plan for any child committed und er § 3-819 of this
subtitle.
(2) A written requ est for review shall state the reason for the
reques t and ea ch issue to be rais ed.
(d) Distribution of permanency plan. -- At least 10 days before the permanency
planning hearing, the local department shall provide all parties and the court
(contin ued...)
22
10
(...continued)
with a c opy of th e local d epartm ent's perm anenc y plan fo r the chil d.
(e)Determinations to be made at hearing. -- At a permanency planning hearing,
the court sh all:
(1)Determ ine the child's p ermanen cy plan, whic h may be:
(i) Reunific ation with th e parent or g uardian;
(ii) Placeme nt with a rela tive for:
1. Adoption; or
2. Custody an d guardian ship;
(iii) Adoption by a nonrelativ e;
(iv) Guard ianship by a no nrelative;
(v) Continuation in a specified placement on a
permanent basis because of the child's special
needs or c ircumstanc es;
(vi) Continuation in placement for a specified
period because of the child's special needs or
circumstances; or
(vii) Independent living; and
(2) For a child who has attained the age of 16, determine the
services needed to assist the child to make the transition from
placem ent to ind epend ent livin g.
(f) Continuation of placement for a specified period. -- The court may not
order a child to be c ontinued in a placeme nt under su bsection (e) ( 1) (v) or (vi)
of this section unless the court finds that the person or agency to which the
child is committed has documented a compelling reason for determining that
it would n ot be in the b est interest of th e child to:
(1) Return h ome;
(2) Be referred for termina tion of parental rights; or
(3) Be placed for adoption or guardianship with a specified and
appropriate relative or legal guardian willing to care for the
child.
(g) Placement for adoption. -- In the case of a child for wh om the court
determines that the plan should be changed to adoption under subsection (e)
(1) (iii) of this sec tion, the cour t shall:
(1) Order the local dep artment to file a petition for guardians hip
in accordan ce with Title 5, Sub title 3 of the Fa mily Law A rticle
within 30 days or, if the local department does not support the
(contin ued...)
23
10
(...continued)
plan, within 60 days; and
(2) Sched ule a TPR hearing instead of the next 6-month review
hearing .
(h) Periodic reviews. -(1) (i) Except as provided in subparag raphs (ii) and (iii) of this
paragraph, the court shall conduct a hearing to review the
permanency plan at least ev ery 6 month s until commitm ent is
rescind ed.
(ii) The court shall conduct a review hearing
every 12 months after the court determines that
the child shall be continued in out-of-home
placement with a specific ca regiver w ho agrees to
care fo r the chil d on a p erman ent bas is.
(iii) 1. Unless the court finds good cause, a case
shall be terminated after the cou rt grants custody
and guardians hip of the c hild to a relative or other
individ ual.
2. If the Court finds good cause not
to termina te a case , the court shall
conduct a review hearing every 12
months until the case is terminated.
(2) At the rev iew hearin g, the court sh all:
(i)determine the continuing necessity for and
appropriate ness of the commitm ent;
(ii)determine the extent of compliance with the
permanency plan;
(iii)determine the extent of progress that has been
made toward alleviating or mitigating the causes
necessitating commitm ent;
(iv) Project a reasonab le date by which a child in
placement may be returned home, placed in a
preadoptive home, or placed under a legal
guardians hip;
(v) Evalua te the safety of the child and take
necessary measures to protect the child; and
(vi) Change the perma nency plan if a change in
(contin ued...)
24
later than 11 months after a child found to be in need of assistance has been
placed in foster care, see also Md. Code (1989, 1991 Repl. Vol., 1997 Cum.
Supp .) § 5-501 (m) of the Family Law Article, to hold a permanency planning
hearing to de term ine th e per man ency plan for that child. § 3-826.1 (a) (1)
[now §3-823(b)(1)]. At that hearing, for each child in placemen t and in
determining the plan, the court is required to make certain decisions and
findings, § 3-826.1 (c), [now §3-823(e )] specifically, wh ether the ch ild should
be: returned to the parent or guardian, § 3-826.1 (c) (1) (i) [now §3823(e)(1)(i)]; placed w ith relatives to whom adoption o r guardians hip is
granted, § 3-826.1 (c) (1) (ii) [now § 3-823(e)(1)(ii); placed for adoption , §
3-826 .1 (c) (1) (iii) [now §2-823(e)(1)(iii)]; emancipated, § 3-826.1 (c) (1)
(iv) [now dele ted]; or because of the child's special needs or circumstances,
10
(...continued)
the permanency plan would be in the child's best
interest.
(3) Every reasonable effort shall be made to effectuate a
permanent placement for the ch ild within 24 months a fter the
date of initial pla cemen t.
(i) Notice and opportun ity to be heard. -(1) In this subsection, "preadoptive parent" means an individual
whom a chi ld placem ent a gency, as defined in § 5-301 of the
Family Law Article, approves to adopt a child who has been
placed in the individual's home for adoption before the final
decree of ado ption.
(2) If practicable, the local department shall give at least 7 days'
notice before any hearing con ducted under this section to the
child 's foster parent, preadoptive parent, or relative providing
care fo r the chil d.
(3) The foster paren t, preadop tive parent, relative, or an attorney
for the foster parent, preadoptive parent, or relative shall be
given a n oppo rtunity to b e heard at the he aring.
(4) The foster parent, preadoptive parent, relative, or attorney
may not b e con sidered to be a par ty sole ly on the basis of the
right to notice and opportun ity to be heard provided under this
subsec tion.
(j) Written reports. -- At a review h earing und er this section, th e court shall
consider any written report of a local out-of-hom e placement review board
require d unde r § 5-54 5 of the Family L aw A rticle.
25
continued in placement on a permanent or long-term basis or for a specified
period ." § 3-826.1 (c) (1) (v) and (v i) [now § 3-82 3(e)(1)(v) and (vi)]. There
are restrictions on the court's ability to continue a child in placement because
of the child's special needs or circum stances. § 3-826.1 (d) [no w §3-823(f)].
That section prohibits the court from using that option
"unless it finds that the agency to which the child is committed
has docume nted a com pelling reaso n for determ ining that it
would not be in the best interest of the child to:
"(1) Return home;
"(2) Be referred for termination of parental rights; or
"(3) Be placed for adoption or guardianship with a specified and
appropriate relative or legal guardian willing to care for the child."
Section 3-826.1 (f) [now §3-823(h)] mandates periodic reviews of the
permanency plan by the court. Subsection (f) (1) (i) [now §3-823 (h)(1)(i)]
provides that such reviews will be "no less frequently than every six months
until commitment is rescinded." If, however, at the permanency planning
hearing or a subsequent review hearing, the court, inter alia, orders a child
continued in permanent foster care, the court is no longer required to h old the
review hearings at six month intervals. Subsection (f) (1) (ii) [now §3823(h)(1)(ii), now revised to req uire review hearings ev ery 12 mon ths.]. As is
true of the initial pe rmanenc y planning hearing, the court must make some
determinations at the he aring to review the perm anenc y plan. § 3-826.1 (f) (2)
[now §3-823(h)(2)]. Among other things, in addition to determining whether
the commitment remains necessary and appropriate, subsection (f) (2) (i) [now
§3-823(h)(2)(i)], and evaluating the progress made toward alleviating or
mitigating the causes of the commitment, subsection (f) (2) (iii) [now §3823(h)(2)(iii)], the court is required to "determine the extent of compliance
with the permanency plan," subsection (f) (2) (ii) [now §3-823(h)(2)(ii), and
to change it "if a change in the permanency plan would be in the child's best
interest." Subse ction (f ) (2) (v) [ now § 3-823 (h)(2)(v i)].
The permanency plan is an integral part of the statutory scheme designed to
expedite the movement of Maryland's children from foster care to a permanent
living, and hop efully, family arrangem ent. It provides the goal toward which
the parties and the court are committed to work. It sets the tone for the parties
and the court and, indeed, may be outcome determinative. Services to be
provided by the local social service departme nt and com mitments that must be
made by the parents and children are determined by the permanency plan. And,
because it may not be changed w ithout the court first determin ing that it is in
26
the child's best interest to do so, the permanency p lan m ust b e in th e chi ld's
best interest. These are the reasons, no doubt, that th e court is cha rged with
determining the plan and w ith perio dically rev iewing it, evaluating all the
while the extent to which it is being complied with.
It is true, of cou rse, that a pare nt will have lost custody before a permanency
plan will have been developed. Nevertheless, once determined, because the
permanency plan sets out the anticipated permanent placement, to the
achievem ent of wh ich the "reaso nable effo rts," r equired by § 3-826.1 (f) (3)
[now §3-823(h )(3)], must an d will be dire cted, it can no t be totally divorced
from the iss ue and, in p oint of fac t and in a rea l sense, actua lly is a part of it.
Moreover and in fact, when the plan is reunification, there necessarily is, on
the part of the court and, certainly, the parent, an expectation - more than a
hope - that the parent will regain custody. That is, after all, the point of the
plan and the reasonable efforts, including the provision of services to the
family, so necessary to achieving compliance.
Id., 362 Md. at 435-37, 765 A.2d at 627-28. As In re: Damon M. observes, the purpose of
a permane ncy plan is to set th e direction in w hich the pa rent, agencie s, and the co urt will
work in terms of reaching a satisfactory conclusion to the situation. Once set initially, the
goal of the permanency plan is re-visited periodically at hearings to determine progress and
whether, due to historical and contemporary circumstances, that goal should be chang ed. It
is not the purpose of the initial permanency plan hearing, however, to resolve all issues
involved in that final resolution. If that were the case, there would be no need for review of
how, on a regular basis, the plan is progressing or not. Also as In re: Damon M. indicates,
the initial permanency plan hearing is to be held and conducted expeditiously. Protracted
proceedings in establishing the initial plan defe at the purpo se of the statu te. The statute
presumes that, unless there are compelling circumstances to the contrary, the plan should be
27
to work toward reunification, as it is presumed that it is in the best interest of a child to be
returned to h is or her natu ral parent.
D.
THE STANDARD OF REVIEW
In In re: Damon M. we held th at, despite their in terlocutory nature, orders of court
regarding perman ency plan s are im media tely appea lable. Id. 362 Md. at 438, 765 A.2d at
628-29. The appellate standard of review as to the overall determination of the hearing court
is one of “abuse of discretion.” Because children and fundamental rights are at stake, and
the fact that speed and stability are desirable where permanency plans are concern ed, it is
useful to discuss at some length what precisely “abuse of discretion” means in the context
of review of a permanency plan order. In In re Adop tion/Gua rdianship No. 3598, 347 Md.
