In re Priscilla B.

NAZARIAN, J. George B. (“Father”), the father of six-year-old Priscilla B., appeals the Order of the Circuit Court for Worcester County that found Priscilla a child in need of assistance (“CINA”) for the third time. The circuit court affirmed the recommendation of a master who found, after a hearing, that Priscilla’s mother, Christina F. (“Mother”), and Father neglected Priscilla by failing to provide her with an emotionally or physically safe environment.

The court also granted temporary shared custody to Priscilla’s maternal grandmother and a couple who was caring for Priscilla at that time (and had in the past). Father appeals that order, Mother does not. Because we find no error in the master’s and the circuit court’s conclusions that Priscilla was properly found a CINA, removed from the home, and placed in temporary shared custody, we affirm. I. BACKGROUND Mother, Father and (until she was removed) Priscilla live in Berlin, Maryland, in a trailer that the record reveals (without dispute) is dirty and badly in need of repair.

The setting by itself doesn’t, and shouldn’t, give rise to CINA proceedings— poverty does not render parents unfit or children unsafe. But this family’s living conditions deteriorated to the point that in late September 2012, a child protective services investigator, Tammy Jones, investigated the home based on allegations of neglect: Priscilla had lost weight, lived in an environment that involved continued domestic violence and alcohol and drug abuse, had been left home alone under the “supervision” of the family dog, and had medical needs that were left unmet. Based on these allegations, and in part due to the family’s history with the Worcester County Department of Social Services (“DSS”), Ms. Jones investigated further. A. Prior DSS Involvement And CINA Proceeding.

DSS knew this family well, and long before the events giving rise to this case. Priscilla tested positive for the presence of cocaine when she was born in 2006. Under the CINA statute, this test result gave rise to a year-long pre ⁶⁰⁵ sumption that she was “not receiving proper care from [her] mother” and fell within the definition of a CINA. Md.Code (1974, 2013 Repl.Vol.), § 3-818(1) of the Courts & Judicial Proceedings Article (“CJ”).

Although her case was closed in July 2007, as Ms. Jones detailed in a Court Report to the master in this case, DSS was only briefly out of Priscilla’s life, 1 and reentered it in October 2010 after complaints that Mother and Father had continuing problems with domestic violence, drug and alcohol abuse and housing issues that gave rise to a new DSS investigation. 2 The month before, police had responded to an early morning call alleging a domestic dispute and found both parties heavily intoxicated, with Father having locked Mother out of the house. The condition of the house presaged its state in the current proceeding: DSS found a hole in the middle of a bedroom floor, broken windows, a yard cluttered with trash and dangerous debris, and no food in the home. At that time Priscilla and Father shared a couch to sleep because Mother took over the bedroom when she was drunk. These findings led to a proceeding in which Priscilla was found (for the second time) to be a CINA.

For reasons that are not apparent from this record, the case was closed on April 23, 2012. Notably, though, the DSS investigation remained open, and only five months passed before intervention became necessary once again. ⁶⁰⁶ B. Current Allegations And Investigation. Ms. Jones began investigating the allegations giving rise to this case in September 2012. She met first with Priscilla at her school, then went to the home to meet with Mother and Father.

At the December 7, 2012 hearing before the master (the “Hearing”), Ms. Jones recounted Father’s immediate hostility upon her arrival, as well as the unsafe conditions she found in the home: [A]t the home [Father] met me outside and I discussed with him the referral allegations and he was immediately argumentative and became belligerent and denied all of the allegations, and then I asked to see the inside of the home. And I went inside of the home which was very dark. The flooring that I walked on through the entryway of the home and the living room and the hallway leading down to the bedrooms, it moved, like there was holes in the floor. Some of those holes were covered with just a carpet and I addressed that with [Father].

I said, you know, the floor is moving, like I was fearful that I was going to fall through the floor. And he said all floors move. And so then we walked through the hallway and that floor was the same way, back to Priscilla’s bedroom, and I observed that there was a mattress on the floor and that’s where Priscilla slept. And I asked why the mattress was on the floor and [Father] said that it was more comfortable.

And I asked if it was more comfortable for Priscilla or for [Father] and he said it was more comfortable, those were his words. So [Father] was very argumentative while I was inside of the home. [Mother] was there, she was emotional, not as argumentative or belligerent as [Father], but I didn’t feel safe being inside the home so we went back outside, continued conversation with [Father]. Both he and [Mother] stated that they didn’t understand why I was at the home, they didn’t understand the allegations.... ... In addition to the flooring it was unkempt.

