In Re John M.

KENNEY, Judge. This appeal arises from a juvenile delinquency proceeding in the District Court of Maryland for Montgomery County, sitting as a Juvenile Court. The juvenile court ordered John M. ¹⁷⁰ and his mother to pay $38,000 restitution for the counseling expenses of two children whom John M. confessed he sexually abused. John M. and his mother, appellants, contend that the court “clearly erred, procedurally and substantively, with regard to the amount and propriety of the restitution ordered in this matter.” Facts John M. admits that, on five different days while babysitting for two of his female cousins, he went to their bedrooms and “fondled” both girls, and digitally penetrated the older girl’s vagina.

John M. was fifteen years old. The younger cousin (“Victim # 1”) was four years old and the older girl (“Victim #2”) was six years old at the time of the abuse, which occurred between September 1,1995, and September 30,1996. He sometimes committed the abusive acts more than once in the same babysitting session. John M. claimed that neither girl appeared to awaken during the fondling.

The abuse was discovered on an occasion when the older girl found out that John M. was going to be babysitting for them again. She told her parents that she did not want John M. to babysit and described the acts that he did to her in her bed. The younger girl said she could not remember the abuse, but Victim #2 said she heard her sister screaming after John M. went into Victim # l’s room. When confronted by the police, John M. admitted to abusing both girls.

On April 4, 1997, two juvenile petitions were filed in the District Court for Montgomery County, charging John M. with twenty-one counts of sexual child abuse and third degree sexual offenses. On June 9, 1997, John M. entered a plea of “involved” to counts 1 and 7 (child abuse) and count 5 (third degree sexual offense) of Petition # 39709428 (regarding Victim # 1) and to counts 1, 7, and 10 (child abuse) and counts 5 and 13 (third degree sexual offense) of Petition # 39709429 (regarding Victim #2). The other counts were dismissed. The court found John M. to be delinquent. ¹⁷¹ At the conclusion of a subsequent hearing on August 25, 1997, the Juvenile Court ordered that John M.

(1) be placed on probation in the custody of his mother, 1 (2) participate in a juvenile sex offenders program, (3) perform community service, and (4) provide restitution, the amount of which was not determined at that time. On October 20, 1997, the court denied John M.’s motion to compel examinations of the victims by a child abuse therapist hired by John M. On both December 19, 1997 and April 6, 1998, the court heard testimony regarding restitution. On July 23, 1998, the court issued an order directing John M. and his mother to pay $38,300 in restitution. The order stated: Whereas, the Court having found the Respondent committed delinquent acts which have required [the victims] to seek counseling from a licensed health care provider in the amount of $38,300; It is therefore, ORDERED, pursuant to Article 27, Section 808 that [John M. and his mother] immediately pay restitution to [the victims’ parents] in the amount of $5,795.

It is further ORDERED, pursuant to Article 27, Section 808, that [John M. and his mother] immediately pay restitution in the amount of $585 to the Department of Juvenile Justice for reimbursement of [Victim #2’s] Spring, 1998 counseling expenses. It is further ORDERED, pursuant to Article 27, Section 808, that [John M. and his mother] immediately pay restitution in the amount of $31,920 to the Department of Juvenile Justice to be held in an interest bearing escrow account for reimbursement of counseling expenses for [the victims]. It is further ORDERED that upon application by [John M. or his mother], any unexpended portion of the escrow account being held by the Department of Juvenile Justice for the benefit of [the victims] may be returned to the applying party. The application referred to in this portion ¹⁷² of the order shall not be considered by this Court until April 20,2010.

This appeal followed. Questions Presented John M. and his mother present six questions for our review, which we have slightly rephrased: 1. Whether the juvenile court’s award of restitution was clearly erroneous and an abuse of the judge’s discretion. 2. Whether John M. received proper notice of the claim for restitution. 3.

Whether the juvenile court erred in not granting John M.’s Motion for an Independent Medical Examination of the victims to determine the nature and extent of their injury. 4. Whether the juvenile court’s refusal to stay execution of enforcement of the judgment against John M. and his mother was clearly erroneous and an abuse of discretion. 5. Whether John M.’s mother received proper notice of the claim for restitution and was given a fair opportunity to defend the claim for restitution. 6. Whether the juvenile court abused its discretion by granting the State’s continuance of the first Disposition/Restitution hearing.

