IN RE: J.J. AND T.S.
Court for Wicomico County Case No. 22-I15-0008 Case No.
Graeff, Friedman, Sharer, J. Frederick (Senior Judge,
Specially Assigned), JJ.
case arises from orders of the Circuit Court for Wicomico
County, sitting as a juvenile court, adjudicating J.J. and
D.J.,  appellees, children in need of assistance
("CINA") and committing them to the Wicomico
Department of Social Services (the "Department"),
also an appellee, for placement in foster care.
appeal, father, Mr. J., and mother, Ms. B., present multiple
questions for our review,  which we have consolidated and
rephrased as follows:
1. Did the court err in applying the provisions of Md. Code
(2015 Repl. Vol.) § 11-304 of the Criminal Procedure
Article ("CP") and admitting evidence of J.J.'s
out-of-court statement to a licensed clinical social worker?
2. Did the court err in finding the children CINA?
3. Did the court properly suspend Mr. J.'s visitation
with the children?
4. Did the court properly extend the children's shelter
care and postpone adjudication beyond the 30-day time period
provided for in Md. Rules 11-112 and 11-114?
reasons set forth below, we shall affirm the judgments of the
AND PROCEDURAL BACKGROUND
age 9 at the time of the proceedings below (DOB: 4/11/06),
and D.J., age 3 (DOB: 12/1/11), are the children of Ms. B.
and Mr. J. In August 2015, J.J. and D.J. were living with Mr.
J.; Ms. B. was incarcerated. On August 30, 2015, the
Department became involved after J.J. reported that Mr. J.
had sexually abused her. J.J. reported to a child protective
services forensic investigator, Tiffany Gattis, that Mr. J.
had rubbed his "wee- wee" on her "private
part" and made her "suck his wee-wee." The
Department removed the children from Mr. J., which led to the
CINA determination at issue in this appeal.
Leading to the September 2015 Shelter Care Hearing
and Mr. J. had three children together - J.J., D.J., and
Ja.J. Ms. B.'s oldest daughter, N.R., was sixteen years
old at the time of the disposition hearing and lived with a
maternal aunt. Ms. B.'s youngest daughter, T.S., was six
years old and lived with her father.
Department, as set forth in its report to the court, had a
long history with the family. In 2008, the Department
received a child welfare referral based on a report that a
former tenant of the family's home had used his key to
enter the home without the family's consent and was
discovered masturbating while standing over N.R.'s bed as
she slept. Mr. J. declined to be interviewed by police, and
the case was closed.
December 2011, after D.J. was born prematurely, Ms. B. tested
positive for marijuana. On February 28, 2012, the Department
received a report that, although D.J.'s pediatrician
determined that he needed a follow-up with a specialist in
retinopathy of prematurity, Ms. B. missed several
appointments. There also were concerns that Ms. B. was not
giving her other children medications as prescribed, Ms. B.
had problems with marijuana and alcohol, there was no food in
the home, there were too many people living in the home, and
Ms. B. was hitting the children with a belt and cursing at
them. The Department's investigation indicated Ms. B. for
neglect, and she was arrested for medical neglect.
April 2012, the Department offered Ms. B. family preservation
services. Ms. B. signed a service plan to enroll in drug
treatment, follow all recommendations, maintain all of the
children's appointments, and enroll in GED classes. She
did not follow through with these tasks. Ms. B. denied that
she had a substance abuse problem, and she did not believe
she needed treatment. Mr. J. had not been a consistent parent
to his children; he had been in and out of Ms. B.'s life
due to domestic violence and incarceration.
September 2012 and September 2014, the Department worked
intensively with the parents "to try to help them
address their drug use, the domestic violence in [their]
relationship [and] to help them get and maintain
housing." Both parents, however, continued to abuse
alcohol and marijuana, and domestic violence was an ongoing
issue. The Department offered Mr. J. mental health services,
but it was never able to satisfactorily address his issues
because his engagement was sporadic.
2012, Ms. B. reported to police that N.R. was a runaway or
had been kidnapped. The Department determined, however, that
Ms. B. had allowed N.R. to visit her family, and N.R. did not
want to return to Ms. B.'s home. The police contacted the
Department regarding the condition of Ms. B.'s home, and
the Department worked "intensively" with Ms. B. and
her children throughout July 2012, when the family moved to
Florida, without notifying the Department or extended family.
August 2012, while the family was living at a motel in St.
Petersburg, Florida, Ja.J., then five years old, drowned in
the motel pool. N.R., who was then 13 years old, had been
left in charge of her younger siblings, ages 6, 5, and 2.
