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Law Digest — Maryland Court of Appeals — April 4, 2019

Maryland Court of Appeals

Civil Procedure; Standing: Judgment of the Court of Special Appeals, which affirmed summary judgment against taxpayers in suit against Baltimore County, reversed because, where taxpayers established a reasonable likelihood of potential pecuniary harm derivative of waste and mismanagement, a nexus between that harm and the alleged illegal government act, and sufficiently quantified the alleged harm, they demonstrated specific injury and had standing under the taxpayer standing doctrine. Anne George, et al. v. Baltimore County, Maryland, et al., No. 37, Sept. Term, 2018.

Criminal Law; Restitution: Where assailants stole house keys during an armed robbery, the victim’s costs associated with rekeying the locks the keys corresponded to directly resulted from the underlying robbery pursuant to Criminal Procedure Article §11-603, because theft of the keys substantially reduced the value of the locks by jeopardizing the locks’ status as protectors of the sanctity and security of the home. In re: G.R., No. 32, Sept. Term, 2018.

Immigration Law; Juvenile status: Judgments of the circuit court and Court of Special Appeals vacated because the circuit court should have applied a broad legal standard in Special Immigrant Juvenile status proceedings to determine if child immigrant’s reunification with mother was not viable due to abuse, neglect, or abandonment. Celso Monterroso Romero v. Josefa Perez, No. 27, Sept. Term, 2018.

 

Civil Procedure

Standing

BOTTOM LINE: Judgment of the Court of Special Appeals, which affirmed summary judgment against taxpayers in suit against Baltimore County, reversed because, where taxpayers established a reasonable likelihood of potential pecuniary harm derivative of waste and mismanagement, a nexus between that harm and the alleged illegal government act, and sufficiently quantified the alleged harm, they demonstrated specific injury and had standing under the taxpayer standing doctrine.

CASE: Anne George, et al. v. Baltimore County, Maryland, et al., No. 37, Sept. Term, 2018 (filed April 1, 2019) (Judges Barbera, Greene, McDonald, Watts, Hotten, Getty & ADKINS (Senior Judge, Specially Assigned)).

FACTS: This case involved three Baltimore County taxpayers, Anne George, Jody Kesner, and Jody Rosoff (collectively, “Petitioners” or “Taxpayers”), and their lawsuit against Baltimore County (“County”) and various County administrators. Petitioners’ suit revolved around the County’s operation of the Baltimore County Animal Shelter (“BCAS”) and alleged waste at the facility.

In December 2014, Taxpayers filed a complaint in the Circuit Court for Baltimore County seeking preliminary and permanent injunctions, a declaratory judgment, and a writ of mandamus. Taxpayers alleged they were entitled to bring suit under the taxpayer standing doctrine because they were “injured by the increased tax burden caused by [the County’s] illegal acts, in addition to other pecuniary injuries from having to care for animals that have been harmed by [the County’s] acts.” They also claimed that various County actions resulted in over-expenditure on medical care and staffing and undercollection of fees.

In their complaint, Taxpayers alleged that the County, in its management of BCAS, violated numerous provisions of Baltimore County Code, Article. Specifically, Taxpayers stated that the County failed to “appoint, train, and qualify” appropriate individuals to work in animal control, Balt. Cty. Code §12-1-103(2); maintain a program to assist volunteers, §12-1-103(3); provide appropriate facilities and care for animals, §12-1-103(4); attempt to locate owners of stray animals, §§12-1-202(a), 12-3- 203(a); hold animals for four business days in a “humane manner,” §§12-3-201(b), 12- 3-202(b); put animals up for adoption only if they meet certain standards, §12-3-204(d); and maintain holding facilities that meet the minimum standards of Article 12, §12-6- 103. Taxpayers alleged that these regulations are routinely violated.

The County moved for summary judgment, claiming, among other things, that Taxpayers lacked standing to bring their claim. The County argued that Taxpayers failed to adequately allege any illegality or ultra vires act that reasonably may result in a pecuniary loss or a tax increase to survive the motion. The motion was accompanied by an affidavit from the Director of Budget and Finance for Baltimore County, Keith Dorsey (“Dorsey Affidavit”), which asserted that Baltimore County property taxes had not been increased in 26 years, the income tax had not been increased in 22 years, and that BCAS constituted such a small fraction of the overall budget that no taxes would be increased as a result of operation of the Animal Shelter.