We shall consider the second and fifth questions together. We answer the first, second, and fifth questions in the affirmative and the rest of John M.’s questions in the negative. We shall reverse in part and remand the case for further proceedings in accordance with this opinion. Motion to Strike As a preliminary matter, we shall grant appellee’s motion to strike John M.’s appendix.

Maryland Rule 8-501(b)(2) provides that no record extract shall be filed in an appeal to this Court from juvenile delinquency proceedings. ¹⁷³ Discussion Restitution in Juvenile Proceedings During the time that this case was being heard in the juvenile court, the applicable statutory provision for restitution was Article 27, § 808. 2 Section 808 stated, in pertinent part: (a) In general. — (1) The juvenile court may enter a judgment of restitution against the parent of a child, the child, or both in any case in which the court finds a child has committed a delinquent act and during or as a result of the commission of that delinquent act has: (iii) Caused the victim of the delinquent act to incur reasonable counseling expenses from a licensed health care provider, if the delinquent act involved: 2. Child abuse under § 35C of this article; ¹⁷⁴ * # * 4. Incest, rape, or sexual offense in any degree.... (c) Limitations on judgment. — ...

(2) As an absolute limit against any one child, his parents, or both, a judgment rendered under this section may not exceed $10,000 for all acts arising from a single incident. Juvenile- proceedings have a “special” character; they are civil in nature, rather than being criminal proceedings. In re Victor B., 336 Md. 85, 93 , 646 A.2d 1012 (1994). Juvenile Courts have broad discretion to order restitution, either against the juvenile himself, a parent, or both.

In re Don Mc., 344 Md. 194, 201 , 686 A.2d 269 (1996). Restitution serves several objectives. It can compensate victims who have been injured or who have suffered property loss as a result of the wrongful acts of a minor, although “a court’s concern that the victim be fully compensated should not overshadow its primary duty to promote the rehabilitation of the defendant.” In re Don Mc., 344 Md. at 203 , 686 A.2d 269 (citation omitted). Restitution “can ‘impress upon [the juvenile] the gravity of harm he has inflicted upon another*, and ‘provide an opportunity for him to make amends.’ ” In re Levon A., 124 Md.App. 103, 132 , 720 A.2d 1232 (1998) (quoting In re Herbert B., 303 Md. 419, 427 , 494 A.2d 680 (1985)).

The restitution statute “is also penal in nature since liability arises ‘as a consequence of a presumed neglect of parental responsibilities.’ ” In re Zephrin D., 69 Md.App. 755, 761 , 519 A.2d 806 (1987) (citation omitted). Under the common law in Maryland, absent proof of agency, parents are not vicariously liable for the wrongful acts of their minor children. [C & J] Section 3-829 alters this rule by imposing liability on the juvenile’s parent(s) where the child committed a delinquent act that caused injury to another. Exclusive of personal injury, the statute provides for some restitution to the victim where the juve ¹⁷⁵ nile either permanently deprived the victim of the property by stealing it or destroying it, or where the juvenile merely damaged the property. Since the statute is in derogation of the common law, it must be strictly construed.

Id. at 759 , 519 A.2d 806 (citations omitted). “[I]n permitting a court to assess restitution against a parent, ‘the legislature has expressed its preference that as between the victim, or the public, and the parents of a delinquent child, the parents should bear the expense caused by their child.’ ” In re Lorne S., 123 Md.App. 672, 679 , 720 A.2d 920 (1998) (quoting In re William George T., 89 Md.App. 762, 775 , 599 A.2d 886 (1992)). On appeal, the juvenile has the burden of establishing that the restitution awarded by the juvenile court was erroneous. In re Levon A., 124 Md.App. at 142 , 720 A.2d 1232 . The juvenile court’s decision will not be overturned on appeal “ ‘except on a clear showing of abuse of discretion, that is, discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.’ ” In re Don Mc., 344 Md. at 200-201 , 686 A.2d 269 (quoting State ex rel.

