In re: J.R.

In re: J.R., No. 459, September Term 2019. INFANTS > DEPENDENCY, PERMANENCY, AND RIGHTS TERMINATION On review of child in need of assistance (CINA proceedings), the juvenile court’s factual findings are reviewed for clear error. INFANTS > DEPENDENCY, PERMANENCY, AND RIGHTS TERMINATION QUESTIONS CONSIDERED On review of child in need of assistance (CINA proceedings), whether the juvenile court erred as a matter of law is determined without deference and if an error is found, the appellate assesses whether the error was harmless or if further proceedings are required. INFANTS > DISCRETION OF THE COURT On review of child in need of assistance (CINA proceedings), the appellate court gives deference to the juvenile court’s ultimate decision and will reverse only for abuse of discretion.

INFANTS > IN GENERAL NATURE AND PURPOSE CHILD ABUSE REPORTS AND INVESTIGATIONS STATUTES > LANGUAGE AND INTENT, WILL, PURPOSE, OR POLICY Federal and state legislative history sanction the general use of safety plans, which is a nationally accepted practice utilized by Departments of Social Services in dealing with and responding to referrals for abuse or neglect. INFANTS > IN GENERAL; NATURE AND PURPOSE; CHILD ABUSE REPORTS AND INVESTIGATION The Department of Social Services has utilized safety plans for decades in CINA proceedings in Maryland; this practice is statutorily authorized as an “alternative response” in Child Protective Services investigations. Family Law, § 5-706(a); (l)—(t). INFANTS > IN GENERAL; NATURE AND PURPOSE; CHILD ABUSE REPORTS AND INVESTIGATION While “safety plan” is not defined in the Family Law Article, COMAR or any Maryland case law, it’s plain meaning can be inferred from the statute, in that the Department of Social Services can use safety plans as one of the various mechanisms to provide appropriate services in the best interest of the child.

Family Law, § 5-706(s)(11)(i). INFANTS > CHILD ABUSE REPORTS AND INVESTIGATIONS The no-contact terms in a safety plan is valid if the term is implemented as an appropriate service in the best interest of the child. Family Law, § 5-706(s)(11)(i). INFANTS > CHILD ABUSE REPORTS AND INVESTIGATIONS The correct standard in determining whether a department can remove a child temporarily is whether the representative believes that the child is in serious, immediate danger.

Family Law, § 5-709(c). INFANTS > CHILD ABUSE REPORTS AND INVESTIGATIONS While safety plans are only authorized for alternative response and low risk cases, the statute is very clear that the Department of Social Services has great latitude in determining whether they will employ an investigation or an alternative response in their evaluation of child abuse or neglect, absent the exceptions found in Family Law, § 5- 706(p) or cases determined to fall under Family Law, § 5-706(n). STATUTES > INTENT When ambiguity clouds the precise application of a statute, the cardinal rule of statutory construction is to ascertain and effectuate legislative intent. STATUTES > LANGUAGE AND INTENT, WILL, PURPOSE OR POLICY We divine legislative intent from the entire statutory scheme, as opposed to scrutinizing parts of a statute in isolation.

INFANTS > CHILD ABUSE REPORTS AND INVESTIGATIONS Absent a clear definition of low risk, federal legislation, Maryland’s declaration that the health and safety of children be of paramount concern and the flexibility granted by the Maryland General Assembly to the Department of Social Services leads to a determination that the legislature intended low risk to be within the scope of the Department of Social Services’ judgment in assessing whether an alternative response is the appropriate step in considering allegations of child abuse and neglect. INFANTS > CHILD ABUSE REPORTS AND INVESTIGATIONS The evidence supporting removal was sufficient for the Department of Social Services to believe that a three-month-old child was in immediate or imminent, serious danger when initial allegations of medical neglect led to substantiated claims of substance abuse and domestic violence; the temporary removal was an appropriate service in response to violations of the valid safety plans and the plan’s legal terms. INFANTS > DISMISSAL AND MOOTNESS PRESERVATION A question is moot if there is no longer an existing controversy between the parties, so that there is no longer any effective remedy which the court can provide. INFANTS > PROTECTIVE CUSTODY AND REMOVAL OF CHILD Under the collateral order doctrine, denied petitions for continued shelter orders are appealable as interlocutory orders.

INFANTS > PROCEEDINGS Shelter care only address the short, provisional arrangements for a child during the pendency of CINA proceedings. Md. Code Ann., Cts. & Jud. Proc. § 3-815 . INFANTS > PROCEEDINGS A CINA adjudication and disposition, along with subsequent orders associated with CINA determinations deal with the permanent aspects of a child’s custody and care.

INFANTS > DISMISSAL AND MOOTNESS PRESERVATION The merits of temporary, shelter care orders are moot once a CINA determination has been made, as there is no relief an appellate court can effectively grant a party; shelter care orders are no longer applicable after a CINA disposition. STATUTES > MANDATORY OR DIRECT STATUTES When legislature commands that something be done, using words such as “shall” or “must” rather than “may” or “should,” the obligation to comply with statute or rule is both mandatory and directory; the relevant question in such cases is whether the sanction sought for noncompliance is the appropriate one. CONSTITUTIONAL LAW > PARENT AND CHILD RELATIONSHIP The constitutional protections in the Fourteenth Amendment that guarantee a parent’s right to be free from undue interference by the state are imperative, but they are not absolute. U.S. Const.

