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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2634 SEPTEMBER TERM, 2009

IN RE: ALIJAH Q.

Hollander, Wright, Raker, Irma S. (Retired, specially assigned)

JJ.

Opinion by Hollander, J.

Filed: October 27, 2010

In December 2008, the Prince George's County Department of Social Services (the "Department" or "DSS"), appellee, alleged that Alijah Q., appellee, the son of Lisa Q., appellant, and Antoine A.,1 was a Child in Need of Assistance ("CINA"). Following a hearing in February 2009, Alijah was declared a CINA, and placed in the care and custody of his father. After a review hearing in May 2009, the juvenile master recommended that Alijah remain in Mr. A.'s care, with supervised visitation granted to appellant, and that the court terminate its jurisdiction. Unhappy with that recommendation, appellant noted her exceptions. The Circuit Court for Prince George's County held a de novo exceptions hearing on October 23, 2009, and overruled Ms. Q.'s exceptions on December 23, 2009. This appeal followed. Appellant presents two questions, which we quote: I. Did the court err in discharging the mother's counsel [at the exceptions hearing] without first obtaining a valid waiver of her right to counsel? II. Did the court err in denying the mother custody and unsupervised visitation? For the reasons set forth below, we shall vacate and remand for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND Alijah was born on December 14, 2007. On December 17, 2008, DSS filed a CINA petition alleging, inter alia, that Ms. Q. had a history of drug use; that Alijah was born exposed to drugs; that Ms. Q. had been absent from the family home; and that both parents had exposed Alijah to domestic violence. At a preliminary proceeding on January 14, 2009, both parents were advised of their rights, including the right to counsel. Both requested legal representation by the Office of
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Mr. A. participated in the CINA proceedings but has not participated in this appeal.

the Public Defender. In preparation for a CINA hearing on February 10, 2009, DSS submitted a report dated February 3, 2009. It alleged, inter alia, that Ms. Q. had not yet entered an inpatient treatment program;2 that Ms. Q. admitted to smoking crack cocaine on Christmas Day; that domestic violence between Ms. Q. and Mr. A. continued to be a problem; that Ms. Q. "reported that if Mr. [A.] obtains care and custody of Alijah, then she would leave Alijah"; and that she "threatened the Agency . . . stating that if the Agency does not intervene with the ongoing domestic violence within the home, then she would drop Alijah off at the Department." Further, the report stated: Ms. Q. reported to the Agency that she felt as though the petition was being prejudice [sic] against her. She stated "Mr. [A.] treats me in a demeaning way. He is a master of manipulation." Ms. [Q.] remains vague in her description of Mr. [A.]'s behavior. She acknowledges that he is a good father and provides for his child. At the hearing on February 10, 2009, Ms. Q. was represented by the Office of the Public Defender; Mr. A. proceeded without legal counsel. Evidence and proffers were presented to the master. Thereafter, the circuit court issued an "Adjudication And Disposition Hearing Order," dated March 5, 2009. It found that the allegations in the CINA petition, as amended, had