Carroll v. Junker, 79 Wash.2d 12 , 482 P.2d 775, 784 (Wash.1971)); see In re Levon, 124 Md.App. at 143 , 720 A.2d 1232 ; In re Lorne S., 123 Md.App. at 680 , 720 A.2d 920 . I. A. Section 808(c)(2) provided that “As an absolute limit against any one child, his parents, or both, a judgment rendered under this section may not exceed $10,000 for all acts arising out of a single incident.” (Emphasis added). The juvenile court interpreted the phrase “single incident” as follows: For the purposes of this case, I hold that each time [John M.] went into either girl’s bedroom or bed, and fondled them, uh, is a single incident. That is for each child, each time.

That is each touching of either the the [sic] children is a single incident. ¹⁷⁶ That he would be ordered to pay, as they are presented, the therapy bills for each child. The limit, since there must be a limit, would be however many incidents there were, times $10,000. Cause it says here, out of a single incident. And because he was apprehended, and ... each of these petitions against him has thirteen counts....

So, I’m not saying that there are thirteen incidents, there are ... at least by his admission I think five or six. Now, it may be that we’ll never reach any number as large as $50,000 or $60,000. I certainly hope for the sake of these girls that that’s never reached, because I think that it would indicate some very serious effects on them, which.I hope will not, have not occurred.[ 3 ] John M.’s contention regarding the court’s interpretation of “per incident” in the restitution statute is stated as follows: At trial, there was argument regarding the meaning of “per incident” as it relates to Article 27, § 808. [The Juvenile Court] stated, after considering the statute, which the Court defined as, “That is each touching of either the the [sic] children is a single incident.” This interpretation of “per incident” was clearly erroneous. The primary rule of statutory interpretation is to ascertain and carry out the legislative intent, recognizing the goals to be served by the statute and the evils the legislature sought to remedy.

Giant Food, Inc. v. Department of Labor, Licensing & Regulation, 356 Md. 180 , 738 A.2d 856 (1999); In re Lorne S., 123 Md.App. at 677-678 , 720 A.2d 920 . The words in the statute should be given “their ordinary and ¹⁷⁷ natural meaning.” In re Lorne S., 123 Md.App. at 677-678 , 720 A.2d 920 ; see also In re Christopher R., 348 Md. 408, 411 , 704 A.2d 443 (1998). “If the language of the statute is plain and clear and expresses a meaning consistent with the statute’s apparent purpose, no further analysis is ordinarily required.” In re Lorne S., 123 Md.App. at 678 , 720 A.2d 920 (citations omitted). In addition, because it is in derogation of the common law, the statute must be strictly construed. In re Zephrin D. 69 Md.App. at 759 , 519 A.2d 806 .

Although the General Assembly has increased the amount of restitution from time to time, the limitation language has remained consistent. In determining its meaning, it is appropriate to focus on the whole of the limitation section, which reads as follows: (c) Limitations on judgment. — (1) A judgment rendered under this section may not exceed: (i) As to property stolen, destroyed, converted, or unlawfully obtained, the lesser of the fair market value of the property or $10,000; (ii) As to property damaged, or substantially decreased in value, the lesser of the amount of damage or the decrease in value of the property not to exceed the fair market value of the property or $10,000; and (iii) As to personal injuries inflicted, the lesser of the actual medical, dental, hospital, funeral, and burial expenses incurred by the injured person as a result of the injury or $10,000. (2) As an absolute limit against any one child, his parents, or both, a judgment rendered under this section may not exceed $10,000 for all acts arising out of a single incident. Md.Code (1957, 1996 Repl.Vol.), Art. 27, § 808(c).

Although it is possible that victims of juvenile acts may be made whole financially by the permitted restitution, that is not a given under the statute. Whether the damages relate to property or to personal injury, the measure of damages is expressly limited to the lesser of fair market value or $10,000 in the case of property offenses and to the lesser of “actual” ¹⁷⁸ expenses or $10,000 for all acts arising out of a “single incident.” An “incident” is “[a] definite and separate occurrence; event.” The American Heritage Dictionary 650 (1985). In the context of “all acts arising out of a single incident,” “single incident” is more logically read to mean a separate occurrence defined by time and location, rather than each individual act committed during the incident. This more expansive definition of “incident” is consistent with the “all acts” language, which suggests that damages occasioned during a particular incident may result from different acts.