295, 701 A.2d 110 (1997), we described “abuse of discretion” as follows:
Judicial discretion was defined in Saltzgaver v. Saltzgaver, 182 Md. 624, 635,
35 A.2d 810, 815 (1944) (quoting Bowers' Judicial Discretion of Trial Cou rts
at P 10) as "th at power of decision exercised to the necessary end of awarding
justice and based upon reason and law, but for which decision there is no
special governing statute or rule." It has also been defined as a "reasoned
decision based on the weighing of various alternativ es." There is an abuse of
discretion "where no reaso nable person would take the view adopted by the
[trial] court," or when the cou rt acts "without reference to any guiding rules or
princip les." An abuse of discretion may also be found w here the ruling under
consideration is "clearly against the logic and effect of facts and inferences
before the cou rt," or w hen the ruling is "volatile of fac t and log ic."
Questions within the discretion of the trial court are "much better decided by
the trial judges tha n by appellate courts, and the decisions of such judges
should only be disturbed where it is apparent that some serious error or abuse
of discretion or autocratic action has oc curred." In sum, to be reversed “the
28
decision under consideration has to be we ll removed from a ny center mark
imagined by the reviewing court and beyond the fringe of w hat that court
deems minimally acceptable.”
347 Md. at 31 2-13 , 701 A.2d at 118-19 (some intern al citations omitted).
For cases involving the custody of children generally, our precedents establish a three
part review of the decisions of the lower courts, addressing the findings of fact, conclusions
at law, and the determination of the court as a whole. We set forth the rule for review of
custody cases in Davis v. Dav is, 280 Md. 119, 372 A.2d 231 (1977), where we explained:
Maryland Rule 886 (applicable to this Court) and, in identical language,
Rule 1086 (applicable to the Court of Special Appeals) provide the standard
of review of actio ns tried w ithout a j ury. [11] In such actions, the app ellate
courts of this State "review the case upon both the law and the evidence, but
the judgment of the lower court will not be set aside on the evidence unless
clearly erroneous and due regard will be given to the opportunity of the lower
court to judge the credibility of the witnesses." Rule 886 & 1086. The "clea rly
erroneous" concept is no newcomer to Maryland procedure: The predecessor
of Rule 886 (adopted effective January 1, 1957 as Rule 886 a), General Rules
of Practice an d Proced ure, Part Th ree, III, Rule 9 c (effectiv e September 1,
1944), contained the same scope of review embodied in the present rule;
moreover, prior to the standard's codification as a rule, it was the time-honored
practice on appeals to this Court in equity actions to give great weight to the
chan cello r's findings of fact. And we have heretofore noted that these rule s in
essence merely conformed the scope o f review in nonjury action s at law to the
scope of review we had always applied in equity appeals. Nothing in Rule 886
indicates that it does not apply to all cases tried without a jury, and we have
explicitly held that the rule applies when we review nonjury criminal causes
(under Rule 772), nonjury defective delinquency cases, child support awards,
and child custody cases. Hild v. Hild , 221 Md. 349, 359, 157 A. 2d 442, 448
(1960). Since Hild we have consistently applied the "clearly erroneous" portion
of Rule 886 (or that standard without citation to the rule) in o ur review of child
11
The clearly erroneous standard of Rules 886 and 1086 are now combine d in Rule
8-131 (c).
29
custody awards. Moreover, even prior to our explicit recognition in Hild of the
applicability of Rule 8 86, our pre decessors in essence u tilized the clearly
erroneous standard when reviewing factual determinations on appeals of child
custody actions. Since Rules 886 and 1086 are identical, w hat we sa y with
respec t to one is equally ap plicable to the oth er.
Having determine d that Rule 886 is controlling in child custody cases,
we now consider the extent to which th e "clearly errone ous" portio n of it
applies in such appeals. The words of the rule itself make plain that an
appellate court cannot set aside factual findings unless they are clearly
erroneous, and this is so even when the chancellor has not seen or heard the
witnesses. On the other hand, it is equally obvious that the "clearly erroneous"
portion of Rule 8 86 does n ot apply to a trial co urt's determinations of legal
questions o r conclusio ns of law based up on finding s of fact.
Although these two proposition s are clear, there is some co nfusion in
our cases with respect to the standard o f review a pplicable to the c hancello r's
ultimate conclusion a s to w hich party shou ld be awa rded custody.
Notwithstanding some language in our opinions that this conclusion cannot be
set aside unless clearly erroneous, we believe that, because such a conclusion
technically is not a matter of fact, the clearly erroneous standard has no
applicab ility. However, we also repudiate the suggestion contained in some of
our predecess ors' opinions, a nd relied up on by the Co urt of Spe cial Appeals
in Sullivan v. Auslaender, 12 Md. App. 1, 3-5, 276 A. 2d 698, 700-01 (1971),
and its progeny, that a ppellate cou rts must exe rcise their "own sound
judgmen t" in determining whether the conclusion of the chancellor was the
best one. Quite to the contrary, it is within the sound discretion of the
chancellor to award custody according to the exigencies of each case, and as
our decisions indicate, a reviewing court may interfere with such a
determination only on a clear showing of abuse of that discretion. Such broad
discretion is vested in the cha ncel lor becau se on ly he sees the witnesses and
the parties, hears the testimony, and has the opportunity to speak with the
child; he is in a far better position than is an appellate court, which has o nly a
cold record before it, to weigh the evidence and determine what disposition
will bes t promo te the w elfare o f the m inor.
In sum, we point out three d istinct aspe cts of review in child
custody disputes. When the appellate court scrutinizes factual findings,
the clearly erroneous standard of Rules 886 and 1086 applie s. [Seco ndly,]
[i]f it appear s that the c hancello r erred a s to matte rs of law, furth er
30
proceedings in the trial court will ordinarily be required unless the error
is determined to be harmless. Finally, when the appellate court views the
ultimate conclusion of the chancellor founded upon sound legal principles
and based upon factual findings that are not clearly erroneous, the
chance llor's decision should be disturbed only if there has been a clear
abuse of discr etion.
280 Md. at 12 2-26, 372 A.2d at 232-34 (some intern al citations omitted; emphasis add ed).
See also Robinson v. Robinson, 328 Md. 507, 513, 615 A.2d 1190, 1193 (1992); McCready
v. McCready, 323 Md. 476, 484, 593 A.2d 11 28, 1131 (1991); Lipiano v. Lipiano, 89 Md.
App. 571, 576, 598 A.2d 854, 857 (1991 ), cert. denied, 325 Md. 620 , 602 A.2d 710 (1992).
In CINA cases where there has been found a past instance of abuse or neglect, the
Legislature dictates that specific supporting facts be determined by the hearing court. Md.
Code (1974, 2002 Repl. Vol.), Cts.& Jud. Proc. Article, § 3-801 defines a “child in need of
assistance (CINA) as “a child who requires court intervention because: (1) the child has been
abused, has been neglected, has a develo pmental 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.” As noted supra, Md. Co de (1974 , 2002 Re pl.
Vol.), Cts. & Jud. Proc. Article, § 3-823(f) requires that the trial court not order long term
foster care unless the court finds “that the person or agency to which the child is committed
has documented a compelling reason for determining that it would not be in the best interest
of the child to: (1) return home; (2) be referred for termination of parental rights; or (3) be
placed for adoption or guardianship with a specified and appropriate relative or legal
guardian willing to take care for the child” (emph asis added ). As we h ave pointe d out,
31
supra, §3-823(f ) sets forth a statutory hierarchy of placement options in descending order of
priority. First and foremost, the court must consider returning the child to the child’s parent
or parents . In re Adoption/Guardianship Nos. J9610436 and J9711031, 368 Md at 677-78,
796 A.2d at 78 4-85; In re: A doptio n/Gua rdians hip No . 10941, 335 Md. at 105-106, 642
A.2d at 204-205.
Where the child has been declared a “child in need of assistance” because of abuse
or neglect, the trial court is further constrained by the requirements of §9-101.12 This section
directs the court to den y custody to the parent unless the court makes a specific finding that
there is no likelihoo d of furthe r abuse or n eglect. 13
Md. Code (1974, 1999 Repl. V ol.),
Family Law A rt., § 9-101(b ); see also In re Mark M., 365 Md. at 706, 782 A.2d at 343. The
burden is on the parent previously having been found to have abused or neglected his or her
child to adduce evidence and persuade the court to make the requisite finding under § 9101(b). See In Re: Adoption No. 12612, 353 Md. 209, 232-39, 725 A.2d 1037, 1048-52
(1999). The language of §9-101(b) notwithstanding, it does not require that the hearing
judge be a prophet or soothsayer and somehow “know” that there w ill never be a future
incident of abuse or neglect. Such a finding would require unobtainable proof on the part of
12
For the full text of §9-101, see supra n. 8.
13
“The Legislature and the Supreme Court have both expressed their view that
children should not be uprooted from their family but for the most urgent reasons. We add
to that admonition the further suggestion that the reasons should be clearly explicated by the
trial judge who assumes that awesom e responsib ility and that his find ings of fac t should
expressly support his conclusions.” In re Jertude O., 56 Md. App. 83, 99, 466 A.2d 885, 894
(1983).
32
the parent, and omniscience on the part of the judge. Such a construction would render the
statute nonsense.14 As we pointed out in In re: Adoption No. 12612, 353 Md. 209, 238, 725
A.2d 1037, 10 51(1999):
Section 9-101 focuses the court’s attention and gives clear direction in the
exercise of its discretion. It does not set an insurmountable burden; even upon
substantial evidence of past ab use or neglect, it does not require a finding that
future abuse or neglect is impossible or will, in fact never occur, but only that
there is no likelihood – no probability – of its recurrence. Webster defines
likelihood as probab ility, something tha t is likely to happen. (emphases add ed).
“The fear of harm to the child or to society must be a real one predicated upon hard
evidence, it may not be simply gut reaction or even a decision to err-if-at-all on the side of
caution.” In re Je rtrude O ., 56 Md. App. at 100, 466 A.2d at 894.
A.
As we noted supra, the first step in our review of the case sub judice is to scrutinize
the factual findings of the juv enile court under the clearly erroneous standard. W e reiterate
that one of the findings re quired here is a finding by a preponderance of the evidence that
there is no likelihood abuse or neglect is likely to reoccur. 15 The juvenile judge’s findings,
presented from the bench in support of her 28 March 2001 order, were as follows:
14
This Court stated in D & Y, Inc. v. Winston, 320 Md. 534, 538, 578 A.2d 1177, 1179
(1990), that “construction of a statute which is unreasonable, illogical, unjust, or inconsistent
with common se nse should be avo ided.” (Citations omitted.) See also Blandon v. State, 304
Md. 316, 319, 498 A.2d 1195, 1196 (1985) (“[R]ules of statutory construction require us to
avoid construing a statute in a way which wo uld lead to absurd results.”); Erwin and Shafer,
Inc. v. Pabst Brewing Co., 304 Md. 302, 311, 498 A.2d 1188, 1192 (1985) (“A court must
shun a construction of a statute which will lead to absurd consequences.”)
15
See Shur upoff, 372 Md. at 657, n.3, 814 A.2d at 554, n.3.
33
At long last, the ev idence is all over, and I’m going to do
what I promised Yve I would do. An d it’s not an ea sy thing to
do. It hasn’t been easy. This case has not been easy from the
very beginning , because o f the parties involved in it. And I
don’t mean the attorneys and the foster parents and the social
workers. I don’t mean that at all. I mean, because of Yve and
her mom.