The kitchen area was dirty, the refrigerator and freezer were very dirty, it was very cluttered, a lot of items that I don’t know what they were were lying all around. So I explained to them ⁶⁰⁷ when I was outside that it was my assessment that the home, the living environment was not safe for Priscilla and I asked them to make a plan for Priscilla until we could have a family involvement meeting. (Emphasis added.) Based on that visit, Ms. Jones determined that Priscilla should be removed from the home because “the home environment was not safe” for her. The parents suggested two resources for potential placements: Priscilla’s maternal grandmother (“Grandmother”) and friends of Grandmother through her church who had helped care for Priscilla in the past (whom we refer to as the “Caregivers,” and the mother individually as “Carol P.”).

Ms. Jones held a “family involvement meeting” shortly after the investigation, and the parties agreed on a plan for Priscilla’s care. Father agreed to fix the flooring in the trailer. The parents were required to go to couples counseling, and DSS recommended that each undergo substance abuse counseling and drug evaluations. Ms. Jones also investigated allegations that Priscilla’s parents had allowed a spider bite on Priscilla’s leg (which, even Father agreed, she received at home, and that ultimately required medical attention and antibiotics) to go untreated.

Grandmother testified that she had noticed the wound on Priscilla’s leg, which was obviously infected; she took Priscilla, to the doctor, who confirmed the diagnosis. Grandmother received antibiotics to treat the wound and told Mother and Father to administer the medication to Priscilla regularly. Grandmother left town and returned a few days later to discover that Priscilla’s parents had not given her the medication regularly. Indeed, Grandmother testified that she has always had to be responsible for getting medical care for Priscilla.

Grandmother also took a dim view of her son-in-law’s and daughter’s parenting skills. According to her testimony, they fought when Priscilla was with them “maybe 80 percent of the time at least.” She testified about her own run-in with Father shortly after Priscilla went to live with the Caregivers, when ⁶⁰⁸ Grandmother took her back to her parents for a visit: “when I took her over they met me on the porch and that’s when I said she wasn’t supposed to stay there and he got right up in my face and he said she’s my daughter and she’ll stay here.” She testified that she saw Father drink alcohol with Priscilla around at gatherings at the home. And when asked about her relationship with Mother and Father, she responded, “With my daughter, I love my daughter very much, but I don’t like her. [Father,] no comment.” Carol P. contrasted Priscilla’s environment before removal with the environment at her home, where Priscilla lived at the time of the hearing with her and her husband and their three children. She had watched Priscilla at various times since she was four years old.

Carol P. testified that in the summer of 2012, Mother called her at about 6:30 in the morning in the midst of a fight with Father. Mother was hiding in a camper behind their trailer with her older daughter, and had called the police. As Carol P. put it, Mother was distraught and afraid, and told her that Mother and Father “were fighting and arguing and that if something happens I have to fight for [Priscilla].” Carol P. testified that she had not seen Mother and Father drink alcohol around Priscilla, but had seen empty beer cans and beer containers in the yard. Carol P. also described an event that left Priscilla extremely upset.

After she had been removed from her parents’ care, the Caregivers went away for a weekend and Priscilla stayed ■with Grandmother. Mother had told Priscilla she would bring donuts to Grandmother’s house and they would carve a pumpkin: So Priscilla got up the next morning at 8:00 in the morning and she was like I don’t want to eat breakfast here. I [want] to go over and eat breakfast with my mom and grandmom, and my mom’s bringing me donuts. Well, I think we called about eight or ten times that morning and they did pick the phone up and we took her over to [Grandmother]’s house and I believe [Grandmother] told me that it was between ... 1:00 and 2:00 that [Mother] came over, did not have the donuts.

And I know that seems ⁶⁰⁹ insignificant, but to a child that’s important. And they didn’t carve the pumpkin, they painted the pumpkin. Carol P. painted a picture of Priscilla as an agitated, unsettled child when she came back from a visit with her parents, in marked contrast to the creature of habit she had become when living with the Caregivers: Well, particularly this last time she was very, very active and she had been given caffeine. And ... with us she’s on a schedule, you know, and she knows what to expect; she knows when to expect her breakfast, she knows when to expect her dinner, she knows when there’s bath and there’s homework time because she is on a set schedule.

