In re Adoption of Tatianna B.

• Decision Date: 03 December 2010
• Docket Number: No. 36, Sept. Term, 2010.,36, Sept. Term, 2010.
• Citation: 9 A.3d 502,417 Md. 259
• Parties: In re ADOPTION/Guardianship OF TATIANNA B.
• Court: Maryland Court of Appeals

9 A.3d 502

417 Md. 259

In re ADOPTION/Guardianship OF TATIANNA B.

No. 36, Sept. Term, 2010.

Court of Appeals of Maryland.

Dec. 3, 2010.

Tamara D. Sanders, Asst. Public Defender (Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for appellant.

Ann M. Sheridan, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for appellee.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.

BATTAGLIA, J.

The present case involves a termination of parental rights for unfitness, based upon the juvenile judge's determination that the mother, Hyacinth M., "pose[d] an unacceptable risk to ... [the] future safety" of her three-year-old daughter, Tatianna B. During the course of the proceedings, the judge permitted a licensed clinical social worker, Dianna McFarlane, who concededly, by both Ms. M.'s counsel and the State, was qualified to testify as an expert in social work, to opine regarding the risk of future harm to Tatianna B. were she to return to Ms. M.'s household, i.e., a "risk and safety assessment." The juvenile court, more specifically, determined that, because Ms. McFarlane was "broadly qualified in the area of social work," she could testify in the "areas of child abuse and neglect, children in foster care, permanency planning, adoption, and risk and safety assessment."

It is from this ruling, under an abuse of discretion standard, that we are asked to hold that an expert witness, qualified in the area of social work, should not have been permitted to testify in the area of risk assessment. ¹ We shall hold, however,that the juvenile judge did not abuse her discretion by qualifying a licensed clinical social worker as an expert witness in social work and permitting her to opine regarding, inter alia, risk and safety assessment.

On December 8, 2009, the TPR hearing regarding the parental rights of Ms. M. commenced before Judge Cynthia Callahan in the Circuit Court for Montgomery County, sittingas a juvenile court, during which the Montgomery County Department of Health and Human Services asked the court to qualify Dianna McFarlane, a licensed clinical social worker, as an expert. Following voir dire of Ms. McFarlane, Ms. M.'s counsel objected:

Your Honor, at this point in time, I would object to the introduction or the qualifications. She's a social worker. Obviously, she can provide expert testimony generally in relation to social work matters, Your Honor, but I don't want to use the term "junk science," but what we've heard testimony to is general—she's had some general training in these fields, and yes, she does have training and experience in these fields, but these aren't fields that subject themselves to the expert testimony that I believe is going to be drawn out for opinions concerning my client and most likely Tatianna B. ...

Your Honor, these are not, as the testimony and the cross-examination showed, these are not fields of law that are subjected to sort of like, I want to say a hard science, like, say, drug analysis, where reviews are made, protocols are set up. This is sort of some general training. She, I guess, is qualified or she at least qualifies to pass the test so she gets her CLE hours and then—but I do not believe, Your Honor, in light of what is being asked for her to be qualified as an expert, that that in any way subjects her to the ability to make opinion testimony as an expert.

Judge Callahan overruled Ms. M.'s counsel's objection:

Okay. [Ms. M.'s Counsel], I don't think there's any requirement in the law or elsewhere that somebody's qualifications have to be tested by some kind of process that can be repeated in a scientific way. In fact, I think social scientists are regularly qualified as expert witnesses, particularly in the family law area.

I think what you just suggested is that she be broadly qualified in the area of social work, which I think is considerably broader than what [the Department] asked. So, I'm going to qualify the witness as an expert in the areas ofchild abuse and neglect, children in foster care, permanency planning, adoption, and risk and safety assessment.

