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In re O.P.

Court of Special Appeals of Maryland

March 29, 2019

IN RE: O.P.

          Circuit Court for Anne Arundel County Case No. C-02-JV-18-000692.

          Fader, C.J., Meredith, Friedman, JJ.

          OPINION

          Fader, C.J.

         We must first determine the correct standard of proof for a juvenile court to apply to a petition for continued shelter care[1] of a minor pending consideration of a petition to find that the minor is a child in need of assistance. We conclude that for a juvenile court to authorize the continuation of shelter care, the court must find by a preponderance of the evidence that (1) returning the child home is contrary to the child's safety and welfare, and (2)(a) removal is necessary due to an alleged emergency and to provide for the child's safety, or (b) reasonable efforts were made but were unsuccessful in preventing or eliminating the need for removal. Here, the Circuit Court for Anne Arundel County, sitting as a juvenile court, did not err in applying the preponderance standard to the petition for continued shelter care filed by the appellant, Anne Arundel County Department of Social Services (the "Department").

         We are asked, second, to determine whether the juvenile court clearly erred in making certain findings of fact or abused its discretion in ultimately determining that the Department did not carry its burden of proof. On this record, we conclude that the juvenile court did not clearly err as to the findings of fact on which it based its ultimate conclusion or abuse its discretion and, therefore, we affirm.

         Decisions concerning continuation of shelter care, especially where the minor is an infant, are some of the most difficult that a court can face. Information is often unavoidably scarce, facts are often developing and disconcertingly unclear, the law requires immediate action, and the interests and stakes involved-the health and safety of defenseless children and parents' fundamental liberty interest in raising their children-are among the most important a court can be called upon to assess. The General Assembly has implemented a statutory scheme to navigate these issues and balance these interests. That scheme calls upon a juvenile court to find by a preponderance the necessary factors or, if it cannot do so, to deny continued shelter care. After reviewing the principles and interests involved, we find no compelling constitutional principle that would permit, much less compel, us to depart from that scheme.

         BACKGROUND

         Emergency Shelter Care

         O.P. was born seven weeks prematurely, on October 7, 2018, 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 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.

         The Department's First Petition for Continued Shelter Care

         On December 26, the next day the courts were open, the Department filed a Child in Need of Assistance ("CINA") petition and a request for continued shelter care with the juvenile court. The petition included the following allegations:

• According to O.P.'s parents, on December 12, there had been an incident in which O.P. was choking and "appeared to have stopped breathing." 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 both subdural and subarachnoid hemorrhaging."
• Medical providers "indicated that the injuries and finding [sic] are 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."[2]
• 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 same day, December 26, a juvenile magistrate held a hearing and granted the Department's request for an order continuing shelter care pending adjudication.

         The First De Novo Shelter Care Hearing

         Mother exercised her statutory right to request an immediate review of the magistrate's order and the juvenile court held a de novo shelter care hearing the next day.[3] The Department presented (1) the testimony of child protective services worker Joshua Kay and (2) the hospital's discharge summary for O.P. In light of the nature of the challenge to the juvenile court's findings and ultimate determination, we present Mr. Kay's testimony in some detail.[4]

         Mr. Kay testified regarding what the parents had told him about the incident in which O.P. had stopped breathing:

• The incident occurred on December 12;
• Father, who was home with O.P. at the time, heard O.P. "beg[i]n to make choking noises" and then it "appeared that he had stopped breathing."
• When Father checked and "could not hear or feel any breathing," he administered CPR.
• O.P. then began to breathe and at some point, Father called Mother who called 911.
• O.P's parents told Mr. Kay that emergency medical services ("EMS") personnel checked O.P's vitals and determined that O.P. was "okay."
• The paramedics then gave the parents three options: allow EMS to take O.P. to the hospital, take O.P. to the hospital themselves, or take O.P. to a previously scheduled doctor's appointment the following day.
• "EMS then recommended that they just go to the appointment that was already scheduled on the 13th."

