Matter of McNeil

Sweeney, J., delivered the opinion of the Court. In the case at hand, we are concerned with the efforts of a mother to regain the custody of her two infant children, who were removed from her care pursuant to an order of the Circuit Court of Baltimore City, Division of Juvenile Causes. ⁴⁸⁶ The record indicates that the case had its beginnings on January 24, 1973, when the mother, Portia McNeil (Appellant herein) filed a petition in the Division of Juvenile Causes alleging that her children, Bryant Keith McNeil, age 4V2 years, and Sherrelle Yolanda McNeil, age 3V2 years, were dependent children. On February 9, 1973, the matter first came on for hearing before Juvenile Court Master Paul A. Smith, Jr., who, with the consent of the mother, recommended the commitment of both children to the Department of Social Services and an order to that effect was passed. The Department of Social Services (hereinafter referred to as Social Services) thereafter placed both children in foster care.

On July 20,1973, the Appellant filed a Petition for Review of Commitment, alleging that she was then able to care for the children, and that their continued commitment to Social Services was not in their best interest. A hearing on the Petition was originally scheduled for August 31, 1973, but was postponed for 30 days at the request of Social Services so that it could obtain certain medical information concerning the children. On September 27, 1973, Master Smith conducted a four-hour hearing on the Petition, at which the Appellant appeared and testified, as did certain medical witnesses whose testimony was favorable to the Petitioner’s cause. The record does not reveal which party had issued summonses for the doctors.

At the conclusion of the hearing, the Master recommended that the commitment to Social Services be rescinded and that the children be returned to the custody of the mother. An order to that effect was signed by Judge Robert I. H. Hammerman on the date of the Master’s hearing. On that same day Social Services filed exceptions to the report of the Master, and the matter was set down for a hearing before Judge Hammerman on October 17,1973. That hearing began with the following colloquy between Appellant’s counsel and the court: MR.

MEOLA: Your Honor, I was given a message by your Bailiff this morning. Mrs. McNeil ⁴⁸⁷ called your Honor’s office saying that her child was sick and couldn’t appear in court. She called me yesterday to tell me about the sickness. I, at that time, I told her that the court may not be receptive to a continuance and she said she would be here this morning.

I can only assume that the sickness is worse this morning when she — THE COURT: I don’t know that you can assume that it is worse. You can assume she’s not here. MR. MEOLA: Yes, your Honor, she’s not here at this time.

Also, the review of commitment hearing before Master Smith, Doctor Hahn appeared from Johns Hopkins Hospital to testify. I assume that the same summonses are issued, that they would be here today, only I’m informed that Doctor Richardson has appeared instead, and I would like Doctor Hahn to be available, and I want our chance to subpoena him. THE COURT: He was not summoned for today’s hearing. MR.

MEOLA: Your Honor, I thought he would have been. THE COURT: But he wasn’t. MR. MEOLA: No, your Honor.

THE COURT: We are going to proceed today, Mr. Meóla. Was this case before me already once? MR. MEOLA: No, your Honor.

THE COURT: Postponed — well, we are going to proceed this morning. I think you have had every opportunity to summons Doctor Hahn and you did not choose to do so, that was your decision to make, but we have, I know, many people in the courtroom today involved in this matter, and not everyone is involved in this matter, but there are quite a few, I believe, who are involved in this matter, and there was ⁴⁸⁸ no request for a continuance or postponement of this. I think the respondent has had every — the petitioner in this case, has had every opportunity to do what was necessary and, we will proceed. The entire record of the hearing before Judge Hammerman is barren of any inquiry by him as to the nature of the child’s illness, or whether the child was ill at home or hospitalized; nor did he inquire as to whether the mother had failed to appear at any previous proceeding throughout the ten-month history of the matter, or whether she had been generally cooperative with her counsel, representatives of Social Services, or the medical personnel who had examined and cared for her children from time to time.

