In Re Joseph G.

617 A.2d 1086, 94 Md. App. 343, 1993 Md. App. LEXIS 5
CourtCourt of Special Appeals of Maryland
DecidedJanuary 5, 1993
Docket205, September Term, 1992
StatusPublished
Cited by12 cases

This text of 617 A.2d 1086 (In Re Joseph G.) 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 Joseph G., 617 A.2d 1086, 94 Md. App. 343, 1993 Md. App. LEXIS 5 (Md. Ct. App. 1993).

Opinions

[345]*345ROSALYN B. BELL, Judge.

This is an appeal from a de novo hearing in the Circuit Court for Baltimore City, Juvenile Division, on exceptions from proceedings before a juvenile master. The circuit court found Joseph G. to be a child in need of assistance (CIÑA), and committed the child to the Baltimore City Department of Social Services (BCDSS). Mr. G., the father of Joseph G., appeals from the circuit court finding that Joseph G. is a CIÑA and the commitment of the child to BCDSS. Mr. G. contends on appeal that the circuit court erred because

—there was insufficient evidence to adjudicate Joseph G. a CIÑA; and
—there was insufficient evidence to support the disposition denying Mr. G. custody of Joseph G.

We affirm as to the adjudication of CIÑA and reverse as to the disposition.

THE FACTS

Joseph G. was born on December 17, 1990 at 6:00 p.m. The evidence indicates that the delivery was uncomplicated. The child was examined by hospital personnel immediately postpartum and no abnormalities were noted. Joseph G. was again examined at midnight, and the examination was normal. At approximately 12:15 a.m. on December 18, 1990, the child was taken for a visit with his mother in her hospital room. The visit lasted 45 minutes. A few minutes after being returned to the nursery, a nurse, who was changing the child’s diaper, noticed that the child’s testicles were black, swollen and torn. The child was further examined by physicians, and a diagnosis of “blunt trauma” was made. The child was immediately removed from the mother’s custody.

On January 22, 1991, BCDSS began CINA proceedings because of the apparent abuse of Joseph G. by his mother. The mother denied abusing Joseph G. Mr. G. testified that [346]*346he did not believe that the mother inflicted the injuries on the child, but that the injuries were caused by childbirth.

The mother had a history of substance abuse. Two of the mother’s other children, Robert and Bradley,1 were taken from her due to neglect, physical and sexual abuse. There was testimony indicating that Mr. G. was present during one instance where the mother sexually abused her son Bradley, and that Mr. G. did nothing to stop the abuse. There was also evidence, however, that Bradley was not telling the truth, and Mr. G. denied ever having been present during any such abuse.

Mr. G. lived with the mother until after Joseph G. was bom, but they were never married. After the birth of Joseph G., Mr. G. moved to a house which was within walking distance of the mother’s residence. After the CINA proceedings began, Mr. G. sought custody of Joseph G., but the court was concerned that the mother might have access to the child. As a result, Mr. G. moved several miles away from the child’s mother to live with his own mother. Mr. G. testified that he had “broken up” with Joseph G.’s mother in July of 1991, but there was evidence that he was still involved with the mother. A licensed social worker (LSW) testified that she saw the pair holding hands and saw the mother put her arm around Mr. G. during a visit with Joseph G. The LSW also testified that she had a conversation with the mother after the supposed break-up in which the mother referred to Mr. G. as her “boyfriend.”

SUFFICIENCY OF THE EVIDENCE IN THE ADJUDICATION OF CINA

Appellant contends that there was insufficient evidence to find that Joseph G. was a CINA. We do not agree.

This Court may not set aside an adjudication of CINA unless the trial judge was clearly erroneous. In re Beverly B., 72 Md.App. 433, 440, 530 A.2d 766 (1987); see [347]*347also In re Appeal No. 504, 24 Md.App. 715, 723, 332 A.2d 698 (1975). In determining whether the trial court was clearly erroneous, this Court must “give due regard to [the trial judge’s] opportunity to judge the credibility of the witnesses.” In re Appeal No. 504, at 723, 332 A.2d 698. In addition, an appellate court cannot “disturb the ultimate conclusion based upon those factual findings if there has been no clear abuse of discretion.” In re Beverly B., 72 Md.App. at 440, 530 A.2d 766.

Maryland Cts. & Jud.Proc.Code Ann. § 3-801(e) (1974, 1989 Repl.Vol., 1992 Cum.Supp.), provides that a

“ ‘[c]hild in need of assistance’ is a child who requires the assistance of the court because:
“(1) He is ... not receiving ordinary and proper care and attention, and
“(2) His parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child____” (Emphasis added.)

The adjudication of a CINA is to be made by a preponderance of the evidence. In re Beverly B., 72 Md.App. at 440, 530 A.2d 766.

The trial judge in the present case was not clearly erroneous in adjudicating Joseph G. a CINA. There was testimony from the nurses who were present at the birth of Joseph G. that his injuries did not occur at birth. One nurse testified that the birth was uncomplicated, that the baby was not in a breech position, and that no forceps were used. The nurse also stated that, in the hundreds of deliveries she had attended, she had never seen injuries of the type exhibited by Joseph G.

At the de novo hearing, BCDSS entered photographs of Joseph G.’s injuries, which were consistent with the medical diagnosis of “blunt trauma” as the cause of the injuries. We cannot say the trial judge was clearly erroneous in finding, by a preponderance of the evidence, that Joseph G. was physically, if not sexually, abused, and therefore was not receiving “proper care and attention.” The trial judge [348]*348also found that the mother was unwilling or unable to care properly for Joseph G., and adjudicated him a CINA.

Appellant next argues that, even if there was sufficient evidence to find that Joseph G. was not cared for properly by the mother, there was insufficient evidence that he was unable to give the child proper care. Appellant also argues that there can be no finding of CINA unless both parents are unable to render proper care. We need not reach this contention because we hold that there was sufficient evidence that appellant was unwilling or unable to care for Joseph G.

Appellant in his brief states that “[t]he only evidence that appellant is or was unable or unwilling to give proper care and attention to his son comes by way of the expert testimony” of two licensed social workers (LSWs). The LSWs testified that Bradley told them appellant was present when Bradley was sexually abused by his mother. Appellant claims these LSWs should not have been permitted to express their opinions that appellant was unable to care properly for his son based on the inadmissible hearsay statements of Bradley. We do not agree with appellant.

The admission of expert testimony is within the discretion of the trial court. Scott v. Prince George’s County Department of Social Services,

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In Re Joseph G.
617 A.2d 1086 (Court of Special Appeals of Maryland, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
617 A.2d 1086, 94 Md. App. 343, 1993 Md. App. LEXIS 5, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-joseph-g-mdctspecapp-1993.