On the same day that Taxpayers filed their response to the County’s motion, they also filed a separate motion for preliminary injunction and request for hearing. Attached to the motion were 18 separate affidavits. We summarize the motion and affidavits as follows. After adopting animals from BCAS, numerous individuals discovered that their pets were “severely underfed.” There were allegations that animals had been left wet and sitting in pooled water, resulting in rashes, irritation, and bleeding. Several affiants claimed that BCAS routinely failed to provide veterinary care, “isolate contagious animals from other animals,” or scan for identification microchips. These failures resulted in deteriorating health conditions, unnecessary euthanasia, and animals being held in the shelter without their owner’s knowledge. BCAS also failed to sterilize animals before they were offered for adoption. Additionally, affiants claimed that employees and volunteers were improperly trained and inadequately supervised.

The hearing judge concluded that, while Taxpayers pled sufficient facts to withstand the motion to dismiss, the alleged pecuniary injury must be more developed to survive summary judgment. The judge ruled that Taxpayers did not “specifically allege ‘waste of tax dollars’ in their Complaint.” In the court’s view, Taxpayers’ argument centered entirely on the question of a potential tax increase or decrease. Significantly, the court determined that Taxpayers never rebutted the Dorsey Affidavit, which “established that any alleged illegal acts have not and will not result in increased taxes or pecuniary loss to Taxpayers.” For these reasons, summary judgment was granted. The Court of Special Appeals affirmed.

The Taxpayers appealed to the Court of Appeals, which reversed.

LAW: To determine whether a genuine dispute of material fact exists, it is necessary to first decide which evidence in the record can be reviewed to make such a determination. Taxpayers maintained that a material dispute exists as to whether Baltimore County wasted government funds through the various actions described above. The County, on the other hand, asserted that Taxpayers’ response to the motion for summary judgment was insufficient, as their arguments were unsupported and “speculative at best.” Taxpayers’ response, according to the County, did not contain the admissible evidence required under Md. Rule 2-501 and, therefore, failed to sufficiently rebut the Dorsey Affidavit.

Under Maryland Rules, “[a]ny party may file a written motion for summary judgment of all or part of an action on the ground that there is no genuine dispute as to any material fact and that the party is entitled to judgment as a matter of law.” Md. Rule 2- 501(a). This motion must be supported by affidavit if it is: “(1) filed before the day on which the adverse party’s initial pleading or motion is filed or (2) based on facts not contained in the record.” Id. The County filed such an affidavit—the Dorsey Affidavit— purporting to establish that taxes had not and would not be raised, even if the alleged violations were occurring.

If the opposing party chooses to reply, it must answer, in writing, “identify[ing] with particularity each material fact as to which it is contended that there is a genuine dispute.” Md. Rule 2-501(b). Additionally, as to these alleged material facts, the opposing party must “identify and attach the relevant portion of the specific document, discovery response, transcript of testimony (by page and line), or other statement under oath that demonstrates the dispute.” Id. “A response asserting the existence of a material fact or controverting any fact contained in the record shall be supported by an affidavit or other written statement under oath.” Id. Precedent has yet to interpret the word “supported,” above, as meaning “attached to the responsive filing, only.”

“[F]acts alleged in pleadings are not, by that means alone, before the court as facts for summary judgment purposes. Ordinarily, mere allegations neither establish facts, nor show a genuine dispute of fact.” Vanhook v. Merchants Mut. Ins. Co., 22 Md. App. 22, 27 (1974). Still, courts should look to the “pleadings, depositions, and admissions on file, together with the affidavits, if any” to determine whether a dispute exists. Cox v. Sandler’s, Inc., 209 Md. 193, 197 (1956). This means that courts should review any filing that shows, “in detail and with precision, by facts admissible in evidence,” Mullan Contracting Co. v. IBM Corp., 220 Md. 248, 257 (1959), that there is a genuine dispute. See Lynx, Inc. v. Ordnance Prods., Inc., 273 Md. 1, 20 (1974).

