In re: Z.A., K.P., No. 949, Sept. Term 2023. Opinion filed on March 28, 2024, by Wells, C.J.
CONSTITUTIONAL LAW – SEPARATION OF POWERS – JUDICIAL POWERS AND FUNCTIONS – ENCROACHMENT ON EXECUTIVE – POWERS, DUTIES, AND ACTS UNDER LEGISLATIVE AUTHORITY – JUDICIAL EXERCISE OF STATUTORY AUTHORITY AS ENCROACHING ON EXECUTIVE
Juvenile court does not usurp the discretionary functions of the executive by directing local department to provide services in connection with child in need of assistance (CINA) permanency plan pursuant to the explicit grant of authority by the legislature.
INFANTS – DEPENDENCY, PERMANENT CUSTODY, AND TERMINATION OF RIGHTS; CHILDREN IN NEED – JUDGMENT, ORDER, AND DISPOSITION – AMENDMENT, EXTENSION, OR MODIFICATION; PERIODIC REVIEW – AUTHORITY AND DISCRETION IN GENERAL
A juvenile court has discretion to issue orders directing a local department to provide services to a child, child’s family, or child’s caregiver facilitating permanency planning for child in need of assistance (CINA), where the court’s order protects and advance the child’s best interest. Md. Code, Courts & Judicial Proceedings Article § 3-823.
INFANTS – DEPENDENCY, PERMANENT CUSTODY, AND TERMINATION OF RIGHTS; CHILDREN IN NEED – JUDGMENT, ORDER, AND DISPOSITION – AMENDMENT, EXTENSION, OR MODIFICATION; PERIODIC REVIEW – NEEDS, INTEREST, AND WELFARE OF CHILD IN GENERAL
Juvenile court abused its discretion by ordering local department to pay for parent’s train tickets and hotel accommodations in connection with visitation pursuant to child in need of assistance (CINA) permanency plan, where evidence in the record did not establish that a specific type of transportation or accommodation was necessary to support the best interest of the minor children. Circuit Court for Montgomery County Case Nos. 06-I-19-000106 & 06-I-19-000109
REPORTED
IN THE APPELLATE COURT
OF MARYLAND
No. 949
September Term, 2023
______________________________________
IN RE: Z.A., K.P.
Wells, C.J., Graeff, McDonald, Robert N., (Senior Judge, Specially Assigned),
JJ. ______________________________________
Opinion by Wells, C.J. ______________________________________
Filed: March 28, 2024
*Tang, Rosalyn, J., did not participate in the Court’s decision to designate this opinion for Pursuant to the Maryland Uniform Electronic Legal publication pursuant to Md. Rule 8-605.1. Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2024.03.28 15:00:49 -04'00'
Gregory Hilton, Clerk This appeal consolidates two child in need of assistance (“CINA”) cases, involving
minor children Z.A. and K.P. The minor children have a common mother (“Mother”) and
different fathers; K.P.’s father is deceased and Z.A.’s father has not participated in the
minor child’s CINA matter. Since February 2020, the minor children have lived in North
Carolina in the care of J.B., a cousin of Z.A.’s father, and her husband, D.B. This appeal
concerns an order facilitating Mother’s in-person visitation with the minor children
pursuant to the juvenile court’s permanency plan of reunification with Mother.
On February 22, 2023 (the “February 22 order”), the Circuit Court for Montgomery
County, sitting as a juvenile court, directed the Montgomery County Department of Health
and Human Services (“the Department”) to provide Mother with monthly in-person
visitation. At a permanency planning review hearing held on June 9, 2023, the juvenile
court ordered the Department to pay for Amtrak train tickets and hotel accommodations
for Mother’s monthly in-person visitation with Z.A. and K.P. in North Carolina. The
juvenile court issued a written order reiterating this order on June 13, 2023 (the “June 13
order”). The Department appealed, presenting us the following question: 1
1 In her brief, Mother phrased the question presented as follows:
Did the court’s order directing the department to pay for Ms. B’s transportation costs related to visitation constitute a proper order within the court’s authority?