Thereafter, Ms. McFarlane testified that she is licensed by the State of Maryland in the field of clinical social work, pursuant to Section 19-302(e) of the Health Occupations Article, the qualifications of which require education and training. She informed the judge that she possesses a master's degree in the field of social work and has six years' experience working for the Department. As to her familiarity with the case, she stated that it was assigned to her in her role as a foster careworker, after Tatianna B. was adjudicated as a child in need of assistance.² Ms. McFarlane, then, laid out the factors she considered in her assessment regarding the risk to Tatianna B., if she were to be placed back into the care of Ms. M. Prior to the time that Ms. McFarlane gave her opinion based upon her risk assessment, the following colloquy ensued:

[THE DEPARTMENT]: Now, you've been already designated as an expert in child abuse and neglect, children in foster care, permanency planning, adoption, and risk and safety of children. Based on your expertise in those fields and the factors that you've just outlined as far as issues you consider in assessing risk to [Tatianna B.], do you have an opinion to a reasonable degree of certainty whether there is a risk of harm to [Tatianna B.] were she at any time reunified with her mother, [Ms.] M.?

* * *

[MS. M.'s COUNSEL]: Your Honor, I'm going to object. I think we're almost there, but a reasonable degree of what certainty?

* * *

[JUDGE CALLAHAN]: I think that the reasonable degree of certainty is a reasonable degree of certainty for a [licensedclinical social worker] with the training and expertise that she has.

Emphasis added.

Ms. M. contends that Judge Callahan erred "by accepting Ms. McFarlane as an expert witness capable of determining whether Ms. M. posed a risk to Tatianna [B.]...." The State argues, conversely, that it is not an abuse of discretion to qualify a licensed clinical social worker as an expert in social work, with experience and training in risk assessment, permitting him or her to testify regarding the risk of future harm to a child in a household. The State contends, moreover, that "Ms. McFarlane was eminently qualified to testify as an expert witness in this case."

In determining whether Judge Callahan properly qualified Ms. McFarlane as an expert in social work and permitted her to opine regarding the risk of future harm to Tatianna B. were she to be returned to Ms. M.'s household, we look to Rule 5-702, which provides:

Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony.

In Blackwell v. Wyeth, we noted that, under Rule 5-702, "the admissibility of expert testimony is within the sound discretion of the trial judge and will not be disturbed on appeal unless clearly erroneous." 408 Md. 575, 618, 971 A.2d 235, 261 (2009), quoting Wilson v. State, 370 Md. 191, 200, 803 A.2d 1034, 1039 (2002). See also Rollins v. State, 392 Md. 455, 500, 897 A.2d 821, 847 (2006) ("[W]hether a witness is qualified as an expert witness is generally within the discretion of the court, and will not be overturned unless his discretion hasbeen manifestly abused to the prejudiceof the complaining party.") (citations omitted).

The issue before us in the present case is, solely, whether a licensed clinical social worker can qualify as an expert witness in social work and opine in a TPR hearing regarding the safety and risk of a child were she to be returned to her mother's care. In order to practice clinical social work, a person must be licensed as such. Maryland Code (1981, 2009 Repl.Vol.), Section 19-301(2) of the Health Occupations Article. Licensure requires that a clinical social worker:

(1) Meet the requirements of subsection (a) ³ of this section;

(2) Have received a master's degree in social work and documentation of clinical course work from a program accredited by the Council on Social Work Education or an equivalent organization approved by the Council on Social Work Education; and

(3) Provide in a form prescribed by the Board, documentation of having completed 2 years as a licensee with supervised experience of at least 3,000 hours after receiving the master's degree with a minimum of 144 hours of periodic face-to-face supervision in the assessment, formulation of a diagnostic impression, and treatment of mental disorders and other conditions and the provision of psychotherapy under the terms and conditions that the Board determines by regulation.

Section 19-302(e). The practice of social work involves "apply [ing] the theories, knowledge, procedures, methods, or ethics derived from a formal educational program in social work to restore or enhance social functioning of individuals, couples, families, groups, organizations, or communities through," inter alia, "assessment," "formulating diagnostic impressions," "planning," and "intervention." Maryland Code (1981, 2009 Repl.Vol.), Section 19-101(m)(1) of the Health Occupations Article. A licensed clinical social worker, further, may supervise other social workers; evaluate, diagnose, and treat psychosocial conditions, mental and emotional conditions and impairments, and mental disorders; as well as provide psychotherapy. Section 19-101(m)(4).

In the present case, the record before Judge Callahan established that the judge did not abuse her discretion in qualifying Ms. McFarlane as an expert in social...