In Re Danielle B. & Deon A.

BISHOP, Judge. I. FACTS During the afternoon of February 23, 1987, Officer Robert Ward of the Baltimore City Police Department responded to a call from 13 year old Danielle B. who alleged that she was the victim of child abuse. Danielle, who was pregnant and suffering from a venereal disease, met with the officer in the parking lot of a shopping center where she gave him a report. She told the officer that her step-father beat her frequently and that she was afraid to go home.

She told Officer Ward that earlier that afternoon her stepfather had hit her in the chest and had beaten her around the buttocks with a leather belt; however, the officer, who did not conduct a physical examination, later testified that he did not observe any scars or bruises on Danielle. Officer Ward transported Danielle to a police station and, after further questioning, Danielle revealed that sometime during late November 1986, her step-father placed his hand inside her panties and put “passion” marks on her neck. The officer called the Department of Social Services (the Department) who took custody of Danielle. ⁴⁴ The following day, the Department filed a CINA 1 petition on behalf of Danielle. The petition alleged that she was the victim of physical and sexual abuse.

It also stated that the Department had placed Danielle in shelter care. Later that day, an emergency shelter care hearing was conducted by the juvenile master. 2 The master ordered that Danielle remain in shelter care pending the outcome of an adjudicatory hearing. She also ordered that the Department interview Deon A., Danielle’s eight year old half-brother, and that the Department give Danielle pregnancy counseling. On February 24, 1987, Deon told the Department that he, too, was physically abused by his step-father and that he had observed his step-father beating Danielle.

As a result, the Department placed Deon in shelter care as well. The next day, February 25, 1987, the Department filed a CINA petition on behalf of Deon. An emergency hearing was held that day and the master ordered shelter care continued pending the outcome of an adjudicatory hearing. An adjudicatory hearing for both children was conducted before a master on four separate days: March 17, 1987; April 2, 1987; April 27, 1987 and May 12, 1987.

The Department presented testimony from four witnesses: Officer Ward, Danielle, Deon and Ms. Peggy Shumate, Deon’s therapist. Danielle testified that her step-father had lived with her mother since September of 1986, when they were married. Danielle testified that several incidents of physical and sexual abuse were inflicted upon her from the time of her step-father’s arrival until February 23, 1987, the day that she was removed from her home and placed in shelter care. She also testified that on one occasion, when she began cleaning the family’s living room and wanted to clean the tables before cleaning the floor, her step-father insisted that she clean the floor first.

When she refused, he slapped ⁴⁵ her face. On another occasion, her step-father wanted a hug and a kiss and when Danielle refused, he threw her to the floor, climbed on top of her, sat on her stomach with his knees pinning her arms to the floor, and slapped her face. Danielle attempted to escape and yell for help, but neither her mother, who was upstairs, nor her step-father’s brother, Joe, who was standing nearby, came to her aid. The step-father placed plastic rollers in Danielle’s mouth and slapped her face several times to quiet her.

Joe told the step-father that he was being too rough and the step-father released Danielle. Danielle told her mother what had happened, but her mother said, “we’re even because of what [you’ve] done”. Danielle testified that when she observed her step-father beat Deon across his back with a leather belt, she started screaming and ran from the room. Her step-father ran after her, caught her, beat her across her legs and side with a belt and forced her to return to the room to watch Deon’s beating.

On another day, in the presence of her mother, the step-father put Vaseline on Danielle’s exposed breasts so he could do a “suction”. Danielle did not know what a “suction” was, but she did not want her step-father to perform one again. The next night, when the step-father attempted to do another “suction”, Danielle refused and ran to her mother. The stepfather became angry and threw a bottle at Danielle.

The bottle did not hit her. She also reported that her step-father took her to a dentist and while in the dentist’s office, with several people present, including the dentist, the step-father placed his hands inside her panties. On another occasion, the step-father put “passion” marks on Danielle’s neck while in the presence of her mother who did nothing. Danielle told the master that she became pregnant by Joe, her step-father’s brother, who had resided temporarily with Danielle’s family for an unknown length of time.