I think that I remarked the last time, and I will reiterate
again that I think tha t I’ve had this c ase almost 100 percent of
the time the hearings have come in. I believe that I even had the
eme rgen cy, I had the adjudication, I had the disposition, uh –
I’m the judge who returned Yve to her mom, uh – and
obviously hindsight’s 20/20, but that was a major disaster.
I’ve been the judge that’s seen Yve and watched her
progress since she came back from North Carolina. I’ve seen
Yve on many oc casions. Sh e’s come in to see m e. We usu ally
don’t have her sitting here. Sometimes w e do, for the court
hearings, if they weren’t too controversial, we had her here.
She’s drawn me man y pictures. She’s w ritten me many
letters. We’ve had many conversations at foster care
picnics. She’s one of the first children that always comes up
to me and says hi, Judge [ ], how are you, and tells me
what’s going on with her, and introduces me to all her
friends. Sh e’s a lovely , delightful little g irl.
But, during all the year s that I’v e know n Yve , I know that
she’s not what she appears on the surf ace. She also has m any,
many proble ms. Her mom is a wonderful person, and for the
most times that she’s been in the c ourtroom, sh e’s been very,
very appropriate, very polite, respectful, uh, trying to
answer questions that were given to her, trying to give
information and has never, ever shown anything but
complete love and concern for Yve.
And I think that [Counsel for Yve S.] is right, that Yve
has always wanted to be with her mom. There’s no question
about it, and her mom has alwa ys wanted Yve with her. The
problem has been that for a good portion of this case, Mom’s not
34
been capable o f taking care of Yve. And for also a good
portion of the case, even if Mom were c apable, at certain
times, Yve’s had some real severe problems. I remember
when she first went to live with [Yve S .’s first foster family].
She had some real acting-out proble ms. As a m atter of fact,
before she even came into care, the sch ool were so concerned,
her problems were such, she was acting out in school. They
were very, very conce rned abo ut her, with what was going on,
which is, I think wh at eventually bro ught the D epartmen t into
the case, was the school’s concern, because they saw her on an
everyday basis, and her inability to conform her b ehavior, uh -brought her to the attention of, uh, the authorities.
There’s no doub t in my mind that Ms. S . absolutely
adores Yve , and there’s n o doubt in my mind that Yve adores
her mom. But, I cannot at this time return Yve to her mom.
Although she’s doing much better than at any time that I’ve ever
seen her, just a few things stand out that are indicative of
decisions that she made that put Yve at risk.
One of the reasons that she lost her job, and who
knows what the real reason is, but we’ve had a lot of people
testify about it. Ms. S. testified about it, Ms. Rose [the social
services case wo rker] testified a bout it, the min ister testified
about it, uh - - is that week she chose to go to Suburban
Hospital rather, with a friend that was having a problem, rather
than go to wor k. Now , I certain ly admire her for doing t hat.
She is a good friend and wants to help the person, but that
was one of the straws th at broke the camel’s back, about
why she lost her job.
On Sunday, I think that it’s wonderful that she works
with women at the homeless center, because she herself was
there for a w hile. She und erstands ho w impo rtant that it is to be
involved there. But, she doesn’t need to bring that woman
around Yve. Yve’s a child who needs constant care,
attention, structure, as well as love.
Uh - - I’m very aware of Y ve’s condition when she came
back from North Carolina and all of the things that happened to
her in North Carolina. Uh - - that situation was very detrimental
35
to her. She ended up being plac ed, by her mo m, left in the care
of some p eople w ho we re pretty ba d peop le. Hopefully nothing
happened to her. We don’t kn ow for sure w hether it did or it
didn’t, but she en ded up h aving to go into foster care there, and
then coming back here.
As recently within the last two weeks, she says she
wanted to kill herself. That’s definitely a child with special
needs. Most ten-year-olds do not go aro und saying th ey want to
kill themse lves. She says tha t she wan ts to be with her mom,
because her mom needs her. She wants to make her mom
happy. That’s a very big burden for a ten-y ear-old g irl. It’s
really hard for her to take care of herself, much less feel the
responsibility of having to take care of her mom.
I don’t know, there’s no way to ever know whether
Ms. S. will be able to take care of Yve. I hope so, but it is
certainly not now. And Yve asked me to make a decision, and
I’m not going to have that decision be that we’ll work towards
getting her home with her mom, because I don’t see th e realistic
expectation of that. I hon estly don’t.
Taking care of her on weekends, and I’m so glad that
the visits have been su ccessful, is one thing, but trying to
manage a child like Yve, with a ll of the, the special attention
that she needs, and all the coordination th at is involved w ith
getting her to the therapist that she needs, working with the
school system. Mom’s tried, she really has tried, and I give
her all kinds of credit for tha t. I think that she’s done a
wonderful job with that. But no one today says that she’s
able to do it, and I don’t know when she’ll ever be able to do
it.
The job situation is c ertainly part of it, but that’s not the
whole thing. It’s a judgment consideration. I understand what
Ms. Rose talked abou t her conce rn about the escalation in
behavior, and I also understand that Dr. Harold [Y vonne S’s
psychiatrist] sees that not as a problem. He talked about the
lack of communication. I was struck not by the same things that
Ms. Rose was struck by, with Ms. S.’s testimony, but her - inability sometimes to listen to what the question is, and answer
36
it. She often answ ers questions that are asked. A nd Dr. H arold
alluded that with - - Ms. Rose testified that she tried to say to
Ms. S., I can’t read his writing, I don ’t understan d what he
means, you’ve got to tell me what the exp lanation w as, and it
became a big problem.
Somehow or another, that lack of communication, and I
don’t really know why, but it happens a lot. And today, when
Ms. S. was testifying, she often answered questions that were
not the questions that were asked. The information was
certainly beneficial and appropriate, but it was not the
question that was asked.
My point in bringing that up is that Yve is a child who
requires consta nt, vigila nt atten tion, and she needs clear
guidelines, structure. She needs to know, she has to act
within something that she can anticipate. And the progress
that she’s ma de in the [current foster parent’s] home, from
the testimony has been, because of the structure that they’ve
been able to provide for her.
I have extreme concerns about the mom ever being
able to provide the structure that Yve needs. So, I know that
it’s taken me a long time to get here, b ut it’s taken us a long
time, and we’ve heard a lot of evidence. And, I don’t think that
any of it wasn ’t beneficial. I was very interested to hear from,
us - - Ms. S.’s m inister, and I’m so happy fo r her that she has
him in her life, and that she has the extended church. I think that
information was very, very beneficial, and I’m glad for her that
she has that. And it’s a real netw ork that can help her.
I think that it’s wonderful that she has Dr. Harold.
Clearly, they have an ex cellent relationship, and she’s made
so much progress from where she’s ever since the 50 - - how
many months, four, six, since we’ve been inv olved in th is
case, uh, she’s made wonderful progress, and she’s doing
really, really well. But I just cannot make the decision that
she’s going to be able to take care of Yve.
So, I am goin g to a dopt the p ermanen cy plan of longterm foster care. I feel that it’s appropriate that she remain,
where she has been, for over thirty-some months, where she
37
has done very well. She’s blossom ed the re. On the other
hand, I think that it’s very appropriate that she continue to have
visitation with her mom, and as frequent - - certainly a minimum
of once a week, and as long as both of them are able to ma intain
safe ty.
Again, my priority i s Yve. She is number one. It’s my
understanding from listenin g to Ms. Rose testify that she’s
hoping to get back to weekend visits, very, very soon, and I
would certainly hope tha t’s what ha ppens. B ut, I am goin g to
put the visitation minimum of once a week, under the direction
of the Department, because clearly, in this case, things change.
Things change with Yve, and things change with her mom.
(emphases added ). It is apparent to us from these “findings” that the best interest of the child
standard was misapplied in this case. As detailed supra, the proper issue before the hearing
judge was whether there was sufficient evidence that further a buse or ne glec t was unl ikely. 16
Except to the extent that the parent’s ability, or lack thereo f, to deal w ith the need s of a child
rise to the level of neglect, findings tha t the child has “some real sev ere problems” or “has
special needs” or “requires constant, vigilant attention,” or has mentioned suicide,17 are not
relevant to this determ inati on. S imila rly, as we h ave p ointed out repeat edly, the fact that the
child may be “doing very well,” or may have made progress in the environment of foster
care, or even “blossomed there,” or may feel that she needs to take on the burden of caring
for the parent, are also largely no t telling o n the m ain issue . “The fact that [a parent] has a
16
We note that the form orders em ployed in this case, such as the 28 March 2001 and
the 20 December 2001 orders, left one line blank for the reasons jus tifying remov al. In both
instanc es, typed o n the line provid ed wa s “welf are and /or safe ty of the re spond ent.”
17
This Court is unable to find any mention in the record of Yve S. discussing suicide
prior to the hearing judge’s 28 March 2001 ruling. A remote mention of such a
conve rsation, h owev er, does occur a fter the in itial ruling . We are puzzled, the refore, as to
how s uch a f inding could b e mad e whe n it was .
38
mental or emotion al problem and is less tha n a perfec t parent or that the children may be
happier with their foster parents is not a legitimate reason to remove them from a natural
parent competent to care for them in favor of a stranger.” In re: Barry E., 107 Md. App. at
220, 667 A.2d at 938.
Reading the remaining “findings” in a light mo st charitable to the hearing judge, we
note that she seemed to be concerned about the m other’s ability to ex ercise soun d judgm ent,
doubt about which the trial judge felt somehow placed Yve S. at risk. The hearing judge
neither states how these concerns rose to the level of, or somehow indicate a future likelihood
of, abuse or neglect, nor is it particularly clear ho w any of the judge’s co ncerns, indiv idually
or collectively, actua lly put Yve S. at any perceivable risk. More to the point, however, the
“findin gs” the mselve s are no t suppo rted by the relevan t record eviden ce.
The first of these findings is the assumption by the trial judge that one of the reasons
Yvonne S. lost her job was because she chose to visit a sick friend in the hospital instead of
going to work on time. Yvonne S did testify that she went to the hospital one day as the
result of a friend passing away, and that as a result she was slightly over two hours late for
work that day. The undisputed testimony, however, was that she nonetheless worked over
eight hours tha t day. T here is no testim ony in the recor d by anyone that her being late for
work that day was the reason for the loss of the particular job. To the contrary, the
uncontraverted testimony from Yvonne S. and from her psychiatrist, Dr. Harold, was that
the reason she lost her job was because of the scheduling demands made upon Ms. S. by the
39
case worker, Ms. Rose, and by the numerous cou rt hearings in this case. Regard ing Ms. S.’s
employment discharge, Ms. Rose testified on cross-examination:
Petitioner’s Counsel: How many phone contacts did she have
with the employer prior to his informing her that she was going
to be fired?
Respondent’s C ounsel: A nd I w ould obje ct as to releva ncy.
COU RT: I’ll allow it.
A: Since Ms. S. first began working there?
