Opinion
No. 1225
03-24-2020
IN RE: J.P.
Circuit Court for Washington County
Case No. C-21-JV-19-000136
UNREPORTED
Meredith, Wells, Wright, Alexander, Jr. (Senior Judge, Specially Assigned), JJ. Opinion by Wright, 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.
The Washington County Department of Social Services (the "Department") filed, in the Circuit Court for Washington County, a petition alleging that J.P., child of H.P. ("Mother"), was a child in need of assistance ("CINA"). Following an adjudicatory hearing, the circuit court, sitting as the juvenile court, sustained the allegations in the Department's petition. Then, following a disposition hearing, the court found J.P. to be a CINA and ordered that he be placed in the custody of the Department for placement in foster care. In this appeal, Mother presents two questions for our review:
A child in need of assistance ("CINA") 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." Md. Code (1973, 2013 Repl. Vol.), Courts & Judicial Proceedings Article ("CJP") § 3-801(f).
1. Did the juvenile court abuse its discretion when it denied Mother's motion for a continuance of the disposition hearing?
2. Did the juvenile court err in sustaining the allegations in the Department's petition and finding J.P. to be a CINA?
We hold that the juvenile court did not err in denying Mother's motion for a continuance. As to question 2, we hold that Mother's claims were not preserved for our review. We further hold that, even if those claims were preserved, the juvenile court did not err in sustaining the Department's allegations and finding J.P. to be a CINA. Accordingly, we affirm the judgment of the circuit court.
BACKGROUND
On April 29, 2019, J.P., who was six-years-old at the time, was removed from the care and custody of Mother and placed in the temporary care of the Department after the Department filed a "Petition for Continued Shelter Care and CINA Petition" on behalf of J.P. In that CINA petition, which was later amended, the Department alleged that, on April 28, 2019, "the Hagerstown Police Department responded to a call for a woman lying in the street on E. Franklin Street in downtown Hagerstown;" that, upon arrival at the scene, the police found a woman, later identified as Mother, "passed out on the front stoop of a residence;" and that, at the time she was found, Mother was "under the influence of alcohol" and "severely impaired." The petition further alleged that, as the police were tending to Mother, J.P. "was located approximately one (1) block away wandering by himself;" that Mother was "unable to identify anyone who could care for [J.P.] at the time;" and that Mother was "unable to make a plan with an appropriate caregiver for [J.P.]"
Adjudication Hearing — May 29 , 2019
On May 29, 2019, the juvenile court held an adjudication hearing on the Department's amended CINA petition. At that hearing, the Department informed the court that the parties "had an opportunity to discuss the matter beforehand" and that they were "proceeding by way of an uncontested adjudication." The Department added that, although there would be "a denial of the allegations," there would "not be a trial on the adjudication itself," with the understanding that a final disposition on custody would be delayed until the end of the school year. After counsel for J.P. stated that the Department's proffer was accurate, the court addressed Mother's counsel, and the following colloquy ensued:
[COUNSEL]: And that is my understanding as well, Your Honor. Mom adamantly denies the allegations in the Petition.
THE COURT: Okay.
[COUNSEL]: Um, however, she is willing to proceed today with a full contested hearing. And, I would agree to delay disposition.
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THE COURT: Alright. Okay, then [] based upon [] the information contained in the Petition and based upon the positions taken by the parties in Court, the Court does understand that [Mother] is denying all allegations. The Court does find though that [] the allegations do provide a sufficient factual basis for this Court's finding and Order and the Court will then adjudicate the child but delay disposition. And [] disposition will be set on June 13, 2019. Is that afternoon acceptable to everybody?
[DEPARTMENT]: Yes, Your Honor.
THE COURT: Alright, so at 1:00 p.m. [] Disposition will be held on that date[.] I will find that it is contrary to the welfare of the child to remain in the care of and home of [Mother]. These findings are pending Disposition and I find that the Department has made reasonable efforts to prevent or eliminate the need for removal, again, pending the Disposition. Alright, thank you.
