source: Caselaw Access Project

author: FRIEDMAN, J.

license: Public Domain

text:
    139 A.3d 1066
    Shania MILLER v. DEPT. OF PUBLIC SAFETY & CORRECTIONAL SERVICES.
    No. 2076,
    Sept. Term, 2014.
    Court of Special Appeals of Maryland.
    June 29, 2016.

      Darren Margolis (Bierer & Margolis, PA, on the brief), Baltimore, MD, for appellant.
    Lisa O. Arnquist (Brian E. Frosh, Atty. Gen., on the brief), Pikesville, MD, for appellee.
    Panel: MEREDITH, REED, and FRIEDMAN, JJ.
   FRIEDMAN, J.

This appeal raises the question of whether the Maryland Correctional Training Commission may revoke a correctional officer’s certification (which the officer must have to work) after that officer has been recertified pursuant to an administrative order. We hold that, under these convoluted circumstances, the Commission may revoke the correctional officer’s certification.

PROCEDURAL AND FACTUAL BACKGROUND

Shania Miller was a correctional officer at the Maryland Reception, Diagnostic & Classification Center (“MRDCC”). As a requirement of her employment, she held a certification from the Correctional Training Commission. In 2010, Warden Solomon Hejirka of the MRDCC terminated Miller’s employment after he learned that Miller was engaged in a sexual relationship with an inmate (“First Termination”). Miller appealed her termination to the Office of Administrative Hearings (“OAH”) (“First Appeal”) and, following a hearing, an Administrative Law Judge (“ALJ”) ordered that the notice of termination be rescinded. The ALJ determined that the Warden had terminated Miller’s employment more than thirty days after discovering Miller’s misconduct, and thus the termination came too late under the governing law. SP § ll-106(b) (stating that an appointing authority may impose disciplinary action no later than 30 days after acquiring knowledge of the misconduct). As a result, an ALJ ordered that Miller be reinstated with full back pay and benefits but did not reinstate her certification without further examination (“First ALJ Order”).

Miller was reinstated to her position and was assigned to non-inmate-related tasks pending her recertification. During the recertification process, the Correctional Training Commission (the “Commission”) discovered that Miller had failed to disclose a prior employment on her application. As a result of this nondisclosure, the Commission refused to recertify Miller and she was again terminated (“Second Termination”).

Miller appealed her second termination (“Second Appeal”). Following a hearing, an ALJ found that Miller’s Second Termination was pretextual and that the Department failed to follow the recertification process. An ALJ ordered that Miller’s Second Termination be rescinded and that she be reinstated “with no further examination or condition” (“Second ALJ Order”) as is specifically permitted pursuant to CS § 8-209.2(a). Miller was again reinstated to her position and was issued a new certification.

Following Miller’s second reinstatement, the Commission convened a hearing to determine if Miller’s certification should be revoked due to her alleged sexual relationship with an inmate. The Commission considered the investigation by the Internal Investigation Unit of the Department of Public Safety and Correctional Services and concluded that Miller was indeed involved in a sexual relationship with the inmate. Based on that conclusion, the Commission issued a decision ordering that Miller’s certification be revoked and, as a result, she was again terminated (“Third Termination”).

Miller appealed the revocation of her certification (“Third Appeal”). Following a hearing, an ALJ concluded that the Commission did not violate the Second ALJ Order by revoking Miller’s certification after she had been reinstated (“Third ALJ Order”). “Nothing in section 8-209.[2](b) of the Correctional Services Article prevents [the Commission] from revoking [Miller’s] certification after it was reinstated according to the ALJ’s order.”

Miller filed a petition for judicial review in the Circuit Court for Baltimore City. Following an unfavorable decision in the circuit court, Miller has appealed to this Court.

STRUCTURE OF THE DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES

There are two paths through which a correctional officer may lose his or her position. To understand Miller’s various firings, certifications, reinstatements, and recertifications, it is necessary to understand the structure of the Department of Public Safety and Correctional Services (“the Department”) and those two paths. At the top of the organizational chart for the Department is the Secretary of Public Safety and Correctional Services. CS § 2-102(a)(2). There are several units below the Secretary, each with its own distinct duties. CS § 2-201. Relevant to this appeal are the two units that participate in the certification, supervision, and termination of correctional officers. Those units are (1) the Correctional Training Commission (referred to above as “the Commission”), CS §§ 2-201(7), 8-203; and (2) the Operations unit.

