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In re R.S.

Court of Special Appeals of Maryland

August 28, 2019

IN RE: R.S.

          Circuit Court for Worcester County Case No. 23-I-16-000012

          Fader, C.J., Friedman, Zarnoch, Robert A. (Senior Judge, Specially Assigned), JJ.

          OPINION

          FRIEDMAN, J.

         The primary issue in this appeal is whether the Interstate Compact on the Placement of Children ("ICPC"), codified at Maryland Code, Family Law ("FL") sections 5-601 through 5-611, applies to a juvenile court's placement of a child with an out-of-state, noncustodial parent. R.S., the child at the center of this CINA[1] appeal, requested that she be placed in the care of her noncustodial father-a Delaware resident-after the juvenile court sustained allegations that her mother neglected her. But in reliance on the ICPC, the juvenile court refused to award father custody of R.S. because a single social worker in Delaware concluded that he was not an appropriate placement option. After the negative ICPC assessment by Delaware, the juvenile court and the Worcester County Department of Social Services ("WCDSS") treated R.S.'s paternal grandparents as the child's only viable placement option.

         Only after R.S. and father took an initial appeal challenging the juvenile court's reliance on the ICPC-an appeal that this Court dismissed as interlocutory-did WCDSS change its final recommendation to joint custody of R.S. shared by father and the paternal grandparents. As a result, at a final CINA review hearing, the juvenile court granted father and the paternal grandparents joint legal and physical custody of R.S. over the child's objection that her father, as a fit parent, was entitled to sole custody. R.S. now challenges that joint custody award, arguing that it was tainted by the juvenile court's and WCDSS's improper reliance on the ICPC to deny father custody of her earlier in the CINA proceeding.

         Because we hold that the ICPC does not apply to the juvenile court's placement of a child with an out-of-state biological parent, we vacate the juvenile court's final custody order and remand the matter for further proceedings.

         BACKGROUND

         In November 2016, WCDSS removed two-year-old R.S. from the care of her mother, placed the child in shelter care, and filed a petition with the juvenile court alleging R.S. was a CINA due to mother's neglect. WCDSS informed the juvenile court that mother had identified T.S., [2] a resident of Delaware, as R.S.'s father, although it appeared she had never told him about the existence of the child. WCDSS notified father of the upcoming adjudicatory hearing.[3]

         At the December 2016 adjudicatory hearing before a magistrate for juvenile causes, [4]T.S. appeared.[5] He informed the magistrate he had learning disabilities, so he had his father with him for assistance. WCDSS noted that T.S., while named a party in the case, had only just learned that R.S. might be his daughter. He was willing to take a paternity test, which the court ordered. The magistrate and all parties agreed that the court could adjudicate the petition allegations but should wait to complete the final disposition hearing until the paternity test results were received. The magistrate repeatedly pointed out that the CINA petition allegations "have nothing to do with [father, ]" a point echoed by WCDSS. After sustaining the petition allegations concerning mother's neglect of R.S., the magistrate emphasized that "if, in fact, [T.S.] is determined to be the father of [R.S.] then of course he is a party of the case and has all of the rights and responsibilities, at least according to the Court and state, that a biological parent has."

         At a disposition hearing in January 2017, the juvenile court found T.S. to be R.S.'s biological father after receiving the paternity test results. The court ordered WCDSS to provide father substance abuse and psychological evaluations, as well as parenting classes. The court also ordered a homestudy to be completed for the paternal grandparents' home and directed WCDSS to conduct a family involvement meeting with the parties. The court granted father supervised visits with R.S. and indicated the visits could be unmonitored once father demonstrated his ability to care for R.S. The court continued the disposition hearing to give father a chance to prove his fitness to parent R.S.[6]

         In its report for the continued March 2017 disposition hearing, WCDSS indicated that father had attended every scheduled weekly visit with R.S., who was slowly adjusting to her new relationship with him. WCDSS noted that father willingly accepted guidance and direction to improve his interactions with R.S. He successfully completed mental health and substance abuse evaluations and was not told he needed any treatment. He also maintained stable, appropriate housing and employment. WCDSS further reported that father and the paternal grandparents agreed during a January 2017 family involvement meeting to undergo an ICPC[7] homestudy so that R.S. could be placed with them in Delaware.[8] A court order was needed to expedite the homestudy. WCDSS asked the court to continue the disposition hearing so the ICPC process could be completed.