Amend. 14. INFANTS > DEPRIVATION, NEGLECT OR ABUSE The principal focus of the CINA statute is to ensure that juvenile courts (and local departments of social services) exercise authority to protect and advance a child’s best interests when court intervention is required. EVIDENCE > PREPONDERANCE OF THE EVIDENCE The standard employed by the trial court in determining whether a child has been neglected is preponderance of the evidence; this standard is measured against the totality of the circumstances. Ann. Md. Code, Courts and Judicial Proceedings, § 3–817(c).

INFANTS > DISCRETION OF THE COURT Trial courts have wide discretion concomitant with plenary authority to determine any question concerning the welfare of children. INFANTS > DEPRIVATION, NEGLECT OR ABUSE Evidence of medical neglect along with corroborated concerns of drug use and domestic violence allegations support juvenile court’s findings that mother and father neglected the child by failing to give proper care and attention to the child. INFANTS > DEPRIVATION, NEGLECT OR ABUSE Juvenile court are required to conduct a disposition hearing that is distinctly separate from the adjudication hearing. Ann. Md. Code, Courts and Judicial Proceedings, § 3–819.

INFANTS > DEPENDENCY, PERMANENCY, AND RIGHTS TERMINATION DEPRIVATION, NEGLECT OR ABUSE A more stringent standard of proof is required to deny custody than is to find a child CINA. INFANTS > DEPENDENCY, PERMANENCY, AND RIGHTS TERMINATION DEPRIVATION, NEGLECT OR ABUSE The law permits involuntary separation of a child from his parents only if the parents are unable or unwilling to give the child ordinary care and attention, and even then only if the court finds that the drastic remedy of removing the child is necessary for his welfare. INFANTS > RIGHT TO COUNSEL Right to counsel in CINA proceedings is afforded by statute. Cts. & Jud.

Proc. § 3-813(a). INFANTS > EFFECTIVENESS OF COUNSEL Implicit in the right to counsel is that counsel be effective. INFANTS > EFFECTIVENESS OF COUNSEL Strickland extensively outlines the standard for evaluating the validity of an ineffective assistance of counsel claim, which can be broken down into a performance component and a prejudice component. INFANTS > EFFECTIVENESS OF COUNSEL In regard to performance, there must first be a showing that counsel’s representation fell below an objective standard of reasonableness.

INFANTS > EFFECTIVENESS OF COUNSEL Review of an attorney’s performance is context-dependent consideration of the challenged conduct as seen ‘from counsel’s perspective at the time. INFANTS > EFFECTIVENESS OF COUNSEL After a showing that performance was deficient under the Strickland test for claim of ineffective assistance of counsel in a CINA proceeding, one claiming error must then demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. INFANTS > EFFECTIVENESS OF COUNSEL The prejudice prong of the Strickland test requires a showing of prejudice, considering that attorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial. INFANTS > EFFECTIVENESS OF COUNSEL It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.

INFANTS > EFFECTIVENESS OF COUNSEL In Maryland, to establish prejudice, there must be a showing that but for counsel’s errors, there is a substantial possibility the result of the proceeding would have been different. INFANTS > EFFECTIVENESS OF COUNSEL Post-conviction proceedings are preferred with respect to ineffective assistance of counsel claims because the trial record rarely reveals why counsel acted or omitted to act, and such proceedings allow for fact-finding and the introduction of testimony and evidence directly related to allegations of the counsel's ineffectiveness. INFANTS > EFFECTIVENESS OF COUNSEL Where the critical facts are not in dispute and the record is sufficiently developed to permit a fair evaluation of a claim of ineffective assistance of counsel in termination of parental rights proceeding, there is no need for a collateral fact-finding proceeding, and review on direct appeal may be appropriate and desirable. INFANTS > EFFECTIVENESS OF COUNSEL The trial record clearly must illuminate why counsel's actions were ineffective because, otherwise, the Maryland appellate courts would be entangled in the perilous process of second-guessing without the benefit of potentially essential information.

Circuit Court for Cecil County Case No. C-07-JV-18-000163 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 459 September Term, 2019 On Motion for Reconsideration ______________________________________ In Re: J.R. ______________________________________ Berger, Nazarian, Reed, JJ. ______________________________________ Opinion by Reed, J. ______________________________________ Filed: July 24, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-07-24 12:09-04:00 Suzanne C. Johnson, Clerk Following the adjudicatory and dispositional hearings, the Circuit Court for Cecil County, sitting as a juvenile court, found J.R. 1 to be a Child in Need of Assistance (“CINA”). Both the biological mother, Ms. B. (“Appellant Mother”), and biological father Mr. R.

(“Appellant Father”), appealed, and they present four questions for our review, which we have expanded and rephrased for clarity: 2 I. Did Cecil County Department of Social Services err when it failed to follow the statutory scheme for handling a CINA case by implementing “safety plans”, which Appellant Mother alleges are not authorized by the statute?

II

Did the juvenile court err as a matter of law when it continued the shelter care orders?

III

Did the juvenile court err when it found that J.R. was a CINA?

IV

Did the juvenile court err when it did not conduct a separate dispositional hearing? V. Does Appellant Mother have a valid claim for ineffective assistance of counsel? 1 To respect and protect the privacy of the child involved in this matter, they will be referred to by their initials. 2 Appellant Mother presents the following questions: 1. Did the juvenile court follow the statutory scheme when handling this CINA case? 2. Did CCDSS follow the statutory and regulatory scheme when handling this CINA case? 3.

