In re: J.R., No. 459, September Term 2019.

INFANTS > DEPENDENCY, PERMANENCY, AND RIGHTS TERMINATION

On review of child in need of assistance (CINA proceedings), the juvenile court’s factual 

findings are reviewed for clear error. 

INFANTS > DEPENDENCY, PERMANENCY, AND RIGHTS TERMINATION

QUESTIONS CONSIDERED

On review of child in need of assistance (CINA proceedings), whether the juvenile court 

erred as a matter of law is determined without deference and if an error is found, the 

appellate assesses whether the error was harmless or if further proceedings are required.

INFANTS > DISCRETION OF THE COURT

On review of child in need of assistance (CINA proceedings), the appellate court gives 

deference to the juvenile court’s ultimate decision and will reverse only for abuse of 

discretion. 

INFANTS > IN GENERAL

NATURE AND PURPOSE

CHILD ABUSE REPORTS AND INVESTIGATIONS

STATUTES > LANGUAGE AND INTENT, WILL, PURPOSE, OR POLICY

Federal and state legislative history sanction the general use of safety plans, which is a 

nationally accepted practice utilized by Departments of Social Services in dealing with 

and responding to referrals for abuse or neglect. 

INFANTS > IN GENERAL; NATURE AND PURPOSE; CHILD ABUSE 

REPORTS AND INVESTIGATION

The Department of Social Services has utilized safety plans for decades in CINA 

proceedings in Maryland; this practice is statutorily authorized as an “alternative 

response” in Child Protective Services investigations. Family Law, § 5-706(a); (l)—(t).

INFANTS > IN GENERAL; NATURE AND PURPOSE; CHILD ABUSE 

REPORTS AND INVESTIGATION

While “safety plan” is not defined in the Family Law Article, COMAR or any Maryland 

case law, it’s plain meaning can be inferred from the statute, in that the Department of 

Social Services can use safety plans as one of the various mechanisms to provide 

appropriate services in the best interest of the child. Family Law, § 5-706(s)(11)(i).
INFANTS > CHILD ABUSE REPORTS AND INVESTIGATIONS 

The no-contact terms in a safety plan is valid if the term is implemented as an appropriate 

service in the best interest of the child. Family Law, § 5-706(s)(11)(i).

INFANTS > CHILD ABUSE REPORTS AND INVESTIGATIONS

The correct standard in determining whether a department can remove a child temporarily 

is whether the representative believes that the child is in serious, immediate danger. 

Family Law, § 5-709(c).

INFANTS > CHILD ABUSE REPORTS AND INVESTIGATIONS 

While safety plans are only authorized for alternative response and low risk cases, the 

statute is very clear that the Department of Social Services has great latitude in 

determining whether they will employ an investigation or an alternative response in their 

evaluation of child abuse or neglect, absent the exceptions found in Family Law, § 5-

706(p) or cases determined to fall under Family Law, § 5-706(n).

STATUTES > INTENT

When ambiguity clouds the precise application of a statute, the cardinal rule of statutory 

construction is to ascertain and effectuate legislative intent.

STATUTES > LANGUAGE AND INTENT, WILL, PURPOSE OR POLICY

We divine legislative intent from the entire statutory scheme, as opposed to scrutinizing 

parts of a statute in isolation.

INFANTS > CHILD ABUSE REPORTS AND INVESTIGATIONS 

Absent a clear definition of low risk, federal legislation, Maryland’s declaration that the 

health and safety of children be of paramount concern and the flexibility granted by the 

Maryland General Assembly to the Department of Social Services leads to a 

determination that the legislature intended low risk to be within the scope of the 

Department of Social Services’ judgment in assessing whether an alternative response is 

the appropriate step in considering allegations of child abuse and neglect.
INFANTS > CHILD ABUSE REPORTS AND INVESTIGATIONS 

The evidence supporting removal was sufficient for the Department of Social Services to 

believe that a three-month-old child was in immediate or imminent, serious danger when 

initial allegations of medical neglect led to substantiated claims of substance abuse and 

domestic violence; the temporary removal was an appropriate service in response to 

violations of the valid safety plans and the plan’s legal terms. 

INFANTS > DISMISSAL AND MOOTNESS

PRESERVATION

A question 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.

INFANTS > PROTECTIVE CUSTODY AND REMOVAL OF CHILD

Under the collateral order doctrine, denied petitions for continued shelter orders are 

appealable as interlocutory orders. 

INFANTS > PROCEEDINGS

Shelter care only address the short, provisional arrangements for a child during the 

pendency of CINA proceedings. Md. Code Ann., Cts. & Jud. Proc. § 3-815. 

INFANTS > PROCEEDINGS

A CINA adjudication and disposition, along with subsequent orders associated with 

CINA determinations deal with the permanent aspects of a child’s custody and care. 

INFANTS > DISMISSAL AND MOOTNESS

PRESERVATION

The merits of temporary, shelter care orders are moot once a CINA determination has 

been made, as there is no relief an appellate court can effectively grant a party; shelter 

care orders are no longer applicable after a CINA disposition.

STATUTES > MANDATORY OR DIRECT STATUTES 

When legislature commands that something be done, using words such as “shall” or 

“must” rather than “may” or “should,” the obligation to comply with statute or rule is 

both mandatory and directory; the relevant question in such cases is whether the sanction 

sought for noncompliance is the appropriate one.
CONSTITUTIONAL LAW > PARENT AND CHILD RELATIONSHIP

The constitutional protections in the Fourteenth Amendment that guarantee a parent’s 

right to be free from undue interference by the state are imperative, but they are not 

absolute. U.S. Const. Amend. 14. 

INFANTS > DEPRIVATION, NEGLECT OR ABUSE

The principal focus of the CINA statute is to ensure that juvenile courts (and local 

departments of social services) exercise authority to protect and advance a child’s best 

interests when court intervention is required.

EVIDENCE > PREPONDERANCE OF THE EVIDENCE

The standard employed by the trial court in determining whether a child has been 

neglected is preponderance of the evidence; this standard is measured against the totality 

of the circumstances. Ann. Md. Code, Courts and Judicial Proceedings, § 3–817(c).

INFANTS > DISCRETION OF THE COURT

Trial courts have wide discretion concomitant with plenary authority to determine any 

question concerning the welfare of children.

INFANTS > DEPRIVATION, NEGLECT OR ABUSE

Evidence of medical neglect along with corroborated concerns of drug use and domestic 

violence allegations support juvenile court’s findings that mother and father neglected the 

child by failing to give proper care and attention to the child.

INFANTS > DEPRIVATION, NEGLECT OR ABUSE

Juvenile court are required to conduct a disposition hearing that is distinctly separate 

from the adjudication hearing. Ann. Md. Code, Courts and Judicial Proceedings, § 3–819.

INFANTS > DEPENDENCY, PERMANENCY, AND RIGHTS TERMINATION

DEPRIVATION, NEGLECT OR ABUSE

A more stringent standard of proof is required to deny custody than is to find a child 

CINA.
INFANTS > DEPENDENCY, PERMANENCY, AND RIGHTS TERMINATION

DEPRIVATION, NEGLECT OR ABUSE

The law permits involuntary separation of a child from his parents only if the parents are 

unable or unwilling to give the child ordinary care and attention, and even then only if the 

court finds that the drastic remedy of removing the child is necessary for his welfare.

INFANTS > RIGHT TO COUNSEL

Right to counsel in CINA proceedings is afforded by statute. Cts. & Jud. Proc. § 3-813(a).

INFANTS > EFFECTIVENESS OF COUNSEL

Implicit in the right to counsel is that counsel be effective.

INFANTS > EFFECTIVENESS OF COUNSEL

Strickland extensively outlines the standard for evaluating the validity of an ineffective 

assistance of counsel claim, which can be broken down into a performance component 

and a prejudice component.

INFANTS > EFFECTIVENESS OF COUNSEL

In regard to performance, there must first be a showing that counsel’s representation fell 

below an objective standard of reasonableness.

INFANTS > EFFECTIVENESS OF COUNSEL

Review of an attorney’s performance is context-dependent consideration of the 

challenged conduct as seen ‘from counsel’s perspective at the time.

INFANTS > EFFECTIVENESS OF COUNSEL

After a showing that performance was deficient under the Strickland test for claim of 

ineffective assistance of counsel in a CINA proceeding, one claiming error must then 

demonstrate that there is a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.

INFANTS > EFFECTIVENESS OF COUNSEL
The prejudice prong of the Strickland test requires a showing of prejudice, considering 

that attorney errors come in an infinite variety and are as likely to be utterly harmless in a 

particular case as they are to be prejudicial.

INFANTS > EFFECTIVENESS OF COUNSEL

It is not enough for the defendant to show that the errors had some conceivable effect on 

the outcome of the proceeding.

INFANTS > EFFECTIVENESS OF COUNSEL

In Maryland, to establish prejudice, there must be a showing that but for counsel’s errors, 

there is a substantial possibility the result of the proceeding would have been different.

INFANTS > EFFECTIVENESS OF COUNSEL

Post-conviction proceedings are preferred with respect to ineffective assistance of 

counsel claims because the trial record rarely reveals why counsel acted or omitted to act, 

and such proceedings allow for fact-finding and the introduction of testimony and 

evidence directly related to allegations of the counsel's ineffectiveness.

INFANTS > EFFECTIVENESS OF COUNSEL

Where the critical facts are not in dispute and the record is sufficiently developed to 

permit a fair evaluation of a claim of ineffective assistance of counsel in termination of 

parental rights proceeding, there is no need for a collateral fact-finding proceeding, and 

review on direct appeal may be appropriate and desirable.

INFANTS > EFFECTIVENESS OF COUNSEL

The trial record clearly must illuminate why counsel's actions were ineffective because, 

otherwise, the Maryland appellate courts would be entangled in the perilous process of 

second-guessing without the benefit of potentially essential information.
Circuit Court for Cecil County

Case No. C-07-JV-18-000163

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 459

September Term, 2019

On Motion for Reconsideration

______________________________________

In Re: J.R.

______________________________________

Berger,

Nazarian,

Reed,

JJ.

______________________________________

Opinion by Reed, J.

______________________________________

Filed: July 24, 2020
Following the adjudicatory and dispositional hearings, the Circuit Court for Cecil 

County, sitting as a juvenile court, found J.R.1 to be a Child in Need of Assistance 

(“CINA”). Both the biological mother, Ms. B. (“Appellant Mother”), and biological father 

Mr. R. (“Appellant Father”), appealed, and they present four questions for our review, 

which we have expanded and rephrased for clarity:2

I. Did Cecil County Department of Social Services err when it 

failed to follow the statutory scheme for handling a CINA case 

by implementing “safety plans”, which Appellant Mother alleges

are not authorized by the statute? 

II. Did the juvenile court err as a matter of law when it continued the 

shelter care orders?

III. Did the juvenile court err when it found that J.R. was a CINA?

IV. Did the juvenile court err when it did not conduct a separate 

dispositional hearing?

V. Does Appellant Mother have a valid claim for ineffective 

assistance of counsel? 