She said Joe would frequently awaken her in the middle of the night and have sex with her. Her step-father and mother were usually at home while this occurred, although Danielle ⁴⁶ admitted that they might not have been aware of Joe’s behavior. Danielle admitted that she never told anyone about Joe’s sexual relations with her. 3 On February 23, 1987, the day she spoke with Officer Ward, Danielle looked into her mother’s purse to get Deon’s father’s phone number. 4 The step-father discovered that Danielle had gone into the purse and became angry. Danielle told the step-father that she “wasn’t comfortable being around him” but could not explain to him why.

The step-father told Danielle to take off her clothes and he beat her on her side and back with a belt. He also pinched Danielle’s chest, which left a mark. Afterwards, Danielle asked her mother if she could buy a pair of stockings and the mother told the step-father to give Danielle ten dollars to make the purchase. Danielle went to the shopping center and called the police and then talked to Officer Ward.

Danielle also testified, however, that she lied when she told her aunt that her aunt’s father had touched her in a sexually inappropriate way. Deon testified that incidents of physical abuse were inflicted upon him. On one occasion, the step-father beat Deon on his buttocks with a belt while Deon was wearing nothing but his underwear. The mother was present yet did nothing to stop the beating.

On another occasion, Deon received a beating from the step-father which resulted in the need for medical treatment. There were bruises but no bleeding. Danielle observed this beating. Afterwards, the ⁴⁷ step-father rubbed alcohol onto Deon’s bruises.

Again, the mother was present but did nothing. Deon was given these beatings because he had taken a watch from another boy at school and because he had taken $15.00 from his step-father’s drawer without permission. Deon stated, however, that he took his step-father’s money to make up the difference for items he was told to purchase but for which he was not given enough money. Deon also observed his step-father beating Danielle on several occasions.

Deon stopped calling his step-father “Daddy” after Danielle told him not to do so. The step-father gave Deon money for completing household chores. Deon acknowledged that his step-father treated him like a son and that he was good to him. Ms. Shumate, a family counselor assigned to Deon by the Department following Deon’s placement in shelter care, testified that Deon told her that, while naked, he had been beaten by his step-father with an extension cord or a belt and that the step-father later put alcohol on his bruises.

Deon also related that he had seen his sister beaten, that she was pregnant and that he had seen his step-father put hair rollers in Danielle’s mouth. Ms. Shumate indicated that she believed that any form of physical discipline is an inappropriate method of structuring children’s behavior. Ms. Shumate, however, specifically stated that she did not believe that beatings, in and of themselves, were the equivalent of child abuse. At the conclusion of the adjudicatory hearing, on May 12, 1987, the master recommended that the parents’ motion to dismiss the petitions be granted on the grounds that the Department had failed to make a “prima facie case” that the children were in need of assistance.

The master concluded that, “Danielle B. was not believable. I didn’t believe anything she said.” The master also concluded, “I got the impression that both children resent the relationship that the mother has entered into and I feel much of their ⁴⁸ testimony was fabricated.” 5 Later that same day, counsel for the children filed, on behalf of both of them, Notice of Exceptions to the master’s oral recommendations. One of the exceptions covered the dismissal issue and the second exception covered the master’s refusal to recommend continued shelter care. In each, the children asked specifically for de novo review of the master’s recommendations.

Also on May 12, 1987, following the master’s oral recommendations, the Department filed a single Notice of Exception which addressed both the dismissal and shelter care issues. 6 The Department specifically asked for “on the record” review of the master’s recommendation. On May 13, 1987, the Department filed a Notice of Exceptions which raised the shelter care issue and another which raised the dismissal issue. Each requested a hearing “on the record”, and each was stamped by the clerk as being received on May 13, 1987, at 12:59 p.m. These two exceptions filed by the Department on May 13, 1987, were the only exceptions considered by the juvenile court to have been filed timely. 7 The master’s report appears in the original court file and is dated May 13, 1987.

Based on its location in the file, it appears to have been filed on that date; however, there is no indication on the report and no docket entry reflecting either when or that the report was actually filed, though it is unquestionably a part of the record. Stranger still, the report states that it was mailed to the parties on May 19, 1987. 8 The children, however, concede that their exceptions ⁴⁹ were filed prior to the filing of the master’s report. The court found that the children’s exceptions were not filed timely and, therefore, it was not required to hold a de novo hearing.