Was Mother provided effective assistance of Counsel? Appellant Father presents the following question: 1. Did the court err in finding J.R. to be a CINA when he was not at substantial risk of harm and his parents are willing and able to give him proper care and attention? For the following reasons, we affirm in part and vacate in part.

FACTUAL AND PROCEDURAL BACKGROUND History of Family and the Department’s Concerns J.R. was born on September 12, 2018 to Appellants (Appellant Mother and Appellant Father). J.R. is the fifth child of Appellant Mother. On May 8, 2015, the Circuit Court for Cecil County terminated the parental rights of the Appellant Mother for three of her children. Foster parents took guardianship over a fourth child without a termination of parental rights.

Appellant Father has “a significant criminal history,” including a 2006 second-degree murder charge which was pled down to first-degree assault; Appellant Father served 15-years imprisonment for this charge. On two consecutive days in mid-October of 2018, Appellants brought one-month- old J.R. into the emergency room. Appellant Father dropped Appellant Mother and J.R. off at the hospital but did not stay. Appellant Mother reported that J.R. had trouble breathing two nights in a row.

However, Appellant Mother was “freaking out,” having panic attacks and was more concerned with Appellant Father coming back to the hospital than what was happening with J.R. On October 15, 2018, the Cecil County Department of Social Services (“CCDSS” or “the Department”), the Appellee, received a referral concerning medical neglect, which included J.R.’s “inadequate weight gain” and Appellant Mother’s behavior. CCDSS assigned a child protective services (“CPS”) investigator with the Department, Ms. Christine Clouser (“Ms. Clouser”), to conduct a joint investigation with the local police department. 2 First Attempts of Contact with Appellants On October 16, 2018, Ms. Clouser made her first attempt to contact Appellants at their primary residence. However, because Appellant Mother had a “lookout” near the home, no one answered the door when Ms. Clouser knocked. The next day, on October 17, 2018, a male resident at the home permitted Ms. Clouser and a police detective to enter the home, but they (Ms. Clouser and the detective) could not access the bedroom where Appellants were staying.

While checking the remainder of the home, Ms. Clouser and the detective found the home “to be in poor and unsafe conditions for an infant.” Specifically, Ms. Clouser observed a room that was so infested with bedbugs that the male renter could not even sleep in the room. This room infested with bed bugs was within approximately 10 feet of the locked bedroom where J.R. stayed. Additionally, Ms. Clouser noticed that there were no “bottles, formula, baby items, clothing[,] diapers or any items necessary for the care of infant [sic] anywhere in the home.” A female resident informed Ms. Clouser that “[Appellant Father] was aware that the detective and CPS had come to the house the previous day and he ordered everyone in the home not to answer the door under any circumstances and keep the door locked at all times.” She reported that Appellants would not stay in the house during business hours so that CPS could not find them. The female resident also provided information that Appellant Father [is] “very violent” and had threatened “to hurt [Appellant Mother] enough to kill the baby when she was pregnant.” Further, she indicated that Appellants were using drugs, 3 and particularly, Appellant Father sells “heroin and crack.” The female resident advised that she had personally witnessed Appellants “nodding out” while taking care of J.R. In another attempt to visit Appellants, Ms. Clouser showed up to one of J.R.’s scheduled pediatric appointments on October 19, 2018.

However, Appellants did not show up for the appointment. Ms. Clouser and the detective then showed up at Appellants’ home. Ms. Clouser and the detective reported that they heard what they believed to be Appellant Father yelling, but when they knocked on the door, it got quiet and two male residents answered the door, stating that the Appellants were not home. First Safety Plan Two days later, on October 22, 2018, Appellant Father called the detective and invited her and Ms. Clouser to the home.

When they arrived at the home, Ms. Clouser and the detective noted the strong smell of fresh paint in the room Appellants were staying in, but the room was clean, full of baby supplies, including diapers, wipes, clothing and formula. Appellant Mother first denied that she was aware of concerns regarding J.R.’s weight, but then detailed the medicine J.R. was taking, his current feeding schedule, his digestive problems and his medical appointments. The detective was permitted to walk around the home and noted the bedbug-infested mattress had been covered with a blanket, but the home had otherwise been cleaned up. Appellant Father then demanded that the CPS investigation be closed.

Ms. Clouser informed Appellants that there were concerns of substance abuse, and they both denied the allegations, with Appellant Father noting that he was on parole and was having regular urinalysis screens. Nevertheless, Ms. Clouser requested that Appellants submit drug tests by the end of the day, and they agreed. 4 Additionally, Ms. Clouser stated that she wanted Appellants to enter into a safety plan, designed to address concerns of “substance abuse, domestic violence, the inappropriate conditions of the home and J.R.[’s] medical needs.” Appellants agreed to: Allow the department to see [J.R.] in person in order for the department to be able to ensure his safety and wellbeing . . . stay in contact with the department during the investigation . . . not use substances while caring for [J.R.] [and] [J.R.] would remain in a home free of substance use and will be in an appropriate placement . . . follow up with [J.R.’s] medical needs and appointments [and] [J.R.] would not be in any of the rooms that were inappropriate at Appellants’ primary residence Appellants signed this safety plan. They also submitted to drug screens later that day. Violation of the First Safety Plan and Implementation of the Second Safety Plan On November 8, 2018, Ms. Clouser received the results of Appellants’ drug tests.

