In re Billy W.

• Decision Date: 13 June 2005
• Docket Number: No. 100,100
• Citation: 387 Md. 405,875 A.2d 734
• Parties: In re BILLY W., Jessica W., Mary S. & George B.
• Court: Maryland Court of Appeals

875 A.2d 734

387 Md. 405

In re BILLY W., Jessica W., Mary S. & George B.

No. 100, September Term, 2004.

Court of Appeals of Maryland.

June 13, 2005.

Geraldine K. Sweeney, Assistant Public Defender (Nancy S. Forster, Public Defender, on brief), Darcy Rood Massof, Assigned Public Defender, Baltimore, for appellants.

C. J. Messerschmidt, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, Baltimore), on brief, Francine Krumholz (Emily Rody and Seri Wilpone of the Legal Aid Bureau Inc. of Towson), on brief for appellees. Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

BATTAGLIA, J. as to Part I.

In this action between the biological parents and the State, we have been asked to consider whether the trial court properly admitted hearsay testimony by a social worker and two Court Appointed Special Advocates¹ during a hearing to review the permanency plans for children who had been declared in need of assistance. Because we have held that application of the Maryland Rules of Evidence is not mandatory in permanency planning hearings, the Circuit Court did not commit error in admitting hearsay testimony from the social worker and the Court Appointed Special Advocates during the permanency planning proceeding.

Facts and Procedural History²

Ms. B., an Appellant in this case, has four children who are the subjects of the permanency planning hearing at issue: Mary S., born in 1991, Jessica W., born in 1992, Billy W., born in 1994, and George B., born in 2000. The father of Mary S., Jessica W., and Billy W. is deceased. George B.'s father is Mr. B., another Appellant in this case, to whom Ms. B. was married, but from whom she is now separated. All four children resided with both Mr. and Ms. B. prior to the separation. The family first came to the attention of the Baltimore County Department of Social Services ("DSS") when Mary S., then eight years old, alleged that she had been sexually abused by Mr. B., who was later charged and convicted. DSS, during its investigation of the sexual abuse allegations, determined that Ms. B. was aware of Mr. B.'s past history of sexual abuse and knew of Mr. B.'s behavior with Mary S., but had failed to take appropriate action to protect the girl. All of the children, nevertheless, remained in Ms. B.'s care after she and Mr. B. separated. During the next two years, while the children were in Ms. B.'s care, there were four additional investigations by DSS of abuse and neglect, including allegations that Mary S. had sexually abused Billy W.

On February 7, 2002, DSS removed all four children from Ms. B.'s care, placed them under emergency shelter care, and subsequently filed a petition in the Circuit Court for Baltimore County requesting judicial approval of shelter care for the children. The court conducted a hearing and ordered DSS custody of the children and shelter care for them, pending an adjudicatory hearing.³ Thereafter, during the adjudicatory hearing, all four children were declared to be children in need of assistance ("CINA")⁴ and committed to the care and custody of DSS for placement in foster care. The court also ordered that Ms. B. be permitted two hours supervised visitation once per week with all four children and that Mr. B. would have one hour supervised visitation once per week with George B.⁵ At that time, the permanency plan⁶ for the children was reunification solely with Ms. B.

Initially, DSS placed Billy W. and George B. together in a foster home; however, both boys were removed due to allegations that Billy W. had sexually abused a younger child in the home. After a brief stay in another home, Billy W. was committed to St. Vincent's Center, a residential treatment center, from June 2002 until November 2003, when DSS transferred him to a therapeutic foster home. During that same time George B. was moved to another foster home where he has remained.

Mary S. and Jessica W. were placed together in a foster home; after six weeks both were moved to a therapeutic foster home. In August 2002, Mary S. was admitted to Sheppard Pratt Hospital for suicidal behavior, where she was diagnosed with "aggressive disorder recurrent with psychosis" and "possible dissociative disorder." Mary S. stayed at Sheppard Pratt for six weeks, was discharged and moved to transitional housing, and then to the Villa Maria Residential Treatment Center for six months, before returning to the original therapeutic foster home in May 2003. Jessica W. has remained in the original therapeutic foster home the entire time.