Taxpayer standing doctrine permits a taxpayer to “invoke the aid of a court of equity to restrain the action of a public official, which is illegal or ultra vires and may injuriously affect the taxpayer’s rights and property.” Inlet Assocs. v. Assateague House Condominium Assn., 313 Md. 413, 440–41 (1988). Such a distillation has come to seem oversimplified, as the doctrine has grown and become “disorganized” and, “at times, seemingly contradictory.” State Center, LLC v. Lexington Charles Ltd. Partnership, 438 Md. 451 (2014). “[T]he conceptual basis of the doctrine is that the action is brought by complainants, as taxpayers and on behalf of all other similarly situated taxpayers.” Id. at 547. The taxpayers, in essence, are asserting the rights of their government against local administrators. Thus, the taxpayer suit is similar to a derivative shareholder suit, the shareholders of a government being the taxpayers. See id. at 541. In this way, Maryland has “gone rather far in sustaining the standing of taxpayers” to sue for illegal or ultra vires acts, compared to other jurisdictions. Inlet Assocs., 313 Md. at 441.

There are two broad requirements to successfully assert taxpayer standing. The first requirement is taxpayer status. To establish eligibility to bring the suit, the plaintiff must demonstrate that: (a) “the complainant is a taxpayer,” and (b) “the suit is brought, either expressly or implicitly, on behalf of all other taxpayers.” State Center, 438 Md. at 547. In this case, the parties did not contest that Taxpayers had sufficiently pled this element.

The second broad requirement is that parties must assert a “special interest,” alternatively referred to as the “special damage” requirement. Special interest requires a taxpayer to allege: “[(1)] an action by a municipal corporation or public official that is illegal or ultra vires[;] and [(2)] that the action may injuriously affect the taxpayer’s property, meaning that it reasonably may result in a pecuniary loss to the taxpayer or an increase in taxes.” Kendall v. Howard Cty., 431 Md. 590, 605 (2013). These are known as the (1) “illegal or ultra vires act” prong, and (2) the “specific injury” prong. See State Center, 438 Md. at 555–56.

The illegal or ultra vires act prong “has been applied leniently and seems rather easy to meet.” Id. at 556. Plaintiffs must simply “allege, in good faith, an ultra vires or illegal act by the State or one of its officers.” Id.

Here, the County did not contest that Taxpayers had successfully met this element of taxpayer standing. Taxpayers made good faith claims of illegality by enumerating several alleged violations of Article 12 of the Baltimore County Code. The specific injury prong is more opaque, and often proves a “stumbling block.” Id. at 572. Plaintiffs establish specific injury by demonstrating the appropriate type of harm, a nexus between the illegal or ultra vires act and the alleged harm, and some modest showing regarding the degree of harm. See id. at 560.

At issue was the “type of harm” alleged. To demonstrate the type of harm necessary for specific injury, plaintiffs must show, first, that they “reasonably may sustain a pecuniary loss or a tax increase,” Inlet Assocs., 313 Md. at 441, and, then, that they have a “special interest distinct from the general public,” State Center, 439 Md. at 556. Taxpayers have been consistently required to establish “that the action being challenged results in a pecuniary loss or an increase in taxes.” Id. at 556–57.

In assessing standing, the Court has never asked for more than a “potential” showing of such harms, id. at 559, and has “exhibited great leniency in its interpretation of ‘potential pecuniary loss,’” id. at 561. Thus, a reasonable possibility of either pecuniary loss, or a tax increase, must be shown.

Here, the circuit court erred in placing almost total reliance on the Dorsey Affidavit, concluding that it “established that any alleged illegal acts have not and will not result in increased taxes or pecuniary loss to [Taxpayers].” The Dorsey Affidavit certainly established that Baltimore County had not raised the property tax rate in 26 years and had not increased the income tax rate in 22 years. The affidavit also appears to appropriately contextualize the “Animal Services Program” within the broader County budget. Yet, it did not address whether the government expenditure was wasteful.

Taxpayers’ 18 affidavits, on the other hand, related to the issue of waste. Upon review, the affidavits state the following facts, at least for the purposes of a summary judgment motion. First, affiants attested that multiple animals were not sterilized, and any record of sterilization was inadequate. Multiple affiants also alleged personal knowledge of animals that BCAS never scanned for microchips, and, at least one animal is alleged to have been euthanized as a result of this failure. Many allegations related to generally inadequate veterinary care, food, and water supply. Specifically, water appeared to have been inaccessible to many animals. Many affiants stated that animals recovered or adopted from BCAS were ill. Moreover, others observed that BCAS failed to separate sick animals from healthy ones. Numerous individuals observed damp conditions and sitting water on the floors of the shelter. Finally, affiants claimed that there were too few qualified staff and an inadequate volunteer program.