 1 To respect and protect the privacy of the child involved in this matter, they will be 

referred to by their initials.

2 Appellant Mother presents the following questions: 

1. Did the juvenile court follow the statutory scheme when handling this CINA case?

2. Did CCDSS follow the statutory and regulatory scheme when handling this CINA 

case?

3. Was Mother provided effective assistance of Counsel? 

Appellant Father presents the following question: 

1. Did the court err in finding J.R. to be a CINA when he was not at substantial risk 

of harm and his parents are willing and able to give him proper care and attention? 
2

For the following reasons, we affirm in part and vacate in part. 

FACTUAL AND PROCEDURAL BACKGROUND

History of Family and the Department’s Concerns

J.R. was born on September 12, 2018 to Appellants (Appellant Mother and 

Appellant Father). J.R. is the fifth child of Appellant Mother. On May 8, 2015, the Circuit 

Court for Cecil County terminated the parental rights of the Appellant Mother for three of 

her children. Foster parents took guardianship over a fourth child without a termination of 

parental rights. Appellant Father has “a significant criminal history,” including a 2006 

second-degree murder charge which was pled down to first-degree assault; Appellant 

Father served 15-years imprisonment for this charge. 

On two consecutive days in mid-October of 2018, Appellants brought one-monthold J.R. into the emergency room. Appellant Father dropped Appellant Mother and J.R. off

at the hospital but did not stay. Appellant Mother reported that J.R. had trouble breathing 

two nights in a row. However, Appellant Mother was “freaking out,” having panic attacks 

and was more concerned with Appellant Father coming back to the hospital than what was 

happening with J.R. On October 15, 2018, the Cecil County Department of Social Services 

(“CCDSS” or “the Department”), the Appellee, received a referral concerning medical 

neglect, which included J.R.’s “inadequate weight gain” and Appellant Mother’s behavior. 

CCDSS assigned a child protective services (“CPS”) investigator with the Department, Ms.

Christine Clouser (“Ms. Clouser”), to conduct a joint investigation with the local police 

department. 
3

First Attempts of Contact with Appellants

On October 16, 2018, Ms. Clouser made her first attempt to contact Appellants at 

their primary residence. However, because Appellant Mother had a “lookout” near the 

home, no one answered the door when Ms. Clouser knocked. The next day, on October 17, 

2018, a male resident at the home permitted Ms. Clouser and a police detective to enter the 

home, but they (Ms. Clouser and the detective) could not access the bedroom where

Appellants were staying. While checking the remainder of the home, Ms. Clouser and the 

detective found the home “to be in poor and unsafe conditions for an infant.” Specifically, 

Ms. Clouser observed a room that was so infested with bedbugs that the male renter could 

not even sleep in the room. This room infested with bed bugs was within approximately 10 

feet of the locked bedroom where J.R. stayed. Additionally, Ms. Clouser noticed that there 

were no “bottles, formula, baby items, clothing[,] diapers or any items necessary for the 

care of infant [sic] anywhere in the home.” 

A female resident informed Ms. Clouser that “[Appellant Father] was aware that the 

detective and CPS had come to the house the previous day and he ordered everyone in the 

home not to answer the door under any circumstances and keep the door locked at all 

times.” She reported that Appellants would not stay in the house during business hours so 

that CPS could not find them. The female resident also provided information that Appellant 

Father [is] “very violent” and had threatened “to hurt [Appellant Mother] enough to kill 

the baby when she was pregnant.” Further, she indicated that Appellants were using drugs, 
4

and particularly, Appellant Father sells “heroin and crack.” The female resident advised 

that she had personally witnessed Appellants “nodding out” while taking care of J.R. 

In another attempt to visit Appellants, Ms. Clouser showed up to one of J.R.’s 

scheduled pediatric appointments on October 19, 2018. However, Appellants did not show 

up for the appointment. Ms. Clouser and the detective then showed up at Appellants’ home. 

Ms. Clouser and the detective reported that they heard what they believed to be Appellant 

Father yelling, but when they knocked on the door, it got quiet and two male residents 

answered the door, stating that the Appellants were not home. 

First Safety Plan

Two days later, on October 22, 2018, Appellant Father called the detective and 

invited her and Ms. Clouser to the home. When they arrived at the home, Ms. Clouser and 

the detective noted the strong smell of fresh paint in the room Appellants were staying in, 

but the room was clean, full of baby supplies, including diapers, wipes, clothing and 

formula. Appellant Mother first denied that she was aware of concerns regarding J.R.’s

weight, but then detailed the medicine J.R. was taking, his current feeding schedule, his 

digestive problems and his medical appointments. The detective was permitted to walk 

around the home and noted the bedbug-infested mattress had been covered with a blanket, 

but the home had otherwise been cleaned up. Appellant Father then demanded that the CPS 

investigation be closed. Ms. Clouser informed Appellants that there were concerns of 

substance abuse, and they both denied the allegations, with Appellant Father noting that he 

was on parole and was having regular urinalysis screens. Nevertheless, Ms. Clouser 

requested that Appellants submit drug tests by the end of the day, and they agreed. 
5

Additionally, Ms. Clouser stated that she wanted Appellants to enter into a safety 

plan, designed to address concerns of “substance abuse, domestic violence, the 

inappropriate conditions of the home and J.R.[’s] medical needs.” Appellants agreed to:

Allow the department to see [J.R.] in person in order for the department to 

be able to ensure his safety and wellbeing . . . stay in contact with the 

department during the investigation . . . not use substances while caring for 

[J.R.] [and] [J.R.] would remain in a home free of substance use and will be 

in an appropriate placement . . . follow up with [J.R.’s] medical needs and 

appointments [and] [J.R.] would not be in any of the rooms that were 

inappropriate at Appellants’ primary residence

Appellants signed this safety plan. They also submitted to drug screens later that day. 

Violation of the First Safety Plan and Implementation of the Second Safety Plan

On November 8, 2018, Ms. Clouser received the results of Appellants’ drug tests. 

While Appellant Mother’s oral and urine screens were negative, Appellant Father’s oral 

screen was positive for amphetamines and methamphetamines. Ms. Clouser and the 

detective returned to Appellants’ home, but a male resident refused to open the door, stating 

that the Appellant Mother was at work, and Appellant Father and J.R. were not home. Ms. 

Clouser and the detective then went to Appellant Mother’s job and was told that she was 

not there. They returned to Appellants’ home to wait for them there. 

Approximately one hour later, Appellant Father emerged from the home. Appellant 

Father was “agitated and yelling . . . accus[ing] [Ms. Clouser] of lying during [their] first 

contact with him.” A few moments later, Appellant Mother exited the home with J.R., also 

argumentative, claiming “she did not know there were allegations of domestic violence 

until she observed the safety plan.” Due to Appellant Father’s “aggressive tone,” the 

detective requested backup assistance from the police department. Appellant Father 
6

eventually admitted that they were at home when Ms. Clouser and the detective first 

arrived. 

Ms. Clouser then informed Appellants that she had received the results of the drug 

screen, and Appellant Father’s oral screen came back positive for amphetamines and 

methamphetamines. Ms. Clouser told Appellant Father that this positive drug screen 

violated the safety plan dated October 22, 2018. She also advised that due to the 

Appellants’ lack of cooperation earlier in the day, a new safety plan would need to be put 

into place. Appellant Father became agitated again and stated that he believed the positive 

drug screen was due to his use of Sudafed. Appellant Mother signed the new safety plan, 

but Appellant Father did not. Ms. Clouser asked Appellant Father to submit to another drug 

test the following day on November 9, 2018 at 10:00 am, and he stated he would go at 

11:00 a.m. Nonetheless, the new safety plan that was put into place stated: 

[J.R.] will not return to [Appellants’ primary residence] until further notice. 

[Appellant Mother] will be the primary caregiver to [J.R.] until further 

investigation. [J.R.] will have no contact with [Appellant Father] until further

investigation. [Appellant Mother] will stay in contact with the department 

and follow up with [J.R.’s] medical needs. [J.R.] will reside at an [alternate 

residence in] Elkton, MD[3] until further notice. [Appellant Father] will take 

a drug screen on November 9, 2018. The department will be able to have face 

to face contact with [J.R.] in order to assess him. [Appellant Mother] will 

contact the department if [J.R.] will be residing anywhere other than [the 

alternate residence]. 

 3 Because Appellant Father could not have contact with J.R. and Appellant Father 

resided at Appellants’ primary residence, Appellant Mother and J.R. could not live there 

pending the investigation. The alternate residence is the address of a friend of Appellant 

Mother’s where she and J.R. would be staying.
7

Appellant Father did not take the second drug test on November 9, 2018. On 

December 5, 2018, Ms. Clouser and the detective engaged Appellant Father at his home.

Appellant Father accused the department of “kidnaping his son” and “unlawfully [taking]

away his parental rights.” Ms. Clouser explained to Appellant Father that the safety plan 

was used to further assess safety concerns, and that if he was willing to cooperate, and take 

another drug test, they could change the safety plan at any time. Appellant Father’s speech 

was “slurred,” he refused to take a drug screen at that time and stated that he was “not 

willing to work with the department anymore and wanted a court case.” The following day, 

Ms. Clouser and the detective were able to get in touch with Appellant Mother at the 

alternate residence. Appellant Mother reported that J.R. was no longer considered to be 

“failing to thrive” and talked about updates regarding his recent appointments and his 

weight gain. Ms. Clouser requested that Appellant Mother take another random drug test

on December 7, 2018, and she agreed. 

Allegations of Domestic Violence and Violation of the Second Safety Plan

On December 19, 2018, Ms. Clouser received information that Appellant Mother 

had a black eye. Ms. Clouser and the detective visited Appellant Mother at her job to 

investigate the allegation. When they met with Appellant Mother, they noticed that her 

“left eye was bruised, black and purple in color . . . .” When asked about what happened to 

her eye, Appellant Mother indicated that she and Appellant Father were fixing the bed at 

their main residence and “a piece of wood bounced up and hit her in the eye.” When further 

questioned about the details, Appellant Mother became disturbed, stating, “why do you 

continue to ask me stupid questions.” Ms. Clouser inquired about J.R. and Appellant 
8

Mother stated that he was with her step-brother on the Maryland/Pennsylvania line. Ms. 

Clouser requested to see J.R. that day, refusing to set up a meeting for the next day and 

asked for the step-brother’s contact information. Ms. Clouser was able to get in contact 

with the step-brother’s wife, B.W., who resided in Pennsylvania. 

When B.W. spoke with Ms. Clouser on the phone, her voice was “shaky.” She 

confessed that Appellant Mother had “asked her to lie but she couldn’t lie.” B.W. stated 

that J.R. had been with her for the past two weeks and she had concerns that he was going 

through “withdrawal.” She said that during her first two days with J.R., he would “shake.” 