K.P. phrased the question as follows:
Did the juvenile court properly exercise its statutory duty to ensure that the Department made reasonable efforts to reunify K.P. and his mother when it ordered the Department to pay for K.P.’s mother travel to visit him and his Did the juvenile court exceed its authority and err as a matter of law by ordering the Department to make specific expenditures in order to facilitate Mother’s visits in North Carolina?
Mother and K.P. filed briefs in opposition. 2
For the reasons discussed below, we answer the Department’s question partly in the
negative. We hold that the juvenile court had the authority to direct the Department to bear
expenses in connection with the permanency plan, and that it did not abuse that discretion
when it ordered the Department to pay Mother’s travel expenses. However, we also hold
that the juvenile court abused its discretion in specifying that the Department provide a
particular type of transportation and accommodation in its order. We therefore vacate the
juvenile court’s order to the extent that it directed the Department to provide Amtrak tickets
and hotel accommodations for Mother’s in-person visitation in the State of North Carolina.
FACTUAL AND PROCEDURAL BACKGROUND
The Department initiated both CINA cases at issue in this appeal on July 9, 2019,
due to indications of neglect when Z.A. tested positive for PCP at birth on July 5. Z.A.,
K.P., and three of their siblings—A.A., K.A., and T.P.—were placed in the custody of the
Department for placement in licensed foster care pending placement in kinship care.
Mother did not contest the CINA petition and agreed to submit to substance abuse
treatment and undergo a psychological evaluation. The juvenile court found all five
brother in North Carolina once a month, after the Department had relocated K.P. to North Carolina and then provided no in-person visits with his mother for three years until the court ordered it to do so? 2 Z.A. filed a line joining “K.A.’s” brief (presumably, K.P.’s) on December 22, 2023, and did not participate in oral arguments. 2 children to be CINAs on July 23, 2019, and, following the completion of a home study,
Z.A. and K.P. were placed with J.B. and D.B. in Creedmoor, North Carolina.
In June 2022, at which point the children had been placed in foster care for thirty-
five months, the juvenile court changed the children’s permanency plans from reunification
to adoption. The orders changing the permanency plans came before us in a consolidated
matter captioned In re Z.A., A.A., K.A., K.P., T.P., No. 715, 715, 716, 717, 718, 719, Sept.
Term, 2022. In an unreported opinion, we affirmed the juvenile court’s orders. 2022 WL
17247604 (Md. Ct. Spec. App. Nov. 28, 2022). The Department subsequently initiated
guardianship proceedings for Z.A., K.A., K.P., and K.A., seeking to end Mother’s parental
rights.
Mother submitted to a second psychological and cognitive evaluation in January
2023, which showed “no indications that [Mother] suffers from a psychiatric disorder or
cognitive disability that would impair her ability to parent her children.” The examiner
recommended that Mother continue to participate in mental health and substance abuse
treatment programs and case management support. Mother’s therapists reported in
February that she had made “steady progress” in her mental health treatment.
In February 2023, the Department withdrew its guardianship petition for K.P., who
had refused to consent to adoption, and subsequently withdrew its guardianship petitions
for the three other minor children. The juvenile court held a permanency plan hearing on
February 27, 2023, and changed Z.A. and K.P’s permanency plans to concurrent plans of
reunification with Mother and custody and guardianship to the children’s current
caregivers. The juvenile court’s permanency plan review hearing order entered on February
3 22 provided that “the Department shall provide [Mother] monthly in-person visits in North
Carolina” with Z.A. and K.P.
The Department and Mother arranged for Mother to travel to North Carolina by train
for two in-person visits with Z.A. and K.P., and to stay in a hotel room while there, at the
Department’s expense. At a permanency planning review hearing held on June 9, 2023,
Mary Peyton, the Department’s assigned social worker, testified that the parties agreed in
March that the Department would pay for these two visits, and that Mother agreed that any
future visitations would be at her own expense. Peyton further testified that the Department
and J.B. had reached an alternative arrangement for J.B. to take the minor children to visit
Mother in Maryland during the summer.
Mother’s counsel told the court that Mother had not agreed to the arrangement
described by Peyton. Peyton reviewed a written summary of the March meeting; she
testified that it did not capture everything discussed between the parties. The juvenile court
ruled that its February 22, 2023 order did not limit the Department to paying for only two
visits, and that any agreement reached by the parties to that effect was inconsistent with
the order. The court continued Z.A. and K.P.’s existing permanency plans and ordered
weekly virtual visitation. It also ordered monthly unsupervised in-person visits in North
Carolina without overnights, with the Department to pay for train tickets and a hotel room.
