Opinion
No. 2478
09-28-2020
IN RE: S.B., C.B., C.B.
Circuit Court for Baltimore City
Petition Nos. 819031001; 819031002; 819031003
UNREPORTED
Fader, C.J., Leahy, Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned), JJ. Opinion by Leahy, J. *This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
On January 30, 2019, the Baltimore City Department of Social Services ("the Department" or "BCDSS") removed S.B., Ch. B. and Co. B (collectively, "the Children"), from the home where they lived with their mother, on allegations of neglect. The Department filed a Child in Need of Assistance ("CINA") petition and request for emergency shelter care in the Circuit Court for Baltimore City, sitting as the juvenile court. Following adjudication of the petition, disposition was postponed on numerous occasions, either at the request of or without opposition from the parents of the Children. As of the filing of the parties' briefs, in July 2020, disposition was still pending, and the Children remained in shelter care.
The procedures that govern proceedings involving a child who is alleged to be a CINA are set forth in Maryland Code (1973, 2013 Repl. Vol., 2019 Supp.) Courts & Judicial Proceedings Article ("CJP"), §§ 3-801 et seq. A "child in need of assistance" is "a child who requires court intervention because: (1) The child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and (2) The child's parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and the child's needs." CJP § 3-801(f).
"'Shelter care' means a temporary placement of a child outside of the home at any time before disposition" of a CINA petition. CJP § 3801(bb).
The father of the Children, Mr. B. ("Father"), filed the present appeal from the following interlocutory orders of the juvenile court: (1) a December 23, 2019, order granting a consent motion to postpone a status conference on Father's exceptions to the magistrate's recommendation for continued shelter care; and (2) a January 6, 2020, order scheduling a de novo hearing on the exceptions. Father presents two questions for our review:
1. "Did the trial court commit error by continuing the Children in shelter care beyond the expressly authorized 60 days?"
2. "Did the trial court err by refusing to change the shelter care order so that the Children could live with [Father] and the paternal grandmother?"
The Department has moved to dismiss the appeal on grounds that no appeal is allowed by law and that the appeal is moot. For the reasons set forth below, we grant the Department's motion to dismiss because the two interlocutory orders were not final or otherwise appealable. We dismiss the appeal, and, consequently, do not reach Father's questions.
BACKGROUND
On January 30, 2019, the Department received a report that S.B (born in August 2014), Ch. B. (born December 2015), and Co. B. (born December 2017) had recently been left at their home unattended. Personnel from the Department responded to the home and found that the Children were living with their mother, Ms. C. ("Mother"). Personnel observed that a stove's burners were alight and being used to heat the home, because the home had no other source of heat. The Department's personnel "observed that the kitchen was dirty, had rat droppings visible, and that the stove [was] full of grease and dirt. . . . BCDSS personnel observed rats running in the home, as well as rat holes and rat droppings." Mother admitted that the home had had no heat for two years and had been rat-infested since August 2018. Mother allegedly prostituted while the Children were present.
The home was owned by Father, who had moved out of the home in November 2018. Mother "informed BCDSS that there [was] cocaine in the home, which [Father] sells. The cocaine [was] under the furnace, in a location available to [the Children]." Personnel from the Department observed, among other things, "that [the Children] smelled of rats, that they were filthy, that none . . . [were] verbal, and all three . . . were wearing diapers filled with human waste." The Children were removed from the home and placed into emergency shelter care. The Department filed a Child in Need of Assistance ("CINA") petition, along with a request for emergency shelter care.
First Shelter Care Hearing
An emergency shelter care hearing was held on February 4, 2019. All parties except Father requested an order of shelter care. Father requested that shelter care be denied, and that the Children be placed with him, pending adjudication and disposition of the CINA petition.
According to the brief filed on behalf of the Children, a shelter care hearing was scheduled for January 31, 2019, the day after the children were removed from the home but was continued to February 4 because Father was not present.