I have three other children. And when she comes back she’s■—-she comes back different, she’s antsy and ... I would describe as a child that is ... just very edgy and just not herself. When she’s at our home she’s just like one of our children and she just—she plays and she doesn’t worry about things.

(Emphasis added.) Carol P. explained that according to Priscilla’s teachers, she is doing well in school; although she is a grade level behind, she is starting to learn to read, understands phonics and sounds out words, and is doing well in math. Carol P. was amenable to having joint custody of Priscilla “[bjecause she’s been in our home and she’s been in our life and she’s part of our family.” She expressed no such sentiments when asked about Priscilla returning to Mother and Father: Q. How do you feel about returning her to her parents? A. Scared for Priscilla, scared that she won’t be safe there, scared because of the things that she tells me and things that Pve observed and things that Pve seen. Q. Well, you haven’t seen any injuries to her from her home, have you?

A. No, but she’s been to my home where her hair’s been matted, dirt underneath her toenails, and I asked her when she’s gotten a bath and she said it’s been a while. Pve seen her— ⁶¹⁰ Q. You don’t like [Mother], do you? A. No, I like [Mother]. Q. You do?

A. And I like [Father], but I have to care for Priscilla’s safety, and Priscilla, I look at Priscilla as a child that needs help and needs somebody that’s going to take care of her and that’s going to meet her needs and help her to grow and be the person that she can be. Viola Williams, a case work specialist with the In-Home Family Services Unit of DSS who had been the case worker for the family in the prior CINA hearing, testified at the Hearing that Priscilla’s appearance and demeanor had improved since she began living with the Caregivers: A. She is very close to [the Caregivers] and their children, the family members that are in the home. She enjoys spending time with them, she’s learning different things, she’s on more of a schedule since she’s been there with them and she looks happy. Her overall general, she is very happy being there with them.

Q. How about her appearance, have you noticed any changes in her appearance since she’s been residing with the [Caregivers]? A. Yes, she—her overall appearance, she—I’m not sure if I have the word [for] this, but she looks different to me, very, very appropriate. Q. How about her hygiene, do you notice a difference now in her hygiene? A. Well, her hygiene was clean, but she just appears to look different this time, I’m not sure.

Q. Like how? A. Her dress was different, her hair was different, she just—her overall appearance just looks a lot I want to say cleaner. When Priscilla returned home after that case was closed in April 2012, the trailer was (according to Ms. Williams) “appropriate and safe.” When she saw it again in September, however, there was “more debris” on the outside and the house needed repairs on the interior. ⁶¹¹ Father testified at the Hearing, and his testimony was entirely consistent with other witnesses’ characterizations of him as belligerent and hostile. He admitted to drinking alcohol “[w]henever I feel like it,” but denied drinking in excess, claiming to drink two to three beers three or four times a week, and only “very rarely” in front of Priscilla.

He denied arguing in front of Priscilla, and claimed that until Priscilla was taken away, domestic violence was not a problem and things “were going very well” between him and Mother— he seemed to blame any conflict between him and Mother on the fact that Priscilla had been removed from the home. He disagreed with all the allegations about violence or arguing in the home, not feeding Priscilla, and about medical neglect. He stated that he “never even knew” she had a spider bite. He described the condition of their home in September 2012— when Priscilla was removed based in part on Ms. Brown’s conclusion that she did not feel safe carrying on a conversation with Father inside it—as “a little dirty,” but “not unlivable or unsafe at all.” When asked the condition of Priscilla’s bedroom, he simply responded, “[h]er bedroom’s fine.” When asked if he felt his home was safe for Priscilla, he asserted, “Yes, my home was never not safe for my child.” (Emphasis added.) Father was also asked (without objection by his counsel) about Priscilla’s prior CINA case.

He conceded that Priscilla was adjudicated a CINA in that case, but admitted only that “it was proven that we didn’t get along because the cops were called.” Although Mother was present at the hearing, she did not testify. C. Disposition/Adjudication By The Master. After hearing the testimony of the parties, the master began by addressing the credibility of the parties, including reference to the prior CINA proceeding: [Mother and Father] have a history with this Court. Like it or not there have been ongoing investigations and involve ⁶¹² ment of [DSS] and this Court with this family since 2007.