Furthermore, Taxpayers asserted, with fewer animals suitable for adoption, the County lost revenue from adoption and licensing fees. These allegations of waste amount to substantial inefficiency and unlawful misuse of public property and treasure, regardless of whether they are likely to cause an increase in taxes. Taxpayers successfully alleged that, because BCAS’s ineffectual management resulted in the provision of more expensive shelter services and decreased revenue, its use of taxpayer funds was wasteful.

Taxpayers also had to establish a “special interest” in the wasted funds that is “distinct from the general public.” State Center, 438 Md. at 556. Entitlement to sue is based on the taxpayer’s “equitable ownership of [public] funds and their liability to replenish the public treasury.” Id. at 558–59. Surely the “taxpayer” referred to means any individual who may be liable to replenish the relevant fisc. Conversely, the “general public” includes all those not subject to such liability. Hence, “taxpayer” means those in the relevant jurisdiction subject to the taxation which is alleged to have been increased or wasted, while the “general public” amounts to those who are not subject to such taxation. The “general public,” on the other hand, includes all those not subject to such liability. Thus, the taxpayers of Baltimore County, as represented by the Petitioners here, are sufficiently distinct from the general public.

A plaintiff must also clearly demonstrate a nexus between “the potential pecuniary damage and the challenged act.” Floyd, Maj. Slip Op. at 31–32. As part of this showing, “the taxpayer must be asserting a challenge and seeking a remedy that, if granted, would alleviate the tax burden on that individual and others.” State Center, 438 Md. at 572.

Here, Taxpayers alleged a nexus between the potential pecuniary damage—waste of government resources within a program funded from a pot that Petitioners are liable to replenish—and the challenged illegal act—the alleged violations of Article 12 of the Baltimore County Code. As their remedies, Taxpayers sought a declaratory judgment, writ of mandamus, and preliminary and permanent injunctions enjoining the alleged illegal activity. It is self-evident that if waste and mismanagement at the shelter existed, any such relief would alleviate same.

In sum, Taxpayers established pecuniary harm derivative of waste and mismanagement, a nexus between that harm and the alleged illegal government act, and sufficiently quantified the alleged harm. For these reasons, we hold that Taxpayers have demonstrated specific injury and, thus, possess standing to pursue their claim under the taxpayer standing doctrine. Consequently, the motion for summary judgment should have been denied.

Accordingly, the judgment of the Court of Special Appeals was reversed.

COMMENTARY: Some modest showing regarding the degree of harm suffered by the taxpayers was also required. “It is well-settled that the individual’s monetary burden does not need to be calculable at the time of filing suit. Equally well-settled, however, is the requirement that there must be a ‘clear showing’ that a monetary burden is alleged.” State Center, 438 Md. at 580. Uncertainty surrounding the potential loss to the taxpayer is not disqualifying, as this uncertainty is the reason that taxpayers are not required to demonstrate in the pleading the exact pecuniary loss or increase in taxes. Id. at 577. There must be some degree of certainty that the loss experienced by taxpayers is not zero.

The Dorsey Affidavit confirmed that the operational budget for the Animal Services Program was approximately $2.2 million per fiscal year. Waste of funds in the manner described and failure to collect adoption and license fees certainly demonstrated some monetary burden.

PRACTICE TIPS: In the context of taxpayer suits, “the distinction between resident and taxpayer is significant,” and has been subject to much consternation. State Ctr., LLC v. Lexington Charles Ltd. P’ship, 438 Md. 451, 559 n.65 (2014). “A party may be a resident of the State (and, thus, have a ‘general interest’ in the State’s actions), but not be a taxpayer whose pecuniary interest would be affected by that action (and, thus, not have the requisite ‘special interest’).” Id.

