IN RE: R.S.
No. 3205, September Term, 2018
IN THE COURT OF SPECIAL APPEALS OF MARYLAND
Filed: August 28, 2019
Opinion by Friedman, J.
Circuit Court for Worcester County, Case No. 23-I-16-000012, REPORTED
HEADNOTES:
Infants > Inter-jurisdictional placement > Interstate Compact on the Placement of Children > Statutory interpretation
The ICPC does not apply to a juvenile court’s out-of-state placement of a child with a noncustodial parent. The ICPC only applies to placements in “foster care or as preliminary to a possible adoption.”
Administrative Law and Procedure > Consistency with statute, statutory scheme, or legislative intent > Invalidation
Administrative regulations that contradict the terms of a governing statute exceed the agency’s authority and are void. Regulation promulgated by the Association of Administrators of the Interstate Compact on the Placement of Children purporting to expand the ICPC to placements with biological parents is invalid because the regulation contradicts the plain language of the ICPC showing that the ICPC only applies to foster care and adoptive placements, neither of which include parental placements.
Infants > Inter-jurisdictional placement > Interstate Compact on the Placement of Children > Constitutionality
Because of a parent’s fundamental right to parent a child as a matter of federal and state law, the ICPC cannot be used as the sole means to deny the placement of a child with an out-of-state parent. Instead, there must be a judicial determination, based on sufficient evidence, of parental unfitness before a juvenile court can deny an out-of-state parent custody of a child.
Fader, C.J.,
Friedman,
Zarnoch, Robert A.
(Senior Judge, Specially Assigned),
JJ.
OPINION
Only after R.S. and father took an initial appeal challenging the juvenile court’s reliance on the ICPC—an appeal that this Court dismissed as interlocutory—did WCDSS change its final recommendation
Because we hold that the ICPC does not apply to the juvenile court’s placement of a child with an out-of-state biological parent, we vacate the juvenile court’s final custody order and remand the matter for further proceedings.
BACKGROUND
In November 2016, WCDSS removed two-year-old R.S. from the care of her mother, placed the child in shelter care, and filed a petition with the juvenile court alleging R.S. was a CINA due to mother’s neglect. WCDSS informed the juvenile court that mother had identified T.S.,2 a resident of Delaware, as R.S.’s father, although it appeared she had never told him about the existence of the child. WCDSS notified father of the upcoming adjudicatory hearing.3
At the December 2016 adjudicatory hearing before a magistrate for juvenile causes,4 T.S. appeared.5 He informed the magistrate he had learning disabilities, so he had his father with him for assistance. WCDSS noted that T.S., while named a party in the case, had only just learned that R.S. might be his daughter. He was willing to take a paternity test, which the court ordered. The magistrate and all parties agreed that the court could adjudicate the petition allegations but should wait to complete the final disposition hearing until the paternity test results were received. The magistrate repeatedly pointed out that the CINA petition allegations “have nothing to do with [father,]” a point echoed by WCDSS. After sustaining the petition allegations concerning mother’s neglect of R.S., the magistrate emphasized that “if, in fact, [T.S.] is determined to be the father of [R.S.] then of course he is a party of the case and has all of the rights and responsibilities, at least according to the Court and state, that a biological parent has.”
At a disposition hearing in January 2017, the juvenile court found T.S. to be R.S.’s biological father after receiving the paternity test results. The court ordered WCDSS to provide father substance abuse and psychological evaluations, as well as parenting classes. The court also ordered a homestudy to be completed for the paternal grandparents’ home and directed WCDSS to conduct a family involvement meeting with the parties. The court granted father supervised visits with R.S. and indicated the visits could be unmonitored once father demonstrated his ability to care for R.S. The court continued the disposition hearing to give father a chance to
In its report for the continued March 2017 disposition hearing, WCDSS indicated that father had attended every scheduled weekly visit with R.S., who was slowly adjusting to her new relationship with him. WCDSS noted that father willingly accepted guidance and direction to improve his interactions with R.S. He successfully completed mental health and substance abuse evaluations and was not told he needed any treatment. He also maintained stable, appropriate housing and employment. WCDSS further reported that father and the paternal grandparents agreed during a January 2017 family involvement meeting to undergo an ICPC7 homestudy so that R.S. could be placed with them in Delaware.8 A court order was needed to expedite the homestudy. WCDSS asked the court to continue the disposition hearing so the ICPC process could be completed.