         At the hearing, R.S.'s counsel argued that R.S. was not a CINA because the petition allegations only concerned mother's neglect of R.S. and the evidence showed father was willing and able to care for the child. As a result, counsel asked the magistrate to dismiss the case and place R.S. in father's care pursuant to CJ § 3-819(e), [9] asserting that the ICPC did not apply. The magistrate responded that when it adjudicated the petition, "that [was] an adjudication of the child for purposes of facts sustained against both parents, even if the father was not involved in it, even if there were no allegations specifically against him."[10]The magistrate stated the relevant question was whether a parent was "able or willing to give proper care and attention at the time of adjudication," and concluded the ICPC applied now that the case was at disposition. The magistrate then stated that she already knew father's position on these issues. In response, father asked the court to issue an order expediting the ICPC homestudy.

         In a June 2017 report, WCDSS reported that father was having weekly unsupervised visits with R.S. and completing a parenting course with WCDSS. He had never missed a visit with R.S., who now accepted him as her father. R.S. told father she loved him, gave him kisses, and wanted to talk with him on the telephone. R.S. was also staying overnight with father on the weekends at the paternal grandparents' home, where father lived. The Delaware social worker who was completing the ICPC homestudy informed WCDSS, however, that she would be denying father as a placement option. The social worker was concerned about father's "memory loss," noting that he sometimes forgot to follow up with her. She opined this "disability" would impede him in following through with appointments for R.S. The Delaware social worker concluded the paternal grandparents, instead, would be an appropriate placement and was working on completing their homestudy. As a result, WCDSS recommended that the court adopt a plan of relative placement with the paternal grandparents and order reunification services for the parents.

         At the June 2017 final disposition hearing, R.S.'s counsel repeated that father was entitled to custody of R.S. under CJ § 3-819(e) and that the ICPC did not apply to the placement of a child with a noncustodial parent. Father also argued that he was willing and able to care for R.S., disputed that he had any memory issues that would interfere with his ability to care for her, and requested custody of the child. WCDSS argued the ICPC applied for purposes of disposition. The magistrate said she agreed with R.S.'s counsel that a child is not a CINA if the court finds one parent fit. But the magistrate emphasized that the petition allegations were sustained in December 2016 when father had no relationship with R.S., and the magistrate concluded it would have been inappropriate to give custody of R.S. to father at that time. Turning to the current circumstances, the magistrate stated, "[A]t this point for me to go back and say dad is fit and we should dismiss the CINA I think is simply, it's not what reality is for us today." The magistrate went on, "I make no finding as to [father's] ability to care for this child." The magistrate noted that the ICPC worker in Delaware, however, concluded that father was "not an appropriate caregiver." As a result, the magistrate concluded that R.S. was a CINA, recommended out-of-home placement in foster care coupled with 28-day-long visits for R.S. in the paternal grandparents' home, and set the matter for a permanency plan hearing.[11]

         In August 2017, WCDSS reported that it was providing reunification services to mother and the paternal grandparents; no mention was made of reunification services for father. R.S.'s 28-day-long visits in the paternal family home were going well. WCDSS observed that R.S. was particularly happy on these extended visits to see father, whom she called "'daddy.'" WCDSS recommended that R.S.'s permanency plan be relative placement with the paternal grandparents pending final ICPC approval from Delaware.

         At the August 2017 permanency plan hearing, R.S.'s counsel argued once again that R.S. should be placed in father's sole custody. Counsel repeated that the court had not found father unfit and that the ICPC should not apply to fit parents. The magistrate agreed that father had always been "compliant" and had "jumped right in." But the magistrate found the ICPC applied to R.S.'s possible placement with father as soon as R.S. was "adjudicated a CINA and the Court took jurisdiction." The magistrate concluded that R.S. should be placed for custody and guardianship with the paternal grandparents once the ICPC homestudy was completed, commenting that father could proceed with a custody complaint in Delaware later.

         At a November 2017 review hearing, WCDSS informed the magistrate that it was still awaiting final ICPC approval from Delaware for placement of R.S. with the paternal grandparents. WCDSS's report again noted that father had "complied with all that has been asked of him." R.S.'s counsel repeated that father should be granted custody of R.S. and that the ICPC did not apply to the placement of R.S. with father. Father also asserted that he was "ready, willing, and able to care for" R.S. The magistrate acknowledged that the case was "a little dicey when it comes to" father because he was fully compliant with all the court orders. The magistrate, however, noted that father "got into the case a bit late" because his biological paternity was not established when the case began. The magistrate continued the matter for receipt of the final ICPC report.