The Department objected to the provision of the order directing it to pay for train tickets
and a hotel room, citing separation-of-powers concerns. The court denied the objection and
entered a written order dated June 13, 2023 reiterating that “[t]he Department shall provide
Amtrak tickets and pay for the hotel room for [Mother.]” The Department timely appealed.
4 We will supply additional facts as necessary to support our analysis.
STANDARD OF REVIEW
The Department argues that the juvenile court committed legal error and presents a
question of law. When we consider questions of law, the standard of review is de novo.
See, e.g., Clickner v. Magothy River Ass’n Inc., 424 Md. 253, 266 (2012) (“Questions of
law . . . require our non-deferential review.”).
DISCUSSION
I. APPEAL OF THE JUVENILE COURT’S ORDER WAS PERMISSIBLE UNDER THE COLLATERAL ORDER DOCTRINE.
As a threshold issue, on our own initiative we consider whether we may take this
appeal of the circuit court’s order. 3 Appeals typically may be taken only from final
judgments, except where statutory authority permits interlocutory appeal. However, an
interlocutory appeal is also proper where the collateral order doctrine applies. That doctrine
provides that an interlocutory order is appealable where the order “(1) conclusively
determines the disputed question, (2) resolves an important issue, (3) resolves an issue that
is completely separate from the merits of the action, and (4) would be effectively
unreviewable if the appeal had to await the entry of a final judgment.” Hudson v. Hous.
3 We note that neither party presented arguments as to whether appeal of the circuit court’s order is, or is not, proper. “Ordinarily, we will consider as waived any issue not raised by an appellant in its opening brief.” Maryland Auto. Ins. Fund v. Baxter, 186 Md. App. 147, 154 (2009) (citing Oak Crest Village, Inc. v. Murphy, 379 Md. 229, 241–42 (2004)). However, we perceive no harm in addressing this issue; we ultimately find that the matter is appealable, and it would not have been dispositive if the Department had not waived it. We therefore discuss appealability because we find it significant to clarify for litigants in future cases that the juvenile court’s order in this matter was the proper subject of interlocutory appeal. 5 Auth. of Balt. City, 402 Md. 18, 26 (2007) (quoting Ehrlich v. Grove, 396 Md. 550, 563
(2007)).
This appeal is permissible under the collateral order doctrine. Considering each
element of the doctrine, the circuit court’s June 13 order that the Department pay for train
tickets and hotel accommodations was (1) separate from the merits of determining the
status of the permanency plan; (3) conclusive, if for no greater reason than that any
expenditure made by the Department paid to a third party would likely be irrecuperable at
the time of appeal from a final order closing the underlying CINA matter; and (4) would
not be reviewable on appeal, for the same reason that it was conclusive. As for the second
element, whether the order dealt with an “important” issue, the payments required by the
order to Amtrak or a hotel would likely have been a relatively small portion of the
Department’s budget. However, the order implicates issues which are important to both the
parties and other juvenile courts. These include the degree to which the Department—and,
by extension, any local department—may control its budget, as well as the proper scope of
the circuit court’s authority in permanency planning. We, therefore, conclude that the order
is appealable under the collateral order doctrine.
II. THE LEGISLATURE HAS AUTHORIZED A JUVENILE COURT TO ISSUE ORDERS TO A LOCAL DEPARTMENT OF SOCIAL SERVICES TO ACT IN THE BEST INTERESTS OF CHILDREN IN THE DEPARTMENT’S CARE.
A. Parties’ Contentions
The Department argues that the separation of powers doctrine prevents a court from
ordering an agency to take an action that lies within the agency’s sole discretion. It points
6 to our case law, suggesting that it stands for the principle that juvenile courts overreach in
ordering local departments to pay specific funds to specific private parties, and argues that
such an order violates general principles of separation of powers under the Maryland
Constitution.