When Ja.J. was discovered at 9:40 p.m., Ms. B. and Mr. J.,
were in the hotel room. Child neglect allegations were
indicated for both Ms. B. and Mr. J.
September 2012, the family returned to Wicomico County. They
resided with family members, and when the Department's
social worker visited, all of the children, except N.R., were
sleeping on the floor. N.R. reported that, when they arrived,
Ms. B. had pulled her out of the backseat of the car by her
hair, pulled her hair, and punched her in the eye. This
incident occurred in front of Mr. J., who did nothing to stop
it. Ms. B. was removed from the scene in handcuffs, and all
of the children were placed in respite care. Ms. B. was
convicted of physical abuse and sentenced to serve fifteen
weekends in the local detention center. Mr. J. was indicated
for neglect and Ms. B. was indicated for abuse.
January 25, 2013, the Department initiated a sexual abuse
investigation to assess allegations reported by then
six-year-old J.J., who had disclosed abuse by Mr. J. During
an audio and video recorded forensic interview, J.J. stated
that, when she and Mr. J. were alone in the master bedroom of
the family's former residence, Mr. J. had touched her on
her vaginal area and on her buttocks. She could not give an
approximate date or time, but she stated that the touching
occurred more than once, and there were no witnesses. Mr. J.
and Ms. B. denied all allegations of sexual abuse, and the
allegation was found to be unsubstantiated, although not
ruled out, as J.J. remained consistent with her statements
for more than a year.
March 2013, during a forensic interview in an unrelated case,
J.J. disclosed sexual abuse by a 17-year-old male cousin,
B.J., while she was residing with a maternal great-aunt for
several months. J.J. stated that B.J. had touched her vagina
and buttocks. The Department found the abuse indicated after
B.J. admitted to touching J.J. on her vaginal area and having
her masturbate him. B.J. was criminally charged with child
abuse and sexual offense.
7, 2013, police were called to the family home due to a
domestic violence incident. Mr. J. and Ms. B. were drinking
and fighting with each other in the street while Mr. J. held
2014, CINA petitions were dismissed for all of the children,
and the Department continued to provide family support
services. On October 22, 2014, Ms. B. filed for a protective
order against Mr. J., but she failed to appear for the final
protective order hearing.
October 27, 2014, the Department again received a referral,
which alleged that J.J. had been sexually abused by Mr. J.
During the forensic interview, J.J. reported that Mr. J.
licked her vagina, which she referred to as a "Yorkie,
" for 20 minutes. J.J. stated that Mr. J. had never
touched her sexually or licked her in the past. She also
reported that, on the same weekend, she witnessed Mr. J.
kicking Ms. B. out of the home, resulting in a domestic
dispute that she witnessed. Ms. B. subsequently returned to
the house, but Mr. J. had another woman in the home, who was
"sucking [Mr. J.'s] 'do-do.'" J.J.
could not explain, however, what that meant.
November 10, 2014, Mr. J. and Ms. B. were interviewed
separately by the Wicomico Child Advocacy Center. Mr. J.
stated that J.J. told him "that she was instructed by
her grandmother to make the statements related to sexual
abuse." Ms. B. stated "that she fabricated the
abuse allegation because she was angry" at Mr. J. for
cheating. Based on inconsistent information and evidence of
coaching, the final disposition was unsubstantiated for
sexual abuse. Because the Department could not determine
whether the abuse did or did not occur, the determination of
unsubstantiated sexual abuse "appeared to be most
December 22, 2014, a warrant issued for Ms. B.'s arrest.
She subsequently was incarcerated for violating her
August 30, 2015, while Ms. B. was still incarcerated, the
Department was contacted by the Fruitland Police Department,
which had received a complaint regarding the alleged sexual
abuse of J.J. The Department, along with the police and the
Wicomico Child Advocacy Center, conducted a joint
investigation. J.J. disclosed that, on August 27 and August
29, 2015, Mr. J. "had sexual intercourse with her and
forced her to perform oral sex on him." A SAFE exam was
performed,  but J.J. had brushed her teeth, showered,
urinated, and defecated prior to the exam. The preliminary
results indicated that J.J. had a possible "notch"
to her vaginal opening that could be indicative of sexual
August 31, 2015, the children were placed in shelter care.
2, 2015, Shelter Care Hearing
September 2, 2015, shelter care hearing, Mr. J. and Ms. B.
agreed to placement of the children in shelter care for 30
days pending the adjudicatory hearing. The adjudication
hearing was scheduled for October 7, 2015. Mr. J. was
scheduled to have one supervised visit with D.J. between the
shelter care hearing and the next hearing, but the court
ordered that there would be "no visitation with [J.J.]
at this time given the circumstances that have been
discussed in more detail, infra, there were a couple
of postponements prior to the ultimate adjudicatory hearing.