B.W. admitted that on December 15, 2018, she picked the Appellants up and brought them 

to her home to visit J.R. She noted that they argued on the way to her home, and at 2:00 

a.m. that night, they were “yelling and screaming” at each other in her basement. B.W.

mentioned that due to a video camera in her basement, she could see them shoving each 

other while J.R. was nearby. B.W. reported that as Appellants were escorted out of her 

house and into the garage, Appellant Father mentioned that Appellant Mother was “on 

dope” at the time and had taken “6,” to which Appellant Mother replied, “she had only 

taken ‘1.’” In the garage, Appellants continued to yell and scream, and Appellant Father 

alleged that Appellant Mother threw a hammer at him. B.W. then put them in her car and 

drove them back to Cecil County. During the ride, B.W. indicated that they were “shoving 

each other to the point her car was shaking.” B.W. pointed out that she looked into the 

backseat and saw Appellant Father’s “hand leave [Appellant Mother’s] face . . . and 

[Appellant Mother’s] eye instantly swelled.” At some point, B.W. had to pull over and 
9

asked one of them to move to the front seat, and they continued to yell and scream at each 

other. 

At this time, Ms. Clouser explained the Interstate Compact on the Placement of 

Children (“ICPC”). Ms. Clouser asked if B.W. would meet her and the detective in 

Maryland with J.R. so that she [Ms. Clouser] could assess J.R. B.W. agreed and J.R. was 

brought back to the department. The detective reached out to Appellants for them to come 

to the police department to meet with herself and Ms. Clouser. Initially, they declined, but 

the detective continued to reach out to them, and they eventually agreed to meet. Appellants 

were advised that due to new concerns of substance abuse and domestic violence, in 

addition to violations of the second safety plan, J.R. was being removed and placed into 

foster care. 

The First Shelter Care Hearing: December 21, 2018 

On December 20, 2018, CCDSS filed a CINA Juvenile Petition, in addition to a 

Petition for Continued Shelter Care. The next day, on December 21, 2018, the juvenile 

court held a shelter care hearing. According to an agreement reached by all parties, J.R. 

was placed “in the sole custody of [Appellant Mother]” as stated in the Order Controlling 

Conduct. Under the order controlling conduct, Appellant Mother and J.R. would reside at 

an alternate residence; Appellant Father would not be permitted at the alternate residence; 

Appellant Father would be permitted to have visitation with J.R. at Open Doors; CCDSS 

would have access to J.R. at all times; and daycare for J.R. would be provided by Appellant 

Mother’s aunt, V.W. The court granted the order controlling conduct pending the 

adjudicatory hearing scheduled for January 15, 2019. 
10

Immediately after the shelter hearing, Ms. Clouser assessed the alternate residence

and found it to be suitable for J.R. to reside there. Ms. Clouser attempted to get a hold of 

Appellant Mother to return custody of J.R. to her. However, Appellant Mother could not 

be reached. Ms. Clouser called multiple times and left voicemails, but Appellant Mother 

did not call or make arrangements to regain physical custody of J.R. until the day after 

Christmas. Appellant Mother stated that she didn’t know where her phone was and that it 

had stopped working. J.R. was returned to Appellant Mother on December 26, 2018. 

On December 27, 2018, Pennsylvania’s Child Welfare Authorities contacted 

CCDSS, regarding J.R. “residing at a place of known drug activity, namely [Appellant 

Mother’s] step-brother’s home.” On January 2, 2019, investigators sought to check on J.R. 

and were advised by V.W. that J.R. had been dropped off at West End Garden Apartments 

at the request of Appellant Mother. Ms. Clouser met Appellant Mother and J.R. in an 

apartment unit, and Appellant Mother informed Ms. Clouser that she would be returning 

to the alternate residence that evening. Because Ms. Clouser saw that J.R. was clean and 

appropriately dressed, she determined that J.R. could remain in Appellant Mother’s care at 

that time, even though she noted some “blue baggies” at the doorstep, which are commonly

used to carry heroin.

Violation of the Order Controlling Conduct dated December 21, 2018

Within a week, Ms. Clouser again followed up with Appellant Mother on January 

9, 2019 at the alternate residence and Appellant Mother advised investigators that J.R. was 

in the care of a Ms. R. Appellant Mother did not know Ms. R.’s last name, phone number 

or address. The next day, once Ms. Clouser contacted Ms. R., who lived at 182 
11

Hollingsworth Manor, she was informed that J.R. had been dropped off with Ms. R. at noon 

on Friday, January 4, 2019 and was there until Sunday, January 6, 2019. As stated by Ms. 

R., “[Appellant Mother] brought some provisions, and medicine, but there were no sleeping 

arrangements. [Appellant Mother] advised that [J.R.] could just sleep in his car seat.” Ms. 

Clouser then left Hollingsworth Manor, but soon returned to that location after learning 

that Appellant Father had been arrested for “trespassing at Wawa.” When Ms. Clouser 

returned, J.R. was present, having been dropped off by Appellant Mother who “had to go 

take care of a situation.” At this time, Ms. Clouser went to the police station, where she 

questioned Appellant Mother concerning her whereabouts on New Years’ Eve. Appellant 

Mother confessed that she spent the night at a Knight’s Inn with J.R. and Appellant Father. 

As a result of the violation of the order controlling conduct dated December 21, 2018, J.R. 

was removed from Appellant Mother’s custody and placed with a non-relative foster care 

provider. 

The Paternity Matter4

At the adjudicatory hearing on January 15, 2019, which was part of the initial Shelter 

Care Order, it was discovered by the department through receipt of a marriage license that 

Appellant Mother was married to a man, R.C. (“Mr. C.”) at the time of J.R.’s birth. It was

revealed that Appellant Mother had been married to Mr. C., who was an inmate in 

Okanogan County Jail, since March of 2003. J.R. was born in September of 2018. Hence, 

since “[a] child born or conceived during a marriage is presumed to be the legitimate child 

 4 The child’s paternity is not at issue on this appeal but is important to mention because it 

was the cause of the delay in the adjudicatory proceedings. 
12

of both spouses,” Mr. C. was presumed to be J.R.’s father. Md. Code Ann., Est. & Tr. § 1-

206(a). Consequently, CCDSS filed an amended petition, listing Mr. C. as J.R.’s father and 

moved to strike Appellant Father as a party to the CINA proceeding. Subsequently, the 

juvenile court “found good cause to continue the CINA adjudicatory hearing to permit the 

parties to respond to the Department’s motion.” Without objection, the court also continued 

foster care of J.R. 

At the February 5, 2019 hearing, all of the parties submitted memoranda of law 

regarding the matter of J.R.’s paternity. After arguments, the juvenile court proposed that 

Appellants complete paternity testing, as they “had already volunteered to do,” and 

requested that the Department acquire more information on Mr. C. Appellant Father asked 

that J.R. be returned to him pending the investigation into J.R.’s paternity, and the court 

denied this request, continuing the order of shelter care and placing J.R. with foster parents 

under an order controlling conduct. 

The results of the genetic testing determined that “[Appellant Father] could not be 

excluded as J.R.’s father].” However, at the March 5, 2019 adjudicatory hearing, “The 

court stated that it needed to follow the law and go through the proper procedure regarding 

paternity of J.R.” This included Mr. C. being notified of the proceedings and being offered 

the opportunity to obtain counsel. At the end of the hearing, the juvenile court issued an 

amended order controlling conduct, continuing J.R.’s shelter care. 

During the April 23, 2019 adjudicatory hearing, the Department continued to assert 

that Appellant Father should be excluded from the proceedings. The juvenile court found 

that it had jurisdiction to determine paternity in CINA cases, and the marital presumption 
13

had been refuted by genetic testing that concluded there was a 99% probability that 

Appellant Father was the biological father of J.R. Nevertheless, the court found “good 

cause” to continue the adjudicatory hearing, over Appellants’ objection, as the 

Department’s main witness, Ms. Clouser, was at a funeral. 

The May 7, 2019 Adjudication and Disposition Hearings

The juvenile court held an adjudication hearing on the merits of the CINA petition 

on May 7, 2019. During this hearing, the court first addressed the Department’s motion as 

to whether Appellant Father had disestablished the presumed paternity of Mr. C., consistent 

with the Estate and Trust Article. In relying on the April 23, 2019 ruling, the court found

that Mr. C. had in fact been disestablished as father and acknowledged that Appellant 

Father had standing to be a part of the hearing. The court proceeded with the adjudication

and heard testimony from Ms. Clouser as a witness for the Department. Ms. Clouser 

testified to the facts as summarized supra.

5 The safety plans from October and November 

were admitted and the court took “judicial notice” of the December 21, 2018 shelter care 

proceeding. Neither Appellants nor the representative for J.R. presented evidence or gave 

testimony. After testimony was given, the juvenile court sustained many of the allegations

in the amended CINA petition, and at the close of these proceedings, the court found that: 

Parents have repeatedly violated the terms of Safety Plans, and an Order 

Controlling Conduct that was imposed by the court, with the parents 

agreement at the Shelter Care hearing; Child has been left with various 

caregivers at various locations, without notice to the department, which was 

conducting an active investigation into the welfare of the child, and Parents 

 5 Ms. Clouser was not able to testify about what she was told by one of the male renters, 

and another female renter, as there was an objection for hearsay, which was sustained. 

However, this information was in the report that the presiding judge had. 
14

have demonstrated an unwillingness to cooperate with the Department in 

regard to care of the child. 

The juvenile court found J.R. to be a CINA due to neglect and placed him with CCDSS. 

Appellants were ordered to participate in several treatment counseling services (drug & 

alcohol, psychological evaluation, parenting evaluation and domestic violence evaluation).

It is from this order that Appellants separately filed this appeal. 

DISCUSSION

A. Parties’ Contentions 

Appellant Mother argues that the legislative scheme concerning this CINA case was 

not followed by CCDSS or the juvenile court. Specifically, she claims the safety plans that 

were implemented on October 2, 2018 and November 8, 2018 by CCDSS were not 

authorized by the statute and were in fact “illegal.” Appellant Mother contends that the 

December 21, 2018 orders were contradictory and did not follow the statutory scheme, 

according to Cts. & Jud. Proc. § 3-815. Appellant Mother submits that the subsequent 

orders of controlling conduct issued on January 15, 2019, February 5, 2019, March 5, 2019 

and April 23, 2019 were erroneous and did not follow the statutory provisions in continuing 

J.R.’s “shelter care” beyond the 60-day timeframe set in Cts. & Jud. Proc. § 3-815(c)(4). 

Appellant Mother argues that the court combined the disposition hearing with the 

adjudication hearing, in violation of Cts. & Jud. Proc § 3-819(a)(1). Furthermore, Appellant 

Mother alleges that she received ineffective assistance of counsel, because her counsel at 

trial did not object to the illegality of the safety plans or to any of the juvenile court’s 

findings regarding shelter care. Appellant Mother adopted Appellant Father’s arguments 
15

regarding J.R. being found CINA. 

Appellant Father asserts that the juvenile court erred by finding that J.R. was a CINA 

because J.R. was not in substantial risk of harm and Appellants were willing and able to 

give J.R. the proper care and attention he needed. Appellant Father adopts Appellant 

Mother’s arguments regarding the shelter care orders and the disposition hearing. 

