In Re: O.P.

In re: O.P. No. 26, September Term 2019 Civil Procedure – Appeals – Mootness – Issues Capable of Repetition Yet Evading Review. A juvenile court denied a request by a local department of social services to continue temporary emergency shelter care of an infant alleged to be a child in need of assistance (“CINA”). The department and counsel for the infant appealed that decision, contending that the juvenile court applied an incorrect standard of proof. The child’s mother contested whether there is appellate jurisdiction for such an appeal.

The department later decided to refrain from seeking shelter care when the child’s parents agreed that the child was a CINA and the juvenile court issued orders governing the parents’ conduct. Although an appellate court ordinarily will not decide a moot issue, the issues presented in this appeal would be considered under an exception to the mootness doctrine for cases that raise an issue “capable of repetition, yet evading review.” Civil Procedure – Appeals – Collateral Order Doctrine. A juvenile court’s order denying continued temporary shelter care during the pendency of a CINA case was appealable under the collateral order doctrine because that order (1) conclusively determined (2) an important disputed question, (3) that is separate from the merits of the CINA case and (4) that would be effectively unreviewable if the appeal awaited final judgment in the CINA case. Family Law – Child in Need of Assistance – Shelter Care – Standard of Proof.

To decide whether to continue emergency shelter care of a child in a pending CINA case for a temporary period of up to 30 days, a juvenile court must find reasonable grounds (1) that return of the child to the child’s home is contrary to the safety and welfare of the child and (2) either that removal of the child from the child’s home is necessary due to an alleged emergency situation and in order to provide for the safety of the child or that reasonable efforts were made but unsuccessful in preventing or eliminating the need to remove the child from the home. Any continuation of shelter care beyond 30 days must be based upon findings made applying a preponderance of evidence standard at the adjudicatory stage of the CINA case. Maryland Code, Courts & Judicial Proceedings Article, §§3-815(d), 3-817. Circuit Court for Anne Arundel County Case No. C-02-JV-18-000692 Argument: December 6, 2019 IN THE COURT OF APPEALS OF MARYLAND No. 26 September Term, 2019 _____________________________________ IN RE: O.P. _____________________________________ Barbera, C.J., McDonald Watts Hotten Getty Booth Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by McDonald, J. ______________________________________ Filed: August 14, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-02-11 14:40-05:00 Suzanne C. Johnson, Clerk Under State law, a local department of social services that has reason to believe that a child is a victim of abuse or neglect may initiate an action in a juvenile court to have the child declared a “child in need of assistance” – commonly known by the acronym “CINA.” If the juvenile court ultimately finds that the child is a CINA, further proceedings ensue to provide the necessary assistance to the child.

This appeal relates to the period during which the CINA case is pending. Upon receiving the allegations of abuse or neglect on which the CINA case is based, a local department is authorized to place the child in emergency shelter care if it believes certain statutory criteria are met. However, it immediately falls to the juvenile court to hold a hearing to assess whether those criteria are satisfied and whether the temporary shelter care should continue for up to 30 days while the abuse or neglect allegations are adjudicated in the CINA case. This appeal concerns the standard of proof that the juvenile court is to apply in making that temporary shelter care decision.

In this case, an infant, whom we shall refer to as “O.P.,” was hospitalized with serious unexplained brain injuries several days after an incident at home where he stopped breathing. Petitioner Anne Arundel County Department of Social Services (the “Department”), alleging that the injuries were the result of abuse or neglect, placed him in emergency shelter care and immediately filed a CINA petition with a request for continued temporary shelter care pending resolution of the CINA petition. Pursuant to statute, the Circuit Court for Anne Arundel County, sitting as a juvenile court, held a hearing on the request for continued temporary shelter care. Conflicting evidence was presented as to whether O.P.’s brain injuries occurred at home or while he was in the neonatal intensive care unit for seven weeks after his birth.

The juvenile court denied the Department’s request for continued shelter care, finding that the Department had failed to establish the statutory criteria by a preponderance of the evidence. O.P. was returned to the custody of his parents. On appeal, the Department and the counsel appointed for O.P. challenged the juvenile court’s use of a preponderance standard for determining whether to authorize continued shelter care. The Court of Special Appeals held that the juvenile court used the correct standard of proof.

