In re Russell G.

BLOOM, Judge. The District Court of Maryland, sitting as a juvenile court in Montgomery County, adjudicated Russell G., the minor child of appellant, Kim C., and appellee Frank G., to be a child in need of assistance (CINA), committed the child to the custody of appellee Montgomery County Department of Social Services (DSS) for placement in the care and physical custody of Frank G. under DSS’s supervision, and limited appellant’s visitation with her son to one supervised visit per week. In this appeal from that adjudication and disposition, Kim C. presents this Court with four issues: ³⁶⁹ 1. Whether the Juvenile Court clearly erred in finding that Russell G. was a child in need of assistance when the evidence showed that at least one parent was able and willing to provide him with ordinary care and attention. 2.

Whether the actions of the Juvenile Court in placing time limitations on direct examination of the mother, prohibiting the testimony of other witnesses for the mother, not allowing closing arguments and in making a disposition decision based on a finding of a psychological disorder in the mother, that was not adjudicated nor alleged in the Petition, resulted in an unfair hearing that violated the mother’s Due Process rights. 3. Whether the admission of a psychiatric evaluation prior to the first disposition hearing violated the express direction of Courts & Judicial Proceedings Article § 3-818 that such reports are only admissible “at a disposition hearing.” 4. Whether the Juvenile Court’s factual findings, that it was necessary to continue removal of Russell G. from his mother, were clearly erroneous, and the continued removal was an abuse of discretion. Factual Background Kim C. and Frank G. are the natural parents of Russell G., born 3 March, 1990.

The couple never married and the relationship ended shortly after Russell G.’s birth. Kim C., a pharmacist, has had sole custody of Russell G. from birth. Kim C. is a recovering alcoholic. She had a relapse in 1993.

Various reports from different individuals at Kim C.’s apartment complex regarding Kim C.’s reckless behavior led the DSS to file a petition before the juvenile court requesting that Russell G. be found to be a CINA. After an emergency shelter care hearing, the juvenile court ordered that Russell G. be placed under its jurisdiction and be committed to the Montgomery County Department of Social Services for placement in the care and custody of his father, Frank G. Additionally, the juvenile court ordered that Rus ³⁷⁰ sell G.’s mother, Kim C., have visitation privileges under the direction of the Montgomery County DSS. Subsequent to the shelter care hearing, but prior to adjudication, Kim C. requested that the CINA petition be dismissed for lack of jurisdiction, on the grounds that at least one parent, Frank G., was willing and able to give Russell G. proper care and attention. The juvenile court denied the motion.

After an adjudicatory hearing, the court ruled that Russell G. was a CINA, and it left the child in the care and physical custody of his father. Following a disposition hearing, which was held on 28 September and 6 December 1994, the court reaffirmed its prior commitment of the child to the custody of DSS for placement in the care and physical custody of Frank G., subject to supervision by DSS. Kim C. is limited to one supervised visitation each week with her son. Extensive testimony was taken at the adjudicatory hearing regarding Kim C.’s alcoholism and dangerous behavior.

Mary Lounder, who worked at the front desk of the apartment complex where Kim C. lived, testified that she observed Kim C. “disheveled” and her speech slurred at least a half dozen times. In one instance, Lounder saw Kim C. place Russell G. at the head of a staircase while she went to the other side of the building to get her mail. Seeing the child fall down several times, and fearing that the child would fall down the stairwell, Lounder ran to the child and picked him up. Tony Griggs, property manager of the apartment complex, testified to several instances of Kim C.’s intoxication.

In one instance, she observed Kim C. appearing intoxicated, with her “eyes glassed over,” and her “speech slurred,” saying that she and Russell were going to the beach. In another instance, she observed Kim C. so intoxicated that she could not even coordinate Russell G.’s stroller into the elevator. She also witnessed Kim C. in the elevator so intoxicated that she had her eyes closed and was hanging onto the railing trying to brace herself. When the elevator stopped, Russell G. walked out of the elevator without Kim C. even noticing. ³⁷¹ Clinton McCaleb, a private security guard at Kim C.’s apartment complex, testified that he saw Kim C. sitting in her car in the parking garage, drinking out of a bottle of wine, with Russell G. sitting in the front seat.

He testified that Kim C. subsequently requested him not to write up the incident report because “she didn’t want to lose her son.” Sergeant Anita Green, site supervisor of security at the apartment complex, testified that Kim C. “flipped [her] the finger” and then tried to run over Sgt. Green with her car while Russell G. was in the front seat, after Sgt. Green had issued her a citation for parking in a fire zone. Sgt.

Green smelled alcohol and believed that Kim C. was intoxicated. Frank G. testified that he respected the decisions that Kim C. made regarding schooling and doctors. Additionally, he testified that they often had heated battles, centered principally on money needed for child support. As a result, Frank G. began avoiding Kim C. in order to prevent conflict.

Frank G. was aware of Kim C.’s alcoholism; he helped pay for her treatment when she had a relapse in 1987. Frank G. testified that he believed that Kim C. remained sober thereafter from 1987 to 1994. He observed only one instance in those 7 years that concerned him, and he immediately reported it to the DSS. When the DSS did not take action, he initiated custody proceedings in 1992.

The custody proceeding ended in 1993 when the two voluntarily entered into a consent custody agreement that gave Kim C. sole custody of Russell G. Frank G. claims that he did not become aware of Kim’s C.’s most recent relapse until he was contacted by someone at her apartment complex in March of 1994. He testified that he immediately contacted and met with the investigating DSS social worker and filed a petition in Montgomery County Circuit Court for modification of the custody agreement. Kim C.’s only witness at the adjudicatory hearing was her mother, Mary Atkinson. Ms. Atkinson testified as to Kim C.’s continued sobriety since Russell G.’s removal.