While Appellant Mother’s oral and urine screens were negative, Appellant Father’s oral screen was positive for amphetamines and methamphetamines. Ms. Clouser and the detective returned to Appellants’ home, but a male resident refused to open the door, stating that the Appellant Mother was at work, and Appellant Father and J.R. were not home. Ms. Clouser and the detective then went to Appellant Mother’s job and was told that she was not there. They returned to Appellants’ home to wait for them there.

Approximately one hour later, Appellant Father emerged from the home. Appellant Father was “agitated and yelling . . . accus[ing] [Ms. Clouser] of lying during [their] first contact with him.” A few moments later, Appellant Mother exited the home with J.R., also argumentative, claiming “she did not know there were allegations of domestic violence until she observed the safety plan.” Due to Appellant Father’s “aggressive tone,” the detective requested backup assistance from the police department. Appellant Father 5 eventually admitted that they were at home when Ms. Clouser and the detective first arrived. Ms. Clouser then informed Appellants that she had received the results of the drug screen, and Appellant Father’s oral screen came back positive for amphetamines and methamphetamines.

Ms. Clouser told Appellant Father that this positive drug screen violated the safety plan dated October 22, 2018. She also advised that due to the Appellants’ lack of cooperation earlier in the day, a new safety plan would need to be put into place. Appellant Father became agitated again and stated that he believed the positive drug screen was due to his use of Sudafed. Appellant Mother signed the new safety plan, but Appellant Father did not.

Ms. Clouser asked Appellant Father to submit to another drug test the following day on November 9, 2018 at 10:00 am, and he stated he would go at 11:00 a.m. Nonetheless, the new safety plan that was put into place stated: [J.R.] will not return to [Appellants’ primary residence] until further notice. [Appellant Mother] will be the primary caregiver to [J.R.] until further investigation. [J.R.] will have no contact with [Appellant Father] until further investigation. [Appellant Mother] will stay in contact with the department and follow up with [J.R.’s] medical needs. [J.R.] will reside at an [alternate residence in] Elkton, MD[3] until further notice. [Appellant Father] will take a drug screen on November 9, 2018. The department will be able to have face to face contact with [J.R.] in order to assess him. [Appellant Mother] will contact the department if [J.R.] will be residing anywhere other than [the alternate residence]. 3 Because Appellant Father could not have contact with J.R. and Appellant Father resided at Appellants’ primary residence, Appellant Mother and J.R. could not live there pending the investigation. The alternate residence is the address of a friend of Appellant Mother’s where she and J.R. would be staying. 6 Appellant Father did not take the second drug test on November 9, 2018.

On December 5, 2018, Ms. Clouser and the detective engaged Appellant Father at his home. Appellant Father accused the department of “kidnaping his son” and “unlawfully [taking] away his parental rights.” Ms. Clouser explained to Appellant Father that the safety plan was used to further assess safety concerns, and that if he was willing to cooperate, and take another drug test, they could change the safety plan at any time. Appellant Father’s speech was “slurred,” he refused to take a drug screen at that time and stated that he was “not willing to work with the department anymore and wanted a court case.” The following day, Ms. Clouser and the detective were able to get in touch with Appellant Mother at the alternate residence. Appellant Mother reported that J.R. was no longer considered to be “failing to thrive” and talked about updates regarding his recent appointments and his weight gain.

Ms. Clouser requested that Appellant Mother take another random drug test on December 7, 2018, and she agreed. Allegations of Domestic Violence and Violation of the Second Safety Plan On December 19, 2018, Ms. Clouser received information that Appellant Mother had a black eye. Ms. Clouser and the detective visited Appellant Mother at her job to investigate the allegation. When they met with Appellant Mother, they noticed that her “left eye was bruised, black and purple in color . . . .” When asked about what happened to her eye, Appellant Mother indicated that she and Appellant Father were fixing the bed at their main residence and “a piece of wood bounced up and hit her in the eye.” When further questioned about the details, Appellant Mother became disturbed, stating, “why do you continue to ask me stupid questions.” Ms. Clouser inquired about J.R. and Appellant 7 Mother stated that he was with her step-brother on the Maryland/Pennsylvania line.

Ms. Clouser requested to see J.R. that day, refusing to set up a meeting for the next day and asked for the step-brother’s contact information. Ms. Clouser was able to get in contact with the step-brother’s wife, B.W., who resided in Pennsylvania. When B.W. spoke with Ms. Clouser on the phone, her voice was “shaky.” She confessed that Appellant Mother had “asked her to lie but she couldn’t lie.” B.W. stated that J.R. had been with her for the past two weeks and she had concerns that he was going through “withdrawal.” She said that during her first two days with J.R., he would “shake.” B.W. admitted that on December 15, 2018, she picked the Appellants up and brought them to her home to visit J.R. She noted that they argued on the way to her home, and at 2:00 a.m. that night, they were “yelling and screaming” at each other in her basement. B.W. mentioned that due to a video camera in her basement, she could see them shoving each other while J.R. was nearby.

B.W. reported that as Appellants were escorted out of her house and into the garage, Appellant Father mentioned that Appellant Mother was “on dope” at the time and had taken “6,” to which Appellant Mother replied, “she had only taken ‘1.’” In the garage, Appellants continued to yell and scream, and Appellant Father alleged that Appellant Mother threw a hammer at him. B.W. then put them in her car and drove them back to Cecil County. During the ride, B.W. indicated that they were “shoving each other to the point her car was shaking.” B.W. pointed out that she looked into the backseat and saw Appellant Father’s “hand leave [Appellant Mother’s] face . . . and [Appellant Mother’s] eye instantly swelled.” At some point, B.W. had to pull over and 8 asked one of them to move to the front seat, and they continued to yell and scream at each other. At this time, Ms. Clouser explained the Interstate Compact on the Placement of Children (“ICPC”).