At a November 18, 2015, status conference, the court was
advised regarding the status of Mr. J.'s visitation with
the children. Although the Department had provided Mr. J.
with transportation, he had missed one scheduled visitation
with D.J. and arrived late on two other occasions. Counsel
informed the court that J.J. had begun seeing two therapists:
one to address the trauma that she had experienced, and one
to address her issues with food and weight gain. Danielle
Brennan, a foster care worker for the Department, reported
that the trauma therapist was "supportive" of
J.J.'s request to have no contact with Mr. J.
Additionally, the therapist supported only supervised
visitation between J.J. and Ms. B.
§ 11-304 Hearing
November 30, 2015, the court held a hearing pursuant to Md.
Code (2015 Repl. Vol.) § 11-304 of the Criminal
Procedure Article (the "CP § 11-304 hearing")
to address the admissibility of an out-of-court statement
that J.J. made to a member of the Department. During the time
period from May to August 2015, Mr. J. lived alone with J.J.
and D.J. Ms. B. was incarcerated.
Gattis, a social worker who had been a member of the
Department for eight years, and the Child Advocacy Center for
seven years, testified regarding her interview of J.J. on
August 30, 2015. She explained that the Child Advocacy Center
takes a "holistic approach to investigating and
assessing reports of abuse and/or neglect" under a
system called RATAC, which is an acronym for "rapport,
anatomy, touch, abuse and closure, " a "nationally
recognized forensic interviewing process." Under the
RATAC approach, non-biased, non-leading questions are asked
when interviewing children who may have been sexually abused.
Ms. Gattis underwent "substantial training to become
certified in the RATAC process, " including passing a
written examination after attending 40 hours of training. She
also attended the "advanced RATAC protocol training,
" which includes a three-day session, after which she
was required to submit a video of interviews for critique.
August 30, Ms. Gattis received a report from Trooper Donna
Hale, indicating that J.J. had alleged that Mr. J. had
sexually abused her. The forensic interview took place that
evening, between 7:00 and 7:30 p.m., in a treatment room in
the emergency room. Trooper Hale was present, and the
interview was audio recorded; video recording equipment was
not available at the hospital. The audio tape was admitted at
the motions hearing without objection.
Gattis previously had interviewed J.J. concerning an
investigation that ended in December 2014, but they had no
contact in the interim. J.J. answered truthfully the general
questions Ms. Gattis asked about where she attended school.
She understood the concept of days of the week. Given
J.J.'s age, Ms. Gattis tried to gauge J.J.'s
developmental level and asked questions that she could answer
J.J. first saw Ms. Gattis, she appeared "happy to see a
familiar face." Ms. Gattis stated that J.J. is
"very outspoken and speaks with volume." At the
beginning of the interview, she was "sitting
upright." As the issue of abuse arose, however,
"her voice became lower in volume, " she began
"to cave in upon herself, " and her "shoulders
began to hunch over." She also "began chewing on a
strap that she had in her hand off of her sleeve." J.J.
"became distant" and "did not maintain eye
contact." She "peered down" and "started
to make noises to avoid answering" Ms. Gattis. She
"began asking questions about things that were not
relevant to the interview, " was "very distracted
with wanting to eat . . . and asking . . . about when her
next meal would come, " and asked to stop the interview.
Prior to that, she had been "very engaged" and
"very observant about what was going on with" Ms.
also drew a picture of Mr. J.'s penis, and she used her
hands to demonstrate how long and wide it was prior to
drawing the picture. The picture was consistent with what J.J.
demonstrated with her hands. J.J. became upset when she made
spelling mistakes and scribbled out some of the words on the
picture. She had written the statement that "my dad made
me suck his wee wee."
Gattis described how grotesque it was to see a nine year old
child demonstrate "what happens when you have to suck
someone's wee wee." J.J. performed an act with a pen
that can be heard as clicking during the interview
"displaying what sucking a wee wee would look
like." J.J. also made a "very spontaneous"
comment that D.J. had been upstairs in the bathtub
"making a whole bunch of noise" during the abuse.
Ms. Gattis addressed J.J.'s prior disclosure of abuse,
and she explained that a child who previously had been
sexually abused would not necessarily have a more graphic
understanding of sex than a child who had not been abused.
she concluded the forensic interview, Ms. Gattis and Trooper
Hale went to the police department, where she interviewed Mr.