While the Commission comprises the entirety of its unit, the Operations unit further divides. At the top of the Operations unit is the Commissioner of Correction. CS § 3-202. Below the Commissioner of Correction is the Warden of each facility. CS § 3-211. One of the facilities included in the Operations unit is MRDCC. The powers of a Warden are limited to the specific facility that the Warden supervises. CS § 3-211 (stating that each Warden “is in direct charge of the correctional facility to which the warden ... is appointed” and that the warden shall “supervise the government, discipline, and policy of the correctional facility.”). If a correctional officer is accused of misconduct, the Warden, as the appointing authority for that facility, is tasked with investigating the alleged misconduct, meeting with the employee, and determining the appropriate disciplinary action. SP § ll-106(a). The Warden may take a number of disciplinary actions including a written reprimand, suspension without pay, up to termination of employment. SP § 11-104. A correctional officer’s certification, which is issued by the Commission, is no longer valid upon termination by a Warden. COMAR 12.10.01.06B(2)(a). A correctional officer may appeal his or her termination to the Secretary, who then may refer the appeal to the OAH. SP §§ 11-109; 11-110. On appeal, an ALJ may uphold, rescind, or modify the termination. SP § 11 — 110(d)(1). The ALJ may also order recertification with or without examination. CS § 8-209.2(b).

When a correctional officer is hired, he or she must “meet[ ] minimum qualifications established by the Commission” and apply for certification. CS §§ 8-209; 8-209.1. Correctional officer candidates must obtain certification from the Commission within one year of appointment. CS § 8-209 (allowing probationary appointment of correctional officers for no more than one year “for the purpose of enabling the individual seeking permanent appointment to take a training course prescribed by the Commission.”). The Commission also has the power to revoke a certification. CS § 8-209.2. If an ALJ rescinds or modifies a disciplinary action, at the ALJ’s discretion, the ALJ may order the Commission to reinstate the correctional officer’s certification -with no further examination or condition. CS § 8-209.2(b).

Thus, there are two paths, or chains of command, through which a correctional officer may be terminated. The correctional officer may be directly terminated through a disciplinary action by the Warden of the institution at which he or she is employed. SP §§ 11-104; 11-106. Or, the Commission may revoke the correctional officer’s certification, CS § 8-209.2(a), the result of which is that the officer may no longer perform his or her job functions and must be terminated. COMAR 12.10.01.06D(2) (stating that “An agency head may not permit a mandated employee to perform the duties of a mandated position if the mandated employee’s certification has lapsed.”).

With that framework in mind, we turn to the merits of this appeal.

ANALYSIS

Miller presents a two-part question for our review: did the ALJ err in finding that the Department complied with the Second ALJ Order to reinstate Miller’s certification “with no further examination or condition?” This question requires a two-step analysis: first, did the Department comply with the Second ALJ Order to reinstate Miller’s certification “with no further examination or condition”; second, did the Commission violate the Second ALJ Order by subsequently revoking Miller’s certification. Miller argues that the Department circumvented the Second ALJ Order by issuing her certification and then imposing the examination and conditions, because, according to her theory, the Commission had no authority to subsequently revoke her certification. By contrast, the Department argues that it complied with the Second ALJ Order because Miller was issued her certification. The Commission’s subsequent revocation of Miller’s certification, argues the Department, was proper because the Commission retained its authority to investigate and had not yet considered the “derogatory information” about Miller. Thus, the Department concludes, all proper procedures were followed.

Our review of administrative decisions looks through the circuit court’s decision and evaluates the decision of the agency, or, as in this case, the ALJ’s decision. People’s Counsel for Baltimore Cnty. v. Surina, 400 Md. 662, 681, 929 A.2d 899 (2007). The reviewing court “may not substitute its judgment for the administrative agency’s in matters where purely discretionary decisions are involved, particularly when the matter in dispute involves areas within that agency’s particular realm of expertise, so long as the agency’s determination is based on “substantial evidence.” Id. (internal citations omitted). “A conclusion ... satisfies the substantial evidence test if a reasonable mind might accept as adequate the evidence supporting it.” Trinity Assembly of God of Baltimore City, Inc. v. People’s Counsel for Baltimore Cnty., 407 Md. 53, 78, 962 A.2d 404 (2008). When there is a conclusion of law, however, we must “determine if the administrative decision is premised upon an erroneous conclusion of law.” Maryland Aviation Admin. v. Noland, 386 Md. 556, 573 n. 3, 873 A.2d 1145 (2005) (internal quotations and citations omitted). Thus, we must determine whether there was substantial evidence to support the ALJ’s determination that the Department complied with the Second ALJ Order to reinstate Miller’s certification “with no further examination or condition.” We must also determine whether the ALJ erred, as a matter of law, by determining that the Commission did not violate the Second ALJ Order by subsequently revoking Miller’s certification.