The Department opposed placement with Father, pointing to allegations that Father was a cocaine dealer and had a history of domestic violence, which, on one occasion, impacted S.B. whom Mother was holding at the time. The Department asserted that Father, who saw the Children on a regular basis, should have seen and addressed obvious signs of neglect that the Children exhibited, and that Father was aware of the unsafe conditions of the home in which the Children lived. Counsel for the Children joined the Department's opposition to placement with Father, and Mother agreed that shelter care was appropriate. The magistrate found that it was contrary to the Children's welfare to be returned to the care of their parents and ordered shelter care with the Department. Father did not seek review of that order.
Pursuant to Maryland Rule 11-111(a), a magistrate is authorized to order shelter care "subject to an immediate review by a judge if requested by any party."
The court held an initial adjudicatory hearing, which it conducted as a settlement conference, on March 8, 2019. The parties were unable to reach an agreement, and a contested adjudicatory hearing was scheduled for May 22, 2019. The court's order, dated March 8, 2019, reflected that the parties waived the requirement that an adjudicatory hearing be held within 30 days of detention or shelter care, and waived the statutory provision limiting shelter care to 30 days.
See Maryland Rule 11-114(b)(2) ("If the respondent is in detention or shelter care, the adjudicatory hearing shall be held within thirty days from the date on which the court ordered continued detention or shelter care.").
Pursuant to CJP § 3-815(c)(4), "[a] court may not order shelter care for more than 30 days except that shelter care may be extended for up to an additional 30 days if the court finds after a hearing held as part of an adjudication that continued shelter care is needed to provide for the safety of the child."
Adjudicatory Hearing
At the hearing on May 22, 2019, all parties, except Mother, stipulated to the following facts:
According to Mother's attorney, Mother understood the likelihood that the alleged facts could be proven at trial, but, because she did not agree with how some of the facts were "formatted," she took "no position."
1. On January 30, 2019, BCDSS received a report that [M]other had left the [Children] home alone in the . . . residence. [S.B.] and [Ch. B.] were asleep on a couch, and [Co. B.] was wandering the home. . . .
2. On or about January 30, 2019, BCDSS entered the residence and observed that the home had no heat. The stove's burners were alight and was being used to heat the home. BCDSS contacted BGE to determine whether the residence had working utilities and was advised the residence had not had utilities in two years.
3. BCDSS personnel observed that the kitchen was dirty, had rat droppings visible, that there were rat holes throughout the residence, observed rats coming out of the holes and that the holes were covered with black tape. The worker observed that the kitchen was in deplorable condition. BCDSS also observed that there were broken windows in the home and piles of trash throughout the home. BCDSS personnel observed a crib mattress on the floor, with holes where rats ate through it.
4. BCDSS personnel observed that the home had holes in its floors, walls and ceilings. A BCDSS worker almost fell into a hole in the dining room floor.
5. Mother and [F]ather have a domestic violence history. Both parents have allegedly, at different times, been the aggressors. Mother has been involved with a domestic violence shelter and at the time of the [Children's] removal was living at the [residence], which is reportedly in [F]ather's name, after having to move from a friend's home where she was temporarily residing.
6. BCDSS observed that [S.B.] was malodorous, [was] non-verbal and was wearing a soiled diaper, as well as having matted hair filled with lint balls, that was sensitive to the touch.
7. BCDSS case worker observed that [S.B.'s] hair/scalp was puffy and her teeth were visibly rotten. When BCDSS personnel reached toward [S.B.'s] head, she flinched and whimpered.
8. BCDSS personnel observed [Ch. B.'s] hair to be full of lint balls, his clothes were dirty. He was wearing a soiled diaper, was malodorous as well. He [was] also non-verbal.
9. BCDSS personnel had concerns that [Co. B.] was not responding like a normal child of his age. He did not follow movement, he did not reach out to grab, he would not accept a bottle when offered, and his gums were observed to be swollen.
10.All three [Children] were taken to Johns Hopkins Hospital (JHH) for examination and treatment as needed. [Co. B.] and [Ch. B] both had healing burn injuries. All three [Children's] condition was indicated to be [sic] could not diagnose nor exclude abuse. [S.B.] has a genetic condition which has gone undiagnosed. Mother report[ed] that she has attempted to schedule an appointment at Kennedy Krieger Institute but was on the waiting list. JHH personnel indicated that [S.B.] has been examined numerous times over the last four (4) years for unexplained injuries, from the age of three (3) months.