Concluding that the juvenile court’s fact findings were not clearly erroneous and that it did not abuse its discretion in denying continued shelter care, the intermediate appellate court affirmed the juvenile court’s decision.1 The Department and counsel for O.P. pursued a further appeal to this Court. However, in the meantime, the parties reached a settlement in the CINA case under which O.P. was declared a CINA, but remained with his parents subject to the Department’s supervision. This rendered moot the Department’s request to place him in shelter care. Although the issue of shelter care in this particular case is moot, we exercise our discretion to decide the legal issues presented by the parties – the appealability of a shelter care decision and the appropriate standard of proof to be applied in a shelter care proceeding – because these are issues “capable of repetition, yet evading review.” We hold that a juvenile court’s decision to deny continued shelter care is appealable under the collateral order doctrine.

With respect to the standard of proof to be applied by 1 In re O.P., 240 Md. App. 518 (2019). 2 the juvenile court in such a proceeding, the court may authorize continued shelter care under the relevant statute for up to 30 days if it finds reasonable grounds to conclude that (1) return of the child to the child’s home is contrary to the safety and welfare of the child and (2) either (i) removal from the home is necessary due to an alleged emergency situation and in order to provide for the safety of the child, or (ii) reasonable efforts were made to eliminate the need to remove the child from the home, but were unsuccessful. The juvenile court need not make those findings by a preponderance standard, although it must do so to extend shelter care beyond 30 days. I Shelter Care Proceedings in CINA Cases The law governing CINA proceedings must accommodate both a vital constitutional and human right with the State’s special responsibility for the welfare of children. The liberty interest of parents to raise their children as they see fit without undue interference by the State is a fundamental right under the Fourteenth Amendment of the United States Constitution.

In re Yve S., 373 Md. 551, 565 (2003). However, “the best interests of the child may take precedence over the parent’s liberty interest in the course of a custody, visitation, or adoption dispute.” Boswell v. Boswell, 352 Md. 204, 219 (1998). Moreover, “[t]hat which will best promote the child’s welfare becomes particularly consequential where the interests of a child are in jeopardy, as is often the case in situations involving sexual, physical, or emotional abuse by a parent.” In re Mark M., 365 Md. 687, 706 (2001). Under the doctrine of parens patriae, the State has an interest, and a responsibility, to protect the health, safety, and welfare of children.

In re Yve S., 373 Md. at 569 . In 3 fashioning the CINA statute, the General Assembly has been cognizant that the law must accommodate these sometimes competing interests.2 The central issue in this appeal concerns the standard of proof that a juvenile court is to apply in determining whether to authorize continued shelter care for a child after that child has been removed from the home pending the outcome of a CINA proceeding. To place this issue in context, we provide a brief overview of the statutory scheme pertaining to CINA cases generally and shelter care proceedings in particular. A. CINA Cases The procedures governing proceedings when a child is alleged to be a CINA are set forth in Maryland Code, Courts & Judicial Proceedings Article (“CJ”), §3-801 et seq.

A CINA is a child who requires court assistance because he or she has been abused or neglected, or has a developmental or mental disability, and there is no a caretaker to give proper attention to the child’s needs. CJ §3-801(f), (g). Related provisions concerning child abuse and neglect are found in Maryland Code, Family Law Article (“FL”), §5-701 2 The Legislature has identified the purposes of the CINA statute as, among other things, “[t]o provide for the care, protection, safety, and mental and physical development of any child coming within the provisions [of the CINA statute]” and “[t]o conserve and strengthen the child’s family ties and to separate a child from the child’s parents only when necessary for the child’s welfare.” Maryland Code, Courts & Judicial Proceedings Article, §3-802(a)(1), (3). 4 et seq.3 The Maryland Rules complement these provisions in specifying some of the procedures applicable to CINA cases. See Maryland Rule 11-101 et seq.4 Petition Alleging Child is a CINA If a local department of social services receives a complaint of child abuse or neglect, and it concludes that the juvenile court has jurisdiction and that filing a CINA petition is in the child’s best interests, the local department must file a petition alleging that the child is a CINA and setting forth supporting facts.

CJ §§3-809(a), 3-811(a)(1). Once a petition has been filed, the juvenile court may order the local department to conduct a study concerning the child, the child’s family, the child’s environment, and other matters relevant to the case.5 CJ §3-816(a). As a part of a study, the court may order that the child or any parent or guardian be examined by a physician, psychiatrist, psychologist, or other professionally qualified person. CJ §3-816(b).

