In re Barry E.

WILNER, Chief Judge. Appellant, the mother of four young children, appeals from certain orders of the Juvenile Division of the District Court ²¹⁰ for Montgomery County respecting the custody of those children and her right of visitation with two of them. With one modification, we shall affirm the challenged orders. FACTUAL BACKGROUND Court involvement with the family began in April, 1993, when the county Department of Social Services (DSS) filed petitions to have the children—Barry (age 7), Clementyne (age 6), and Kristyne and Miriam (twins, age 4)—declared children in need of assistance (CINA).

The petition was based on allegations by appellant, confirmed through preliminary discussions with the children, that, on one occasion several months earlier, the father had sexually abused Clementyne, Kristyne, and Miriam by having them squeeze his penis as he lay naked in bed. The day the petition was filed, the court held a shelter care hearing, committed the children to DSS for placement with appellant, ordered the father not to have any contact with the children or the family home, and ordered psychological evaluations of the father and the children. On May 19, 1993, at DSS’s request, an emergency hearing was held, following reports that the father had violated the no-contact order by calling the house on one occasion and that appellant had threatened to burn down her house because of some disagreement with DSS regarding who was to conduct the psychological evaluations. As a result of the hearing, appellant was ordered to have a psychiatric evaluation, to meet with her psychiatrist weekly, and to take the medication prescribed by the psychiatrist.

The commitment, placement, and no-contact provisions in the April order were retained. The father continued to violate the no-contact order by calling the house on several occasions, as a result of which a petition was filed to hold him in contempt. The next hearing was on October 14, 1993. It comprised an adjudicatory hearing on the CINA petition, a temporary disposition hearing, and a hearing on the contempt petition. ²¹¹ Between May and October, both parents and the children underwent psychiatric or psychological evaluation.

The father, evaluated by Dr. David Fago, was found to be “very disturbed” and “unpredictable.” Dr. Fago concluded that the female children had been molested on numerous occasions and that the father continued to present a danger to the children. Dr. Alan Brody, the psychiatrist who examined appellant and the four children, concurred that the three girls had been the subject of molestation on more than one occasion. In reports forwarded to the court in July, 1993, he concluded that appellant appeared to be suffering from “a schizophrenic like illness” that “clearly interferes with her effectiveness as a parent,” that Barry had an “Adjustment Disorder with a Depressed Mood,” and that the three girls were each suffering from a post traumatic stress disorder. There was evidence that the father continued to violate the no-contact restriction and that, on one occasion, he accompanied appellant and the children to a school carnival.

At the conclusion of the hearing, the court found the children to be in need of assistance, continued the commitment to DSS and their physical placement with appellant, ordered that appellant have no contact with the father and that the father have no contact with the children, directed appellant to continue in therapy, and ordered psychological evaluations of appellant and the children. The court also found the father in contempt and sentenced him to 18 months in the county detention center. None of these decisions are challenged in this appeal. Four disposition hearings were subsequently held—on February 23 and 28, April 20, and August 5, 1994, followed by a review hearing on February 1, 1995.

Prior to the first hearing, appellant was evaluated by Dr. Silvia Petuchowski, a psychologist, who prepared an extensive report. That report, supplemented by Dr. Petuchowski’s testimony, was presented at the February 23 hearing. She regarded appellant as having poor judgment and insight, noting that, on several occasions, appellant threatened to buy ²¹² a gun and “shoot everybody” if her children were removed. Responses to tests and the evaluation process revealed “the display of most maladaptive and primitive defenses, such as undoing, denial, projection, delusions of persecution, delusions of grandiosity, and auditory hallucinations.” She copes with stress, the report said, not through systematic problem solving but by denial and absenting herself from the problem.

In her report, Dr. Petuchowski opined that the children “are not currently adequately protected and guided” and did not “live in a world structured enough to allow adequate space for personal psychosocial development.” She testified at the hearing that the children were not in immediate danger, so long as they were kept away from their father, but she seemed to imply that significant therapeutic intervention was required for appellant to be able to keep them safe and functioning. No substantive decisions were made at the conclusion of the February 23 hearing, which was devoted solely to the testimony of Dr. Petuchowski and reception of the various reports. When the hearing resumed on February 28, Andrew Bourke, a DSS case-worker, recounted some of the history of the case. He noted concern over the episode when, with appellant’s apparent connivance, the father joined the children in the trip to the carnival.

He said that appellant had lied to him about that event, telling him that the man accompanying them was not her husband, and that she had coached the children to express a similar denial. Subsequently, when he learned that the father had been released from detention in late January, he called appellant to notify her and to impress on her the need to enforce the no-contact order. She responded that the father had $1,000 in the bank and that, if he paid her $500, she would allow him to see the children. Bourke opined that appellant did not seem to understand the danger presented by the father.

Bourke testified that the children were at risk of further abuse by the father because appellant was unable to sustain the no-contact order and that there was no practical way DSS could monitor the situation in the home. Based, in part, on ²¹³ Dr. Petuchowski’s report, he recommended that the children be placed in foster care and that there be no visitation with appellant for the time being. With some ambivalence, Dr. Petuchowski, who had met with appellant after the last hearing, agreed. She said that “[t]he state of affairs as it is, is not conducive to a safe environment.” At the conclusion of the hearing, the court, crediting the testimony and reports of Dr. Petuchowski, found that the children would be in danger if left with appellant.

It ordered that the commitment to DSS be continued but that the children be placed in foster care. It further ordered that there be no visitation with appellant until she submitted a report from her psychiatrist (who had earlier recommended that the children remain with appellant), and that appellant refrain from any contact with the court, Dr. Petuchowski, or Mr. Bourke. 1 That order, with one modification, was confirmed by the court on March 23, 1994. On April 20, 1994, the court held a third disposition hearing. 2 Stephanie Kaczman, the social worker who had been dealing regularly with the children since December, testified to a considerable improvement in their manner and behavior and to their positive adjustment to foster care. She recommended the prompt beginning of supervised visitation with appellant, starting twice a month and increasing to weekly.