When subsection (2) is read in context with subsection (1), which limits different types of damages, the “absolute” limit obviously contemplates multiple types of damages, i.e., property damage or personal injury, and even multiple victims. In In Re John H., 49 Md.App. 595 , 433 A.2d 1239 (1981), aff'd, 293 Md. 295 , 443 A.2d 594 (1982), this Court was confronted with acts of vandalism involving damages in the approximate amount of $450,000 to schools in Baltimore County. . The trial court entered judgment against the parents of the involved juvenile in the amount of $10,100. A “Statement of Facts,” signed by the parties, stated that the Lutherville Elementary School was unlawfully entered by John H. between the hours of 6 p.m. on Saturday, October 13, 1979, and 9 a.m. on Sunday, October 14, 1979; that the Ridgely Junior High School was unlawfully entered on November 11, 1979, between 2 a.m. and 3 a.m.; and that the Lutherville Elementary School was unlawfully entered between November 10, 1979, at approximately 8 or 9 p.m. and November 11,1979 at approximately 4:20 a.m.

Id. at 604, 433 A.2d 1239 . The trial court found that the juvenile “had destroyed the property of the Board of Education of Baltimore County on three separate occasions, in excess of $5,000.00 [the then “single incident” statutory limit] on two of the occasions and in the amount of $200.00 on the third occasion.” Id. at 604, 433 A.2d 1239 (emphasis supplied). ¹⁷⁹ The parents contended that the damages on the evening of November 10 and the early morning of November 11 arose out of a single incident. The Court found that the damages did not arise out of a single incident. In a footnote, the Court said: Section 3-829(b)(4) provides ‘As an absolute limit against any one child or his parents, a judgment rendered under this section may not exceed $5,000 for all acts arising out of a single incident.’ In this case there were three separate incidents: (1) damages inflicted between October 13, 1979, and October 14, 1979, at Lutherville Elementary School; (2) damages inflicted between November 10, 1979, and November 11, 1979, at Lutherville Elementary School; and (3) damages inflicted on November 11, 1979 at Ridgely Junior High School.

Id. at 597 , 433 A.2d 1239 . We conclude that the most consistent interpretation of what constitutes a statutory incident in this case is each occasion where appellant babysat the victims in their home rather than each act committed during those visits. Each visit constituted a separate episode in a series of related events. Damages resulting from all acts committed during each visit are subject to the limitation of $10,000.

Assuming five separate incidents involving abusive acts, the maximum restitution exposure is $50,000. If the acts for which a plea was entered were all committed on the same occasion, however, restitution is limited to $10,000. It would appear that the acts were repeated as to each victim on each occasion, but because of the petitions that were filed, we cannot associate dates with the offenses to which a plea was entered and relate them to a particular babysitting incident. 4 To the extent that that becomes an issue, it can be addressed on remand. ¹⁸⁰ B. John M. also contends that the State produced “no evidence to support the need for future counseling” for the girls. Even if the victims do need counseling, John M. contends, the evidence was insufficient to demonstrate that his actions were the cause of their need.

In addition, he argues that the court could not award restitution for therapy in excess of the sums actually expended by a victim. Without question, the juvenile court was presented with evidence that would support the possible need for future counseling. The court heard extensive testimony from the victims’ counselors. First, Audrey Kramer, a licensed clinical social worker and the counselor for Victim # 2, was accepted as an expert in counseling child sexual abuse victims.

She testified that Victim # 2 had difficulty sleeping and was frightened that someone would come into her room. In Ms. Kramer’s opinion, this was connected to the girl’s fear of being abused. Ms. Kramer also testified that Victim # 2 still had feelings of guilt and shame about the abuse, and was afraid that if friends or relatives found out about the abuse they would not like her. Ms. Kramer believed that these feelings of shame created the need for additional therapy.