The juvenile court proceeding to determine whether the child is a CINA consists of two stages – an adjudicatory hearing and a disposition hearing. 3 FL §5-703(a) provides that “[t]he provisions of this subtitle are in addition to and not in substitution for the provisions of Title 3, Subtitle 8 of the Courts and Judicial Proceedings Article.” 4 These rules are currently in the process of being revised to recognize, among other things, the statutory separation of CINA proceedings from other juvenile causes. See Part III.C.3 of this opinion. 5 In addition, FL §5-706 requires that the local department conduct a thorough investigation of any report of child abuse or neglect and provides certain parameters for investigations. 5 Adjudicatory Stage As a first stage in resolving a CINA petition, the juvenile court is to hold an adjudicatory hearing to determine whether the department’s factual allegations in the CINA petition are true. CJ §§3-801(c), 3-817(a); Maryland Rule 11-114. At the adjudicatory hearing, the rules of evidence apply and the allegations in the petition must be proved by a preponderance of the evidence.

CJ §3-817(b)-(c); Maryland Rule 11-114(e). Disposition Stage If the court finds that the allegations in the petition are true, the court then holds a separate disposition hearing to determine whether the child is, in fact, a CINA and, if so, the nature of any necessary court intervention. CJ §§3-801(m), 3-819(a). Although the disposition hearing is “separate” from the adjudicatory hearing, the two hearings are ordinarily to be held on the same day.

CJ §3-819(a). At the disposition stage, it is left to the discretion of the juvenile court whether to insist on strict application of the rules of evidence.6 Maryland Rule 5-101(c)(6). The court may find that the child is not a CINA and dismiss the case. CJ §3-819(b)(1)(i).

Alternatively, the court may determine that the child is a CINA, in which case it may take one of three actions: (1) decide not to change the child’s current custody; (2) commit the child to the custody of a parent, relative, or another suitable individual; or (3) commit the child to the custody of the local department 6 A report resulting from any study that the court has directed the local department to undertake is admissible as evidence at the disposition hearing, but not at the adjudicatory hearing. CJ §3-816(c). 6 of social services or the Maryland Department of Health. CJ §3-819(b)(1)(iii).7 If the child is placed out of the home, the court must later hold a permanency planning hearing to determine a permanency plan for the child. CJ §3-823(b).

Those proceedings are not pertinent to the issues before us and are beyond the scope of this opinion. B. Shelter Care Proceedings Shelter Care Under certain circumstances, the CINA statute authorizes the placement of a child alleged to be a CINA in emergency shelter care prior to disposition of the CINA petition. CJ §3-815(a). Shelter care is defined as “a temporary placement of a child outside of the home at any time before disposition.” CJ §3-801(bb).

Shelter care is not a component of every CINA case. Rather, it involves a separate proceeding in which the juvenile court decides whether to authorize interim protection for a child who may be at risk in the home while the CINA petition is pending. Initial Placement of Child in Emergency Shelter Care Either before or after the filing of a CINA petition, a local department may place a child in emergency shelter care without a court order.8 CJ §3-815(a); Maryland Rule 11- 7 The juvenile court has certain other options in the case of a child with a developmental disability or mental illness. CJ §3-819(b)(ii). 8 Also, a law enforcement officer may remove a child from the home “if the officer has reasonable grounds to believe that the child is in immediate danger from the child’s surroundings and that the child’s removal is necessary for the child’s protection.” CJ §3- 814(a)(3).

If a child is taken into custody by law enforcement pursuant to CJ §3-814(a)(3), the local department must either place the child in emergency shelter care or release the child to the child’s parents. CJ §3-814(b)(3). 7 112(a)(1). The statute establishes the following criteria for placement in emergency shelter care: (b) A local department may place a child in emergency shelter care before a hearing if: (1) Placement is required to protect the child from serious immediate danger; (2) There is no parent, guardian, custodian, relative, or other person able to provide supervision; and (3) (i) 1. The child’s continued placement in the child’s home is contrary to the welfare of the child; and 2.

Because of an alleged emergency situation, removal from the home is reasonable under the circumstances to provide for the safety of the child; or (ii) 1. Reasonable efforts have been made but have been unsuccessful in preventing or eliminating the need for removal from the child’s home; and 2. As appropriate, reasonable efforts are being made to return the child to the child’s home. CJ §3-815(b).