Dr. George Saiger, appellant’s treating psychiatrist, testified that appellant was on a new medication and had made progress. He felt that she could be reunited with the children right away—that appellant was able to deal with them and would not harm them. Following that hearing, the court entered an order providing for bi-weekly supervised visitation ²¹⁴ but otherwise confirming the February 28 order. Another hearing was scheduled for June 16, 1994.

The next actual hearing took place not on June 16, but on July 8,1994. On July 1, however, the court, without notice to appellant or her attorney, or even to the attorney appointed for the children, met with the children in the courtroom. The only other people present were the foster mother and a DSS social worker. The meeting was recorded, although parts of the conversation were inaudible and the transcript does not clearly identify which of the children is talking at any particular time; each of the girls is identified only as Ms. E. During the meeting, one of the girls—apparently Clementyne, although it is not clear—said she wanted to live with appellant.

Another child—either Kristyne or Miriam—in response to questioning from the court and in the presence of the foster mother, replied that she wanted to live with the foster mother. This was followed by the question, “Do you like visiting with your mother,” to which the child replied, “Kind of.” We can find no indication from the other child of her feelings about visitation; her response to the question from the court, according to the transcript, was “unclear.” The judge concluded that the twins “don’t want to visit with their mother,” although we can find nothing in the transcript to support that conclusion. After the children left the courtroom, the social worker told the court that the twins did not want to visit with appellant. This, of course, was not under oath and was not subject to cross-examination.

Appellant’s attorney learned from the DSS attorney about the meeting and, at some point, entered the courtroom. She objected to the proceeding and to the fact that she had received no notice of it. The judge replied that she had not intended for anyone to be present except the social worker or the foster mother and the children. She regarded the proceeding as a chambers conference, from which the attorneys could and would be excluded.

Counsel responded that she had no objection to being excluded from the courtroom so long as (1) she had notice of the proceeding, and (2) the proceeding ²¹⁵ was recorded. The court seemed to acknowledge the validity of those two conditions. At the hearing on July 8, Dr. Thomas Reynolds, a psychiatrist who had examined appellant at Dr. Sager’s request, testified that she had a “schizotypal personality,” which was treatable. He noted that her relationship with the father was over—apparently the two had been divorced—and that she was “quite able” to protect the children from their father.

After listening to his testimony, the court adjourned the hearing until August 5, 1994. At the resumed hearing, Dr. Reynolds was cross-examined, and Ms. Taliaferro, a DSS social worker, testified about the last two visits between appellant and the children, which did not go well. On the first of the visits, appellant got into an argument with one of the twins, Miriam, as a result of which all of the children became upset. On the second visit, two weeks later, the twins did not want to go at first.

On the way home, Miriam refused to buckle her seat belt. Summarizing the various reports and evidence the court found relevant, it concluded that the children should remain in foster care with supervised visits at least once a week. Though not specified in any order entered by the court that we can find in the record and not mentioned in the docket entry, the transcript reveals that the court told the social worker to give the twins the “casual option” of refusing to go on the visits. As noted in footnote 2, supra, the court declared this to be the final disposition hearing.

A review hearing was scheduled for February, 1995. On January 18, 1995, the court again met with the children without any notice to appellant or her attorney and without formal notice to counsel for the children. It appears that the only persons invited to this conference were the children and the social worker, Ms. Taliaferro. The proceeding was not even noted on the docket.

Once again, appellant’s attorney happened, by chance, to be in the courthouse and did, at some point, enter the room. She said later that she could not hear the entire conversation, and, indeed, although the proceeding ²¹⁶ was recorded, a good part of it is not reflected in the transcript. 3 It is not clear where the participants were in the room or whether the conversation between an individual child and the judge was audible to anyone else. During that conversation, the judge asked the children whether they wanted to continue visiting with appellant and assured at leat,t one of them that, if she and the other children did not wish to visit, it was all right and the judge would not require that they do so. 4 The judge also told the child that appellant’s “mind doesn’t think straight.” Just prior to the February 1 hearing, appellant moved that the judge recuse herself. The motion, though docketed, is not in the record extract.

At the beginning of the February 1 hearing, counsel noted that the motion was based on the January 18 meeting with the children and counsel’s perception that the judge was no longer able to be fair and impartial. Counsel for the children also complained that “if you are going to meet with the children, to the exclusion of everyone else, that my role as counsel for the children is somewhat superfluous....” The judge denied the motion. In doing so, she indicated that she too was not aware that the conference was to take place—that it had apparently been arranged between the social worker and the judge’s secretary and she assumed that everyone had received notice of it. She nonetheless defended ²¹⁷ the practice of meeting with the children privately, so long as the conference is recorded.

In the end, she declared that she had no ill feelings about appellant and would act in the best interest of the children. Having disposed of that motion, the court announced that it had a very limited amount of time. Counsel for appellant asked the court to hear from Dr. Saiger, appellant’s psychiatrist, about the need for more meaningful visits to assist in reunification efforts. The court said that it did not need to hear from him, as (1) he had testified at the disposition hearing and it would be a “waste of time” to hear again that the children should be reunited with appellant immediately, and (2) as Dr. Saiger was not present at any of the visits that had occurred, he had no relevant information to impart regarding them.

The court then heard from the DSS social worker, Ms. Taliaferro, and admitted her progress report on the children. The progress report indicated that, since the August hearing, there had been 21 scheduled visits, all at local parks or fast food restaurants, that Barry had attended 19 of