Appellees (Representatives for the Child and the Department) contend that the 

juvenile court properly concluded that J.R. was a CINA due to domestic violence in the 

home, Appellants’ use of illegal substances, and their failures to abide by the safety plans 

utilized to provide for J.R.’s safety. Appellee (the Department) also states that Appellant 

Mother’s appeal of the shelter care order and orders controlling conduct are moot, or in the 

alternative, were not preserved for appellate review. Additionally, the Department argues 

that Appellant Mother did not meet the burden of the two-prong test outlined in Strickland 

v. Washington6 as to whether her trial counsel’s performance was deficient and prejudicial,

resulting in ineffective assistance of counsel. The Department reasons that Appellant 

Mother’s trial counsel’s actions regarding the safety plans, the shelter and conduct orders

and the dispositional hearing “was a matter of trial strategy,” which is afforded “a heavy 

measure of deference.” Strickland, 466 U.S at 691. 

 6 466 U.S. 668 (1984). 
16

B. Standard of Review

There are “three distinct but interrelated standards of review” applied to a juvenile 

court’s findings in CINA proceedings. In re Adoption/Guardianship of H.W., 460 Md. 201, 

214 (2018). The juvenile court’s factual findings are reviewed for clear error. In re 

Adoption/Guardianship of Amber R., 417 Md. 701, 708 (2011). Whether the juvenile court 

erred as a matter of law is determined “without deference;” if an error is found, we then 

assess whether the error was harmless or if further proceedings are required to correct the 

mistake in applying the relevantstatute or regulation. In re Yve S., 373 Md. 551, 586 (2003).

Finally, we give deference to the juvenile court’s ultimate decision in finding a child in 

need of assistance, and “a decision will be reversed for abuse of discretion only if ‘well 

removed from any center mark imagined by the reviewing court and beyond the fringe of 

what that court deems minimally acceptable.’” In re J.J., 231 Md. App. 304, 345 (2016), 

aff’d, 456 Md. 428 (2017), cert. denied, 139 S.Ct. 310 (2018) (quoting In re Yve S., 373 

Md. at 583-584 (internal citations omitted). 

Analysis

Legality of Safety Plans 

There were two safety plans put in place by CCDSS – on October 22, 2018 and 

November 8, 2018 – in response to the referral received by the Department regarding the 

potential medical neglect of J.R. Appellants’ violations of terms within the two safety plans 

triggered the Department’s filing of the CINA Juvenile Petition. Appellant Mother argues 

that these safety plans are illegal, as they are not defined in any part of the statute governing 

CINA cases. We will agree with Appellant Mother that the legality of safety plans is an 
17

issue of first impression for this Court but will otherwise wholeheartedly disagree with 

their contention that safety plans are illegal. We now discuss the relevant legislative history 

that has sanctioned the general use of safety plans, as well as the applicable changes in 

child welfare policies that led to the already nationally accepted practice being statutorily 

authorized in Maryland.

a. Relevant Federal Legislative History for Child Health and Safety 

Well before the inception of safety plans being added to the Family Law Article as 

part of the short-term, “alternative response” to ensuring the health and safety of children,

the federal government approached the issue of children’s general welfare by addressing

the longstanding number of children in the foster care system. In re James G., 178 Md. 

App. 543, 580 (2008) (citing Kathleen S. Bean, Reasonable Efforts: What State Courts 

Think, 36 U. Tol. L. Rev. 321 (2004–2005)) (“Bean”). In 1997, Congress enacted the 

Adoption and Safe Families Act of 1997 (“ASFA”), Pub. L. No. 105-89, 111 Stat. 2115 

(codified in 42 U.S.C. Chapter 7, subchapters IV-B and IV-E). The purpose of ASFA was 

to “streamline the foster care placement process and provide permanent homes for children 

in foster care, by expediting permanency planning hearings and TPR proceedings.” In re 

James G., 178 Md. App. at 580 (citing In re Karl H., 394 Md. 402, 421 (2006)). ASFA 

served as a revision of the “reasonable efforts” provision of the Adoption Assistance and 

Child Welfare Act of 1980 (“AACWA”), which required states to make “reasonable 

efforts” in reunification services for foster care placement. In re James G., 178 Md. App.

at 575 (internal citations omitted). However, “agencies were engaged in excessive efforts 

to ‘repair hopelessly dysfunctional families. Instead of the permanency intended by the 
18

federal reasonable efforts clause, impermanency resulted.’” Id. at 575 (citing Bean, 36 U. 

Tol. L. Rev. at 326). The concern became that “children were being reunited with parents 

when it was not safe to do so in the name of ‘reasonable efforts.’” Id. 

Congress’s intent with ASFA was to “clarify ‘reasonable efforts’ and respond to 

concerns that AACWA had encouraged states to go too far in preserving parent-child 

relationships that were more harmful than beneficial.” In re James G., 178 Md. App. at 576

(quoting Bean, 36 U. Tol. L. Rev. at 326). Pursuant to Title IV-B and IV-E of AACWA, 

as revised through ASFA, 

In order to receive federal funding, a state [was] required to implement a 

federally-approved state plan for the delivery of child welfare services, 

which, in relevant part, must provide that “reasonable efforts shall be made 

... to make it possible for a child to safely return to the child's home,” if such

efforts are consistent with the permanency plan for the child. 42 U.S.C. § 

671(a)(15)(B). However, ASFA also mandates that, “in determining 

reasonable efforts to be made with respect to a child ... and in making such 

reasonable efforts, the child's health and safety shall be the paramount 

concern.”

In re James G., 178 Md. App. at 576 (citing 42 U.S.C. § 671 (a)(15)(A))7 (emphasis added). 

Complying with federal funding requirements, Maryland adopted ASFA through HB1093

in 1998, asserting that this bill “declares a legislative finding that the purpose of state 

adoption and guardianship law is to provide children with stable homes that protect their 

safety and health.” Dep’t Leg. Servs., Fiscal and Policy Note (rev.), House Bill 1093, at 1 

 7 42 U.S.C. § 671 is currently being challenged as unconstitutional and not severable from 

26 U.S.C. § 5000A(a) by States and private individuals against the United States regarding 

the constitutionality of the Affordable Care Act’s (ACA) individual mandate, as amended 

by the Tax Cuts and Jobs Act (TCJA). See Texas v. United States, No. 19-10011 (5th Cir. 

argued July 9, 2019). 
19

(1998 Session); see also 1998 Md. Laws, ch. 539. Additionally, The Child Abuse 

Prevention and Treatment Act (CAPTA), which was first enacted in 1974 and is considered 

“key legislation addressing child abuse and neglect,” provides funding to states that 

“advance, improve and implement safety assessment tools and protocols.” See U.S. DEP’T 

HEALTH & HUM. SERVS., About CAPTA: A Legislative History (2019); U.S. DEP’T. OF 

HUM. RESOURCES, SSA-CW # 15-21, Maryland’s Safety Assessment for Every Child 

(SAFE-C) and Safety Plan, at 2 (2015) (“SSA-CW # 15-21”).

Through the framework of federal legislation, Maryland has established, amended 

and reinforced its (or the State’s) regulations and statutes to improve outcomes for children 

who interact with the child welfare system. The Department of Human Services, along with 

other partnering agencies, are tasked with implementing social services that comply with 

Titles IV-B and IV-E, CAPTA, and other federal provisions. These social services are 

provided through a variety of approaches, including safety assessments, which allow “for 

uniform documentation of factors that may indicate an immediate danger to a child and 

development of a plan by the local department and the caregiver to address the danger.” 

SSA-CW # 15-21, at 2. Safety plans, the implementation of which is nationally recognized,

have been one of the numerous mechanisms the Department uses to respond to referrals of

abuse or neglect, and has been for several decades in Maryland. See generally In re Justin 

D., 357 Md. 431, 434 (2000) (“Following an investigation, DSS devised a safety plan 

calling for [child’s] temporary removal from the home, individual family counseling, and 

further monitoring.”); In re Adoption/Guardianship No. T00032005, 141 Md. App. 570, 

604 (2001) (“The court observed that Ms. H. entered several service agreements and safety 
20

plans between August 4, 1995, and November 22, 1999.”); In re Damien F., 182 Md. App. 

546, 558 (2008) (“Ms. B. signed a safety plan proposed by the Department . . . .”).

However, it was through the state legislature, persuaded by national studies conducted by 

federal agencies to identify the most appropriate way to handle the evolving nature of child 

welfare, that Maryland’s statutes now endorse the use of safety plans to tackle concerns of 

child abuse or neglect. 

b. Relevant Statutory Development of Maryland Family Law Article § 5-706

Title 5 of the Maryland Family Law Article articulates the Department’s obligation 

and authorizes its power to act for the general welfare of children. The principal objective 

of Subtitle 7 of this Article, as promulgated by COMAR 07.02., is to “protect children who 

have been the subject of abuse or neglect” by requiring, among other things, that “each 

local department [] give the appropriate service in the best interest of [an] abused or 

neglected child”. Md. Code Ann., Fam. Law (“FL”) § 5-702(5) (emphasis added). FL § 5-

706 details the process in which CPS uses to investigate reports of suspected abuse or 

neglect. See FL § 5-706 et seq. Before 2012, CPS employed what was referred to as a

“traditional response” to these types of allegations, and the investigation that was outlined 

in FL § 5-706 served as an “adversarial intervention in which determining who is 

responsible for the alleged abuse or neglect [was] the primary mission.” Dep’t Leg. Servs., 

Fiscal and Policy Note (rev.), House Bill 834, at 5 (2012 Session) (“Fiscal and Policy Note

(rev.) to HB 834”). 

However, CPS agencies were “[f]aced with a large volume of reports, increasingly 

complex cases, and strained resources,” and so they “developed practices and policies to 
21

differentiate how particular cases are handled.” Lisa Merkel-Holguin, et al., AM. HUMANE 

ASS’N. & CHILD WELFARE LEAGUE OF AM., National Study on Differential Response in 

Child Welfare 9 (2006). The national study report completed in 2006 detailed how 

“alternative response programs” – “an intervention . . . that provides assessment and refers 

families to supportive services rather than initiating an investigation” – were used in 15 

other states around the country. Fiscal and Policy Note (rev.) to HB 834, at 4-5. The U.S. 

Department of Health and Human Services continued this research with a report in 2008, 

and the consensus was that both reports documented “positive results that lead to increased 

safety for children and a higher number of children that could safely remain with their 

families.” HB 834 Fiscal and Policy Note, at 5; See U.S. DEP’T HEALTH AND HUM. SERV’S, 

Differential Response to Reports of Child Abuse and Neglect (2008). 

Meanwhile, during the 2006 session, the Maryland state legislature sought to create 

a “differential response” to allegations of child abuse or neglect. Fiscal and Policy Note

(rev.) to HB 834, at 5. The legislature directed the Department of Human Resources 

(“DHR”) to establish a plan to implement and evaluate the state’s current response system

and recommend statutory changes. Id. Within the year, DHR was instructed to “develop a 

pilot program for differential response, limited to three jurisdictions.” Id. By 2008, through 

HB 262, DHR was proposing “implementation of an alternative response program on a 

statewide basis.” Id. However, HB 262 did not receive a favorable report from the House 

Judiciary Committee due to fiscal and administrative concerns regarding DHR’s capacity 

to “overhaul” child protective services. Id. Nevertheless, in August of 2009, DHR 

assembled a working group consisting of representatives from “academia, the courts, law 
22

enforcement, health and community service providers, child advocates and social services 

professionals” to develop a process to execute a differential response pilot program in 

furtherance of the successful approach outlined in the national studies conducted in 2006 

and 2008. Id.

