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Law Digest — Md. Court of Appeals, Court of Special Appeals — April 25, 2019

Court of Appeals

Criminal Procedure; Post-conviction relief: Where client was convicted of one count of violating environmental regulations proscribing disposal of waste for each day on which the violation occurred, jury instruction that “every day on which a violation is still present constitutes a separate violation until the violation is corrected” was so plainly contrary to State’s theory that failure to except to instruction violated constituted ineffective assistance of counsel. State of Maryland v. Purnell Shortall, No. 31, Sept. Term, 2018.

Court of Special Appeals

Criminal Procedure; Right to a public trial: A courtroom closure in which defendant’s family was excluded from the courtroom for three and a half hours, encompassing a portion of voir dire and the entire selection and swearing-in of the jury, was not a de minimus closure, and therefore implicated defendant’s Sixth Amendment right to a public trial. Clyde Campbell v. State of Maryland, No. 1103, Sept. Term, 2016.

Family Law; Child in need of assistance proceedings: The juvenile court did not abuse its discretion in denying the Department of Social Services petition to remove child from parents because the Department failed to show by a preponderance of the evidence that returning the child home would be contrary to the child’s safety and welfare or that removal was necessary due to an alleged emergency and to provide for the child’s safety. In re O.P., No. 2877, Sept. Term, 2018.

Court of Appeals

Criminal Procedure

Post-conviction relief

BOTTOM LINE: Where client was convicted of one count of violating environmental regulations proscribing disposal of waste for each day on which the violation occurred, jury instruction that “every day on which a violation is still present constitutes a separate violation until the violation is corrected” was so plainly contrary to State’s theory that failure to except to instruction violated constituted ineffective assistance of counsel.

CASE: State of Maryland v. Purnell Shortall, No. 31, Sept. Term, 2018 (filed April 2, 2019) (Judges Barbera, Greene, McDonald, Watts, Hotten, Getty & RODOWSKY (Senior Judge, Specially Assigned)).

FACTS: Purnell Shortall owned, either directly or through a legal entity controlled by him, the property at or near 11523 Cordova Road in Cordova, Talbot County, Maryland, where he conducted a building supply business. In addition to the main building on the property, and at least 500 to 600 feet from it, on the south/southeast side of the property is a maintenance building. Body waste disposal from the main building is directed to an approved septic system. This case concerned body waste disposal from the maintenance building.

On December 5, 2012, two inspectors from the Maryland Department of the Environment were on the Shortall property for a routine inspection when they observed some human feces and toilet paper on the ground near the open end of a PVC pipe that was protruding from an earthen embankment about ten to fifteen feet from the maintenance building. The inspectors traced the pipe to a toilet and sink that had been installed, without a permit, in a restroom in the maintenance building. Inspectors, from the Maryland Department of the Environment, from the Talbot County Health Department, or from both, visited the site several times over the next few months. The witnesses for the State in Shortall’s criminal prosecution testified as to what they observed at or near the open end of the PVC pipe on the follow-up visits to the property, but that evidence is not relevant to this certiorari review, as we explain infra. A Regulatory Compliance Engineer for the Maryland Department of the Environment inspected the pipe on May 3, 2013, and found the end tightly capped.

Although initially filed in the Circuit Court for Talbot County, the criminal charges against Shortall were immediately removed on February 20, 2014, to the Circuit Court for Dorchester County. The criminal information was drawn by a special prosecutor from the Attorney General’s Office. That document consisted of twenty counts, ten of which were dismissed by the court at the conclusion of the State’s case. Five of the remaining counts respectively charged in the language of Reg. D that, on one of the days of the five pre-capping inspections, Shortall had violated Reg. D “by disposing of sewage in any manner which may cause pollution[.]” The other five remaining counts respectively charged in the language of Reg. E that, on one of the days of the same five pre-capping inspections, Shortall had violated Reg. E “by failing to dispose of sewage in accordance with an approved permit[.]”

At trial, the State relied on a continuing violation theory, but we cannot determine from the record before us when Shortall first learned of that. The day before trial, the State had distributed its requested instructions, including No. 13, which stated that “every day on which a violation is still present constitutes a separate offense until the date the violation is corrected.”

