In re J.J.

• Decision Date: 21 December 2016
• Docket Number: No. 2631, Sept. Term, 2015,2631, Sept. Term, 2015
• Citation: 231 Md.App. 304,150 A.3d 898
• Parties: IN RE: J.J. AND T.S.
• Court: Court of Special Appeals of Maryland

231 Md.App. 304

150 A.3d 898

IN RE: J.J. AND T.S.

No. 2631, Sept. Term, 2015

Court of Special Appeals of Maryland.

December 21, 2016

Deborah A. Ullmann of Pocomoke City, MD and Nenutzka Villamar (Paul. B. DeWolfe, Public Defender of Baltimore, MD), for Appellant.

Leslie K. Ridgway (Brian E. Frosh, Attorney General of Baltimore, MD and David C. Wright, Child Advocacy Project Eastern Shore of Chestertown, MD), for Appellee.

Graeff and Friedman, JJ., and Frederick Sharer (Senior Judge, Specially Assigned), JJ.

Graeff, J.

This case arises from orders of the Circuit Court for Wicomico County, sitting as a juvenile court, adjudicating J.J. and D.J.,¹ appellees, children in need of assistance ("CINA")² and committing them to the Wicomico Department of Social Services (the "Department"), also an appellee, for placement in foster care.

On appeal, father, Mr. J., and mother, Ms. B., present multiple questions for our review,³ which we have consolidated and rephrased as follows:

1. Did the court err in applying the provisions of Md. Code (2015 Repl. Vol.) § 11–304 of the Criminal Procedure Article ("CP") and admitting evidence of J.J.'s out-of-court statement to a licensed clinical social worker?

2. Did the court err in finding the children CINA?

3. Did the court properly suspend Mr. J.'s visitation with the children?

4. Did the court properly extend the children's shelter care and postpone adjudication beyond the 30–day time period provided for in Md. Rules 11–112 and 11–114?

For the reasons set forth below, we shall affirm the judgments of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

J.J., age 9 at the time of the proceedings below (DOB: 4/11/06), and D.J., age 3 (DOB: 12/1/11), are the children of Ms. B. and Mr. J. In August 2015, J.J. and D.J. were living with Mr. J.; Ms. B. was incarcerated. On August 30, 2015, the Department became involved after J.J. reported that Mr. J. had sexually abused her. J.J. reported to a child protective services forensic investigator, Tiffany Gattis, that Mr. J. had rubbed his "wee-wee" on her "private part" and made her "suck his wee-wee." The Department removed the children from Mr. J., which led to the CINA determination at issue in this appeal.

Events Leading to the September 2015 Shelter Care Hearing

Ms. B. and Mr. J. had three children together—J.J., D.J., and Ja.J. Ms. B.'s oldest daughter, N.R., was sixteen years old at the time of the disposition hearing and lived with a maternal aunt. Ms. B.'s youngest daughter, T.S., was six years old and lived with her father.

The Department, as set forth in its report to the court, had a long history with the family. In 2008, the Department received a child welfare referral based on a report that a former tenant of the family's home had used his key to enter the home without the family's consent and was discovered masturbating while standing over N.R.'s bed as she slept. Mr. J. declined to be interviewed by police, and the case was closed.

In December 2011, after D.J. was born prematurely, Ms. B. tested positive for marijuana. On February 28, 2012, the Department received a report that, although D.J.'s pediatrician determined that he needed a follow-up with a specialist in retinopathy

of prematurity, Ms. B. missed several appointments. There also were concerns that Ms. B. was not giving her other children medications as prescribed, Ms. B. had problems with marijuana and alcohol, there was no food in the home, there were too many people living in the home, and Ms. B. was hitting the children with a belt and cursing at them. The Department's investigation indicated Ms. B. for neglect, and she was arrested for medical neglect.

In April 2012, the Department offered Ms. B. family preservation services. Ms. B. signed a service plan to enroll in drug treatment, follow all recommendations, maintain all of the children's appointments, and enroll in GED classes. She did not follow through with these tasks. Ms. B. denied that she had a substance abuse problem, and she did not believe she needed treatment. Mr. J. had not been a consistent parent to his children; he had been in and out of Ms. B.'s life due to domestic violence and incarceration.

Between September 2012 and September 2014, the Department worked intensively with the parents "to try to help them address their drug use, the domestic violence in [their] relationship [and] to help them get and maintain housing." Both parents, however, continued to abuse alcohol and marijuana, and domestic violence was an ongoing issue. The Department offered Mr. J. mental health services, but it was never able to satisfactorily address his issues because his engagement was sporadic.