After this dialogue between the court and counsel, Appellant’s counsel sought permission of the court to summons Dr. Ivan W. Laurich, psychiatrist for the Supreme Bench. Dr. Laurich was not available, but two evaluations prepared by him were introduced into evidence. His first evaluation, which had been available to Master Smith at his hearing on September 27th, withheld a final report or recommendation. In that report Dr. Laurich stated that “[i]n the absence of this data, I do not consider it feasible for me to make any statement regarding the role of Mrs. McNeil in the genesis of her children’s difficulties.” The second evaluation by Dr. Laurich was made after further interviews with Mrs. McNeil.

In that evaluation, the physician stated his view that both children had psychiatric disturbances, and that Sherrelle suffered from psycho-social dwarfism. He described Bryant as “dependent, clinging and demanding.” His observations of both children, however, were based on his examination of medical records prepared by others, and not on his personal examination or evaluation of the children. That report concluded as follows: “In my opinion, although Ms. McNeil cannot be described on the data available as being psychotic, there are sufficient indications of her being ⁴⁸⁹ emotionally disturbed to the extent that her style of handling her children has played a significant role in the genesis of their serious disturbances. Certainly at this stage, she is unable to objectively understand the nature of their disturbances and their special management needs.

In view of this, it is recommended that continuation of the commitment to the Department of Social Services would definitely be in the children’s best interests. Since they are currently residing with their mother, it is recommended that they remain there, subject to supervision of the Department of Social Services, in conjunction with the staff of the Children’s Medical Surgical Clinic at Johns Hopkins, who have been in contact with the family. I have confirmed with Dr. Sung-Up Hahn, Director of that Clinic, that his staff would be available for counseling of Ms. McNeil, collaboration with the Department of Social Services caseworker, and serial review of the childrens’ status. Should there be a failure on Ms. McNeil’s behalf to follow through with this kind of management, or should there be substantial regression or deterioration in the status of either of the children, it is my opinion that this would undoubtedly reflect her incapacity to parent these children and an indication that their permanent removal from her custody would be in their best interests, in view of the serious nature of the disturbances which they have already displayed — even though their conditions substantially improved during their period of hospitalization, a significant regression in their conditions should be seen as particularly damaging and its avoidance should be attempted at all costs.” It appears that Appellant’s counsel had not seen Dr. Laurich’s report until it was handed to him in open court at the hearing and introduced by him as a Petitioner’s exhibit.

He thereupon asked for a continuance to summons a Dr. Pesidan who had testified at the hearing before the Master, ⁴⁹⁰ evidently intending to use Dr. Pesidan to rebut some of the critical comments concerning Mrs. McNeil set out in Dr. Laurich’s evaluation. This motion for a continuance was denied. Appellant’s counsel then made a motion to dismiss the exceptions filed by the Department of Social Services, which was also denied. From a thorough reading of the record, it is obvious that Appellant’s counsel, although long experienced in juvenile proceedings, had appeared at the hearing unaware that it was a de novo proceeding and that his obligation to prove Appellant’s case was as great at the hearing before Judge Hammerman as it had been before the Master on September 27th.

It does not appear that he had summonsed any witnesses, apparently having relied on the Department of Social Services to summons the same witnesses who had appeared at Master Smith’s hearing. At various times in the initial stages of the hearing, Judge Hammerman advised Appellant’s counsel that the proceeding was de novo and that he had the burden of going forward. The validity of the judge’s position is made abundantly clear by a reading of Maryland Rule 908, which states, in pertinent part: “e. Masters. “1.

Hearing Before Master. The master shall hear such cases as may be assigned to him by the court and upon the conclusion of the hearing shall announce his findings and recommendations. All papers relating to the case together with the master’s findings and recommendations shall then be transmitted to the judge. “2. Exceptions to Findings or Recommendations.

The petitioner or any party may file written exceptions to the master’s findings or recommendations or any part thereof within five (5) days after the hearing. Exceptions by a petitioner after a delinquency hearing may only be taken by the State’s attorney. The clerk designated by the court, upon the filing of such exceptions, shall notify the petitioner and all parties of the time and place of the hearing before the judge. ⁴⁹¹ “3. Order of Judge.