Q: Yes
A: This will just be off the top of my head, because I - - would
have to go back through my notes. I would say probably about
six.
Q: And, uh , most of th ose occurred prior to her being fired,
didn ’t the y?
A: All but one occurred prior to her being fired.
Q: But within the month prior to her being fired?
A: No.
Q: Was there one prior to the one where he told you she was
fired?
A: One - Q: Tell –
A: All of them but one were prior to the - - her being fired.
Which one a re you - -
40
Q: Okay. In the month before she was fired, how many times
did you talk to her employer?
A: Uh - - I don’t recall talking to him at all that previous month.
Q: Do you remember talking to Ms. S about having a visit with
Yve that w ould go over into a Mo nday?
A: Yes, thank you for refreshing my memory. There was one.
Q: And w hat did you say to the employer?
A: I, uh - - we were trying to offer Ms. S. extended visits. She
had mentioned at her school meeting that she didn’t have as
much information as the rest of us, ‘cause she felt that she didn’t
have that much time w ith her daughter.’ And I was trying to
come up with some plan where we could extend that. So I
offered her a visit beg inning from Friday evenin g until she could
keep her through Monday morning.
Q: And she told you that she couldn’t do that, because she had
to be at work early on Monday morning?
A: She had to be at work at nine o’clock Monday morning, yes.
Q: And in order to do that, she would have to drive Y ve to
Silver Spring in the morning, and they would have to get up too
early in the morning. It wouldn’t be good for Yve.
A: That w as her statem ent.
Q: And sh e also told you th at this was je opardizing her job , if
she continued to m ake requests of her em ployer?
A: I don’t remember her saying that it was jeopardizing her job.
My memory is that she said that her employer did not want her
to do this, because she might come in late.
Q: Was it after that, that you talked to the em ployer?
41
A: Yes
Q: And what did you say to him?
A: I asked him if this was a concern that he had?
Q: And that was before the conversation that you had with him,
where he told you that she was fired?
A: Yes
There is nothing in Ms. Rose’s testimony that supports the “finding” of the trial judge that
poor judgment was the reason for Yvonne S.’s discharge, and certainly nothing connecting
the discharg e to a visit to a frie nd in the ho spital.
Similarly, there is no su ch conne ction in any of the testimony by others who addressed
the issue of Yvonne S.’s employment. Yvonne S. testified as follows:
Q: Did Christop her Trump (Ph onetic) - A: Uh –
Q: Tell you that you were discharged?
A: Uh - - well, I had, after that, I had a meeting with two staff
people. One was human resources, two were human resources,
one was Chris Trump, and he said to me, you’ve been canceled,
which I don’t really know what canceled means. And then I
spoke to the director, who – I mean, he’s the director of the
activities department, who I’ve had excellent performance with,
who had written several letters of recommendation and excellent
job performance, which is under, the Court does have. The
situation is this. Your Honor, uh, he is, unfortunately, the
Department of Health and Human Services has placed a lot of
uh - - pressure on my schedule, uh, and he has been so
accommodating with my scheduling and you know, court dates,
42
letters that he’s written in my, on behalf of my support, which I
apprecia te im men sely.
And, uh - - because of tha t, he’s very, very concerned that
uh, because of that, I’m not going to be the re for th e reside nts...
*
*
*
*
*
Q: Did Chris Trump tell you yesterday, that you were being
discharged from the job because you were being tardy so often
and absent so often?
A: What he said w as, I said that I w as rarely ever late, th at I
would come in early much of the time to compensate for any of
the work that I missed, up - - uh, for, for court hearings or what
have you. And that is absolutely true. Rarely have I ever been
late. I would, I would go early, and not get paid for it, and that
comment w as made by the Hu man Resou rces, well, you’re not
allowed to do that. And I said, well I , I just, you know, wanted
to compensate for the time, you know, that I have missed
concerning court orders.
Chris Trump a nd I discuss ed at length about uh, the
Department and - - making demands on my time, and he
accommodated one hun dred perce nt, and he ju st, I made a
comment about the possible appeal, if I didn’t get this situation
with Yve back. And said, oh no, you mea n - - I said it might not
be now, or three months from now. He said, oh no, you mean
I’m going to h ave to look forward to going th rough this again
with you through the court system and with the Department of
Health and Human Services? And then right after that, the word
cance ling you c ame o ut.
Dr. Harold, Yvonne S.’s psychiatrist, also testified as to how the demands made by
the Depa rtment we re creating stre ss regarding Yvonn e S.’s emp loyment:
Q: And have you n oted that she’s under som e stress no, or not
under stress now?
A: Uh, the current stress is around, you know, this court hearing,
regarding custody. And so uh - - that obviously has been of
43
some stress to her. Uh, there has been some stress recently
around just the requirements that she’s had to keep, uh,
regarding caring for her daughter, and uh, complying with the
County and Co urt stipulations for uh – you know, regarding
custody.
Q: Could you explain to [the Judge] in a little detail what some
of the stresses are you are dealing with, that she’s had to face,
and what - - what she’s expressed to you, and how you’ve
helped he r deal with th at?
A: A lot of it has been around, around scheduling, uh, as has
been brought out. Uh, there has been some impact on her job,
because of , uh, sche duled activ ities regardin g, uh – school, or
meeting with Ms. Rose, or uh - - uh, scheduled things with her
daughter and her the rapist, and, her daughter’s doctor.
Schedules, in terms of family visits uh, with the Scheibels, and
that weekend exchange. So, the impact on her work schedule,
and that, that has been stressful. (E- 265-66)
The only other individual who testified on this score was Yv onne S.’s pastor,
Reverend Robinson. He testified as follows:
Q: Reve rend, do you have a ny connectio n with this
administrator at her prior employment? Is she involved in your
church, or were you just w orking with her, for - A: She’s a parishioner of our church.
Q: She’s a parishioner? And what is her name?
A: Leah Bowden.
Q: How do you spell that last name?
A: B-o-w-d-e-n.
Q: And is it your understanding that Ms. S. has lost her job at
the Potomac Nursing Home and is looking for a new job?
44
A: I don’t know if I have the liberty to - Petitioner’s Counsel: Ob jection, Your Hon or, I –
A: really answ er that.
COURT: Well, I’ll allow him, her to inquire on th e basis of h is
conversation with this lady, be cause he te stified to that, as to
being sure that she w ould be able to get her a job. So, I’ll allow
him to answ er that.
A: Okay, uh, to m y understand ing that she lo st the job, def initely
from that department that she was in. That the administrator has
indicated uh, there m ay be a possib ility in another d epartmen t.
I know that she’s also their link to several other homes in the
area, with uh, some kind of working ag reement, p artnersh ip, I
don’t know exactly, but uh –
Q: And is it your understanding that she lost the job because she
was unreliable and u ndependable - Petitioner’s Counsel: Objection.
Q: in coming to work?
Petitioner’s Counsel: Objection.
COURT: Overruled
A: Uh - - no, I was n ot told th at. I’m not fu lly acquainted w ith
exact- – all the reasons why she lost the job.
Based upon this record, the pertinent finding of the trial judge is clearly erroneous.
There is simply no competent evide nce in the record to supp ort the “finding” that choosing
to visit a friend in the hospital was given meaningful weight in the prior employer’s decision
to let go Yvonne S. As such, it cannot support a “finding” as an example of poor decision-
45
making “that put Yve at risk.” On the contrary, the record indicates, if anything, that the loss
of her former position was a consequence of dealing with the hearing court’s and the
Department’s requirements and proceedings.
Similarly, we are at a loss to understand how Yvonne S.’s religious conviction and her
volunteering to work at a homeless shelter were transformed into a de triment to Ms. S.’s
ability to give appropriate attention to her child (at the time of the 28 March 2001 hearing an
eleven year old girl) or how it placed her child at risk. Giving a homeless woma n a ride to
church is not evidence of a deficiency in judgment, and certainly is not evidence of potential
future a buse o r neglec t on the p art of th e moth er.
The third “finding” of the hearing judge explicated how she viewed, in essence, Ms.
S.’s testimonial demeanor. Apparently the trial court shared the view reflected in the
testimony of the social worker, Ms. Rose, that because M s. S. gave more information than
was requested in response to questions posed to her when testifying indicated that Ms. S.
potentially was relap sing into a m anic phase of her me ntal illness. W e shall address Ms.
Rose’s testim ony infra. The only other testimony as to M s. S.’s testimonial demeanor came
from the only participa nt qualified a nd in a position to draw a medical conclusion from such
observation, Ms. S.’s treating psychiatrist, Dr. Harold. At the 28 March 2001 hearing, D r.
Har old testif ied a s follow s reg arding M s. S.’ s ear lier te stimony:
Q: A nd, u h, were yo u able to o bser ve her tes timo ny?
A: Yes.
46
Q: And, uh, what did you observe about he r demeanor and her,
uh, u h - - h er lan guage, d uring tha t testi mon y, specific ally?
A: Really nothing out of the ordinary, from what I ob served w ith
her, having met with her over our time of, uh - - my treating her.
Q: And that would be over two years?
A: Yes.
Q: And, uh - - the social w orker exp ressed con cern, specif ically
about her jumping from subject to subject. What did you
observe a bout that?
A: I haven’t seen that in my meetings with her, nor during that
hearing.
Q: What did you observ e about her, uh – he r answers to
questions during that hearing.
A: They were directed. I guess the problem came when Ms. S.
made her statements involving religion and her views of how
that would figure into the court outcome.[18]
18
In her 15 February 2001 testimony, which apparently everyone involved assumed
would b e Ms. S.’s la st opportun ity to address the c ourt, she stated that:
I want Y ve back, Ju dge [ ], and she wan ts to be with me. I love
my daughter, and I really, really believe that I can provide a
loving, nurturing, safe home. And yes, I have used poor
judgement in the past, an d I did disap point you, in North
Carolina, but I do have better support systems now. I just wish
I could restore your faith in me. I’m trying so hard, Judge [ ],
and I’m hone stly going to say this, tha t I believe, and I’ve told
the attorney this over and over again, that you’ve been appointed
by God to mak e the right decision, and the w ord says that I need
to pray for you, and I always do, and Yve ha s complete faith in
you, and so do I. And it’s not our will be done, but God and the
(contin ued...)
47
Q: Wh at was your tak e on that?
A: Uh - - it wa sn’t anything, I thin k excessiv e, in terms of, uh - concern about hyperre ligiosity, as related to say, a m anic
episode. I didn’t see that evident there.
Q: What, what’s your, uh, thought on the fact that she raised, uh,
religion at all?
A: It, it - - you know, once again, it really wasn’t excessive to
the degree that it would, you know, w arrant conc ern abou t this
being indicative of a manic ep isode. An d actually, in fact, uh,
having taught Sunday school myself for about six years, uh, - I’ve seen very similar kind of statements, uh - - or not so much
statements, but level of expression of faith. It wasn’t anything
unusual, I tho ught.
Also, in terms of working with people who have bipolar
illness, who do becom e excessive with their religious thou ghts
and statements, it wasn’t anything near that, that degree.
