In Re Maria P.

GREENE, J. This matter originated in the Circuit Court for Montgomery County, sitting as a juvenile court, where Montgomery County Department of Health and Human Services (“the Department”) filed a petition alleging that Maria P. (“Gabby”), 1 age 12, was a child in need of assistance (“CINA”) pursuant to Md.Code (1973, 2002 Repl.Vol.), § 3-801(f) of the Courts and Judicial Proceedings Article. 2 At the CINA adjudicatory ⁶⁶⁵ hearing, 3 Gabby’s mother, Matrida R. (“Petitioner”), was excluded from the hearing because of the court’s concern that Gabby might not testify truthfully in the presence of her mother. Ultimately, the court declared Gabby a CINA and placed her in the care and custody of the Department. 4 Petitioner appealed to the Court of Special Appeals and that court affirmed, in an unreported opinion, the judgment of the Circuit Court.

Petitioner filed a petition for writ of certiorari, which we granted. In re Maria P., 390 Md. 90 , 887 A.2d 655 (2005). Petitioner presents three questions for our review, 5 which we have combined and recast into two questions: ⁶⁶⁶ 1. During a CINA adjudicatory hearing, may a juvenile court exclude a parent from the courtroom during her child’s testimony without hearing any evidence, or making any findings, in support of exclusion? 2.

Was the evidence sufficient to find Gabby a CINA? We answer the first question in the negative, and remand this matter to the juvenile court for further proceedings not inconsistent with this opinion. In light of our resolution of Petitioner’s first question, we decline to reach her second issue. FACTS Gabby was born in 1992. 6 On or about October 20, 2004, Gabby told her mother that, a week before, she was on her way to school when four men abducted, drugged and raped her.

Gabby’s mother took her to school to seek assistance from the authorities. Detective Gary Irwin, of the Montgomery County Police Department, Pedophile Section, responded to the call from Gabby’s school regarding the allegations. Det. Irwin characterized Gabby as “lackadaisical” during his initial interview with her, and questioned the veracity of her allegations.

Subsequently, Gabby was brought to Shady Grove Hospital for an examination where it was determined that she was approximately six weeks pregnant. The next day, Gabby was interviewed a second time and again stated that her allegations were true. When confronted with inconsistencies in her story, Gabby revealed that, actually, she had been raped by her stepfather in September 2004. A child victim coordinator, Darryl Leach, was called to interview Gabby when it was determined that her abuse allegations were against a family member.

Larissa Holstead, of Montgomery County Child Welfare Services, was subsequently ⁶⁶⁷ called in to observe Leach’s interview with Gabby. When Holstead told Gabby that her mother needed to be told about the allegations, Gabby indicated that she did not want to be present when Holstead informed Gabby’s mother. Holstead told Petitioner that she needed to speak to Gabby’s stepfather, Victoriano, and asked if there was a phone number at which he could be contacted. Petitioner stated that she did not have his phone number, but while left alone briefly, Petitioner called Victoriano and was heard speaking to him about the allegations when Holstead returned to the room.

Petitioner continued to insist that she did not know Victoriano’s work number. 7 Petitioner was then taken in to see Gabby. Holstead advised Petitioner that it was essential that she be supportive of Gabby and demonstrate a belief in her allegations, and Holstead asked Petitioner to refrain from asking Gabby why she did not tell Petitioner sooner. Notwithstanding this warning and upon seeing Gabby, Petitioner immediately asked Gabby why she did not tell her about the incident earlier. Holstead stated that Gabby then began to get upset and cry, so the Petitioner and Gabby were separated.

Due to her concern that Petitioner did not believe Gabby, Holstead told Petitioner that she did not feel comfortable sending Gabby home. Petitioner expressed concern about Gabby returning home with her; therefore, Holstead suggested that Petitioner place Gabby in foster care overnight, until a protective order could be obtained. Petitioner agreed to this arrangement. Subsequently, Gabby’s pregnancy was terminated, and Petitioner obtained a temporary protective order 8 at that time.

With her stepfather no longer staying in the home, Gabby ⁶⁶⁸ returned to her mother’s care with a safety plan in place. On October 29, Petitioner returned to court to obtain a permanent protective order, but refused to do so once she discovered that Victoriano could be arrested if he failed to appear for the protective order hearing. Instead, Petitioner signed another safety plan stating that she would continue to prohibit Victoriano from contacting Gabby. Sometime over the next week, Gabby overheard Petitioner telling relatives that she had forgiven Victoriano.

Gabby then went outside and laid under a parked truck, refusing to come out from under the truck for 30 minutes. As a result of this incident, Petitioner told 'Holstead that she was concerned that she could not handle Gabby. At a subsequent November 2 meeting at her home, Petitioner indicated that she wanted to explore out-of-home placements for Gabby, either with a relative or in foster care-. Holstead and a community service aide met with Petitioner again on November 9 to talk about potential placements with relatives.

