In Re Jertrude O.

LOWE, Judge. A “[c]hild in need of assistance” is one who is not receiving ordinary and proper care and attention and whose parents are unwilling or unable to so provide the child and his problems. Md.Cts. & Jud.Proc.Code Ann. § 3-801(e). Although the statute provides the measure by which a judge must determine whether a child is receiving such care and attention, Cts. & Jud.Proc. § 3-819(d), 1 the juvenile causes subtitle does not suggest what is proper or what is ordinary. ⁸⁷ Presumably, the judge is expected to make that determination evidentially and empirically.

A judge in the Juvenile Division of the District Court of Montgomery County was called upon to determine whether the “ordinary” customs and mores of Central African Republic parents in raising their children were “proper” when permitted or performed in America. He decided that they were not; and because one of three daughters had bruises and scarring of skin and bone unsatisfactorily explained to him, he declared all three of appellants’ children in need of assistance. The oldest daughter, four-year-old Jertrude, had been taken from her parents pursuant to § 3-815(b) prior to the adjudicatory hearing, and at disposition shelter care in a private home was continued presumably pursuant to § 3-820(b)(2) (now (c)(2)) (1982 Cum.Supp.). Jertrude’s father was employed as a chauffeur at the Central African Republic’s embassy which paid him neither substantially nor regularly.

As a result, his family’s shelter was nomadic, occasionally shared and barely adequate. Except for whatever inferences could be drawn from Jertrude’s scars and her occasional seeming withdrawal from her parents following their six month long separation, there was no evidence at all that her parents were other than loving and caring ones. Although some suspicion by reason of primary custody focused upon the mother as the source of Jertrude’s injuries, extensive and repeated examinations and investigations in home and out, individually and familially, physically, psychiatrically, socially and judicially by the Montgomery County Department of Social Services unearthed nothing that would indicate abuse. Indeed, quite the contrary was pointedly indicated in the sensitive and perceptive observations following examination of the mother by the Department’s Psychiatrist, Rosalie Barr, noted in the Department’s evaluation update prior to the disposition from which this appeal was taken. “There were no signs of the characterological defects (impatience, easy frustration, inability to stay on task, detached effect, minimizing, evasive or paranoid flavor, ⁸⁸ etc. etc.), which would predispose to abuse.

Her suffering at the emotional as well as physical loss of Jertrude revealed her valuation of and attachment to the child Because the father spoke English haltingly and the mother not at all, their attempt to explain the possible cause of current bruises, old healed-over hairline bone fractures and epidermal scars on Jertrude was, to state the obvious, unconvincing to the judge who decided that the injury residuals evidenced by pictures and x-rays could not have occurred if “the parents were in any way caring for the child or ... or alert to the child’s care.” While the judge recognized the absence of evidence of parental child abuse and realized that he could not apply a res ipsa loquitur rationale, he came dangerously close to doing just that. “[I]t would be the Court’s opinion that any child who has been the subject of physical abuse by one or both parents, is an example of a child who is not receiving ordinary proper care and attention and it would follow, in my view, that the parents would be, in that context, unwilling or unable at least to give proper care and attention of ... if there was concern there would be some ... at least if there was some concern, that they . . . there would be ongoing . . . ongoing mistreatment if the child were to remain in the home of the parents. We do have injuries that have in a sense been unexplained. Explained by the parents. Unexplained in the view of the . . . medical and other professional people involved.” But absent the physical fact of the scarring and an interpretation of those scars by a medical doctor employed by the Montgomery County Health Department who had “had occasion to actually ... look at [Jertrude’s] body”, but who did not “give her [a] full medical, physical examination”, there was no evidence that anyone had abused Jertrude, much less her parents.

Ironically, the finding that the parents had not provided ordinary or proper care and were unwilling or unable to do ⁸⁹ so emanated from their having taken the child to a hospital for treatment of an injury discovered by the mother when bathing the child. The numerous fine cut-like scars and circular marks on her body prompted the doctor to x-ray and more carefully examine the child. He then reported what appeared from the examination to be a “battered” child as he is required to do. When called upon to explain the source of these bruises and scars, etc., the parents (ultimately through an interpreter), although not professing to know precisely when each old injury occurred, explained that the child continuously climbed and fell from furniture and in her bathtub, and pointed to specific episodes which may have caused bruises and the unexplained old injuries.