11.Mother informed BCDSS that she had been an inpatient at JHH for five days.
12.Mother report[ed] that [F]ather has provided her with very minimal support for the [Children].
13.Father resided with [M]other on and off until August 2018. Father was aware of the condition of the residence and left the [Children] there while he moved out. He ha[d] not ensured that their physical, mental, routine or other needs have been met. Father report[ed] that he provid[ed] [M]other with pampers and cash. Father report[ed] that he visits with the [Children] on the weekends and returns them to the conditions of the house. Father report[ed] that he is employed through the State of Maryland as a heavy equipment operator. Father has not been the main provider of the [Children] since he left the residence in August 2018. Father has CPS history from 2015 for physical abuse of [S.B.].Father denie[d] that he has CPS history and denie[d] physical abuse connected to the CPS incident.
At the February 4, 2019 hearing, Father's counsel informed the court that Father moved out in November 2018.
The court found that the allegations in the CINA petition had been proved by a preponderance of the evidence, and the stipulated facts were sustained.
Initial Postponements of Disposition
Following adjudication, the Department, Mother, and Father requested that disposition be postponed because the assigned social worker was "out emergently" due to an injury, and Mother and Father had not yet been presented with a service agreement or referrals for services. Father also requested the postponement because he wanted the Children to be placed with him and needed time to arrange for child care and other resources. The court found good cause to postpone disposition and the parties agreed to reset the hearing for August 27, 2019.
Counsel for the Children opposed postponing disposition, stating that, although there was no formal service agreement, Mother and Father had been made aware of what they needed to do at a Family Involvement Meeting.
In early August, Father's attorney filed a motion to postpone the disposition hearing because it conflicted with a scheduled vacation. The Department and the Children objected to the postponement "for timeline purposes." The court granted the motion, and disposition was rescheduled for October 23, 2019.
Father's Request for Termination of Shelter Care Denied
At the October 23 hearing, Mother appeared without counsel because her assigned public defender was no longer with that office, and Mother had not been assigned a new attorney. The court rescheduled disposition to December 5, 2019, to allow Mother to have representation. Father did not oppose the postponement of the disposition hearing.
After postponing disposition, the court asked the parties if there was any request for a change in shelter care. Father requested that the order of shelter care be terminated and that the Children be placed with him until that time. Father's counsel asserted that Father was "appropriate to care for the Children." Father was employed and lived with the Children's paternal grandmother ("Grandmother"). He had not yet completed a parenting class, but Grandmother had taken a resource parent training program and would serve as his "backup."
The Department opposed Father's request to terminate shelter care, noting that Father had not requested that the Department complete an inspection of Grandmother's home. Father had yet to start an anger management class that the Department had requested, and he had to start the parenting program again because he had missed some of the classes. The Department maintained that Father was not able to provide the Children with necessary care, including educational and therapeutic services that the Children were receiving in their current placement. The Department explained that one reason Grandmother had not been considered for shelter care was that Father also resided in the home.
The Children's attorney opposed termination of shelter care on the same grounds. Additionally, the Children's attorney noted that Father had a history with Child Protective Services related to physical abuse of S.B., and argued that Father had "not done anything to mitigate" the obvious signs of neglect, even though that he saw the Children on weekends.
The magistrate reviewed the facts sustained at adjudication and found there had been no material change in circumstances. The magistrate recommended that shelter care be continued pending the disposition hearing on December 5, 2019.
Father filed exceptions to the magistrate's recommendation to deny his request that shelter care be discontinued. The Department filed a motion to dismiss the exceptions, asserting that the proper procedure to challenge a magistrate's order for shelter care was to request immediate review by a judge, pursuant to Maryland Rule 11-111(a). Following a hearing, the court granted the Department's motion to dismiss the exceptions. Father then noted an appeal from that ruling and from the ruling continuing shelter care, reflected in an order signed by the court on October 31, 2019.
The Department, in its brief, states that it is unaware of any efforts by Father to pursue this earlier appeal. Father does not challenge this assertion in his reply brief. This Court never received contemporaneous notice that the appeal had been filed and, upon becoming aware of it in the course of reviewing this case, issued a separate show cause order to address it.