Mother's counsel then thanked the court, and the proceedings concluded. The court thereafter issued a written order finding that J.P. had been neglected, and that Mother was unable to give proper care and attention to J.P. and his needs. In so doing, the court found the following allegations to have been established by a preponderance of the evidence: that, on April 28, 2019, Mother had been found by the police lying in front of a residence; that Mother was under the influence of alcohol at the time; and that she was unable to safely care for J.P. The court ordered for J.P. to remain in the care and custody of the Department for placement in foster care. The court also ordered that Mother would have supervised visits with J.P. for a minimum of one hour per week.
First Disposition Hearing — June 13 , 2019
On June 13, 2019, the parties returned to court for the disposition hearing. At the beginning of the hearing, Mother's counsel, an attorney with the Office of the Public Defender ("OPD"), asked if she could withdraw her appearance because she and Mother were "experiencing differences" that were affecting her "ability to be able to provide effective assistance of counsel." Mother's counsel stated that the OPD was willing to provide Mother with a panel attorney. Mother's counsel then asked for the juvenile court to continue the matter "so that can be done." The court ultimately granted counsel's withdrawal request and continued the matter.
Second Disposition Hearing — July 11 , 2019
At the continued disposition hearing, the Department informed the juvenile court that OPD had not yet secured another attorney for Mother. The court continued the matter so that an attorney could be appointed.
Third Disposition Hearing — August 1 , 2019
On August 1, 2019, Mother returned to court with a "panel" attorney who had been recruited by the OPD to represent Mother. At the start of the hearing, Mother's panel attorney informed the court that he had entered his appearance "last week" and that, in the meantime, he had received "some information." The panel attorney stated that he had also contacted Mother "via email," and that she had "a lot of issues" that she wanted the panel attorney "to litigate for her." The panel attorney then asked the court to continue the matter so that he could have "time to fully prepare." Ultimately the court granted the continuance request and, with the panel attorney's approval, reset the matter for September 5, 2019.
Fourth Disposition Hearing — September 5 , 2019
At the continued hearing on September 5, 2019, Mother's panel attorney asked the court for another continuance. In so doing, the panel attorney stated that he had just received discovery "two days ago," and that he never received a "file from the Public Defender's Office." The panel attorney also stated that, when he agreed to take Mother's case, he "did not know the gravity of the issues involved or the lengthy history." The panel attorney added that he "just started doing CINA panel work" after retiring from the OPD, where he spent "thirty years, the last twenty-five [] in felony trials in Baltimore City." The panel attorney stated that he had "been put in a difficult position" and that Mother had "been recently homeless," which made it "very difficult for [them] to work together." The panel attorney asked the court for another continuance so that he could "get on firmer ground and properly represent [his] client."
When the juvenile court asked the panel attorney for more information as to what he hoped to glean from the OPD's records, the panel attorney stated that he had "the impression that [Mother's previous attorney] had interviewed some people and [] issued some subpoenas." The panel attorney added that he did not know whether those witnesses would be "valuable" or "detrimental" to Mother.
J.P.'s counsel did not object to the continuance. The Department, on the other hand, did object, arguing that there was no need for additional time because a CINA determination could be made based on the court's findings following the adjudication hearing. The juvenile court ultimately denied the continuance request, explaining that the sole issue before the court was "whether or not this child is going to be found a Child in Need of Assistance."
There was an additional issue before the juvenile court regarding a petition filed by the Department to waive its obligation to make reasonable efforts toward reunification; however, the court granted a continuance on that issue, and a hearing on that matter was set for a later date.
Following the juvenile court's ruling, the Department called Mother as a witness, but Mother refused to testify because she was facing criminal charges related to the allegations contained in the CINA petition. Mother's panel attorney informed the court that, in lieu of her testifying, Mother wished to proceed "by proffer." When the court asked the Department what the proffer was, the Department responded that "the court can take judicial notice of the allegations that are contained in the petition because they were sustained by virtue of [Mother] waiving her [] contested hearing right at adjudication." Mother's counsel did not object, and the court read the following into the record:
April [28th], 2019, [Hagerstown Police Department] responded to a welfare check and found [Mother] laying on a small stoop in front of [a residence]. [J.P.] saw the ... police officers and walked back to where [Mother] was laying. She was rambling and not coherent and could not name any supports for [J.P.] At the time, [Mother] was under the influence of alcohol, severely impaired and unable to safely care for [J.P.] [The Department] attempted to make another plan to find an alternative caregiver to no avail.
