In Re Dustin T.

ALPERT, Judge. This is yet another tragedy that comes to us as a result of long-term drug abuse. Dustin T. was determined to be a child in need of assistance [“C.I.N.A.”] by the District Court for Montgomery County (Moore, J., presiding). As a result, the court decided to keep the child in foster care because his mother, Ms. H., failed to demonstrate that she could provide a safe home for the child if he was returned to her.

She has appealed and asks us to respond to the following questions: I. Did the court err in denying Ms. H.’s motion to dismiss the C.I.N.A. petition, which motion was based on our holding in In re: William B.?

II

Does the preponderance of the competent evidence fail to support a finding that Dustin is a C.I.N.A.?

III

Once Dustin was removed from Ms. H.’s home, did the lower court impermissibly shift the burden of proof away from the County to show the continued unfitness of Ms. H. to care for Dustin — thereby impermissibly placing the burden on Ms. H. to affirmatively show her fitness as a parent-before Dustin was returned?

IV

Did the court err in allowing continuous irrelevant and hearsay evidence despite repeated objection? We respond to each in the negative and, therefore, shall affirm the judgment of the trial court. FACTS AND PROCEEDINGS In its “Detention C.I.N.A. Petition” filed on November 4, 1991, the Montgomery County Department of Social Services [“MCDSS”] inter alia alleged that Dustin T. was a child ⁷²⁹ in need of assistance 1 because (1) at his birth on October 28, 1991, both Dustin T. and his mother, Ms. H., tested positive for cocaine; (2) Ms. H. had a long history of drug abuse; (3) Ms. H. was using drugs just prior to Dustin’s birth; and (4) Ms. H. associated with people who were “involved with drugs to the point that they were staying in her home.” A Shelter Hearing followed on November 4, 1991, and Dustin was committed to MCDSS for placement in temporary foster care. Ms. H. was granted visitation under the supervision of MCDSS.

On December 2, 1991, an adjudication hearing was conducted, wherein the court inter alia denied Ms. H.’s motion to dismiss the C.I.N.A. petition. Upon the testimony presented, the court found Dustin to be C.I.N.A. and continued the commitment to MCDSS for placement in temporary foster care, subject to supervised visitation between Dustin and his mother. The court further ordered that Ms. H. attend and actually participate in drug treatment. On December 24, 1991, the Juvenile Court held a disposition hearing, in which inter alia the court (1) denied Ms. H.’s motion to alter or amend the court’s prior order, and (2) committed Dustin for further placement in foster care.

In appealing the Juvenile Court’s order, Ms. H. asked us to respond to the questions set forth above. THE LAW I. Toward the beginning of the December 2, 1991 adjudication hearing, Ms. H. moved — ostensibly based on our holding in In re William B., 73 Md.App. 68 , 533 A.2d 16 (1987), cert. denied, 311 Md. 719 , 537 A.2d 272 (1988) — to dismiss MCDSS’s C.I.N.A. petition. ⁷³⁰ Specifically, Ms. H. contended that William B. stands for the proposition that alcohol dependency alone is insufficient grounds for removal of a child from his home. Ms. H. now argues that because the only evidence presented by MCDSS at the juvenile court hearing related to Ms. H.’s drug addiction (which, Ms. H. argues, is analogous to alcohol dependency), the holding in William B. mandates that the court grant her motion to dismiss. 2 In alleging that the court erred in denying this motion, Ms. H. makes essentially three specific factual contentions: (1) All of the allegations contained in the petition were impermissibly based on the actions of Ms. H. prior to Dustin’s birth, (2) MCDSS failed to cite any facts to support its contention that Ms. H. is not able to provide to Dustin ordinary and proper care, and (3) MCDSS failed to adequately support the finding that Ms. H. ever abused or neglected the child. We disagree with each of Ms. H.’s contentions.

A. Pursuant to CJ § 3-812, a C.I.N.A. petition must set forth in clear and simple language the facts supporting the allegation that Dustin T. is a child in need of assistance. Id. at § 3-812(a). Pursuant to CJ § 3-801(e), quoted here in relevant part, a C.I.N.A. is a child who requires the assistance of the court because ... [h]e is ... not receiving ordinary and proper care and attention, and ... his parents are unable or unwilling to ⁷³¹ give proper care and attention to the child and his problems[.] The department of social services must then present to the court the evidence in support of its petition. Id. at § 3-812(g).

With respect to Ms. H.’s first delineated contention, i.e., all of the allegations contained in the petition were impermissibly based on the actions of Ms. H. prior to Dustin’s birth, the record simply does not support it. While it is true that the petition contains allegations relating to Ms. H.’s long history of drug use prior to Dustin’s birth, the petition also sufficiently alleges facts concerning how Ms. H.’s drug use affected Dustin’s birth, and how her drug use continued to affect her living conditions after Dustin’s birth (up until the time the petition was filed). Among other things, the petition states: [Fallowing Dustin’s birth[,] Ms. H. and Dustin tested positive for cocaine. Investigation noted that Ms. H. has a long history of drug use and that she ... admitted to using drugs prior to Dustin’s birth____ Ms. H. has acknowledged that she began using drugs again [i.e., after seeking treatment for her drug problem] and that she has [been] involved with ... people engaged in drug-related activities to the point that they were staying in her home.

Ms. H. indicated that these people were no longer staying in her home, but reportedly, two men, one carrying a gun were seen leaving the home following an attempt by child welfare services staff to meet with Ms. H.’s roommate. Moreover, it has been long since settled that a parent’s past conduct is relevant to a consideration of his or her future conduct. See, e.g., McCabe v. McCabe, 218 Md. 378, 383 , 146 A.2d 768 (1959) (“In making our decision [as to the future of the infant at issue] we should not gamble about that future. We can only judge the future by the past.”).