The Family Law Article contains related provisions concerning temporary removal of a child from the home. A representative of a local department conducting an investigation into a report of child abuse or neglect may enter a household if he or she “(1) previously has been denied the right of entry; and (2) has probable cause to believe that a child is in serious, immediate danger.” FL §5-709(a). “The representative may remove the child temporarily, without prior approval by the juvenile court, if the representative believes that the child is in serious, immediate danger.” FL §5-709(c). At one time, there was consideration of placing all of these related provisions in the Family Law Article. See William H. Adkins, II, Code Revision in Maryland: the Courts and Judicial Proceedings Article, 34 Md. L. Rev. 7 , 28 n. 109 (1974). 8 If a child is placed in emergency shelter care, on the next day the juvenile court is sitting, the local department must immediately file a petition with the juvenile court to authorize continued shelter care.

CJ §3-815(c)(1); Maryland Rule 11-112(a)(2)(ii).9 In certain circumstances, the local department may file a petition for continued shelter care before even filing a CINA petition. For example, the local department may need more time to investigate the allegations to put in the CINA petition, or to decide whether filing a CINA petition is even in the child’s best interests. Other times, as happened in the case at hand, the local department may file a petition for continued shelter care at the same time that it files the CINA petition. Either way, the purpose of continuing shelter care is to temporarily protect a child who has been removed from the home under emergent circumstances until it has been determined whether that child is a CINA.

Juvenile Court Decision on Continuation of Temporary Shelter Care The juvenile court must then hold a shelter care hearing, no later than the next day on which court is in session, unless good cause is shown,10 to determine whether temporary placement of the child outside the home for up to 30 days is warranted. CJ §3-815(c)(2). The matter may be initially heard by a juvenile court magistrate.11 Reasonable notice of 9 The rule refers to an “intake officer” as filing the petition. The reference to an intake officer – a person assigned to the court by a juvenile services agency to provide intake services (see CJ §3-8A-01(r)) – appears to be a remnant related to an earlier version of the CINA statute.

See footnote 4 above. 10 A shelter care hearing may not be postponed for more than eight days from the start of a child’s placement in emergency shelter care. Maryland Rule 11-112(a)(3). 11 Under Maryland Rule 11-111(a), a magistrate may order emergency shelter care, or continued shelter care, in accordance with Maryland Rule 11-112. However, a 9 the hearing is to be given to the child’s parents, custodian, or relatives. CJ §3-815(c)(3).

The hearing may be adversarial in nature. However, the rules of evidence do not apply at a shelter care hearing. Maryland Rules 5-101(b)(11), 11-112(d). The court may authorize continued shelter care outside the home if it reaches similar conclusions to those of the department.

In particular, the statute provides: (d) A court may continue shelter care beyond emergency shelter care only if the court finds that: (1) Return of the child to the child’s home is contrary to the safety and welfare of the child; and (2) (i) Removal of the child from the child’s home is necessary due to an alleged emergency situation and in order to provide for the safety of the child; or (ii) Reasonable efforts were made but were unsuccessful in preventing or eliminating the need for removal of the child from the home. CJ §3-815(d). Neither the statute nor the rule specifies a standard of proof for making those findings. Even if the juvenile court concludes that the criteria in CJ 3-§815(d) are satisfied and orders shelter care to continue, that extension is limited.

The court may not order shelter care to continue for more than 30 days. CJ §3-815(c)(4). Moreover, if the court orders shelter care to continue, it must hold the adjudicatory hearing on the CINA petition magistrate’s order is subject to immediate review by a judge upon the filing of exceptions by any party. Maryland Rule 11-111(c).

An excepting party other than the State may request a hearing de novo or a hearing on the record, while the State may only obtain a hearing on the record. Id. 10 before the expiration of that 30-day period. Maryland Rule 11-114(b)(2). If the court does not hold the adjudicatory hearing within that 30-day period, the child is to be released from shelter care.

Id. If the adjudicatory hearing is held within that period and the court finds at that hearing that continued shelter care is needed to ensure the safety of the child, it may extend shelter care for up to an additional 30 days. CJ §3-815(c)(4). As noted above, that hearing is conducted under the rules of evidence and a preponderance standard applies.

CJ §3-817. II Facts and Procedural History The Department no longer seeks shelter care for O.P. in this case. We provide an overview of the underlying facts of this appeal and its procedural history for context.12 A. Emergency Shelter Care and Petition for Continued Shelter Care O.P.’s Birth and Placement in Emergency Shelter Care O.P. was born seven weeks prematurely on October 7, 2018 to Respondent and Cross-Petitioner N.R. (“the mother”) and Respondent S.P.

