On July 28, 2021, the Rules Review Subcommittee of the Maryland Judiciary’s Committee on Equal Justice held its final listening session, which focused on juvenile delinquency and child in need of assistance (CINA) law. The session was moderated by Krystal Alves, Associate Judge of the Prince George’s County Circuit Court, and Calvert County Circuit Court Magistrate Tracey McKirgan.
The committee was formed in June 2020, in an effort to build on the judiciary’s knowledge and proficiencies and to strengthen its commitment to equal justice under the law. The Committee is to recommend strategies to dismantle any discriminatory behaviors in all aspects of the Judiciary’s functions. It will identify necessary improvements, resources, and support services, and develop educational opportunities for ongoing Judiciary-wide engagement in the pursuit of equal justice for all. The Rules Review Subcommittee is one of six that was created under the broader Equal Justice Committee. Its goal, in particular, is to identify Maryland rules that, either in text or operation, affect people in communities of color or members of disadvantaged communities differently or disproportionately, or that raise equal justice concerns in any way.
The listening sessions are designed for members of the committee and the subcommittee to obtain input regarding how the rules have operated in ways that raise concerns regarding disparate treatment. This particular session was devoted to juvenile delinquency and child in need of assistance (CINA) rules, specifically those rules that may raise concerns of discriminatory behavior or result in implicit bias grounded in race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation.
The first speaker noted that with regard to CINA, the courts and the court rules give a great amount of deference to systems that are known to be systemically racist and impose implicit bias. For example, mandatory reporters at hospitals have biases against people of color and lower socioeconomic status. The current rules allow a caseworker to remove a child from a home due to concerns expressed by a mandatory reporter, with no judicial oversight, the rules of evidence do not apply to the subsequent hearings, and magistrates are permitted to make decisions based on a reasonable belief, resulting in an unjust removal of children from their parents. He also noted that the CINA rules and CINA court seem to only apply to people of lower socioeconomic status.
The second speaker stated that there are no rules of evidence that apply at shelter care proceedings, which is where the child is initial removed from the parent, resulting in inequities. Additionally, the juvenile rules state that discovery is “as justice requires” which is impermissibly vague. She also pointed out that in CINA proceedings, people are placed on the central registry based on a social worker’s recommendations, and there is no process for being removed from the registry. There are also no rules regarding qualifications of custody evaluators, custody evaluations, or a clear outline of procedures for juvenile courts or CINA proceedings. Additionally, in many proceedings, the current rules are not adhered to, and hearings are routinely extended without any repercussions for the delay. She stated the family law system applies to people with means while the CINA system applies to lower socioeconomic individuals, which is patently unfair.
The person speaking next argued for the expansion of diversion programs across the state and the redefining of the term delinquent act, noting that typical adolescent behavior is often defined as a delinquent act, and youth of color are far more likely to be placed in a detention center rather than in a diversion program. She suggested incentivizing the increased use of diversion programs in counties throughout the state.
The final person speaking noted that the definition of “proper and ordinary care” is vague, and the judiciary often ignores cultural and societal differences when determining what constitutes appropriate care when applying this definition in CINA cases. She suggested that judges and magistrates handling CINA cases undergo training to address the structural and implicit biases in handling such matters.