At the hearing, R.S.’s counsel argued that R.S. was not a CINA because the petition allegations only concerned mother’s neglect of R.S. and the evidence showed father was willing and able to care for the child. As a result, counsel asked the magistrate to dismiss the case and place R.S. in father’s care pursuant to
In a June 2017 report, WCDSS reported that father was having weekly unsupervised visits with R.S. and completing a parenting course with WCDSS. He had never missed a visit with R.S., who now accepted him as her father. R.S. told father she loved him, gave him kisses, and wanted to talk with him on the telephone. R.S. was also staying overnight with father on the weekends at the paternal grandparents’ home, where father lived. The Delaware social worker who was completing the ICPC homestudy informed WCDSS, however, that she would be denying father as a placement option. The social worker was concerned about father’s “memory loss,” noting that he sometimes forgot to follow up with her. She opined this “disability” would impede him in following through with appointments for R.S. The Delaware social worker concluded the paternal grandparents, instead, would be an appropriate placement and was working on completing their homestudy. As a result, WCDSS recommended that the court adopt a plan of relative placement with the paternal grandparents and order reunification services for the parents.
At the June 2017 final disposition hearing, R.S.’s counsel repeated that father was entitled to custody of R.S. under
In August 2017, WCDSS reported that it was providing reunification services to mother and the paternal grandparents; no mention was made of reunification services for father. R.S.’s 28-day-long visits in the paternal family home were going well. WCDSS observed that R.S. was particularly happy on these extended visits to see father, whom she called “’daddy.’” WCDSS recommended that R.S.’s permanency plan be relative placement with the paternal grandparents pending final ICPC approval from Delaware.
At a November 2017 review hearing, WCDSS informed the magistrate that it was still awaiting final ICPC approval from Delaware for placement of R.S. with the paternal grandparents. WCDSS’s report again noted that father had “complied with all that has been asked of him.” R.S.’s counsel repeated that father should be granted custody of R.S. and that the ICPC did not apply to the placement of R.S. with father. Father also asserted that he was “ready, willing, and able to care for” R.S. The magistrate acknowledged that the case was “a little dicey when it comes to” father because he was fully compliant with all the court orders. The magistrate, however, noted that father “got into the case a bit late” because his biological paternity was not established when the case began. The magistrate continued the matter for receipt of the final ICPC report.
After receiving final ICPC approval from Delaware, WCDSS asked the magistrate at a December 2017 hearing to grant the paternal grandparents custody of R.S. and to retain jurisdiction over the child until Delaware recommended closing the case. Father and the paternal grandfather testified that father was fit and able to care for R.S. R.S.’s counsel repeated that the ICPC should not have been applied to father and raised constitutional objections. The magistrate again pointed out that R.S. had been “adjudicated CINA” in December 2016 before father’s paternity was established, and the court could not “backtrack” on that finding. The magistrate recognized that after the adjudication, “investigatory services”12 were used to see “if there is a fit parent out there.” But the magistrate emphasized that father had not appealed the denial of his ICPC homestudy in Delaware and that the magistrate could not “overrule” Delaware’s conclusion. The magistrate indicated she might “agree” as to father’s fitness but noted that R.S. had already been deemed a CINA. The magistrate recommended that R.S. be placed with the paternal grandparents, found that father had made “excellent” progress, and recommended he receive daily unsupervised contact with R.S. as often as possible.