In the absence of exceptions, the master’s findings and recommendations shall promptly be confirmed, modified or remanded by the judge. If, within the specified time, exceptions are filed, the judge shall hear the entire matter or such specific matters as set forth in the exceptions de novo. ” See Matter of Anderson, 20 Md. App. 31 , cert. granted. Finding himself before the court with his client absent and no witnesses summonsed in her behalf, and with the repeated refusals of the court to grant him a continuance, Appellant’s counsel then called as his own witness Dr. James Rubenstein, an assistant resident pediatrician at the Johns Hopkins Hospital, who had been summonsed by Social Services. It is not necessary for our purposes to deal at any great length with the testimony of Dr. Rubenstein, except to say that it was devastating to Appellant’s case, as it was the Doctor’s conclusion that the difficulties of the children were attributable, at least in a substantial part, fo an abnormal maternal-child relationship, and it was his opinion that the daughter, Sherrelle, would be better off in an institution than in the mother’s home.

According to Dr. Rubenstein’s testimony, he had never had any contact with Bryant, and his contact with Sherrelle began on August 3, 1973, at which time she was a patient at Johns Hopkins Hospital. It appears that at the time of her admission to the hospital, Sherrelle was living in a foster home in which she had been placed by Social Services pursuant to her commitment to that department by Master Smith at his hearing on February 9, 1973. After describing her symptoms and medical history in some detail, Dr. Rubenstein advised the court of his diagnosis that the child was suffering from “psycho-social dwarfism.” He testified that Sherrelle had improved while in the hospital and had gained about seven pounds. At this point, the following colloquy occurred: Q. You testified that the child weighed eleven kilograms when she was introduced in the hospital? ⁴⁹² A. Right.

Q. That’s about twenty-five pounds? A. Approximately. Q. Would your diagnosis be affected by the fact that when the child was placed in foster care, the child weighed thirty-six pounds? MR.

BUCKLEY: Objection, no proof of that. THE COURT: I’ll sustain the objection, and I would also state, it seems to me, Mr. Meóla, that you’re trying to impeach your own witness here. You’re asking a witness to take the stand as your own witness. You’re asking him to give a diagnosis and now it seems to me you’re trying to impeach his diagnosis.

MR. MEOLA: Obviously, this witness must be an adverse witness to that extent. THE COURT: Not at all, you called him as your witness. MR.

MEOLA: Your Honor, I’ve been placed under great limitations, as I do not have the mother here. I do not have the doctors here to testify. The first time — THE COURT: That may be, but you still called Doctor Rubenstein as your witness. I’m not restricting you in the matter of trying the case.

I’m merely making a comment. Realizing that you may be belaboring under more difficulties than you had hoped for, I don’t want to restrict you under the law, I’m just making the observations without telling you to stop. The court thereafter did permit Appellant’s counsel some latitude in his questions to the witness, but counsel elicited no responses favorable to Appellant’s cause. Counsel for the Department of Social Services conducted no cross-examination of Dr. Rubenstein and no other witnesses were called in the proceeding.

Appellant’s counsel then made a proffer of evidence that ⁴⁹³ he would have presented had he been granted a continuance. He stated: “Your Honor, Mrs. McNeil — If Mrs. McNeil was here, she would have testified that her daughter, Sherrelle, weighed thirty-six pounds when she went into foster care. This child had lived both with her and her husband, the father, the mother, the maternal grandparents for periods of time.” Counsel also stated that: “If Dr. Hahn was here, he would testify to the fact that it was his opinion that the child being moved from family to family is detrimental to the child. That the child should be placed in one environment where it’s going to stay. “ . . . and that this stable environment could be done in the home of the mother with follow-up care after that point.

Your Honor, that is basically it.” Counsel for the Department of Social Services thereupon made a motion that the Petition for Review of Commitment be dismissed and, after extremely brief argument by Appellant’s counsel, the motion to dismiss was granted. Judge Hammerman delivered a rather lengthy oral opinion, in which he said that the very evidence presented by Appellant “totally rejects the position taken by the petitioner.” After the dismissal of