When the State rested its case on the first day of trial, Shortall moved for judgments of acquittal on all counts. In the course of that argument the court asked the State, “[w]hat proof do we have that there was any… human waste deposited there after December 5th?” The prosecutor replied: “It’s a continuing violation offense by the penalty Statute of itself until the matter is stopped, until the pipe is capped until it’s…physically not possible to do it anymore.”

After it was determined on the second trial day that Shortall would not testify, the court and counsel reviewed the requested instructions in chambers. The court included in its jury charge the State’s continuing violation instruction, verbatim. Defense counsel had no exceptions. The jury found Shortall guilty on ten counts. He did not appeal.

Shortall filed for post-conviction relief through his appellate counsel. He alleged, inter alia, the denial of effective assistance of counsel based on the trial counsel’s failure to object to the continuing violation instruction. The post-conviction court denied Shortall’s petition and the Court of Special Appeals reversed.

The State appealed to the Court of Appeals, which affirmed the judgment of the Court of Special Appeals.

LAW: The issue was whether the Court of Special Appeals misapplied the Strickland v. Washington, 466 U.S. 668 (1984) standard when it reversed the post-conviction court’s determination that counsel was not ineffective for failing to object to a continuing violation jury instruction.

Shortall was charged with statutory violations which criminalize and penalize regulatory violations. When trial counsel undertook the defense of those charges, it was imperative that he analyze the statute and underlying regulations in relation to the facts. Under Env. §9-343(a)(3) “[e]ach day on which a violation occurs is a separate violation[.]”

The question then become when and how does a violation of Regs. D and E occur. Under the plain language of the regulations, violations occur when one disposes of waste under prohibited circumstances, (1) “in any manner which may cause pollution of the ground surface,” or (2) without “an approved on-site…method of disposal[.]”

Webster’s Third New International Dictionary defines “dispose” to mean: to get rid of, throw away, discard. Under the State’s theory the waste observed on December 5, 2012, was thrown out or away each day until the pipe was capped. Words are not to be deleted from a statute, but the State, as to eight of the ten charges, would delete “dispose” from the regulations. Nor should words be added to a statute, but the State in its requested instruction added that a violation continues until “the violation is corrected.” Price v. State, 378 Md. 378, 387 (2003).

At the post-conviction hearing trial counsel explained that he thought that the continuing violation instruction was a correct statement of the law based on the authorities cited by the State in support of its requested instruction. Reasonably competent counsel, however, would have had no difficulty in showing the lack of relevance of those authorities.

In the instant matter the duty was not to dispose of waste on any given day. So long as Shortall was not disposing of waste, he was in compliance with the law on that day.  When asked by post-conviction counsel whether he had researched foreign state or federal law, trial counsel responded that he believed he had called the office of, and spoken with, post-conviction counsel. That was the totality of the evidence on that consultation. It did not describe any analysis of the specific violations charged against Shortall. Further, the conversation could not have addressed the status of the evidence at the time when the criminal case went to the jury.

The minimal relevance of the sources consulted by trial counsel was so far outweighed by the plain language of Env. §9-343(a)(1) and (3) and of Regs. D and E that a competent defense counsel could not acquiesce in the continuing offense instruction and be in compliance with the Strickland standard.

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

COMMENTARY: The prejudice prong of Strickland was satisfied in the judgment of the Court of Special Appeals because the reasonable probability was that the ineffectiveness of trial counsel resulted in Shortall’s conviction on eight of the ten counts submitted to the jury because of the erroneous instruction. The State asserted a lack of prejudice because the trial court merged the sentencing on those eight counts into the two counts that were based on the December 5, 2012, observations by the State inspectors. But the undeserved convictions, in and of themselves, were prejudicial.

PRACTICE TIPS: “Ordinarily, a continuing offense is marked by a continuing duty in the defendant to do an act which he fails to do. The offense continues as long as the duty persists, and there is a failure to perform that duty.” Duncan v. State, 282 Md. 385, 390 (1978).

Court of Special Appeals

Criminal Procedure

Right to a public trial

BOTTOM LINE: A courtroom closure in which defendant’s family was excluded from the courtroom for three and a half hours, encompassing a portion of voir dire and the entire selection and swearing-in of the jury, was not a de minimus closure, and therefore implicated defendant’s Sixth Amendment right to a public trial.

CASE: Clyde Campbell v. State of Maryland, No. 1103, Sept. Term, 2016 (filed March 29, 2019) (Judges Nazarian, Friedman & WOODWARD).