Father's Request for Modification of Shelter Care Denied
The parties next appeared before the magistrate on the afternoon of December 5, 2019, for the disposition hearing. The hearing was scheduled to take three hours, but the case was not called until 4:02 p.m. Counsel for Father advised the magistrate that she had to leave at 4:30 and that Father had an appointment at 6:00. The Department advised that one of its witnesses had to leave at 4:20. The court determined that the hearing would have to be reset. Father did not object to the postponement but requested a change in the shelter care order. Although counsel for Father stated at the outset that Father was "willing and able" to care for the Children, the only change that was expressly requested was "direct placement" of the Children with Grandmother, with whom Father still resided. Father's attorney advised the magistrate that a background check and an inspection of Grandmother's house had been completed. Grandmother was aware that S.B. had special needs, and Grandmother was willing to do "whatever would need to be done." Grandmother was employed but was able to take leave from work whenever necessary.
The Department opposed the modification to shelter care, noting that Grandmother had previously failed to take action to address the Children's poor hygiene and developmental delays, even though the Children visited Father at Grandmother's house every weekend. The Children's attorney joined in the Department's opposition to placement with Grandmother, citing "concerns about the ability of both Grandmother and Father to safely care" for the Children, because of the Children's "extensive special needs, and because of the serious medical neglect they suffered while visiting Father and Grandmother every weekend."
The magistrate denied Father's request to place the Children with Grandmother, stating that there were "no assurances" that the Children would be safe in Grandmother's home. The existing order of shelter care was continued, and disposition was rescheduled to January 28, 2020. The magistrate's December 5 recommendations were signed by a circuit court judge on December 13, 2019. No appeal was ever taken from this order.
Second Exceptions
Father filed exceptions to the magistrate's December 5, 2019, recommendation to continue the existing shelter care order and requested a de novo hearing. The Department moved to dismiss Father's second exceptions, asserting, as it had before, that the correct procedure to challenge the magistrate's continuation of the existing shelter care order was to request immediate review by the court.
The court scheduled a status conference for December 26, 2019, and issued an order indicating that purpose of the status conference was to determine (1) the witnesses who would testify at the exception hearing, (2) stipulations of fact, (3) what parts of the record before the magistrate could be reviewed by the court, and (4) the date of the exception hearing. Counsel for the Department filed a motion to postpone the status conference on grounds that she was scheduled to be on leave on that date.
December 23 , 2019 Order
On December 23, 2019, the court held a brief hearing on the Department's motion to postpone the status conference. Counsel for the Children represented that Father's attorney, who was not present, gave permission for the hearing to proceed in her absence, and had agreed to postpone the status conference to January 6, 2020. The court granted the motion to postpone the status conference and issued an order which stated that the next court action would be an "Exception Hearing De Novo" on January 6, 2020.
January 6 , 2020 Order
At the hearing on January 6th, the court clarified that, although the prior order indicated that the proceeding was to be a hearing on exceptions, the parties were there for the status conference that had been postponed. Father's attorney suggested that there was nothing to preclude the parties from going forward with the hearing on exceptions to the magistrate's recommendation that the existing shelter care order be continued. The court expressed a willingness to skip the status conference and proceed with a hearing on exceptions if all parties agreed, but counsel for Mother and counsel for the Department were scheduled to be in trial in another courtroom that same morning. The court then scheduled the hearing on Father's exceptions and the Department's motion to dismiss for January 24, 2020.
Counsel for Father asked to be heard "as to the continued shelter" but the court declined to do so in the context of a status conference. On January 21, 2020, Father noted the present appeal from the court's orders dated December 23, 2019 ("December 23rd order") and January 6, 2020 ("January 6th order").
Post-Appeal Proceedings
On January 24, 2020, the parties appeared before the court for the hearing on Father's exceptions to the magistrate's December 5, 2019, recommendation to continue the existing shelter care order. The court stayed a ruling on both the motion to dismiss and the exceptions pending resolution of Father's appeals to this Court.