II

ISSUES On July 14, 1987, the Circuit Court for Baltimore City (Mitchell, J.), sitting as a juvenile court pursuant to MD. CTS. & JUD.PROC.CODE ANN. § 3-801, et seq. (1984 Repl.Vol. and 1987 Cum.Supp.), dismissed the petitions of appellant, Baltimore City Department of Social Services which contained allegations that Danielle B. and Deon A. were “children in need of assistance”. 9 The children raise the following issue: 1. Whether the children forfeited their right to a de novo adjudicatory hearing before the juvenile court when the children’s formal exceptions to the juvenile master’s recommendations were filed in advance of the master’s written memorandum.

Both the children and the Department ask: 2. Whether the juvenile court impermissibly delegated its judicial authority to the juvenile master by affirming the master’s report in its entirety. ⁵⁰ 3. Whether the juvenile court’s dismissal of the CINA petitions was an abuse of discretion.

III

Issue 1 Timeliness The children ask whether their right to a de novo hearing was waived because their exceptions to the master’s recommendations were filed prematurely under Rule 911 c. 10 Rule 911 c states in full: c. Review by Court if Exceptions Filed. Any party may file exceptions to the master’s proposed findings, conclusions, recommendations or proposed orders. Exceptions shall be in writing, filed with the clerk within five days after the master’s report is served upon the party, and shall specify those items to which the party excepts, and whether the hearing is to be de novo or on the record.

Upon the filing of exceptions, a prompt hearing shall be scheduled on the exceptions. An excepting party other than the State may elect a hearing de novo or a hearing on the record. If the State is the excepting party, the hearing shall be on the record, supplemented by such additional evidence as the judge considers relevant and to which the parties raise no objection. In either case the hearing shall be limited to those matters to which exceptions have been taken.

(Emphasis added). As we have noted, the children’s exceptions were filed before the master’s report was filed with the court and, also contrary to the Rule, before the master’s report was served on them. ⁵¹ Dispositive of this issue is Atlantic Food v. City of Annapolis, 70 Md.App. 721 , 523 A.2d 648 (1987). In Atlantic we said: To file a motion “within ten days” of judgment logically implies that the party files the motion within a discrete ten day period beginning with the entry of final judgment. Consequently, a court may not entertain motions prior to that judgment. 70 Md.App. at 730 , 523 A.2d 648 .

We hold that “within five days” of the service of the Master’s report means that the motion must be filed within a discrete five day period beginning with the date of that service. 11 Since the children’s exceptions were not filed within that discrete five day period required by the Rule, the court was technically correct in its interpretation of the Rule but, as we hold herein, there is something more required of a juvenile court judge besides the technical application of the rules.

IV

Issue 2 Impermissible Delegation and Issue 3 Abuse of Discretion In the “Memorandum From Master”, dated May 13, 1987, but not mailed to the parties until May 19, 1987, the master formally recommended to the juvenile court that both petitions be dismissed. Rule 911 b in pertinent part requires the master to “transmit to the judge ... a written report of his proposed findings of fact, conclusions of law, recommendations and proposed orders with respect to adjudication ⁵² and disposition.” In the memorandum from the master dated May 13, 1987, the master advised the judge that “I dismissed 12 both petitions at the close of the Baltimore City Department of Social Services’ case for its failure to make out a prima facie case for the following reasons____” We set out hereafter the allegations contained in the petitions filed by the Department and the reasons given by the master for her disbelief. Danielle The petition filed on behalf of 13 year old Danielle contained the following allegations: a. On February 23, 1987, at approximately 4:16 p.m. the police received a call of suspected child abuse. b.

Danielle stated that at 4 p.m. her stepfather became upset with her and struck her in the chest with his fists and on her buttocks with a belt. c. Danielle alleged that stepfather has hit her several times in the past in the same manner but then applied an alcoholic substance so the scars and bruises would not show. d. Danielle stated that her mother fails to protect her from stepfather. e. Two aunts, Shirley and Janet, confirmed respondents’ allegations and said they had tried to speak to respondent’s parents, but without success. [The petition is not clear whether it was the abuse or the mother’s failure to protect which was confirmed.] f. .