After the adjudicatory healing, the juvenile court determined that Russell G. was a child in need of assistance. The ³⁷² court first found that the Kim C. was unable or unwilling to take care of the child. “She was drunk with the child, drunk without the child, combative, explosive, drinking in the car, with the child, drinking in the car without the child.” The court next found that Frank G. was also either unable or unwilling to take care of Russell G. I think that [Frank G.] wanted, dearly wanted visitation with Russell. I think that something closed his eyes to seeing the obvious, that the woman who he had this child with, who he had known was an alcoholic, because he helped place her in Second Genesis, years before. Who he knew relapsed into full-blown alcoholism, he chose to ignore.

He chose to ignore that she was drunk and carrying his child in her car. He chose to ignore that she was drunk or uh, not paying proper attention when he dropped the child off. He chose to ignore the emotional damage that she caused the child, in screaming at him, Mr. G. in the child’s presence. And, an actual, physical fight that apparently resulted in, in harm, uh, to the mother, in front of the child, when the father walked off at visitation with the child to the elevator.

The court then went on to rule that Frank G. was also “unable” to care for the child because he did not have legal custody. [Frank G.] also didn’t have legal custody. And, the statute does not speak to whether or not the inability to give proper care and attention to a child, or unwillingness to give proper care' and attention to a child is from any source. It doesn’t restrict the source. The inability could be as simple as not having legal custody.

As a result of finding that both Kim C. and Frank G. were unable or unwilling to take care of Russell G., the court concluded that Russell G. was a child in need of assistance. Just prior to the adjudicatory hearing, the juvenile court ordered that Russell G. and his parents undergo psychiatric examinations by a “disinterested child psychiatrist.” Dr. James Hutchinson was selected as the independent child ³⁷³ psychiatrist. Dr. Hutchinson’s report contained a negative description of Kim C. Dr. Hutchinson concluded that Kim C. still “remains in the grip of her addiction,” finding that her behavior was incompatible with one in remission. Additionally, Dr. Hutchinson opined that Kim C. suffers from a personality disorder that is severely destructive to Russell G.’s development.

He reported: Unfortunately [Kim C.’s] problems in parenting her son do not stop with her severe addictive problem. My examination suggests that in addition to her addictive problems she has a characterological problem which leads to interactions with her son when she is sober that are highly destructive to him. During the evaluation she stimulated him in a provocative manner both sexually and aggressively then vigorously controlled and punished his natural responses. She did not attend to signals that he was overwhelmed.

At times she punished aggressive responses that he made in play as if they were real aggression. When he did demonstrate anger towards her she overreacted. There was no respect for his autonomy. She repeatedly intruded in what he wanted to do and changed the direction of the play and forced compliance from him.

She demonstrated the intensity of her own narcissistic needs by hurting him in order to force him to look at her when he tried to withdraw from the barrage of stimulation. There was a constant teasing and belittling. Only by constantly reminding myself of the Court’s need for a thorough evaluation could I restrain myself from intervening to protect Russell during this interview. Three weeks prior to the first disposition hearing, DSS moved for the admission of Dr. Hutchinson’s report.

Over Kim C.’s objection, the juvenile court accepted Dr. Hutchinson’s psychiatric report for filing. At the disposition hearing, Efim C. introduced two expert witnesses to counter Dr. Hutchinson’s report. Dr. Greenwood testified that Dr. Hutchinson did not have enough information to reach his conclusions regarding Kim C. Furthermore, Dr. Greenwood contended that it is “usually impossible” to make a ³⁷⁴ personality disorder type diagnosis when a person is in a crisis such as Kim C. Dr. Greenwood stated that he did not see any “serious substantiation” of the personality disorder that Dr. Hutchinson diagnosed. Dr. Mealy, Kim C.’s psychologist, was extremely critical of Dr. Hutchinson’s report.

He stated: I think there’s some substantial problems in this report and ... as a therapist and someone who has evaluated Kim C. I would say that it is a very imbalanced picture that primarily what is left out of this are a series of strengths that she has exhibited and an overemphasis on negative qualities to the point where I think it’s almost a grotesquely distorted outcome in terms of viewing her. Although for insurance purposes Dr. Mealy diagnosed Kim C. as depressed with an atypical anxiety disorder, he concluded that Kim C. was not a danger to the child and that she “could move forward in a pretty ... significant way.” On the final day of the disposition hearing, the trial judge reminded trial counsel of the limited time remaining. When appellant’s counsel called Kim C. to the stand, the judge requested that her testimony be limited to thirty minutes because of the severe time constraints. Kim C. testified that she had been sober for nine months.

Additionally, Kim C. voluntarily resumed her participation in Alcoholics Anonymous and was taking Antabuse daily. Kim C. further testified that she contracted with the Maryland Pharmacists’ Rehabilitation Committee for an alcoholic treatment and monitoring program, agreeing to regular urinalysis, appropriate therapy, and continued monitoring by a committee representative for a minimum of two years. The trial judge interrupted Kim C.’s testimony, telling appellant’s counsel that she had 15 minutes left and asking her how she would like to use it. Kim C. was dismissed from testifying and her counsel used the remaining 15 minutes to proffer the testimony of three witnesses.

Stephen Haiber, Kim C.’s pharmacy supervisor, would have testified that Kim C. has been a devoted worker and that he had seen no ³⁷⁵ evidence of any kind of substance abuse at all; Dee Cohen, who supervised a number of visits between Kim C. and Russell G., would have testified that she never observed anything other than “love and contact” [sic] between