Ms. Clouser asked if B.W. would meet her and the detective in Maryland with J.R. so that she [Ms. Clouser] could assess J.R. B.W. agreed and J.R. was brought back to the department. The detective reached out to Appellants for them to come to the police department to meet with herself and Ms. Clouser. Initially, they declined, but the detective continued to reach out to them, and they eventually agreed to meet. Appellants were advised that due to new concerns of substance abuse and domestic violence, in addition to violations of the second safety plan, J.R. was being removed and placed into foster care.

The First Shelter Care Hearing: December 21, 2018 On December 20, 2018, CCDSS filed a CINA Juvenile Petition, in addition to a Petition for Continued Shelter Care. The next day, on December 21, 2018, the juvenile court held a shelter care hearing. According to an agreement reached by all parties, J.R. was placed “in the sole custody of [Appellant Mother]” as stated in the Order Controlling Conduct. Under the order controlling conduct, Appellant Mother and J.R. would reside at an alternate residence; Appellant Father would not be permitted at the alternate residence; Appellant Father would be permitted to have visitation with J.R. at Open Doors; CCDSS would have access to J.R. at all times; and daycare for J.R. would be provided by Appellant Mother’s aunt, V.W. The court granted the order controlling conduct pending the adjudicatory hearing scheduled for January 15, 2019. 9 Immediately after the shelter hearing, Ms. Clouser assessed the alternate residence and found it to be suitable for J.R. to reside there.

Ms. Clouser attempted to get a hold of Appellant Mother to return custody of J.R. to her. However, Appellant Mother could not be reached. Ms. Clouser called multiple times and left voicemails, but Appellant Mother did not call or make arrangements to regain physical custody of J.R. until the day after Christmas. Appellant Mother stated that she didn’t know where her phone was and that it had stopped working.

J.R. was returned to Appellant Mother on December 26, 2018. On December 27, 2018, Pennsylvania’s Child Welfare Authorities contacted CCDSS, regarding J.R. “residing at a place of known drug activity, namely [Appellant Mother’s] step-brother’s home.” On January 2, 2019, investigators sought to check on J.R. and were advised by V.W. that J.R. had been dropped off at West End Garden Apartments at the request of Appellant Mother. Ms. Clouser met Appellant Mother and J.R. in an apartment unit, and Appellant Mother informed Ms. Clouser that she would be returning to the alternate residence that evening. Because Ms. Clouser saw that J.R. was clean and appropriately dressed, she determined that J.R. could remain in Appellant Mother’s care at that time, even though she noted some “blue baggies” at the doorstep, which are commonly used to carry heroin.

Violation of the Order Controlling Conduct dated December 21, 2018 Within a week, Ms. Clouser again followed up with Appellant Mother on January 9, 2019 at the alternate residence and Appellant Mother advised investigators that J.R. was in the care of a Ms. R. Appellant Mother did not know Ms. R.’s last name, phone number or address. The next day, once Ms. Clouser contacted Ms. R., who lived at 182 10 Hollingsworth Manor, she was informed that J.R. had been dropped off with Ms. R. at noon on Friday, January 4, 2019 and was there until Sunday, January 6, 2019. As stated by Ms. R., “[Appellant Mother] brought some provisions, and medicine, but there were no sleeping arrangements. [Appellant Mother] advised that [J.R.] could just sleep in his car seat.” Ms. Clouser then left Hollingsworth Manor, but soon returned to that location after learning that Appellant Father had been arrested for “trespassing at Wawa.” When Ms. Clouser returned, J.R. was present, having been dropped off by Appellant Mother who “had to go take care of a situation.” At this time, Ms. Clouser went to the police station, where she questioned Appellant Mother concerning her whereabouts on New Years’ Eve. Appellant Mother confessed that she spent the night at a Knight’s Inn with J.R. and Appellant Father.

As a result of the violation of the order controlling conduct dated December 21, 2018, J.R. was removed from Appellant Mother’s custody and placed with a non-relative foster care provider. The Paternity Matter 4 At the adjudicatory hearing on January 15, 2019, which was part of the initial Shelter Care Order, it was discovered by the department through receipt of a marriage license that Appellant Mother was married to a man, R.C. (“Mr. C.”) at the time of J.R.’s birth. It was revealed that Appellant Mother had been married to Mr. C., who was an inmate in Okanogan County Jail, since March of 2003.

J.R. was born in September of 2018. Hence, since “[a] child born or conceived during a marriage is presumed to be the legitimate child 4 The child’s paternity is not at issue on this appeal but is important to mention because it was the cause of the delay in the adjudicatory proceedings. 11 of both spouses,” Mr. C. was presumed to be J.R.’s father. Md. Code Ann., Est. & Tr. § 1 - 206(a). Consequently, CCDSS filed an amended petition, listing Mr. C. as J.R.’s father and moved to strike Appellant Father as a party to the CINA proceeding.