Criminal Law

Restitution

BOTTOM LINE: Where assailants stole house keys during an armed robbery, the victim’s costs associated with rekeying the locks the keys corresponded to directly resulted from the underlying robbery pursuant to Criminal Procedure Article §11-603, because theft of the keys substantially reduced the value of the locks by jeopardizing the locks’ status as protectors of the sanctity and security of the home.

CASE: In re: G.R., No. 32, Sept. Term, 2018 (filed April 1, 2019) (Judges Barbera, Greene, McDonald, Watts, Hotten, GETTY & Adkins (Senior Judge, Specially Assigned)).

FACTS: In this juvenile matter, a set of stolen keys to three different households constituted the central issue of restitution. Two juveniles, J.S. and J.Y., were walking home from school in the Largo area of Prince George’s County on May 1, 2017. During their commute, the two were approached by a group of juveniles, including respondent G.R. An altercation ensued and the assailants robbed J.S. and J.Y. at knifepoint. The assailants took from J.S. his backpack and a Samsung cell phone. Within his backpack was a key ring holding the three house keys, two pairs of Jordan sneakers, and a binder. The keys corresponded to the locks of the exterior doors of three homes, the homes of J.S.’s mother, father, and sister.

Although police officers were unable to catch the assailants, during the pursuit G.R. dropped a backpack. Police later determined that the backpack belonged to J.S. At the time the backpack was recovered, the keys were missing but it contained J.Y.’s iPhone and the box cutter used by G.R. in the robbery. Subsequently, police apprehended G.R., who possessed several items stolen from J.S., including the house keys as well as the second pair of Jordan sneakers stolen from J.S. G.R. was then taken, processed, and detained at Cheltenham Youth Facility (“Cheltenham”), a juvenile detention center located in Prince George’s County.

At this point, the arresting officers apparently failed to properly inventory the keys stolen from J.S. The keys were impounded by police and mistakenly held with G.R.’s personal property at Cheltenham. As a result, neither J.S. nor his family members, whose homes the keys corresponded to, were aware that the keys were in police custody. Consequently, J.S.’s family members decided to have the locks of their homes rekeyed, because of the security risk associated with the stolen keys which, unbeknownst to J.S. or his family, were being held at Cheltenham at the time.

On May 18, 2017, before the Circuit Court for Prince George’s County, sitting as a juvenile court, G.R. was charged with robbery, second-degree assault, and openly carrying a dangerous weapon. He pleaded “involved” to all the charges.

The State sought $65 in restitution for J.S. to rekey the locks of the three homes of which the keys were stolen. During the restitution hearing, defense counsel brought to the State’s, the court’s, and J.S.’s attention that the keys had been recovered by police and mistakenly held with G.R.’s personal belongings at Cheltenham. Prior to this point, including the period in which the locks were rekeyed, G.R., his family, the court, and the State’s Attorney were entirely unaware that the keys had been recovered.

At the restitution hearing, counsel for G.R. argued to deny restitution for rekeying the locks under Williams v. State, 385 Md. 50 (2005) contending that there was insufficient direct causation to justify the $65 restitution. In contrast, the State argued that pursuant to Goff v. State, 387 Md. 327 (2005), the cost of rekeying the locks was a direct result of the robbery and assault. The circuit court agreed with the State and ultimately found G.R. liable for $120 in restitution.

The Court of Special Appeals affirmed in part and vacated in part the juvenile court’s order, determining that the court erred in ordering restitution to rekey the locks. The court determined that the costs of rekeying the locks was not a direct result of the underlying robbery and concluded that while there is undeniably a causal link between the theft of the keys and J.S.’s decision to replace his locks, that nexus does not partake of the directness required by the statute.

G.R. appealed to the Court of Appeals, which reversed.

LAW: “A court may enter a judgment of restitution that orders a defendant or child respondent to make restitution in addition to any other penalty for the commission of a crime or delinquent act, if: (1) as a direct result of the crime or delinquent act, property of the victim was stolen, damaged, destroyed, converted, or unlawfully obtained, or its value substantially decreased….” Criminal Procedure Article (“CP”) §11-603(a). Here, the issue was whether, pursuant to the “direct result” requirement, an award of restitution is proper for rekeying household locks where the corresponding keys were stolen during an armed robbery.