To analyze Miller’s allegations of error, it is vital to remember the function of the Commission. The Commission is tasked with ensuring that each correctional officer is prepared for his or her duties. CS § 8-208 (describing the powers and duties of the Commission, which includes: “to certify and issue appropriate certificates to correctional officers,” and “to perform any other act that is necessary or appropriate to carry out this subtitle.”). The Commission ordinarily will only certify correctional officers upon satisfactory completion of the training requirements. Id. If, however, an ALJ rescinds or modifies a disciplinary action, the ALJ may order the Commission to reinstate a correctional officer’s certification “without further examination or condition.” CS § 8-209.2(b). Regardless of whether a correctional officer holds his or her original certification, or if the correctional officer has received a reinstated certification, however, the Commission retains the ability to revoke a correctional officer’s certification. CS § 8-209.2(a) (giving the Commission the power to revoke a certification in conjunction with disciplinary action).

Here, Miller’s certification was reinstated as ordered. The evidence at the Third Appeal hearing was that: following the Second ALJ Order (1) Miller was reinstated to her position; (2) Miller was reissued her certification; and (3) Miller’s certification was Certificate Number 182918. There was no testimony that Miller’s certification was not reissued or only reissued following further examination or condition. Rather, the only testimony was that Miller was reinstated and issued her certification. We conclude, therefore, that there was substantial evidence on the record to determine that the Department complied with the Second ALJ Order to reinstate Miller without further examination or condition.

Miller’s argument continues, however, that even if the Department did recertify her, the Department has no valid basis for subsequently revoking her certification. Miller bases her position on the plain language of CS § 8-209.2(a) and COMAR 12.10.01.06B(2)(b).

Correctional Services § 8-209.2(a) states:

The Commission may revoke the certification of a correctional officer in conjunction with disciplinary action taken under Title 11 of the State Personnel and Pensions Articled which concerns disciplinary actions, layoffs, and employment terminations in the State Personnel Management System].

CS § 8-209.2(a).

Miller reads this provision as mandating that the Commission may only revoke a correctional officer’s certification “in conjunction with” a disciplinary action taken by the Warden. Because there was no disciplinary action taken by the Warden against her at the time of her Third Termination, Miller concludes that the Commission lacked the ability to revoke her certification.

We think Miller’s argument impermissibly requires us to add the word “only” to the text of CS § 8-209.2(a). See Whiting-Turner Contracting Co. v. Fitzpatrick, 366 Md. 295, 302, 783 A.2d 667 (2001) (“We neither add nor delete words to a clear and unambiguous statute to give it a meaning not reflected by the words the Legislature chose to use ... ”). Rather, use of the word “may” indicates that the legislature intended to “confer a right, privilege, or power,” not state “a mandatory obligation.” Department of Legislative Services, Maryland Style Manual for Statutory Law, 57 (July 2008). The Commission may revoke an officer’s certification “in conjunction with” the Warden taking disciplinary action, as permitted by CS § 8-209.2(a), but the Commission may also act independently to revoke a certification and to fulfill its mandate to assure that all correctional officers are fit and prepared for their duties. CS § 8-208. Moreover, Miller’s argument ignores the implications of the structure of the Department. As discussed above, the Commission belongs to a separate unit from the Wardens of the facilities. The Commission’s process for certification and revocation of certification, although complimentary to the hiring and termination decisions made by the Wardens, is a separate process involving separate procedures. Thus, although the Correctional Services Article allows the Commission to revoke a correctional officer’s certification in conjunction with disciplinary action by the warden, this path is not exclusive and we hold that the Commission may also may revoke a correctional officer’s certification on its own initiative.

Miller’s next argument is that any misdeeds committed by a correctional officer before certification are essentially waived by the Commission upon certification. Put another way, after issuing a certification, the Commission cannot go back and use an event known or knowable before certification as a grounds for future decertification. Miller supports this idea by reference to COMAR 12.10.01.06B(2)(b), which states:

(2) A mandated employee’s certification is valid for the period determined by the Commission or until the employee:
(b) Does not meet the Commission’s standards.

COMAR 12.10.01.06B(2)(b) (emphasis added).

Miller reads the word “until” in COMAR 12.10.01.06B(2)(b) to dictate that anything the correctional officer did before certification, is prohibited as grounds for subsequent revocation.