(“the father”). On November 23, after a seven-week stay in the neonatal intensive care unit at Johns Hopkins Hospital, O.P. was discharged and went home with his parents. On December 14, the Department received a report indicating that O.P. had been admitted to Johns Hopkins Hospital for 12 A more comprehensive account of the evidence and the proceedings in the juvenile court is set forth in the opinion of the Court of Special Appeals. In re O.P., 420 Md. App. 518 , 532-45 (2019).

Given that the merits of the shelter care determination is no longer at issue, there is no need to reiterate that entire account here. 11 serious unexplained brain injuries. O.P. remained at the hospital until December 21, when he was discharged and placed in emergency shelter care under the Department’s custody. CINA Petition with Request for Continued Shelter Care On December 26, the first day that the courts were open after the holiday break, the Department filed with the Circuit Court for Anne Arundel County, sitting as a juvenile court, a CINA petition with a request for continued shelter care. The petition alleged that, according to the parents, an incident occurred at their home on December 12 in which O.P. was choking and seemed to have stopped breathing.

Emergency personnel who responded to the incident “determined [O.P.] to be fine.” However, at a doctor’s visit two days later, the doctor was concerned about O.P.’s increased head circumference and immediately sent O.P. to the emergency room. There, medical providers discovered that O.P. had “both subdural and subarachnoid hemorrhaging,” and he was admitted for further evaluation and treatment. According to medical providers at Johns Hopkins Hospital, the injuries were “consistent with abusive head trauma.” They recommended that O.P. not be returned to his parents’ care, given the lack of plausible explanation for the injuries and the parents’ mental health histories. In particular, the mother had been diagnosed with bi-polar disorder and depression, while the father had experienced suicidal ideation and depression in the past.

The Department and the parents were unable to agree upon a plan to ensure O.P.’s safety without removing him from the home, and no other family members were available to care for O.P. Based on these allegations, the Department asserted that the requirements for authorizing continued shelter care set forth in CJ §3-815(d) were satisfied. 12 Shelter Care Hearings in the Juvenile Court Petition for Continued Shelter Care On December 26, the same day that the Department filed the CINA petition with a request for continued shelter care, a juvenile magistrate held a hearing and issued an order continuing shelter care of O.P. pending the adjudication of the CINA petition. The juvenile magistrate did not issue written findings, recommendations, or conclusions; instead, the order was entered on the docket as part of the Hearing Sheet. Juvenile Court Denies Continued Shelter Care Applying Preponderance Standard The mother requested immediate review of the juvenile magistrate’s order and the juvenile court held a de novo shelter care hearing the next day, December 27. At the hearing, the Department presented the testimony of a child protective services worker, as well as the hospital’s discharge summary for O.P.13 Counsel for the mother declined to present evidence and asked the court to deny the Department’s petition for continued shelter care on the basis that, even if the evidence were viewed in the light most favorable to the Department, it had not carried its burden to show that O.P. was in need of shelter care.

At the conclusion of the Department’s case, the juvenile court denied the Department’s request for continued shelter care, stating on the record that it could not “find it more likely than not that abuse or neglect on the part of the parents is indicated here.” A detailed summary of the child protective services worker’s testimony, as well 13 as the contents of the hospital discharge summary, is set forth in the opinion of the Court of Special Appeals. 240 Md. App. at 534-37 . 13 After the juvenile court denied the petition for continued shelter care, the Department requested an order controlling the conduct of the parties, which the court also denied as “beyond the purpose” of the hearing.14 The court’s December 27 order denying continued shelter care was entered on the docket as part of the Hearing Sheet. When the Department refused to return O.P. to the custody of his parents immediately following the court’s ruling, the juvenile court issued an additional order that same day mandating the immediate return of O.P. to his parents by that evening. Stay of Denial Pending Juvenile Court’s Explanation The Department immediately appealed the juvenile court’s denial of continued shelter care for O.P. and sought an injunction from the Court of Special Appeals. On December 28, the intermediate appellate court temporarily stayed the termination of shelter care and remanded the matter to the juvenile court for an explanation of the basis of its December 27 order.

