In Re Dustin T.

614 A.2d 999, 93 Md. App. 726, 1992 Md. App. LEXIS 197
CourtCourt of Special Appeals of Maryland
DecidedOctober 29, 1992
Docket1949, September Term, 1991
StatusPublished
Cited by15 cases

This text of 614 A.2d 999 (In Re Dustin T.) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Dustin T., 614 A.2d 999, 93 Md. App. 726, 1992 Md. App. LEXIS 197 (Md. Ct. App. 1992).

Opinion

ALPERT, Judge.

This is yet another tragedy that comes to us as a result of long-term drug abuse. Dustin T. was determined to be a child in need of assistance [“C.I.N.A.”] by the District Court for Montgomery County (Moore, J., presiding). As a result, the court decided to keep the child in foster care because his mother, Ms. H., failed to demonstrate that she could provide a safe home for the child if he was returned to her. She has appealed and asks us to respond to the following questions:

I. Did the court err in denying Ms. H.’s motion to dismiss the C.I.N.A. petition, which motion was based on our holding in In re: William B.?
II. Does the preponderance of the competent evidence fail to support a finding that Dustin is a C.I.N.A.?
III. Once Dustin was removed from Ms. H.’s home, did the lower court impermissibly shift the burden of proof away from the County to show the continued unfitness of Ms. H. to care for Dustin — thereby impermissibly placing the burden on Ms. H. to affirmatively show her fitness as a parent-before Dustin was returned?
IV. Did the court err in allowing continuous irrelevant and hearsay evidence despite repeated objection?

We respond to each in the negative and, therefore, shall affirm the judgment of the trial court.

FACTS AND PROCEEDINGS

In its “Detention C.I.N.A. Petition” filed on November 4, 1991, the Montgomery County Department of Social Services [“MCDSS”] inter alia alleged that Dustin T. was a child *729 in need of assistance 1 because (1) at his birth on October 28, 1991, both Dustin T. and his mother, Ms. H., tested positive for cocaine; (2) Ms. H. had a long history of drug abuse; (3) Ms. H. was using drugs just prior to Dustin’s birth; and (4) Ms. H. associated with people who were “involved with drugs to the point that they were staying in her home.”

A Shelter Hearing followed on November 4, 1991, and Dustin was committed to MCDSS for placement in temporary foster care. Ms. H. was granted visitation under the supervision of MCDSS.

On December 2, 1991, an adjudication hearing was conducted, wherein the court inter alia denied Ms. H.’s motion to dismiss the C.I.N.A. petition. Upon the testimony presented, the court found Dustin to be C.I.N.A. and continued the commitment to MCDSS for placement in temporary foster care, subject to supervised visitation between Dustin and his mother. The court further ordered that Ms. H. attend and actually participate in drug treatment.

On December 24, 1991, the Juvenile Court held a disposition hearing, in which inter alia the court (1) denied Ms. H.’s motion to alter or amend the court’s prior order, and (2) committed Dustin for further placement in foster care.

In appealing the Juvenile Court’s order, Ms. H. asked us to respond to the questions set forth above.

THE LAW

I.

Toward the beginning of the December 2, 1991 adjudication hearing, Ms. H. moved — ostensibly based on our holding in In re William B., 73 Md.App. 68, 533 A.2d 16 (1987), cert. denied, 311 Md. 719, 537 A.2d 272 (1988) — to dismiss MCDSS’s C.I.N.A. petition.

*730 Specifically, Ms. H. contended that William B. stands for the proposition that alcohol dependency alone is insufficient grounds for removal of a child from his home. Ms. H. now argues that because the only evidence presented by MCDSS at the juvenile court hearing related to Ms. H.’s drug addiction (which, Ms. H. argues, is analogous to alcohol dependency), the holding in William B. mandates that the court grant her motion to dismiss. 2

In alleging that the court erred in denying this motion, Ms. H. makes essentially three specific factual contentions: (1) All of the allegations contained in the petition were impermissibly based on the actions of Ms. H. prior to Dustin’s birth, (2) MCDSS failed to cite any facts to support its contention that Ms. H. is not able to provide to Dustin ordinary and proper care, and (3) MCDSS failed to adequately support the finding that Ms. H. ever abused or neglected the child.

We disagree with each of Ms. H.’s contentions.

A.

Pursuant to CJ § 3-812, a C.I.N.A. petition must set forth in clear and simple language the facts supporting the allegation that Dustin T. is a child in need of assistance. Id. at § 3-812(a). Pursuant to CJ § 3-801(e), quoted here in relevant part, a C.I.N.A. is

a child who requires the assistance of the court because ... [h]e is ... not receiving ordinary and proper care and attention, and ... his parents are unable or unwilling to *731 give proper care and attention to the child and his problems[.]

The department of social services must then present to the court the evidence in support of its petition. Id. at § 3-812(g).

With respect to Ms. H.’s first delineated contention, i.e., all of the allegations contained in the petition were impermissibly based on the actions of Ms. H. prior to Dustin’s birth, the record simply does not support it. While it is true that the petition contains allegations relating to Ms. H.’s long history of drug use prior to Dustin’s birth, the petition also sufficiently alleges facts concerning how Ms. H.’s drug use affected Dustin’s birth, and how her drug use continued to affect her living conditions after Dustin’s birth (up until the time the petition was filed). Among other things, the petition states:

[Fallowing Dustin’s birth[,] Ms. H. and Dustin tested positive for cocaine. Investigation noted that Ms. H. has a long history of drug use and that she ... admitted to using drugs prior to Dustin’s birth____ Ms. H. has acknowledged that she began using drugs again [i.e., after seeking treatment for her drug problem] and that she has [been] involved with ... people engaged in drug-related activities to the point that they were staying in her home. Ms. H. indicated that these people were no longer staying in her home, but reportedly, two men, one carrying a gun were seen leaving the home following an attempt by child welfare services staff to meet with Ms. H.’s roommate.

Moreover, it has been long since settled that a parent’s past conduct is relevant to a consideration of his or her future conduct. See, e.g., McCabe v. McCabe, 218 Md. 378, 383, 146 A.2d 768 (1959) (“In making our decision [as to the future of the infant at issue] we should not gamble about that future. We can only judge the future by the past.”).

Indeed, in William B., the single most significant case upon which Ms. H.

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Bluebook (online)
614 A.2d 999, 93 Md. App. 726, 1992 Md. App. LEXIS 197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dustin-t-mdctspecapp-1992.