In our view, Miller reads too much into the word “until.” The word “until,” as used in this regulation, does not temporally limit the Commission to misconduct occurring after the correctional officer is certified. Rather, we think the better reading is that the Commission may revoke a correctional officer’s certification once it determines that the employee does not meet the Commission’s standards, no matter when the misconduct occurred. Moreover, even if the regulation had the meaning ascribed to it by Miller, it couldn’t trump the clear statutory command of CS § 8-208, which gives the Commission the power to “perform any other act that is necessary or appropriate,” CS § 8-208(15), including decertification. The Commission is empowered not only to set the standards for certification, but also to review the methods of training correctional officers and review correctional officers’ certification. CS §§ 8-208; 8-209.2. If the Commission discovers that a correctional officer does not meet the established standards, the Commission has the authority to revoke that officer’s certification even if the failure to meet those standards arose from conduct occurring prior to certification. CS § 8-208 (listing the Commission’s powers and duties as not only “prescribing] standards” but also “inspecting],” “revoking],” and making “continuous study” of standards, methods, and programs). Once Miller was reinstated to her position for the third time and reissued her certification, it was still the Commission’s responsibility to ensure that Miller met the established standards and was fit to perform the duties of a correctional officer.

Additionally, Miller’s argument ignores the two chains of command through which a correctional officer may be terminated. The Warden of the MRDCC originally terminated Miller’s employment. Her termination came, however, beyond the thirty-day time limit and the Warden’s ability to terminate Miller for her misconduct was thereafter foreclosed. The Warden’s inability to terminate Miller, however, did not prevent the Commission from acting. Although Miller’s Second Termination was initiated by the Commission, it was for her failure to disclose prior employment, not for the sexual misconduct. And, in any event, that Second Termination was ruled pretextual by the ALJ and reversed. The Commission never previously had the opportunity to consider Miller’s sexual relationship with the inmate and whether that rendered her unfit to serve as a correctional officer. The Commission is entitled to finish its process and determine whether Miller’s sexual relationship with the inmate would adversely affect her ability to perform her duties as a correctional officer. When the Commission had the opportunity, it found her unfit to continue as a correctional officer — a proposition with which we can hardly disagree.

We conclude that there was substantial evidence to support the ALJ’s determination that the Department complied with the order to reinstate Miller’s certification “with no further examination or condition.” We also conclude that the ALJ did not err as a matter of law in determining that the Commission did not violate the Second ALJ Order by subsequently revoking Miller’s certification. We, therefore, affirm.

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

      . The Office of Administrative Hearings was created pursuant to § 9-1601, et seq. of the State Government ("SG") Article of the Maryland Code. The right of a correctional officer to appeal his or her termination to the Secretary of the Department, who may then refer the appeal to the OAH, is granted by § 11-110 of the State Personnel & Pensions ("SP”) Article.

      . At the time of the third ALJ decision, and when Miller filed her brief, "Revocation and reinstatement of certification" was designated as § 8-209.1 of the Correctional Services (“CS”) Article. Ch. 305 § 1, of the Acts of 2015, redesignated CS § 8-209.1 as CS § 8-209.2 without any changes and enacted a new CS § 8-209.1. We will use the current designation of CS § 8-209.2 to refer to the section with the catchline "Revocation and reinstatement of certification.”


author: SHARER, J.

text:
    139 A.3d 1073
    In re D.M.
    No. 2712,
    Sept. Term, 2014.
    Court of Special Appeals of Maryland.
    June 29, 2016.

      Brian M. Saccenti (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for appellant.
    Mary Ann Ince (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for appellee.
    Panel: MEREDITH, ARTHUR, J. FREDERICK SHARER (Retired, Specially Assigned), JJ.
   SHARER, J.

The Circuit Court for Baltimore City, sitting as a juvenile court, found D.M., appellant, “involved” in the delinquent act of theft of property valued at less than $1,000, thus affirming the findings of the juvenile master. Appellant was subsequently committed to the Department of Juvenile Services for placement.

In this appeal, appellant raises two questions for our consideration:

1. Did the juvenile court err in refusing to permit the removal of shackles from appellant during the court proceedings?
2. Did the juvenile court err in denying appellant’s motion to suppress?

For the reasons expressed herein, we find neither reversible error nor abuse of discretion, and affirm the judgments of the circuit court.

BACKGROUND

At about 9:50 a.m. on August 5, 2014, Nicole DiHart was walking on Pratt Street in Baltimore City when her cell phone rang. As she retrieved the cell phone to answer the call, it was snatched from her hands by a young black man with short hair, whom she estimated to be between ten and 12 years of age, wearing blue jeans, blue underwear visible above the jeans, and no shirt, riding an older blue and red BMX-style bicycle. As he rode away, he looked back over his shoulder two times, allowing DiHart to see his face. When she got to work at the University of Maryland, DiHart reported the incident to the campus security officers in her building.