Subsequently, the juvenile court “found good cause to continue the CINA adjudicatory hearing to permit the parties to respond to the Department’s motion.” Without objection, the court also continued foster care of J.R. At the February 5, 2019 hearing, all of the parties submitted memoranda of law regarding the matter of J.R.’s paternity. After arguments, the juvenile court proposed that Appellants complete paternity testing, as they “had already volunteered to do,” and requested that the Department acquire more information on Mr. C. Appellant Father asked that J.R. be returned to him pending the investigation into J.R.’s paternity, and the court denied this request, continuing the order of shelter care and placing J.R. with foster parents under an order controlling conduct. The results of the genetic testing determined that “[Appellant Father] could not be excluded as J.R.’s father].” However, at the March 5, 2019 adjudicatory hearing, “The court stated that it needed to follow the law and go through the proper procedure regarding paternity of J.R.” This included Mr. C. being notified of the proceedings and being offered the opportunity to obtain counsel. At the end of the hearing, the juvenile court issued an amended order controlling conduct, continuing J.R.’s shelter care.

During the April 23, 2019 adjudicatory hearing, the Department continued to assert that Appellant Father should be excluded from the proceedings. The juvenile court found that it had jurisdiction to determine paternity in CINA cases, and the marital presumption 12 had been refuted by genetic testing that concluded there was a 99% probability that Appellant Father was the biological father of J.R. Nevertheless, the court found “good cause” to continue the adjudicatory hearing, over Appellants’ objection, as the Department’s main witness, Ms. Clouser, was at a funeral. The May 7, 2019 Adjudication and Disposition Hearings The juvenile court held an adjudication hearing on the merits of the CINA petition on May 7, 2019. During this hearing, the court first addressed the Department’s motion as to whether Appellant Father had disestablished the presumed paternity of Mr. C., consistent with the Estate and Trust Article.

In relying on the April 23, 2019 ruling, the court found that Mr. C. had in fact been disestablished as father and acknowledged that Appellant Father had standing to be a part of the hearing. The court proceeded with the adjudication and heard testimony from Ms. Clouser as a witness for the Department. Ms. Clouser testified to the facts as summarized supra. 5 The safety plans from October and November were admitted and the court took “judicial notice” of the December 21, 2018 shelter care proceeding. Neither Appellants nor the representative for J.R. presented evidence or gave testimony.

After testimony was given, the juvenile court sustained many of the allegations in the amended CINA petition, and at the close of these proceedings, the court found that: Parents have repeatedly violated the terms of Safety Plans, and an Order Controlling Conduct that was imposed by the court, with the parents agreement at the Shelter Care hearing; Child has been left with various caregivers at various locations, without notice to the department, which was conducting an active investigation into the welfare of the child, and Parents 5 Ms. Clouser was not able to testify about what she was told by one of the male renters, and another female renter, as there was an objection for hearsay, which was sustained. However, this information was in the report that the presiding judge had. 13 have demonstrated an unwillingness to cooperate with the Department in regard to care of the child. The juvenile court found J.R. to be a CINA due to neglect and placed him with CCDSS. Appellants were ordered to participate in several treatment counseling services (drug & alcohol, psychological evaluation, parenting evaluation and domestic violence evaluation).

It is from this order that Appellants separately filed this appeal. DISCUSSION A. Parties’ Contentions Appellant Mother argues that the legislative scheme concerning this CINA case was not followed by CCDSS or the juvenile court. Specifically, she claims the safety plans that were implemented on October 2, 2018 and November 8, 2018 by CCDSS were not authorized by the statute and were in fact “illegal.” Appellant Mother contends that the December 21, 2018 orders were contradictory and did not follow the statutory scheme, according to Cts. & Jud. Proc. § 3-815.

Appellant Mother submits that the subsequent orders of controlling conduct issued on January 15, 2019, February 5, 2019, March 5, 2019 and April 23, 2019 were erroneous and did not follow the statutory provisions in continuing J.R.’s “shelter care” beyond the 60-day timeframe set in Cts. & Jud. Proc. § 3-815(c)(4). Appellant Mother argues that the court combined the disposition hearing with the adjudication hearing, in violation of Cts. & Jud. Proc § 3-819(a)(1).

Furthermore, Appellant Mother alleges that she received ineffective assistance of counsel, because her counsel at trial did not object to the illegality of the safety plans or to any of the juvenile court’s findings regarding shelter care. Appellant Mother adopted Appellant Father’s arguments 14 regarding J.R. being found CINA. Appellant Father asserts that the juvenile court erred by finding that J.R. was a CINA because J.R. was not in substantial risk of harm and Appellants were willing and able to give J.R. the proper care and attention he needed. Appellant Father adopts Appellant Mother’s arguments regarding the shelter care orders and the disposition hearing.

Appellees (Representatives for the Child and the Department) contend that the juvenile court properly concluded that J.R. was a CINA due to domestic violence in the home, Appellants’ use of illegal substances, and their failures to abide by the safety plans utilized to provide for J.R.’s safety. Appellee (the Department) also states that Appellant Mother’s appeal of the shelter care order and orders controlling conduct are moot, or in the alternative, were not preserved for appellate review. Additionally, the Department argues that Appellant Mother did not meet the burden of the two-prong test outlined in Strickland v. Washington 6 as to whether her trial counsel’s performance was deficient and prejudicial, resulting in ineffective assistance of counsel. The Department reasons that Appellant Mother’s trial counsel’s actions regarding the safety plans, the shelter and conduct orders and the dispositional hearing “was a matter of trial strategy,” which is afforded “a heavy measure of deference.” Strickland, 466 U.S at 691. 6 466 U.S. 668 (1984). 15 B. Standard of Review There are “three distinct but interrelated standards of review” applied to a juvenile court’s findings in CINA proceedings.