The appellees respond that the authority offered by the Department pertains to a
separate statutory scheme related to private placements for minor children committed to
the State’s care. As such, they argue, separation of powers concerns only applied in a
context where the juvenile court had strayed outside of its statutory authority.
B. Analysis
1. A court may order an administrative agency to expend funds where authorized by the legislature.
The Department argues that a court overreaches when it orders a local department
to pay specific funds to a specific private party. The Department relies in part upon our
holding in Maryland State Department of Health & Mental Hygiene v. Prince George’s
County Department of Social Services, 47 Md. App. 436 (1980) [hereinafter Linda G.],
cert. denied sub nom. Tom and June G. v. Dept. of Health, 290 Md. 714, 723 (1981). In
Linda G., the Maryland Department of Health and Mental Hygiene (“DHMH”) appealed
an order of the Circuit Court for Prince George’s County, sitting as a juvenile court,
directing it to pay for the cost of mental health services at a privately owned hospital. Id.
at 438. We held that the relevant statutory provision, Maryland Code Annotated, Courts &
Judicial Proceedings Article (“CJP”) § 3-820, “empower[ed] the court to commit a child
to the custody of DHMH[, but did] not confer upon the court any right to mandate the
7 specific terms of the commitment.” Id. at 445. We further opined that CJP § 3-820 placed
significant discretion in DHMH to determine the manner in which it would provide mental
health care for children committed to its custody, noting, “The indiscriminate expenditure
of State funds for private placement at the instruction of courts will undermine the State
budget, imperil the State’s financial structure, and defeat the Legislature’s intent to
promote and provide mental health services with impartiality to all citizens of the State.”
Id. at 448.
The Department also cites In re Demetrius J., 321 Md. 468 (1991), in which the
Supreme Court of Maryland (then the Court of Appeals) reached substantially the same
conclusion as we did in Linda G. in reviewing a juvenile court’s order to place a minor
child adjudicated delinquent in a private facility. Reasoning that “[t]he plain language of
the statute places these matters within the sound discretion of DJS[,]” the Court held that
“CJ § 3-820, considered in the light of other relevant statutes, does not authorize the court,
in committing a delinquent child to the custody of the Department of Juvenile Services, to
order that the child be placed in a specific private facility at the expense of the Department.”
Id. at 475, 481.
We do not read Linda G. or Demetrius J. to hold that a court can never direct an
executive agency to render payment to a private entity, nor that that principle applies
throughout the CINA statutes codified under Title 3, Subtitle 8 of the Courts & Judicial
Proceedings Article (“Subtitle 8”). Both cases turned upon statutory interpretation, and
concerns about judicial intrusion upon executive control over the budget arose in both cases
where the court had strayed outside of its statutory authorization under CJP § 3-820. Even
8 if we took these cases to establish that juvenile courts may not “intrude upon agencies’
discretion in the delivery of services” in general, as the Department suggests, that would
be irrelevant if the legislature authorized the juvenile courts to direct local departments
with respect to a specific matter. In short, where the executive alleges judicial intrusion,
the crux of our analysis will be whether the legislature intended to authorize that intrusion.
In Linda G., DHMH had broad discretion to administer its budget with respect to
mental health care because the legislature intended to grant it broad discretion, not simply
by virtue of its status as an executive agency. See 47 Md. App. at 445–48. Tellingly, the
Supreme Court of Maryland recognized in In re Adoption/Guardianship of Dustin R., 445
Md. 536 (2015), that the holding of Linda G. was later abrogated by statute. CJP § 3-820
was amended to empower courts to “permit[ ] the court to name the type of facility but
generally bestow[ed] no authority on the court to specify a particular facility.” Dustin R.,
445 Md. at 580 n.17 (quoting Demetrius J., 321 Md. at 476). Thus, after the legislature
clarified that it intended to authorize courts to specify private facilities with greater
particularity, such orders came within the scope of judicial authority regardless of their
potential impact on local departments’ budgets.
In exercising the judicial power, courts frequently must order the executive branch
to take certain actions. We assume that virtually all such orders require the executive to
expend at least some resources. The Department has not pointed to legal authority that
convinces us that there is a general, free-standing limitation upon courts that prevents them
from ordering the executive to spend sums of money. Linda G. and Demetrius J. were
decided with reference to a statute completely apart from the provisions at issue in this
9 matter, and there is no indication that the legislature’s intent in enacting CJP § 3-820 has
any bearing upon them. Rather, here, we consider whether the juvenile court acted within
its authority pursuant to the relevant statutes governing permanency planning, as we do
below at Section II.
