In re: E.R., T.R., J.R., and D.B.

Panel: Friedman, Fader, James R. Eyler, Senior Judge, Specially Assigned, JJ. Friedman, J. ³³⁶ This case requires us to decide what a local department of social services must plead in a CINA 1 petition when it believes that a child's custodial parent is unable to care for the child, but lacks sufficient information regarding the capability of the noncustodial parent. In this case, the Garrett County Department of Social Services ("GCDSS") filed bare bones petitions alleging both parents to be unable to care for each child even though it only had factual support for the allegations against mother, the children's custodial parent. From those petitions, the juvenile court held a hearing at which it found mother unable to care for the children, but found the children's respective fathers, the noncustodial parents, able and willing to assume custody.

The court awarded custody to the fathers, and dismissed the CINA cases. Mother now challenges that award. The simple answer to mother's challenge is that the remedy she seeks-the return of the custody of her children-is not available in this appeal, given that she was found to be unable to care for them. The more complete ³³⁷ answer is that the trial court did not err in accepting the bare bones petitions.

BACKGROUND Appellant, T.P., is the mother of four children: J.R., E.R., and T.R. by one father, and D.B. by another. Mother is no longer involved in a relationship with either father and, at the time of the events leading to this appeal, she had primary physical custody of all four children. After GCDSS received notice of an incident involving mother and the children, it filed four identical petitions alleging that each of the children was a CINA. The petitions began with a formulaic recitation that: "[t]he State of Maryland alleges that the above-named ... child is a child in need of assistance because the child has been: abused; neglected; and the child's parents ... [are] unable or unwilling to give proper care and attention to the child and the child's needs." The petitions then included eleven paragraphs detailing the facts of an incident involving mother and her then-boyfriend ⁵⁴³ (now husband) 2 and of GCDSS's efforts to work with mother.

The petitions did not contain any allegations regarding the children's fathers other than their respective names and addresses and the bare bones allegation that they were "unable or unwilling to give proper care and attention" to the children. It is conceded by all parties to this appeal that at the time it prepared the petitions, GCDSS had no information about whether these noncustodial fathers were, in fact, unable or unwilling to care for their respective children. After a shelter care hearing, a family law magistrate placed the children with their respective fathers until the adjudication and disposition stages of the proceedings. In so doing, the magistrate noted that there were "no allegations against the dads in either petition" and that mother consented to the placements.

At the adjudicatory hearing, the magistrate sustained almost all the allegations made against the mother in ³³⁸ the CINA petitions. The disposition hearing immediately followed, after which the magistrate made the following conclusions with respect to each child: As there were no allegations sustained (or even made in the Petition) against the Father, the Magistrate cannot conclude that this child is a Child in Need of Assistance. Courts & Judicial Proceedings § 3-819(e). In re Russell G. , 108 Md. App. 366 , 672 A.2d 109 ...

(1996). [ 3 ] Accordingly, the family law magistrate recommended that the juvenile court exercise its discretion to grant primary physical custody of the children to their respective fathers with joint legal custody between mother and each father. After concluding that it could not "be assured [that mother] is able to act in the best interests of her children on a daily basis," the juvenile court ratified the magistrate's recommendations. Mother noted these timely appeals, in which she principally challenges the juvenile court's authority to award custody to the children's fathers at the CINA disposition. ANALYSIS I. Mother's first contention is that the juvenile court erred in its determination that she is unable or unwilling to care for her children.

This is a factual determination that an appellate court reviews for clear error. In re Ashley S. , 431 Md. 678 , 704, 66 A.3d 1022 (2013). Because our review reveals that this finding was amply supported in the record, it was not clear error and therefore must be affirmed.

II

Mother's remaining appellate issues concern the petitions prepared by GDCSS and the proper pleading standards ³³⁹ to be applied to the local department's allegations that a child is a CINA. Most particularly, mother argues that a local department must present a detailed factual predicate in the initial pleading to substantiate its claim that the noncustodial parent is unable and unwilling to care for the child. It is critical to understand that mother's complaint is not that the local department failed to plead sufficiently with respect to the children's custodial parent (her) but rather that it failed to plead ⁵⁴⁴ sufficiently with respect to the children's noncustodial parents (the fathers). She alleges that because GCDSS failed to include facts in the CINA petitions to support the allegations that the fathers were unable or unwilling to care for the children, the children were not "in need of assistance," and the trial court did not have jurisdiction to award custody to the fathers under CJ § 3-819(e).

To understand mother's issues, we must first understand the interaction between the general pleading requirements of the Maryland Rules and the specific pleading requirements for CINA petitions established by statute. We begin with CJ § 3-809(a), which provides that: On receipt of a complaint from a person or agency having knowledge of facts which may cause a child to be subject to the jurisdiction of the court ..., the local department shall file a petition ... if it concludes that the court has jurisdiction over the matter and that the filing of a petition is in the best interests of the child. The Maryland Rules govern the form of pleadings in CINA cases unless the statute makes a specific exception. CJ § 3-810(a).

Under Rule 2-305, the general rule governing pleadings, a local department's petition must "contain a clear statement of the facts necessary to constitute a cause of action." Md. R. 2-305; see also Md. R. 2-303(b) ("A pleading shall contain ... such statements of fact as may be necessary to show the pleader's entitlement to relief."). Rather than make an exception, the specific CINA pleading statute is consistent with this requirement. CJ § 3-811(a) states that "[a] CINA petition ... shall allege that a child is in need of assistance and shall set forth in clear and simple language the facts ³⁴⁰ supporting that allegation." The statute explicitly requires the local department to plead facts showing that: "The child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and (2) The child's parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and the child's needs." CJ § 3-801(f). Finally, although it is not discussed anywhere else in the statute (particularly with respect to pleading requirements), the governing law precludes a court from finding a child to be a CINA if "there is another parent available who is able and willing to care for the child." CJ § 3-819(e). 4 This prohibition, both in the statute and in the caselaw that preceded it, reflects Maryland's strong preference that ⁵⁴⁵ children be placed with a parent rather than in shelter care.

In re Yve S. , 373 Md. 551 , 574-75, 819 A.2d 1030 (2003) (discussing Maryland's "statutory hierarchy" of placement options, prioritizing placement with the natural parents followed by placement with a relative, with placement in foster care as a last resort). Thus, to file a CINA petition, in addition to pleading facts showing that the custodial parent is unable to care for the child, the local department must also plead facts showing that ³⁴¹ the noncustodial parent is unwilling or unable to assume custody. The problem arises with respect to noncustodial parents. Sometimes the noncustodial parent is well-known to the local department.

When that is the case, it is comparatively easy for the local department to determine either that the noncustodial parent is willing and able to care for the child and it is not necessary to file a petition pursuant to CJ § 3-809(b), or alternatively, to file a petition pleading the facts necessary to demonstrate that the noncustodial parent is also unable and unwilling to care for the child. It is more difficult, however, if the local department does not know who the noncustodial parent is or whether that person is willing and able to take on custody. In such a circumstance, mother would have us instruct the local department to wait, telling it that it may not file a CINA petition on behalf of the child until it can plead the necessary factual predicate to support its claim that the noncustodial parent