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Court of Appeals Refuses to Require Rules of Evidence In Deciding Child’s Permanency Plan

May 17, 2005

In re: Ashley E., 383 Md. 569, 861 A.2d 60 (2005).
The Public Justice Center submitted an amicus brief, written by Deb Gardner and Appellate Project volunteer attorney John Kopolow, in this Child in Need of Assistance (CINA) case in the Maryland Court of Appeals to address the unconstitutionality of failing to apply the rules of evidence at permanency plan hearings and review hearings.  The case raises important questions about the procedural protections that will be provided to children and natural parents who may ultimately face the termination of their natural relationship.  The intermediate appellate court characterized permanency plan review hearings as “dispositional” rather than “adjudicatory” and, accordingly, concluded that under Maryland Rule 11-115(b) the trial judge was not obliged to apply the Maryland Rules of Evidence at such hearings.  PJC’s brief asked the Court to consider that constitutional due process requires the application of those rules to such proceedings. 
In a decision issued on May 17, 2005, the Maryland Court of Appeals concluded that permanency planning hearings are dispositional in nature, and thus strict application of the Rules of Evidence is not required, and the application of the Rules of Evidence in such hearings is entrusted to the discretion of the trial court.  The Court did not address the constitutional issues raised in the amicus brief.  In a subsequent opinion in a case raising the same issue, In re Billy W., 2005 WL 1384048 (2005), the Court of Appeals clarified that “in permanency planning hearings when the Rules of Evidence are not strictly applied, the trial court must evaluate whether evidence proffered for admission is sufficiently reliable and probative prior to its admission.”

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