Concerned that she was still unable to control Gabby and that Gabby might try to hurt herself, Petitioner suggested placement with Petitioner’s brother in Georgia. On this same day, Petitioner discussed the “intended action letter” that she had received in the mail from Holstead that identified Victoriano as Gabby’s abuser. Petitioner asked whether she could appeal such a finding, and was upset when she was informed that she could not. Upon returning to her office from the meeting, the community service aide discovered that she had a message from Petitioner indicating that Gabby had disclosed that she had been raped by Goldames, the boarder in the home.

The next day, Holstead met with Gabby who indicated that, at some point before she was raped by her stepfather, she had been raped by Goldames. As a result of Gabby’s new allegations, Holstead met with Petitioner, informing her that Gabby would not be allowed to return home unless Goldames left the house. Petitioner told Holstead that she did not think that she could ask Goldames to leave because he had already paid rent through the end of the month, and she did not have the money to refund the rent. Petitioner also indicated that it might be helpful to keep ⁶⁶⁹ Goldames in the home to “know his whereabouts.” When Holstead again told Petitioner that Gabby could not return if Goldames remained in the house, Petitioner indicated that she would be willing to place Gabby in voluntary foster care.

Gabby was placed in foster care that day, and was still in foster care when the CINA hearing occurred. Petitioner testified that the next time she saw Goldames, the day after her meeting with Holstead, she told him that he had to leave the house. It is unclear from the record whether Goldames actually left at that time. Soon after Gabby was placed in foster care, her foster mother contacted Holstead to indicate that Gabby had recanted the allegations against her stepfather.

Holstead, concerned that Gabby was being pressured to recant by her mother, filed a CINA petition in juvenile court on November 16, 2004, and an adjudicatory hearing was held on the CINA petition on December 28, 2004. 9 Gabby testified that, notwithstanding her mother’s assurances, she did not think that her mother believed her allegations. Gabby stated that she was uncertain about wanting to return home, and expressed concerns that her grandmother was angry with her. Gabby testified that she was “doing okay” in foster care, and enjoyed her new middle school. Holstead then testified that she thought Petitioner’s support of Gabby was “[tjenuous, at best,” noting Petitioner’s focus on the DNA testing that could indicate that Victoriano was not the father of Gabby’s child.

Petitioner then testified that, since she learned of Gabby’s allegations, Victoriano had never been in the home at the same time as Gabby, and Petitioner had not spoken to him since October 21. Petitioner also testified that Gabby and her grandmother have a good relationship that has not changed since Gabby’s allegations. It was later determined through DNA testing, after the CINA hearing, but prior to the deci ⁶⁷⁰ sion of the intermediate appellate court, that Victoriano was not the father of Gabby’s baby. At the conclusion of the evidence, the court found that Gabby’s pregnancy at age 12 clearly constituted abuse.

The court commended Petitioner for doing “almost everything she [could] do” in Gabby’s situation, but found that Petitioner was unable or unwilling to give Gabby the proper care and attention that she needs. The court found Gabby to be a CINA and indicated that she should be kept in her current foster home. The court also ordered supervised visitation for Petitioner at a minimum of once a week. DISCUSSION I. During a CINA adjudicatory hearing, may a juvenile court exclude a parent from the courtroom during her child’s testimony without hearing any evidence, or making any findings, in support of exclusion?

During the CINA adjudicatory hearing in the instant case, the Department made a motion to close the courtroom to everyone except court personnel, Gabby’s counsel, certain social workers, and Petitioner’s counsel. The Department specifically requested to exclude Petitioner from the courtroom during Gabby’s testimony. Petitioner’s counsel objected, and the hearing judge granted the Department’s request to exclude Petitioner, stating: Thank you, I will grant the County’s request to exclude the mother from the courtroom during and only during the period of direct and cross-examination of the daughter. The heart of the allegations here is this young lady has been raped and that the allegation of the County is that her mother has not responded appropriately, and therefore, there may be some influence on this girl of tender years, age 12, with her mother in the courtroom and I think it would be in the best interest of the child if she not be ⁶⁷¹ subjected to any type of influence that may cause her to shade her testimony, being bashful.

Petitioner contends that the juvenile court abused its discretion in excluding her from the CINA proceedings during Gabby’s testimony. In affirming the juvenile court, the intermediate appellate court cited Maryland Rule 11-110(b) in support of its holding that the juvenile court had the discretion to exclude Petitioner from the courtroom during Gabby’s testimony. The Court of Special Appeals noted that the juvenile court’s decision to exclude Petitioner was evidently based on its knowledge of Holstead’s concern that Petitioner did not believe Gabby and might have pressured her to change her story. The intermediate appellate court also took into consideration that the juvenile court was concerned about ensuring an environment in which Gabby was most likely to testify truthfully.