A similar bill to the 2008 proposal, HB 137, also received an unfavorable report 

from the House Judiciary Committee in 2011, but in 2012, HB 834 was passed, and § 5-

706 was amended to include extensive language regarding the use of an “alternative 

response” and the guidelines as to its practice in referrals of child abuse or neglect. Fiscal 

and Policy Note (rev) to HB 834, at 6; See FL § 5-706(a); (l)—(t). With the amendments,

FL § 5-706 currently establishes the implementation of an alternative response program, 

which includes the use of safety plans, and states, in relevant part: 

(a)(1) In this section, “alternative response” means a component of the child 

protective services program that provides for a comprehensive assessment 

of:

(i) risk of harm to the child;

(ii) risk of subsequent child abuse or neglect;

(iii) family strengths and needs; and

(iv) the provision of or referral for necessary services.

****

(s) When a report is referred for an alternative response, the local department 

shall:

(2) see the child and the child’s parent or primary caretaker within 5 days 

of receiving a report of neglect;

(3) attempt to have an on-site interview with the child’s parent or primary

caretaker;

(4) evaluate the child’s home environment;

(5) decide on the safety of the child, wherever the child is, and of other 

children in the household;

 
23

(11) consistent with the assessment and any safety or services plans:

(i) render any appropriate services in the best interests of the child;

(ii) refer the family or child for additional services; or

(iii) as necessary for the safety of the child or other children in the 

household, establish a plan to monitor the safety plan and the provision 

or completion of appropriate services.

(emphasis added). 

Despite not being specifically defined in the Family Law Article, COMAR or any 

Maryland case law, the plain meaning of the phrase “safety plan” can be inferred from the 

statute, as specified in FL § 5-706(s)(11)(i), in that the Department is permitted to utilize 

safety plans as one method of “any appropriate services in the best interest of the child”

when assessing the welfare of the child. (emphasis added). However, safety plans are only 

approved for low risk, alternate response cases. See FL § 5-706(n), (s)(11). In spite of this 

seemingly narrow boundary, the legislature still gave far-reaching authority to the 

Department in regard to not only when their corresponding agencies may make use of 

alternate responses, but also when they can escalate or deescalate their investigations to or 

from alternatives responses, depending on the circumstances they encounter. According to 

FL § 5-706(q)—(r):

(q) A report assigned for an alternative response may be reassigned at any 

time for an immediate investigation based on any of the following factors 

and circumstances:

(1) a reassessment of the report or relevant facts;

(2) a determination that the case satisfies a criterion in subsection (p) of 

this section; or

(3) a family’s inability or refusal to participate in the alternative response

assessment.

** **
24

(r) A report assigned for an investigation may be reassigned for an

alternative response at any time based on:

(1) a reassessment of the report or relevant facts that demonstrate that the 

case meets the criteria for an alternative response;

(2) a determination that accepted services would address all issues of risk

of abuse or neglect and child safety; and

(emphasis added). 

Even so, the key limiting language in the use of safety plans based on FL § 5-

706(s)(11) is “appropriate”; yet there is a wide scope by virtue of deference the legislature 

gives the Department in determining what is “appropriate”, by preceding “appropriate” 

with “any.” Surely, as outlined in FL § 5-706(b), it is the Department who shall conduct a

“thorough investigation” of reports of abuse and neglect to protect the health and safety of 

a child, and through this exploration, CPS is commissioned with making a number of 

determinations in the best interest of the child. See FL § 5-706(s)(11)(i). 

c. Analysis 

On October 17, 2018, Ms. Clouser went to Appellants’ home and found it “to be in 

poor and unsafe conditions for an infant.” The investigator observed a room that was 

approximately 10 feet from the bedroom where J.R. stayed to be so infested with bedbugs 

that the male who rented the room couldn’t even sleep there. During this visit, Ms. Clouser 

was informed that Appellant Father was “very violent,” had threatened Appellant Mother 

while she was pregnant with J.R. and sold “heroin and crack.” When Ms. Clouser showed 

up to J.R.’s pediatric appointment on October 19, 2018, Appellants did not show up for the 

appointment. It is based on these allegations that Ms. Clouser entered into a safety plan 

with Appellants three days later, on October 22, 2018, to address concerns of substance 
25

abuse, domestic violence (which Appellants denied), the inappropriate conditions of the 

home, and J.R.’s medical needs. Appellants were also required to take a drug test, to which 

they both agreed. When Appellants voluntarily signed the safety plan, they agreed to a 

number of terms, including abstaining from using substances while caring for J.R. 

On November 8, 2018, Ms. Clouser received a positive drug screen for Appellant 

Father. Trying to avoid the Department, Appellants ignored Ms. Clouser when she came 

to their home, but eventually came out, “agitated and yelling.” When Appellant Father was 

notified that he had failed his drug test, he noted that it was because of his use of Sudafed. 

Ms. Clouser advised Appellant Father to take another drug test the following day and

implemented a second safety plan, prohibiting Appellant Father’s contact with J.R. “until 

further notice” due to his positive drug screen. The second safety plan also stated that J.R. 

would reside at an alternate residence, and Appellant Mother would contact the department 

if J.R. would reside anywhere other than that residence. 

Appellant Father agreed to take a second drug screen but did not appear for the test 

on November 9, 2018. When Ms. Clouser made contact with him, his speech was “slurred”

and he stated that he would not work with the Department and wanted to go to court. After 

the Department received information on December 19, 2018 that Appellant Mother had a 

black eye, Ms. Clouser engaged Appellant Mother, who became combative about 

questioning as to how she got a black eye. Through further investigation, Ms. Clouser 

learned that J.R. had been in Pennsylvania for the past two weeks with Appellant Mother’s 

step-brother and his wife, and there had been domestic violence between Appellants while 
26

they were in Pennsylvania. Due to these concerns, along with the violation of the second 

safety plan, J.R. was removed and placed into foster care. 

Appellant Mother argues that the no contact term of the second safety plan was 

without “substantial justification,” relying on In Re Iris M., 118 Md. App. 636 (1998). In

that case, the Department filed a petition alleging that the daughter had been sexually 

abused by her father and was a child in need of assistance. In Re Iris M., 118 Md. App. at 

640. Subsequently, no contact orders were entered, prohibiting contact between the father 

and daughter. Id. at 640. However, after review of the record and a determination that the 

daughter likely made up these allegations only after she believed she was going to get in 

trouble for hanging out with a friend she was prohibited from being with, the no contact 

order issued by the juvenile court was vacated because “the existing evidence did not 

support a no contact order.” Id. at 650. 

Notwithstanding that FL § 5-706(s)(11)(i) allows the Department to “render any

appropriate services in the best interest of the child,” “substantial justification” is not the

correct standard for this circumstance. FL § 5-709(c) authorizes temporary removals and 

states that:

(c) 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.

Albeit not the exact word and absent any other instruction regarding the statutory meaning 

of “serious, immediate danger,” the Department defines “imminent danger” as “a situation 

that presents a serious threat to a child’s physical and/or mental well-being and which

demands immediate intervention to protect the child.” SSA-CW # 15-21, at 2. On the heels 
27

of discovering the residence with a bedbug infestation and allegation of domestic violence, 

the accusation of drug use was substantiated when Appellant Father tested positive for 

amphetamines and methamphetamines after he denied drug use. The assertion of domestic 

violence was then confirmed when Ms. Clouser and investigators saw Appellant Mother 

with a black eye and was corroborated by her step-brother’s wife. Furthermore, Appellants 

agreed to enter into the first safety plan, agreeing to its terms. Appellant Mother again 

agreed to the second safety plan, while Appellant Father consented to refuting the 

allegations of drug use by agreeing to another drug test, which he then failed to attend.

Under these circumstances the evidence was sufficient for the Department to believe that 

three-month-old J.R. was in immediate or “imminent,” serious danger, and temporary 

removal was an appropriate service in the best interest of the child in response to violations

of the valid safety plans and the plans’ genuine terms. 

Appellant Mother also contends that safety plans are only authorized for alternative 

responses and low risks cases. The amendments to FL § 5-706 outline what cannot be 

assigned to an alternative response. FL § 5-706(p) states: 

(p) The following reports of suspected abuse or neglect may not be assigned

for an alternative response:

(1) sexual abuse; and

(2) abuse or neglect:

(i) occurring in an out-of-home placement;

(ii) resulting in death or serious physical or mental injury;

(iii) if, in the previous 3 years, the individual suspected of abuse or 

neglect has been identified as responsible for abuse or neglect as 

documented in the records of the local department; or

(iv) if the individual suspected of abuse or neglect has had one report 

assigned for an alternative response within the past 12 months or two 

reports assigned for an alternative response within the past 24 months.
28

Not falling into any of the excluded situations defined above, the facts here suggest that 

CPS did in fact implement the safety plans not as an “adversarial intervention,” but for the 

sole purpose of ensuring that J.R.’s medical needs were met, consistent with an alternative 

response. Here, in conformity with FL § 5-706(s)(2-5), as well as § 5-706(c), Ms. Clouser 

sought to see J.R. and have an interview with Appellants the day after the Department 

received the referral for medical neglect. The delay in Ms. Clouser’s assessment of the 

referral was due to Appellant Mother having a “lookout” at their home, Appellants 

instructing other housemates not to open the door for CPS, and even staying away from the

home during business hours so that CPS could not find them. Ms. Clouser did an evaluation 

of the home environment, finding a room heavily infested with bedbugs along with 

allegations of domestic violence and substance abuse. In deciding the safety of the child, 

Ms. Clouser entered into the safety plan to address those concerns. During the adjudicatory 

hearing, the juvenile court noted multiple times that the Department was attempting to use 

the “least intrusive remedy” in assessing J.R.’s safety. Even if Appellant Mother wanted to 

refute this Court’s conclusion that an alternative response was used here, the statute is very 

clear that the Department has great latitude in determining whether they will employ an 

investigation or an alternative response in their evaluation of child abuse or neglect, absent 

the exceptions found in FL § 5-706(p) or cases determined to fall under FL § 5-706(n). 

FL § 5-706(n) does not define “low risk,” but Appellant Mother wants us to believe 

that low risks only encompass alternative response cases where the child will not be 

removed from the parent’s care. This is simply an improper inference, as the statute 

authorizes the Department to “render any appropriate services in the best interests of the 
29

child” that is consistent with any safety plan put into place. FL § 5-706(s)(11)(i) (emphasis 

added). Appellant Mother’s narrow reading would inhibit the Department in its 

assessments of what is the best interest of the child and would be in direct contradiction of 

the discretion given to the Department pursuant to FL § 5-706(q) and (r). 