After reading that statement into the record, the court asked, "That's the proffer?" The Department responded, "That's the proffer." The Department then added that Mother did not have stable housing; that there was "no evidence" that "the alcohol issue" had been addressed; that Mother had "considerable mental health issues" that had gone "unaddressed;" that there had been a prior CINA finding regarding J.P.; and that Mother's parental rights over another child had been terminated. Mother's panel attorney did not object to the Department's proffer, but he did add that Mother was "a loving mother;" that she had "learning disabilities;" and that she did not believe the Department had done enough to improve her situation. Mother's panel attorney also argued that the court should not make a CINA determination at that time but instead should continue the matter due to Mother's "inconsistent counsel" and the fact that Mother was homeless.
In the end, the juvenile court issued a written order declaring J.P. to be a CINA and finding that it was contrary to J.P.'s welfare for him to remain in Mother's care "due to neglect and because Mother was homeless." The court noted that, at the disposition hearing, "all counsel agreed to proceed to Disposition by proffers to the Court and without the need for testimony of any witnesses." The court ordered that J.P. remain in the care and custody of the Department with a permanency plan of reunification with Mother. The court also ordered that Mother would continue to have supervised visits with J.P. for a minimum of one hour per week.
STANDARD OF REVIEW
Appellate review of a juvenile court's decision regarding child custody involves three interrelated standards. First, any factual findings made by the juvenile court are reviewed for clear error. In re Yve S., 373 Md. 551, 586 (2003). Second, any legal conclusions made by the juvenile court are reviewed de novo. Id. Finally, if the court's ultimate conclusion is "founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the [court's] decision should be disturbed only if there has been a clear abuse of discretion." In re J.J., 231 Md. App. 304, 345 (2016) (citations omitted), aff'd 456 Md. 428 (2017). "A decision will be reversed for an abuse of discretion only if it is well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable." Id. (citations and quotations omitted).
DISCUSSION
I.
Mother contends that the juvenile court abused its discretion when it denied her request for a continuance of the disposition hearing on September 5, 2019. Mother asserts that her continuance request should have been granted because her panel attorney, who was newly appointed, was having difficulty communicating with her due to her homelessness and because the panel attorney had trouble preparing for the disposition hearing due to his "active caseload" and general inexperience with CINA cases. Mother also notes that her panel attorney had only received discovery from the Department two days prior to the hearing and had yet to obtain a case file from her previous attorney. Mother maintains that "this confluence of exceptional circumstances" warranted the granting of a brief continuance.
Maryland Rule 2-508(a) states that "[o]n motion of any party or on its own initiative, the court may continue or postpone a trial or other proceeding as justice may require." "Under Rule 2-508, the trial court has wide latitude in determining whether to grant a continuance." Das v. Das, 133 Md. App. 1, 31 (2000) (citations and quotations omitted). "Generally, an appellate court will not disturb a ruling on a motion to continue unless discretion is arbitrarily or prejudicially exercised." Neustadter v. Holy Cross Hosp. of Silver Spring, Inc., 418 Md. 231, 241 (2011) (internal quotation and alteration omitted). Moreover, we "will reverse only in exceptional instances where there was prejudicial error." Prince v. State, 216 Md. App. 178, 203 (2014) (citations and quotations omitted). That said, the Court of Appeals has recognized three instances in which a trial court's denial of a continuance request constituted an abuse of discretion: "when the continuance was mandated by law;" "when counsel was taken by surprise by an unforeseen event at trial, when he acted diligently to prepare for trial;" and "in the face of an unforeseen event, counsel had acted with diligence to mitigate the effects of the surprise." Touzeau v. Deffinbaugh, 394 Md. 654, 669-70 (2006).