There have been various and sundry run-ins with the Court in other venues, criminal court, traffic court, ongoing for years, for years. Both [Mother] and [Father] have piles and piles of paperwork indicating that they have run into issues, both criminally with regard to traffic, with regard to domestic violence, and with regard to the care of Priscilla. I mean to say right from the get-go that although I allowed a lot of hearsay in this, I did not rely on it, and I’ll tell you why, I felt like I had enough other evidence. Pm not sure, quite frankly, that Priscilla’s statements offered through other people were anything but hearsay.

(Emphasis added.) Having declined to consider Priscilla’s statements, the master then went through Ms. Williams’s testimony, noting particularly her belief that Priscilla didn’t feel safe: But you can’t listen to the totality of the evidence offered in this case by the witnesses and not come up with the conclusion that this child doesn’t feel okay in her mom and dad’s home, and that is absolutely developmental^ inappropriate .... (Emphasis added.) After reviewing the remaining evidence, the master cited numerous factors that contributed to her recommendation: Ms. Williams’s testimony regarding the unsafe condition of the home and the difference in Priscilla’s appearance upon going to stay with the Caregivers; the parents’ history of (and Father’s refusal to abstain from) drinking alcohol; Grandmother’s care for Priscilla after the spider bite became infected; and Carol P.’s testimony about Priscilla being agitated after returning from visits to her parents’ house. She then stressed the importance of the family’s history; although she discussed the prior CINA petition, the master was careful to point out that the outcome of the prior case was not the basis for her decision in the current case, in which DSS presented independent evidence of neglect: I heard your case from start to finish when it was opened in October of 2010, and [counsel] said it really well, it was a ⁶¹³ happy day when Priscilla went home. The concerns that are alleged today are the exact concerns that were alleged back in October of 2010 when the case came before us on a shelter care, same concerns.

And although that can’t be the finding in and of itself for a CINA finding today I find that the totality of the evidence before the Court today based on parties’ history, based upon a six-year-old’s position of being—of feeling unsafe, based on the fact that she’s six and she can’t self-protect, based on all of the above I find that the allegations in the petition are sustained as to: one, the allegation of ongoing domestic violence; two, allegations of unsafe and unhygienic conditions of the house; three, allegations that Priscilla’s medical needs may not have been properly met. I cannot find and I will make a statement about this, that she was left unattended or that she was not properly fed, I do not believe the evidence supports that. Nevertheless, I find that most of the evidence in the petition as alleged were sustained. Forty plus months of services for this couple.

I think [DSS] made reasonable efforts, [counsel for Mother], there was a slew of them. (Emphasis added.) After adjudicating Priscilla a CINA, the master then found that Mother and Father could not “put her needs first” and were “unwilling to give proper care and attention,” and therefore that it was “contrary to her welfare to return home at this stage.” The master again cited numerous bases for that decision; (1) the current state of the house was unknown; (2) it was likewise unknown whether the parents were remaining sober; (3) there were ongoing concerns of potential maltreatment; and (4) DSS had made reasonable efforts to provide services to the parents. The master recommended shared joint custody between the Caregivers and Grandmother until a subsequent hearing. D. Circuit Court Review.

Father and Mother filed joint exceptions to the Master’s Report and Recommendation, and initially requested a trial de ⁶¹⁴ novo. They later agreed to submit their exceptions on an agreed redacted version of the record, -without a hearing; the redactions eliminated portions of the record considered by counsel to be hearsay statements. The main purpose of this agreement was to exclude any statements by Priscilla to Ms. Jones, but there was more to it than that. The circuit court took pains to clarify that while it was not entirely clear from the transcript how any hearsay within the DSS reports was to be treated (because counsel did not actually redact any part of those reports except Mother and Father’s names), it ultimately did not consider any hearsay included in those reports in its decision: And what [I] reviewed then was the transcript as well as the contents of the court file, the exhibits which were entered into evidence at the hearing, and the reports that were entered into evidence at the hearing.