Further, when “ambiguity clouds the precise application of [a] statute, the cardinal 

rule of statutory construction is to ascertain and effectuate legislative intent.” State v. 

Bricker, 321 Md. 86, 92 (1990). As such, “[w]e attempt to divine legislative intent from 

the entire statutory scheme, as opposed to scrutinizing parts of a statute in isolation.”

Forbes v. Harleysville Mutual, 322 Md. 689, 697 (1991) (emphasis added). Here, while 

“low risk” is not defined, we can glean from the federal legislation cited supra, Maryland’s 

adoption of legislature that the health and safety of children be of paramount concern, and 

the extensive flexibility the Maryland General Assembly has given the Department in 

making determinations about concerns of abuse or neglect of a child that the legislature 

intended “low risk” to be within the scope of the Department’s judgment regarding whether 

an alternative response is the appropriate step for the type of abuse or neglect alleged, as 

supported by FL § 5-706(q)–(r). 

It is through the lens of this legislative history and yielding that we hold that not 

only are safety plans legal, but the terms of the safety plans implemented here were in fact 

valid. 
30

The Orders: The Shelter Care Order and the Orders Controlling Conduct 

a. Mootness and Preservation

Appellant Mother maintains that the orders resulting from the shelter care hearing 

dated December 21, 2018 were contradictory and did not follow the statutory scheme. She 

argues that the juvenile court’s findings and the orders controlling conduct implemented at 

the January 15, 2019, February 5, 2019,

8 March 5, 2019, and April 23, 2019 adjudicatory 

hearings were erroneous and did not follow the statutory scheme. Before we can determine

whether Appellant Mother preserved for review the supposed substantive and procedural 

errors during the aforementioned hearings, we shall first address the Department’s 

assertion that these arguments are moot because the CINA adjudication has concluded and 

therefore “supplants the shelter care orders . . . .”9 It is a long-held fact that a question is 

moot if “at the time it is before the court, there is no longer an existing controversy between 

the parties, so that there is no longer any effective remedy which the court can provide.” In 

Re Karl H., 394 Md. at 410 (quoting Att’y Gen. v. Anne Arundel County Sch. Bus 

 8 The Honorable Jane Cairns Murray referred to the Order Controlling Conduct during the 

adjudicatory hearings dated February 5, 2019 and March 5, 2019 as an “Order for 

Protective Services.” While both Appellant Mother and Appellee refer to it as one of the 

orders implemented in the case, the only types of orders employed here were the shelter 

care order dated December 21, 2018, and the Orders Controlling Conduct, dated January 

15, 2019, February 5, 2019, March 5, 2019 and April 23, 2019. 

9 We note the hearings are being referred to interchangeably as “shelter care hearing” and 

“adjudicatory hearing” throughout the record. Appellee refers to the December 21, 2018

hearing as a shelter care hearing. However, Appellee then references the subsequent 

hearings dated January 5, 2019, February 5, 2019, March 5, 2019 and April 23, 2019 as

“shelter care hearings”, which we believe is incorrect. They were “adjudicatory hearings” 

that were postponed, pending the paternity conflict. During those hearings, shelter care 

with the foster parents was continued through orders controlling conduct. 
31

Contractors Ass’n, Inc., 286 Md. 324, 327 (1979)). More importantly, it is well-recognized 

that once a CINA determination has been made, it supersedes any shelter care orders or 

orders controlling conduct that directed the transitional care of the child. 

The Department supports its argument with analysis from this Court’s fairly recent 

precedent concerning the execution of shelter care orders, In re O.P., 240 Md. App. 518, 

cert. granted, 464 Md. 586 (2019). In that case, we outlined that “continuation of shelter 

care frequently accompanies a CINA petition, but it is neither a necessary step in a CINA 

proceeding nor does it constitute part of the CINA determination.” In re. O.P., 240 Md. 

App. at 554-555. We distinguish the purposes of each proceeding, finding that shelter care 

orders control “where and with whom a child will reside prior to the adjudication of the 

merits of the CINA petition,” while CINA determination will find if the child has in fact 

been abused or neglected and if the parents or guardians have the capacity or willingness 

to care for the child. Id. at 555. We then held that under the collateral order doctrine, denied 

petitions for continued shelter orders are appealable as interlocutory orders. Id. at 552.

Appellant Mother, on the other hand, argues that this Court has considered shelter 

care issues after the adjudicatory hearing, citing a two-decade old case, In re Vanessa C.,

104 Md. App. 452 (1995). Appellant Mother notes that the majority of the shelter care and 

adjudicatory hearings at issue here took place before the In re O.P. decision, and hence, it 

would be “inappropriate” to deny consideration on this appeal. Appellant Mother contends 

that this CINA appeal is not moot, as “a controversy” still exists because the juvenile’s 

orders controlling conduct and failure of the shelter care orders meeting the proper standard 
32

negatively affected the adjudicatory/dispositional hearing determinations, relying on In re 

Joseph N., 407 Md. 278 (2009).

While we appreciate the ingenuity of Appellant Mother’s arguments, we find their

reasoning unpersuasive. Foremost, the issue in In re Vanessa C. dealt with whether the 

Appellant was due custody of her child when she did not receive an adjudication hearing 

within 30 days of the child being placed in shelter care. In re Vanessa C., 104 Md. App. at 

457. That case was less about the merits of the shelter care order, and more about the 

statutory interpretation of timelines associated with when an adjudicatory hearing should 

be scheduled in relation to the shelter care order. Id. That case is quite different from the 

circumstances here, where Appellant Mother’s argument concerns a procedural and 

substantive review of the shelter care hearing, along with the orders controlling conduct.

Moreover, In re O.P.’s novelty does not replace nor amend the nature of shelter care 

orders, orders controlling conduct, and CINA proceedings, as prescribed by their respective 

statutes. Cts. & Jud. Proc. § 3-801(bb) outlines that “shelter care” means “a temporary

placement of a child outside of the home at any time before disposition.” (emphasis added). 

Cts. & Jud. Proc. § 3-821(a) notes that: 

(a) 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 who is 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.
33

(emphasis added). These two parts of Subtitle 8 concern the short, provisional 

arrangements for a child during the pendency of a CINA adjudication and disposition. In 

contrast, Cts. & Jud. Proc. § 3-801(f) states that a “‘Child in need of assistance’ means a 

child who requires court intervention because (1) The child has been abused, has been 

neglected . . . and (2) The child’s parents, guardian, or custodian are unable or unwilling to 

give proper care and attention to the child and the child’s needs.” As discussed below, 

CINA determinations and subsequent orders associated with CINA decisions deal with the 

permanent aspects of a child’s custody and care. 

In In re Joseph N., the juvenile court issued a permanency plan review hearing order 

that moved the immediate custody of a child from the Department to the child’s father. In 

re Joseph N., 407 Md. at 292. Not only was this different from the Department’s 

reunification plan, which was for the mother to ultimately gain sole custody, but due to 

language in the order, it significantly foreclosed the mother’s potential of reunification with 

the child. Id. at 293. The mother appealed the order as an interlocutory order, which was 

dismissed by this Court as moot. Id. at 286. On appeal, the Court of Appeals held that 

“[t]his CINA appeal is not moot because a controversy is alive when the subsequent review 

hearing order may have been influenced by an error made in the earlier review hearing 

order.” Id. at 304. Given that the juvenile court declared that the permanency plan of 

reunification was purportedly “achieved” when it gave custody to the child’s father, the 

order positioned the mother at a “relative disadvantage” to receiving custody of the child,

and the subsequent orders affected the direction of the case, therefore “preclud[ing] the 

appeal from being moot.” Id. at 305.
34

The ruling of In re Joseph N. is a narrow one, in that it only applies to the review 

of a child’s permanency hearings, those of which take place after a child had been 

determined CINA. The facts in In re Joseph N. are not comparable to those in this case, 

because the orders Appellant Mother urges us to review were before J.R. was determined 

CINA. Appellant Mother has not been disadvantaged in any way that will preclude her 

from eventually receiving custody of J.R., considering that orders issued in this case dealt 

with the temporary placement of J.R. The permanency plan review hearing orders in In re 

Joseph N. addressed plans of reunification that had the possibility of excluding the 

opportunity of one of the parents as it related to the permanent custody of the child 

involved. See In re Joseph N., 407 Md. at 290, 292-293.

This Court, nonetheless, has the authority to determine the merits of a moot issue if 

“there is an imperative and manifest urgency to establish a rule of future conduct to matters 

of important public concern. . . .”). In re J.J., 231 Md. App. at 352 n. 15 (quoting Anne 

Arundel County School Bus Contractors Ass'n, 286 Md. at 328). Appellant Mother submits 

that the illegal use of safety plans is indeed an issue that is imperative, of manifest urgency 

and of important public concern. We agree, and have discussed the legality of safety plans, 

at length, supra. As such, we do not find there to be an existing controversy of “manifest 

urgency,” as J.R.’s out of home placement based on the violations of the second safety plan 

was in effect valid. Thereafter, an order controlling conduct was issued on December 21, 

2018, and was violated by Appellants on December 31, 2018. Shelter care was continued 

from January 2019 until May 2019 for good cause, because of the paternity matter. There 

was then a CINA proceeding and disposition that superseded the continued shelter care 
35

orders. For that reason, the issue regarding the merits of the temporary orders is moot, as 

there is no relief this Court can effectively grant Appellant Mother in regard to orders that 

are no longer applicable.

Assuming, arguendo, this Court entertained the notion that these matters were not 

moot, Appellant Mother did not preserve these issues for review. See 8-131(a). There are 

no facts here to suggest that Appellants ever raised any issues regarding the orders 

controlling conduct during the December 21, 2018, January 15, 2019, and February 5, 2019 

hearings, let alone considered appealing them. In fact, Appellants consented to Appellant 

Mother receiving custody of J.R. on December 26, 2018, while Appellant Father got 

visitation, and then they both violated the order controlling conduct five days later after 

receiving J.R. back from the Department. Appellant Mother consented to the 

postponements of the adjudication to resolve the paternity issue on January 15, 2019 and 

February 5, 2019, after specifically being prompted about questions by the presiding judges 

during those hearings. During the March 5, 2019 hearing, Appellant Mother stated:

[Mother’s Counsel]: “So I would ask that if the court was inclined to 

postpone the case that there be either increased visitation or an order placing 

the child back in her mother’s care — or his mother’s care. 

[Department’s Counsel]: I believe the mother has been visiting, and I don’t 

think the department would have any objection to increasing that.

Subsequently, Appellant Mother’s visitation was in fact increased. At the April 23, 2019 

hearing, Appellant Mother’s counsel advocated that Appellant Mother receive J.R. back, 

and the Department responded: 

[Mother’s Counsel]: Your Honor, that would be our request as well, at the 

very least under an order of protective supervision or something, so that this 
36

child can —— I mean, we’re just —— this child is growing up and losing 

the bond with parents, and child needs to be home.

[Department’s Counsel]: Your Honor, I know this case has gone on, but I 

don’t think that is the fault of the department in any way. And I would point 

out to the court that we started this with an order of protective supervision. 