The report also provided information relating to Ms. Q.'s previous treatment programs. It said: A service plan was implemented, which stated that Ms. [Q.] will enter and complete a 28 day program at Mountain Manor. It also indicated that Ms. [Q.] would enter a long term inpatient program after completing the program at Mountain Manor. She entered Second Genesis on November 17, 2008 and left on November 27, 2008.
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been proven by a preponderance of the evidence, and that Alijah was a CINA. Further, the court ordered that Alijah remain in the custody of Mr. A., under the protective supervision of DSS. However, it also stated that the child could be placed with Ms. Q. in an inpatient substance abuse program, or, if she were not to pursue such a program, then she "shall" be granted "liberal" visitation. In addition, the court ordered DSS to provide referrals for various services,3 and ordered the parties to enter into a service agreement. On March 31, 2009, Ms. Q. filed a "Motion for Immediate Hearing on Visitation," which she amended on April 7, 2009. At an emergency review hearing before the master on April 20, 2009, DSS presented a report discussing visitation. It said, in part: Ms. [Q.] expressed concerns of not being able to see her son on a regular basis. Ms. [Q.] reported that when she visited her son, he began to cry hysterically, bite and scratch himself. She also reported that when she picked him up, he turned away from her. . . . Worker offered to pick Alijah up and bring him to the office, as deemed necessary for the well-being of the child. Worker does not have a telephone number or address of Ms. [Q.]; therefore, the arrangement/visitation has been difficult to plan. It has been reported that Ms. [Q.] visits the home of Mr. [A.] to visit her son. The visits do not appear to be conducive to the welfare of the child. During one visit, it was reported that Ms. [Q.] became hostile toward Mr. [A.] in the presence of her son Alijah. Ms. [Q.] reported that she only kicked the door. Worker was on the phone and overheard Ms. [Q.] in the background kicking and screaming. Mr. [A.] acknowledged that he went to his neighbor's home and later went to sit in his car until Ms. [Q.] calmed down.

The services included a "[d]evelopmental assessment" for Alijah; [i]n patient substance abuse treatment" for Ms. Q.; "[m]edication management" for Ms. Q.; and a "[d]omestic violence lethality assessment for both parents." The court also ordered Mr. A. to submit to a paternity test. The results of that test indicated a 99.94% probability of paternity. The court subsequently found Mr. A. to be Alijah's father.
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In an "Emergency Review Hearing Order" dated May 8, 2009, the circuit court ordered liberal, supervised visitation for Ms. Q. In addition, the court again ordered a "[d]evelopmental assessment" for Alijah and various services for Ms. Q. At a permanency plan review hearing before the master on May 11, 2009, appellant did not appear. However, her attorney was present. Mr. A. submitted documentation of his completion of a domestic violence intervention program. DSS submitted a report dated April 24, 2009, stating, in part: "It was agreed that Ms. [Q.] would enter into Crownsville on several occasions. To date, she has refused to enter into treatment." In addition, the report noted that Ms. Q. had not participated in any of the supervised visits with Alijah scheduled by DSS. Moreover, the Department documented that Alijah was doing well in his father's care, and recommended that Mr. A. be granted sole custody of Alijah, with liberal and supervised visitation awarded to Ms. Q. Because DSS was of the view that there no longer existed child welfare issues requiring the continued involvement of DSS or the juvenile court, it asked the court to close the case. In a "Review Hearing Order" dated May 12, 2009, the master found: Respondent . . . has remained in the custody of his father, [Mr. A.], during this review period. The Department has retained protective supervision. Alijah continues to receive the appropriate care in his father's custody. Mr. [A.] provided documentation of completion of the domestic violence classes. . . . The court noted Ms. [Q.'s] counsel's comments regarding some of the information in the court report about Ms. [Q.'s] other children not being backed up by any evidence. Ms. [Q.] has not entered into Crownsville as she indicated she would at the emergency hearing . . . nor has she entered any treatment program. Ms. [Q.] has not been available for any of the supervised visits at the Department and she did not appear for today's hearing.

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Further, the master recommended that Alijah remain in the custody of Mr. A., with liberal, supervised visitation granted to Ms. Q. The master also recommended rescission of DSS's protective supervision and termination of the court's jurisdiction, stating that "the father is providing the proper care and attention needed to care for the child and that continuing jurisdiction is contrary to the Respondent's best interests." On May 21, 2009, Ms. Q. noted exceptions, complaining that the master's findings, conclusions, and recommendations were contrary to the evidence. In particular, Ms. Q. asserted that the "Father is not a fit and proper person to have custody of the minor child"; that "she is the proper person to have custody of the minor child"; and that "supervised visitation . . . is not in the best interests of the child." She also requested a de novo hearing. In preparation for the exceptions hearing scheduled for August 21, 2009,4 DSS submitted a report to the court filed August 10, 2009.5 It said: On July 31, 2009, Ms. [Q.] visited her son at the Agency as arranged. Ms. [Q.] fed her son his lunch for breakfast instead of giving him the oatmeal that was placed in his bag. Ms. [Q.] brought a new pair of shoes for her son. She fitted the shoes on his feet without taking the stuffing in the toe area out. She also allowed her son to walk outside with one shoe on and the other shoe was off his foot. To date, Ms. [Q.] has yet to enter into an inpatient drug treatment program. She refused to give worker any information pertaining to her treatment. . . .