This was substantiated by the County’s evaluation report noting that Jertrude was still noticeably bruised ten weeks after she had been removed from her parents’ custody. The update report also noted her continued propensity at her foster home to climb upon dressers, sofa, top of her closet and banisters as well as the bathtub. They explained her skin scars as best they could from the nature of the scars. There were apparently three types of scars or marks on the child’s body as revealed in photographs submitted and as described by the Health Department doctor who had “looked at” Jertrude’s body. “DR.

FRANKEL: I saw a child who was covered with scars. From . . . extending from . . . the neck to . . . her toes essentially, from her . . . the whole back, her bottom, the front and back of her body had numerous scars on that. There were a few scars on her face but not significant the ones that I saw on the body. COURT: Did you say arms and legs or . . .

DR. FRANKEL: Yes. COURT: Arms and legs including the torso as well? DR.

FRANKEL: Yes. MR. WRIGHT: Now, when you say a scar, what do you mean by a scar? ⁹⁰ DR. FRANKEL: I am describing what is ... the residual of an injury.

It’s ... a tissue reaction. And . . . she had different types of scars. She had scars with which showed hypopigmentation and body reaction and she also showed areas where it appeared that the dermis, the full thickness of the skin, was missing and healed and that (Unclear). Q: What would be the difference between this area that had hypopigmentation and the one with depigmentation?

What . . . A: It depends on the extent of the injury. Tissue reaction usually occurs in .. . and you can have particularly ... in people with dark pigmentation . . . dark skin, hypopigmentation, an over reaction of the . . . the layers of the skin. If the full thickness of the skin is removed, then you end up with no pigmentation, therefore you have these white marks.

White scars. I think ...” The mother, who appeared to have taken the skin condition more or less for granted, explained that the straight and curved scars on the legs and buttocks could have come from the tall grasses in the fields occasionally, if not frequently, traversed by Jertrude in Africa from which they had recently arrived. The larger, coarser scars on her neck and body probably were caused by scabies, a common skin parasite prevalent in the Central African Republic. Scabies are itch mites which bore beneath the skin and cause intense itching and eczema aggravated by scratching.

The circular or oval marks were made by “cupping”, a procedure explained by African experts as a customary quasi-medical procedure in which the hollow end of a cow horn is heated and then pressed against the body to create a suction effect presumably to withdraw whatever evils are causing a current sickness. Dr. Frankel, the Health Department pediatrician who had looked at Jertrude’s body, suggested different explanations. She could conceive of no “medical” explanation for the scars, but indicated that the elongated cut-like marks were ⁹¹ “. . . marks that I have seen being inflicted by ... a child being whipped with an instrument”; presumably such as a “twig which is looped, a green stick kind of thing or a . . . something like a belt with a harder impression at the edges and therefore I’m going that the configuration is ... I ... my tendency is to think of something that was looped.

And then inflicted in that fashion.” The oval marks, she said were “very reminiscent of human bites, of adult human bites, rather than a child’s human bite.” She did not, however, have “a clear cut explanation” of other marks on the neck. She conceded that some of these marks could have been caused by skin diseases or skin rashes prevalent in Africa but discounted as unlikely that “cupping” could have caused the oval marks because the person administering the “worthless” procedure would have to handle the heated horn and, therefore, “would sustain the burn as well.” How the customary procedure was performed in Africa without similar injury to the administrant was not addressed. Finally, she conceded that she did not see any bruising, perhaps because of the dark pigmentation of the child, although the hospital history initially had reported bruises on the child. Based upon these expert conjectures, photographs of the child and the Department’s initial emphatic recommendation that “[tjhis child should not return home under any circumstances at this time”, the judge declared all three of appellants’ children to be in need of assistance — that is deprived of, and unable to receive from unwilling or unable parents, ordinary and proper care and attention.