That was what happened at the first shelter hearing, the child was returned to 

the mother and [father] under an order of protective supervision, the terms of 

which were pretty much immediately violated by the mother and [father], 

and that’s what got the child back into care. So I don’t feel that the parents 

are in a position really to suggest that now we go back to a similar 

arrangement when they didn't follow through with the initial arrangement, 

judge.

J.R.’s counsel was also present and supported the Department’s position. The juvenile court 

continued shelter care with the foster parents and set the adjudication two weeks from that 

date, on May 7, 2019. Appellants never requested either a modification of any of the alleged 

erroneous orders controlling conduct or filed any exceptions to these orders. We recognize 

that this very fact gives rise to Appellant Mother’s ineffective assistance of counsel claim,

discussed infra, but we agree with the Department that due to Appellant Mother’s failure 

to challenge the alleged errors associated with the orders during or after these particular 

hearings, the merits of assumed errors in the orders is not an argument we are required to 

address, and therefore we decline to review.

Timeliness of the Investigation

Family Law § 5-706(h) states: 

(h)(1) To the extent possible, an investigation under subsections (c) and (d) 

of this section shall be completed within 10 days after receipt of the first 

notice of the suspected abuse or neglect by the local department or law 

enforcement agencies.

(2) An investigation under subsections (c) and (d) of this section that is not 

completed within 30 days shall be completed within 60 days of receipt of the

first notice of the suspected abuse or neglect.
37

FL § 5-706(h)(1)-(2). The Department received the referral for medical neglect on October 

15, 2018. According to the statute, the investigation should have been completed on 

December 14, 2018. However, the Department did not complete their findings until 

February 1, 2019. Appellant Mother notes that this timeframe was beyond the statutorily 

mandated schedule for investigating child abuse or neglect, which unconstitutionally 

interfered with Appellant Mother’s right to raise J.R. 

The directive in this statute is “shall.” FL § 5-706(h). In Tucker v. State, 89 Md. 

App. 295 (1991), we address the command of “shall” and how it should be interpreted, in 

light of noncompliance:

In dealing with statutory commands, including time provisions such as these, 

courts often speak in terms of whether they are ‘mandatory’ or merely 

‘directory’.... The suggestion implicit from such an analysis is that, if the 

command is ‘mandatory,’ some fairly drastic sanction must be imposed upon 

a finding of noncompliance, whereas if the command is ‘directory,’ 

noncompliance, will result in some lesser penalty, or perhaps no penalty at 

all. That, indeed, is really the issue. When a legislative body commands that 

something be done, using words such as ‘shall’ or ‘must,’ rather than ‘may’ 

or ‘should,’ we must assume, absent some evidence to the contrary, that it 

was serious and that it meant for the thing to be done in the manner it 

directed. In that sense, the obligation to comply with the statute (or rule) is 

both mandatory and directory. The relevant question in such a case is

whether the sanction sought for noncompliance is an appropriate one.

Tucker, 89 Md. App. at 297–98. See also In re Najasha B., 409 Md. 20, 32-33 (2009).

Although neither COMAR 07.02.07.09 nor FL § 5-706(h) outlines any sanctions for delays 

in completing a child abuse or neglect investigation, the statute qualifies the mandate with

“to the extent possible.” FL § 5-706(h)(1). Appellant Mother did not object at any of the 

hearings to the timeliness of the investigation and has presented no argument regarding 

sanctions for this supposed error, other than it was a “harmful error” and an 
38

“unconstitutional interference” with Appellant Mother’s parental rights, even though they 

do not justify how. Either way, we disagree. 

The constitutional protections in the Fourteenth Amendment that guarantee a 

parent’s right to be free from “undue interference by the state” are notable, but they “are 

not absolute.” In re Yve S., 373 Md. 551, 565, 568 (2003). Even so, we do not see any 

undue interference by the Department investigating a referral for medical neglect, which 

led to additional, serious concerns of substance abuse and domestic violence, both of which 

were validated throughout the investigation. In any event, Appellants were complicit in the 

prolonging of the investigation, through their avoidance of the CPS investigators, 

Appellant Father’s declarations that he would not work with the Department, and their 

constant violations of the safety plans and orders controlling conduct. 

As a matter of law, the investigation was completed outside of the deadlines set by 

FL § 5-706(h). However, we find this error to be harmless because the Department 

investigated the health, safety and welfare of J.R. within a reasonable timeframe, 

considering the obstacles imposed, in part, by the Appellants.

Determining J.R. is a CINA 

As noted above, a “child in need is assistance” is defined as: 

(f) a child who requires court intervention because:

(1) The child has been abused, has been neglected, has a developmental 

disability, or has a mental disorder; and

(2) The child’s parents, guardian, or custodian are unable or unwilling to 

give proper care and attention to the child and the child’s needs.

Cts. & Jud. Proc. § 3-801(f). The principal focus of the CINA statute is to “ensure that 

juvenile courts (and local departments of social services) exercise authority to protect and 
39

advance a child’s best interests when court intervention is required.” In re Najasha B., 409 

Md. at 33. Juvenile courts, particularly, are “vested” with this far-reaching authority

because they:

see[] the witnesses and the parties, hear[] the testimony, and ha[ve] the 

opportunity to speak with the child; [the juvenile court] is in a far better 

position than is an appellate court, which has only a cold record before it, to 

weigh the evidence and determine what disposition will best promote the 

welfare of the minor.

Baldwin v. Bayard, 215 Md. App. 82, 105 (2013) (quoting In re Yve S., 373 Md. at 585-

86). Pursuant to Cts. & Jud. Proc. § 3-801(f), a child may be adjudicated CINA if they have 

been abused or neglected. The standard that must be employed by the juvenile court in 

CINA adjudication proceedings is preponderance of the evidence. Cts. & Jud. Proc. § 3-

817(c); see also In re Nathaniel A., 160 Md. App. 581, 595 (2005). In determining whether 

neglect or abuse has occurred, the standard is measured against the totality of the 

circumstances. In re Priscilla B., 214 Md. App. 600, 621 (2013).

Here, the juvenile court specifically found that there was no abuse but did find that 

there was neglect. In accordance with Cts. & Jud. Proc. § 3-821(s), “neglect” is defined as: 

(s) “Neglect” means the leaving of a child unattended or other failure to give 

proper care and attention to a child by any parent or individual who has 

permanent or temporary care or custody or responsibility for supervision of 

the child under circumstances that indicate:

(1) That the child’s health or welfare is harmed or placed at substantial 

risk of harm; or

(2) That the child has suffered mental injury or been placed at substantial 

risk of mental injury.

In In re Priscilla B., we outlined that:

[a]lthough neglect might not involve affirmative conduct (as physical abuse 

does, for example), the court assesses neglect by assessing the inaction of a 
40

parent over time. To the extent that inaction repeats itself, courts can 

appropriately view that pattern of omission as a predictor of future behavior, 

active or passive.

In re Priscilla B., 214 Md. App. at 625 (emphasis in original). Appellants assert that there 

was insufficient evidence for the court to find that J.R. was at a substantial risk of harm.

We recognize the “wide discretion concomitant with [the juvenile court’s] plenary 

authority to determine any question concerning the welfare of children”, and therefore, 

disagree with Appellants. 

The juvenile court based its findings on the testimony of Ms. Clouser, who testified 

to various allegations in the amended petition, the demeanor of the witnesses and 

arguments by counsel. Furthermore, there was more than sufficient evidence to show that 

while the original referral was for medical neglect, throughout the investigation, new 

concerns arose that the Department correctly chose to address, i.e. substance abuse and 

domestic violence allegations, which were corroborated throughout the inquiry into neglect 

of J.R. The juvenile court took note that J.R. had four older siblings and Appellant Mother

does not have care of those siblings. The court recognized that while Appellant Father 

received a positive drug screen, which had no indication as to whether he had used drugs 

after he signed the safety plan, the court still found the positive test results “a violation” 

because there was drug use, which Appellant Father had originally denied before he entered 

into the safety plan. The juvenile court reiterated that the Appellants had been given three 

chances to “maintain and keep the child in their home,” but through the conduct that 

violated both the two safety plans and the order controlling conduct, the court found that 
41

there was “failure to give proper care and attention.” The court concluded by noting that 

“every reasonable effort” had been made to keep J.R. with Appellants. 

The Court of Appeals has made it clear that “[c]ourts should be most reluctant to 

‘gamble’ with an infant's future; there is no way to judge the future conduct of an adult 

excepting by his or her conduct in the past.” McCabe v. McCabe, 218 Md. 378, 384 (1958). 

We reject Appellants’ contention that J.R. was never injured, as “the court need not wait 

until the child suffers some injury before determining that he is neglected . . . .” In re Dustin 

T., 93 Md. App. 726, 735 (1992). As we wrote in In re Dustin T., the juvenile court may 

examine the parents’ “track record” to determine if a child is “merely placed at risk of 

significant harm”. In re Dustin T., 93 Md. App. at 735 (emphasis in original). The court’s 

factual findings here regarding Appellant’s inaction to properly care for J.R. reflect that,

under the totality of the circumstances, the court did not abuse their discretion in finding 

that there was in fact a substantial risk of harm to seven-month-old J.R. 

Removal of J.R. from Appellants’ Custody

Appellants argue that the court committed harmful error by not adhering to the 

statutory scheme in conducting an individual disposition hearing, as outlined in Cts. & Jud. 

Proc. § 3-819, which provides: 

(a)(1) Unless a CINA petition under this subtitle is dismissed, the court shall 

hold a separate disposition hearing after an adjudicatory hearing to determine 

whether the child is a CINA.

(2) The disposition hearing shall be held on the same day as the 

adjudicatory hearing unless on its own motion or motion of a party, the

court finds that there is good cause to delay the disposition hearing to a 

later day.
42

(3) If the court delays a disposition hearing, it shall be held no later than 

30 days after the conclusion of the adjudicatory hearing unless good cause 

is shown.

As a matter of law, we must agree with Appellants. 

First and foremost, we acknowledge that Appellants did not preserve for review the 

argument that the dispositional hearing was not separated from the adjudicatory hearing. 

