In re John F.

DEBORAH S. EYLER, J. This is an appeal from orders of the Circuit Court for Washington County, sitting as the Juvenile Court, adjudicating John F., Jr. and Shawn F. Children in Need of Assistance (“CINA”). The appellant is Sherry F., the children’s mother. The appellee is the Washington County Department of Social Services (“Department”). The appellant poses two questions for review: I. Did the Juvenile Court have jurisdiction in this case when the Department failed to show that the children were residing in Maryland at the time the Petitions were filed?

II

Did the Juvenile Court improperly rely on hearsay in concluding that the facts alleged in the Petitions were sustained? For the following reasons, we shall affirm the orders of the circuit court. ¹⁷⁴ FACTS AND PROCEEDINGS The appellant is the mother of John F., Jr., born on July 11, 1999, and Shawn F., born on January 16, 2001. The boys’ father, John F., participated in the proceedings below but is not a party on appeal. The appellant also has two daughters.

On August 17, 2005, in the Circuit Court for Washington County, the Department filed petitions seeking to have John F., Jr. and Shawn F. declared CIÑA. The petitions alleged that the appellant’s address was an apartment in Hagerstown, and that the boys were living with her. The petitions set forth the following allegations. On June 7, 2005, the Department received a report of alleged neglect of the boys.

The reporter stated that the appellant would come home drunk from work and would not get up in the morning to take John F., Jr. to school. She had taken the boys overnight to Pennsylvania, to the home of her boyfriend, Henry Garland, who had abused her and the boys, and whom she was supposed to stay away from. Garland recently had beaten her up again, and she had a black eye. The social worker assigned to the case, Sherry Keeney, attempted to visit the appellant’s apartment on June 9, 2005, but found no one home.

On June 13, 2005, a former babysitter for the appellant called the Department and reported that Garland had beaten the appellant and made her face “black and blue.” When the babysitter stayed with the children, the appellant would come home drunk. John F. was spending time with the appellant; he too was “a drunk.” The boys were afraid of Garland, and the babysitter thought Garland was capable of hurting them. The next day, Keeney met with the appellant at the appellant’s apartment. The boys were present.

The appellant indeed had a black eye, which she claimed she had gotten from being hit by a ball when she was playing baseball in a game the boys had attended. She also claimed that she had not seen Garland for about a month and that she was working and ¹⁷⁵ receiving substance abuse counseling. She said she had just moved to the apartment on June 13, 2005. The appellant was supposed to bring the boys to the Department to be interviewed on June 15, 2005, but did not do so.

Two days later, Keeney conducted a home visit. The boys were present. The appellant claimed that she missed the June 15 visit because she had had to work and could not call to cancel because she had no telephone. The interview was rescheduled.

On June 20, 2005, Keeney interviewed the boys, separately, at the Department. John F., Jr. reported that the appellant was hit by a ball when she was batting in a baseball game. He said that Garland was “nice and funny” and that their father watched them when the appellant was at work. As the family was getting ready to leave, John F., Jr. said to the appellant, “I didn’t tell them anything about Henry.” Shawn F. told Keeney that Garland had kicked the appellant in the stomach, had “busted” her eye, and would not stop hitting her.

He also said that Garland hit the boys “everywhere.” He reported that the appellant did not play baseball, and he and his brother had never watched her playing baseball. Shawn F. further stated that Garland had been to their new apartment in Hagerstown a few times, and they had gone to Garland’s house and slept there. He reported that, when his mother was at work, Garland, “Nana,” or the boys’ father would watch them. He told Keeney that the appellant drank beer that she called “medicine.” On the same day, June 20, the appellant again told Keeney that she had gotten her black eye from playing baseball.

She admitted that Garland had been to their new apartment a few times “at the door.” On June 28, 2005, Keeney attended another home visit with the appellant and the boys. When she attempted to discuss ongoing services, the appellant said, “I’m tired of all this. I’m going to get a lawyer. I just moved back to Washington County.

If this is the way it’s going to be, then I’ll just move back to Pennsylvania.” The appellant also said that she did ¹⁷⁶ not have time to drink and that she did not know why it was a problem for Garland to be around the children. The appellant then asked about continuing services from the Department. Keeney told her that she would have to cooperate with the Department to receive those services, and that, if she would not cooperate, legal action would be taken. The appellant was not served with the petitions until August 25, 2005, the day of the emergency adjudicatory hearing.

She was present in the courthouse that day because there was an emergency review hearing in a Termination of Parental Rights (“TPR”) case for her daughters. Her lawyer, who represented her in all the cases, was given a copy of the petitions by counsel for the Department. She in turn gave them to the appellant. In addition to the appellant, John F. was present with counsel at the adjudicatory hearing, and counsel for the children was present.

Counsel for the children consented to a CINA adjudication for John F., Jr. and Shawn F., but counsel for the appellant and John F. did not. The Department’s lawyer asked to “proffer the facts and allegations contained in the Juvenile Petition subject to cross-examination[.]” There was no objection to that request, and the court granted it. Counsel for the Department then stated that he was not calling any witnesses, subject to rebuttal. The appellant’s counsel proceeded to cross-examine Keeney.