An exceptions hearing was previously scheduled for June 26, 2009, but was postponed by agreement. The report contains the date of April 24, 2009. However, we believe it is an updated version of the report of the same date, submitted at the hearing on May 11, 2009.
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Ms. [Q.] visited the Agency . . . . Ms. [Q.] verbally reported to the team that it was her goal to get Mr. [A.] locked up. She noted that if he goes to jail then she would be able to obtain care and custody for her son. . . . She noted that she will do whatever it takes to get her son back because she is not going to allow Mr. [A.] to keep Alijah. The exceptions hearing was subsequently postponed until October 23, 2009. About two weeks earlier, on October 9, 2009, Vicki Wolfson, Esquire submitted a line striking her appearance as counsel for appellant and entering the appearance of Susan Gilhooly as counsel for Ms. Q. Prior to the hearing, Ms. Gilhooly never filed a motion to withdraw her appearance, pursuant to Maryland Rule 2-132. Instead, at the outset of the hearing on October 23, 2009, she orally moved to be discharged, and the court granted that request.6 The following colloquy is relevant: [MS. GILHOOLY] : Good afternoon, Your Honor. Susan [Gilhooly], attorney from the Public Defender's Office. It was my intention, and I came here prepared to enter my appearance -- just give me a second here -- on behalf of Ms. [Q.], mother of the child. However, she's just most recently asked that I not represent her. Vicki [Wolfson] was the previous attorney, and that will be

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In Alijah's brief, his counsel asserts:

Just prior to the start of the hearing, Ms. Q. fired her public defender and indicated to Judge Nichols her intention to proceed pro se. The assistant public defender asked the court to discharge her, provided to Ms. Q. some documents, and was then excused. Our review of the record does not reflect that Ms. Q. actually indicated her desire to proceed pro se.
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how the record stands.[7] THE COURT: All right. So, you want to be excused, is that the case? [MS. GILHOOLY]: Please. THE COURT: All right. We'll excuse you, unless somebody objects. The transcript does not reflect any objections.8 Ms. Gilhooly subsequently advised the court that Ms. Q. was "asking for her file," and that Ms. Gilhooly "handed her . . . a copy of the [DSS] report" as well as "the exception" that was filed on appellant's behalf.9 At the hearing that ensued, DSS submitted a report dated October 2, 2009, which recited a litany of allegations that DSS had made in previous reports, as well as Ms. Q.'s refusal to provide DSS with her home address or information regarding her drug treatment. The report also claimed that Ms. Q. had verbally threatened a DSS worker during a supervised visit with Alijah. In addition. counsel for DSS maintained that Alijah was no longer a CINA, and asked the court to adopt the master's recommendation. DSS's attorney also recommended that Ms. Q. complete parenting classes and that visitation remain in "the current configuration," i.e., supervised. In the transcript, Ms. Gilhooly's name was incorrectly spelled "Gilbowy," and Ms. Wolfson's name was incorrectly spelled as "Wilson." Following the court's comment, "unless somebody objects," Alijah's attorney immediately addressed the court, identifying herself as the child's attorney and "mention[ing] that Mr. Anderson, the child's father, is here." We cannot determine from the transcript whether Ms. Gilhooly remained for the duration of the proceedings. However, when Ms. Q. was unable to locate "the report," Ms. Gilhooly said: "Ms. [Q.], you are aware that you cannot call me as a witness." Ms. Q. did not respond. We found no other references in the transcript to Ms. Gilhooly.
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Counsel for Alijah argued: I believe that Alijah is receiving appropriate care with his father, and I agree with the Department that he is no longer a child in need of assistance. As [counsel for DSS] pointed out, Alijah has been in his father's custody since February of this year, and I think the Department's report reflects that there are no concerns concerning the care that Mr. [A.] is providing his son. I am in agreement that the -- with the Department that this case be closed, that the Department's interests be terminated, and that the order stands as was submitted by the Master, the custody to the father with liberal and supervised visitation to the mother. Ms. Q. stated that she "disagree[d] with the findings of the Court" and that she wished to "dispute some matters." Thereafter, Ms. Q. called Madeccia Lovett-Sampson,10 the DSS case worker. Ms. Q. sought to establish that she had made numerous calls to DSS about Alijah's care. She also attempted to show that one of the assessments ordered for Alijah had taken a great deal of time to arrange. The following colloquy is relevant:11 [MS. Q.]: . . . Do you recall how long you took to have that assessment for Alijah? [COUNSEL FOR DSS]: Objection, Your Honor. THE COURT: Why do you object? [COUNSEL FOR DSS]: Not specific. There were several recommendations for various assessments.