Pending that explanation, the Court of Special Appeals directed that the parties return to the pre-December 27 status quo, and O.P. was returned to emergency shelter care under the Department’s custody. On December 31, 2018, the juvenile court issued a memorandum opinion and order explaining its decision to deny the Department’s request for continued shelter care. 14 In a CINA proceeding, the “court, on its own motion or on application of a party, may issue an appropriate order directing, restraining, or otherwise controlling the conduct of a person properly before the court, if the court finds that the conduct: (1) Is or may be detrimental or harmful to a child over whom the court has jurisdiction; (2) Will tend to defeat the execution of an order or disposition made or to be made under this subtitle; or (3) Will assist in the rehabilitation of or is necessary for the welfare of the child.” CJ §3- 821; see also Maryland Rule 11-110(e). 14 Amended CINA Petition and Shelter Care Request On January 3, 2019, the Department filed an amended CINA petition with an amended request for shelter care stating that it had acquired additional evidence.15 The amended petition contained several new allegations, including that the choking incident had actually occurred on December 10, not December 12; that the parents had refused the paramedics’ recommendation that O.P. be taken to the emergency room; that the pediatrician at the December 14 visit noted certain new symptoms not present during O.P.’s prior visits, including “sunsetting of his eyes” and “increased head circumference”; that, based on O.P.’s birth records, his head was examined at least three times during his stay at the NICU and determined to be normal, and there was no indication that he suffered any brain-related incidents while at the NICU; and that O.P.’s pediatrician described his head as normal during visits on November 27 and December 5. The Juvenile Court Again Denies Temporary Shelter Care Based on Preponderance Standard On January 7, a juvenile magistrate held a hearing on the Department’s amended shelter care request and granted continued shelter care. As before, the parents requested immediate review by the juvenile court.

The juvenile court held a second de novo shelter care hearing on January 8-9, limited to the Department’s new allegations. The Department 15 One day prior, on January 2, the mother had filed a motion in the Court of Special Appeals to lift the stay and injunction and return O.P. to his parents. On January 4, the Court of Special Appeals denied the mother’s motion pending conclusion of the juvenile court’s hearing on the Department’s amended shelter care request, but ordered that the stay would expire as soon as the juvenile court entered an order resolving the new request. 15 again presented the child protective services worker as its only witness and introduced additional documentary evidence, including EMS records from the paramedics who responded to the December incident and medical records from O.P.’s stay in the NICU and three pediatric visits. At the close of the Department’s case, the juvenile court denied the parents’ motion to dismiss the petition.

The parents testified on January 9.16 On January 10, the juvenile court issued a second memorandum opinion and order denying the Department’s amended request for continued shelter care.17 Based on its findings, the court concluded that the Department had failed to prove by a preponderance of the evidence that O.P.’s injuries were (1) non-accidental; or (2) caused by abuse or neglect of the parents while he was in their custody or control. The court also concluded that the Department failed to prove that the parents were guilty of neglect. As the Court of Special Appeals’ stay automatically expired as soon as the juvenile court issued its opinion and order, the juvenile court ordered the immediate return of O.P. to the custody of his parents. Following the juvenile court’s decision, the Department and O.P. noted immediate appeals to the Court of Special Appeals and sought a stay of the juvenile court’s order 16 A comprehensive summary of the evidence presented at the second de novo shelter care hearing, including the child protective services worker’s testimony, the contents of the EMS records and the NICU and pediatric medical records, and the testimony of the parents, appears in the opinion of the Court of Special Appeals. 240 Md. App. at 539-41 . 17 A more complete description of the findings of fact contained in the juvenile court’s memorandum opinion and order is set forth in the opinion of the Court of Special Appeals. 240 Md. App. at 543-45 . 16 pending appeal.

The intermediate appellate court denied that request and O.P. was returned to his parents. B. The Appeal The Court of Special Appeals expedited appeals by the Department and O.P. On March 29, 2019, it affirmed the juvenile court’s judgment. 240 Md. App. 518 (2019). The intermediate appellate court first addressed two threshold questions. It held that (1) the juvenile court’s December 27 order denying the Department’s petition for continued shelter care was moot because it was superseded by the court’s January 10 order, which reached the same result; and (2) the January 10 order denying the Department’s petition for continued shelter care was appealable under the collateral order doctrine. 240 Md. App. at 551-57 .

As to the core issue in the case, the court held that a juvenile court must find the factors required by CJ §3-815(d) to continue shelter care by a preponderance of the evidence. Id. at 557-73. The court stated that, while it disagreed with some of the juvenile court’s comments and while a reasonable fact finder could have also reached the opposite conclusion of the juvenile court under the applicable standard of proof, the juvenile court’s fact findings were not clearly erroneous and the juvenile court did not abuse its discretion in the decision it reached based on those findings. Id.