Keeney acknowledged that, on June 14, she had obtained a random urine sample from the appellant that tested negative. However, the most up-to-date information from the counseling center the appellant had said she was attending was that she had just resumed counseling on July 18, and that she had failed to appear for counseling sessions on August 8 and 16. Keeney also stated that she was not sure where the appellant was living right then, and that she could be living in Pennsylvania. The appellant never notified the Department that she was moving to Pennsylvania, however. ¹⁷⁷ It was undisputed that John F. was residing in Maryland at all relevant times.

At the close of the Department’s case, counsel for the appellant moved to dismiss the petitions on the ground of lack of jurisdiction. The court denied the motion. The appellant testified that she and the boys currently were residing in Pennsylvania. She stated that she had left Garland because he had abused her in Pennsylvania.

Garland then moved to Maryland and “don’t live in Pennsylvania anymore.” The appellant claimed that she had abided by all of the Department service agreements and court orders in the TPR case. She was upset when Keeney first came to visit her because she only had been living in Hagerstown for two days. She would have agreed to a service plan for the boys if she had been presented with one. On cross-examination, the appellant did not deny that she had gone to Garland’s house in Pennsylvania on June 7, 2005, in violation of prior sendee agreements and court orders directing her to have no contact with him.

Counsel for the appellant informed the court, in response to a question, that the appellant had moved to Pennsylvania the prior Tuesday, which would have been August 16, 2005, the day before the CINA petitions were filed. After hearing argument of counsel, the court ruled as follows: Well of course I have to review the credibility of witnesses. I don’t think that the Department’s case has been rebutted to an extent that I should deny adjudication. As I indicated previously, I adjudicate these two children to be in need of assistance.

There is sufficient evidence to warrant same regardless of where [the appellant] is living at this time. And there is no reason to delay disposition.... The children were continued in the legal and physical custody of the appellant, under the supervision of the Department. The appellant noted a timely appeal. ¹⁷⁸ DISCUSSION I. The appellant contends the Juvenile Court erred by denying her motion to dismiss the CINA petitions for lack of jurisdiction.

Specifically, she maintains that the Department did not show that John F., Jr. and Shawn F. were residing in Maryland when the petitions were filed, and therefore did not adduce facts to establish that the Juvenile Court had jurisdiction over them. The Department responds that the Juvenile Court properly determined that it had jurisdiction over the children. It maintains that the court had jurisdiction over the boys because their father resided in Maryland, they had resided in Maryland within six months prior to the filing of the CINA petition, the court had jurisdiction over the boys’ sisters, and there was no credible evidence that the boys’ residence was no longer in Maryland. The Maryland Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), Md.Code (1984, 2004 RepLVol.), section 9.5-201 of the Family Law Article (“FL”), sets forth the grounds on which Maryland courts may exercise subject matter jurisdiction in child custody proceedings. 1 It provides, in pertinent part: (a) Grounds for Jurisdiction. [With an exception not applicable here], a court of this State has jurisdiction to make an initial child custody determination only if: (1) this State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State; ¹⁷⁹ (2) a court of another state does not have jurisdiction under item (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under § 9.5-207 or § 9.5-208 of this subtitle, and: (i) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this State other than mere physical presence; and (ii) substantial evidence is available in this State concerning the child’s care, protection, training, and personal relationships; (3) all courts having jurisdiction under item (1) or (2) of this subsection have declined to exercise jurisdiction on the ground that a court of this State is the more appropriate forum to determine the custody of the child under § 9.5-207 or § 9.5-208 of this subtitle; or (4) no court of any other state would have jurisdiction under the criteria specified in item (1), (2), or (3) of this subsection.

FL section 9.5-101, in pertinent part, provides the following definitions: (d)(1) “Child custody determination” means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. (e)(1) “Child custody proceeding” means a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue.... [It] includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear. ¹⁸⁰ (f) Commencement.—“Commencement” means the filing of the first pleading in a proceeding. (h) Home State.—“Home state” means: (1) the state in which a'child lived with a parent or a person acting as a parent for at least 6 consecutive months, including any temporary absence, immediately before the commencement of a child custody proceeding____ FL section 9.5-101 (e)(1) makes plain that the UCCJEA applies to all child custody proceedings, which, by its definition, includes CINA proceedings. Further, Md.Code (1973, 2002 Repl.Vol.), section 3-803(a) of the Courts & Judicial Proceedings Article (“CJP”) grants exclusive original jurisdiction over proceedings arising from a CINA petition to the Juvenile Courts.

In In re Nahif A., 123 Md.App. 193 , 717 A.2d 393 (1998), we addressed the burden of proof in a challenge to subject matter jurisdiction in a juvenile case. There, the State filed two juvenile delinquency petitions against Nahif in the Circuit Court for Frederick County. The petitions set forth Nahif s birth date. A delinquency hearing was held in the circuit court, sitting as the Juvenile Court.