In re J.R.

• Citation: 225 A.3d 108,244 Md.App. 644
• Decision Date: 28 February 2020
• Docket Number: No. 459, Sept. Term, 2019,459, Sept. Term, 2019
• Parties: IN RE: J.R.
• Court: Court of Special Appeals of Maryland

244 Md.App. 644

225 A.3d 108

IN RE: J.R.

No. 459, Sept. Term, 2019

Court of Special Appeals of Maryland.

February 28, 2020

Argued by: Deborah A. Ullmann of Pocomoke City, MD & Maili Shaffer (Paul B. DeWolfe, Public Defender, Baltimore, MD), on the briefs, for Appellant.

Argued by: Hubert K. Chang (Brian E. Frosh, Atty. Gen., Baltimore, MD, Bonnie Laakso Baynes, Michael Stuart Katz, Darlene A. Wakefield, Towson, MD), on the briefs, for Appellee.

Berger, Nazarian, Reed, JJ.

Reed, J.

Following the adjudicatory and dispositional hearings, the Circuit Court for Cecil County, sitting as a juvenile court, found J.R.¹ to be a Child in Need of Assistance ("CINA"). Both the biological mother, Ms. B. ("Appellant Mother"), and biological father Mr. R. ("Appellant Father"), appealed, and they present four questions for our review, which we have expanded and rephrased for clarity:²

I. Did Cecil County Department of Social Services err when it failed to follow the statutory scheme for handling a CINA case by implementing "safety plans", which Appellant Mother alleges are not authorized by the statute?

II. Did the juvenile court err as a matter of law when it continued the shelter care orders?

III. Did the juvenile court err when it found that J.R. was a CINA?

IV. Did the juvenile court err when it did not conduct a separate dispositional hearing?

V. Does Appellant Mother have a valid claim for ineffective assistance of counsel?

For the following reasons, we affirm in part and vacate in part.

FACTUAL AND PROCEDURAL BACKGROUND

History of Family and the Department's Concerns

J.R. was born on September 12, 2018 to Appellants (Appellant Mother and Appellant Father). J.R. is the fifth child of Appellant Mother. On May 8, 2015, the Circuit Court for Cecil County terminated the parental rights of the Appellant Mother for three of her children. Foster parents took guardianship over a fourth child without a termination of parental rights. Appellant Father has "a significant criminal history," including a 2006 second-degree murder charge which was pled down to first-degree assault; Appellant Father served 15-years imprisonment for this charge.

On two consecutive days in mid-October of 2018, Appellants brought one-month-old J.R. into the emergency room. Appellant Father dropped Appellant Mother and J.R. off at the hospital but did not stay. Appellant Mother reported that J.R. had trouble breathing two nights in a row. However, Appellant Mother was "freaking out," having panic attacks and was more concerned with Appellant Father coming back to the hospital than what was happening with J.R. On October 15, 2018, the Cecil County Department of Social Services ("CCDSS" or "the Department"), the Appellee, received a referral concerning medical neglect, which included J.R.'s "inadequate weight gain" and Appellant Mother's behavior. CCDSS assigned a child protective services ("CPS") investigator with the Department, Ms. Christine Clouser ("Ms. Clouser"), to conduct a joint investigation with the local police department.

First Attempts of Contact with Appellants

On October 16, 2018, Ms. Clouser made her first attempt to contact Appellants at their primary residence. However, because Appellant Mother had a "lookout" near the home, no one answered the door when Ms. Clouser knocked. The next day, on October 17, 2018, a male resident at the home permitted Ms. Clouser and a police detective to enter the home, but they (Ms. Clouser and the detective) could not access the bedroom where Appellants were staying. While checking the remainder of the home, Ms. Clouser and the detective found the home "to be in poor and unsafe conditions for an infant." Specifically, Ms. Clouser observed a room that was so infested with bedbugs that the male renter could not even sleep in the room. This room infested with bed bugs was within approximately 10 feet of the locked bedroom where J.R. stayed. Additionally, Ms. Clouser noticed that there were no "bottles, formula, baby items, clothing[,] diapers or any items necessary for the care of infant [sic] anywhere in the home."

A female resident informed Ms. Clouser that "[Appellant Father] was aware that the detective and CPS had come to the house the previous day and he ordered everyone in the home not to answer the door under any circumstances and keep the door locked at all times." She reported that Appellants would not stay in the house during business hours so that CPS could not find them. The female resident also provided information that Appellant Father [is] "very violent" and had threatened "to hurt [Appellant Mother] enough to kill the baby when she was pregnant." Further, she indicated that Appellants were using drugs, and particularly, Appellant Father sells "heroin and crack." The female resident advised that she had personally witnessed Appellants "nodding out" while taking care of J.R.

