In Re Kaela C.

³¹⁸ ADKINS, J. In child custody cases involving “extraordinary circumstances,” Md. Rule 9-208(h)(2) authorizes a circuit court to issue an “immediate order” adopting the recommended findings and orders of a juvenile master, without having to wait until after the usual ten day period for parties to file exceptions to the master’s report. When the court exercises its authority to act during the exceptions period, however, its custody order “remains subject to a later determination by the court on exceptions.” Id. The question of first impression we must decide in this appeal is whether such “immediate order” authority also may be exercised in a child in need of assistance (CINA) proceeding. In this instance, the court adopted the master’s recommendations to sustain CINA allegations against a mother with custody of her three children, but ruled, pursuant to Md.Code (1974, 2002 Repl.Vol., 2004 Cum.Supp.), section 3-819(e) of the Courts & Judicial Proceedings Article (CJP), that these three children are not in need of assistance because there are no CINA allegations against their father, who is able and willing to take custody of the children.

We shall hold that, in such cases, the court has discretionary authority to enter an immediate order granting custody to the parent against whom there are no CINA findings, under Md. Rule 11-115(b). Such an order remains subject to any exceptions filed by the aggrieved parent against whom there are CINA findings because he or she may file exceptions to the master’s report and recommendations, and obtain a de novo hearing on them, after entry of such an order. FACTS AND LEGAL PROCEEDINGS Appellant Leslie C. and Christopher C. are the natural parents of nine year old Kaela C., six year old Gunner C., and four year old Franklin C. Gunner has been diagnosed as emotionally disturbed and in need of special education services. ³¹⁹ Leslie and Christopher separated in 2001, and subsequently divorced. At the time this litigation began, the three children lived with Leslie in Frederick County while Christopher lived in Norfolk, Virginia, where he was on active duty in the United States Navy, stationed on the U.S.S. Ronald Reagan.

Christopher had seen the children on only a couple of occasions during the previous two years, during which his military service included overseas and sea duty. In the 19 months between May 14, 2002 and December 2, 2003, Child Protective Services (CPS) received five reports that Leslie abused and/or neglected one or more of the children. In the first ten months of that period, Leslie was alleged to have twice abused Kaela while disciplining her. 1 She agreed to a safety plan under which she would refrain from physically disciplining the children. Three more CPS reports followed, however, resulting in additional investigations and family services. 2 According to the Frederick County ³²⁰ Department of Social Services (FCDSS), Leslie eventually refused her caseworker’s offer of services, refused to speak with investigators, and failed to follow the recommendations of the Family Advocacy Program at Fort Detrick, which provides services to families of military personnel.

In light of this history, a December 2 report of suspected abuse prompted CPS to place all three children in emergency shelter care. After hearings, and with both parents’ agreement, the juvenile court authorized continued shelter care, but ordered that the children be sent to Christopher for an extended visit. Pending further proceedings, Leslie was allowed supervised visitation. She also agreed to participate in an update of a previous psychological evaluation.

In January 2004, FCDSS filed a petition asking the Circuit Court for Frederick County to declare the three children to be “children in need of assistance” (CIÑA) and recommending that they be placed together in foster care. All of the allegations related to instances of physical abuse or neglect by Leslie, except the last allegation, which asserted that Christopher was unable to care for the children because of “his military obligations and frequent long absences” as a result of his military duties. An adjudicatory hearing was held before a juvenile master on March 3. At that hearing, Leslie agreed that the FCDSS could present evidence that would sustain the CINA allegations.

Leslie proffered that she had attended an anger-management program and parenting counseling and that she preferred for the children to remain in foster care until they could be reunified with her. Christopher acknowledged that his military career prevented him from being able to have custody of the children. On March 17, the case was called for a disposition hearing. By that time, the children had visited their father.