In the transcript, Ms. Lovett-Sampson's name was erroneously spelled "Medisia Lovett Sampson." We quote several colloquies because they reveal the difficulty Ms. Q. had in her examination of the witness, a circumstance relevant to the first issue, discussed infra.
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[MS. Q.]: Okay. Well, I can move onto another one. Ms. Q. inquired about domestic violence, visitation, and her treatment for substance abuse. The following exchange is noteworthy: [MS. Q.]: . . . Do you also recall me calling you numerous times, even to the point of saying that I would bring Alijah to the agency if you did not intercede in the domestic violence that was going on in the house? *** [MS. LOVETT-SAMPSON]: I asked you to sign a service plan, and I asked you to -- if you and Mr. [A.] were not getting along, for you to leave the house. I put in place an assessment for you to go into drug rehab, which you did go in, you was [sic] discharged out. Then, we also made preparations for you to go into a long-term drug treatment program, and you did not adhere to any of the agency's recommendations. [MS. Q.]: Okay. And did that long-term program -- do you recall me calling you from that treatment center saying that it was not an appropriate place for me or Alijah? *** [MS. LOVETT-SAMPSON]: The first agency that you attended, which was Second Genesis, from my understanding, you had several loud outbursts and you was [sic] not adhering to their recommendations, nor their program. Therefore, they discharged you. Upon their assessment, it was also indicated that it was not in the best interest of Alijah for him to go to Crownsville with you, and that was the second drug treatment that we requested that you go to. [MS. Q.]: Uh-huh. Okay. [MS. LOVETT-SAMPSON]: And you indicated that you were not going without your son. And it was in the -- his best interests that he did not attend that program with you, because he had a nurturing environment in which to go to, which was with his father. [MS. Q.]: Right, and I agree with that. He did have a nurturing --