The Circuit Court conducted periodic review hearings,⁷ and on June 23, 2003, DSS recommended, and the court ordered, a change in the permanency plan for George B. from reunification to a concurrent plan of reunification with Ms. B. and adoption. The court also increased Billy W., Jessica W., and Mary S.'s visitation with Ms. B. to include, in addition to supervised visitation, one hour of unsupervised visitation. The reunification plan with Ms. B. for the three children remained unchanged. Mr. B.'s visitation was changed to one hour supervised visitation per month with George B. Ms. B. did not object to the maintenance of the permanency plans for Billy W., Jessica W., or Mary S. Both parents contested the change in the permanency plan for George B., and noted separate appeals to the Court of Special Appeals, which affirmed the judgment of the Circuit Court in a consolidated unreported opinion. While that appeal was pending in the Court of Special Appeals, the Circuit Court held another six month review hearing on November 10, 2003, in which the trial judge once again continued the commitment of all four children to the care and custody of DSS. The judge also ordered that Ms. B.'s visitation with Billy W. and Jessica W. would remain two hours supervised per week and one hour unsupervised per week. As to Mary S., the parties agreed and the court acquiesced in the decision that Ms. B. would be permitted one hour supervised visitation per week, but that the unsupervised visitation would be suspended.⁸ With respect to George B., Ms. B.'s visitation remained three hours, but the supervised visitation was reduced to one and a half hours per week. Mr. B.'s visitation with George B., one hour supervised visitation per month, was not changed. Both Ms. B. and Mr. B. noted separate appeals from the court's order regarding George B., to the Court of Special Appeals, which in an unreported opinion, addressed the substantive issues raised by the parties and affirmed the judgment of the Circuit Court.⁹

Subsequently, while that appeal was pending in the Court of Special Appeals, the Circuit Court held a three-day review hearing on April 23, 2004 and May 4-5, 2004, which is the subject of this appeal. At the hearing, sixteen witnesses testified, including Ms. Kristy Caceres, a DSS social worker assigned to the case, who testified about the progress of the children and the children's interaction with both Ms. B. and Mr. B. When DSS questioned Ms. Caceres about the progress of the children's family therapy, the following ensued:

[DSS's COUNSEL]: And is that family therapy progressing as desired?

[MS. CACERES]: The last that I talked to the therapist, she seemed to think that there were some —

[Ms. B.'s COUNSEL]: Objection.

[THE COURT]: Basis?

[Ms. B.'s COUNSEL]: Hearsay.

[THE COURT]: It's a review hearing. I think there's some latitude.

[Ms. B.'s COUNSEL]: Again, I'm going to ask for a continuing objection to hearsay from therapists who aren't present to testify and could have been.

[THE COURT]: All right. Overruled.

Ms. Caceres continued to testify that she spoke with the children's therapist, who was not present at the hearing, about the children's family therapy and that the therapist "seemed to think that there was some progress. Things were going okay." Counsel for Ms. B. again objected on the grounds of hearsay, to which the hearing judge replied: "It's a review hearing. Strict rules of evidence don't apply if there's some foundation for the knowledge, but there's some latitude." After the judge overruled the hearsay objection, Ms. Caceres opined that the permanency plans for the children should not be changed because there had been "minimal progress in Ms. B.'s ability to focus on the kids and to provide for their individual needs." She also stated that DSS did not have the adoptive resources for the children and would not seek a termination of parental rights at that time. Ms. B. testified during the hearing that her relationship with the children was improving and that she would be able to care for the children if they were to be returned to her care.

Several social workers involved with supervising the visitation with George B. and Mr. B. also testified at the hearing. All of the social workers uniformly stated that during a visit between Mr. B. and George B. in February 2004, Mr. B.'s behavior toward them was aggressive and erratic to a point that the police were called to remove Mr. B. from the building after he refused to leave the visiting room. The social workers also testified that during the altercation, Mr. B. became violent toward the police officers while George B. was present right outside the visiting room at the end of the visitation. Mr. B. testified during the hearing and denied that he had been loud and aggressive during the visit with George B., contrary to the testimony given by the social workers. Mr. B. explained that he only had expressed anger after George B. had been removed from the visitation room before the scheduled visitation time had lapsed. Mr B. further argued that he wanted George B.'s permanency plan to be changed to a concurrent plan of reunification with both Mr. and Ms. B., and in the alternative, increased visitation would be acceptable.

At the conclusion of the witness testimony, the trial judge referred the parties to the written reports of two Court Appointed Special...