At the outset of the disposition hearing, Christopher advised that his ship was being transferred to San Diego in May, and that he would like the court to award him custody of all three children. He represented that, with the Navy’s permission, he ³²¹ and his fiancee were traveling to San Diego in April to buy a house if he was granted custody. He also stated that he would be able to obtain shore duty and that the children could receive social services through the San Diego Family Advocacy Program. Counsel for both FCDSS and the children concurred, on the basis of “the new evidence that [Christopher] is in fact now at disposition able to provide for [the children,]” that “continued placement in foster care for these children is [not] the best thing for them at this time.” Counsel advised the court that Christopher’s request for custody should be granted.

Leslie objected, arguing that Christopher’s plans were just “highly speculative” “conjecture at this point.” In her view, the children should remain in foster care with a reunification plan that would return them to her custody and care. The master postponed the disposition hearing in order for Christopher to “provide verification ... that he will be granted shore duty if the children are placed with him” and to participate in a family assessment along with his fiancee. On April 21, the parties returned to court for another disposition hearing. FCDSS presented a favorable family assessment recommending placement of all three children with Christopher due to his “proven track record of career stability, ... exceptional performance record and ... plans to ... finish his [military] career on shore duty[.J” Counsel for both FCDSS and the children agreed with that recommendation.

FCDSS and counsel for the children also informed the court that Gunner had been having such “severe behavioral problems” in foster care that he was “probably go[ing] to be removed today,” resulting in separation of the siblings and further trauma to them. Leslie again objected, repeating her preference to have the children remain in foster care in order to give her “an opportunity to reunite” with them. Her counsel pointed to the continuing lack of proof that Christopher actually would be granted shore duty, and emphasized that there would be no one to care for the children if Christopher was absent. ³²² The master concluded that the CIÑA petitions should be dismissed because Christopher is able and 'willing to take custody of all three children. At that point, counsel for FCDSS asked the master to recommend an immediate custody order: [Counsel for FCDSS]: Your Honor, can we request that the Court’s order, I forget the language and I know it’s questionable whether it can be done, but that the Court’s order become an immediate order pending the exceptions hearing.

The Master: Actually I think I can do that. (Brief pause.) [Counsel for Leslie]: I ... would object to that, Your Honor. The Master: Okay. [Counsel for Christopher and the children], do you wish to be heard? [Counsel for Christopher]: ... [W]e support the Department’s position, Your Honor. [Counsel for the children]: As do I, Your Honor. (Brief pause.) The Master: I will recommend in light of the imminent necessity to remove Gunner from his home, ... and pursuant to Maryland Rule 9-208(h)(2) as well as the CINA provision of the Courts and Judicial Proceedings [Article] which indicate that when the placement of the child is changed, the Master can recommend that the ...

Court adopt that recommendation immediately. I will also recommend that my ... recommendations be adopted immediately. But certainly counsel would be entitled to a hearing on that and that will conclude these matters.... (Emphasis added.) Leslie did not request a hearing on the issue of whether the juvenile court could or should issue an immediate order transferring custody to Christopher. 3 ³²³ Two days after this hearing, the master issued her written recommendations.

On that same day, the Circuit Court for Frederick County, sitting as a juvenile court, adopted the master’s recommendations. The juvenile court ruled that “the children are not in need of assistance” because their “father is available, able and willing to care for the[m.]” It also found that “the children have poorly adjusted to their placement in foster care and it is in their best interests to be placed with their father immediately,” given that “Gunner’s current foster care placement is jeopardized due to his poor behavior[.]” Concluding that “extraordinary circumstances exist pursuant to Md. Rule 9-208(h)(2)[,]” the court dismissed the CINA petitions and awarded custody of all three children to Christopher. Leslie was granted “reasonable and liberal visitation with the children.” Leslie did not file exceptions to the master’s recommendations, believing that her opportunity to do so had been foreclosed by the juvenile court’s order. Instead, Leslie appealed the order, raising two issues for our review, which we restate as follows: I. In a CINA proceeding adjudicated before a juvenile master, may the juvenile court enter an order awarding custody to a parent against whom there are no CINA findings before the period for filing exceptions to the master’s recommendations has expired?