Danielle alleged that stepfather put “passion marks” on her neck in November, and one time put his hand down her panties. g. The police then contacted the Department who took Danielle to Union Memorial where she was examined and released to shelter care. ⁵³ The basis for the master’s conclusion that the Department had failed to make a prima facie case was that “Danielle’s testimony was not believable”. In support of this conclusion the master provided eight examples. (a.) This thirteen year old made serious accusations of sexual impropriety on the part of one of the attorneys in this case.

After the necessary waiver, she conceded in camera that her earlier assertion to her attorney was not true. The first example is not included in the allegations; however, during the hearing, it was explained by Danielle to the apparent satisfaction of the master. After having discussed that issue in camera with Danielle the master made the following statement: THE COURT: I think your concern is groundless. I’ve talked to Danielle and Danielle basically just does not like this gentleman.

Initially she said that he had sexually abused her but then later she said basically what it is, she feels uncomfortable around him. She said that he stares at her and she said on one occasion he touched her neck. He has never said anything out of the way, but she just does not like him and she said she had told her stepfather previously that she didn’t like him and the stepfather wanted to know why and she could not give a reason. She simply said that she knows when a man is looking at her in a suggestive manner and she felt that____[counsel] might confuse her, and I indicated that he has a right to cross-examine her and other attorneys would be asking her questions also, so I think she should be allowed to testify.

(b.) After being interviewed by the involved officer about physical abuse later when at the station she spontaneously added that she had been sexually molested by her ⁵⁴ stepfather. Same officer testified that he saw no bruis- . es. 13 (c.) She testified that her stepfather put “passion marks” on her in the presence of her mother; he had placed Vaseline on her breast; he had attempted to kiss her and while in a dental chair, in the presence of others, the stepfather had placed his hands down her pants. Although we can find nothing in the record to refute Danielle’s testimony, the fact is that the master did not believe her. Whether this was error is a judgment for the trial court based on the standards which we discuss infra.

(d.) She told of having sex many times with stepfather’s brother in her home; however, neither her mother nor stepfather knew this to be the case. She confided in her maternal aunts about physical and sexual abuse by stepfather, but did not tell them about her involvement with stepfather’s brother. , The master apparently concluded that the mother and stepfather did not know about the alleged sexual abuse by the stepfather’s brother on the basis of Danielle’s testimony that she did not tell them. 14 Since the Department had the obligation of producing the testimony, we find it difficult to understand why the Department did not call the maternal aunts to testify. This is something that the trial court may wish to develop more fully. (e.), (f.) & (g.) Danielle testified that she had not had problems relating to her mother until her mother’s involvement with her stepfather; however, she testified that prior to this rela ⁵⁵ tionship she had lived with an aunt for an unspecified reason.

Danielle stated that her mother does not spend enough time with her children although she does help them with homework every now and then. Danielle told an aunt that her boyfriend had touched her on the neck but not in a sexual manner. Similarly, she told the court that an attorney in this case touched her on the neck and this was a sexual overture. (h.) When Danielle asked if she had stated that she had been sexually abused by others she retorted that she had said Lester had “messed” with her although this was a lie.

She stated she had told her stepfather plenty of lies. The fact that Danielle would make these admissions to the master should be considered by the trial court in evaluating the conclusion of the master that she did not believe the testimony. The master failed to mention that Danielle was pregnant, had a venereal disease and that she named the stepfather’s brother as the father. These are matters that should be considered carefully by the trial court.

Deon The petition filed on 8 year old Deon’s behalf alleged the following: a. The mother has failed to provide adequate care and protection for him and his sister. b. The petition refers to Danielle’s sheltering on February 23rd and her “confirmed physical and sexual abuse by the step-father”. c. At the February 24th shelter care hearing, Master Price ordered the mother and step-father to allow a Department worker to interview Deon.

Upon being interviewed, Deon stated that he had been physically abused by the stepfather. ⁵⁶ d. The mother has failed to protect Deon from beatings by the step-father with an extension cord and later applications of alcohol. e. Deon reported hearing Danielle being beaten. f. Deon’s maternal relatives [presumably his aunt’s Shirley and Janet] have tried to reach Deon’s natural father to advise him of the situation without success. g.

