In Re Nathaniel A.

DAVIS, Judge. On October 20, 2003, the Montgomery County Department of Health and Human Services (Department) filed shelter care ⁵⁸⁴ petitions concerning Nathaniel A. and Madeline C. A hearing was held on that same date and on November 3, 2003, the Department filed its first amended child in need of assistance (CINA) petition. On November 14, 2003, the maternal grandparents filed a motion to intervene, which was subsequently granted by the court on December 10, 2003. On December 9, 2003, the Department filed its second amended CINA petition and four hearings ensued on January 28, 29, and 30, as well as on February 2, 2004.

The Circuit Court for Montgomery County (Savage, J.) found both children CINA. Shirah A. was subsequently born on April 14, 2004 to appellant mother and was immediately placed in the care of the Montgomery County Department of Health and Human Services (Department) by Child Protective Services. The Department filed a child in need of assistance (CINA) petition on April 15, 2004. A hearing was conducted on May 13, 2004 and the circuit court (Boynton, J.) found Shirah a CINA.

We have consolidated appellant’s two timely appeals where she presents one question for our review, which we rephrase as follows: 1. Did the circuit court err in adjudicating Nathaniel, Madeline, and Shirah CINA? We answer in the negative. Accordingly, we shall affirm the judgment of the circuit court.

FACTUAL AND LEGAL BACKGROUND Officer Darley of the Montgomery County Police Department’s Family Crimes Division testified that on the night of October 18, 2003, after he was informed of a report of a child abuse incident, he proceeded to the Shady Grove Hospital. He subsequently interviewed appellant and she explained that on October 17, 2003, her son, Nathaniel, had been “acting up” and decided to go to bed in the clothes he wore that day. During the night, she changed his soiled pants; Nathaniel refused to use the toilet and was generally uncooperative. When she grabbed and pulled his left arm by the wrist, he began to cry.

Appellant consequently applied Bengay to the ⁵⁸⁵ child’s arm, gave him Children’s Tylenol, and sent him to bed. Appellant told Officer Darley that Nathaniel complained of arm pain the following day and she decided to take him to Night Time Pediatrics, which referred her to Shady Grove Hospital. After admitting to Officer Darley that she had initially told the doctors that Nathaniel had been hurt at the playground, she admitted that she had caused the injury. Officer Darley explained that appellant told him when she pulled on Nathaniel’s arm and fractured it, it was out of frustration and anger due to a difficult day.

Appellant apologized for her actions and explained that she had lost her temper. Jennifer Knotts, of the Department, testified that she interviewed appellant at the hospital. Appellant stated to Knotts that Nathaniel was being difficult and she pulled on him to stop him from moving so she could change his pants. She also explained to Knotts that her son had acid reflux problems.

Dr. Julian Orenstein, the treating physician at the hospital, stated that Nathaniel told him that appellant “grabbed his arm, twisted, then crack.” Dr. Orenstein revealed that the x-ray of Nathaniel’s arm showed a transverse fracture of the humorous bone, and this type of injury could only result from a “high degree of force.” Department caseworker Sandra Lopez testified that appellant had described Nathaniel’s acid reflux issues, as well as prior medical problems to her. She explained that the father’s whereabouts were unclear and at best, his contact with the children was “on-and-off.” Lopez asserted that appellant was exceptionally concerned with the health of Nathaniel and relayed to her that he had a history of vomiting, stomach problems, and was lactose intolerant. Lopez testified that Nathaniel appeared to be a “healthy” child and appellant acted overly concerned with his medical condition. Dr. Muriel Wolfe of the Children’s Hospital testified that she examined Nathaniel and Madeline on March 13, 2003; appellant complained that he had been vomiting.

Dr. Wolfe described Nathaniel’s numerous doctor visits and noted that ⁵⁸⁶ appellant continually insisted on further referrals. Dr. Wolfe concluded that Nathaniel had no serious condition and saw him for a follow-up visit one month later. At some point in 2003, Dr. Wolfe stated that appellant urged her to declare that Nathaniel’s “disability” qualified her for “SSI” benefits, but she declined to accept the doctor’s advice. Dr. Wolfe concluded that Nathaniel was in general good health, although an endoscopy revealed a slight irritation of the esophagus.