2. A juvenile court does not violate the separation of powers principle solely by ordering an agency of the executive branch to make a specific expenditure.
The Department contends, in the alternative, that the juvenile court’s order was
violative of separation of powers principles under the Maryland Declaration of Rights. The
Department is correct that courts may not intrude upon an administrative agency’s sole
discretion. However, it is the legislature’s prerogative to determine the boundaries of that
discretion.
In Linda G., our holding that the juvenile court exceeded its mandate rested in part
on separation of powers concerns:
What the juvenile court order in the instant case did was to invade the Executive department by directing the Secretary of DHMH to pay out monies for a purpose not funded by the Legislature nor requested by the Executive. Furthermore, the court intruded on the Legislative Branch by directing the funding of Linda’s private hospital confinement.
Thus, the juvenile court committed a “double play,” by impinging upon the powers of the Executive and the Legislative Branches. The “double play,” however, is a “double error.” The order directing the infringement is null and void inasmuch as the court was without the authority to enter it.
47 Md. App. at 452. The Department suggests that the June 13 order for it to pay for Amtrak
tickets and a hotel room implicated similar separation of powers concerns.
10 To the extent that our holding in Linda G. rested upon separation of powers
principles, 4 it does not apply here. In Linda G., we held that the juvenile court intruded
upon the role of the executive in the context of a case in which the court had stepped outside
of its statutory grant of jurisdiction. See Section II.1 of this opinion. As we discuss at length
below, there is no such issue here, as the juvenile court was within its statutory authority
to issue its June 13 order to the Department.
The Supreme Court in Dustin R. more directly addressed the separation of powers
concerns present in the case before us. DHMH argued that the juvenile court violated its
authority to direct “administration of its programs and budget by ordering services without
regard to the funds appropriated to pay for such services or [DHMH]’s regulations
governing the provision of such services[.]” Dustin R., 445 Md. at 578. The Court declined
to consider that argument, reasoning, “Absent any argument by DHMH that the statutes at
issue are unconstitutional or that the General Assembly improperly delegated authority to
the juvenile court, we discern no basis on which to conclude that the juvenile court violated
the separation of powers in this case, where it acted according to express statutory
authority.” Id. at 580. The Court further stated that “the issue is not whether the juvenile
court improperly exercised judicial power to the detriment of the executive branch, but
instead the issue is one of statutory interpretation, i.e., whether the General Assembly
delegated the authority to the juvenile court to act as it did in this case.” Id. at 579. We thus
4 We note, as the Supreme Court did in Dustin R., 445 Md. at 580 n.17, that our discussion of separation of powers principles in Linda G. was dicta. The core of our holding in Linda G. was that the juvenile court acted outside its statutory authority. See 47 Md. App. at 441–48. 11 perceive no issue of judicial intrusion on the executive’s prerogatives where the court acts
within its statutory authority. 5 And, as discussed below, the juvenile court acted within its
authority in this case in ordering North Carolina visitations at the Department’s expense as
part of the permanency plan. However, that merely establishes that the statute granted the
circuit court discretion to order the Department to act where necessary to facilitate the
permanency plan; we still must determine whether the court appropriately exercised that
discretion. We proceed to consider whether the court acted within the scope of its statutory
grant of authority in ordering the Department to pay for train tickets and a hotel room to
facilitate Mother’s visitation.
III. ALTHOUGH A JUVENILE COURT HAS DISCRETION UNDER CJP § 3-823 TO ORDER THE DEPARTMENT TO UNDERTAKE ACTIONS TO BENEFIT CHILDREN IN THE DEPARTMENT’S CARE, IN THIS CASE THE COURT ABUSED ITS DISCRETION BY SPECIFYING THE MANNER IN WHICH THE DEPARTMENT HAD TO ACT.
The Department contends that the juvenile court acted outside its statutory authority
by ordering it to pay for Mother’s travelling expenses, and, in support, points to its own
duty—imposed by statute and regulation—to determine how services are to be provided.