         Mr. Kay also spoke to O.P's pediatrician, Dr. David Dominguez, and others within Dr. Dominguez's office. Based on those conversations, Mr. Kay testified that O.P. was "schedule[d] to have weekly appointments" because "he had been having trouble gaining weight." The pediatrician's office told Mr. Kay that O.P. had been scheduled for an appointment on December 12, which was missed, and that he had never been scheduled for an appointment on December 13. The parents brought O.P. for an appointment on December 14, at which Dr. Dominguez became concerned about O.P.'s "expanded head circumference" and "the observable veins in [his] head." As a result, Dr. Dominguez told Mr. Kay, he "sent them to the ER." The parents never informed Dr. Dominguez about the incident in which O.P. was choking and stopped breathing. The doctor learned about that incident only later from Dr. Mitch Goldstein of Johns Hopkins Hospital.

         Mr. Kay also testified 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 for our purposes, Mr. Kay also reported that Dr. Goldstein said that he could not determine the timing or age of the two bleeds, other than "that one was older and one was newer." Although the Department had attempted to get information that would narrow the timeframe, Dr. Goldstein told Mr. Kay that "medical technology does not allow them to put any dates, whether it was, you know, two weeks old, two months old or [sic] either of the bleeds." Indeed, on cross-examination, when asked if "[t]he bleeding could have occurred while [O.P.] was in the NICU," Mr. Kay responded that "[w]hat was explained to [him] is, yes, that there is just no time frame for when the bleeding occurred."

         Mr. Kay also acknowledged during cross-examination that Mother had shown him a picture from when O.P. was still in the NICU in which he had the same protruding veins that had concerned Dr. Dominguez on December 14.

         Finally, Mr. Kay testified that he had initially attempted to establish a safety plan under which O.P. "could come home and be under 24-hours a day/seven days a week supervision by the maternal grandfather, [who lived in the same home with O.P. and his parents], that he would ensure that the parents were never left alone with" O.P. However, once the Department received information from Dr. Goldstein that O.P.'s injuries were consistent with abusive head trauma, he became concerned that the grandfather might "be a possible cause of the head trauma" and so the Department was no longer "comfortable doing a safety plan with the parents."

         O.P.'s hospital discharge summary, which the court admitted into evidence, indicates that on December 14, O.P.'s head circumference was 40 centimeters, his "[s]calp veins were prominent," and his "[e]yes showed mild sundowning." Notes near the end of the summary state that the hospital's child protective team "noted concern[] for possibility of inflicted neurotrauma." An MRI taken on December 19 identified multiple hemorrhages and hematomas in O.P.'s head.[5] The summary also noted that the protruding veins were "likely secondary to trauma"; and that this "[c]onstellation of findings can be seen in the setting of nonaccidental injury, clinical correlation recommended." Mr. Kay testified that in addition to this discharge summary, he had Dr. Goldstein's "written findings" in his possession, but he did not produce them at the hearing.

         At the conclusion of the Department's case, the juvenile court granted Mother's request to deny the petition for continued shelter care. The court determined that the Department had failed to meet its burden, even construing the facts presented in the light most favorable to the Department. As a result, the court ordered the immediate return of O.P. to his parents.[6]

         The First Appeal

         The Department immediately noted an appeal and sought an injunction from this Court. We granted a temporary stay and remanded the matter "to permit the juvenile court to explain the basis for its decisions and to allow for preparation and transmission of all of the evidence considered by the juvenile court" so that we could consider the request further. In the meantime, we ordered that, pending the issuance of a new order by the juvenile court, "the parties shall return to the status quo that preceded the issuance of the juvenile court's December 27, 2018 decisions (i.e., the infant O.P. shall be immediately returned to the Department's emergency shelter care)."