She also expressed her concern that she felt appellant exaggerated Nathaniel’s condition and was exceptionally worried about Nathaniel’s health. Appellant complained to Dr. Wolfe that Madeline had crooked legs and, although Dr. Wolfe doubted this assertion, she referred Madeline to an orthopedist due to appellant’s insistence. Esther Herman, a therapist in Rockville, Maryland, testified that she met appellant and her children in August 2003 when Madeline was referred to her for speech therapy. Appellant also brought Nathaniel in the hopes of having Herman assist in rectifying his health and behavioral issues.

Herman noted that Nathaniel had been in treatment for his behavioral problems since October 2003 and she believed appellant was consumed with his purported health problems. Pediatrician Dr. Allison Jackson testified that she reviewed Nathaniel’s and Madeline’s medical file and stated that Nathaniel had been subjected to numerous medical visits, diagnoses, and various treatments for his health issues. She testified about his prior behavioral and health problems and asserted that the symptoms of which appellant complained concerning Nathaniel did not match the ultimate diagnoses. Dr. Jackson concluded that Nathaniel’s medical treatment was “excessive,” and consequently, “abusive.” Although she noted that appellant did not invent symptoms for Nathaniel, Dr. Jackson stated that Nathaniel was “at risk” because of the fractured arm incident.

Psychiatrist Dr. Joanne Brant testified that Nathaniel had thirty-seven doctor visits in twenty-seven months and they generally related to Nathaniel’s feeding problems, vomiting, ⁵⁸⁷ sensory food aversion, dependency on a bottle and milk, and inability to calm himself. Dr. Brant concluded that appellant was likely an overanxious parent. Both maternal grandparents testified that Nathaniel and Madeline were currently living in their homes and were of general good health and doing well. The circuit court engaged in an in-depth review of the CINA petition line by line and declared which facts were sustained, using the preponderance of the evidence standard, and, based on the testimony, which facts it did not believe had been established.

She found that appellant fractured Nathaniel’s arm when she pulled on it out of frustration and anger and his numerous doctor visits and treatments disclosed no serious medical conditions. The hearing judge explicitly credited the statements that the injury was non-accidental. She also credited the testimony of Officer Darley and Knotts that appellant stated her anger and frustration led to the incident. The circuit court concluded: There were and are significant issues that this mother faces in her own life that have had huge influences on her children ...

What I can find by a preponderance of the evidence is that Nathaniel was in fact abused and injured by virtue of the arm fracture. I also find by a preponderance of the evidence that he was subjected to unnecessary and excessive medical interventions, which amount legally to abuse. But the picture of the mother that was so vivid in my mind or is so vivid in my mind, call it what you will, it’s someone that is I guess obsessed in a way, and I don’t mean that in a clinical way, with health concerns. And the health concerns of the children.

In a way that is detrimental to them. And that’s the key. Of course, we want parents to be worried about their children’s health. But when it comes to visits in the numbers of 40s, 44 visits.

And after all of that, what you come out with is mild esophagitis and treat with Prevacid. I ⁵⁸⁸ mean I shutter to think what this child was subjected to over and over and over again. Sort of seeking another opinion, wanting something to be wrong. And endoscopy, which is a very invasive procedure.

The trips to an allergist , which for a very young child to have blood drawn and have skin pricks, to what end, to what end? He goes to their great grandparents and the grandparents and by their testimony he’s fine. He’s fine. And Dr. Jackson’s testimony in a nut shell, how did he get fine so fast? ...

I mean is that coincidental? I don’t think so. I don’t think so. [TJhis is Dr. Wolfs words, “she wanted to make sure there were problems with these children.” [WJe’re talking about two very young children here. And I will grant you that Nathaniel has been dragged through a whole lot more than Madeline has.