In Pete v. State, 384 Md. 47, 60-61 (2004), the question was whether restitution was improperly awarded as a direct result of an underlying assault. There, Mr. Pete assaulted a woman in her apartment and fled in a vehicle. Nearly two hours later, police attempted to effectuate a stop on his vehicle. In response, he sped away but subsequently aggressively braked his vehicle causing the police cruiser to crash into its rear-end. Mr. Pete was convicted of second-degree assault and reckless driving. As a condition of his, the circuit court ordered that he pay restitution to the Local Government Insurance Trust in the amount of $6,490 for repairs to the damaged police cruiser.

On appeal, it was held that the restitution order constituted an illegal sentence because the damages to the police cruiser were not a direct result of the assault. Id. at 61. The temporal relationship between the assault and the damage to the police cruiser were dispositive because it was “easy to see on this record that the damage to the police cruiser could not be a direct result of the assault on another individual that occurred approximately two hours earlier than the vehicle collision.” Id. at 61. In addition, the Court held that restitution could not be ordered pursuant to Mr. Pete’s reckless driving charge and that the damage to the police cruiser was “undoubtedly a direct result of the reckless driving.” Id. at 56. Therefore, it was concluded that damage to the police cruiser was a direct result of Mr. Pete’s reckless driving, which precluded a determination that the damage was a direct result of the earlier assault.

Interpretation of CP §11-603(a) as “something is a ‘direct result’ where there is no intervening agent or occurrence separating the criminal act and the victim’s loss.” In re Cody H., 452 Md. at 184. Restitution cannot be ordered based upon expenses that are speculative or not “reasonably certain to be incurred.” Id. at 186.

Household locks and the corresponding keys represent a greater ideal that can often be forgotten in the context of the everyday objects encountered in daily routines. Primarily, they represent the safety and sanctity of the home by protecting individuals from unwanted intrusions upon their personal privacy and safeguard against property crimes. Essentially, household locks and keys ensure the sanctity and security of the home. When such keys are taken by assailants through an armed robbery, such personal security is drawn into question. A victim can only be left to wonder whether future intrusions on the sanctity of the home may occur as a result of the stolen keys.

Here, the intermediate appellate court declined to engage in an analysis concerning whether the value of the locks had substantially decreased as a direct result of the underlying robbery. Instead, the court focused on determining that the locks were contemporaneously undamaged when the keys were stolen. CP §11-603(a)(1) does not require that the locks be damaged. Rather, a substantial decrease in their value is sufficient to justify an award of restitution.

Although the locks were not directly damaged by the underlying robbery and theft of the corresponding keys, their value as protectors of household security and sanctity was substantially decreased. Despite the lapse of time between the robbery and the decision to rekey the locks, rekeying the locks was remedial because it was necessary to repair the substantial decrease in the value of the locks – the compromised security of the homes those locks protected. Thus, the decision to rekey the locks was not an intervening event as their substantial decrease in value can be directly attributed to G.R.’s delinquent act of robbery.

It was determined, therefore, that G.R.’s robbery of J.S., in which the house keys were taken, substantially decreased the value of the corresponding locks. This necessitated rekeying the locks to protect the security and sanctity of the homes to which those keys belonged. Accordingly, the judgment of the Court of Special Appeals was reversed.

COMMENTARY: The State contended that rekeying the locks was justified as it was a “reasonable and prudent” response to the robbery. However, a reasonableness standard is only invoked twice within the entirety of CP §11-604 (referring to a parent’s “reasonable opportunity to be heard and to present evidence,” not relevant to the present appeal); CP §11-615.

The reasonableness of a replacement or repair should not be determinative or play a substantial role within the Court’s direct result analysis pursuant to CP §11-603(a). Nevertheless, the reasonableness of a restitution order is relevant and ensured through CP §11-615. Therefore, it was additionally concluded that the State’s references to reasonableness, within the context of the direct result requirement of CP §11-603(a), were misguided as attempting to posit a tort causation standard within the context of direct result analysis.

PRACTICE TIPS: Generally, an appellate court reviews a circuit court’s order of restitution for abuse of discretion. In re Cody H., 452 Md. 169, 181 (2017). However, where a circuit court’s order involves “an interpretation and application of Maryland statutory and case law,” the decision is reviewed de novo. Goff v. State, 387 Md. 327, 337-38 (2005).