FACTS: On April 19, 2016, a jury sitting in the Circuit Court for Baltimore County convicted appellant, Clyde Campbell, of second degree murder. Evidence produced during the trial showed that appellant and his son, Jesse Campbell, lived with appellant’s girlfriend , Dorothy Grubb. Jesse’s recollection of the night of July 24, 2014, was that appellant and Grubb got into an argument until Jesse heard a “big bang.” The commotion also caught the attention of two next-door neighbors, who called 911 reporting suspected child abuse.

Officer Frederick Johnson responded. Appellant refused to open the door, yelled obscenities, and eventually, turned off all interior lights. Officer Johnson went to the back of the house and discovered two individuals in an alley. When Officer Johnson identified himself, the two individuals began to run. Once the individuals were detained, they were identified as appellant and Jesse. After questioning the pair, the police let them return home, because the call to police had been about suspected child abuse and Jesse appeared unharmed. The police did not enter Grubb’s house and were told by appellant that Grubb left to stay with a friend.

Later that night, Jesse observed appellant drive his truck to the back of the house. Jesse saw appellant place in the back of his truck a large tarp that appeared to have something “long and big” in it, and then drive away. The next day, appellant and Jesse went on an unplanned camping trip. Jesse noticed that the tarp was no longer in the truck.

Meanwhile, Grubb’s daughter, Kristi Grubb, was unable to contact her mother. After she filed a missing person report, Detective Ryan Massey obtained a search and seizure warrant for Grubb’s house. The search did not reveal Grubb’s location, but police did discover blood stains inside and outside the home.

On July 28, 2014, appellant called 911 at 3:44 a.m. to inform police that he would come down to the police station to discuss Grubb’s disappearance. Later that morning, police arrested appellant on an arrest warrant unrelated to Grubb’s disappearance. Police placed appellant in an interrogation room at police headquarters, where Detective Massey advised appellant of his Miranda rights. Appellant then spoke to detectives.

On July 29, 2014, detectives discovered Grubb’s remains wrapped in a blue tarp. The medical examiner determined that the manner of death was homicide.

Appellant was then brought to headquarters. Detective Massey informed appellant that police had found Grubb’s body. Detective Massey then told appellant that the autopsy determined that her death was a homicide, and he would be charged with Grubb’s murder. Upon appellant’s inquiry as to why he was being charged with Grubb’s murder, Detective Massey explained that some of the evidence indicated that appellant was responsible for her death. In response, appellant proclaimed that Grubb’s death was an accident and that she had fallen in the upstairs bathroom.

Appellant’s trial began with the voir dire of prospective jurors. In the afternoon session of the first day, the State brought to the court’s attention that one of the jurors told the prosecutors that appellant’s family was sitting in the jury box and asked whether that was permitted. The trial judge declined to address the issue at that time.

When the voir dire recommenced the next morning, the clerk informed the judge that appellant’s son wished to watch the proceedings. Over defense counsel’s objection, the court excluded appellant’s family members from the courtroom during jury selection.

The parties then proceeded to select the jury by using their respective peremptory challenges. Defense counsel objected to the jury panel as selected on the grounds that, inter alia, the circuit court forbade appellant’s family from being present during the voir dire and jury selection process. After returning, the court heard other preliminary motions, and opening statements were made by the parties. Although it was not clear from the record, members of appellant’s family were apparently permitted in the courtroom at this time. Appellant was convicted and sentenced to thirty years of incarceration.

Appellant appealed to the Court of Special Appeals, which reversed.

LAW: At issue was whether the circuit court violated appellant’s Sixth Amendment right to a public trial when it excluded his family members during a portion of voir dire, the entire selection of the jury, and the swearing-in of the members of the jury.

Among other things, a public trial encourages witnesses to come forward and discourages perjury. Waller v. Georgia, 467 U.S. 39, 46 (1984); Longus v. State, 416 Md. 433, 445 (2010). Because a public trial is a constitutional guarantee that is essential to the “framework of any criminal trial[,]” the Supreme Court has deemed a violation of this right to be a structural error that requires “automatic reversal” when properly preserved and raised on direct appeal. See Weaver v. Massachusetts, 137 S.Ct. 1899, 1907-10 (2017).