We hold that the juvenile court did not abuse its discretion in denying Mother's request for a continuance. When the final disposition hearing was held on September 5, 2019, the matter had already been continued three times. The first continuance was granted on June 13, 2019, after Mother's original counsel was permitted leave to withdraw from the case. The second continuance was granted on July 11, 2019, because Mother had not yet obtained new counsel. When Mother arrived in court for the rescheduled disposition hearing with a new attorney, a third continuance was granted to give Mother's new attorney more time to prepare. A new hearing was scheduled, with approval, for September 5, 2019, which gave Mother and her new counsel approximately five additional weeks to prepare. When Mother and her new counsel returned for the rescheduled hearing and requested yet another continuance, no "unforeseen event" was cited. Rather, Mother simply wanted more time to prepare, despite the fact that over three months had passed between the adjudicatory hearing and the final disposition hearing. Given those circumstances, the court's decision not to grant another continuance was reasonable. See Reaser v. Reaser, 62 Md. App. 643, 648 (1985) ("Failure to adequately prepare for trial is ordinarily not a proper ground for continuance or postponement.") (citations omitted).
The court's decision to deny Mother's continuance request was especially reasonable given that, during the three months between the adjudicatory hearing and the final disposition hearing, J.P. remained in temporary foster care without any plan of permanency. See In re Adoption of Jayden G., 433 Md. 50, 84 (2013) (noting that one of the purposes of the CINA statutes is "to prevent childhoods spent in 'foster care drift' - the legal, emotional, and physical limbo of temporary housing with temporary care givers") (citations and quotations omitted). Thus, although Mother's access to effective counsel is not to be ignored when considering the merits of her continuance request, that factor cannot be considered in a vacuum, but rather must be weighed against competing interests, namely, the best interests of J.P. See In re Blessen H., 163 Md. App. 1, 15 (2005) (noting that the primary purpose of a CINA action "is to protect the best interest of the child in question").
Finally, we fail to see how the juvenile court's denial of Mother's continuance request prejudiced Mother. Indeed, Mother's panel attorney, by his own admission, was not in the best position to fully litigate all the issues pertaining to the CINA proceedings at the September 5, 2019, disposition hearing. But the only notable consequence of that proceeding was that J.P. was declared CINA. Aside from that, nothing about the parties' situations changed in any meaningful way; J.P. remained in his foster home while Mother continued to have supervised visitations. Mother can hardly argue that she was prejudiced by the CINA determination when, had the court granted her continuance request, the results would have been the same. In fact, a reasonable argument could be made that the court's CINA determination actually benefited Mother, as it allowed the court to establish a permanency plan of reunification and expedited the process by which J.P. could be returned to her care. Thus, any potential "due process" implications were minimal given the procedural posture of the case. See In re Blessen H., 163 Md. App. at 14-18 (noting that the due process afforded a parent in a CINA proceeding is less than that owed during a proceeding to terminate parental rights, in part because CINA proceedings are designed to conserve and strengthen familial ties and do not seek to sever the parent-child relationship).
As to the juvenile court's CINA determination itself, we again fail to see how Mother was prejudiced by the court's decision to deny her continuation request and to declare J.P. a CINA. Section 3-801(f) of the Courts and Judicial Proceedings Article of the Maryland Code defines "child in need of assistance" as "a child who requires court intervention because: (1) [t]he child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and (2) [t]he child's parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and the child's needs." "'Neglect' means leaving a child unattended or other failure to give proper care and attention to a child . . . under circumstances that indicate: 1) that the child's health or welfare is harmed or placed at substantial risk of harm; or 2) that the child has suffered mental injury or been placed at substantial risk of mental injury." Id. § 3-801(s). "In determining whether a child has been neglected, a court may and must look at the totality of the circumstances[.]" In re Priscilla B., 214 Md. App. 600, 621 (2013). Moreover, in evaluating whether a "substantial risk of harm" exists, "the court has 'a right - and indeed a duty - to look at the track record, the past, of a parent in order to predict what her future treatment of the child may be.'" In re J.J., 231 Md. App. at 346 (citations omitted). In other words, a court "need not wait until the child suffers some injury before determining that he is neglected," but rather, based on a parent's past conduct, may find the child "to be at risk and, therefore, a CINA." In re Nathaniel, 160 Md. App. at 596-97 (citations and quotations omitted).
