In re O.P.
| Decision Date | 29 March 2019 |
| Docket Number | No. 2877, Sept. Term, 2018,2877, Sept. Term, 2018 |
| Citation | 240 Md.App. 518,205 A.3d 129 |
| Parties | IN RE: O.P. |
| Court | Court of Special Appeals of Maryland |
Argued by: Ann M. Sheridan (Brian E. Frosh, Atty. Gen.), Margaret F. Holmes (Legal Aid Bureau, Inc., Annapolis, MD), Nenutzka C. Villamar (Paul B. DeWolfe, Public Defender, Baltimore, MD, on the briefs), for Appellant.
Argued by: Jonathan Gladstone, Assigned Public Defender (Paul B. DeWolfe, Public Defender, on the brief), Annapolis, MD, for Appellee.
Panel: Fader, C.J., Meredith, Friedman, JJ.
We must first determine the correct standard of proof for a juvenile court to apply to a petition for continued shelter care1 of a minor pending consideration of a petition to find that the minor is a child in need of assistance. We conclude that for a juvenile court to authorize the continuation of shelter care, the court must find by a preponderance of the evidence that (1) returning the child home is contrary to the child's safety and welfare, and (2)(a) removal is necessary due to an alleged emergency and to provide for the child's safety, or (b) reasonable efforts were made but were unsuccessful in preventing or eliminating the need for removal. Here, the Circuit Court for Anne Arundel County, sitting as a juvenile court, did not err in applying the preponderance standard to the petition for continued shelter care filed by the appellant, Anne Arundel County Department of Social Services (the "Department").
We are asked, second, to determine whether the juvenile court clearly erred in making certain findings of fact or abused its discretion in ultimately determining that the Department did not carry its burden of proof. On this record, we conclude that the juvenile court did not clearly err as to the findings of fact on which it based its ultimate conclusion or abuse its discretion and, therefore, we affirm.
Decisions concerning continuation of shelter care, especially where the minor is an infant, are some of the most difficult that a court can face. Information is often unavoidably scarce, facts are often developing and disconcertingly unclear, the law requires immediate action, and the interests and stakes involved—the health and safety of defenseless children and parents' fundamental liberty interest in raising their children—are among the most important a court can be called upon to assess. The General Assembly has implemented a statutory scheme to navigate these issues and balance these interests. That scheme calls upon a juvenile court to find by a preponderance the necessary factors or, if it cannot do so, to deny continued shelter care. After reviewing the principles and interests involved, we find no compelling constitutional principle that would permit, much less compel, us to depart from that scheme.
O.P. was born seven weeks prematurely, on October 7, 2018, to parents N.R. ("Mother") and S.P. ("Father"). He spent the first seven weeks of his life in the neonatal intensive care unit ("NICU") of Johns Hopkins Hospital until his discharge on November 23. Three weeks later, on December 14, the Department received a report that O.P. had been admitted to Johns Hopkins Hospital due to unexplained brain injuries
. On December 21, the hospital discharged O.P to the Department's custody to be placed in emergency shelter care.
On December 26, the next day the courts were open, the Department filed a Child in Need of Assistance ("CINA") petition and a request for continued shelter care with the juvenile court. The petition included the following allegations:
• The Department held a "Team Decision Making meeting" on December 26 in which O.P.'s parents participated. They "were unable to develop a plan that would assure [O.P.'s] safety other than to place him in out of home care."
That same day, December 26, a juvenile magistrate held a hearing and granted the Department's request for an order continuing shelter care pending adjudication.
Mother exercised her statutory right to request an immediate review of the magistrate's order and the juvenile court held a de novo shelter care hearing the next day.3 The Department presented (1) the testimony of child protective services worker Joshua Kay and (2) the hospital's discharge summary for O.P. In light of the nature of the challenge to the juvenile court's findings and ultimate determination, we present Mr. Kay's testimony in some detail.4
Mr. Kay testified regarding what the parents had told him about the incident in which O.P. had stopped breathing:
Mr. Kay also spoke to O.P's pediatrician, Dr. David Dominguez, and others within Dr. Dominguez's office. Based on those conversations, Mr. Kay testified that O.P. was "schedule[d] to have weekly appointments" because "he had been having trouble gaining weight." The pediatrician's office told Mr. Kay that O.P. had been scheduled for an appointment on December 12, which was missed, and that he had never been scheduled for an appointment on December 13. The parents brought O.P. for an appointment on December 14, at which Dr. Dominguez became concerned about O.P.'s "expanded head circumference" and "the observable veins in [his] head." As a result, Dr. Dominguez told Mr. Kay, he "sent them to the ER." The parents never informed Dr. Dominguez about the incident in which O.P. was choking and stopped breathing. The doctor learned about that incident only later from Dr. Mitch Goldstein of Johns Hopkins Hospital.
Mr. Kay also testified about his communications with Dr. Goldstein, the physician in charge of the child protection team that evaluated O.P. at the hospital. Dr. Goldstein told Mr. Kay that he had conducted tests and reviewed some of O.P's medical records. Dr. Goldstein also reported that there was "intracranial bleeding
," specifically "subdural hematoma and subarachnoid hematoma," which was "consistent with abusive head trauma" incurred "on two different occasions." The doctor believed the injuries occurred on two different occasions because there was "newer blood and older blood" in "two different locations," which could not be the result of a birth defect or medical issue.
Notably for our purposes, Mr. Kay also reported that Dr. Goldstein said that he could not determine the timing or age of the two bleeds, other than "that one was older and one was newer." Although the Department had attempted to get information that would narrow the timeframe, Dr. Goldstein told Mr. Kay that "medical technology does not allow them to put any dates, whether it was, you know, two weeks old, two months old or [sic] either of the bleeds." Indeed, on cross-examination, when asked if "[t]he bleeding could have occurred while [O.P.] was in the NICU," Mr. Kay responded that "[w]hat was explained to [him] is, yes, that there is just no time frame for when the bleeding occurred."
Mr. Kay also acknowledged during cross-examination that Mother had shown him a picture from when O.P. was still in the NICU in which he had the same protruding veins that had concerned Dr. Dominguez on December 14.
Finally, Mr. Kay testified that he had initially attempted to establish a safety plan under which O.P. "could come home and be under 24-hours a day/seven days a week supervision by the maternal grandfather, [who lived in the same home with O.P. and his parents], that he would ensure that the parents were never left alone with" O.P. However, once the Department received information from Dr. Goldstein that O.P.'s injuries were consistent with abusive head trauma
, he became concerned that the grandfather might "be a possible cause of the head trauma" and so the Department was no longer "comfortable doing a safety plan with the parents."
O.P.'s hospital discharge summary, which the court admitted into evidence, indicates that on December 14, O.P.'s head circumference was 40 centimeters, his "[s]calp veins were prominent," and his "[e]yes showed mild sundowning." Notes near the end of the summary state that the hospital's child protective team "noted concern[ ] for possibility of inflicted neurotrauma." An MRI taken on December 19 identified multiple hemorrhages and hematomas
in O.P.'s head....
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...its argument with analysis from this Court's fairly recent precedent concerning the execution of shelter care orders, In re O.P ., 240 Md. App. 518, 205 A.3d 129, cert. granted, 464 Md. 586, 212 A.3d 395 (2019). In that case, we outlined that "continuation of shelter care frequently accompa......
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