The appellees respond that the juvenile court is directed by statute to ensure that the
Department makes reasonable efforts towards reunification of minor children and their
5 The Department cites In re Roger S., 338 Md. 385 (1995); In re W.Y., 228 Md. App. 596 (2016); In re Nicholas B., 137 Md. App. 396 (2001); and In re Darius A., 47 Md. App. 232 (1980), as support for its argument that improper orders to a local department implicate separation of powers concerns. We note that each one of these cases rested upon a finding that the juvenile court acted outside of its statutory authority. We discuss In re Shirley B., 419 Md. 1 (2011), cited by the Department in support of the same, below. 12 parents. They argue that CJP § 3-802 empowers a juvenile court to direct the local
department to provide services “to the child, the child’s family, or the child’s caregiver,”
where the department is authorized by law and when necessary to advance and protect the
best interests of the minor child.
We do not agree with the Department’s proposition that a juvenile court
categorically must leave the details of permanency planning to a local department. Rather,
we hold that orders facilitating permanency planning are discretionary and, therefore, are
reviewed for abuse of discretion.
We reach that conclusion by interpretation of the statutes controlling the juvenile
court’s authority in CINA permanency planning. Here, as in all exercises of statutory
interpretation, our objective is to determine the legislature’s intent. Tidewater v. Mayor of
Havre de Grace, 337 Md. 338, 344 (1995). We first consider the plain language of the
statute, and its role in the broader statutory scheme; if we find that the plain text is
unambiguous, our analysis ends. See id. at 345; Gov’t Emps. Ins. Co. & GEICO v. Ins.
Com’r, 332 Md. 124, 132 (1993) (“When, in that scheme, two statutes, enacted at different
times and not referring to each other [ ] address the same subject, they must be read
together, i.e., interpreted with reference to one another, and harmonized, to the extent
possible, both with each other and with other provisions of the statutory scheme.” (cleaned
up)).
CJP § 3-803(b)(1)(i) grants juvenile courts jurisdiction over “[c]ustody, visitation,
support, and paternity of a child whom the court finds to be a CINA.” CJP § 3-802(c)(1)
13 circumscribes the court’s authority in exercising that jurisdiction, providing, “In all judicial
proceedings conducted in accordance with [Subtitle 8] . . . , the court may direct the local
department to provide services to a child, the child’s family, or the child’s caregiver to the
extent that the local department is authorized under State law.” The Department cites this
provision and various provisions of the Code of Maryland Regulations (COMAR) as
authority that it alone has discretion to determine how it shall provide services ordered by
the court. 6 However, these regulations merely specify the requirements governing how a
local department must develop a permanency plan for the court’s review; they are
altogether silent on the court’s authority to review or revise that plan. They establish, if
anything, that the Department must consider its own budgetary limitations, not that the
juvenile court’s power is restricted by those limitations. As such, we conclude nothing in
COMAR limits courts from directing the specifics of a permanency plan.
Further, we conclude that there is nothing in the statutes generally delegating
authority to the Department to administer its programs that purports to circumscribe
juvenile courts’ authority. For example, Maryland Code Annotated, Family Law Article
(“FL”) § 5-525, pertaining to out-of-home placement and foster care, provides the terms
under which “the [Social Services Administration] shall establish a program of out-of-
home placement for minor children[.]” Id. at (b)(1). Though it speaks to the standards the
Department must meet in making reasonable efforts to reunify families, subject to court
6 The Department directs our attention to COMAR 07.02.11.13(B)(11), 07.02.11.14(A), and 07.02.11.14 (B)(1).
14 determination, id. at (e)(1), FL § 5-525 is unhelpful in determining the boundaries of
judicial authority in the CINA context.