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[COUNSEL FOR DSS]: Objection. [MS. Q.]: Okay. THE COURT: It's okay. Objection sustained. [MS. Q.]: Okay. And so, are you also aware of -- that Crownsville was not a facility that was for children? *** [MS. LOVETT-SAMPSON]: The treatment was based for you, Ms. [Q.], not for Alijah. Ms. Lovett-Sampson then testified that she had visited Mr. A.'s home and found that Alijah was living in a nurturing environment. Ms. Lovett-Sampson also said that she had supervised visits between Ms. Q. and Alijah. She described one visit that occurred after Ms. Q. had filed her Exceptions, when Ms. Lovett-Sampson observed Ms. Q. shake Alijah so hard that the case worker immediately ended the visit. Ms. Q. challenged the worker's failure to report Ms. Q. to the police for what Ms. Q. called "abuse" that "harm[ed]" her child and placed him in "impending danger." The social worker testified that she ended the visit and met with Ms. Q. to sign a safety agreement, rather than call the police or report the abuse to Mr. A., because it was Ms. Lovett-Sampson's mission as a Family Preservation worker to try to preserve the family. In addition, Ms. Q. attempted to show that, while Alijah was in Mr. A.'s care, Alijah missed several medical appointments that Ms. Q. had made for him. Ms. Lovett-Sampson responded that Mr. A. was responsible for scheduling Alijah's medical appointments, and that Ms. Q. should not have been making them in the first place. Ms. Q. requested the DSS
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report from the Department's counsel, but her request was rebuffed by the court: Hold on a second. He's not here to help you. * * * He represents another entity in this case. You had a lawyer that apparently you discharged this afternoon. * * * I appreciate this is difficult for a layperson to walk into a serious courtroom proceeding and have it all work out -Ms. Q. also posed questions to Ms. Lovett-Sampson concerning the worker's duties. Specifically, Ms. Q. took issue with Ms. Lovett-Sampson's recommendation that Ms. Q. leave the home she shared with Mr. A. and seek inpatient treatment for substance abuse. The following exchange is relevant: [MS. Q.]: Is that the training that you get from the -- your superiors is to remove one person for domestic count -- violence, to remove one person from the home? [COUNSEL FOR DSS]: Objection. THE COURT: Objection sustained. Next question, please. [MS. Q.]: Ms. [Lovett-Sampson], are you aware that removing one person from the home does not end mental illness or emotional illness? *** [MS. LOVETT-SAMPSON]: That is why we recommended that you go into your in-patient [sic] drug treatment program that would adhere to your mental health issues, as well as your drug treatment. [MS. Q.]: . . . Did you ever advise Mr. [A.] to have any treatment at all? [MS. LOVETT-SAMPSON]: His assessment came back clear. [MS. Q.]: Okay, for domestic violence? *** [MS. LOVETT-SAMPSON]: He was already within a program. * * * And he
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completed the program, and I received a certificate. Further, Ms. Q. attempted to elicit testimony from Ms. Lovett-Sampson on the number of visits the worker had paid to "the home" and Ms. Q.'s requests that DSS look into Mr. A.'s "alcohol problem and . . . anger problem." Ms. Q. drew an objection from counsel for DSS, which the court sustained, when she asked: [D]o you recall how many times in what period of time between the time that I told you that that [sic] you had an assessment -- actually the assessment actually was not -- it was not you that wanted the assessment done. I don't know how, but do you recall after the numerous times I asked you to look into it until it was finally done? The following colloquy ensued: [MS. Q.]: I don't see what's wrong with that questioning. THE COURT: I understand that. * * * That's why I'm sitting up here and you're standing there, to be honest. * * * And if I go into a great deal of detail for you, then I'm going to be standing next to you being your lawyer and not being the Judge in this case, is the problem. * * * So, telling me you don't understand why, you ask me to explain it, then -- well, we already had a lawyer for you, you discharged. So, don't be disappointed. Ms. Q. also pursued the issue of an ex parte protective order that Ms. Lovett-Sampson had advised Mr. A. to file after an incident in which Ms. Q. allegedly went to Mr. A.'s house and kicked his door. She again attempted to show that Ms. Lovett-Sampson had not assisted Ms. Q. with respect to Ms. Q.'s complaints of domestic violence. The following exchange is pertinent: [MS. Q.]: . . . [D]id you ever recommend or try to aide [sic] me in my plight of domestic violence in the home? [COUNSEL FOR SOCIAL SERVICES]: Objection.
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THE COURT: Sustained. Next question. It's sustained for a number of different reasons, and one of those are it assumes facts not in evidence. Next question. [MS. Q.]: Can you say that one more time -- I didn't hear you, sir, please? THE COURT: I said it was sustained, because it assumes facts not in evidence in your question. I won't comment further, because I probably shouldn't. * * * I just don't want to sit up here and say objection every time you ask a question -- * * * -- and you think I'm not giving you your day in court. Subsequently, Ms. Q. attempted to establish that Ms. Lovett-Sampson was biased in favor of Mr. A. Ms. Lovett-Sampson asserted that she has "entertained [Mr. A.'s] wishes, as well as [Ms. Q.'s] wishes," and stated that her job was to assess "the safety of [Alijah] at the time that [she] received the case." Thereafter, Ms. Q. sought to call two additional witnesses: her sister and a woman from a foundation that assists victims of domestic violence. At the court's suggestion, Ms. Q. made a proffer as to their testimony.12 She said that both would assist in facilitating visitation between Ms. Q. and Alijah. The court also allowed Ms. Q. to make a statement. Ms. Q., who was not under oath, told the court that she was "aware that [she] cannot take care of [Alijah]," but wanted Mr. A. to undergo "parental counseling" and to take proper care of the child. Ms. Q. also suggested that counsel for Alijah was biased in favor of Mr. A. Further, she said: My concern is this, is that because Mr. [A.] for whatever reason -- he may have -- he may be angry with me, because I did him wrong, but he's done