The Department has tried unsuccessfully to reach Deon’s natural father to determine his ability or willingness to provide care for Deon. The Master gave six reasons as the bases for her conclusion that Deon’s testimony was incredible. (a.) Dion [sic] testified that he had been beaten with a belt by his stepfather who in turn applied alcohol to his body. On cross-examination he stated he had been beaten because of bad reports from school and for stealing at school as well as at home.

(b.) Dion [sic] testified as if he had been coached to give certain responses. Those questions that he obviously could answer but did not want to, for whatever reason, he repeatedly and conveniently stated that he “might not remember” or that he “didn’t remember”. The record indicates the reason that Deon stated he “might not remember” or “didn’t remember”. The following exchange occurred between Deon and his attorney: Q Did you talk to me before we started court today?

A Yes. Q Did we talk about telling the truth? A Yes. Q Did I tell you that it was important to tell the truth?

A Yes. Q Did we talk about the times that you couldn’t remember? ⁵⁷ A Yes. Q Did you say to me that you might not remember some things? A Yes.

Q And did I tell you when it was right to say that you didn’t remember? A Yes. Q And what did I tell you about saying that you didn’t remember? A That I didn’t remember.

We suggest that upon remand the trial court consider these responses of an eight year old child and that he answered the questions as he had been instructed to do so by his attorney. (c.) & (d.) Dion [sic] indicated at times he liked his stepfather when they were having fun. Dion [sic] also testified that his sister had told him to stop calling their stepfather daddy. Because the juvenile court judge stated that “no standard exists for review of the recommendations by Master when an issue is presented to a Judge via an exception” we must conclude that he applied no standard to his review in the case sub judice and therefore erred, since there is a standard.

V. STANDARD OF REVIEW It is clear from the master’s opinion that her conclusion that the State had failed to prove a prima facie case was premised upon her not believing the children’s testimony. When faced with this, the circuit court was bound to review the facts as they were presented before making “his own independent disposition” of them. Wenger v. Wenger, 42 Md.App. 596, 604 , 402 A.2d 94 (1979). This involves a two-step process.

First, the court must look to the facts ⁵⁸ and the conclusions reached by the master. Second, the court must make its own judgment of what those facts mean. In the case sub judice, the court’s order is devoid of any factual review of the evidence presented before the master; its focus is purely procedural. This is not proper.

The factual review of the evidence presented to the master in which we have engaged in this opinion is the type of scrutiny the court should have undertaken. Had it conducted such a review, the court would then have been in the position to exercise its “prerogative of what to make of those facts — the ultimate disposition of the case.” Wenger, 42 Md.App. at 602 , 402 A.2d 94 . There is no indication on what the court’s decision to defer to the fact-finding of the master was premised, and upon what conclusion of fact it made its own independent determination that there was credible evidence to support the recommendation to dismiss the CINA petitions. Perhaps the court’s failure to engage in any factual review can be attributed to its mistaken belief that no standards exist for court review of the recommendations of a master.

Nonetheless, our conjecture regarding why the court may have acted as it did does not change our ultimate conclusion that the court acted in error. In adopting the master’s recommendation to dismiss the CINA petitions in the case sub judice, the trial court stated: No standard exists for the review of recommendations by Masters when an issue is presented to a Judge via an exception. When the question is one of law, clearly the Judge may decide whether that Master has erred. Not so clear is the case as here.

This bald assertion is clearly in error. In Wenger , we discussed the proper role of a judge in reviewing the recommendations of a domestic relations master and stated: When an appellate court, absent clear error, defers to a trial court, it defers not only to the fact-finding but to any legitimate verdict, disposition or judgment emanating from that fact-finding. The function of the chancellor vis-a-vis the master is quite different. He may, of course, ⁵⁹ order de novo fact-finding in whole or in part.

Where he chooses to rely exclusively upon the report of the master, however, he should defer to the fact-finding of the master where that fact-finding is supported by credible evidence and is not, therefore, clearly erroneous. The chancellor, however, (unlike the appellate court) always reserves unto himself the