The Sixth Amendment right to a public trial, however, is not absolute, and as the Supreme Court has stated, there are exceptions to this general rule. “[T]he right to an open trial may give way in certain cases to other rights or interests, such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information.” Waller, 467 U.S. at 45.

Waller provided standards for courts to apply before excluding the public from any stage of a criminal trial: “(1) [T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, (2) the closure must be no broader than necessary to protect that interest, (3) the trial court must consider reasonable alternatives to closing the proceeding, and (4) it must make findings adequate to support the closure.” Id., at 48. The exclusion of the public from any stage of a criminal trial may be justified under the Sixth Amendment only if the above four-factor test in Waller has been satisfied.

Many state and lower federal courts, however, have not reached the issue of a closure’s justification when the closure was “too trivial” to constitute a violation of the   Sixth Amendment right to a public trial. See Gibbons v. Savage, 555 F.3d 112, 121 (2d Cir. 2009). “A triviality standard is different from a harmless error standard; it looks to whether the closure implicated the protections and values of the Sixth Amendment.” Kelly v. State, 195 Md. App. 403, 420 (2010), cert. denied, 417 Md. 502, cert. denied, 563 U.S. 947 (2011).

Known as the de minimus doctrine, the Court of Appeals of Maryland first acknowledged the same in Watters v. State, 328 Md. 38, 49 (1992) (“Although we agree with the State that not every technical violation of the Sixth Amendment right of open trial requires a new proceeding or trial, we would be hard pressed to declare a violation of this magnitude de minimus, or otherwise not of constitutional significance.”), cert. denied, 507 U.S. 1024 (1993). Later, in Kelly, the Court established that in determining whether a closure is de minimus, an appellate court must weigh the following factors: “[1] the length of the closure, [2] the significance of the proceedings that took place while the courtroom was closed, and [3] the scope of the closure, i.e., whether it was a total or partial closure.” 195 Md. App. at 421-22.

In sum, when an appellate court is called upon to determine whether an appellant’s Sixth Amendment right to a public trial has been violated, the court must first determine whether the closure was de minimus, and thus does not implicate the Sixth Amendment right to a public trial by weighing the three factors set forth in Kelly. If the closure was not de minimus, the court proceeds to the four-factor test set forth in Waller to determine whether such closure was justified. If the closure was not justified, the error is structural, and the appellant is entitled to a new trial.

It is clear that the Sixth Amendment right to a public trial extends to the voir dire of prospective jurors, the selection of the jury, and the swearing-in of the members of the jury. See Presley v. Georgia, 558 U.S. 209, 213-14 (2010 ). The issue, therefore, was whether the exclusion of appellant’s family from a portion of the voir dire and the entire selection and swearing-in of the jury was de minimus.

Here, appellant’s family was excluded shortly after the start of voir dire sometime after 9:38 a.m. on the second day of trial, and the family was not allowed to observe the court proceedings until after 3:03 p.m. When taken into account that from 11:48 p.m. to 1:27 p.m. and from 2:48 p.m. to 3:03 p.m., the court was not conducting any proceedings, the length of the closure was still between three and three and one-half hours. The record further revealed that the court recessed at 5:09 p.m. that day, and thus appellant’s family, at best, would have only been able to observe about two hours of appellant’s trial.

The proceedings that occurred in appellant’s case were of such significance that a lengthy closure, such as at least three hours, weighed against a determination of a de minimus closure. See Kelly, 195 Md. App. at 428 (indicating the significance of the length of the closure is viewed in light of the significance of the proceedings that occurred during that closure by stating “(1) the limited duration of the closure, two to three hours during voir dire”).

The exclusion of appellant’s family during a portion of voir dire and the entire selection and swearing-in of the jury was the most significant fact. In Kelly, the family members were only excluded during voir dire, which was a fact on which heavily relied upon to distinguish Kelly from Watters because, “unlike in Watters, [the closure in Kelly] did not extend to the actual selection of the jury.” Id. at 428. Moreover, unlike Kelly, the selection and swearing-in of the jury in appellant’s case was not a process conducted at the bench where spectators would not have been able to observe or overhear the parties and prospective jurors. Cf. id. at 427-28. Instead, the parties used their peremptory challenges to select the jury, and the selected jury members were subsequently sworn in in a proceeding that would have been observable to spectators in the courtroom. This factor therefore weighed against a determination that appellant’s courtroom closure was de minimus. See Watters, 328 Md. at 49.