In another attempt to visit Appellants, Ms. Clouser showed up to one of J.R.'s scheduled pediatric appointments on October 19, 2018. However, Appellants did not show up for the appointment. Ms. Clouser and the detective then showed up at Appellants' home. Ms. Clouser and the detective reported that they heard what they believed to be Appellant Father yelling, but when they knocked on the door, it got quiet and two male residents answered the door, stating that the Appellants were not home.

First Safety Plan

Two days later, on October 22, 2018, Appellant Father called the detective and invited her and Ms. Clouser to the home. When they arrived at the home, Ms. Clouser and the detective noted the strong smell of fresh paint in the room Appellants were staying in, but the room was clean, full of baby supplies, including diapers, wipes, clothing and formula. Appellant Mother first denied that she was aware of concerns regarding J.R.'s weight, but then detailed the medicine J.R. was taking, his current feeding schedule, his digestive problems and his medical appointments. The detective was permitted to walk around the home and noted the bedbug-infested mattress had been covered with a blanket, but the home had otherwise been cleaned up. Appellant Father then demanded that the CPS investigation be closed. Ms. Clouser informed Appellants that there were concerns of substance abuse, and they both denied the allegations, with Appellant Father noting that he was on parole and was having regular urinalysis screens. Nevertheless, Ms. Clouser requested that Appellants submit drug tests by the end of the day, and they agreed.

Additionally, Ms. Clouser stated that she wanted Appellants to enter into a safety plan, designed to address concerns of "substance abuse, domestic violence, the inappropriate conditions of the home and J.R.['s] medical needs." Appellants agreed to:

Allow the department to see [J.R.] in person in order for the department to be able to ensure his safety and wellbeing ... stay in contact with the department during the investigation ... not use substances while caring for [J.R.] [and] [J.R.] would remain in a home free of substance use and will be in an appropriate placement ... follow up with [J.R.'s] medical needs and appointments [and] [J.R.] would not be in any of the rooms that were inappropriate at Appellants' primary residence

Appellants signed this safety plan. They also submitted to drug screens later that day.

Violation of the First Safety Plan and Implementation of the Second Safety Plan

On November 8, 2018, Ms. Clouser received the results of Appellants' drug tests. While Appellant Mother's oral and urine screens were negative, Appellant Father's oral screen was positive for amphetamines and methamphetamines. Ms. Clouser and the detective returned to Appellants' home, but a male resident refused to open the door, stating that the Appellant Mother was at work, and Appellant Father and J.R. were not home. Ms. Clouser and the detective then went to Appellant Mother's job and was told that she was not there. They returned to Appellants' home to wait for them there.

Approximately one hour later, Appellant Father emerged from the home. Appellant Father was "agitated and yelling ... accus[ing] [Ms. Clouser] of lying during [their] first contact with him." A few moments later, Appellant Mother exited the home with J.R., also argumentative, claiming "she did not know there were allegations of domestic violence until she observed the safety plan." Due to Appellant Father's "aggressive tone," the detective requested backup assistance from the police department. Appellant Father eventually admitted that they were at home when Ms. Clouser and the detective first arrived.

Ms. Clouser then informed Appellants that she had received the results of the drug screen, and Appellant Father's oral screen came back positive for amphetamines and methamphetamines. Ms. Clouser told Appellant Father that this positive drug screen violated the safety plan dated October 22, 2018. She also advised that due to the Appellants' lack of cooperation earlier in the day, a new safety plan would need to be put into place. Appellant Father became agitated again and stated that he believed the positive drug screen was due to his use of Sudafed

. Appellant Mother signed the new safety plan, but Appellant Father did not. Ms. Clouser asked Appellant Father to submit to another drug test the following day on November 9, 2018 at 10:00 am, and he stated he would go at 11:00 a.m. Nonetheless, the new safety plan that was put into place stated:

[J.R.] will not return to [Appellants' primary residence] until further notice. [Appellant Mother] will be the primary caregiver to [J.R.] until further investigation. [J.R.] will have no contact with [Appellant Father] until further investigation. [Appellant Mother] will stay in contact with the department and follow up with [J.R.'s] medical needs. [J.R.] will reside at an [alternate residence in] Elkton, MD^{[3 ]} until further notice. [Appellant Father] will take a drug screen on November 9, 2018. The department will be able to have

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