Q: What are the - - what kinds of behaviors would give you
concern?
A: If the majo rity of her statem ents, say during the entire
hearing and also during meetings with myself, uh - - if those
were present, that to me would indicate some excessive
religious thoughts.
18
(...continued)
Lord’s and the Judge. And that’s the way that it is, because I
can’t see into her future, as the author and finisher of h er faith
of her life. And he’s deemed you to make the right decision,
and I believe in you. I’m just asking for you to believe in me,
and give me a chance to be her mother again.
These stateme nts, und er the cir cumsta nces, w ere neith er exce ssive no r inapp ropriate .
48
Q: And, uh - - what about her demeanor during the hearing ? Did
you have an y concern ab out that?
A: Uh - - you kn ow, it, this has been a long hearing. I mean, we
have been at this since Decemb er, looking for a decision. And
you know, to me, it seems like everybody’s kin d of dealin g with
the stress of when a decision would be made. And, you know,
at the time, that was loo king to be, th e time som ething wo uld be
decided, you know , was like, this is her, her last ditch effort in
a sense. T his is her p uttin g in h er plea, her em otions, h er, you
know, h er view o f how sh e would like this to com e out.
Q: Was there anything at all during that testimony that raised
any concern on you part?
A: No
Q: What about expressing sadness and crying?
A: Uh - - in light of what’s just at stake here, it seemed
appropriate.
Q: What w ould you see in someone that was going into a manic
episode tha t would b e differen t from that?
A: It’s much more, much more excessive. It’s much more
frequent, uh, it’s much more elevated, in terms of the degree of
the expression, and it’s also, you know, coupled with other
behaviors indicative of a manic-type episode.
We agree with Petitioner that she is no t a professional witness and, as such, fairly can be
expected not to give precise, clipped answers to questions, especially given the stakes
involved. We also agree with Petitioner that “equating her demeanor on the witness stand
to a lack of structure indicative of an inability to attend to a child who ‘needs vigilant
attention’ is a strained inferential leap at best...,” in light of the testimony of the psychia trist,
49
and particularly where the hearing judge herself quixotically states in her findings that the
additional informatio n supplied by Yvonn e S. was b oth “bene ficial and ap propriate.” T his
is hardly compelling evidence of a likelihood of future abuse or neglect. The hearing judge’s
finding is clearly erroneous.
Fina lly, the trial court found that Ms. S. was unable to care for a child with the needs
of Yve S. because “no one today says that she ’s able to do it....” That finding also it is
unsupported on this record. Dr. Harold testified on direct examination as follows:
Q: Do you, based on your work with Ms. S. for the last two
years, is it your professional opinion that she can provide a
stable, consistent and supportive family environment for Yve?
A: I would say that her case record or track record with us, and
if she contin ued to do th is well, she’s a ble to do tha t.
Q: Is there any contraindication to having custody of your
children where you have bipolar illness?
A: It depends on one’s s tability. Certainly, if som eone is
actively uh, in a manic episode, or depressed episode, uh, and if
that, depending on the severity of that, that certainly can affect
one’s ability to rear childre n. With Ms. S., uh, an d honestly, we
have tried to be as objective about this as we can, we being
myself, [and my psychiatric practice colleagues] D r. Sommers
and Ms. K azinsk i, in looking at her uh, treatments, her uh,
wellness and her abili ty to do this . And we all conclude that uh,
with her complian ce, uh - - and her lack of symptoms a t this
point, she’s ab le to do th at. And , we certainly would not
recommend otherwise, if we thou ght so. And w e’ve - - done
that with others in the past who we thought couldn’t, you know,
met obligations.
50
More germane, however, was Dr. Harold’s testimony on the level of stress full custody
would have on Yvon ne S., and the likelihood of relapse as a result of that stress:
Q: What about the effect of working with the social worker in
this case?
A: That’s been stressful, because there’s been a lot of demands placed
on Ms. S ., in regards to, uh, what she has to provide for the social
worker, in terms of documentation, uh, visits, uh - - just compliance
with wh at’s ordered by the Court.
Q: What kin d of dem ands hav e been m ade that you think are
somewhat stress-pro ducing for her?
A: Uh, Ms. S., has talked about problems with her visits,
particularly weekend visits, that were unannounced and
unexpected, uh - - that’s been stressful. She’s talked about just
having to basically prove herself, how she’s gotten some
feedback from the social worker about uh, uh - -uh, what uh, she
considers uh, I guess her duty, or her objective, uh, in working
with Ms. S - Q: W hose duty?
A: Ms.S.
Q: Th e social w orker, o r Ms. S .?
A: Uh, M s. - - the social worker’s
Q: What uh - - what about the reporting requirements? What
does the social worker ask Ms. S. to do that is somewhat
stressful? Was there something specifically that she’s asked her
to do after e very visit?
A: She’s talked about how she has to write a report, chronicling
what happens with each visit, what took place.
51
Q: What about meetings w ith therapists and other people? Are
there report re quiremen ts for that as w ell?
A: Uh - - I believe so. I’m not totally sure.
Responden t’s Counse l: I would o bject, You r Honor, a s to
relev ancy. This witness is testifying about what may be uh,
appropriate for a child welfare agen cy to do. I don’t know how
it’s relevant.
Petitioner’s Counsel: Well, I’m asking him about stressors on
Ms. S., and whether it’s really worthwhile for this to continue.
COURT: Well. I don’t think that that’s what this case is abo ut,
stressors on M s. S. [19] Why don ’t we go o nto another question.
Petitioner’s Counsel: Well, I think that it is. I think that the
Department is saying that she’s going to be mo re stressed if she
gets the child in her custody, and I’m saying that she will be less
stressed.
COURT: Well, I don’t think that you’ve said that. Why don’t
you ask that question then.
Q: Would she be more stressed or less stressed, if she’s placed,
uh, if the child is placed in her custody? Wo uld that be more
stressfu l or less str essful f or Ms . S.?
A: At this point, I would have to say uh, less stressf ul, and like
I said before, I think that the best way to uh, to uh, determine
that would b e to increase the visitation time and see h ow we ll
she hand les that.
Q: Wh y would it be le ss stressful?
19
In fact, stressors on Ms. S. are relevant to the stabili ty of her illness and the
likelihood of a relapse, which in turn is directly related to the issue of the likelihood of future
neglect.
52
A: Uh, this is what she wants. It’s what she feels able to do, uh
- - she would have proven she’s a capable parent. Uh, the
situation of custody and her uh, parenting competency will have
been resolved.
Q: When you say that she wouldn’t have to report to anyone,
you’re talking about the written reports that she has to write at
the end of every visit?
A: Yes.
Q: Have you met with the social worker a nd talked to her about
the stres ses, the re quirem ents tha t she ma kes of Mrs. S .?
A: I’ve met with the social worker once. The subject of these
things came up, although I did not talk with her directly about
that.
Q: Did you have an opportunity to observe her demeanor, and
uh - - an d man ner wit h Ms. S .?
A: Yes.
Q: And what conclusions did you come to, if any, about how she
treats her?
A: Uh –
Responden t’s Coun sel: Ag ain, Yo ur Ho nor, I w ould ob ject. I
mean, he’s indicated that he’s had one meeting with the social
worker. I just don’t think that this witn ess is, is an expert, I
mean, in that, I man - CO UR T: I’ll let h im te stify.
Responden t’s Counsel: He was called as an expert, as a
psychiatrist for the, for the mother.
COURT: I don’t consider this to be an expert o pinion . I’ll allow
him to answer it, if he has an opinion. He might not have one.
53
A: Uh - - I think that Ms. Rose uh, is certainly acting as an
advocate for Yve. I think where we, uh, disagreed was what
Ms. S. had to do in order to prove her competency, in being
Yve’s full-time parent. I think that Ms. Rose is concerned about
Ms. S., uh, having some relapses as far as her illness goes, and
how that would affect Yve. And uh, my response to her was
that certainly I can’t give you a guarante e. I think M s. Rose is
looking for a time facto r, of how long M s. S. could rem ain
stable, and I said, you know, myself or nobod y can do that.
Howeve r, uh, the indicators that we have at this time are that for
two years, she ’s been stable. A nd for situation s like tha t, with
this illness, that’s a good prognostic indicator of her likely to do
well. I’m not sure it that was satisfactory for her, uh - - probably
the fact that w e’re still here m eans that it w asn’t. 20
20
We have some concern, from this record, whether the Depa rtment’s req uirements
of Petitioner were part of the problem, rather than the solution. Because we are not finding
facts, it is not necessary to detail every instance where evidence of this conduct is brought
to light, but the following excerpt from Dr. Haro ld’s testimon y, at a hearing su bsequen t to
a reduction in visitation ordered by Ms. Rose, is revealing.
Q: Have you talked to Ms. Rose about her concerns about Ms.
S.?
A: Yes.
Q: What hav e you told her?
A: That I hear her, in terms of her being concerned about Ms.
S.’s , uh- - lack of cooperation with her, her irritable mood
around her. I said I haven’t seen it with m y meeting with her.
From my interpretation of wha t’s going on , it’s their relationsh ip
that has been a problem. From my talk with Ms. S., with Ms.
Rose, and looking at just the conditions around this wh ole
hearing, this whole situation, Ms. S. as been aware for several
months the Coun ty’s opinion that s he should not have f ull
custody of her daughter. That, on top of successive, uh - - cut
backs on visitation, problems that she’s had with trying to meet
(contin ued...)
54
20
(...continued)
some of the demands that the County’s put on Ms. S ., what I’m
seeing, that has been Ms. S’s sources of antagonism.
She has to work with somebody on a weekly basis who
really doesn’t feel that she can do that job. And Ms. Rose has
not hidden that fact from me, that that’s how the County sees it,
that she’s not able to become a full-time mom. And they’ve
acknowledged that, that’s their opin ion. Uh, an d I’ve tried to
report that to Ms.S., that this is what you’re dealing with.
In spite of that, you’ve still got to wo rk w ith th e lad y.
You still have to work with the County. You still have to prove
that you can d o it.
I’ve tried to express to Ms. Rose, Ms. S.’s side of the
argument in terms of, her I’m asked to do all the things in terms
of compliance, get a job, find housing, be responsible, make my
visits, etcetera, etcetera, and in spite of each of those conditions
being met, I still get penalized.
We also are mindful of the imbalance of resources sometimes inherent in such cases. As the
Court of Special Appeals pointed out in In re Jertrude O.:
The State’s ability to assemble its case almost inevitably dwarfs
the parent’s ability to mount a defense. No predeterm ined limits
restrict the sums an agency may spend in prosecuting a given ...
proceeding. The State’s attorney usually will be expert on the
issues contested and the procedures employed at the fact finding
hearing, and enjoys full access to all public records concerning
the family. The S tate may call on experts in fa mily relations,
psychology, and medicine to bolster its case. Furthermore, the
primary witnesses a t the hearing will be the agency’s own
professional caseworkers whom the State ha s empow ered both
to investigate the family situation and to testify against the
parents. Indeed, because th e child is alread y in agen cy cus tody,
the State even has the pow er to shape the historical events that
form th e basis f or term ination.