In June 2012, Ms. B. reported to police that N.R. was a runaway or had been kidnapped. The Department determined, however, that Ms. B. had allowed N.R. to visit her family, and N.R. did not want to return to Ms. B.'s home. The police contacted the Department regarding the condition of Ms. B.'s home, and the Department worked "intensively" with Ms. B. and her children throughout July 2012, when the family moved to Florida, without notifying the Department or extended family.

In August 2012, while the family was living at a motel in St. Petersburg, Florida, Ja.J., then five years old, drowned in the motel pool. N.R., who was then 13 years old, had been left in charge of her younger siblings, ages 6, 5, and 2. When Ja.J. was discovered at 9:40 p.m., Ms. B. and Mr. J., were in the hotel room. Child neglect allegations were indicated for both Ms. B. and Mr. J.

In September 2012, the family returned to Wicomico County. They resided with family members, and when the Department's social worker visited, all of the children, except N.R., were sleeping on the floor. N.R. reported that, when they arrived, Ms. B. had pulled her out of the backseat of the car by her hair, pulled her hair, and punched her in the eye. This incident occurred in front of Mr. J., who did nothing to stop it. Ms. B. was removed from the scene in handcuffs, and all of the children were placed in respite care. Ms. B. was convicted of physical abuse and sentenced to serve fifteen weekends in the local detention center. Mr. J. was indicated for neglect and Ms. B. was indicated for abuse.

On January 25, 2013, the Department initiated a sexual abuse investigation to assess allegations reported by then six-year-old J.J., who had disclosed abuse by Mr. J. During an audio and video recorded forensic interview, J.J. stated that, when she and Mr. J. were alone in the master bedroom of the family's former residence, Mr. J. had touched her on her vaginal area and on her buttocks. She could not give an approximate date or time, but she stated that the touching occurred more than once, and there were no witnesses. Mr. J. and Ms. B. denied all allegations of sexual abuse, and the allegation was found to be unsubstantiated, although not ruled out, as J.J. remained consistent with her statements for more than a year.

In March 2013, during a forensic interview in an unrelated case, J.J. disclosed sexual abuse by a 17–year-old male cousin, B.J., while she was residing with a maternal great-aunt for several months. J.J. stated that B.J. had touched her vagina and buttocks. The Department found the abuse indicated after B.J. admitted to touching J.J. on her vaginal area and having her masturbate him. B.J. was criminally charged with child abuse and sexual offense.

On July 7, 2013, police were called to the family home due to a domestic violence incident. Mr. J. and Ms. B. were drinking and fighting with each other in the street while Mr. J. held baby D.J.

In July 2014, CINA petitions were dismissed for all of the children, and the Department continued to provide family support services. On October 22, 2014, Ms. B. filed for a protective order against Mr. J., but she failed to appear for the final protective order hearing.

On October 27, 2014, the Department again received a referral, which alleged that J.J. had been sexually abused by Mr. J. During the forensic interview, J.J. reported that Mr. J. licked her vagina, which she referred to as a "Yorkie," for 20 minutes. J.J. stated that Mr. J. had never touched her sexually or licked her in the past. She also reported that, on the same weekend, she witnessed Mr. J. kicking Ms. B. out of the home, resulting in a domestic dispute that she witnessed. Ms. B. subsequently returned to the house, but Mr. J. had another woman in the home, who was "sucking [Mr. J.'s] 'do—do.' " J.J. could not explain, however, what that meant.

On November 10, 2014, Mr. J. and Ms. B. were interviewed separately by the Wicomico Child Advocacy Center. Mr. J. stated that J.J. told him "that she was instructed by her grandmother to make the statements related to sexual abuse." Ms. B. stated "that she fabricated the abuse allegation because she was angry" at Mr. J. for cheating. Based on inconsistent information and evidence of coaching, the final disposition was unsubstantiated for sexual abuse. Because the Department could not determine whether the abuse did or did not occur, the determination of unsubstantiated sexual abuse "appeared to be most appropriate."

On December 22, 2014, a warrant issued for Ms. B.'s arrest. She subsequently was incarcerated for violating her probation.

On August 30, 2015, while Ms. B. was still incarcerated, the Department was contacted by the Fruitland Police Department, which had received a complaint regarding the alleged sexual abuse of J.J. The Department, along with the police and the Wicomico Child Advocacy Center, conducted a joint investigation. J.J. disclosed that, on August 27 and August 29, 2015, Mr. J. "had sexual intercourse with her and forced her to perform oral sex on him." A SAFE exam was performed,⁴ but J.J. had brushed her teeth, showered, urinated, and defecated prior to the exam. The preliminary results indicated that J.J. had a possible "notch" to her vaginal opening that could be indicative of sexual abuse.⁵

On August 31, 2015, the children...