Here, the juvenile court found J.P. to be a CINA because, on April 28, 2019, Mother was discovered lying in front of a residence, severely intoxicated, and unable to communicate clearly, while J.P., who was in Mother's sole care, was located one block away, alone and unsupervised. Those facts, none of which were in dispute, were sufficient to support the court's finding of neglect.
Importantly, had the court granted Mother's continuance request, the underlying facts would not have changed. In other words, no amount of time would have altered those facts or rendered them insufficient to support the court's finding of neglect. Thus, we cannot say that the juvenile court abused its discretion in denying Mother's request.
II.
Mother contends that the juvenile court erred in sustaining the allegations in the Department's petition and then finding J.P. to be a CINA based on those same allegations. Mother maintains that the juvenile court's adjudicatory findings were "flawed" because the court did not receive any evidence from the Department to support those findings. Mother also maintains that, because she "adamantly denied the allegations and was willing to proceed with a contested hearing," the court was faced with "conflicting proffers" regarding the allegations contained in the Department's petition. Mother asserts that, without additional evidence to support either proffer, the court's decision to accept the Department's proffer was erroneous. For the same reasons, Mother contends that the court erred in declaring J.P. to be a CINA.
We hold that the issue was not preserved. At the beginning of the adjudication hearing, the Department informed the juvenile court that the parties "had an opportunity to discuss the matter beforehand," and that they were "proceeding by way of an uncontested adjudication." Mother's counsel responded by stating, "And that is my understanding as well." The court then issued its ruling, stating that it was sustaining the allegations in the Department's petition "based upon the positions taken by the parties in court." Neither Mother nor her counsel objected to the court's actions. Accordingly, Mother's claim that the court erred in sustaining the allegations was not preserved for our review. Md. Rule 8-131(a).
Mother's claim regarding the juvenile court's CINA finding was similarly not preserved. At the disposition hearing, Mother's panel attorney informed the court that, in lieu of her testifying, Mother wished to proceed "by proffer." That proffer, which the court then read into the record, detailed the April 28, 2019, incident in which Mother was found inebriated and lying outside of a residence while caring for J.P. Again, neither Mother nor her panel attorney objected to the court's characterization of the parties' proffer. Thus, Mother's claim that the court erred in accepting that proffer was not preserved for our review.
Assuming, arguendo, that Mother's claims were preserved, they are without merit. The record establishes that the parties agreed to proceed by way of an uncontested adjudication based upon the allegations presented in the Department's petition, namely, that Mother had been found intoxicated and lying in front of a residence while J.P. was in her sole care. The juvenile court, citing "the positions taken by the parties in court," ultimately accepted as fact the Department's allegations, and Mother presented no facts or argument to challenge either the Department's or the court's characterization of the facts or the parties' positions. Then, at the disposition hearing, after Mother indicated that she did not want to testify but instead wanted to proceed by way of a proffer, the Department presented, as that "proffer," the agreed-upon allegation that Mother had been found intoxicated and lying in front of a residence while J.P. was in her sole care. Again, Mother offered no facts or argument to challenge the Department's representations to the court. The court, as it had following the adjudication hearing, thereafter accepted the Department's allegation as fact, and that fact later became the basis for the court's CINA determination.
To be sure, Mother did issue a general denial of the allegations at both hearings. Nevertheless, we do not consider those general denials to be a sufficient "proffer" such that the material evidence, i.e., the Department's allegations, were in conflict. See Shaffer v. Lohr, 264 Md. 397, 404 (1972) ("[A] mere general denial of a plaintiff's claim is not enough to show that there is a genuine dispute as to a material fact[.]"); accord Remsburg v. Montgomery, 376 Md. 568, 580 (2003). Aside from the fact that Mother's actions at both hearings show that she was in agreement with the court's actions, Mother presented no facts or evidence at the hearing before the juvenile court that could conceivably be considered a "conflicting proffer" necessitating a factual determination on the part of the court.