II

Did the juvenile court deprive Leslie of her right to file exceptions to the master’s CINA recommendations? ³²⁴ DISCUSSION I. Immediate Custody Orders When Juvenile Court Exercises Authority Under CJP Section 3-819(e) A. Award Of Custody To A Non-CINA Parent This appeal revolves around the interplay between several rules and statutes pertaining to CINA petitions and child custody orders. We review these to lay the foundation for the issue presented by this case. This litigation began with a CINA petition. Maryland’s circuit courts, sitting as juvenile courts, have “exclusive original jurisdiction over ... [proceedings arising from a petition alleging that a child is a CINA[.]” CJP § 3-803(a)(l).

The CINA subtitle permits the juvenile court, after an adjudicatory hearing on the allegations in a CINA petition, to conclude that the child is not in need of assistance because he or she has a viable option to live with a suitable parent against whom there are no findings of abuse or neglect. In such cases, at the disposition hearing on the CINA petition, the juvenile court may find that “the allegations in the [CINA] petition are sustained against only one parent of a child, and there is another parent available who is able and willing to care for the child[.]” CJP § 3-819(e). In these circumstances, “the court may not find that the child is a child in need of assistance, but before dismissing the case, the court may award custody to the other parent.” 4 CJP § 3-819(e)(emphasis added). In addition to exclusive jurisdiction over the CINA proceedings, juvenile courts have concurrent jurisdiction over “custody of a child alleged to be a CINA ³²⁵ under circumstances described in [CJP] § 3 — S19(e)[.]” CJP § 3-803(b)(l)(ii).

Juvenile masters may assist a juvenile court in CINA cases, but may not make the ultimate decision as to whether the allegations in a CINA petition are sustained, whether the child is in need of assistance, or whether one parent should be awarded custody under CJP section 3-819(e). See CJ § 3-807. The master conducts hearings, then issues written “findings of fact, conclusions of law, and recommendations as to an appropriate order.” CJP § 3 — 307(b)(2). At that point, “[a]ny party, in accordance with the Maryland Rules, may file written exceptions to any or all of the master’s findings, conclusions, and recommendations,” and “may elect a hearing de novo or a hearing on the record before the court.” CJP § 3-807(c)(emphasis added). “[I]n the absence of timely and proper exceptions,” the master’s proposed findings, conclusions, and recommendations “may be adopted by the court and appropriate orders entered based on them.” CJP § 3-807(d)(2)(emphasis added).

As stated in CJP section 3-807, the procedure for challenging a master’s recommendation to award custody to a non-CINA parent is established in the Maryland Rules, and more specifically, within Title 11 governing proceedings in juvenile causes, including petitions to declare a child to be in need of assistance. See Md. Rules 11-101 (b)(1), 11-103(a). After the master hears a CINA petition, he or she submits a written report to the juvenile court, consisting of “proposed findings of fact, conclusions of law, recommendations and proposed orders with respect to adjudication and disposition.” Md. Rules 11-111(b), ll-115(b). At that point, [a]ny party may file exceptions to the master’s proposed findings, conclusions, recommendations or proposed orders.

Exceptions shall be in writing, filed with the clerk within five days after the master’s report is served upon the party, and shall specify those items to which the party ³²⁶ excepts, and whether the hearing is to be de novo or on the record. Upon the filing of exceptions, a prompt hearing shall be scheduled on the exceptions. An excepting party other than the State may elect a hearing de novo or a hearing on the record.... Md. Rule 11 — 111(c)—(d).

With this procedural background, we turn to the question presented by this case — whether a juvenile court exercising its authority to award custody to a non-CINA parent under CJP section 3-819(e) may enter a custody order before expiration of the period during which the CINA parent may file exceptions to the master’s recommendations. B. Authority To Enter Custody Order Before Exceptions Period