56 Md. App. at 95, 466 A.2d at 891-92, quoting Santosky v. Kramer, 455 U.S. 745, 762-63,
102 S.Ct. 1388, 139 9, 71 L.Ed .2d 599 (1 982). Perh aps exam ples of ho w historica l events
can be shaped by social services exist in the case sub judice involving the circumstances
(contin ued...)
55
Dr. Harold reiterated on cross-examination his earlier testimony that Ms. S. was capable of
being a full-time mothe r:
Q: You in dicated in respo nse to a questio n, and I’ m quo ting, I
think that I’m quoting you directly that if the mother remains on
the medication and remains in treatment, there’s a good chance
of being an a dequate p arent. Is that an adequate parent to any
child, or to Yve?
A: Any child.
The finding that reunification would be improper because there was no testimony that the
mother was capable of being a parent is clearly erroneous.
B.
Petitioner contends that the substance of M s. Rose’s testimony, and specifically her
opinion testimony derived from and relying on her observations of Ms. S.’s deme anor wh ile
testifying, were not proper subjects of op inion testimony by her. Petitioner claims that such
20
(...continued)
surrounding Ms. S.’s employment and visitation conflicts. Another might be the following
exchange between Petitioner’s counsel and the social worker, Ms. Rose, which occurred at
the 29 April 2002 hearing reviewing the permanency plan:
Q: And for the last year, [M s. S.] has com pletely complied with
your service agreement with her, hasn’t she?
A: No, because she disagrees with the plan.
Q: Other than disagreeing with the plan, she is complete ly
cooperative in doing what she needs to do?
A: Yes.
56
testimony invaded the province of the fact-finder and was therefore tantamount to one
witness testifying as to the veracity of another witness’s testimony. Petitioner further asse rts
that Ms. Rose was not qualified to offer any such opinions and that her observations “were
speculative, led to no ‘reasonably accurate conclusions,’ and thus they had no ‘probative
force.’” We agree in pa rt, but only as to Ms. Rose’s effo rt to offer a psychiatric diag nosis or
prognosis. It was entirely proper, however, for Ms. Rose to testify as to factual observations
within her personal knowledge and to offer relevant opinions within the sphere of her
admitted expertise discussed infra.
We begin our analysis with a cautionary reminder of how trial courts should weigh
the testimony of the typical kinds of experts appearing in cases of this type.
Evidence offered by social workers, psychologists and
psychiatrists may be necessary in custody cases. The equity
court, however, is entitled to weigh th at evidence along w ith
contradictory testimony and its own observations. Reliance upon
"the auxiliary services of psychiatrists, psychologists, and
trained social workers . . . should not be too obsequious or
routine or the ex perts too casual." Such relian ce could lead the
courts, in acts of misapplied psychology, to sep arate unjustly
family members.
Sanders, 38 Md. App. at 423, 381 A.2d at 1164-65 (internal citations om itted). In the case
sub judice, Ms. R ose, the social worker assigned to this case by the Department, was
qualified an d testified, in rele vant part, as f ollows:
Responden t’s Counsel: Your Honor, a t this point, I would offer
Ms. Rose as an expert in child welfare and in the uh, uh, I would
say assessment and evaluation of children and their families.
57
Petitioner’s Counsel: I would object, Your Honor. I don’t think
that we’ve established, certainly we haven’t established
assessment and evalu ation of children and their families. We
don’t have anythin g that wou ld approac h that. Exp ert in child
welfare, I’m not sure what that means, Your Honor. It seems
very broad, so I would o bject to that as w ell.
COUR T: [Counsel fo r Yve S.]?
Counsel for Yve S.: I would agree that we haven’t established
that she’s an ex pert in evalu ation of anybody. But I ce rtainly
would, would go with the expert in child welfare.
COURT: Child welfare is certainly a very broad field. You want
to limit that somewhat as to - Responden t’s Counsel: I guess, let me try this again. I’ll offer
her as an exp ert social wo rker, in uh, ch ild welfare and working
with abused and neglected children in foster care uh - - settings.
COUR T: [Petitioner’s Counse l]?
Petitioner’s Counsel: I’ll agree that she’s an expert in social
work, in a limited area.
COURT: Well, I think that I probably know Ms. Rose, through
all of her care er, and in he r different ro les, and I certa inly will
recognize her as an expert in dealing with foster children and
foster homes and their needs, the needs of the children.
Respondent’s Counsel: Thank you
COU RT: So I ’ll recognize her as that.
Respondent’s Counsel: Ms. Rose, in your work as a social
worker, and specialized, do you have to assess the, the risk of
children in both their foster homes and in uh, visiting situation
with their parents?
A: Yes.
58
Q: And, can you tell the Court what was it about [Ms. S.’s]
testimony yesterday that caused you to have concerns about
continuing these expanded, overnight visits?
A: It was the change that I had observed in uh, her demeanor,
and in her uh, ability to Petitioner’s Counsel: Objection.
COURT: Overruled.
A: Ability to answer the qu estions that were put to her.
Q: And w hat was it about the m other’s demeanor that you saw
yesterday that was different than what you had seen more
rece ntly?
A: She appea red to me to be a little more ag itated - Q: You’ve got to keep your voice up so that I can hear you.
A: Okay, she ap peared to b e a little more agitated, uh, than I had
seen her in previous weeks, although I have sensed some of
this, over th e past fe w we eks. But it was more pronounced
yesterday. I was concerned that she w ould answer the question
and get off target fr equen tly. The other concern I had was that
uh, she did bring some of her religious beliefs into her
testimony, which was concerning.
Q: And why was that concerning?
A: When I first met M s. S. in ‘ninety-eight, uh, she presented,
uh, talking very quickly, uh, not being able to stay on the subject
matter, and also speaking frequently on religious issues. I was
concerned at that time, and, but not knowing her, did not know
what, whether this was her, uh, - - demeanor for the most part.
But, as I worked over the next, through December and Janu ary,
I got increasingly concerned because of her telephone calls and
her telephone messages that she would leave for me to the point
that I had to inquire, to contact her therapist in North Carolina
59
and report my concerns that I felt that uh, she was becoming
more agitated and was hoping tha t they would be able to see h er,
address the issues that I felt that I was hearing over the phone.
Q: Just so I c an clarify that, that w as back in ‘n inety-eight?
A: That wa s the end o f ‘ninety-eight a nd Ja nuary of ‘ nine tynine, and unfortunately, Ms. S ., had to be h ospitalized in
February of ‘ninety-nine.
Q: And ho w do you c ompare M s. S.’s testimon y yesterday with
what you w ere seeing in ‘ninety-eight?
A: Much milder form, not nearly as uh - - progressive as I saw
it, at that point, but different than what I saw a month ago.
Q: In terms of the sub ject matter tha t the mothe r testified to
yesterday, in terms of w hat she did w ith Yve on , on the last
weekend that she had her, did you have any concerns about that
testim ony?
A: I, She had sent me a note that said that they attended church
and went on a tour, uh, at the Bethesda Naval Hospital, I believe
it was. And, which you know, sounded reasonable on the pa per.
But, in her testimo ny, she indicated that she had gone to
Bethesda Naval H ospital, prior to going to church. She lives in
Gaithersburg, of course the hosp ital’s in Bethesda, and the
church is in Rockville, and she was, she said that church began
at ten o’clock. I - - am concerned, because it seemed like that
might be something that would be a little out of the ordinary to
do, to make that choice to go tour, or walk around the grounds
of Bethesda Naval Hospital prior to church. It seemed different
from what, the w ay that she prese nted doing things in the p ast. 21
21
Ms. S. testified that they visited the hospital because her father had studied there as
a medic and she wanted Yve S. to see som ething relev ant to her he ritage. Wh y this visit
seemed relevant to the social worker, or indicative of anything of concern to her, is a bit of
a mystery to us.
60
Q: And when you say different, how does that different impact
on her - - mental status?
A: I don’t know how it impacts on h er mental status. I just - Petitioner’s Counsel: Ob jection - A: It’s a concern.
Petitioner’s Counsel: Move to strike.
COU RT: Th e answe r was, it’s a co ncern. I’ll allow that.
Q: When you saw, first saw the mother in n ineteen nin ety-eight,
was she in a manic phase?
A: I did not know that she was in a manic phase, because I just
met her. I did not know how she appeared. I was concerned,
because she, as I mentioned, she ap peared to be very agitated,
she spoke very rapidly, she changed subjects frequently. And
she had a lo t of uh - - religiou s talk. I am not in a p osition to
diagnose whether she was in a m anic phase or not, but that was
the way that she appeared to me.
Q: And your understanding was that she was h ospitalized sh ortly
after that?
A: Within two m onths of my first meeting of her.
In Beahm v. Shortall, 279 M d. 321, 368 A.2d 10 05 (1977 ), we pointe d out that:
the determination of whether a w itness is qualified as an expert
witness is generally within the discretion of the trial court, and
will not be overturned unless the discretion has been manifestly
abused to the prejudice of the complaining party. In Stickell v.
City of Baltimore, 252 Md. 464, 471, 250 A. 2d 541 (1969), we
observed: "It is well estab lished that a p erson mu st demon strate
a minimal amount of competence or 'expertise' on the subject on
which he is allegedly an expert in order to be qualified to testify
as an expert witness."
61
279 Md. at 338-39 , 368 A.2d at 101 5 (some internal citations om itted). As this language
suggests, the mere f act that a witn ess has bee n accepted to testify as an exp ert in a given field
is not a license to testify at will. Such a witness only will be allowed to testify as an expert
in areas where he or she has been qualified and accepted. Where a witness who is qualified
as an expert in one area strays beyond the bounds of those qualifications into areas reserved
for othe r types of e xpertise, issu es may aris e as to the prop er ad miss ibility of th at tes timo ny.
As the Court of Special Appeals noted in Globe S ecurity Systems Co. v. Sterling, 79 Md.
App. 303, 556 A.2d 731 (19 89):
The Court ruled [in Simmo ns v. State, 313 M d. 33, 41-42, 542
A.2d 1258, 1262-63(1988)] that an expert m ay be permitted to
address an ultimate issue upon which the jury must reach a
conclusion. See also Md.Cts. & Jud.Proc.Code Ann. §§ 9-120
(1984) (a psychologist licensed in Maryland and qualified as an
expert may testify on ultimate issues). The expert's opinion,
however, is admissible only if it is based upon a legally
sufficient factual foundation. "The f acts upon which an expert
bases his opinion m ust permit reasonably accurate conclusions
as distin guishe d from mere c onjectu re or gu ess."
79 Md. App . at 307- 08, 556 A.2d a t 733-3 4 (som e interna l citations omitted ). See also
Bohner t v. State, 312 Md. 266 , 274-76, 539 A .2d. 657, 661-62 (19 88).