On this point, Barnes v. State, 31 Md. App. 25 (1976), a case on which Mother relies, is instructive. There, the defendant was charged with shoplifting after she was observed placing store merchandise in her purse without paying for it. Id. at 27. The defendant later pleaded not guilty to the charge and, in lieu of a jury trial, asked for a bench trial based on an agreed-upon "statement of facts." Id. at 26-27. When, at that bench trial, the prosecutor read the "facts" into the record, he did so not by stating what the facts were, but rather by indicating what the State's witnesses would have testified to had they been called to testify. Id. at 27. That statement tended to show, among other things, that the defendant had concealed the merchandise in her purse, which, under the facts of the case, was an essential element to the charged crime. Id. at 32-34. Following the State's recitation of the "facts," defense counsel moved for judgment of acquittal, arguing that the evidence was insufficient to prove the crime. Id. at 30-31. In so doing, defense counsel provided a detailed proffer of what the defendant would have testified to had she been called to testify, and the court accepted that proffer without objection from the State. Id. at 31-32. That proffer tended to show, among other things, that the defendant had not concealed the merchandise in her purse. Id. at 32. Nevertheless, the trial court denied defense counsel's motion, and the defendant was convicted. Id. at 33.
After the defendant noted an appeal, this Court reversed, holding that the trial court's "judgment on the evidence was clearly erroneous[.]" Id. at 34-35. We explained that when defense counsel provided, without objection, his detailed proffer as to what the defendant would have said had she testified, the material facts were no longer undisputed and, as a result, the court was faced with conflicting stipulations as to the evidence. Id. at 31-34. In that situation, we noted it was improper for the trial court to resolve the conflict in favor of the State based solely on the stipulated evidence. Id. at 31-32, 36. We then explained the distinction between an "agreed statement of facts" and "stipulated facts" and, importantly, how that distinction affected the outcome of the case:
Under an agreed statement of facts both [the] State and the defense agree as to the ultimate facts. Then the facts are not in dispute, and there can be, by definition, no factual conflict. The trier of fact is not called upon to determine the facts as the agreement is to the truth of the ultimate facts themselves. There is no fact-finding function left to perform. To render judgment, the court simply applies the law to the facts agreed upon.Id. at 35-36.
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On the other hand, when evidence is offered by way of stipulation, there is no agreement as to the facts which the evidence seeks to establish. Such a stipulation only goes to the content of the testimony of a particular witness if he were to appear and testify. The agreement is to what the evidence will be, not to what the facts are. Thus, the evidence adduced by such a stipulation may well be in conflict with other evidence received. For the trier of fact to determine the ultimate facts on such conflicting evidence, there must be some basis on which to judge the credibility of the witness whose testimony is the subject of the stipulation, or to ascertain the reliability of that testimony, to the end that the evidence obtained by stipulation may be weighed against other relevant evidence adduced.
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Here, despite the original intention, evidence ultimately offered was actually conflicting in material part so that there was no agreement as to the facts, and no opportunity for the fact-finder either to judge the credibility of the witnesses through whom the conflicting evidence was offered by stipulation, or to ascertain the reliability of that evidence. Without such opportunity, there was no proper way to resolve the evidentiary conflicts in order to determine ultimate facts which would be sufficient in law to sustain a verdict of guilty.
In the present case, unlike in Barnes, the ultimate facts were presented to the juvenile court in such a way that there was no fact-finding function left to perform. That is, the facts were not "stipulated evidence;" they were, quite simply, the undisputed facts as agreed upon by the parties. Moreover, Mother offered no evidence to refute those facts, despite being given ample opportunity to do so. For those reasons, Mother's reliance on Barnes v. State, 31 Md. App. 25 (1976), and its progeny is misplaced. See, e.g. Taylor v. State, 388 Md. 385, 399 (2005) (finding of guilt as to rape conviction was erroneous where agreed statement of facts included conflicting statements from the defendant and the victim as to whether sexual intercourse was consensual); In re Damien F., 182 Md. App. 546, 580-81 (2008) (finding that a juvenile court erred in not allowing a parent to call witnesses at a shelter care hearing).
In sum, the parties' agreed-upon statement of facts was undisputed. Thus, the juvenile court's findings, which were based on that statement of facts, were not clearly erroneous. And, as noted, those same facts were sufficient to sustain the juvenile court's finding that J.P. was a CINA. Accordingly, the court did not err.
JUDGMENT OF THE CIRCUIT COURT FOR WASHINGTON COUNTY AFFIRMED; COSTS TO BE PAID BY APPELLANT.