On January 28, 2020, the parties appeared before the magistrate for the disposition hearing. Mother's counsel was not available, because he was tied up in an ongoing trial, and disposition was reset to February 25, 2020. Father's attorney asked to be heard regarding continuing shelter care, but, because Mother's counsel was not present, the magistrate scheduled a shelter care hearing for January 30, 2020.
At the hearing on January 30, 2020, Father requested that the shelter care be terminated, or, alternatively, that the Children be placed with Grandmother. Father informed the magistrate that he had moved out of Grandmother's house "to ensure that there would be no objection to the Children residing in [Grandmother's] home." Mother supported Father's request.
Counsel for the Children opposed the request, arguing that placing the Children in Grandmother's care was not safe because Grandmother had previously failed to take action to address their medical needs. The Department also opposed a change in shelter care, stating that it was "premature" to place the Children with Grandmother, who had not yet completed the process of becoming licensed for therapeutic foster placement. The Department indicated that it might change its position if Grandmother received "specific training to recognize the needs of all three children."
The magistrate recommended that Father's request for termination of modification in shelter care be denied, explaining:
At this time, parents have not presented the Court with sufficient evidence that would warrant a denial of shelter care. It is premature to place [the Children] in [Grandmother's] care. It is imperative that the Court has assurances that [Grandmother] is able to meet the needs of the [Children], all of whom have special needs.
The magistrate's recommendation was approved by the court on February 10, 2020. The last court order in the record before us, dated February 11, 2020, indicates that a hearing on a request for immediate review of the magistrate's shelter care order was scheduled for February 18, 2020. The parties have not advised the Court of any orders entered subsequent to February 11, 2020.
DISCUSSION
The Department has moved, pursuant to Maryland Rule 8-602(b)(1), to dismiss Father's appeal on grounds that both orders, from which the appeal was noted, are unappealable and moot. Specifically, the Department avers that "Father has no right to appeal the December 23 or January 6 orders because they were scheduling orders with no lasting impact on the parties' rights" and did not "deprive[] Father of custody of S.B., Ch. B., and Co. B." The Department further contends that Father acquiesced to the orders, which rendered the orders moot because they were superseded by subsequent hearings on January 24, 28, and 30, in which the court did not alter the Children's shelter care arrangement.
In response, Father contends that the "orders are not only scheduling orders but are orders that continue to hold [Father's] three children in a temporary, emergency, shelter care placement." Relying on CJP § 12-303(3)(x), Father argues that the order deprives Father of custody and that he did not acquiesce to continued shelter care but "began to advocate for a change . . . in October 2019." Finally, Father asserts that the appeal is not moot because this Court could vacate the continuation of shelter care and "return the children to [Father] or his family members."
In general, a party may appeal only from a final judgment, which is a ruling that "has the effect of putting the parties out of court and denying them the means of further prosecuting the case or the defense." Ruiz v. Kinoshita, 239 Md. App. 395, 416 (2018) (quoting Judge Kevin F. Arthur, FINALITY OF JUDGMENTS AND OTHER APPELLATE TRIGGER ISSUES 5 (3d ed. 2018)). Father concedes that the December 23, 2019rd and January 6th orders are not final judgments.
There are three exceptions pursuant to which a party may appeal an order that is not a final judgment: "(1) appeals from interlocutory orders specifically allowed by statute; (2) immediate appeals permitted when a circuit court enters final judgment under Maryland Rule 2-602(b); and (3) appeals from interlocutory rulings allowed under the common law collateral order doctrine." In re O.P., ___ Md. ___, No. 26, Sept. Term 2019, slip op. at 22-23 (filed Aug. 14, 2020) (citation and footnote omitted).
The Court of Appeals has explained that, "[i]n determining whether an interlocutory order is appealable, in the context of custody cases, the focus should be on whether the order and the extent to which that order changes the antecedent custody order." In re Karl H., 394 Md. 402, 430 (2006). "If the change could deprive a parent of the fundamental right to care and custody of his or her child, whether immediately or in the future, the order is an appealable interlocutory order." Id. Conversely, "subsequent interlocutory orders made in accordance with continuation of the same plan are not appealable because they do not change the terms of parental rights." In re Ashley S., 431 Md. 678, 702 n.15 (2013).