But there is enough of a pattern here that when you, look at all of Nathaniel’s visits and then when you look at Madeline’s at a mere two years that it gives rise in the Court’s mind and by a preponderance of the evidence a finding that she is at significant risk for having this repeated for her. I have read Andrew A. It does come out of this county. I’ve read William B., and also Dunstin [Dustin] T. touches on this as well. And one does not have to wait until each child in succession to see what happens ... [s]o one must look at the history to Nathaniel in assessing the risk to Madeline.

In assessing that risk, the Court looks at the age of the children, the history of what actually has happened to Nathaniel, looks at the mother’s own expert’s report, which states that she has major depression and that she’s not being currently medicated for that depression. And also noted a personality disorder. The incident with the fracture is clearly I find beyond a reasonable doubt if anybody wants me to, which I don’t need to. That was abuse ... [b]ut when the mother grabbed this child in the way that she did because of anger, because of frustration, take anger out of it if you want, ⁵⁸⁹ because of frustration, because things have been going so badly for him, for her, and between them, she injured him grievously.

A transverse fracture of the humorous, as Dr. Orenstein said, that was caused by a great deal of force. [Ij’ve heard so little about the father. I’ve heard so little that I can credit that 1 have no idea who he is, where he is, what his intentions are, what his thoughts are, what his ability to help is, what his financial situation is ... So in terms of each of the parents I make a finding of the father ... He has neglected [the children] by his absence if I credit that.

He’s neglected them by not attending their needs and if you will protecting them from [appellant’s] excessive medical intervention pattern ... He is unwilling and unable from the evidence that I have to give them proper care and attention. He may be able but I have no evidence that he is or that he has been able ... I have nothing dispositive about the father from which I can conclude that he is anything other than neglectful, unwilling, and unable to care for his children.

In terms of the mother, I find that she has abused ... Nathaniel directly and physically in the broken arm injury. Her pattern of seeking medical intervention amounts to abuse, as defined in our CINA statutes, as well for Madeline. I don’t have any evidence of physical, direct physical, abuse, but I find, based on the history here, and the patterns that appear in this evidence, that she, too, is at significant risk of this pattern of excessive medical intervention ... [and appellant’s] untreated psychiatric conditions as set forth by her own experts force me to conclude that she, too, is unable ... at this juncture, to give proper care and attention to her children and their needs.

I have already given my opinion as to the credibility of Detective Darley and social worker Jennifer Knotts, as to the incident with the broken arm, as it was corroborated by the mother, and the child’s own words at the hospital ... [d]r. Orenstein’s physical findings corroborate and confirm that explanation of what happened on that night. ⁵⁹⁰ Whatever is motivating her, whatever malady, if there is one, that has caused her to behave as she has in the last 4.5 years with Nathaniel and Madeline, is sufficient, in my mind, call it what you will, it is sufficiently serious to cause a significant risk or harm to the children. I so find. In Shirah’s case, the circuit court based its CINA finding on its analysis of the record introduced by the State, from Nathaniel’s and Madeline’s hearings held on January 28, 29, and 30 2004, as well as February 2, 2004, the State’s Petition, and oral argument.

Wfiien appellant’s children were found to be CINA, she was pregnant with Shirah. As noted, supra, when Shirah was born, she was subsequently placed in the care of the Department. At the May 13, 2004 hearing, the Department elected to proceed in summary fashion, and, over appellant’s objection, the circuit court took judicial notice of the prior case regarding appellant’s other children. The circuit court concluded, based on its reading of Maryland Rule 8-421 and 8-425, that: So it seems to me that, since an injunction has not been placed upon the order of the findings of this court, that they’re still valid.

And because prior court orders are valid considerations for judicial notice, I think at this time that the prior order of the court would be a proper item for me to take a judicial notice, of which to take judicial notice. So because there’s, it seems to me there’s been no motion to stay or there’s been no injunction issued at this time, that the order still is valid and that I can take judicial notice of it. It seems that taking judicial notice is an alternative method to calling witnesses from an evidentiary point of view and so I think at this point, given the fact that it’s still a valid order, that would be a proper, that would be one means by which the Department could establish those facts. The Court: Well, let me ask you this, in the last hearing, Shirah was not a party, correct? [Appellant’s Counsel]: She was not born. ⁵⁹¹ The Court: She was not born.