         Further Juvenile Court Proceedings

         On December 31, 2018, the juvenile court issued a memorandum opinion and order explaining its December 27 decision. On January 3, 2019, 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. The amended petition included the following new allegations:

• Although the parents had contended that the incident in which O.P. was found choking and not breathing occurred on December 12, the Department had learned that it occurred on December 10. The responding paramedics indicated that Father had told them that O.P. "had been gagging" and that Father "picked up [O.P.] and began stimulating and delivering back slaps." The paramedics did not mention any "administering [of] CPR or [O.P] not breathing."
• Those paramedics also stated that O.P.'s parents had refused their recommendation that O.P. "be transported to the Emergency Room for evaluation at that time."
• When seen on December 14, O.P. had "sunsetting of his eyes" as well as the "increased head circumference" that were "concerning for hydrocephalus, [7]which was not present at prior visits."
• O.P.'s birth records, also newly-received, "indicate that [O.P.'s] head was examined and determined to be normocephalic[8] and atraumatic[9] on at least three occasions during the child's birth stay [at the NICU], including at discharge on November 23," and that there was no "concern for [O.P.'s] head size or condition, or that [O.P.] suffered any brain related incidents while in the hospital."
• At O.P.'s appointments with his pediatrician on November 27 and December 5, his "head was described as normocephalic and atraumatic."

         On January 2, 2019, Mother filed a motion in this Court to lift its stay and immediately return O.P. to his parents. The Department opposed the motion in a filing that noted its new evidence and newly-filed amended petition. We denied Mother's motion but ordered that the stay would expire as soon as the juvenile court entered an order resolving the Department's amended shelter care request. On January 7, a magistrate held a hearing on the amended request and granted continued shelter care. The parents again requested an immediate review by the juvenile court, which held a de novo hearing on January 8 and 9 limited in scope "to all new allegations not contained in the original Petition."

         The Second De Novo Shelter Care Hearing

         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."

         Mr. Kay also testified that medical records from Dr. Dominguez's office showed that Dr. Dominguez had expressed concern that O.P. had missed medical appointments with specialists, including a gastro-reflux doctor and an ear, nose, and throat doctor, and that Mother did not follow through "for postpartum discretion [sic] screening." As identified in the amended petition, the pediatric records also note that when O.P. was taken in on December 14, he had "an increasing head circumference," "bulging . . . scalp veins," and "sunsetting of his eyes," which were "concerning for hydrocephalus." Mr. Kay also testified that O.P.'s records from the NICU, which he had obtained since the first hearing, indicated that O.P.'s "head circumference [was] normal."

         Mr. Kay testified that he had not spoken with Dr. Goldstein or any other members of the Hopkins evaluation team since the first hearing. He also acknowledged that the written findings from Dr. Goldstein that he referred to in his testimony at the first hearing, but did not produce, were in the form of an e-mail "sent from a coordinator that was in reference to statements that were from Dr. Goldstein, but it was not part of the records that we received." The e-mail was not presented to the court.

         The EMS records the Department introduced into evidence identify the choking incident as having occurred on December 10. The records also reveal that the paramedics informed O.P.'s parents that "EMS recommends transport to local pediatric ER for evaluation but indicate they no longer believe it to be necessary. . . . Parents were also advised if they did not transport [O.P.] to local ER of their choice to still contact [O.P.'s] pediatrician in the morning." The EMS personnel obtained Father's signature for "refusal of services" against medical advice.

         However, the EMS records also reflect that the provider's "Primary Impression" of O.P. as a result of the incident was "No Apparent Illness/Injury [Unknown]." The space for a secondary impression is left blank. The narrative explanation of the incident also notes that the EMS providers found O.P. "in no apparent distress with good skin color," and that his "baseline vitals were assessed and stable."

         The Hopkins medical records contain findings from several different evaluations performed during O.P.'s seven weeks in the NICU and at three pediatric visits. The NICU records indicate that O.P.'s head circumference at birth was 31cm. By November 19, four days before discharge, his head had grown to 37.6 cm. Pediatric records from a visit on December 5 state that his head circumference was 37.5 cm. Each of these records from birth through December 5 describes O.P.'s head as both "normocephalic" and "atraumatic." None of the medical records before December 14 appear to identify any concern with the size of O.P.'s head.

