In re: M.C.

In re: M.C., No. 1273, September Term, 2020. Opinion by Nazarian, J., filed April 1, 2020. APPEAL AND REVIEW – MOOTNESS – EVASION OF REVIEW Exception to mootness doctrine is available in cases that present a recurring matter of public concern, which, unless decided, would continue to evade review, and applied to juvenile court orders that are almost always replaced by subsequent orders and, absent review, would negate a parent’s ability to challenge them. CHILDREN IN NEED OF ASSISTANCE – MODIFICATION OF VISITATION – HEARING Juvenile Court abused its discretion and violated mother’s due process rights when, based solely on conflicting proffers, it denied mother a hearing, which she requested, before modifying visitation.

A hearing is not required if the disputed allegations are immaterial to whether the child is in serious immediate danger or if modification is required for the safety and welfare of the child. Here, a hearing was required because the disputed allegations related to the safety and welfare of the child. Circuit Court for Montgomery County Case No. 6-I-19-89 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1273 September Term, 2019 ______________________________________ IN RE: M.C. ______________________________________ Fader, C.J., Graeff, Nazarian, JJ. ______________________________________ Opinion by Nazarian, J. ______________________________________ Filed: April 1, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-04-01 12:09-04:00 Suzanne C. Johnson, Clerk On June 10, 2019, the Circuit Court for Montgomery County found M.C. to be a child in need of assistance (“CINA”) as part of an agreed disposition.

Among the terms of the agreement, which the court embodied in its order, D.P. (“Mother”) and the Montgomery County Department of Social Services (“Department”) agreed that Mother would get unsupervised visitation with M as long as she tested negative for illicit substances. After the Department came to believe that Mother violated a protective order, it filed a Motion to Amend the June 10, 2019 order and proffered, in an unsworn memo from a social worker, that Mother violated a protective order, missed urinalyses, and tested positive for cocaine on one occasion. Mother opposed the motion, asked for a hearing, and proffered testimony that disputed the bases of the Department’s memo.

On August 15, 2019, the juvenile court granted the Department’s motion without a hearing, and changed visitation from unsupervised to supervised. Mother argues on appeal that the court abused its discretion in changing her visitation terms without a hearing. We agree and reverse. I. BACKGROUND On May 20, 2019, the Department filed a petition alleging that M was a CINA.

The Department filed an Amended CINA Petition on June 10, 2019, in which it proposed that Mother should have unsupervised, once-weekly visits with M “so long as [Mother] tests negative for illicit substances on an ongoing random basis.” On June 10, 2019, under Maryland Code (1973, 2013 Repl. Vol.) § 3-817 of the Courts & Judicial Proceedings Article, the Circuit Court for Montgomery County, sitting as a juvenile court, convened an adjudicatory hearing on the CINA petition. Before the hearing began, though, the parties came to an agreement: [DEPARTMENT’S COUNSEL]: Yes, Your Honor, the parties have been through mediation and we have an agreement in this case that I think disposes of all issues. The first component is that the parties agree that had this case gone to trial that the Department would have proved the facts of the first amended petition by a preponderance of the evidence.

I believe that both mother and father would choose not to make any admissions with regard to it. So, agree that the Department would have proof of these facts by a preponderance of the evidence. Secondly, I believe we have an agreement that those facts would constitute these children as children in need of assistance. And thirdly, the dispositional recommendations, which are attached to the end of the first amended petition are also–have also been agreed to and collaboratively created by the [] parties.

I believe that’s our agreement. *** [COUNSEL FOR MOTHER]: Yes, Your Honor. I have gone over the changes that the Department has made with my client and she agrees that these will be the facts that the Court will find by a preponderance and that we won’t have a trial. We won’t have witnesses. And the provisions in the recommendation for disposition will be the provisions that will be in the court order.

And she’s on the phone now. I’ve talked with her multiple times and [] if I could just talk to her on the record now? THE COURT: Sure. Mother, through her counsel, entered her agreement on the record: [COUNSEL FOR MOTHER]: Okay.

So, you had a chance to look through the first amended Child in Need of Assistance Petition? [MOTHER]: Yes. I have. [COUNSEL FOR MOTHER]: Okay. And you’ve seen the recommendations for disposition that–that last version? [MOTHER]: Yes. [COUNSEL FOR MOTHER]: Okay. And you understand that we’re reaching an agreement so there will not be a trial, but we’re trying to come back soon so we’ll be back in September and then we’ll have another hearing in October and another 2 hearing five months after that in April? [MOTHER]: Okay.

Sounds good. [COUNSEL FOR MOTHER]: Okay. All right. So, my client agrees– THE COURT: Well, I mean let’s swear her in and if you could voir dire her under oath. Mother was sworn in and the court conducted voir dire.

Under the terms of the agreement, the court found M to be a CINA and ordered unsupervised once-weekly visitation with M “so long as [Mother] tests negative for illicit substances on an ongoing random basis.” The court memorialized its ruling in a written order. On July 26, 2019, the Department filed a motion to amend the disposition order to change Mother’s visitation to supervised. The Department contended that Mother had violated a protective order, failed to complete urinalyses in the weeks of May 26, June 2, June 9, June 30, and July 7, 2019, and tested positive for cocaine on May 21, 2019. The Department supported its motion with an unsworn memorandum from a social worker listing the various violations; the memorandum attached a police report describing the protective order incident, but included no other primary source material.

