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CINA adjudication requires proof, not presumption, appeals court says

“The petition may not prove itself at an adjudicatory hearing,” Judge Laura S. Ripken wrote for the Court of Special Appeals in vacating the adjudication and ordering a new CINA proceeding. (Submitted Photo)

The we’ve-always-done-it-that-way defense has failed in Maryland’s second-highest court, which ruled last week that a finding of a child in need of assistance must be proven with evidence and testimony rather than just presumed based on a referenced social services report alleging parental neglect or abuse.

The Cecil County Department of Social Services’ report was damning against the parents, alleging they repeatedly used illegal drugs in their child’s presence and that the father had abused the mother and child, the Court of Special Appeals said.

But the report was never introduced into evidence and the social worker whose eyewitness statements it recounted never testified at the Cecil County Circuit Court proceeding that resulted in the child being adjudicated a CINA over the father’s objection, the appeals court added.

In its reported 3-0 decision, the Court of Special Appeals cited with alarm the department’s statement from the court proceeding that the mere reference to the report in the CINA petition without testimony — a so-called “submission on the report” – has been accepted practice in Cecil County Circuit Court for decades.

The appellate court said a CINA determination must be made based not on the petition but on evidence that proves the petition’s allegations of abuse or neglect by a preponderance of the evidence.

“The petition may not prove itself at an adjudicatory hearing,” Judge Laura S. Ripken wrote for the Court of Special Appeals in vacating the adjudication and ordering a new CINA proceeding.

“The practice of ‘submitting on the report’ in a contested adjudication is flatly contrary to the CINA statute,” Ripken added. “Reliance on this purported practice, tradition or custom in Cecil County CINA cases is also foreclosed by Maryland (procedural) Rule 1-102, which plainly states that there shall be no circuit or local rules.”

The father’s appellate attorney, Deborah Ullmann, stated via email Tuesday that her client is “very disappointed” by the Court of Special Appeals decision.

“He believes the COSA should have reversed and remanded the decision of the Cecil County (Circuit) Court with instructions to dismiss the Cecil County DSS petition,” added Ullmann, a Pocomoke City solo practitioner. “DSS is being given a second bite of the apple to concoct a case against him, just as M.H.’s mother did last year.”

The Maryland attorney general’s office, which represented the department, declined to comment on the appellate court’s ruling.

According to the report, the mother told Elkton police in June 2020 that the father had burned their 2-year-old child with a cigarette and that they had used methamphetamines in the child’s presence. The police executed a search warrant and were soon joined by a social worker to care for the child.

The child, identified in court papers as M.H., was taken to shelter care.

As recounted in the report, the social worker saw many pill and alcohol bottles scattered across the floor and in the bedroom where the parents and child slept. The social worker also found a large hunting knife in an open drawer and rat traps on the floor, which were set to snap closed on contact to kill the rodent but which could also severely injure a curious toddler.

The report also cited the mother as having said the father had struck the child on the arms, legs and buttocks. The mother, who died of an overdose in August 2020, also said she had seen the burn on the child’s knee, which the father told her was an accident.

In addition, the mother said she and the father would often argue, resulting in him throwing objects at her and sometimes unintentionally hitting the child instead.

In its CINA petition, the department alleged facts “as contained in the shelter care report which is incorporated in this petition.”

At the adjudicatory hearing on Oct. 6, 2020, the department said it would “submit on the report.” Counsel for the father objected, saying the incorporation by reference of the report was insufficient proof because evidence and testimony must be submitted and subject to cross-examination.

The department’s representative countered that submission on the record was “a practice that Cecil County has been doing for at least 30 years,” according to the Court of Special Appeals opinion.

“Maybe sometime in the future everybody will sit down and decide that we need to do it a different way,” the representative added. “It’s just one of those local practices that has been ongoing for decades and I don’t think we need to answer that question today because it sounds to me like we’re all in a position where we can … agree on what the court needs to do.”

The Cecil County Circuit Court agreed with the department’s reading of the local rules and adjudicated M.H. to be a child in need of assistance. The father then appealed

In ordering a new CINA proceeding, the Court of Special Appeals criticized the “informality” of the Cecil County Circuit Court’s process.

“While CINA hearings require flexibility based on the individual circumstances of the child, parents, or caretaker, this does not mean that the statutorily required procedures are optional,” Judge Ripken wrote. “(Adhering to statutory requirements, both procedural and substantive, is critical when the safety of the child and the fundamental rights of parents are at issue.”

Ripken was joined in the opinion by Judges Christopher B. Kehoe and Dan Friedman.

The Court of Special Appeals rendered its decision in In Re: M.H., No. 1267, September Term 2020.