Circuit Court for Anne Arundel County Case No.
C.J., Meredith, Friedman, JJ.
first determine the correct standard of proof for a juvenile
court to apply to a petition for continued shelter
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").
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.
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.
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.
Department's First Petition for Continued Shelter
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
• 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
• 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
• 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."
same day, December 26, a juvenile magistrate held a hearing
and granted the Department's request for an order
continuing shelter care pending adjudication.
First De Novo Shelter Care Hearing
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. 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
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."
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
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.
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."
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.
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."
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. 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.
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.
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
Juvenile Court Proceedings
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
• 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
• When seen on December 14, O.P. had "sunsetting of
his eyes" as well as the "increased head
circumference" that were "concerning for
hydrocephalus, which was not present at prior
• O.P.'s birth records, also newly-received,
"indicate that [O.P.'s] head was examined and
determined to be normocephalic and atraumatic 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
• At O.P.'s appointments with his pediatrician on
November 27 and December 5, his "head was described as
normocephalic and atraumatic."
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."
Second De Novo Shelter Care Hearing
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.
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
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."
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.
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
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."
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
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.
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.
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."
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."
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.
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."
January 10, 2019, the court issued a second memorandum
opinion and order in which it made findings of fact including
• 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 ...