The importance of the selection of the jury in open court is highlighted by Batson and its progeny, which prohibits prosecutors and defense attorneys from using a peremptory challenge to strike a juror based on race, ethnicity, or gender. See Batson, 476 U.S. at 89; Hernandez v. New York, 500 U.S. 352, 369 (1991) (suggesting that peremptory challenges based on ethnicity are prohibited). Such prohibition has been held not only to “safeguard[] a person accused of crime against the arbitrary exercise of power by prosecutor[s] or judge[s,]” but to advance “public confidence in the integrity of the criminal justice system.” See Batson, 476 U.S. at 86.

A defendant’s family has an interest in observing the prosecutor employ his or her peremptory challenges to ensure compliance with Batson and to serve as a deterrent from any “arbitrary exercise of power.” See, e.g., In re Oliver, 333 U.S. at 270 (“The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.”). Having family members present during the selection of the jury also allows jurors to see that there are interested parties present and allows “the defendant’s family to contribute their knowledge and insight” on which jurors to select. Cf. Watters, 328 Md. at 48.

In weighing all of the factors above, it was concluded that the closure in this case was not de minimus because of the significant amount of time that the proceedings were closed to the family members. The most important factor, however, was the closure of the courtroom to appellant’s family during the selection and swearing-in of the jury.

Observation of jury selection and the swearing-in of the jury by members of the defendant’s family (1) instills public confidence in the integrity and fairness of the criminal justice system, (2) ensures the proper use of peremptory challenges by the prosecutor under Batson, (3) safeguards a person accused of a crime against the arbitrary exercise of power by a prosecutor or judge, (4) allows the jurors to see that there are interested persons present, (5) permits members of a defendant’s family to contribute their knowledge and insight on which jurors to select, and (6) impresses on each juror the importance of the solemn duty that he or she is assuming. Thus, unless the closure was justified under Waller’s four-factor test, appellant’s Sixth Amendment right to a public trial was violated.

Accordingly, the judgment of the circuit court was reversed.

COMMENTARY: Presley v. Georgia, 558 U.S. 209, 213-14 (2010) was instructive in determining whether the closure in this case was justified. In Presley, the trial court, sua sponte, excluded Presley’s uncle from the courtroom at the beginning of voir dire. Id. at 210. On appeal to the United States Supreme Court, the Court framed the first issue before it as follows: “whether the right to a public trial in criminal cases extends to the jury selection phase of trial, and in particular the voir dire of prospective jurors.” Id. at 212. The Court held that the Sixth Amendment right to a public trial did apply to the jury selection phase, including voir dire. Id. at 213.

The prosecutor in the instant case had a concern about improper communications between appellant’s family and the prospective jurors. The prosecutor failed, however, to proffer any evidence that any such communication occurred, and even if such communication had occurred, the circuit court failed to make any findings to that effect. More importantly, the circuit court, like the trial court in Presley, did not consider any alternatives to closure.

Therefore it was held that the exclusion of appellant’s family from a portion of the voir dire and the entire selection and swearing-in of the jury violated appellant’s Sixth Amendment right to a public trial. Accordingly, the judgment of the circuit court was reversed and the case remanded for a new trial.

PRACTICE TIPS: In regards to the “the purpose and benefits of the oath” administered to the jury, The solemnity of calling the juror before the prisoner, in the presence of the court, and his there taking the solemn oath prescribed by law to well and truly try and true deliverance make of that prisoner, not only gives the prisoner a comfortable assurance that he is to have a fair and impartial trial, but has a salutary tendency to prepare the mind of the juror for the solemn duty he is assuming. Alston v. State, 177 Md. App. 1, 18-19 (2007), aff’d, 414 Md. 92 (2010).

Family Law

Child in need of assistance proceedings

BOTTOM LINE: The juvenile court did not abuse its discretion in denying the Department of Social Services petition to remove child from parents because the Department failed to show by a preponderance of the evidence that returning the child home would be contrary to the child’s safety and welfare or that removal was necessary due to an alleged emergency and to provide for the child’s safety.

CASE: In re O.P., No. 2877, Sept. Term, 2018 (filed March 29, 2019) (Judges FADER, Meredith & Friedman).