The Department and O.P.’s counsel both petitioned this Court for a writ of certiorari. Those petitions raised two issues: (1) the appropriate standard of proof to be applied by a juvenile court to decide a petition to extend emergency shelter care; and (2) whether the juvenile court had abused its discretion in this case. In response, the mother 17 filed a conditional cross petition also raising two issues: (1) whether the juvenile court’s order denying continued shelter care was appealable; and, if so, (2) whether the appropriate standard of proof is clear and convincing evidence. We granted both the Department’s and O.P.’s petitions, as well as the mother’s conditional cross petition.

C. Proceedings in the Juvenile Court After the Court of Special Appeals Decision In the meantime, on April 8, 2019, after the Court of Special Appeals had issued its decision, the Department filed a third amended CINA petition in the juvenile court. The Department reiterated the circumstances surrounding O.P.’s unexplained brain injury and cited concerns about his parents’ inability to keep up with pediatric appointments for O.P. and his brother,18 the conditions of the family home, and the parents’ general ability to care for O.P. and his brother in light of the parents’ respective histories of mental illness. The Department requested that the court issue an order of shelter care and place O.P. in the Department’s custody. The juvenile court scheduled a hearing combining the adjudication and disposition stages for April 16.

In connection with the hearing, the Department filed a report documenting its regular visits to the family’s home since O.P.’s placement with his parents on January 10. The Department reported that O.P. was doing well with his family and no longer called for removing O.P. from the home. Instead, the Department recommended The Department also filed a CINA petition on behalf of O.P.’s brother, containing 18 many of the same allegations, but that petition is not at issue in this appeal. 18 that the parents receive continued support services from the Department pursuant to an order of protective supervision, attend a parenting education program, submit to psychological evaluations, attend all medical appointments and follow all medical and developmental recommendations, and ensure that the home is a safe environment. At the adjudication phase of the hearing on April 16, the parents did not admit to the Department’s allegations in the third amended CINA petition, but conceded that the Department could produce sufficient evidence for the court to find the allegations to be true.

The juvenile court agreed. At the disposition phase of the hearing, the parties reached an agreement that O.P. was a CINA based on neglect, but that he should remain with his parents. On April 29, the juvenile court issued an order finding that O.P. was a CINA on the basis of neglect, and that the Department had made reasonable efforts to prevent O.P.’s placement in care by providing comprehensive services to the family. The order directed that O.P. remain in the care and custody of his parents, but granted an Order of Protective Supervision and required that the parents comply with the Department’s recommendations.

In addition, the court ordered that a Court Appointed Special Advocate be appointed. As a result of these developments, O.P has remained in the care of his parents, and the Department no longer requests that O.P. be placed in shelter care. III Discussion We granted the Department’s and O.P.’s petitions for certiorari and the mother’s conditional cross petition for certiorari to consider the following questions: (1) whether there is appellate jurisdiction of an appeal from an order denying a request for shelter care; 19 (2) what standard of proof a juvenile court is to apply in determining whether to authorize continued shelter care under CJ §3-815(d); and (3) whether the juvenile court made clearly erroneous findings of fact or abused its discretion in denying the Department’s petition for continued shelter care. As a preliminary issue, the mother has moved to dismiss this appeal as improvidently granted on grounds of mootness.

She argues that the Department’s agreement that O.P. remain with his parents, as well as the juvenile court’s order to that effect, have rendered this appeal moot. Accordingly, we first address whether we should dismiss this appeal without reaching the merits. A. Whether this Appeal Should be Dismissed as Moot As indicated above, in April 2019, around the time that the Department and the mother filed their petitions with this Court, the parties reached a resolution of sorts: the Department abandoned its request for an order of temporary shelter care, the parties agreed that O.P. was a CINA based on neglect but that O.P. should remain in the physical custody of his parents, and the juvenile court entered an order reflecting these developments. As a result, the issues on which we granted writs of certiorari are, as to this case and these parties (at least for the moment), moot.

