In re Michael W.

GARRITY, Judge. The Baltimore City Department of Social Services appeals from an order of the Circuit Court for Baltimore City (Brown, J.), sitting as juvenile court, wherein the court concluded that Michael W. was not a child in need of assistance (CINA) 1 pursuant to Md.Cts. & Jud.Proc.Code Ann. §§ 3-801, et seq. Appellant 2 presents the following issues for our review: 1. Whether a party who filed an exception to a master’s recommended disposition, but not the adjudication, waived the right to have the court review the master’s CINA recommendation. 2.

Whether the lower court was clearly erroneous in concluding that Michael W. was not a child in need of assistance. I. The Master’s Hearing On August 4, 1989, eleven-month-old Michael W. was admitted to the University of Maryland Hospital for treatment of a spiral fracture to the right femur. The examining physician indicated that the injury was suspicious of child abuse. Neither the child’s custodial mother nor his ⁶¹⁵ maternal grandmother, with whom he lived, provided an explanation consistent with the severity of the injury.

Four days later, on August 8, 1989, the Baltimore City Department of Social Services (hereinafter BCDSS) filed a CINA petition on behalf of Michael, who was placed in shelter care pending adjudication. On October 10, 1989, the master held an adjudicatory hearing and recommended that BCDSS continue shelter care placement pending a disposition hearing. After the disposition hearing, the master filed, pursuant to Maryland Rule 911b, her report of proposed findings of fact, conclusions of law, and recommendations with the juvenile court. The master found that the mother’s explanation of injury was inconsistent with the nature of the injury.

She determined that the only consistent explanation was that of child abuse or neglect because of the severity of the injury and the lapse of time between its occurrence and discovery. The master recommended an adjudication of CINA 3 and that the child be placed in the custody and guardianship of Michael’s father with liberal visitation to the mother provided that no significant or deliberate injury to the child occur during visitation. 4 On February 22, 1990, Michael’s mother filed an exception to the Master’s proposed disposition and requested a de novo hearing on the issue. She did not contest, however, the CINA recommendation. IL The Exception Hearing Dawn Miller, a child protective services specialist with BCDSS, testified that she had been assigned to the case in September 1989 to continue the abuse investigation, to ⁶¹⁶ monitor the family, and to provide services.

Since the injury remained unexplained insofar as the agency was concerned, she believed Michael was at risk if he remained in his mother’s home. While the mother was unable to relate the exact cause of the injury to Ms. Miller, she speculated that he may have twisted his leg while she was taking him out of his stroller, or while in the temporary care of a friend, or during the hospital’s examination of his swollen leg. The maternal grandmother also was unable to provide Ms. Miller with a definitive explanation for the injury. Ms. Miller further testified that returning the child to his mother at this'- time, even under an order of protective supervision, would not be in Michael’s best interest because the Department would be unable to provide 24-hour monitoring of his safety.

Detective Cynthia Woolford of the Baltimore City Police Department’s Child Abuse Unit conducted an investigation on the report of suspected abuse of Michael. The child’s mother advised her that he may have been injured while trying to learn to walk or that his leg may have gotten caught when she was taking him from his stroller. Dr. Larry Wissow, an assistant professor of pediatrics at the Johns Hopkins University School of Medicine, opined that at the time of the injury Michael would have experienced extreme pain and screamed in a manner different from other screams previously heard by the caretaker. The caretaker would more than likely have realized the injury immediately.

Michael may have settled down within 20 minutes to half an hour, but the caretaker would have been further able to detect injury by the fact that the child would have had difficulty walking and would have experienced pain when the caretaker removed the child’s clothes or removed him from the stroller. Spiral fractures, according to Dr. Wissow, usually occur from serious falls. Michael’s mother, who was fifteen years old when Michael was born, recalled that on August 3,1989, her son had ⁶¹⁷ awakened at 5:00 in the morning screaming and had been brought to her by the grandmother who had observed a knot on his leg. The grandmother administered Tylenol to the child and he went back to sleep.

Michael again awoke at 9 a.m. The child’s mother fed him and he went back to sleep. As he continued to experience discomfort that morning, the mother and grandmother took him to University Hospital. At the hospital, Michael was given a range of motion tests and x-rays and the examining physician advised the mother that the bone had been twisted.

The court concluded that the injury was caused by an accident and that Michael was not a child in need of assistance. The court returned custody of Michael to his mother.

III

A. The Statutory Scheme The Maryland Legislature has provided a comprehensive framework for the care and protection of children who are alleged to have been abused or neglected by their parents. See generally, Md.Cts. & Jud.Proc.Code Ann. § 3-801 et seq. The process begins when a local department of social services files a CINA petition alleging that a child requires the assistance of the court because he or she is not receiving proper care and attention and the parents are unable or unwilling to provide this care. §§ 3-801(e), 3-810, 3-812. The purpose of a CINA proceeding is to protect children and promote their best interest.