FACTS: O.P. was born seven weeks prematurely to parents N.R. (“Mother”) and S.P. (“Father”). He spent the first seven weeks of his life in the neonatal intensive care unit (“NICU”) of Johns Hopkins Hospital until his discharge on November 23. Three weeks later, on December 14, the Anne Arundel County Department of Social Services (the “Department”) received a report that O.P. had been admitted to Johns Hopkins Hospital due to unexplained brain injuries. On December 21, the hospital discharged O.P to the Department’s custody to be placed in emergency shelter care.

On December 26, the Department filed a Child in Need of Assistance (“CINA”) petition and a request for continued care with the juvenile court. According to the petition, on December 12, there had been an incident in which O.P. was choking. Father performed CPR and Mother called 911. The parents reported that the emergency personnel who responded to the incident determined that O.P. appeared fine at that time. When O.P. visited his pediatrician two days later, the doctor was concerned about the infant’s increased head circumference and had O.P. sent immediately to Johns Hopkins Hospital emergency room.

O.P. was admitted to the hospital after it was determined that he had subdural and subarachnoid hemorrhaging. Medical providers indicated that the injuries were consistent with abusive head trauma and strongly recommended that O.P. not be returned to the parents’ care at that time, given that there was no plausible explanation as to what caused the brain bleeds and both parents’ troubling mental health histories.

The Department held a “Team Decision Making meeting” on December 26 in which O.P.’s parents participated. They were unable to develop a plan that would assure O.P.’s safety other than to place him in out of home care. That day, a juvenile magistrate held a hearing and granted the Department’s request for an order continuing shelter care pending adjudication.

Mother requested an immediate review of the magistrate’s order and the juvenile court held a de novo shelter care hearing the next day. The Department presented (1) the testimony of child protective services worker Joshua Kay and (2) the hospital’s discharge summary for O.P. Mr. Kay testified, among other things, about his communications with Dr. Goldstein, the physician in charge of the child protection team that evaluated O.P. at the hospital. Dr. Goldstein told Mr. Kay that he had conducted tests and reviewed some of O.P’s medical records. Dr. Goldstein also reported that there was “intracranial bleeding,” specifically “subdural hematoma and subarachnoid hematoma,” which was “consistent with abusive head trauma” incurred “on two different occasions.” The doctor believed the injuries occurred on two different occasions because there was “newer blood and older blood” in “two different locations,” which could not be the result of a birth defect or medical issue. Notably, however, Dr. Goldstein told Mr. Kay they could not determine how old the injuries were.

The juvenile court granted Mother’s request to deny the petition and ordered the immediate return of O.P. to his parents. The Department appealed and sought an injunction from the Court of Special Appeals, which granted a temporary stay and remanded the matter to permit the juvenile court to explain the basis for its decisions. On December 31, 2018, the juvenile court issued a memorandum opinion and order explaining its December 27 decision.

The Department filed in the juvenile court an amended CINA petition with an amended request for shelter care, stating that it had acquired additional evidence. At the second de novo hearing, the Department again presented Mr. Kay as its only witness and also introduced additional documentary evidence, including EMS records from the paramedics who responded to the incident that occurred on December 10 and medical records from O.P.’s time in the NICU and subsequent visits to the pediatrician.

Mr. Kay testified as to the new information he had learned in the 12 days since the first hearing, which consisted almost entirely of the contents of the EMS and medical records. He testified that the EMS records showed that the incident in which O.P. had choked and stopped breathing had actually occurred on December 10, which meant that it had taken the parents four days, not two, to take O.P. to a doctor following that incident. Those records also showed that Father had refused medical advice that O.P. be taken immediately to the E.R, whereas Father had previously stated that he had followed the recommendations of the paramedic to go to the pediatrician the following day.

Mother testified that O.P. suffered from acid reflux, causing him to have difficulty keeping his food down. He also had laryngomalacia, which caused episodes of sleep apnea and had caused him to stop breathing twice while in the NICU. Mother testified she was not given any instructions from the hospital regarding the laryngomalacia or what to do if O.P. stopped breathing again.

The court concluded that the Department failed to meet its burden to prove that the injuries suffered by O.P. were 1) non-accidental or; 2) that they were caused by the abuse or neglect of the parents while in their custody or control. The Department and O.P. appealed to the Court of Special Appeals again seeking an injunction. The Court denied the request for an injunction pending appeal but expedited briefing and argument and directed the parties to address in their briefing the appropriate legal standard for continuing shelter care.