When they were introduced counsel took or noted their objection to the hearsay that may have been contained or that was contained in those reports and that was noted by [the master] and the exhibits were admitted. In the spirit of the redacted transcript, however, I’m not sure how they were admitted, whether her intent was to exclude the hearsay or not consider the hearsay that was included in those reports. They were simply admitted. But again, in the spirit of the parties’ agreement as to what the Court was going to review, those exhibits are entered into evidence, however, the hearsay which was included, that was not considered because I think that was the parties’ agreement and that’s the way that we’ll proceed here today.

(Emphasis added.) The court adopted the “first level facts” from the master, as supported by the evidence and not clearly erroneous. The court then looked at whether the facts were “sustained by a preponderance of the evidence for the purposes of adjudication.” The court noted the master’s prior involvement with the family and stated that “she was in an excellent position to gauge the credibility of these witnesses and the reliability of their testimony.” And then the court ⁶¹⁵ detailed the importance of the context in which Priscilla’s case arose: There is no doubt a history with the Court and that is outlined in the record, in the court report, most particularly and most importantly the CINA case that was previously mentioned, that’s acknowledged by all of the parties. And in that case it’s significant because the issues which were established, because there was an adjudication and there was a disposition of CINA, concerned many of the same allegations, general allegations, and those are alcohol and substance abuse as well as domestic violence, condition of the home. And those are relevant in that all allegations need to be evaluated and considered in some type of a context, they can’t be considered in a vacuum. ...

So the prior involvement certainly is of relevance to this—was of relevance to the Master and is of relevance to this Court in exercising its independent judgment. (Emphasis added.) The court recounted at length the testimony of the parties and the findings of the master. We reproduce the remainder of his opinion relating to the CINA adjudication because Father’s appeal turns largely on his views of what the circuit court did and did not rely on: [The master’s] important finding ... [considering] the ... independent evidence [was] that this child does not feel safe in the home of the parents. And her observation or her finding from that is that it was absolutely developmentally inappropriate for this child and this lack of security, in addition to being inappropriate, is detrimental and damaging to the child on a short term as well as a long term basis.

I think that’s absolutely clear, I’m satisfied of that. The notion that was expressed that she wanted to be with the [Caregivers] who have become somewhat of her defacto parents over a significant length of time because they—the facts show that the child was placed with maternal grandmother, maternal grandmother had a heavy work schedule and then had some type of an injury, I believe she said she had shattered her foot and was off her feet for an extended period of time, knew the [Caregivers] through church, the ⁶¹⁶ [Caregivers] volunteered to take care of Priscilla and lived at least at that first go-around as I recall for about a three-month period, an extended period of time. And since then they’ve had an ever present role in young Priscilla’s life. But the notion that she wants to be with the [Caregivers] solely because of material things was not persuasive to the Master, not persuasive to this Court today.

I think the Master noted and I agree that [to] a child of this age, material items are fleeting. She’s with them because she’s looking for a safe and secure bond which fortunately for her she has found with the [Caregivers]. Certainly everybody acknowledges that there is a bond and a loving relationship with the parents as well, but it’s the safety issue and safe and secure bond that she’s looking for like all children of this age. And I’m quite satisfied if she had her druthers she’d rather be living with the parents, but the safety issue is what is paramount for her.

It’s not a conscious decision on her part or one that comes from considered judgment necessarily, it’s one that just flows naturally from a child, especially a child of this age. The factors that were considered down below were the condition of the home, the dirty—the fact that the house was noted to be dirty, cluttered, and there was debris both inside and outside and there [were] some concerns about structural safety of the house. Now, there’s no question that many of these issues have been addressed or partially addressed by [Father].... But there was nothing below of a definitive nature as to whether or not all of these issues have been addressed such that the home is safe now.

Obviously [Father] contends that it is, but there was testimony from both of the workers that prior to adjudication in this matter with the Master that it wasn’t and that came in large part from [Ms. Williams.] [Ms. Williams] has and enjoys a good relationship, it’s very obvious with the parents; they requested that she be assigned to the case and her testimony was that the house, although there has been progress made, is not quite there ⁶¹⁷ yet. The appearance of the child, much everyone agreed, or I should say the independent witnesses agreed, Ms. Williams, [Carol P.], Ms. Jones, and Grandmother agreed that the appearance of the child is much more appropriate, cleaner, happier. And this is contrasted with the testimony of [Carol P.] who testified that often when [Priscilla] came from a stay with the parents that her hair was matted, dirty, and unbathed for periods of time, edgy, anxious, asking many questions, repeating herself. And this is indicative of that insecurity, and her testimony I found to be compelling and persuasive: when she comes back, what are we going to do?