The court had previously stated that it would adjourn at 4:00 p.m. Based on Ms. Q.'s brief, we assume that the 4 o'clock hour was approaching.
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the same. And we both need a lot of help, so even though the Court might not indulge me, what the child's attorney did say, that at least they were going to try to -- she said this, and I have other witnesses of the attorney say that she was going to ask for parental counseling for him. And then, she turned around, and she reneged on it. All I wanted was family counseling for the family. . . . But all I'm asking the Court is, is that we -- that Alijah be properly taken care of, but I just think he is, but I think he needs a little help. And I just want enough time so that he doesn't have to internalize, saying, "Where is my Mommy?" because I remember the first time when I left him for 30 days how when he saw me -- I walked up to the car, and he looked at me, and he just started screaming. He started crying, and then we got him in the house. He was kicking, he was biting, he would look at me . . . . But the emotional empathy that [Mr. A.] has for my son is why I'm standing here. Its [sic] not -- it's close to zero. . . . he puts himself first . . . . I've seen him put his own children at risk, calling them in the room, calling me a crackhead and saying I have nine children. . . . *** -- all I'm asking for now is, is that my child get enough time to bond with me and that we will -- I will come back and try to get him later when I get more stabilized. Mr. A. informed the court that he was "taking counseling and [attending] parenting classes right now." No other information was presented to the court. Thereafter, the court orally overruled Ms. Q.'s exceptions.13 Then, on December 23, 2009, the court issued a "Review Hearing Order," granting custody of Alijah to Mr. A. Regarding Ms. Q.'s discharge of counsel, the Review Hearing Order stated: The Court notes that initially Susan Gilhooly, Assistant Public Defender also

In a handwritten letter from Ms. Q. to Judge Missouri, filed on November 6, 2009, Ms. Q. complained about the hearing. She averred, inter alia, that she had "never [been] given a chance to present any evidence," including that no drugs were found in her system.
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appeared as counsel for the Respondent's mother; however, Ms. Gilhooly advised the Court that the mother no longer wished to be represented by the Office of the Public Defender. The Court verified with the mother that she no longer wanted the services of the Office of the Public Defender, and that she wanted to proceed without the assistance of counsel. The Court excused Assistant Public Defender Susan Gilhooly and her appearance was struck. (Emphasis added.) In addition, the court said: Respondent Alijah Q. has remained in the custody of his father Antoine A. during the review period. The Department retained protective supervision. The Respondent continues to receive the appropriate care in his father's custody. During the review period the mother retained supervised visitation with the Respondent. There were some incidents of concern during the mother's supervised visits as detailed in County's Exhibit One and as testified to by the Department's worker that lead the Court to conclude that continued supervised visitation is warranted. The court also rescinded the award of protective supervision to DSS, ordered "liberal and supervised" visitation to Ms. Q., "terminated" the "interest" of DSS and the court, and closed the case. DISCUSSION Appellant contends that the court erred in discharging Ms. Q.'s counsel without first obtaining a valid waiver of counsel. Noting that she had a statutory right to counsel, pursuant to Maryland Code (2006 Repl. Vol., 2009 Supp.),

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