LAW: A “child in need of assistance,” or 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.” Cts. & Jud. Proc. (“CJP”) §3-801(f), (g).

Subtitle 8 establishes a comprehensive statutory scheme to govern proceedings when a child is alleged to be a CINA. The statute gives “exclusive original jurisdiction” to a juvenile court over proceedings arising from CINA petitions, id. §3-803(a)(2), and establishes, among other things, the scope of the court’s jurisdiction over children, venue for proceedings, assignment of judges, the appointment and authority of juvenile magistrates, the review of decisions or recommendations of magistrates to the juvenile court, the confidentiality of proceedings, the scope of a local department’s obligation to make reasonable efforts to reunify children and parents, and the State’s obligation to provide counsel to represent children, as well as indigent parents and guardians of an alleged CINA, in CINA proceedings, id.

“When we construe a statute, we search for legislative intent.” Bell v. Chance, 460 Md. 28, 53 (2018). The “primary guide” in that search is the statutory text. Id. “We begin our analysis by looking to the normal, plain meaning of the language of the statute.” Wash. Gas Light Co. v. Md. Pub. Serv. Comm’n, 460 Md. 667, 682 (2018). The statute is read “as a whole to ensure that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory.” Id.

Here, the provision construed was §3-815(d), which provides: “A court may continue shelter care beyond emergency shelter care only if the court finds that: (1) Return of the child to the child’s home is contrary to the safety and welfare of the child; and (2)(i) Removal of the child from the child’s home is necessary due to an alleged emergency situation and in order to provide for the safety of the child; or (ii) Reasonable efforts were made but were unsuccessful in preventing or eliminating the need for removal of the child from the home.” The parties did not dispute that it was the Department’s burden to prove those things. The question at the center of their dispute was the standard by which the juvenile court must find those things.

The statute provides that a court may continue shelter care “only if it finds” the conditions listed in the statute. In arguments grounded more in policy than the language of the statute, the Department argued that this language does not mean that the court need find that those things are true—even by the standard of more likely than not—but that it need only conclude that there is a reasonable possibility that they might be true.

In Volodarsky v. Tarachanskaya, 397 Md. 291 (2007), the Court of Appeals explored the standard of proof to be applied in determining whether abuse or neglect had occurred in the context of §9-101 of the Family Law Article. Under that statute, if a “court has reasonable grounds to believe that a child has been abused or neglected by a party to the proceeding,” the court is not permitted to give custody or unsupervised visitation to that party unless it “specifically finds that there is no likelihood of further child abuse or neglect by the party.” Fam. Law §9-101. The question in Volodarsky was by what standard of proof a court must make the initial finding that abuse or neglect has occurred so as to give rise to the obligation to make the subsequent finding. The circuit court in that case recognized that there was evidence that the child had been “exposed to sexual behavior,” but the court was not “convinced by a preponderance of the evidence that [the child had] been the victim of sexual abuse, or that her father [had] perpetrated sexual abuse.” Id. at 302.

The Court of Appeals determined that, in the context of §9-101, there was no tension between the application of a preponderance standard and the statute’s “reasonable grounds to believe” language. Id. at 304. That, the Court held, is because the statutory language “requir[ing] a specific finding that ‘further abuse or neglect’ is not likely clearly implies that there must be some sort of finding or determination by the court that abuse or neglect likely occurred in the first instance.” Id. For that to be true, the Court observed, the earlier finding must have been made by, at a minimum, a preponderance of the evidence standard. Id. at 308. Anything else would not be a finding at all.

Particularly notable was the Court’s analysis in Volodarsky distinguishing situations in which a trial court is called upon to make a finding of fact as to which it must be persuaded and other situations in which a trial court is called upon only to determine whether certain objective circumstances are identified that, if true, would be legally sufficient. The preponderance standard is not required for an objective analysis “in situations in which only a preliminary determination need be made, based on incomplete and often non-testimonial hearsay evidence,” such as in considering whether there is probable cause to issue a warrant. Id. at 306. In that case, “the issuing magistrate usually takes the affidavit offered in support of the application at face value and determines only whether the facts alleged are legally sufficient to establish probable cause.” Id. “The magistrate is normally not required to make ultimate credibility determinations or weigh the ultimate persuasiveness of the averments in the affidavit and, unless the application or documents offered in support of the application are deficient or suspiciously ambiguous, usually has no basis for doing so.” Id. at 306-07.