J. and D.J. Mr. J. stated that J.J. and D.J. had gone to
visit their maternal family on Wednesday and returned to his
care on Saturday evening. He denied J.J.'s allegations,
stating that "he would consider not fighting for his
children because it was becoming an old and tiring process to
be accused of sexual abuse." He stated that J.J. was
"starting [a] mess, again, " and "he should
have never allowed her to visit [Ms. B.'s] mother, visit
her family because they were filling her head with
nonsense." Ms. Gattis spoke with D.J., but given his age
and maturity level, D.J. did not have any information.
the CP § 11-304 hearing, Ms. B. and Mr. J. challenged
the indicated findings of abuse. The court explained,
however, that the "real question" at that hearing
was "whether or not this interview was conducted
appropriately, and there is guarantees of trustworthiness in
light of the questioning and responses in this
interview." The court further explained that the
out-of-court statement would not "necessarily . . . [be]
inadmissible because it is subject to being impeached."
adjudicatory hearing, Ms. Gattis' testimony was similar
to her prior testimony. Barbara Flatly, an in-home services
supervisor for the Department, testified to the
Department's history with the family and the attempt to
provide services. The court also listened to the audiotape of
J.J.'s interview while reading the
conclusion of the evidence, the court found J.J.'s
interview and her statements "to be entirely
credible." It further stated that "[n]othing has
refuted those statements, " and therefore, "the
allegations have been sustained."
court found that there was credible evidence that J.J.
disclosed sexual abuse on "8-27-2015 and 8-29-2015,
" that J.J. was diagnosed with a possible vaginal notch
that could be indicative of sexual abuse, that J.J. provided
a description of Mr. J.'s penis and drew a picture of it
for Ms. Gattis, and J.J. had disclosed to Ms. Gattis that Mr.
J. rubbed his penis on her body and had her suck his penis.
court sustained the following allegations in the CINA
petition: paragraph 8(b), that "both parents have
extensive histories of being unable to properly care for the
children"; 8(c), that Ms. B. "was indicated for
neglect for failing to seek medical treatment for" D.J.;
8(d), that Mr. J. and Ms. B. were indicated for neglect in
the drowning death of Ja.J. by the State of Florida; 8I, that
Ms. B. was indicated for abuse and criminally convicted of
assaulting N.R., and Mr. J. "was indicated for neglect
for the same incident for not intervening on N.R.'s
behalf"; 8(g), that Mr. J. and Ms. B. "have a
history of domestic violence in the home in the presence of
the children"; and, 8(i), that Mr. J. "sexually
abused [J.J.] on more than one occasion." The court did
not sustain paragraph 8(f), that Ms. B. "admits to using
alcohol and marijuana as a stress management tool and has not
maintained regular participation in a recovery
disposition hearing, the Department recommended that
visitation with the children be suspended for both parents
until they engaged in the services needed. With respect to
Ms. B., the Department was concerned that she did not believe
J.J.'s statements regarding the abuse, and she was not
trying to help J.J. through her trauma. At visits, Ms. B.
focused her attention on D.J., and was unable to "fully
engage" with J.J. Ms. B. often would make derogatory
remarks about J.J.'s hair and appearance, she chastised
J.J. for her clothing, and she was critical of J.J.'s
attempts to impress her. Ms. B. did not appear to reciprocate
J.J.'s attempts at affection.
Ms. B. had advised that she would go to a shelter or live
with her family, rather than move in with Mr. J., the
Department had not been able to verify that Ms. B. lived
anywhere other than with Mr. J. When the Department
transported Ms. B. to and from appointments or visitation,
she was at Mr. J.'s home, and when dropped off, Ms. B.
had a key and let herself into the house. The Department
reported that Ms. B. appeared to want to continue to have a
relationship with Mr. J., "putting that need above the
needs of her children." Despite a no-contact order, Ms.
B. had J.J. call Mr. J. during a visit to tell him that she
loved him and missed him while a staff person was taking D.J.
to the restroom. The Department believed that anxiety and
depression, combined with substance abuse, were ongoing
issues with Ms. B.
respect to Mr. J., Ms. Brennan, a foster care worker at the
Department, testified that he threatened to file assault
charges against a child protective services worker who had
tapped him on the shoulder. He was non-compliant with program
services, including a recommendation for intensive outpatient
addiction treatment. Mr. J. also became verbally aggressive
with D.J.'s foster parents. During visitations, Mr. J.
took D.J. to the bathroom unattended on numerous occasions,
despite the Department's instructions that he was not to
do so. At "[p]retty much every visit" with Mr. J.,
there was "some kind of event." He complained that
D.J.'s hair needed to be cut, that he had not been fed,
and that he was being hurt by another child in the foster
home. He repeatedly asked D.J. where he was sleeping and who
was sleeping with him in his bed, and he refused to accept
Department wanted Mr. J. to have psychological testing to
determine whether sexual abuse was likely to reoccur, but
this had not yet been accomplished. D.J. had begun displaying
sexualized behaviors, which caused "serious
concerns" to the Department regarding what he "may
have seen or witnessed or been exposed to." Mr. J. also
refused to sign a service agreement.
conclusion of the disposition hearing, the court adjudicated
the children CINA, stating as follows:
I do find that the children are in need of the [c]ourt's
intervention. I find they are children in need of assistance.