This was partially predicated upon the possibility that Jertrude had been abused. “A child of course, who may present some difficulty, who is perhaps unruly, difficult to deal with, often times, ⁹² unfortunately is the child that suffers the abuse. In this case it’s the older child and perhaps is the . . . has been the subject of some abuse. Perhaps caused by stresses within this family that we don’t then really know about. Because those stresses occurred in ... in Africa or coming to this country, of course, I could only speculate.

But the Court can . .. must find that this is a child in need of assistance. That the parents have not provided this child with proper care and attention and at this point the court can only conclude that they are unable to do so. And for this reason will make the finding that the .. . child is a child in need of assistance. In the context that I’ve indicated that the child, Jertrude, in my opinion has been . . . has not been properly cared for and has been a ... . in my view, perhaps, the subject of abuse.

Some of the injuries at least . .. can only in my ... in my view have occurred in this fashion.” (Emphasis added). At the disposition hearing the judge’s reluctance to find abuse rather than speculate upon its likelihood was again manifest when he observed the manner in which the mother handled one of her younger children which the judge left with her. “I guess to put it bluntly, seems like she treats it like a rag doll. I’m not saying I’ve seen any deliberate mistreatment of the child. But picking the child up under the arms, lifting it up in the air ...

I mean the point occurs to me, to dislocate the child ... it’s not a Raggedy Ann doll, it’s a child. Dislocate arm or the shoulder. Maybe rough handling is ... is what I’m observing. And I’m just wondering if that’s .. . goes on . . . obviously it goes on right here in Court.

I mean it’s unintentional I’m sure. But nonetheless that’s . . . traditionally she handles the child. It occurs to me that this could be explained some of the ... injuries to Jertrude. Or I mean if Jertrude is been particularly obnoxious around her parents, at a given time, which all children get, maybe that carries over into some rougher handling in disciplining.

As opposed to just a willful beating of the child, such as rough handling is ⁹³ what I’m talking about. And I just wonder if you observed that. We’ve all seen that in the courtroom, I’m sure.” This was responded to by the field representative who had become more and more knowledgeable of the cultural mannerisms of the Central Africans as well as more intimately understanding of the parents involved. “I’ve observed it. I’ve also been to the embassy and I noticed it’s more or less characteristic of .. . the . . . people and I think it’s more of an affectionate . . . you do it when you’re feeling affection rather than when you’re angry.

You sort of . . . it’s like a jerking motion. And I think it could hurt a child. Particularly someone as small as Jertrude. And I’ve talked to [the mother] about it.

I don’t think it’s done in anger. I’ve never . . . COURT: I wasn’t saying it was done in anger. I don’t know that it was done in affection.

It was just a matter picking the child up and . . . getting it moved out of the room or something . . . somewhere else in the room and I think ... MS. GILMOND:[ 2 ]I think that could account for . . . an injury. I don’t . . . you know, I don’t think ...

I can’t remember if Jertrude has been ever . . . COURT: Is any of this program geared to try to . . . retrain [the mother] or something? MS. GILMOND: Well, when I called Arlington Mental Health I said that the preface would have to be around . .. cultural adaptation and ... parental discipline.

That sort of thing. I asked them, you know, if I spoke [to the mother] she would, you know, if she thought it would hurt the child, and would stop right away. One day I . . . you know, I did explain to her that in this country we . . . don’t leave little children unattended. She didn’t know that that was not done.

I think there was like a seven year old who was staying with a two year old. And I told ⁹⁴ her that in this country, we don’t do that. And that was . .. you know, one other area where she didn’t know that you don’t do that. Even for a . . . then some parents do it but . . . there’s a risk.” The judge then incorporated his formerly exhibited fear of the likelihood of abuse existing with his observation of the absence of gentle handling and decided to continue all of the children under judicial jurisdiction and Jertrude in shelter care. “All right.

The Court did conclude at the last hearing and I know the [parents] didn’t like to hear it, but I have to conclude from the last hearing that there was in my way of thinking, a