Father and R.S. filed exceptions to the magistrate’s recommendation that custody of R.S. be given to the paternal grandparents, asserting that the ICPC should not have been applied to deny father custody of R.S. After a February 2018 hearing, the juvenile court denied the exceptions and adopted the magistrate’s findings and recommendations in full. The juvenile court concluded that R.S. and father waived any objection to the application of the ICPC in the case by not taking exceptions to the magistrate’s earlier recommendation ordering an ICPC homestudy. In addition, the juvenile court found that the ICPC applies to the placement of a child with an out-of-state parent. The court concluded the ICPC was the only avenue for WCDSS
Father and R.S. appealed the juvenile court’s order denying their exceptions, but on January 14, 2019, this Court dismissed the appeal because it was an impermissible interlocutory appeal.13 In re R.S., No. 33, Sept. Term 2018, Slip Op. at 1-4 (filed Jan. 14, 2019) (“R.S. I”).14
Upon remand, the juvenile court held a final review hearing on January 24, 2019. WCDSS’s report for the hearing recommended that the court grant custody of R.S. to the paternal grandparents based, in part, on observations of the Delaware social worker—the worker who had denied father’s ICPC homestudy—that R.S. was thriving in their care. While not changing her ICPC assessment, the Delaware social worker acknowledged that “’[R.S.] and her father have an inseparable bond.’” At the hearing, WCDSS orally amended its recommendation and asked the court to grant father and the paternal grandparents joint custody of R.S. R.S.’s counsel objected.
A WCDSS social worker testified that father and the paternal grandparents wanted to be granted joint custody of R.S. She testified that she had never seen any evidence that father was unfit or that he should not have sole custody of R.S. Father testified that he preferred sharing custody of R.S. with his parents because he needed their support raising her. But he testified his parents would still help him care for R.S. if he were granted sole custody of the child. The paternal grandfather testified that father was fit and proper and that he would have no problem with father being granted sole custody of R.S.
In issuing the requested order of joint custody, the juvenile court found father fit and proper and said it was confident father could care for R.S. if granted sole custody of the child. The court, however, said that it did not understand why R.S.’s counsel objected to the joint custody arrangement because the child “doesn’t care about” and “isn’t affected by the legal status of the people in her life.” R.S., through counsel, timely appealed the juvenile court’s custody order.
DISCUSSION
R.S. asks us to determine whether the ICPC applies to a juvenile court’s out-of-state placement of a child with a noncustodial parent, particularly a parent who has not been found to have abused or neglected the child. This is a matter of first impression in Maryland and an area of significant disagreement among the states that have addressed it. For the reasons discussed below, we hold that the ICPC does not apply to parental placements at all.15 While we conclude that the
I. MOOTNESS AND WAIVER
We must first dispel the mootness and waiver arguments pressed by WCDSS. WCDSS argues that the issue of whether the ICPC was incorrectly applied to deny placement of R.S. with father is now moot because, at father’s request, the juvenile court granted him joint custody of R.S. with the paternal grandparents and terminated the CINA proceeding. “A case is moot when there is no longer an existing controversy when the case comes before the Court or when there is no longer an effective remedy the Court could grant.” Suter v. Stuckey, 402 Md. 211, 219 (2007). We conclude, however, that there continues to be an existing controversy about the proper terms of the final custody order and that the matter, therefore, is not moot.
In particular, R.S.’s counsel, acting in the child’s best interest, has consistently taken the position that father should have been granted sole custody of R.S., a request she repeated at the January 24, 2019 final review hearing. R.S.’s requests that her father receive sole custody of her under
To be sure, at the January 24, 2019 hearing WCDSS backtracked from its position that father was not entitled to custody of R.S. at all, seemingly because of its concession before this Court in the prior appeal that Delaware’s views on father’s fitness should not be afforded dispositive weight in a Maryland proceeding.16 R.S. I at 1 n.3. But WCDSS continued to recommend that the paternal grandparents be granted custody of R.S., as well, based on the views of the same Delaware social worker who had denied father’s ICPC homestudy. That is, father was never seriously considered by WCDSS (or the juvenile court) as deserving sole custody of R.S.