Immigration Law

Juvenile status

BOTTOM LINE: Judgments of the circuit court and Court of Special Appeals vacated because the circuit court should have applied a broad legal standard in Special Immigrant Juvenile status proceedings to determine if child immigrant’s reunification with mother was not viable due to abuse, neglect, or abandonment.

CASE: Celso Monterroso Romero v. Josefa Perez, No. 27, Sept. Term, 2018 (filed April 1, 2019) (Judges BARBERA, Greene, McDonald, Watts, Hotten, Getty & Adkins (Senior Judge, Specially Assigned)).

FACTS: Celso Monterroso Romero (“Petitioner”), a Baltimore City resident, sought sole custody of his then seventeen-year-old son, R.M.P, an undocumented minor and Guatemalan native. Petitioner further requested that the circuit court issue an order containing factual findings illustrating R.M.P.’s eligibility for Special Immigrant Juvenile (“SIJ”) status, namely that reunification with R.M.P.’s mother, Josefa Perez Carreto (“Perez”), was not viable due to neglect and that it was not in R.M.P.’s best interest to return to Guatemala, where Perez resides.

The circuit court granted Petitioner custody of R.M.P. but declined to find that reunification with Perez was not viable due to neglect. The circuit court was unclear about which “standard of proof” should apply to establish such a finding—“clear and convincing evidence” or merely “preponderance of the evidence.” Nevertheless, the court ultimately determined that, under either standard, the undisputed evidence offered by Petitioner fell short of establishing that reunification with Perez was not viable due to neglect.

On appeal, the Court of Special Appeals determined preliminarily that the proper standard of proof in SIJ cases is not “clear and convincing evidence” but rather the lower “preponderance of the evidence” standard. Then, applying that standard to the record before it, the court concluded that, even under the lower standard, Petitioner had not provided sufficient evidence to support a finding of neglect.

Petitioner appealed to the Court of Appeals, which issued a per curiam order reversing the judgment of the Court of Special Appeals.

LAW: The first issue was the appropriate burden of proof in SIJ status cases. The Court of Special Appeals held that the preponderance of the evidence standard is the appropriate burden of proof. Petitioner and Amicus agreed with that holding. For the following reasons, so did the Court of Appeals.

Maryland courts are to apply Maryland law, and not the law of the child’s home country. H.S.P. v. J.K., 121 A.3d 849, 859 (N.J. 2015) (“The plain language of [the SIJ statute] requires New Jersey courts to apply New Jersey law, and not that of an alien’s home country, when determining whether a juvenile has been abused, neglected, or abandoned.”). This conclusion was based on the plain language of the SIJ statute and the federal government’s interpretations of its provisions. See Canales v. Torres Orellana, 800 S.E.2d 208, 220 (Va. Ct. App. 2017) (“[B]y its express terms, 8 U.S.C. §1101(a)(27)(J)(i) contemplates that state courts apply state law.”).

The plain language of 8 U.S.C. §1101(a)(27)(J)(i) requires proof that “reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law[.]” The terms “abuse,” “neglect,” and “abandonment” are left undefined because, as the Department of Homeland Security explains, the “specific legal definitions of [those] terms…derive from State law.” Special Immigrant Juvenile Petitions, 76 Fed. Reg. 54978, 54980 (proposed Sept. 6, 2011) (hereinafter, “DHS Proposed Regulations”) (to be codified at 8 C.F.R. §§204, 205, 245). The terms derive from state law because “[d]etermining the viability of reunification…is a question that lies within the expertise of the juvenile court, applying relevant State law.” DHS Proposed Regulations at 58980; see also H.S.P., 121 A.3d at 859 (“‘The SIJ statute affirms the institutional competence of state courts as the appropriate forum for child welfare determinations regarding abuse, neglect, or abandonment, and a child’s best interests.’”).

In rendering SIJ status findings, therefore, “trial judges are to determine whether the child would be considered abused, neglected, or abandoned under Maryland law without regard to where the child lived” when the mistreatment occurred. In re Dany G., 223 Md. App. at 718. If Congress had intended to “require knowledge of living conditions in other countries, surely federal immigration judges, who deal with such matters regularly, would have been a far more appropriate selection.” 223 Md. App. at 718.