It is not intended to punish the parents, and the statute limits the juvenile court to orders designed to protect the child. A CINA proceeding is aimed at accomplishing this protective purpose by temporarily separating the child from his parents or by supervising the parents in raising their children. In re Rachel T, 77 Md.App., 20, 28 , 549 A.2d 27 (1988) (citations omitted). ⁶¹⁸ CINA proceedings are bifurcated: (1) an adjudicatory hearing, § 3 — 801(b); Maryland Rule 914; and (2) a disposition hearing, § 3-801(n); Maryland Rule 915; see also In re Jertrude O., 56 Md.App. 83 , 466 A.2d 885 (1983), cert. denied, 298 Md. 309 , 469 A.2d 863 (1984) (recognizing the dual nature of the proceedings). The juvenile court initially conducts an adjudicatory hearing to determine if the allegations in the petition are true.

Cts. & Jud. Proc. §§ 3-801(b) and 3-819; Md.Rule 914. When a CINA petition is filed at the request of the local department of social services, the local DSS is a necessary party to the proceeding and presents to the court the evidence in support of the petition. § 3-812(g). Allegations that a child is in need of assistance must be proven by a preponderance of the evidence. § 3-819(d).

If the allegations in the petition are sustained, the court conducts a disposition hearing. The court then determines whether the child needs the court’s assistance and, if so, the nature of the assistance. § 3-801(n). A master for juvenile causes is authorized to conduct these proceedings. § 3-813(b); Md.Rule 911 a. The master is required to make written findings of fact, conclusions of law, and recommendations as to an appropriate order. § 3-813(b).

The master’s findings, conclusions, and recommendations, however, do not constitute orders or final action of the court. Id. The juvenile court retains the power to accept, reject, or modify the master’s proposals, to remand to the master for further hearings, or to conduct a further hearing of its own, supplemented by additional evidence to which the parties do not object. Maryland Rule 911; see also Swisher v. Brady, 438 U.S. 204, 210, 211 , 98 S.Ct. 2699, 2703, 2704 , 57 L.Ed.2d 705 (1978).

B. Appellant presents the issue of whether the juvenile court had authority to reject a CINA determination made by the master. Appellant argues that the juvenile court in a ⁶¹⁹ CINA proceeding does not have discretion to disregard a master’s determination that a child is CINA where exception has not been taken to the recommended adjudication, but rather to the proposed disposition. Appellant posits that when exceptions are filed, only those matters to which specific exceptions have been taken are subject to modification by the juvenile court judge. On matters to which no party has excepted, appellant argues, in effect, that the court is bound by the master’s recommendation.

The starting point for our analysis begins with an examination of the exception process in juvenile causes. Maryland Rule 911 c provides that “[a]ny party may file exceptions to the master’s proposed findings, conclusions, recommendations or proposed orders.” A party’s exceptions must be in writing, specify the items to which the party excepts and indicate whether the hearing on the exceptions is to be de novo or on the record. Id. This rule limits the hearing to those matters to which exceptions have been taken.

In the case at hand, the mother filed a Notice of Immediate Exception and Request for an Immediate Hearing wherein she excepted to the proposed disposition. The notice was filed within the prescribed period. See Rule 911 c (exceptions shall be in writing, filed with the clerk within five days after the master’s report is served upon the parties and shall specify those items to which the party excepts). Both Rule 911 c and § 3-813(c) 5 limit the exception hearing to those matters to which exceptions have been taken.

Appellant contends, therefore, that the court was ⁶²⁰ without authority to reject the master’s CINA determination. We are thus confronted with the question of whether a CINA determination is a component of the adjudicatory or disposition phase of the bifurcated proceeding. The statutory purpose of the adjudicatory hearing is to ascertain whether the allegations in a CINA petition are true. At the disposition hearing, the court determines whether the child needs the court’s assistance and, if so, the nature of the assistance.

Section 3-801 of the Maryland Courts and Judicial Proceedings Code provides the following definitions: (b) Adjudicatory hearing. — “Adjudicatory hearing” means a hearing to determine whether the allegations in the petition, other than allegations that the child requires the court’s assistance, treatment, guidance or rehabilitation, are true. (n) Disposition hearing. — “Disposition hearing” means a hearing to determine: (1) Whether a child needs or requires the court’s assistance, guidance, treatment or rehabilitation; and if so (2) The nature of the assistance, guidance, treatment, or rehabilitation. Id. (Emphasis supplied).

The clear import of this language is that the CINA determination is an element of the disposition proceeding. Although no exception was taken specifically to the master’s proposed recommendation that Michael W. be declared CINA, based on the aforesaid analysis, the court did not err when it addressed that issue. The term disposition, by definition, means a determination of a child’s need for the court’s assistance. 6 ⁶²¹ C. Having concluded that the exception was properly before the court, we turn now to the scope of the proceedings. The role of the court vis-a-vis the master was dealt with exhaustively in Dominques v. Johnson, 323 Md. 486 , 593 A.2d 1133 (1991), and Wenger v. Wenger, 42 Md.App. 596 , 402 A.2d 94 (1979), cert. granted, 286 Md. 755 (1979), appeal dismissed per stipulation (1980).

In Wenger we emphasized the deference the court pays to the master’s fact findings. The master has heard the witnesses, observed their demeanor, and was able to make judgments based on intangibles, not apparent in an aseptic record. Id. at 604 , 402 A.2d 94 . “The master’s findings of fact from the evidence are prima facie correct and they will not be disturbed unless determined to be clearly erroneous.” Bar Ass’n v. Marshall, 269 Md. 510, 515-516 , 307 A.2d 677 (1973). In