The penultimate question in this case was whether the mother’s mental illness had
stabilized to the p oint whe re sh e cou ld tak e car e of h er da ughter prope rly. No court or exp ert
is in possession of a magical crystal ball capable of answering with certainty this question,
as the psychiatrist, Dr. Ha rold, po inted ou t, supra. The standard, rather, is whether it is not
62
likely that neglect will be repeated, which in this case ultimately becomes a question of
whether the mother was stable and seemed likely to remain so.
Prior to 1978, on ly a licensed psych iatrist was per mitted to ma ke a diagnosis as to
whether an individual was suffering from, or suffering a relapse of, a mental illness because
the making of such a diagno sis cons tituted th e practic e of m edicine . State v. Williams, 278
Md. 180, 184, 187, 361 A.2d 122, 125-26 (1976); State v. Tull, 240 Md. 49, 55-57, 212 A.2d
729, 732-33 (1965 ); Spann v. Bees, 23 Md. App. 313, 320-22, 327 A.2d 801, 805-806 (1974)
Saul v. State, 6 Md. App. 540, 549-50, 252 A.2d 282, 286-87 (1969). Md. Code (1974, 2000
Repl. Vol.), Health Occupations Art., § 14-301 states: “Except as otherwise provided in this
title or § 13-516 of the Education Article, an individual shall be licensed by the B oard before
the individual may practice medicine in this State.” Md. Cod e (1974, 2000 R epl. Vol.),
Health Occupations Art., § 14-101(k)(1), in relevant part, defines the practice of medicine
as engag ing, “with o r without co mpensa tion, in medical: (i) Diagnosis.” Md. Code (1974,
2000 Repl. Vol.), Health Occupations Art. , § 14-101(k)(2) states, in relevant part, that the
“‘practice of medicine’ includes doing, undertaking, professing to do, and attempting any of
the following: (i) Diagnosing, healing, treating, preventing, prescribing form or removing any
physical, mental, or emotional ailment or supposed ailment of an individual.”
With the
passage of Chap ter 481 of th e Acts of 1978, no w codifie d at Md . Code (19 74, 2002 Repl.
63
Vol.), Cts. & Jud. Proc. Art., § 9-120, psychologists were allowed give a mental diagnosis.22
State v. Bricker, 321 Md. 86, 95-98 , 581 A.2d 9, 13-1 5 (1990); State v. Conn, 286 Md. 406,
413-15, 408 A.2d 700, 703-704 (1979). Subsequently, in In Re: Ad option/G uardians hip No.
CCJ14746, 360 M d. 634, 7 59 A.2 d 755 (2000), we held that the Legislature, in Md. Code
(1974) Health Occupations Art., § 19-101(m)(4)(ii) specifically allowed licensed clinical
social workers to make a mental diagnosis, and theref ore, they could testify to the same. 321
Md. at 641-47, 759 A.2d at 759-62. There have been no additional changes, and th e rule
remains the sam e at pres ent. A witness m ay not testify to the ef fect of m aking a dia gnosis
concerning mental illness unless he or she is a physician qu alified to ma ke such a diagnosis
or prognosis, or unless they are otherwise authorized by statute to make such diagnosis.
The Department’s apparent theory in the case sub judice was th at Ms. S ., a woman
diagnosed with a bi-po lar disorder, was not a fit parent bec ause, during a critical court
appearance, where the future of her family was at stake, she evidenced nervousness and
agitation, which, according to the social worker, Ms. Rose, was indicative of a relapse into
another manic episode, notwithstanding the testimony of Yvonne S.’s treating psychiatrist
22
Md. Code (1974, 2002 R epl. Vol. ), Cts. & Jud. Proc. Art., § 9-120 states:
Notwithstanding any other provision of law, a psychologist
licensed under the “ Maryland P sychologists Act” and qualified
as an expert w itness may testify on ultimate issues, including
insanity, competency to stand trial, and matters within the scope
of that psychologist’s special knowledge, in any case in any
court or in any administrative hearing.
As to the Maryland Psycholog ist’s Act, see Md. Co de (1974, 2000 R epl. Vol.), Health
Occupations Art., §§ 18-101 to 18-502.
64
to the contrary. Ms. Rose, however, went one step too far, a step well beyond the scope of
her expertise. Apparently trying to have it both ways, she stated: “I am not in a pos ition to
diagnose whether she was in a manic phase or not, but that was the way that she app eared to
me.” Ms. Rose also testified that “[U]nfortunately, Ms. S.’s history is such that it’s very
questionab le as to whether or not she’s going to be able to maintain her stability” and also
that “Ms. S. has done an amaz ing job in the last two years o f being ab le to stabilize herself.
But, it, it’s such that I, it appears to me that it takes a lot of her energy to keep herself stable.
To add to the p ressure of c aring for a v ery special need s child such as Yve, the p lacement’s
[with the mothe r] not going to last.” These statements are not only speculative, but amount
to a lay diagnosis or prognosis regarding a comple x medica l issue. Ms. R ose is not qualified
to do that, as she was not qualified as a psychiatrist, psychologist, or licensed clinical social
worker. The testimony was improper and should have been stricken. The trial judge erred
in over ruling P etitioner ’s objec tions to th is testimo ny.
Nevertheless, this does not constitute a per se ground f or reversal. The burden is upon
Petitioner to show that the erroneously admitted testimony was material and prejudicial. In
Beahm, we pointe d out that:
In the interest of the orderly administration of justice, and to
avoid useless exp ense to the state and to litigants in its cou rts, it
has long been settled policy of this court not to reverse for
harmless error." This policy was iterated in Balto. Transit Co. v.
Castranda, 194 Md. 421, 439, 71 A. 2d 442 (1950) and
reiterated in Adams v. Benson, 208 Md. 261, 269, 117 A. 2d 881
(1955). As a corollary of that policy, it is firmly established that
the complaining party has the burden of showing prejudice as
65
well as error. If prejudice is shown, this Court w ill reverse. We
summed up the policy with respect to the erroneous admission
of hearsay evidence in Kapiloff v. Locke, 276 Md. 466, 472, 348
A. 2d 697 (19 75):
"It is, of course, true that the erroneous admission
of evidence will not justify reversal unless the
complaining party can show that the admission
was prejudicial to h im. . . . How ever, it is also
clear that this Court will not hesitate to reverse
where hearsay evidence is erroneously admitted
and prejudice is shown. . . . The burden of
proving prejudice in a civil case is on the
complaining party . . . ." (citations omitted).
Precise standards for the degree of prejudice required for
reversal, have not been, and perhaps cannot b e, established. In
Rippon v. Mercantile-Safe Dep., supra, 213 Md. at 222, we
noted that the complaining party made no effort to show
"unfairness or harm." In Hance v. State Roads Comm., 221 Md.
164, 176, 156 A. 2d 644 (19 59) we observ ed: "Courts are
reluctant to set aside verdicts for errors in the admission or
exclusion of evidence unless they cause substantial injustice," so
"substantial prejudice" must be shown. In Rotwein v. Bogart,
227 Md. 434, 437, 177 A. 2d 258 (196 2) we de clared that "th is
Court will not reverse for an error below unless the error 'was
both manifestly wrong and substantially injurious'", quoting 2
Poe on Pleading and Practice (Tiffany's ed.) §§ 287, p. 249. In
State Roads Comm. v. Kuenne, supra, 240 Md. at 235, we spoke
in terms of the error having "a prejudicial effect on the outcome
of the case." In I. W. Berman Prop. v. Porter Bros., 276 Md. 1,
11-12, 344 A. 2 d 65 (197 5), we rep eated the "b oth manif estly
wrong and substantially injurious" language of Rotwein v.
Bogart, supra, and added: "An error which does not affect the
outcome of the case is 'harmless error'." In Dorsey v . State, 276
Md. 638, 659, 350 A. 2d 665 (1976), we enunciated the rule of
harmless error applicable to criminal trials. We traced the
history of the eff ect of an erroneous admission or rejection of
evidence. Id., at 646-647 . We con cluded:
66
"In modern times, appellate review in all
jurisdictions is subject to tenets that a judgment
may be affirm ed, under c ertain circumstances,
despite errors committed in the conduct of the
trial. Such rule s in their application represent
appellate judgmen ts that a retrial is not justifie d if
the error has no t affected th e rights of the parties.
These rubrics, o f constitutional, statutory or
judicial origin, employ a variety of standards for
determining whether a particular error is
'harmless,' but all require 'the resolution of
whether the error significantly affected the
interests of the complaining party'." Id., at 647
citing C. M cCorm ick, Evidence, §§ 183 at 429430.
The short of it is that what constitutes prejudice w arranting
reversal in the errone ous adm ission or rejec tion of eviden ce is
to be de termine d on the circum stances of eac h case.
279 Md at 330-32, 368 A.2d at 1011-12 (some internal citations omitted). In Maryland
Deposit Insurance Fund Corp. v. Billman, 321 Md. 3, 580 A.2d 1044 (1990), we refined the
standard f or when reversal w as warran ted, holding that :
In determining whether improperly admitted evidence, or
extraneous matter considered by a jury, prejudicially affected the
outcome of a civil case , the appellate c ourt balanc es "'the
probability of prejudice from the face of the extraneous matter
in relation to the circu mstanc es of th e particu lar case . . . .'" It is
not the possibility, but the probability, of prejudice which is the
obje ct of the a ppellate inqu iry.
321 Md a t 17, 580 A.2d at 10 51 (internal citations omitted).
We are unable to conclud e here that the improperly admitted evidence was harmless.
The only competent medical testimony properly admitted into the record regarding Ms. S.’s
67
present mental state and future prognosis was that o f Dr. Ha rold, her treating psychiatrist.
The juvenile judge apparently discounted his testimony and appeared to draw conclusions
identical to those improperly admitted as a part of M s. Rose’s testim ony. Reversa l would be
warranted on this ground alone.
C.
As w e stated, supra, we conclude that the hearing court misapplied the best interest
of the child standard in this case. As we pointed out, the standard does not mean that the
child should be placed in th e best possib le environm ent. The statu tory mandate requires that
reunification of the child with the pa rent be the g oal of the permanency plan if there is
competent and credible evidence that future abuse or neglect is not likely. “The fear of harm
to the child or to society must be a real one p redicated u pon hard evidence ; it may not be
simply a gut reaction or even a decision to err-if-at-all on the side of caution.” In re Jertrude
O., 56 M d. App. at 100, 46 A.2d at 894. A fair reading of the findings and ruling of the
hearing court indicate that the focus of the court was on what would be the best environment
for Yve S., not wh ether future neglect or abuse was n ot likely if returned to her mother’s
custody. The trial judge commented on the allegedly superior stability and structure of the
foster home, and whether Yvonne S. would be ab le to provide the level of structure the court
felt Yve S. needed. Reinforcing this notion, the court ruled that Yve S. should remain in
long-term foster care, stating “I feel that it’s appropriate that she remain, where she has been,
for over thirty-some months, wh ere she has do ne very w ell. She’ s blosso med th ere.”
68
Because the hea ring judge focused on where Yve S. w ould be better off, as opposed to the
competent evidence o f future ab use or neg lect, insufficie nt consider ation was given to
whether the goal of the permanency plan should be reunification rather than long-term or
permanent foster care.