Indeed, in William B., the single most significant case upon which Ms. H. bases her present argument, we implicit ⁷³² ly affirmed such a doctrine. In William B. we held that “parents’ [past] ability to care for the needs of one child is probative of their ability to care for other children in the family.” William B., 73 Md.App. at 77 , 533 A.2d 16 . Relying upon past actions of a parent as a basis for judging present and future actions of a parent directly serves the purpose of the C.I.N.A. statute. As we noted in William B., The judge need not wait until the child suffers some injury before determining that he is neglected.

This would be contrary to the purpose of the C.I.N.A. statute. The purpose of the act is to protect children — not to wait for their injury. Id. at 77-78 , 533 A.2d 16 . Moreover, we are compelled to comment here upon the recent profusion of published medical studies that have expounded upon the dangers to a newborn of his or her mother’s substance abuse during pregnancy.

Indeed, birth defects linked to cocaine addiction — such as the addiction suffered by Ms. H. — include skull defects (such as exencephaly and encephaloccle), poor parietal bone formation, and urological malformations (such as hypospadias, hydroureter, and hemiac). See, e.g., Gilbody, Effects of Maternal Drug Addition on the Fetus, 10 Adverse Drug React. Acute Toxicol. Rev. 77 (1991).

Other jurisdictions have also recognized the significance and probative value of a mother’s pre-natal drug activity. See, e.g., Matter of Smith, 128 Misc.2d 976 , 492 N.Y.S.2d 331, 334-35 (Fam.Ct.1985) (a mother’s use of drugs during the pregnancy can support a finding of neglect and that the mother would be “unable to adequately care for the child”; excessive use of drugs, prior to birth, would support a finding that a child was a “neglected child” on the theory that the parent would be unable to provide adequate care subsequent to birth); Alfredo S. v. Nassau County D.S.S., 172 A.D.2d 528 , 568 N.Y.S.2d 123, 126 (1991) (a child’s testing positive for drugs at birth along with evidence of ⁷³³ the mother’s repeated prenatal drug use is prima facie evidence of neglect); Johnson v. State, 578 So.2d 419, 420 (1991), aff'd, 601 So.2d 559 (Fla.1992) (mother who knowingly passes cocaine to her fetus through the umbilical cord is guilty of giving a controlled substance to a minor under Fla. statute); In Re Ruiz, 27 Ohio Misc.2d 31 , 500 N.E.2d 935, 935-36, 939 (1986) (a finding that a child is abused [as defined by Ohio statute] may rest solely on the mother’s prenatal conduct); In Re Valerie D., 25 Conn.App. 586 , 595 A.2d 922, 925 (1991) (a petition for neglect or termination of parental rights may be based solely on prenatal conduct of the mother); and In Re Troy D., 215 Cal.App.3d 889, 899 , 263 Cal.Rptr. 869 (1989) (prenatal drug use by a mother is probative of “future child neglect”); and Matter concerning Baby X, 97 Mich.App. 111 , 293 N.W.2d 736, 739 (1980) (since prior treatment of one child can support neglect allegations regarding another child, prenatal treatment can be considered probative of a child’s neglect as well; since a child has a legal right to begin life with a sound mind and body, it is within this best interest to examine all prenatal conduct bearing on that right.) Ms. H.’s prenatal drug use, therefore, must be seen as being relevant to (although not necessarily determinative of) her ability to provide adequate care to Dustin. Thus, the petition was not impermissibly based solely on allegations relating to Ms. H. before the birth of Dustin; we further hold that the court, to the degree that it did consider Ms. H.’s activities prior to Dustin’s birth as being probative of Ms. H.’s current household situation, did so properly. B. With respect to Ms. H.’s second delineated contention, i.e., MCDSS failed to cite any facts to support its contention that Ms. H. is not able to provide to Dustin ordinary and proper care, we again hold that the juvenile court acted properly.

And, as above, again Ms. H. bases her contention on a misapplication of our holding in William B. ⁷³⁴ Ms. H.’s basic contention here is that William B. stood for the proposition that “[m]ere alcoholism of the parents is not ground under the [C.I.N.A.] statute for removing a child from his home with his parents.” William B., 73 Md.App. at 73, 533 A.2d 16 . Ms. H. argues by analogy that because the C.I.N.A. petition sub judice is based solely on Ms. H.’s pre-petition problems with drugs, the holding in William B. applies to prevent the court from removing Dustin from his home. In so arguing, Ms. H. has misapplied our holding in William B. In William B., as noted above, we held that “[m]ere alcoholism” is an insufficient ground to remove the child from his parental home. Id.

(Emphasis added.) That is, we held that alcoholism, in and of itself, is insufficient to justify removal of a child from his home. In the present case, the court failed to return Dustin to Ms. H. because of a plethora of factors, and not “merely” because of Ms. H.’s drug addiction per se. These factors included, inter alia: the short time that Ms. H. had remained “clean” (less than a month prior to the adjudication hearing) following sixteen years of drug abuse; two previous failures in drug rehabilitation programs; taking POP, cocaine, and engaging in unprotected sex while pregnant; consorting with unsavory characters; and that appellant’s new roommate had not been “checked out” in accordance with “new regulation[] requiring a background check.” As such, we find no merit to Ms. H.’s second contention. 3 C. With respect to Ms. H.’s third delineated contention, i.e., MCDSS failed to adequately support the finding that ⁷³⁵ Ms. H. ever abused or neglected the child, again we disagree. Md.Fam.Law Code Ann. [“FL”] § 5-701(b) defines “abuse” as the physical injury of a child by any parent or other person who has permanent or temporary care or custody or responsibility for supervision of a child ... under circumstances that indicate that the child’s health or welfare is significantly harmed or