In re Adoption/Guardianship of H.W., 460 Md. 201, 214 (2018). The juvenile court’s factual findings are reviewed for clear error. In re Adoption/Guardianship of Amber R., 417 Md. 701, 708 (2011). Whether the juvenile court erred as a matter of law is determined “without deference;” if an error is found, we then assess whether the error was harmless or if further proceedings are required to correct the mistake in applying the relevant statute or regulation.

In re Yve S., 373 Md. 551, 586 (2003). Finally, we give deference to the juvenile court’s ultimate decision in finding a child in need of assistance, and “a decision will be reversed for abuse of discretion only if ‘well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.’” In re J.J., 231 Md. App. 304, 345 (2016), aff’d, 456 Md. 428 (2017), cert. denied, 139 S.Ct. 310 (2018) (quoting In re Yve S., 373 Md. at 583-584 (internal citations omitted). Analysis Legality of Safety Plans There were two safety plans put in place by CCDSS – on October 22, 2018 and November 8, 2018 – in response to the referral received by the Department regarding the potential medical neglect of J.R. Appellants’ violations of terms within the two safety plans triggered the Department’s filing of the CINA Juvenile Petition. Appellant Mother argues that these safety plans are illegal, as they are not defined in any part of the statute governing CINA cases.

We will agree with Appellant Mother that the legality of safety plans is an 16 issue of first impression for this Court but will otherwise wholeheartedly disagree with their contention that safety plans are illegal. We now discuss the relevant legislative history that has sanctioned the general use of safety plans, as well as the applicable changes in child welfare policies that led to the already nationally accepted practice being statutorily authorized in Maryland. a. Relevant Federal Legislative History for Child Health and Safety Well before the inception of safety plans being added to the Family Law Article as part of the short-term, “alternative response” to ensuring the health and safety of children, the federal government approached the issue of children’s general welfare by addressing the longstanding number of children in the foster care system. In re James G., 178 Md. App. 543, 580 (2008) (citing Kathleen S. Bean, Reasonable Efforts: What State Courts Think, 36 U. Tol.

L. Rev. 321 (2004–2005)) (“Bean”). In 1997, Congress enacted the Adoption and Safe Families Act of 1997 (“ASFA”), Pub. L. No. 105-89, 111 Stat. 2115 (codified in 42 U.S.C. Chapter 7, subchapters IV-B and IV-E). The purpose of ASFA was to “streamline the foster care placement process and provide permanent homes for children in foster care, by expediting permanency planning hearings and TPR proceedings.” In re James G., 178 Md. App. at 580 (citing In re Karl H., 394 Md. 402, 421 (2006)).

ASFA served as a revision of the “reasonable efforts” provision of the Adoption Assistance and Child Welfare Act of 1980 (“AACWA”), which required states to make “reasonable efforts” in reunification services for foster care placement. In re James G., 178 Md. App. at 575 (internal citations omitted). However, “agencies were engaged in excessive efforts to ‘repair hopelessly dysfunctional families. Instead of the permanency intended by the 17 federal reasonable efforts clause, impermanency resulted.’” Id. at 575 (citing Bean, 36 U. Tol.

L. Rev. at 326). The concern became that “children were being reunited with parents when it was not safe to do so in the name of ‘reasonable efforts.’” Id. Congress’s intent with ASFA was to “clarify ‘reasonable efforts’ and respond to concerns that AACWA had encouraged states to go too far in preserving parent-child relationships that were more harmful than beneficial.” In re James G., 178 Md. App. at 576 (quoting Bean, 36 U. Tol. L. Rev. at 326).

Pursuant to Title IV-B and IV-E of AACWA, as revised through ASFA, In order to receive federal funding, a state [was] required to implement a federally-approved state plan for the delivery of child welfare services, which, in relevant part, must provide that “reasonable efforts shall be made … to make it possible for a child to safely return to the child's home,” if such efforts are consistent with the permanency plan for the child. 42 U.S.C. § 671 (a)(15)(B). However, ASFA also mandates that, “in determining reasonable efforts to be made with respect to a child ... and in making such reasonable efforts, the child's health and safety shall be the paramount concern.” In re James G., 178 Md. App. at 576 (citing 42 U.S.C. § 671 (a)(15)(A)) 7 (emphasis added). Complying with federal funding requirements, Maryland adopted ASFA through HB1093 in 1998, asserting that this bill “declares a legislative finding that the purpose of state adoption and guardianship law is to provide children with stable homes that protect their safety and health.” Dep’t Leg. Servs., Fiscal and Policy Note (rev.), House Bill 1093, at 1 7 42 U.S.C. § 671 is currently being challenged as unconstitutional and not severable from 26 U.S.C. § 5000A(a) by States and private individuals against the United States regarding the constitutionality of the Affordable Care Act’s (ACA) individual mandate, as amended by the Tax Cuts and Jobs Act (TCJA).

See Texas v. United States, No. 19-10011 (5th Cir. argued July 9, 2019). 18 (1998 Session); see also 1998 Md. Laws, ch. 539. Additionally, The Child Abuse Prevention and Treatment Act (CAPTA), which was first enacted in 1974 and is considered “key legislation addressing child abuse and neglect,” provides funding to states that “advance, improve and implement safety assessment tools and protocols.” See U.S. DEP’T HEALTH & HUM. SERVS., About CAPTA: A Legislative History (2019); U.S. DEP’T. OF HUM. RESOURCES, SSA-CW # 15-21, Maryland’s Safety Assessment for Every Child (SAFE-C) and Safety Plan, at 2 (2015) (“SSA-CW # 15-21”).