The ultimate inquiry here, therefore, was whether R.M.P.’s reunification with Perez was not viable because Perez’s prior conduct constituted neglect under Maryland law. Id. at 720. Under Maryland law, “neglect” is defined as “leaving…a child unattended or other failure to give proper care and attention to a child by any parent…under circumstances that indicate…that the child’s health or welfare is harmed or placed at substantial risk of harm.” CJP §3-801(s); FL §5-701(s). The labor Perez forced R.M.P. to endure—unsupervised logging in mountainous terrain surrounded by poisonous snakes—satisfied that definition. See In Re Dany G., 223 Md. App. at 721 (noting that in Maryland, if a child works “under dangerous conditions, a finding of neglect would surely follow”).

Notably, while laboring in such conditions, R.M.P. sustained a physical injury that Perez ignored. Moreover, the forced labor commenced when R.M.P. was merely 10 years old. In Maryland, absent certain exceptions inapplicable here, it is illegal for a child under the age of 14 to work. See Md. Code (1991, 2016 Repl. Vol.), §§3-203, 3-209 of the Labor & Employment Article. Based on these unrefuted facts, viewed through the prism of Maryland law, we conclude that returning R.M.P. to the custody of a mother who inadequately cared for and supervised him cannot be a reunification that is viable.

Accordingly, the judgements of circuit court and the Court of Special Appeals were vacated.

COMMENTARY: The Court of Special Appeals properly held that the preponderance of the evidence standard was the appropriate burden of proof. It is well established that “preponderance of the evidence [is] the standard of proof generally applicable in civil actions” in Maryland. Shurupoff v. Vockroth, 372 Md. 639, 659 (2003). The standard applies in various juvenile matters, including custody disputes between a parent and a third party, see Shurupoff, 372 Md. at 640-41, 660; Child in Need of Assistance (“CINA”) cases, see Md. Code (1973, 2013 Repl. Vol.), §3-817(c) of the Courts & Judicial Proceedings (“CJP”) Article; suspension of visitation rights, see In Re Adoption/Guardianship No. 87A262, 323 Md. 12, 22 (1991); and custody and visitation cases involving abuse or neglect determinations, see Volodarsky v. Tarachanskaya, 397 Md. 291, 292-93, 308 (2007). “We see no reason why that general standard should not apply in this case,” because, as explained below, “[n]o fundamental liberty interests [are] at stake,” Calvert Cty. Planning Comm’n, 364 Md. at 328, and USCIS defers to state law on such evidentiary matters, USCIS Policy Manual, Vol. 6, Part J, Ch. 3, §A.2 (“Juvenile courts should follow their state laws on…evidentiary standards.”).

The heightened clear and convincing standard of proof only applies in “certain limited circumstances.” See Coleman v. Anne Arundel Cty. Police Dep’t, 369 Md. 108, 143 (2002). Such “limited circumstances” arise “when the government seeks to take unusual coercive action—action more dramatic than entering an award of money damages or other conventional relief—against an individual.” Id. “Unusual coercive action” can include, for example, terminating parental rights, Santosky v. Kramer, 455 U.S. 745, 747-48 (1982), or involuntary civil commitment, Addington v. Texas, 441 U.S. 418, 432-33 (1979).

No “unusual coercive action” occurs in SIJ status cases. That is because those proceedings do not involve any termination of parental rights; they merely entail judicial fact finding about the viability of a forced reunification between a parent and a child. See J.U. v. J.C.P.C., 176 A.3d 136, 141 (D.C. 2018). The clear and convincing standard is thus unsuitable for SIJ status cases. Accordingly, the Court of Special Appeals properly held that in Maryland the preponderance of the evidence standard applies in SIJ status cases.

 

PRACTICE TIPS: In applying a standard of both ‘viability’ and ‘abandonment in SIJ status cases, the proper inquiry is “not the abstract question [of] whether the minor has been neglected or abandoned by the [parent]. Rather, it is whether reunification with [the parent] in [the country of origin] is ‘viable’ due to ‘abandonment,’ abuse, or neglect. It calls for a realistic look at the facts on the ground in the country of origin and a consideration of the entire history of the relationship between the minor and the parent in the foreign country.” J.U. v. J.C.P.C., 176 A.3d 136 (D.C. 2018).

 

 

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