What’s the plan? Are we going to take care of this? And it’s indicative of an angst and an insecurity when she returns, and then eventually that calms and mellows out. And I think this speaks to what I spoke— what [the master] spoke to and what I spoke to at the outset about this lack of security, lack of a bond.

The prior cases were generated in large part by substance abuse, alcohol abuse, and domestic violence and that was prevalent in the home. And the record is quite clear that that was the primary cause of the prior CIÑA case and continued DSS involvement. So we start with that prior history and then we look at the testimony that came at the last hearing and it’s quite clear that the alcohol issues that permeate this household and created the problems, the insecurity, instability for Priscilla continue, they’re unresolved. And there was much made about whether there was sufficient evidence, specific instances of alcohol abuse, and those concerns are noted.

But given the history and given the lack of any progress by the parents in this regard and lip service doesn’t cut it as far as this Court’s concerned. There’s been nothing meaningful as far as progress goes in this alcohol regard. [Father] had been ordered to abstain from alcohol in the past; as noted by the Master, he hasn’t, his attitude is when asked if he drinks, the quote I wrote down is “I’ll drink whenever I feel like it.” It’s not indicative of any meaningful progress in relation to a recognized problem. ⁶¹⁸ She was asked, there was some testimony concerning when Ms. Williams gave [Father] a referral or the parties a referral to the health department and she acknowledged, once again, always very candid and straightforward that the actual referral had been provided to them that day, the day of court. However, Ms. Jones was very clear, although she didn’t remember the exact date, she remembered that a referral had been provided, the parties said that they would follow through and they didn’t. And to me that’s—based on the history that’s true to form for the parties as it relates to their lack of progress.

So there’s no doubt based on the history and based on the testimony on that day that this problem of alcohol abuse in the home and its damage to the child is unresolved and it continues. [Carol P.] noted that on occasion when she was over at the house there were beer bottles strewn about the yard and I know that that in and of itself does not meet the burden, but when we look at the totality of the circumstances, the existing problem, the lack of progress, and the allegations that were made, the Court is concerned with the continued alcohol abuse in the home and the damage, the potential damage to Priscilla. The domestic violence, again, there’s a history here. [Grandmother] testified that the instance of arguing, confrontations in front of the child she said were about 80 percent of the time. She did speak of one specific instance on the porch when she got into a verbal confrontation with [Father] in front of the child. [Carol P.] spoke of a frantic call from [Mother] where she was hiding in a camper on the property to protect herself or hide from [Father]. And [Father] testified that there’s been no domestic violence since the first CIÑA case ended in April of 2012, but [Carol P.’s] uncontradicted testimony was that this, in fact, had happened in the summer of 2012.

Ms. Jones spoke of a recent report of domestic violence. Again, not sure of the exact date, but she did characterize it as recent. And the Court is satisfied this is an ongoing problem in that home, that it is detrimental to Priscilla. ⁶¹⁹ On the issue of medical neglect, again, there are, and we’ve all seen much more serious cases of alleged medical neglect than that which was alleged here concerning the spider bite, that’s for sure. It ties in though with the condition of the home; there were allegations about the condition of the home being dirty, cluttered, debris both in and out.

She’s bit by a spider, [Father] testified that that happened in the home. He didn’t notice it, [Mother] didn’t notice it, it was noticed by [Grandmother], it was handled by [Grandmother]. What was interesting about her testimony was that was just kind of an automatic for her because she said that based on history with these two parents she knew that the issue wouldn’t be handled so she took it upon herself to take the child in for medical attention, got the prescription. And again, we have a divergence of testimony here as to whether or not the antibiotics were followed through with, but [Grandmother] enjoyed credibility below and enjoys it here today based on a review of the testimony.

And her testimony is quite clear that the ... course of antibiotics was not followed through "with, that’s what [the master] found and I so find as well. So are there worse cases of medical neglect? Most definitely. Was there a shortcoming here on the part of the parents that posed a serious threat to the child?

Yes. Condition of the home, we’ve already spoken about that. There was one other incident that was testified to by [Carol P.] which, again, may not seem like a huge deal and [the master] didn’t mention this, [Carol P.] attached great significance to it in her testimony and I think she was justified in doing