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In re J.J.

Court of Special Appeals of Maryland

December 21, 2016

IN RE: J.J. AND T.S.

         Circuit Court for Wicomico County Case No. 22-I15-0008 Case No. 22-I15-0009.

          Graeff, Friedman, Sharer, J. Frederick (Senior Judge, Specially Assigned), JJ.

          OPINION

          Graeff, J.

         This case arises from orders of the Circuit Court for Wicomico County, sitting as a juvenile court, adjudicating J.J. and D.J., [1] appellees, children in need of assistance ("CINA")[2] and committing them to the Wicomico Department of Social Services (the "Department"), also an appellee, for placement in foster care.

         On appeal, father, Mr. J., and mother, Ms. B., present multiple questions for our review, [3] 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?

         For the reasons set forth below, we shall affirm the judgments of the circuit court.

         FACTUAL AND PROCEDURAL BACKGROUND

         J.J., 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.

         Events Leading to the September 2015 Shelter Care Hearing

         Ms. B. 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.

         The 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.

         In 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.

         In 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.

         Between 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.

         In June 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.

         In 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.

         In 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.

         On 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.

         In 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.

         On July 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 baby D.J.

         In July 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.

         On 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.

         On 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 appropriate."

         On December 22, 2014, a warrant issued for Ms. B.'s arrest. She subsequently was incarcerated for violating her probation.

         On 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, [4] 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 abuse.[5]

         On August 31, 2015, the children were placed in shelter care.

         September 2, 2015, Shelter Care Hearing

         At the 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 presented."

         Postponements

         As 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.

         CP § 11-304 Hearing

         On 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.

         Ms. 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.

         On 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.

         Ms. 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 appropriately.

         When 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. Gattis.

         J.J. 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.[6] 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."

         Ms. 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.

         After 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.

         During 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

         At the 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 transcript.[7]

         At 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."

         The 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.

         The 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 program."[8]

         Disposition

         At the 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.

         Although 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.

         With 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 D.J.'s responses.

         The 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.

         At the 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 this intervention.
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 credible.
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 intervention.

         The 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 placement.

         With 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 court's orders.

         DISCUSSION

         I.

         Appellants 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.

         A. CP § 11-304

         The 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 [13] in juvenile and criminal court proceedings." Montgomery Cty. Dep't of Health & Human Servs. V. P.F., 137 Md.App. 243, 272 (2001).[9] 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." Id.

         CP § 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 actions.
(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 [("FL")].[10]

         An 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.

         CP § 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 the statement:
1. if the statement is not admissible under any other hearsay ...

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