Appellant Mother conceded in her opening brief that she failed to preserve the alleged error 

when she did not “stop[] the juvenile [court] from proceeding directly to disposition” 

following the adjudicatory hearing and “made no objection to her denial of the opportunity 

to present evidence” on the dispositional order. Md. Rule 8-131(a) outlines that if an issue 

does not “plainly appear[] by the record to have been raised in or decided by the trial court,” 

this Court “[o]rdinarily . . . will not decide [the] issue.” The principal purpose of Rule 8–

131(a) is to “ensure fairness for all parties and to promote the orderly administration of 

law.” Jones v. State, 379 Md. 704, 713–14 (2004). However, in extraordinary instances, 

this rule is not without exception. In rare circumstances, pursuant to Md. Rule 8-131(a), 

we may exercise our discretion to review an unpreserved issue. See Bailey v. State, 464 

Md. 685, 698 (2019). However, “[s]uch prerogative to review an unpreserved claim of 

error ... is to be rarely exercised and only when doing so furthers, rather than undermines, 

the purposes of the rule.” Robinson v. State, 410 Md. 91, 103–04, (2009). In Lewis v. State, 

the Court of Appeals outlined: 

We usually elect to review an unpreserved issue only after it has been 

thoroughly briefed and argued, and where a decision would (1) help correct 

a recurring error, (2) provide guidance when there is likely to be a new trial, 

or (3) offer assistance if there is a subsequent collateral attack on the 

conviction.
43

Lewis v. State, 452 Md. 663, 699 (2017) (quoting Ray v. State, 435 Md. 1, 22 (2013)). Here, 

we find no prejudice in deciding to review the unpreserved issue. Not only was the issue 

fully briefed and argued by all parties, our decision will provide aid to trial courts in

applying Cts. & Jud. Proc. § 3-819(a)(2) and In re Joseph G., 94 Md. App. 343, 350 (1993), 

as discussed below. We find it imperative and beneficial to remind trial courts of the 

statutory requirement that the adjudication and disposition hearings must be separate 

hearings. By addressing this unpreserved issue, we advise trial courts about the different 

standards between adjudication and dispositional hearings, as well as the consequences and 

prejudices that parents may suffer when they are prevented from taking advantage of the 

opportunities available to them in dispositional hearings not necessarily available in 

adjudicatory hearings. Furthermore, this opinion seeks to reinforce precedent concerning a 

separate disposition hearing, upholding the legislative intent of conserving and 

strengthening “the child's family ties and to separate a child from the child's parents only 

when necessary for the child's welfare.” Cts. & Jud. Proc. § 3-802(a)(3).

In the instant case, even though the disposition was held on the same day as the 

adjudicatory hearing, absent any motions of any of the parties and in accordance with Cts. 

& Jud. Proc. § 3-819(a)(2), the hearing was not separate, as required by Cts. & Jud. Proc. 

§ 3-819(a)(1). We accept Appellants’ arguments that there is no indication as to where the 

adjudication hearing ends and when the disposition starts. Now, we assess if the juvenile 

court’s violation of Cts. & Jud. Proc. § 3-819(a)(1) requires that we mandate further 

proceedings or if this error is harmless. In re Yve S., 373 Md. at 586.
44

In In re Joseph G., we held that “a more stringent standard of proof is required to 

deny custody.” In re Joseph G., 94 Md. App. at 350. Even if the juvenile court is given 

great leeway in determining the welfare of minors, they are bound by the legislative 

framework expressed in FL § 9-101, which describes: 

(a) In any custody or visitation proceeding, if the court has reasonable 

grounds to believe that a child has been abused or neglected by a party to the 

proceeding, the court shall determine whether abuse or neglect is likely to 

occur if custody or visitation rights are granted to the party.

This court acknowledges that “the law permits involuntary separation of a child from his 

parents only if the parents are unable or unwilling to give the child ordinary care and 

attention, and even then only if the court finds that the drastic remedy of removing the child 

is necessary for his welfare.” In re William B., 68, 73 (1987); see also In re Beverly B., 72 

Md. App 433, 440 (1987); see generally In re Jertrude O., 56 Md. App. 83, 99 (1983) (“the

legislature and the Supreme Court have both expressed the view that children should not 

be uprooted from their family but for the most urgent reasons.”). Under this precedent, we 

find that the juvenile court’s error was harmful. 

Although the amended petition would have been acceptable for the court to rely on

for the purposes of the disposition hearing, see In re E.R., 239 Md. App. 334 (2018), the 

Appellants were not given the opportunity to present evidence as to why they would be 

able to provide J.R. with the proper care and attention, nor did the court outline specific 

findings as to why the court felt the need for removal, pursuant to Cts. & Jud. Proc. § 3-

819(f). Additionally, Cts. & Jud. Proc. § 3-819(c) lists several alternatives that should have 

been considered in lieu of awarding custody to the Department. See also In re Jertrude O.,
45

56 Md. App at 99. We further point out that the dispositional order directs Appellants to 

participate in a number of treatments and evaluations, but the court made no findings as to 

the basis for these services being ordered. As a consequence, the dispositional order does

not correspond with the record. 

We therefore vacate the dispositional order which denied the Appellants custody of 

J.R. and remand the case back to the circuit court for Cecil County, so there can be an 

immediate and proper dispositional hearing to determine whether Appellants are willing 

and able to care for J.R., pursuant to Cts. & Jud. § Proc. 3-819.

Ineffective Assistance of Counsel 

On a final note, Appellant Mother contends that she received ineffective assistance 

of counsel throughout the CINA proceedings. Particularly, Appellant Mother alleges that 

her trial counsel did not object or file exceptions to various procedural errors throughout 

the CINA proceedings, including the continued shelter care orders or the postponements 

related to the paternity matter. Appellant Mother also maintains that her counsel failed to 

raise constitutional due process concerns regarding the safety plans during the CPS 

investigation. 

Statutory rights to counsel in CINA proceedings are outlined in Cts. & Jud. Proc. § 3-

813(a) which indicates:

(a) Except as provided in subsections (b) and (c) of this section, a party is 

entitled to the assistance of counsel at every stage of any proceeding under 

this subtitle.

This court observes that “implicit in that right to counsel is that counsel be effective.” In 

re Adoption of Chaden M., 422 Md. 498, 510 (2011). In order to evaluate the standard in 
46

which we would review ineffective assistance of counsel claims in guardianship 

proceedings, this court adopted the Strickland two-prong test. Id. Relying on the 

jurisdictional comparisons, summarized at length, of the Strickland test being utilized in 

termination of parental rights cases in the In re Adoption/Guardianship of Chaden M.

opinion written by this Court, we will embrace the Strickland two-step test for CINA 

proceedings as well. See In re Adoption/Guardianship of Chaden M., 189 Md. App. 411, 

433 (2009), aff’d sub nom. In re Adoption of Chaden M., 422 Md. 498 (2011).

Strickland v. Washington extensively outlines the standard for evaluating the 

validity of an ineffective assistance of counsel claim, which can be broken down into a 

“‘performance’ component” and a “‘prejudice’ component.” In re Adoption/Guardianship 

of Chaden M., 189 Md. App. at 434 (quoting Strickland, 466 U.S. at 690, 694). Essentially, 

in order to obtain relief for the alleged ineffectiveness, there must first be a showing that

“counsel’s representation fell below an objective standard of reasonableness.” Strickland, 

466 U.S. at 694. In this instance, review of trial counsel’s performance “must be highly 

deferential.” Strickland, 466 U.S. at 689. The Supreme Court has further elaborated that 

review of an attorney’s performance is “context-dependent consideration of the challenged 

conduct as seen ‘from counsel’s perspective at the time.’” Wiggins v. Smith, 539 U.S. 510, 

523 (2003).

After meeting what can be considered a “heavy burden”10, the one claiming error 

must then demonstrate that “there is a reasonable probability that, but for counsel’s 

 10 See Harris v. State, 303 Md. 685, 697 (1985). 
47

unprofessional errors, the result of the proceeding would have been different . . . .” 

Strickland, 466 U.S. at 689. This prong of the Strickland test requires a showing of 

prejudice, considering that “[a]ttorney errors come in an infinite variety and are as likely 

to be utterly harmless in a particular case as they are to be prejudicial.” Id. at 693. 

Moreover, “It is not enough for the defendant to show that the errors had some conceivable 

effect on the outcome of the proceeding.” Id. In Maryland, to establish prejudice, there 

must be a showing that “but for counsel’s errors, there is a ‘substantial possibility’ the 

result of the proceeding would have been different.” State v. Borchardt, 396 Md. 586, 603 

(2007) (citing Bowers v. State, 320 Md. 416, 426-427 (1990)).

Yet, we recognize that ineffective assistance of counsel claims, at least in criminal 

cases, often have a separate “post-conviction hearing,” considering that “ordinarily, the 

trial record does not illuminate the basis for the challenged acts or omissions of counsel.”

See In re Adoption/Guardianship of Chaden M., 189 Md. App. at 434-435 (quoting In re: 

Parris W., 363 Md. 717, 726 (2001)). “Post-conviction proceedings are preferred with 

respect to ineffective assistance of counsel claims because the trial record rarely reveals 

why counsel acted or omitted to act, and such proceedings allow for fact-finding and the 

introduction of testimony and evidence directly related to allegations of the counsel’s 

ineffectiveness.” Mosley v. State, 378 Md. 548, 560 (2003).

While the Supreme Court has examined claims of ineffective assistance of counsel 

on direct review, it has been only on rare occasions, “where the critical facts are undisputed, 

the record is sufficiently developed, and/or the legal representation is so egregiously 

ineffective that it is obvious from the trial record that a defendant was denied his Sixth 
48

Amendment right to counsel.” Mosley, 378 Md. at 561 (citing Massaro v. United States, 

538 U.S. 500 (2003)); see also Robinson v. State, 404 Md. 208, 219 (2008) (“where the 

critical facts are not in dispute and the record is sufficiently developed to permit a fair 

evaluation of the claim, there is no need for a collateral fact-finding proceeding, and review 

on direct appeal may be appropriate and desirable.”); In re Parris W., 363 Md. at 726.

Recognizing that the critical facts for the ineffective assistance of counsel claim, i.e. 

that trial counsel did not object during particular hearings nor raise constitutional due 

process concerns, are at dispute and there was no separate “hearing” where the trial attorney 

had the opportunity to explain why they took certain actions during the CINA proceeding, 

we hold that the record here is not adequately established to examine the ineffective 

assistance of counsel claim raised by Appellant Mother. Appellant Mother never raised the 

argument at trial that her counsel was ineffective. There was no effort by Appellant Mother 

to present evidence that her trial counsel did or did not make certain arguments that she 

wanted trial counsel to argue in regard to J.R.’s custody during the CINA proceedings. As 

the Court of Appeals has stated, “the trial record clearly must illuminate why counsel’s 

actions were ineffective because, otherwise, the Maryland appellate courts would be 

entangled in the perilous process of second-guessing without the benefit of potentially 

essential information.” Mosley, 378 Md. at 564. (internal citations omitted). We do not find 

that the legal representation here is “so egregiously ineffective” that it is apparent from the 

trial record that Appellant Mother was denied her statutory right to counsel in a CINA 

proceeding. Therefore, we do not reach the merits of Appellant Mother’s ineffective 

assistance of counsel claim. 
49

CONCLUSION 

Accordingly, this case is remanded back to the circuit court for Cecil County, sitting 

as a juvenile court, to immediately conduct a disposition hearing in accordance with the 

applicable statute. We do not consider Appellant Mother’s substantive arguments 

regarding the ineffective assistance of counsel claim. Otherwise, we affirm. 

JUDGMENT OF THE CIRCUIT 

COURT FOR CECIL COUNTY

AFFIRMED IN PART AND 

VACATED IN PART. CASE 

REMANDED FOR FURTHER 

PROCEEDINGS CONSISTENT 

WITH THIS OPINION; COSTS TO 

BE PAID 1⁄2 BY APPELLANTS 

AND 1⁄2 BY APPELLEE CECIL 

COUNTY DEPARTMENT OF 

SOCIAL SERVICES .