Mother responded on August 12, 2019 by filing an opposition to the Department’s motion and a request for discovery. She asked the Department to disclose the actual drug test results and expert testimony on which the Department was relying, and asked the court to address these matters at the Review Hearing on September 10, 2019. On August 15, 2019, the juvenile court granted the Department’s motion to amend the disposition order without a hearing, making Mother’s visits supervised. On September 10, 2019, the court held a status hearing at which Mother renewed 3 her request to challenge the Department’s drug testing allegations: [COUNSEL FOR MOTHER]: We filed an opposition to the Department’s Motion to change the visits with [M] to supervised and we asked for a hearing.

And Your Honor signed the order changing the visits to supervised without a hearing, just based on their motion and I guess denied us our hearing and that’s why we would like a hearing. We have never received the ur[i]nalysis . . . which I expect will show that they’re not something that you should use for legal purposes. That there should be confirmatory testing. My client, I believe will testify that she’s not used cocaine.

That she—I think the social worker will testify that my client is completely appropriate at every visit. And my client wants to go back to the court order that we all agreed to at the beginning which is that her visits with [M] would be unsupervised. So, we would like a contested hearing on that. I know Your Honor has other hearings today.

THE COURT: Yeah, we can’t do it today. [COUNSEL FOR MOTHER]: Yeah, so we may need to reset and schedule this in. THE COURT: Well, [] there’s a 3-816.2 review hearing set in October. But that’s only set for one hour. I don’t know whether that could be expanded. [COUNSEL FOR MOTHER]: We [] would like to not wait until October if we could find an earlier date, Your Honor.

THE COURT: How long do you think you’d need? [COUNSEL FOR MOTHER]: Well, my client would testify. I [] would ask that Your Honor grant my request that was in my opposition for the Department to provide me with discovery about their claims. Maybe we could deal with that. Order for discovery regarding toxicology testing.

So, the Department has made some claims about my client being positive for cocaine. She says she hasn’t used cocaine and we don’t even have the ur[i]nalysis results at all. We just have their summary in their report, in their motion. I don’t think their motion had the results attached but let me check.

Because I haven’t looked at it for a minute. Oh, I’m sorry, Your Honor. No, no it has a police report, but no urine results. 4 The court then denied Mother’s motion: THE COURT: Okay. Well, I mean to the extent [Counsel for Mother’s] oral comments constitute a motion for me to reconsider my prior order of August 15th, that’s denied. . . . [O]bviously the issue of whether visitation should continue to be supervised can be addressed at the next hearing in October.

And of course, that’s going to take place after, I hope, I guess with the indicated date of her disposition of the criminal charges is and maybe we’ll know more by then about that. And [] that might be relevant as well to what we should be doing. [COUNSEL FOR MOTHER]: Your Honor, I think it was a little confusing. I wasn’t quite sure that [Counsel for the Department] was saying when she said that we agreed at the adjudication. What happened was the agreement was that my client would be unsupervised with [M].

THE COURT: No, I know that. [COUNSEL FOR MOTHER]: That was the court order. The court order was changed without a hearing with just mere allegations, no proof at all of [] the ur[i]nalysis and that’s what we’re asking for. And so, I would ask that Your Honor grant my request for the order for discovery that was in my opposition to the motion to change the visitation. THE COURT: All right. [COUNSEL FOR MOTHER]: Thank you.

THE COURT: So that’s denied. Anything further? The court then ruled that M remained a CINA and reaffirmed that visitation between Mother and M would be supervised. Mother noted this timely appeal.

We supply additional facts as necessary below.

II

DISCUSSION Mother raises two issues on appeal.1 In this case involving a CINA, we are asked to 1 Mother states the Questions Presented as follows: 1. Did the juvenile court abuse its discretion and violate Ms. 5 decide whether the juvenile court abused its discretion when, based on conflicting proffers, it changed Mother’s visitation order from unsupervised to supervised without holding a hearing. Under the circumstances of this particular case, we hold that the juvenile court abused its discretion, and reverse, and therefore don’t reach the second issue. A. The Appeal Is Moot, But We Will Address It.

Before we address the merits, though, the Department filed a motion to dismiss the appeal as moot. We ordinarily do not render judgment on moot questions. LaValle v. LaValle, 432 Md. 343, 351 (2013). A case is moot when “past facts and occurrences have produced a situation in which, without any future action, any judgment or decree the court might enter would be without effect.” Hayman v. St. Martin’s Evangelical Lutheran Church, 227 Md. 338, 343 (1962).

The order at issue here is no longer the operative order because after a hearing on November 15, 2019, the juvenile court entered a superseding order that expanded visitation to supervised at a minimum of twice weekly—one weekday for a minimum of one hour and one weekend day for a minimum of three hours with an approved relative. Even so, we can consider moot questions “where a case, while technically moot, presents a recurring matter of public concern which, unless decided, will continue to evade P.’s due process rights when it changed her visitation with M.C. from unsupervised to supervised without providing Ms. P. a contested hearing? 2. Did sufficient evidence support the juvenile court’s order changing Ms. P.’s visitation with M.C. from unsupervised to supervised? 6 review.” Office of the Pub. Def. v. State, 413 Md. 411, 423 (2010).

And because the statute requires juvenile courts to conduct review hearings in CINA cases every six months, orders like this will “almost always be replaced by subsequent orders before” the appellate courts will be able to review them. In re Justin D., 357 Md. 431, 444 (2000); see Maryland Code (1973, 2013 Repl. Vol., 2019 Supp.) § 3-816.2 of the Courts & Judicial Proceedings Article (requiring the court to conduct a status review of “each child under its jurisdiction within 6 months after the filing of the first petition . . . and at least every 6 months thereafter”). This will largely preclude appeals from juvenile court orders of this type in the normal course, which, as in this case, would have “the perverse effect of negating [a parent’s] ability to further challenge” them.

In re Ashley S., 431 Md. 678, 706 (2013). Accordingly, and because Mother raises important due process questions in her appeal, we will exercise our