         After the Department closed its case, the court considered, and then denied, a motion by the parents to dismiss the petition. The parents then presented testimony from both Mother and Father. Mother testified that O.P. suffered from acid reflux, causing him to have difficulty "keeping his food down," and had been prescribed Zantac. He also had laryngomalacia, which caused episodes of sleep apnea and had caused him to stop breathing twice while in the NICU. "One time he corrected it himself, and then another time the nurse . . . had to get involved and help him." Mother testified she was not given any instructions from the hospital regarding the laryngomalacia or what to do if O.P. stopped breathing again.

         Mother acknowledged that Dr. Dominguez had advised her to make an appointment with a specialist for O.P.'s conditions. She had missed the appointment for the laryngomalacia because it had been scheduled on a date when O.P. was still in the hospital for the brain injury. She also attempted to schedule an appointment for the acid reflux, but was told that, absent an emergency, an appointment could not be scheduled for approximately one month.

         In explaining the discrepancy as to the date of the incident in which O.P. choked and briefly stopped breathing while at home, Mother testified that she "had [her] dates mixed up" when she initially spoke with Mr. Kay. She also testified that the paramedics did not inform her of a health risk if she did not take O.P. to the hospital right away and she explained that she did not do so because she assumed the incident was just another incidence of what had occurred in the NICU: "[S]o I wasn't too worried about it because it's happened before and with that condition it's more than likely to happen again."

         With respect to missing pediatric appointments, Mother testified that she had missed the appointment on December 12 due to a confusion about the time. She made an appointment for the following day, but that morning was informed that Dr. Dominguez would not be there. She then made the appointment for December 14, which led to O.P.'s hospitalization. She acknowledged that she had not told Dr. Dominguez about the December 10 incident during that appointment, but said that she did not have the opportunity because Dr. Dominguez "seemed really urgent about the head circumference and he just wanted us to go to the ER."

         Mother also introduced a medical chart from the hospital showing O.P.'s head growth over time. The chart depicts the head circumference-for-age percentiles for premature boys of 23.5 to 50 gestational weeks (i.e., based on age since conception rather than age since birth) with curves identifying the 3rd, 10th, 50th, 90th, and 97th percentiles, and plots O.P.'s head circumference on the same chart. According to the chart, (1) O.P.'s head circumference at birth (33 gestational weeks) was right at the 50th percentile; (2) his head circumference increased over the following few weeks, rising above the 90th percentile by 39 weeks and almost to the 97th percentile at approximately 40 weeks, which was around the time of his discharge; (3) his head circumference then stopped expanding for a brief period, falling back under the 90th percentile by approximately 42 weeks; and (4) then measured well above the 97th percentile line beginning at approximately 44 weeks, which corresponds to his visit to the pediatrician on December 14 and subsequent hospitalization.

         Father's testimony was more limited. He testified that he learned infant CPR in the Navy and performed it on O.P. on December 10 when he "heard no breathing." When the paramedics arrived, O.P. "was breathing, crying, and he seemed back from where he was." The paramedics "indicated that they didn't seem that there was a continuing emergency" and that a baby crying following CPR "is the best sound you can hear."

         On January 10, 2019, the court issued a second memorandum opinion and order in which it made findings of fact including the following:

• Following the December 10 choking/not breathing incident, O.P. was checked by the paramedics "and determined to be normal." "The EMT narrative clearly indicates" that transport to the emergency room "was advised for 'evaluation' and not for emergency treatment, as the EMT's found the child's condition on the scene to be normal."
• The Department "did not produce the pediatrician at either review hearing."
• Dr. Goldstein, as relayed through Mr. Kay, "characterized his findings . . . as being 'consistent' with abusive head trauma, 'in the absence of plausible explanation.'" However, Mr. Kay "acknowledged that he made no inquiry of Dr. Goldstein about what other scenarios would be 'consistent' with [O.P.'s] condition" nor did the Department undertake efforts "to investigate the care of [O.P.] while in ...

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