         After receiving final ICPC approval from Delaware, WCDSS asked the magistrate at a December 2017 hearing to grant the paternal grandparents custody of R.S. and to retain jurisdiction over the child until Delaware recommended closing the case. Father and the paternal grandfather testified that father was fit and able to care for R.S. R.S.'s counsel repeated that the ICPC should not have been applied to father and raised constitutional objections. The magistrate again pointed out that R.S. had been "adjudicated CINA" in December 2016 before father's paternity was established, and the court could not "backtrack" on that finding. The magistrate recognized that after the adjudication, "investigatory services"[12] were used to see "if there is a fit parent out there." But the magistrate emphasized that father had not appealed the denial of his ICPC homestudy in Delaware and that the magistrate could not "overrule" Delaware's conclusion. The magistrate indicated she might "agree" as to father's fitness but noted that R.S. had already been deemed a CINA. The magistrate recommended that R.S. be placed with the paternal grandparents, found that father had made "excellent" progress, and recommended he receive daily unsupervised contact with R.S. as often as possible.

         Father and R.S. filed exceptions to the magistrate's recommendation that custody of R.S. be given to the paternal grandparents, asserting that the ICPC should not have been applied to deny father custody of R.S. After a February 2018 hearing, the juvenile court denied the exceptions and adopted the magistrate's findings and recommendations in full. The juvenile court concluded that R.S. and father waived any objection to the application of the ICPC in the case by not taking exceptions to the magistrate's earlier recommendation ordering an ICPC homestudy. In addition, the juvenile court found that the ICPC applies to the placement of a child with an out-of-state parent. The court concluded the ICPC was the only avenue for WCDSS to obtain information about father and observed that "no substantive information presented by either father or child['s] counsel … served as a viable alternative for the … ICPC home study."

         Father and R.S. appealed the juvenile court's order denying their exceptions, but on January 14, 2019, this Court dismissed the appeal because it was an impermissible interlocutory appeal.[13] In re R.S., No. 33, Sept. Term 2018, Slip Op. at 1-4 (filed Jan. 14, 2019) ("R.S. I").[14]

         Upon remand, the juvenile court held a final review hearing on January 24, 2019. WCDSS's report for the hearing recommended that the court grant custody of R.S. to the paternal grandparents based, in part, on observations of the Delaware social worker-the worker who had denied father's ICPC homestudy-that R.S. was thriving in their care. While not changing her ICPC assessment, the Delaware social worker acknowledged that "'[R.S.] and her father have an inseparable bond.'" At the hearing, WCDSS orally amended its recommendation and asked the court to grant father and the paternal grandparents joint custody of R.S. R.S.'s counsel objected.

         A WCDSS social worker testified that father and the paternal grandparents wanted to be granted joint custody of R.S. She testified that she had never seen any evidence that father was unfit or that he should not have sole custody of R.S. Father testified that he preferred sharing custody of R.S. with his parents because he needed their support raising her. But he testified his parents would still help him care for R.S. if he were granted sole custody of the child. The paternal grandfather testified that father was fit and proper and that he would have no problem with father being granted sole custody of R.S.

         In issuing the requested order of joint custody, the juvenile court found father fit and proper and said it was confident father could care for R.S. if granted sole custody of the child. The court, however, said that it did not understand why R.S.'s counsel objected to the joint custody arrangement because the child "doesn't care about" and "isn't affected by the legal status of the people in her life." R.S., through counsel, timely appealed the juvenile court's custody order.

         DISCUSSION

         R.S. asks us to determine whether the ICPC applies to a juvenile court's out-of-state placement of a child with a noncustodial parent, particularly a parent who has not been found to have abused or neglected the child. This is a matter of first impression in Maryland and an area of significant disagreement among the states that have addressed it. For the reasons discussed below, we hold that the ICPC does not apply to parental placements at all.[15] While we conclude that the statutory language requires this outcome, we also note that the broad application of the ICPC to parental placements in CINA proceedings advocated by WCDSS would have significant constitutional ramifications.