Stated differently, we agree with R.S. that the recommendation of joint custody with the paternal grandparents likely would have never been on the table at the January 24, 2019 review hearing but for the juvenile court’s application of the ICPC to R.S.’s possible placement with father earlier in the case. See In re Joseph N., 407 Md. 278, 304 (2009) (“This 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.”). WCDSS claims there is no causal link between the ICPC homestudy ordered on father and the ultimate joint custody award by emphasizing that father chose joint custody at the final review hearing, consistent with his “fundamental right” as a parent “to make decisions concerning the care, custody, and control” of R.S. Troxel v. Granville, 530 U.S. 57, 66 (2000) (emphasis added). But from our view, this was a false choice given that WCDSS never accorded father’s fitness due consideration by recommending that he was entitled to sole custody of R.S. unless, as a fit parent, he alone preferred a different arrangement. Thus, we are not persuaded that father’s “request” for joint custody at the final review hearing undermines a conclusion that there remains an existing controversy between the parties.17
Finally, we reject WCDSS’s assertion that R.S. waived her right to challenge on appeal the juvenile court’s application of the ICPC to her requests for placement with her father. WCDSS suggests R.S. waived this issue because she failed to notice appeals from the initial permanency plan order, the dispositional order declaring her a CINA, or the order directing the ICPC homestudy of father. But WCDSS does not dispute that these earlier orders were interlocutory in nature. See In re Katerine L., 220 Md. App. 426, 437-40 (2014) (recognizing that many orders in CINA proceedings—proceedings that often span years and involve ongoing intervention by the court, including the revisiting of earlier orders—will not meet the conventional definition of a final judgment). Thus, as WCDSS conceded at oral argument, while R.S. may have had the right to appeal some or all of these orders under
Accordingly, we now turn to the question of whether the ICPC controls the juvenile court’s out-of-state placement of a child with a noncustodial parent.
II. APPLICATION OF THE ICPC TO OUT-OF-STATE PLACEMENTS WITH PARENTS
A. The Statutory Language
R.S. argues that, contrary to the juvenile court’s conclusion, the plain text of the ICPC shows that it does not apply to the out-of-state placement of a child with a parent because placement with a natural parent is never a “placement in foster care or as preliminary to a possible adoption.”
We review questions of statutory interpretation without deference to the lower court. Johnson v. State, 240 Md. App. 200, 205 (2019), cert. granted, 436 Md. 550 (2019). In interpreting a statute, “we begin with the normal, plain meaning” of the statutory language. Lockshin v. Semsker, 412 Md. 257, 275 (2010). “If the language of the statute is unambiguous and clearly consistent with the statute’s apparent purpose, we apply the statute as written.” Harrison-Solomon v. State, 442 Md. 254, 265 (2015) (cleaned up); see also Arundel Corp. v. Marie, 383 Md. 489, 502 (2004) (“If there is no ambiguity in that language, either inherently or by reference to other relevant laws or circumstances, the inquiry as to legislative intent ends[.]”). But “[e]ven in instances when the language is unambiguous, it is useful to review legislative history of the statute to confirm that interpretation and to eliminate another version of legislative intent alleged to be latent in the language.” Blackstone v. Sharma, 461 Md. 87, 113 (2018) (cleaned up); see also Lockshin, 412 Md. at 276 (“[T]he 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.”). This Court also “may and often must consider other external manifestations or persuasive evidence … to ascertain the legislative purpose behind a statute.” Blackstone, 431 Md. at 113-114 (cleaned up).
An interstate compact like the ICPC is an agreement between states “entered into for the purpose of dealing with a problem that transcends state lines.” In re Adoption No. 10087 in Cir. Ct. for Montgomery Cnty., 324 Md. 394, 403 (1991) (cleaned up). Such compacts have “characteristics of both statutory law and contractual agreements” and “are enacted by state legislatures that adopt reciprocal laws that substantively mirror one another.” In re Alexis O., 157 N.H. 781, 784 (2008) (cleaned up). “The ICPC has been enacted in all fifty states, the District of Columbia and the U.S. Virgin Islands.” In re C.B., 188 Cal. App. 4th 1024, 1031 (2010) (cleaned up). The purpose of the ICPC is to “facilitat[e] interstate adoption and increas[e] the number of acceptable homes for children in need of placement.” In re Adoption/Guardianship No. 3598, 347 Md. 295, 314 (1997); see also
Section 5-604 of the Family Law Article sets forth Maryland’s ICPC19 procedure for sending a child into another state.
Certain key terms in section 5-604 are specifically defined in section 5-603 of the Family Law Article.
The ICPC does not define the terms “foster care” or “adoption.” See, e.g.,
To be sure, we can see how the definition of “placement” in the ICPC, standing alone, is somewhat unclear, with its reference to a “family free” home.