So obviously the [appellant’s] treatment of Shirah was not an issue so no evidence was presented at that time. So my understanding is, the Department wants to present fact findings regarding [appellant’s] treatment of the other children to establish a pattern and therefore risk to the newly born child. Although I think that I can consider that, that certainly wouldn’t preclude you from having [appellant] testify about her treatment of the newborn baby for me to consider on the issue. [Appellant’s Counsel]: But in this case, if they [prior witnesses from other case] were to come forward today, like Dr. Jackson, let’s say— The Court: Right. Yes, so you can call those witnesses and ask the same questions. [Appellant’s Counsel]: Right, but it’s their case.

The Court: No, I understand. So if what they present to me falls short of their proof, it falls short of the proof. [Appellant’s Counsel]: Right. The Court: I mean, I’m not pre-judging what the proof standard is or whether it’s going to meet it or not. They have to decide what they want to offer and if it doesn’t meet it, it doesn’t meet it. [Appellant’s Counsel]: Right.

The Court: If it does, it does. But that doesn’t preclude anyone in this room from calling any witness they want to call to ask any questions they want to ask. [Appellant’s Counsel]: That’s true. The State subsequently offered the transcript of the prior hearing and petition as its evidence and announced its intention to call witnesses for the dispositional phase of the hearing. The circuit court then asked appellant’s counsel if he planned to call any witnesses, and he responded that he did not.

The hearing judge stated that “I guess what I need to do then is ⁵⁹² read the transcript and then hear argument about whether what’s presented in this transcript meets the burden of proof for finding CINA with regard to Shirah.” The hearing commenced one hour later and appellant argued a motion to dismiss. The circuit court first reviewed the CINA petition and found that physical abuse had occurred and that, since the incident, appellant’s angry and frustrated demeanor has not changed and appellant has not sought treatment or counseling. The prior record also indicated that appellant excessively brought Nathaniel to the doctor, which the court found “abnormal” and “excessive.” He noted that appellant’s abnormal condition had not been addressed and that both of these conditions were the basis in the prior case in finding that Madeline was at risk and should be declared a CINA. The circuit court therefore concluded that: ... because the anger and frustration is what led to the manifestation of the physical abuse, the snapping and the breaking of the arm, and because the psychiatric or psychological or personality disorder is what led to this behavior of excessive medical attention, those conditions still exist as far as I can tell.

There’s been no evidence produced to the contrary. And in the prior case, because those conditions existed, it created a substantial risk to Madeline because of her youthful age. She was only two years old. She was unable to verbalize and she was unable to really protect herself.

And I think that risk is beyond the ordinary risk because of the conditions that exists in this particular mom, as opposed to moms that don’t have these conditions. And they’re untreated conditions. With regard to this girl, Shirah, she is even younger. She’s only I guess a month old tomorrow.

And she is less verbal and less capable of taking care of herself. And so I think as long as the conditions still exist that led to the breaking of the arm and led to the excessive medical treatment, that there is a substantial risk that that same manifestation could occur to this child. It would be due to the fact that she’s younger and more vulnerable and less verbal. ⁵⁹³ So with regard to the mom, because I find that her condition, that conditions still exist that cause her to commit to physical abuse and also to subject Nathaniel to excessive medical condition, I find that she’s unable and unwilling to provide for the need of this child. And as a result of that, this child is subjected to, her safety and welfare is at risk. * * * So for those reasons, I’ll find that, even though there’s been nothing, no direct harm done to Shirah, no direct action taken against her at this time, I believe that the prior pattern which was caused by the existence of conditions that have not yet been treated or changed, creates a substantial risk of harm to the child.

And so I’ll make the finding at this time. LEGAL ANALYSIS I Appellant contends the circuit court erred in finding her three children CIÑA. We disagree. It is axiomatic that parents have