         I. Mootness And Waiver

         We must first dispel the mootness and waiver arguments pressed by WCDSS. WCDSS argues that the issue of whether the ICPC was incorrectly applied to deny placement of R.S. with father is now moot because, at father's request, the juvenile court granted him joint custody of R.S. with the paternal grandparents and terminated the CINA proceeding. "A case is moot when there is no longer an existing controversy when the case comes before the Court or when there is no longer an effective remedy the Court could grant." Suter v. Stuckey, 402 Md. 211, 219 (2007). We conclude, however, that there continues to be an existing controversy about the proper terms of the final custody order and that the matter, therefore, is not moot.

         In particular, R.S.'s counsel, acting in the child's best interest, has consistently taken the position that father should have been granted sole custody of R.S., a request she repeated at the January 24, 2019 final review hearing. R.S.'s requests that her father receive sole custody of her under CJ § 3-819(e) were repeatedly denied because the juvenile court found that the ICPC applied to the placement of R.S. with father and that, therefore, the court had to defer to the Delaware social worker's assessment that father was not a suitable placement option. As a result, WCDSS and the juvenile court treated the paternal grandparents as if they were the only viable placement option for R.S.

         To be sure, at the January 24, 2019 hearing WCDSS backtracked from its position that father was not entitled to custody of R.S. at all, seemingly because of its concession before this Court in the prior appeal that Delaware's views on father's fitness should not be afforded dispositive weight in a Maryland proceeding.[16] R.S. I at 1 n.3. But WCDSS continued to recommend that the paternal grandparents be granted custody of R.S., as well, based on the views of the same Delaware social worker who had denied father's ICPC homestudy. That is, father was never seriously considered by WCDSS (or the juvenile court) as deserving sole custody of R.S.

         Stated differently, we agree with R.S. that the recommendation of joint custody with the paternal grandparents likely would have never been on the table at the January 24, 2019 review hearing but for the juvenile court's application of the ICPC to R.S.'s possible placement with father earlier in the case. See In re Joseph N., 407 Md. 278, 304 (2009) ("This CINA appeal is not moot because a controversy is alive when the subsequent review hearing order may have been influenced by an error made in the earlier review hearing order."). WCDSS claims there is no causal link between the ICPC homestudy ordered on father and the ultimate joint custody award by emphasizing that father chose joint custody at the final review hearing, consistent with his "fundamental right" as a parent "to make decisions concerning the care, custody, and control" of R.S. Troxel v. Granville, 530 U.S. 57, 66 (2000) (emphasis added). But from our view, this was a false choice given that WCDSS never accorded father's fitness due consideration by recommending that he was entitled to sole custody of R.S. unless, as a fit parent, he alone preferred a different arrangement. Thus, we are not persuaded that father's "request" for joint custody at the final review hearing undermines a conclusion that there remains an existing controversy between the parties.[17]

         Finally, we reject WCDSS's assertion that R.S. waived her right to challenge on appeal the juvenile court's application of the ICPC to her requests for placement with her father. WCDSS suggests R.S. waived this issue because she failed to notice appeals from the initial permanency plan order, the dispositional order declaring her a CINA, or the order directing the ICPC homestudy of father. But WCDSS does not dispute that these earlier orders were interlocutory in nature. See In re Katerine L., 220 Md.App. 426, 437-40 (2014) (recognizing that many orders in CINA proceedings-proceedings that often span years and involve ongoing intervention by the court, including the revisiting of earlier orders- will not meet the conventional definition of a final judgment). Thus, as WCDSS conceded at oral argument, while R.S. may have had the right to appeal some or all of these orders under CJ § 12-303(3)(x) (allowing interlocutory appeals from orders "[d]epriving a parent, grandparent, or natural guardian of the care and custody of his child, or changing the terms of such an order"), she was not obligated to appeal them to preserve her current appellate challenge. Namely, "[o]n an appeal from a final judgment, an interlocutory order previously entered in the action is open to review by the Court unless an appeal has previously been taken from that order and decided on the merits by the Court." Md. Rule 8-131(d). Because we dismissed R.S.'s prior appeal, we have not issued a merits decision on the ICPC question. R.S. I at 1-4. There also can be no real dispute that, at every turn, R.S. asked the juvenile court to place her in her father's sole custody and asserted that the ICPC should not apply to that placement decision. Thus, we hold that this appeal is not moot, nor has R.S. waived the arguments that she presents.

         Accordingly, we now turn to the question of whether the ICPC controls the juvenile court's out-of-state placement of a child with a noncustodial parent.

         II.Application Of The ICPC To Out-Of-State Placements ...


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