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In re R.S.

Court of Special Appeals of Maryland

August 28, 2019


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          Circuit Court for Worcester County, Case No. 23-I-16-000012, Mary M. Kent, Judge.

         Argued by Deborah A. Ullmann, Pocomoke City, MD, for Appellant.

         Argued by Janet Hartge (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

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


         Friedman, J.

         [242 Md.App. 344] 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

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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.

         [242 Md.App. 345] 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.


         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 [242 Md.App. 346] 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

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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 [242 Md.App. 347] 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

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the relevant question [242 Md.App. 348] 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 [242 Md.App. 349] 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.

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          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 [242 Md.App. 350] 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 [242 Md.App. 351] 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

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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 ...

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