See Mercy Hosp., Inc. v. Jackson, 306 Md. 556, 561 (1986) (A case is moot if “there is no longer an existing controversy between the parties, so that there is no longer any effective remedy which the court can provide.”). 20 Although an appellate court typically dismisses a moot appeal without addressing its merits,19 there are several exceptions to the mootness doctrine. Under one exception, even if a controversy no longer exists when the case is before the appellate court, the case will not be dismissed as moot if the controversy is “capable of repetition, yet evading review.” State v. Parker, 334 Md. 576, 584-85 (1994). An appellate court may justifiably decide an otherwise moot issue “if the public interest clearly will be hurt if the question is not immediately decided, if the matter involved is likely to recur frequently, and its recurrence will involve a relationship between government and its citizens, or a duty of government, and upon any recurrence, the same difficulty which prevented the appeal at hand from being heard in time is likely again to prevent a decision.” Lloyd v. Board of Supervisors of Elections, 206 Md. 36, 43 (1954); see also Powell v. Department of Health, 455 Md. 520, 539-41 (2017). The standard of proof used by a juvenile court in deciding whether to grant or deny continued shelter care during the pendency of a CINA proceeding is an issue of public importance that will undoubtedly recur, perhaps even with the parties to this appeal.

Application of that standard of proof to the determinations required by CJ §3-815(d) will determine whether a juvenile court authorizes the Department to continue to provide shelter care outside of the family home to a child alleged to be a victim of abuse or neglect. It is also important that juvenile courts in the State apply the same standard in making such 19 There is, however, no constitutional bar to an appellate court expressing its views on a moot issue. Mercy Hosp., 306 Md. at 562 . 21 determinations. Given that shelter care proceedings, and related hearings in the CINA case, are inevitably on a fast track, an appeal from a denial of shelter care will almost always be moot by the time the appellate court would render its decision on a disputed question of law.

Accordingly, we decline to dismiss this appeal on that ground. We will therefore address the issues presented by the parties as to whether a juvenile court’s order denying shelter care is appealable and, if so, what standard of proof is to be applied by a juvenile court in making that determination. However, as there is no longer a controversy among the parties concerning the placement of O.P. in shelter care at this time, we need not decide whether the juvenile court made clearly erroneous findings of fact or abused its discretion in denying the Department’s petition for continued shelter care. B. Whether There is Appellate Jurisdiction In her cross-petition for a writ of certiorari, the mother20 raised another threshold question: whether the juvenile court’s January 10 order denying the Department’s petition for continued shelter care is appealable.

As a general rule, a party may appeal only from “a final judgment entered in a civil or criminal case by a circuit court.” CJ §12-301. There are, however, three exceptions to the requirement of a final judgment: (1) appeals from interlocutory orders specifically allowed by statute; (2) immediate appeals permitted when a circuit court enters final 20 The father did not join this argument. 22 judgment under Maryland Rule 2-602(b);21 and (3) appeals from interlocutory rulings allowed under the common law collateral order doctrine. Salvagno v. Frew, 388 Md. 605, 615 (2005). There is no dispute that the juvenile court’s January 10 order denying continued shelter care is an interlocutory order in the context of the CINA case.

The order is therefore not appealable unless an exception to the final judgment requirement applies. The Department has advanced two arguments for immediate appealability, one based on a statute that authorizes an interlocutory appeal of an order denying injunctive relief and the other based on the collateral order doctrine. The Court of Special Appeals concluded that an order denying continued shelter care is appealable under the collateral order doctrine. 240 Md. App. at 552-57 . We agree with the intermediate appellate court’s well-reasoned analysis and do not address the Department’s alternative statutory theory.

An interlocutory order may be appealed under the collateral order doctrine if the order (1) conclusively determines (2) an important issue (3) separate from the merits of the action (4) that would be effectively unreviewable if the appeal had to await entry of a final judgment. Pittsburgh Corning Corp. v. James, 353 Md. 657, 661 (1999). As the Court of Special Appeals observed, the first, second, and fourth elements of the collateral order doctrine are easily satisfied in this case. 21 Under Maryland Rule 2-602(b), a circuit court may expressly find that “there is no just reason for delay” and may direct entry of a final judgment as to fewer than all of the claims or parties. 23 First, the disputed question at a shelter care hearing – whether continued temporary placement of the child outside the home is warranted pending adjudication of the CINA petition – is conclusively determined by a juvenile court order denying continued shelter care. Second, such an order undeniably resolves an important issue as the decision hinges on whether there is an emergency situation that requires temporary placement outside the home for the safety and welfare of the child.

Fourth, shelter care is by definition temporary during the pendency of a CINA proceeding and intended to deal with a serious risk to the child’s safety and welfare during that period. A decision denying continued shelter care would be effectively unreviewable if an appeal had to await a final