The therapist also testified that Victim # 2 might need additional therapy because, as the girl progressed through different developmental stages, her perceptions of sexuality, intimacy, and individuality might be affected by her experience of being abused. This “sleeper effect”, through which past traumas that have seemingly been conquered can reappear when the individual faces new stimuli, can influence victims of molestation at different stages in their lives, including pre-adolescence, adolescence, pre-marriage, and at childbirth, i.e., at “times when the individual’s sexuality becomes an issue.” As a result, Ms. Kramer testified, Victim # 2 might need intermittent therapy, starting again when the girl reacted adversely to new and challenging experiences and stopping when the girl was able to handle those challenges without being emotionally dominated by her traumas. ¹⁸¹ Sheila Gart, Victim # l’s counselor, testified and was accepted as an expert on child sexual abuse and therapy. Victim # 1, who was four years old when she was abused, told Ms. Gart that she did not remember John M. molesting her. John M., however, admitted to the police that he touched Victim # l’s genitals at least five times.

In addition, Victim #2 said that she heard her younger sister screaming after John M. went into her bedroom. Ms. Gart testified that the fact that Victim # 1 said she did not remember the abuse was somewhat belied by the girl’s behavior during the counseling sessions, which demonstrated Victim # l’s fears about not being safe in her own room and not being safe with people she had previously trusted (John M. is the girls’ cousin). Ms. Gart testified that some fears are common for four-year old children, but that sexual abuse makes the fears more intense and debilitating. Victim # 1 also appeared mentally to “shift” the abuse that she had suffered onto her older sister.

Ms. Gart testified that Victim # 1 said that John M. would abuse her older sister, “and she [Victim # 1] would, when he had come to her room, she had said stop, and he had run away.” Ms. Gart stated that she did not think it was possible that Victim # 1 truly did not remember being abused, and that the four year-old girl’s depiction of herself as stopping the abuse of her older sister indicated that Victim # 1 might be in self-denial about what had happened. Ms. Gart testified: Well, she remembers that, that things happened at night, because she talks about saying that she was protecting her sister. And as I’ve said, it could be a shifting to the sister to not deny, but uh, to protect herself. And maybe it was traumatic enough for her that she did not want to say that it happened to me, but it happened to my sister.

Ms. Gart stated that the “sleeper effect” may cause Victim # 1 to need counseling in the future. Specifically, Ms. Gart said that sexual trauma usually causes behavior in “the aggressive or sexual areafs]” that requires further counseling at different stages of a child’s maturation. Ms. Gart estimated that, in the best case scenario, Victim # 1 would need therapy ¹⁸² for about eight months to one year when she reached adolescence, and in the worst case scenario the girl might need therapy once a week for a three or four year period during her teenage years. Gavin Behrens, the clinical director of CPC Health, the clinic where the girls were counseled, was also accepted as an expert witness on the subject of child abuse and therapy.

He testified about the CPC Health’s billing procedures, and discussed future projections for the costs of the counseling. Although he had not counseled these victims, he agreed that therapy is often necessary at various stages of a child’s development. In restitution cases “there must appear in the record at the restitution hearing not only the judicial findings that are a prerequisite to liability, but sufficient evidence to support those findings.” In re Dan D., 57 Md.App. 522, 528 , 470 A.2d 1318 (1984). The Juvenile Court heard extensive evidence about the girls’ need for counseling and based on that testimony the court could find a causal connection between John M.’s act and the counseling incurred to date.

Although the evidence also would support a finding of a possible need for future counseling, there is an issue created regarding the causal effect of John M.’s acts and future expenditures. John M. cites In re Jason W., 94 Md.App. 731 , 619 A.2d 163 , cert. denied, 332 Md. 510 , 632 A.2d 767 (1993), as support for his argument that the girls’ future counseling needs are not connected to his abuse. In re Jason W. concerned restitution for a police car which had been wrecked by an officer pursuing a fleeing juvenile. We reversed the Juvenile Court’s finding that the juvenile was responsible for the cost of the car.

We stressed the active tense of the restitution statute, which at that time was C & J § 3-829(a), and held that the juvenile had not actually caused the damage. The police officer’s failure to control the car was the actual cause of the damage, and the juvenile was therefore not liable for restitution. Id. at 737, 619 A.2d 163 . At least, at this point in time, there is no third party or intervening cause associated with whatever trauma the victims have experienced. ¹⁸³ Although we are not aware of any juvenile case in Maryland that has presented this particular factual scenario, the problem created by restitution requests for undetermined and not yet incurred expenses has recently been addressed in Arizona.

In In re Alton D., 193 Ariz. 98 , 970 P.2d 452 (1998), a juvenile was adjudicated delinquent after admitting to