Maryland Rule 11—110(b) states in pertinent part: Place of Hearing. A hearing may be conducted in open court, in chambers, or elsewhere where appropriate facilities are available. The heaving may be adjourned from time to time and, except as otherwise required by Code, Courts Article, § 3-812, may be conducted out of the presence of all persons except those whose presence is necessary or desirable. If the court finds that it is in the best interest of a child who is the subject of the proceeding, the presence of the child may be temporarily excluded except when the child is alleged to have committed a delinquent act.

(Emphasis added.) Md.Code (1973, 2002 Repl.Vol.), § 3-810(b)(1) of the Courts and Judicial Proceedings Article also addresses the juvenile court’s ability to exclude certain individuals from a hearing: (b)(1) In any proceeding in which a child is alleged to be in need of assistance or in any voluntary placement hearing, the court may exclude the general public from a hearing and admit only those persons having a direct interest in the proceeding and their representatives. ⁶⁷² It is clear that a parent is a party to a CINA proceeding 10 and, as such, would be considered a person whose presence is generally necessary under Rule 11—110(b). 11 A CINA proceeding is essentially civil in nature. Md.Code (1973, 2002 Repl.Vol.), § 3-8A-23(a) of the Courts and Judicial Proceedings Article; In re John P., 311 Md. 700, 707 , 537 A.2d 263, 267 (1988). In concert with courts throughout the country, we have made clear that a party to civil litigation has a right to be present for and to participate in the trial of his/her case. Although we have not, in our previous eases, specifically identified the source of that right, it is clear that the right emanates, at least, from the common law of Maryland, from the due process clause of the Fourteenth Amendment to the U.S. Constitution, from the Maryland equivalent of that clause, Article 24 of the Declaration of Rights, and from Article 19 of the Declaration of Rights.

We have also made clear, as have most other courts in the nation, that the right is not absolute-that there are circumstances in which a civil case may proceed without the attendance of a party and,: indeed, with the party excluded. Green v. North Arundel Hosp. Ass’n, 366 Md. 597, 618-19 , 785 A.2d 361, 373-74 (2001). 12 In Green , we summarized our ⁶⁷³ review of the exclusion of parties in numerous states, noting that “what emanates from these cases is that there is a right of presence, that the right is not absolute, and that a determination of whether exclusion of a party constitutes sufficient prejudice, either presumed or actual, to warrant a new trial depends, to some extent, on the circumstances.” Id. at 620 , 785 A.2d at 375 . Petitioner argues that the right to due process encompasses a parent’s right to be present during his or her child’s testimony during a CINA adjudicatory proceeding.

Judge Cathell, then writing for the Court of Special Appeals, provided a detailed framework for the consideration of due process in connection with parental rights in Wagner v. Wagner, 109 Md.App. 1 , 674 A.2d 1 (1996), cert. denied, Wagner v. Wagner, 343 Md. 334 , 681 A.2d 69 (1996): 13 ⁶⁷⁴ Article 24 of Maryland’s Declaration of Rights states: “That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the Land.” Just what process is due is determined by an analysis of the particular circumstances of the case, including the functions served and interests affected. Techem Chemical Co. v. M/T Choyo Maru, 416 F.Supp. 960, 968 (D.Md.1976).... Indeed, it is sufficient if there is at some stage an opportunity to be heard suitable to the occasion and an opportunity for judicial review at least to ascertain whether the fundamental elements of due process have been met. Burke v. Fidelity Trust Co., 202 Md. 178, 188 , 96 A.2d 254 (1953).

Moreover, with respect to legal issues, due process does not even necessarily require that parties be given an opportunity to present argument. Blue Cross of Maryland, Inc. v. Franklin Square Hosp., 277 Md. 93, 103-04 , 352 A.2d 798 (1976). Due process, thus, is a flexible concept that calls for such procedural protection as a particular situation may demand. International Caucus of Labor Comm. v. Maryland Dep’t of Transport., 745 F.Supp. 323, 329 (D.Md.1990); Department of Transp. v. Armacost, 299 Md. 392, 416 , 474 A.2d 191 (1984), rev’d on other grounds, 311 Md. 64 , 532 A.2d 1056 (1987); Attorney Grievance Comm. v. Reamer, 281 Md. 323, 333 , 379 A.2d 171 (1977); Lomax v. Comptroller of the Treasury, 88 Md.App. 50, 57 , 591 A.2d 1311 (1991); Vavasori v. Commission on Human Relations, 65 Md.App. 237, 245 , 500 A.2d 307 (1985), cert. denied, 305 Md. 419 , 504 A.2d 1152 (1986).

It does not require procedures so comprehensive as to preclude any possibility of error. International Caucus, 745