The plain text of CJP § 3-823 empowers a juvenile court to determine the
permanency plan and not merely to rule upon its adequacy. It is true that, as the Department
notes, local departments and their staff are responsible for much of the development of
permanency plans. However, the legislature has stated that final authority over the plan
rests with the juvenile court. CJP § 3-823 provides that “the court shall . . . [d]etermine the
child’s permanency plan[.]” Id. at (e)(1)–(e)(1)(i) (emphasis added). Where a plan has been
established, upon review, the court may “take necessary measures to protect the child” and
“[c]hange the permanency plan if a change in the permanency plan would be in the child’s
best interest[.]” Id. at (h)(2)(vi)–(vii). Taken together, CJP §§ 3-802(c)(1) and 3-823
empower the circuit court not merely to request that a local department make sufficient
efforts towards developing and facilitating a permanency plan, but also to direct what that
plan shall be. Consequently, under CJP § 3-802 a juvenile court may issue an order
directing the Department to act to facilitate the permanency plan. 7
Neither do we conclude that the juvenile court’s jurisdiction over child custody,
pursuant to CJP §§ 3-803(b) and 3-823(c)(2), becomes more limited when a local
department becomes involved. See Santo v. Santo, 448 Md. 620, 636–37 (2016) (“trial
courts have broad discretion in how they fashion relief in custody matters”); Gordon v.
7 Because we find that the court acted within its statutory authorization regarding transportation costs generally, we do not consider whether the juvenile court could have issued the June 13 order under color of common law parens patriae authority, as proposed by Mother. 15 Gordon, 174 Md. App. 583, 638 (2007). It is true that the Department is not a party to a
custody proceeding in its role providing services in CINA matters. However, absent
legislative intent to the contrary, we read CJP § 3-802(c)(1)’s grant of jurisdiction to
juvenile courts over custody of CINAs to include the same degree of discretion in issuing
orders that the court finds to be in the best interest of the child.
Thus, where the circuit court finds that the best interests of the child require a local
department to take certain action, the court has authority to issue an order to effectuate that
action. The Department argues that ordering a local department to expend funds or take
specific measures is inherently outside the boundaries of the court’s authority. We see no
support for such a bright-line rule in Subtitle 8, nor is it necessary to impose one insofar as
we are empowered to do so. The circuit court’s order that a child in need of assistance be
committed to a local department—crucially, on terms that the court considers
appropriate—is discretionary. See In re Yve S., 373 Md. 551, 574 (2003).
We are sensitive to the policy considerations that the Department invokes in support
of its argument. The Department’s need for broad discretion to protect child welfare, and
need to control its own budget, are compelling policy interests. However, we approach
statutory grants of authority as we would any other question of statutory interpretation. In
this regard we consider the legislature’s policy goals in interpreting the plain text of its
enacted statutes. See Johnson v. State, 467 Md. 362, 372 (2020) (“The plain language ‘must
be viewed within the context of the statutory scheme to which it belongs, considering the
purpose, aim or policy of the Legislature in enacting the statute.’” (quoting State v.
Johnson, 415 Md. 413, 421, 2 A.3d 368 (2010) (emphasis added))).
16 As K.P. notes, the legislature expressed its policy objectives for the CINA statutory
scheme: “the opening section of the CINA subtitle establishes that the juvenile court ‘may
direct the local department to provide services to a child, the child’s family, or the child’s
caregiver’ and further that the court ‘shall exercise [this] authority . . . to protect and
advance a child’s best interests.’” See CJP § 3-802(c)(1), (2) (West 2023). There is nothing
in the text of the statutory scheme suggesting that the legislature saw protecting local
departments from judicial intrusion as a primary policy goal. On the contrary, Subtitle 8
firmly places final authority to direct permanency planning in the hands of the juvenile
court. CJP § 3-816.1 and § 3-823 place juvenile courts in a supervisory role over local
departments in establishing and reviewing permanency plans.
The Department stresses that courts are directed to consider whether funds are
available in its determination of whether a local department took reasonable efforts towards
reunification. See In re Shirley B., 419 Md. at 26–27. While that is an accurate statement
of the law, it is an issue of the merits upon review of a juvenile court’s finding that a local
department failed to make reasonable efforts. Further, the Department’s budgetary
concerns would, perhaps, be an appropriate consideration in an abuse of discretion review
but that issue is not before us today. The sole issue the Department raised on appeal is
whether a juvenile court is prohibited from directing the Department to take specific
measures or expend specific funds as a matter of law. The Department did not challenge a
factual finding that it failed to put forth reasonable efforts to facilitate the permanency plan,
nor does it specifically argue that the circuit court abused its discretion apart from
exceeding its statutory authority.