I find that [J.J.] was abused. I further find based on the
case law that the [c]ourt's authority extends then also
to finding [D.J.] to be a child in need of assistance and to
affording him protection.
And I will note for the record in light of counsel's
argument, that the [c]ourt may find both parents are
unavailable or unwilling to provide proper care, even if only
one parent - it was only one parent who perpetuated the abuse
or neglect. . . .
In this particular case . . . with regard to the parents,
they're denying that this - basically denying it. So I
understand they're in the position of coming to court and
saying they're not going to cooperate with certain
things, but because they deny and don't think they need
But I have to say that if you're looking at a situation
where your ability to have your child in your care is
dependent upon you severing all contact with Mr. J., then if
putting their needs first was upper most in your mind, that
contact would be severed.
I'm very concerned. I don't find your testimony, Miss
B., credible about where you live. I don't know why in
the world, if you had to go somewhere every day, you would
happen to pick going to Mr. J.'s house if you're, in
fact, not living there. So I don't find that to be
So at any rate, I find the children to be children in need of
assistance. I find they are in need of the [c]ourt's
court then made specific findings that neither "parent
is able to provide proper care and attention to the children
at this time, " and therefore, it committed the children
to the care and custody of the Department for appropriate
respect to visitation, the court ordered that Ms. B. would
continue to have visitation with the children, to be
supervised by the Department. With respect to Mr. J., the
court ordered him to participate in mental health and
substance abuse treatment and sign consents for releases. It
ordered that Mr. J. would have no visitation with the
children, a decision that would be reassessed at the next
hearing, when the court could assess his compliance with the
raise several contentions of error regarding the CP §
11-304 hearing addressing the admissibility of J.J.'s
statement to Ms. Gattis. Before addressing these contentions,
we will first discuss the statutory provisions.
CP § 11-304
Court of Appeals has explained that, although out-of-court
statements generally are excluded from evidence as hearsay,
"[m]any states, including Maryland, have enacted
statutes, sometimes known as the tender years exception,
designed to protect the emotional and psychological health of
young children alleged to be victims of sexual abuse and to
provide for the admissibility of ex parte statements
. . . under particular circumstances." Myer v.
State, 403 Md. 463, 479 (2008). Maryland's statute,
CP § 11-304, is the "legislatively approved
method" governing "the admissibility of hearsay
statements by a child abuse victim under  in juvenile and
criminal court proceedings." Montgomery Cty.
Dep't of Health & Human Servs. V. P.F., 137
Md.App. 243, 272 (2001). The statute "addresses the
inherent questions of trustworthiness raised by such a young
child's out of court statement and balances the need to
protect child victims from the trauma of court proceedings
with the fundamental right of the accused to test the
reliability of evidence proffered against him or her."
§ 11-304 provides, in relevant part, as follows:
(a) "Statement" defined. - In this
section, "statement" means:
(1) an oral or written assertion; or
(2) nonverbal conduct intended as an assertion, including
sounds, gestures, demonstrations, drawings, and similar
(b) Admissibility. - Subject to subsections (c),
(d), and I of this section, the court may admit into evidence
in a juvenile court proceeding or in a criminal proceeding an
out of court statement to prove the truth of the matter
asserted in the statement made by a child victim who:
(1) is under the age of 13 years; and
(2) is the alleged victim or the child alleged to need
assistance in the case before the court concerning:
(iv) in a juvenile court proceeding, abuse or neglect as
defined in § 5-701 of the Family Law Article
out-of-court statement is admissible pursuant to §
11-304I only if it is "made to and is offered by a
person acting lawfully in the course of" certain
professions, including, as relevant here, a social worker.
§ 11-304(d) sets forth certain conditions that must be
satisfied. As relevant to this case, the statute provides:
(2)(i) In a child in need of assistance proceeding in the
juvenile court under Title 3, Subtitle 8 of the Courts
Article, an out of court statement by a child victim may come
into evidence to prove the truth of the matter asserted in
1. if the statement is not admissible under any other hearsay