Through the framework of federal legislation, Maryland has established, amended and reinforced its (or the State’s) regulations and statutes to improve outcomes for children who interact with the child welfare system. The Department of Human Services, along with other partnering agencies, are tasked with implementing social services that comply with Titles IV-B and IV-E, CAPTA, and other federal provisions. These social services are provided through a variety of approaches, including safety assessments, which allow “for uniform documentation of factors that may indicate an immediate danger to a child and development of a plan by the local department and the caregiver to address the danger.” SSA-CW # 15-21, at 2. Safety plans, the implementation of which is nationally recognized, have been one of the numerous mechanisms the Department uses to respond to referrals of abuse or neglect, and has been for several decades in Maryland.

See generally In re Justin D., 357 Md. 431, 434 (2000) (“Following an investigation, DSS devised a safety plan calling for [child’s] temporary removal from the home, individual family counseling, and further monitoring.”); In re Adoption/Guardianship No. T00032005, 141 Md. App. 570, 604 (2001) (“The court observed that Ms. H. entered several service agreements and safety 19 plans between August 4, 1995, and November 22, 1999.”); In re Damien F., 182 Md. App. 546, 558 (2008) (“Ms. B. signed a safety plan proposed by the Department . . . .”). However, it was through the state legislature, persuaded by national studies conducted by federal agencies to identify the most appropriate way to handle the evolving nature of child welfare, that Maryland’s statutes now endorse the use of safety plans to tackle concerns of child abuse or neglect. b. Relevant Statutory Development of Maryland Family Law Article § 5-706 Title 5 of the Maryland Family Law Article articulates the Department’s obligation and authorizes its power to act for the general welfare of children. The principal objective of Subtitle 7 of this Article, as promulgated by COMAR 07.02., is to “protect children who have been the subject of abuse or neglect” by requiring, among other things, that “each local department [] give the appropriate service in the best interest of [an] abused or neglected child”.

Md. Code Ann., Fam. Law (“FL”) § 5-702(5) (emphasis added). FL § 5- 706 details the process in which CPS uses to investigate reports of suspected abuse or neglect. See FL § 5-706 et seq.

Before 2012, CPS employed what was referred to as a “traditional response” to these types of allegations, and the investigation that was outlined in FL § 5-706 served as an “adversarial intervention in which determining who is responsible for the alleged abuse or neglect [was] the primary mission.” Dep’t Leg. Servs., Fiscal and Policy Note (rev.), House Bill 834, at 5 (2012 Session) (“Fiscal and Policy Note (rev.) to HB 834”). However, CPS agencies were “[f]aced with a large volume of reports, increasingly complex cases, and strained resources,” and so they “developed practices and policies to 20 differentiate how particular cases are handled.” Lisa Merkel-Holguin, et al., AM. HUMANE ASS’N. & CHILD WELFARE LEAGUE OF AM., National Study on Differential Response in Child Welfare 9 (2006).

The national study report completed in 2006 detailed how “alternative response programs” – “an intervention . . . that provides assessment and refers families to supportive services rather than initiating an investigation” – were used in 15 other states around the country. Fiscal and Policy Note (rev.) to HB 834, at 4-5. The U.S. Department of Health and Human Services continued this research with a report in 2008, and the consensus was that both reports documented “positive results that lead to increased safety for children and a higher number of children that could safely remain with their families.” HB 834 Fiscal and Policy Note, at 5; See U.S. DEP’T HEALTH AND HUM. SERV’S, Differential Response to Reports of Child Abuse and Neglect (2008).

Meanwhile, during the 2006 session, the Maryland state legislature sought to create a “differential response” to allegations of child abuse or neglect. Fiscal and Policy Note (rev.) to HB 834, at 5. The legislature directed the Department of Human Resources (“DHR”) to establish a plan to implement and evaluate the state’s current response system and recommend statutory changes. Id.

Within the year, DHR was instructed to “develop a pilot program for differential response, limited to three jurisdictions.” Id. By 2008, through HB 262, DHR was proposing “implementation of an alternative response program on a statewide basis.” Id. However, HB 262 did not receive a favorable report from the House Judiciary Committee due to fiscal and administrative concerns regarding DHR’s capacity to “overhaul” child protective services. Id.

Nevertheless, in August of 2009, DHR assembled a working group consisting of representatives from “academia, the courts, law 21 enforcement, health and community service providers, child advocates and social services professionals” to develop a process to execute a differential response pilot program in furtherance of the successful approach outlined in the national studies conducted in 2006 and 2008. Id. A similar bill to the 2008 proposal, HB 137, also received an unfavorable report from the House Judiciary Committee in 2011, but in 2012, HB 834 was passed, and § 5- 706 was amended to include extensive language regarding the use of an “alternative response” and the guidelines as to its practice in referrals of child abuse or neglect. Fiscal and Policy Note (rev) to HB 834, at 6; See FL § 5-706(a); (l)—(t).

With the amendments, FL § 5-706 currently establishes the implementation of an alternative response program, which includes the use of safety plans, and states, in relevant part: (a)(1) In this section, “alternative response” means a component of the child protective services program that provides