In addition, we agree with R.S. that a placement with a parent is not a “placement in foster care.”
Accordingly, we join those states who have held that the ICPC does not apply to the out-of-state placement of a child with a biological parent.20 See, e.g., In Interest of C.R.-A.A., 521 S.W.3d 893, 903 (Tex. App. 2017) (“plain language” of ICPC shows “it is inapplicable to an interstate placement of a child with a parent“); In re S.R.C.-Q., 52 Kan. App. 2d 454, 464 (2016) (same); In re D.B., 43 N.E.3d 599, 604 (Ind. Ct. App. 2015) (“[T]he statute quite plainly provides that it applies only to placement in foster care or a preadoptive home. A biological parent is neither of these.“); In re Emoni W., 305 Conn. 723, 734-35 (2012) (“Children in the care of their own parents are not in ‘foster care’ in any ordinary sense of that phrase, and parents are not required to adopt their own children.“); In re Dependency of D.F.-M., 157 Wash. App. 179, 191 (2010) (same); In re Alexis O., 157 N.H. at 787-788 (“unambiguous” language of ICPC shows it “does not apply to care for a child by his or her natural parent“); In re Rholetter, 162 N.C. App. 653, 664 (2004)
While WCDSS presents no direct argument about the plain meaning22 of the statutory language found in
We agree, however, with R.S. that Regulation No. 3 is not valid because it purports to impermissibly expand the scope of the ICPC beyond the scope given by the General Assembly. It is well established in Maryland that courts will not “give effect to agency regulations that are inconsistent with or conflict with the statute the regulations are intended to implement.” McClanahan v. Wash. Cnty. Dep‘t of Soc. Servs., 445 Md. 691, 708 (2015) (cleaned up). In such circumstances the regulations “must yield to the statute.” Dep‘t of Human Res., Balt. City Dep‘t of Soc. Servs. v. Hayward, 426 Md. 638, 658 (2012); see also id. at 661 (concluding regulation conflicted with statute by “expanding the number of categories” of findings the department could make following a child abuse investigation) (emphasis added). In light of our conclusion that the plain language of the ICPC demonstrates that it only applies to foster care and preadoptive placements, neither of which include placements with natural parents, we hold that Regulation No. 3 is invalid to the extent it purports to expand application of the ICPC to out-of-state placements with a parent.24 See, e.g., McComb v. Wambaugh, 934 F.2d 474, 481 (3d Cir. 1991) (influential case invalidating prior version of Regulation No. 3 for same reasons); In Interest of C.R.-A.A., 521 S.W.3d at 904 (listing states that have rejected application of the ICPC to parents and noting that “these courts reasoned—at least in part—that the plain language of Article III [FL § 5-604 in Maryland] precluded application of the ICPC in parental situations and Regulation 3 is inapplicable because it is contrary to the unambiguous, plain language of Article III“).
Finally, our conclusion that the plain language of the ICPC shows it does not apply to parental placements is further bolstered by Maryland‘s consistent pronouncement that “a parent‘s interest in raising a child is a fundamental right” under federal and state law. In re Billy W., 386 Md. 675, 683-84 (2005). Indeed, the Court of Appeals has stressed that “[s]uch rights are so fundamental that they cannot be taken away unless clearly justified.” Id. at 684 (cleaned up). Even in the CINA context, there remains a strong presumption that a child‘s best interests are served by placement with a parent. In re Yve S., 373 Md. at 572; see also
But if the ICPC were broadly interpreted to apply to parents, a parent‘s custodial rights could be taken away without a court ever finding that the parent is unfit. Specifically, the ICPC expressly mandates that the sending agency—in this case, the juvenile court—cannot send the child into the receiving state without the “appropriate public authorities” in the receiving state concluding that the placement is not “contrary to the interests of the child.”
agency caseworkers have the power to effectively terminate the parent‘s relationship with the child by finding that the placement would be contrary to the child‘s interest, a wholly subjective standard. The ICPC denies courts the ability to make the ultimate decision, and the parent is not given an adequate opportunity to appeal25 the caseworker‘s determination in either an administrative or judicial proceeding.
