MD appellate court faults presumption that mother who left town was

A juvenile court could not award custody of a 12-year-old child to her father in Alaska without first sustaining the neglect allegations asserted against the mother in a Child in Need of Assistance petition, the Court of Special Appeals has held. The decision vacates a February 2005 order of the Baltimore County Circuit Court, which dismissed the CINA petition regarding the girl and awarded custody to her father, John R. The child, Sophie S., was brought to the attention of the Baltimore County Department of Social Services after she and her older half-brother were allegedly abandoned by their mother, Lisa R.For the purpose of its decision in the instant case, the juvenile court presumed that Lisa was unfit and thus unable to care for Sophie, and that John was a fit and proper person to assume her care and custody, Judge J. Frederick Sharer wrote for the court. According to the opinion, the CINA petition was filed after Lisa R. moved from Baltimore County to Richmond, Va. When she moved, she left Sophie with the family of a school friend. Lisa's teen-age son, Danny R., was left alone in a home with no furnishings, food or money.John S., then the non- custodial parent of Sophie, filed a complaint for change of custody. At the February 2005 CINA hearing, the juvenile court decided the best course of action was to dismiss the CINA petition and to give custody of Sophie to her father.But in doing so, the juvenile court skipped a step, according to the Court of Special Appeals.Lisa always denied the allegations of the petition and was prepared to defend, Sharer wrote last week. Sophie apparently wished to remain with the friend's family and was prepared to testify that the neglect allegations were untrue, the court noted.SustainedIn a 1996 case, In re: Russell G., the Court of Special Appeals held that a juvenile court could not adjudicate a child CINA if there was one parent willing and able to provide care, last week's opinion notes.As a result of that case, the General Assembly amended Section 3-819 of the Courts and Judicial Proceedings Article to provide that if allegations in a CINA petition are sustained against only one parent and there is another parent available, a court may not find the child a CINA but may award custody to the other parent before dismissing the case.Central to our inquiry is the phrase 'if the allegations in the petition are sustained against only one parent[,]' Sharer wrote. [I]t is clear that in a particular circumstance a juvenile court may award custody to a parent against whom allegations have not been sustained, he added. The court, however, must find that the allegations have been sustained as to the other parent.The issue was actually moot in this case, as John's separate custody action regarding Sophie had resulted in a custody award to him in October 2005. But the appellate court felt that the matter was likely to recur and was of sufficient public concern to address it.The issue, Sharer noted, touched on such critical points as relationships between citizens and government, the rights of natural parents, and the best interests of allegedly neglected children.Counsel for the parties did not return telephone calls for comment. WHAT THE COURT HELDCase:In Re: Sophie S., CSA No. 203, Sept. Term 2005. Reported. Opinion by Sharer, J. Filed February 2, 2006.Issue:Did a juvenile court err in dismissing a CINA petition and awarding custody of the child to her father where the allegations of neglect on the part of the mother in the CINA petition had never been sustained? Holding:Yes; order vacated. A juvenile court may award custody to a parent against whom allegations have not been sustained, and dismiss a CINA petition without having made a CINA adjudication. But to do so, the court must first find that the allegations have been sustained as to the other parent.Counsel:William E. Nolan for appellant; C.J. Messerschmidt for appellee.

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