D.
Regarding the juvenile judge’s ultimate conclusion, we particularly find telling the
statement by the trial judge that “I’m the judge who returned Yve to her mom [in 1998], uh and obviously hindsight’s 20/20, but that was a major disaster.” A natural reluctance to risk
the possibility of a repeat “disaster” is a pervasive theme throughout the record of this case,
reflecting a philosop hy “to err-if-at-all on the side of caution” on the part of the Departm ent,
as represented by Ms. Rose, and the juvenile judge. The ove rriding them e was “W hat if Ms.
S. suffers a relapse of her illness?” The legitimate question, however, should have been:
What is the likelihood of a relapse by Y vonne S . sufficiently seve re that Yve S. likely would
suffer abuse or n eglect? T he only prop erly admissible testimony on th is issue came from the
treating psychiatrist, who stated that as M s. S. had bee n stable for over two years and her
prognosis was good.
The future is never certain for every child and for every family in these cases. The
presence of a mental illness is not in and of itself a compelling reason for not pursuing
reunificatio n of a family unit, any more than would be the discovery that a parent had a
terminal illness or was on the brink of financ ial ruin. An illus tration of this c oncept,
69
presented by Petitioner’s counsel at oral argument, observed that the State would not be
allowed to take a child away from a diabetic, who has managed successfully his or her
ailment through self-administered insulin, on the mere fear that he or she might stop taking
the insu lin and f all into a d iabetic c oma a t any time.
The evidence before the hearing
judge regarding a reunification goal for the
permanency plan was substantial. Ms. S. had remained stable and on her medications for
over the last two years prior to the court’s 28 March 2001 hearing and order. Her treating
psychiatrist testified that her prog nosis was good, and that she was capable of taking care of
“any child.” She had secured housing and the financial means to support herself and Yve S.
She complete d successf ully all of the requ irements de manded by the Depa rtment.
The
juvenile judge noted that all of the allowed visitations had gone well, and that Ms. S. was “a
wonderful person, and for the most times that she’s been in the cou rtroo m, sh e’s b een v ery,
very appropriate, very polite, respectful, uh, trying to answer questions th at were given to her,
trying to give information an d has never, ever sho wn anything but com plete love and conce rn
for Yve.” While Yvonne S. bore the burden of demonstrating no likelihood of future abuse
or neglect, there is nothing in the record to su ggest a likelih ood of f uture abus e or neglec t,
nor is the re any suc h findin g by the tria l judge.
As was noted supra, on 20 December 2001, the hearing judge affirmed her
permanency plan order at the conclusion of what appears to be a review hearing. The hearing
judge did so desp ite testimony that the manic episode forecast eight months earlier by Ms.
70
Rose had fa iled to m aterialize , that Yvonne S. was gainfully employed and making a higher
income than she had been in February 2001, and that all of the allowed visitation between
Yvonne S. and Y ve S. had g one we ll.23 Thus, in addition to reversing the 28 March 2001
order, we shall reverse similarly the 20 December 2001 order as an abuse of discretion on the
part of the hearing judge, for the same reasons explained supra for reversing the 28 March
2001 o rder.
23
The Department, in the person of Ms. Rose, continued to refuse to return
visitation to its prior frequency and duration. The Department’s perspective regarding
visitation is reflected in the follow ing colloqu y between M s. Rose an d Petitioner’s Counse l,
which occurred during the 20 December 2001 review hearing:
Q: And is there a possibility that the Department might consider
going back to the full weekend visits that the mother was having
with Yve last year?
A: With the plan being, the permanent plan being long-term
foster care, the Department would probably not recommend
every weekend. Y ve needs to unde rstand that the Court’s
decision was fo r her to b e raised by the [fo ster fam ily]. At this
point it appears that it might be too confusing for her if she’s
spending every w eeken d with h er moth er. It’s something that
has to be assessed as we go along.
Q: But aside from g iving Yve the w rong impression, the
Department wou ldn’t hav e any concerns about Yve’s safety w ith
her mothe r at this point?
A: A t this poin t, I do n’t have a ny concer ns ab out h er sa fety.
71
VI.
Petitioner raises the issue of whether the hearing judge’s impartiality reasonably might
be in question, given the record of the case. Petitioner cites as her primary evidence a
statement made by the hearing judge to Yve S. during a recorded in terview w ith the child in
chambers. The statement of the hearing judge occurred during her 29 April 2002 interview
with Yve S. as a part of the review of the permanency plan:
THE COURT: . . . . But one thing I think you need to understand
is that when we had that long hearing that stretched out for a
long time, that is called a perman ency planning hearing - Yve S.: Uh-huh
THE COUR T: - - we took a lot of evidence and we heard a lot
of things and I took a lot of things und er consider ation and I
decided after all of that, and also the whole history - Yve S.: Yeah
THE COURT: - - that it was better for you to stay with [the
foster parents].
Yve S.: I know.
THE COURT: And so it’s not something I am going to
change m y mind ab out.
Yve S.: I know.
THE COURT: You know? So I want you to understand that, I
don’t want you to think every time we have a review and ev ery
time we come to court that there is a possibility that you are
going to live with your mom.
Yve S.: I k now tha t.
72
THE COU RT: Yo u know that? Good. Because I don’t want you
to get upset and think things are going to happen real fast or
anything like that because see, I got to think about you long
term, because you are how old now?
Yve S.: Now , I am 11 turning 12 in S eptember.
THE COURT: I can’t believe that. So I have a lon g time until
you turn 18 and there are a lot of things that can happen between
now and then . (Emphasis added ).
Petitioner argues that this exchange indicates that the hearing judge already had decided the
outcom e of the review hearing before receivin g Petitio ner’s ev idence .
We shall not decide directly this issue. Because w e reverse the juvenile court’s ord ers
for the reasons explained in this opinion, the only remaining relief Yvonne S. seeks is
prospective recusal of the hearing judge for any proceedings held on remand. Because, as
we discovered in the course of our deliberations, the hearing judge has retired and is not
eligible to sit in the Circ uit Court af ter 31 De cember 2 002, she m ay not sit in any hearings
held in Yve S.’s cas e on rem and.
A ccordin gly, we need not consider the merits of
Petitioner’s rec usal argum ent.
VII.
The parties are in some disagreem ent as to the meaning a nd impact of the trial court’s
ruling and orde r at the conc lusion of the 16 July 2002 review hearing.
Respondent
apparently is of the opinion that the order was merely a reaffirmation of the 28 March 2001
order, also reaffirmed by the court’s order of 20 Decem ber 2001. Petitioner argues that there
73
was a substantial change worked in the permanency plan by the 16 July 2002 ord er, na mely,
a change from “long-term” foster care to “permanent” foster care.
We understand wh y the parties disagree. It is not clear to us whether the juvenil e
judge intended by her 16 July 2002 order a substantive change in the goal of the permanency
plan. In her oral ruling rendered at the conclusion of the 16 July 2002 hearing, the judge, in
pertinent part, stated:
If I determine she cannot safely go home, then I must
determine from a list of plans in ran king wh ich one is
appropriate for her. I made that decision about a year [and] half
ago when I had the original permanency planning hearing, and
certainly nothing has changed to indicate that I would make any
other decision than what I made then as far as what the
appropriate place for her is because she cannot safely go home.
So I will reaffirm the plan of permanent foster care....
(Emphasis added)[24]
After explaining her reasoning, the judge summarized her ruling by stating:
So basically, for all those reasons I am going to reaffirm
the permanency plan of long-term foster care in a specific - with a specific ca regiver. Th e law requ ires that I set ano ther
review in a year, which I will do, a review of permanency plan.
(Emphasis add ed).
App aren tly, later on 16 July 2002, the judge signed a written “Order For Commitment
of Juvenile” intended to memorialize her oral ruling.25 In that short document was included
the following operative paragraph:
24
As no prior permanency plan ordered by the court reflected “permanent” foster care,
the parties were left, as are we, to wonder what was being reaffirmed.
25
A notation at the bottom of this order indicates that th e “next rev iew hearin g will
be Ap ril 10, 20 03 at 8:3 0 a.m.”
74
ORDERED, This 16th of [July] 2002, by the Circ uit
Court for Montgomery County, Maryland, Sitting as a Juven ile
Court, that the R espon dent C hild, Yve S. is committed to the
Montgom ery County Department of Health and Human Services
for continued permanent foster care placement . . . .(Emphas is
added)
It is not entirely clear whether the statutory framework relevant to this case makes a
clear distinction of substance between permanent versus long-term foster care. Section 3823(e)(1) o f the Cou rts and Judic ial Proceed ings Article p rovides, in rele vant part:
Determinations to be made at h earing. - At a permanency
planning h earing, the co urt shall:
(1) Determine the child’s permanency plan, which may be:
*
*
*
*
*
(v) Continuation in a specified placement on a
permanent basis because of the child’s special
needs or circumstances;
(vi) Continuation in placement for a specified
period because of the child’s special needs or
circumstances;
Whether “long-term” is synonymous with “a specified period” as described in (vi) makes (or
breaks) the question of w hether it is different in substance from “ permanent” foster c are
within the meaning of sub-s ection (v). No help is to be found on this point in the general
definitional section of the C INA statute (§ 3-80 1).
Further muddying the water regarding this question is the fact that the judge, in her
16 July 2002 ord er, established for the first time a 12 month cycle of permanency plan
reviews. Previous h earings had been held at roughly 6 month intervals. The significance,
75
if any, of this distinction to this issue depends on Md. Code (1 974, 200 2 Repl. Vol.) C ts. &
Jud. Proc. A rt., § 3-823(h) (1), which reads, in relev ant part:
(i) Except as provided in subparag raphs (ii) and (iii) of this
paragraph, the court shall conduct a hearing to review the
permanency plan at least every 6 m onths until co mmitme nt is
rescinded.
(ii) The court shall conduct a review hearing every 12 months
after the court determines that the child shall be co ntinued in
out-of-home placemen t with a spec ific caregive r who ag rees to
care for the child on a p ermanen t basis
There is nothing w e could fin d, nor was anything relevant brought to our attention by the
parties, that better illuminates the proposition that permanent foster care differs substantive ly
from long-term foster care.
Because we are reversing the court’s prior orders, upon which the 16 July 2002 order
appears at least somewhat dependent, the juvenile court’s possibly intended distinction
between “perman ent” and “long term,” if one exists, may be e xplained a nd clarified b y it in
its next review proceeding, if that point retains any relevance. Accordingly, the 16 July 2002
order is reversed as well. The court may give a fresh consideration to the entire situation,
including Yvonne S.’s current mental health as it bears on a proper plan for Yve S.
ORDERS IN #24 AND #50 REVERSED; CA SE
REMANDED TO THE CIRCUIT COURT FOR
MONTGOMERY COUN TY, SITTING AS THE
J U V E N I L E C O U R T , FO R F U R T H ER
PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION; MONTGOMERY COUNTY TO
PAY THE CO STS.
76
77