Vivek S. Sankaran, Out of State and Out of Luck: The Treatment of Non-Custodial Parents Under the Interstate Compact on the Placement of Children, 25 YALE L. & POL‘Y REV. 63, 80 (Fall 2006). We cannot countenance a system that allows a single social worker (even a well-intentioned social worker) the power to take a child from a fit parent without any judicial oversight.
Such a result, however, would logically flow from a broad application of the current version of the ICPC to placements with parents. Indeed, the ICPC‘s terms provide no express authority for a court to reject a negative ICPC homestudy even if the court concludes the evidence shows the out-of-state parent to be fit.26 See
[C]ourts, not administrative agencies or individual social workers, are the ultimate evaluators of a parent‘s ability to care for his child, and the ultimate decision-makers as to whether placement with a fit parent is in the child‘s best interests. Yet under regulation 3, when a fit parent is available but an ICPC home
study is negative, all discretion is transferred to an administrative agency in the sister state. If the court determines the parent is fit, the ICPC may become an obstacle to the court‘s ability to act in the best interests of the child.
In re Dependency of D.F.-M., 157 Wash. App. at 192–93.27
Such a system would violate our constitutional responsibility to safeguard parents’ fundamental right to raise their children. The need to avoid that result further confirms our determination that the plain language of the ICPC cannot be stretched to apply to parental placements.
B. The Juvenile Court‘s Application of the ICPC to R.S.‘s Requests for Placement with Father
Notwithstanding our statutory holding, our concern about the application of the ICPC in this case—including certain positions WCDSS advanced for why the ICPC had to be used here—merits further discussion.
1. Finding as to Father‘s Fitness
As explained in Section II.A, we are particularly troubled that applying the ICPC to parental placements can result in a parent being deprived of custody of a child without a judicial finding that the parent is unfit. That is just what happened here. Indeed, our review of the record shows that the juvenile court never found father to be unfit28 at any stage of the CINA proceeding. Nonetheless, the juvenile court (and WCDSS) began treating father as if he were unfit early in the case, and this mistreatment was then exacerbated by the misapplication of the ICPC to R.S.‘s and father‘s requests that R.S. be placed with father.
To fully illustrate our point, we start at the adjudicatory hearing. At that hearing—when father‘s paternity was not definitively established and he was not represented by counsel—the magistrate proceeded to adjudicate the petition allegations, apparently believing that course was appropriate because the allegations (as then conceded by WCDSS) “ha[d] nothing to do with [father].” We recognize that, at that time, neither the juvenile court nor WCDSS had the benefit of our recent decision in In re E.R., 239 Md. App. 334 (2018). There, we addressed what factual allegations a “local department of social services must plead in a CINA petition when it believes that a child‘s custodial parent is unable to care for the child, but lacks sufficient information regarding the capability of the noncustodial parent.” Id. at 336. While acknowledging that a social services department cannot always wait to investigate a noncustodial parent before removing a child from a dangerous situation with a custodial parent, we held that the department must plead “some facts to support its claim that the noncustodial parent is unable or unwilling
Nonetheless, proceeding on the deficient petition would not have been problematic if the juvenile court had then afforded father, as a party to the case, “all of the rights ... that a biological parent has[,]” as the magistrate said she would once T.S.‘s paternity was conclusively established. See id. at 342-44 (holding juvenile court did not err in proceeding on deficient CINA petition when it transferred custody of children neglected by their mother to noncustodial fathers under
In making such comments, the magistrate (and, in turn, the juvenile court) appears to have confused the court‘s roles during the adjudicatory and disposition phases of the case. During the adjudicatory hearing, the juvenile court determines “whether the allegations in the petition, other than the allegation that the child requires the court‘s intervention, are true.”
Consequently, the juvenile court was required during the dispositional phase of the case to make a finding that
As discussed in Section II.A, we recognize that the juvenile court‘s deference to the Delaware social worker‘s conclusion would have been appropriate if the ICPC did, in fact, apply to parental placements. But this case presents a prime example of why it cannot. Maryland is not and should not be in the business of keeping children out of the homes of their fit parents. The ICPC should not be used to achieve that result when a juvenile court has never found (and the evidence does not support) that a willing parent is otherwise unable to care for a child.