Section 9-101 determinations, by contrast, are not probable cause determinations. The “ultimate factual decisions are made by a judge based on conflicting testimonial evidence.” Id. at 307. Thus, “[i]t is by using the preponderance standard that the judge determines whether reasonable grounds exist.” Id. at 308; see also In re Yve S., 373 Md. 551, 587 (2003). By its plain language, §3-815(d) precludes a juvenile court from continuing shelter care unless the court is persuaded, by the evidence presented at a shelter care hearing, that it is at least more likely than not that (1) returning home is contrary to the child’s safety and welfare and (2) removal is necessary due to an alleged emergency and to provide for the child’s safety, or reasonable efforts were made but were unsuccessful in preventing or eliminating the need for removal.

This case, however, presented a clash of competing interests of the highest order—the State’s parens patriae interest in protecting children from harm and the fundamental liberty interest of parents in raising their children. The temporary deprivation of custody of one’s children pursuant to a shelter care order is less intrusive to a parent’s fundamental liberty interest than is a permanent or long-term deprivation of custody. However, that difference is one of degree only and “is not a difference of constitutional magnitude.” Koshko, 398 Md. at 430. Temporarily removing a child from a parent’s custody for weeks or months undoubtedly intrudes upon the fundamental right of parents to direct the ‘care, custody, and control’ of their children.

The Department presented its case through a single witness whose testimony conceded that (1) O.P.’s injuries could have been sustained while in the NICU and (2) medical science was not capable of proving otherwise. A different factfinder might have been skeptical of both concessions, but neither was contradicted and the court was entitled to credit them. The same witness testified that he had received written confirmation from a doctor that the injuries were consistent with abusive head trauma but failed to (1) provide the confirmation or (2) articulate what that meant with respect to the doctor’s level of confidence that there had been abusive head trauma while O.P. was in the care of his parents. The court also received evidence that O.P.’s head had grown significantly faster than normal while in the NICU and that the protruding veins observed in his forehead on December 14 had also been present while in the NICU. Moreover, the court believed the parents, including their explanation for their conduct between December 10 and 14, which was at least partially supported by records of the responding emergency medical personnel indicating that upon arrival they found O.P. in good health and with no apparent injury or illness.

The court found itself unpersuaded of those things it was required to find: that O.P.’s return home would be contrary to his safety and welfare and that removal of O.P. from his home was necessary because of an emergency situation and to provide for his safety. The juvenile court’s ultimate conclusion denying shelter care were reviewed for an abuse of discretion, which occurs only when a juvenile court’s decision is “well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.” In re Adoption/Guardianship of C.A. & D.A., 234 Md. App. 30, 45 (2017). Although the record certainly contained sufficient information for a reasonable factfinder to have reached the opposite conclusion, in light of the evidence presented, the juvenile court’s conclusion here was not so far “beyond the fringe” as to constitute an abuse of discretion.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: The Department challenged the juvenile court’s finding that “there was no evidence” that the parents’ delay in seeking medical attention for O.P. between the December 10 incident in which he choked and his December 14 visit to the pediatrician “in any way harmed the child.”

Although O.P. showed up at the pediatrician’s office on December 14 with concerning growth in his head circumference and other symptoms, no witness—including Mr. Kay—made any connection between those injuries and the incident on December 10. Nor did the records of the emergency medical personnel who responded on December 10 indicate that they identified any abnormalities with O.P.’s head. If there was a connection between those two things, it was not made at either hearing. Therefore, the juvenile court’s factual finding that there was an absence of evidence to support a causal connection between the delay in seeking attention and any of O.P.’s injuries was not clearly erroneous.

PRACTICE TIPS: “The broad policy of the CINA Subtitle is to ensure that juvenile courts (and local departments of social services) exercise authority to protect and advance a child’s best interests when court intervention is required.” In re Najasha B., 409 Md. at 33. Thus, “where abuse or neglect is evidenced, particularly in a CINA case, the court’s role is necessarily more pro-active.” Id. at 34. In such cases, a juvenile court “acting under the State’s parens patriae authority, is in the unique position to marshal the applicable facts, assess the situation, and determine the correct means of fulfilling a child’s best interests.” In re Mark M.., 365 Md. at 707.

 

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