17 To the extent that we need to consider whether the circuit court abused its discretion,
though, we do not conclude that the juvenile court abused its discretion in ordering the
Department pay costs incidental to Mother’s visitation. A court abuses its discretion where
it exercises discretion in a “manifestly unreasonable” manner, “or exercised [discretion] on
untenable grounds, or for untenable reasons.” Jenkins v. City of College Park, 379 Md.
142, 165 (2003) (emphasis omitted). An abuse of discretion occurs when the court’s
decision is “well removed from any center mark imagined by the reviewing court and
beyond the fringe of what that court deems minimally acceptable.” McLennan v. State, 418
Md. 335, 353–54 (2011) (quotation marks and citations omitted).
As discussed above, the juvenile court had discretion to issue orders facilitating the
reunification plan that are in the minor children’s best interest. Whether it was in the
children’s best interest for the Department to pay for Mother’s visitation was not at issue
at the June 9, 2023 review hearing. What was discussed was interpretation of the juvenile
court’s prior order. The juvenile court had already ordered on February 22, 2023 that “the
Department shall provide [Mother] monthly in-person visits in North Carolina.” The
parties disputed whether the Department and Mother had agreed that the Department would
pay for only two visits to North Carolina, or whether the Department’s agreement to pay
was open-ended. The court made no finding as to what the parties agreed but ruled that
“there was nothing in [the February 22] order that said the Department only paid for two
visits,” and that any agreement to limit the Department’s obligation to two visits, if such
agreement existed, was “inconsistent with [the court’s] order.” In any case, the court made
18 clear that determining the existence of an agreement between the parties to pay for more
than two visits was irrelevant to determining the meaning of the February 22 order. 8
As the Department had already assented without objection to providing Mother
monthly visitation out of its budget at the February hearing, the court merely reiterated that
order, and specified the manner of transportation and accommodation, on June 9. We
perceive nothing manifestly unreasonable or untenable in the order to pay Mother’s
transportation expenses. It was not “well removed from any center mark” that we might
imagine for the juvenile court to hold that the Department’s obligation to “provide” out-
of-state visitation, as specified in the February 22 order, included providing travel and a
hotel room. McLennan, 418 Md. at 353–54.
However, nothing in the facts presented to the juvenile court at the June 9 review
hearing suggested that it was in the minor children’s best interest that Mother’s visitation
had to be accomplished specifically by train, or that Mother must stay in a hotel while
visiting the minor children in North Carolina. As the Department mentioned at oral
argument, the price of Amtrak tickets might rise sharply, making it more practicable to
provide transportation by car or plane, or a hotel room might be less suitable than a motel
or staying with a relative. We observe that the Department paid for train tickets and a hotel
room to facilitate two of Mother’s visits to North Carolina prior to the June 9 hearing.
8 The Department appears to suggest that it is problematic the court took no testimony and received no evidence as to the agreement between the parties before issuing its ruling at the June 9 hearing. Even if the court were required to hold an evidentiary hearing as to the content of the parties’ agreement, here it merely clarified the scope of its own prior order without approaching any questions of fact regarding what the parties agreed to. 19 Presumably, at the June 9 hearing the court specified “Amtrak” and “hotel” simply because
the Department had made those accommodations in the past. But, significantly, for the
juvenile court to have acted within its discretion in this instance, it would have had to
establish a nexus between the best interests of the minor children and requiring the
Department pay for Amtrak tickets and a hotel room, specifically. Nothing in the record
suggests that those specific accommodations were necessary to serve the minor children’s
best interests.
Thus, we conclude that while the juvenile court acted within its discretion in
ordering the Department to facilitate Mother’s visitation, it abused its discretion by
imposing specific requirements for how the visitation was to occur. We therefore affirm
the June 13 order to the extent that it directed the Department to pay for Mother’s travel
expenses for monthly in-person visitation in North Carolina and vacate the order to the
extent that it specified that the visitation had to be accomplished by travel via Amtrak and
hotel accommodation.
THE JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY IS AFFIRMED IN PART AND VACATED IN PART. APPELLANT TO PAY THE COSTS.