2. The Need to Investigate Father
Highlighting that a primary goal of the CINA Subtitle is to protect children who fall under its provisions,
Second, while we can appreciate the difficulties that might arise when attempting to investigate a parent who lives across the country, the assertion that the fitness of father in this case was impossible for WCDSS to evaluate without the ICPC is belied by the record. Throughout the case, father lived just over the Maryland state line in Delaware and regularly made himself available to WCDSS. WCDSS reported that father “willingly presented himself as a resource” for R.S. as soon as his paternity was established, entered into a services agreement with WCDSS, underwent psychological and substance abuse evaluations at WCDSS‘s request, completed a parenting course with a WCDSS social worker, and maintained stable housing and employment. A WCDSS social worker also participated in many of father‘s monitored visits with R.S. By the final disposition hearing, WCDSS reported that father and R.S. were having successful overnight weekend visits in father‘s home and that R.S. accepted T.S. as her father, loved him, gave him kisses, and asked to speak with him on the telephone. This wealth of information supporting father‘s fitness and ability to care for R.S. was all developed independently of the ICPC. Again, we are mindful that WCDSS will not always be dealing with such a willing and accessible out-of-state noncustodial parent. We, however, think it disingenuous for WCDSS to assert that the ICPC was the “only mechanism to enable [the] court to act in R.S.‘s best interests” on the facts of this case.
3. Father‘s Relationship with R.S.
Finally, WCDSS repeatedly emphasizes that father had no relationship with R.S. at the outset of the case when justifying the application of the ICPC to R.S.‘s possible placement in his care. When invoking the ICPC, the juvenile court also commented (or agreed with WCDSS) that it should not have had to immediately hand off R.S. to a father she hardly knew. WCDSS seems to contend that the ICPC, despite its plain language, should at least be interpreted as applying to out-of-state parents who lack an extensive relationship with their children. But we will not engage in such a forced interpretation of the ICPC, especially because WCDSS provides no clear legal authority for its implied assertion that, in Maryland CINA proceedings, the
Instead, the CINA Subtitle is clear—a parent is defined as “a natural or adoptive parent whose parental rights have not been terminated.”
In emphasizing this point, we take no position on whether a lack of relationship might, in some circumstances, necessitate an allegation and ultimate finding that a natural parent is “unable” to care for a child.
For at least three reasons, we also refuse to read into the record an implied judicial finding that father‘s lack of relationship with R.S. at the case‘s inception showed he was unable to care for her. First, the magistrate and WCDSS explicitly acknowledged at the adjudicatory hearing that the petition allegations “have nothing to do with [father].” Second, the magistrate expressly stated at the final disposition hearing that she was not making any finding concerning father‘s ability
CONCLUSION
In conclusion, we hold that the ICPC does not apply to the out-of-state placement of a child with a biological parent. Until the Maryland General Assembly says otherwise, we will not “add [to or] delete language” in the current ICPC “to reflect an intent not evidenced in the plain and unambiguous language of the statute,” and we also will not “construe [the ICPC] with forced or subtle interpretations” that expand its application.34 Lockshin, 412 Md. at 275 (cleaned up); see In re C.B., 188 Cal. App. 4th at 1027 (suggesting a “multistate legislative response” may be warranted to address the lack of uniformity on this ICPC issue).
We turn next to the appropriate remedy here. R.S. asks us to reverse the final custody order granting the paternal grandparents
But as is the case in many CINA appeals, we are unable to fully “turn back the clock,” In re O.P., 240 Md. App. 518, 553-54 (2019), cert. granted, No. 76, Sept. Term 2019 (July 12, 2019), and we will not disregard the evidence in the record suggesting that, as of January 2019, father preferred to share custody of R.S. with his parents. As the record stands, we are uncertain whether that is really father‘s preference or whether father‘s stated willingness to share custody was the product of the errors that led to that point. Accordingly, we direct the juvenile court to vacate its disposition order declaring R.S. to be a CINA, as well as its final order granting joint custody of R.S. to father and the paternal grandparents. In lieu of immediately granting sole custody of R.S. to father pursuant to
JUDGMENT OF THE CIRCUIT COURT FOR WORCESTER COUNTY VACATED AND MATTER REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY APPELLEE.