Here, the prior custody order, dated December 5, 2019, reauthorized shelter care with the Department pending the disposition hearing that was scheduled for January 28, 2020. Neither the December 23rd order nor the January 6th order, altered the terms of the December 5th order. Nor did those orders have a future potential to deprive Father of custody of the Children as they did not affect Father's ability to demonstrate at the disposition hearing that the Children should be returned to his custody. Consequently, the exception to the final judgment rule in CJP § 12-303(3)(x) does not avail Father of a right to appeal either the December 23rd or the January 6th order.
We note that the denial of a request for continued shelter care. made by a local department of social services, is reviewable under the collateral order doctrine. In re O.P., ___ Md. ___, No. 26, Sept. Term 2019, slip op. at 23. As the Court of Appeals explained, under the collateral order doctrine, an interlocutory order may be appealed "if the order (1) conclusively determines (2) an important issue (3) separate from the merits of the action (4) that would be effectively unreviewable if the appeal had to await entry of a final judgment." Id. at 23 (citing Pittsburgh Corning Corp. v. James, 353 Md. 657, 661 (1999)). The Court reasoned that the question of whether an emergency situation exists that warrants continued temporary placement of the child outside of the home, pending adjudication of a CINA petition, is an important issue that is separate from the merits of the CINA proceeding. Id. at 24-25. In addition, whether shelter care is warranted is conclusively determined at a shelter care hearing, and that determination is effectively unreviewable on appeal, due to the temporary nature of a shelter care order. Id. at 24. Although the same reasoning would appear to apply equally to the converse situation: where a parent or guardian's request for termination of shelter care is denied, it is unnecessary for us to resolve that question.
Here, neither the December 23rd order nor the January 6th order denied a request for termination of shelter care. The scope of the December 23rd order was limited to rescheduling the status conference, and the January 6th order only scheduled a date for a hearing on Father's exceptions. The court did not consider the issue of shelter care at either hearing, and, therefore, made no "conclusive determin[ation]" as to whether shelter care was warranted before issuing either order. Therefore, even assuming, without deciding, that the denial of a parent's request to terminate shelter care is appealable pursuant to the collateral order doctrine, such an exception would not apply here.
Having concluded that there is no right of appeal from the interlocutory orders that are the subject of this appeal, we need go no further than to dismiss the appeal. Were we able to reach the merits, however, we would most certainly find the court's continuation of shelter care for over a year without disposition problematic and contrary to the express language and purpose of CJP §3-815. See In re O.P., 240 Md. App. 518, 553 (2019), cert. granted, 464 Md. 586, 212 A.3d 395 (2019), and aff'd in part, rev'd in part, 26, SEPT. TERM, 2019, 2020 WL 4726601 (Md. Aug. 14, 2020) ("[S]shelter care is designed to provide emergency protection for a child only until a juvenile court rules on the merits of a CINA petition.").
Our review, though, is barred not only for the reasons stated in the opinion above, but also, we observe, Father affirmatively waived any right to appeal the December 23rd order, even after final judgment, because he consented to the action taken by the court. See In re: Nicole B., 410 Md. 33, 64 (2009) ("It is wellsettled that a party in the trial court is not entitled to appeal from a judgment or order if that party consented to or acquiesced in that judgment or order.") Furthermore, Father may have also waived any objection to continued shelter care. At the hearing on December 5, 2019, Father asked for modification of the shelter order in favor of "direct placement" of the Children with Grandmother, instead of the Department, pending disposition. See In re K.YB., 242 Md. App. 473, 48687 (2019) (stating that a party waives an objection to continued shelter care by requesting or acceding to an order of shelter care). We note that, at the shelter care hearing that took place on January 30, 2020, nine days after this appeal was filed, Father continued to request shelter care with Grandmother, as an alternative to returning the Children to his custody.
APPELLEE DEPARTMENT OF SOCIAL SERVICES' MOTION TO DISMISS APPEAL GRANTED. CASE REMANDED TO THE CIRCUIT COURT FOR BALTIMORE CITY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS ORDER. COSTS TO BE PAID BY APPELLANT.