About two-and-a-half hours later, DiHart was contacted by the police who asked her if she would ride by in a police cruiser to view a potential suspect at a nearby McDonald’s. At the McDonald’s, DiHart first noticed an older blue and red BMX-style bicycle parked nearby. She then recognized appellant as the person who had snatched her cell phone earlier that morning. She noticed that he had changed his clothes and was now wearing a shirt or jumpsuit, but was, nonetheless, able to affirmatively identify him to the police. At the adjudicatory hearing, DiHart again identified appellant as the individual who had stolen her cell phone.

Following his arrest, appellant appeared with his attorney at several hearings before a juvenile court master. On November 6, 2014, appellant was brought to court for an adjudicatory hearing before the master. He was transported in leg and wrist restraints by court security officers, and remained so shackled during the proceedings.

At the outset, appellant’s attorney requested that the master authorize the removal of appellant’s restraints, which the master declined to order. We shall discuss that matter in further detail in Part I of this opinion. Counsel also moved to suppress DiHart’s out-of-court identification. After hearing testimony from DiHart and argument from counsel, the master denied the suppression motion and ruled that appellant was involved in the theft of DiHart’s cell phone. The formal adjudication followed.

Appellant filed exceptions challenging both the master’s denial of his motion to suppress and her refusal to order removal of his shackles during the adjudication hearing. The exceptions were heard, on the record, in the circuit court on January 20, 2015. After hearing the arguments of counsel, the court determined that the identification procedure used by the police was not impermissibly suggestive and that DiHart’s out-of-court identification was reliable. The court further concluded that requiring appellant to remain shackled during his adjudication hearing was not prejudicial. Accordingly, the court denied appellant’s exceptions, and affirmed the delinquency adjudication.

ANALYSIS

I. Shackling During Adjudicatory Hearing

Prior to each of his hearings before the juvenile master, defense counsel requested that appellant’s shackles be removed. In each instance, the master denied the request without making any findings of the need for him to remain shackled.

At the adjudicatory hearing on November 6, 2014, appellant’s attorney again requested that appellant’s restraints be removed during the proceedings. For understanding of the issue, we include the following exchange:

[Defense Counsel]: I would like the restraints removed before any -witnesses come into the courtroom. This is—
THE COURT: They’re not going to be removed. He can have them in front if the officer says it’s okay.
[Defense Counsel]: Your Honor, this is a case that I’ve had (indiscernible). Most cases are a witness identifying D as the person who—
THE COURT: That happens all the time.
[Defense Counsel]: But, Your Honor, having him in shackles is an indication to the witnesses that this is the young man who did it. This is a due process issue, Your Honor. It’s not just I want them off because we’re having a hearing. We don’t allow — in the adult system we would never allow a jury—
THE COURT: This is not the adult system, sir.
[Defense Counsel]: Okay. But the implication is the same.
THE COURT: If his hands are handcuffed in front of him then they could be down in his lap and no one can see.
[Defense Counsel]: You know, Your Honor, when you walk in the courtroom you’ll see the leg shackles. They -will see—
THE COURT: Oh, I’m not having anybody’s leg shackles taken off.
[Defense Counsel]: Your Honor—
THE COURT: It’s not going to happen, sir.
[Defense Counsel]: Then this is not going to be a fair trial because you’ll be sending the signal—
THE COURT: Okay, [Defense Counsel], let’s do this. We’ll just go ahead and then you’ll take your exception. Now, Officer [WJ—
OFFICER [WJ: Yes.
THE COURT: —the young man has a trial. Is he handcuffed in front or in back right now? Okay. Now, are you going to be staying with him the whole time?
OFFICER [WJ: If I have to, probably will.
THE COURT: Okay. Are you comfortable putting his handcuffs in front?
OFFICER [WJ: No. I’m going to leave them on the back. He has a problem with his fingers so I have him—
THE COURT: Say that again.
OFFICER [WJ: He has a problem with his fingers.
THE COURT: What do you mean with his fingers?
OFFICER [WJ: He—
THE COURT: You mean he gives people the finger?
OFFICER [WJ: Yeah, he (indiscernible).
[Defense Counsel]: Your Honor, he’s never done that in a courtroom.
THE COURT: Okay. Hold on. Well, here’s the thing. It’s going to be awhile and I don’t think he can sit comfortably handcuffed behind.
[DJ,—
[D.MJ: Yes.
THE COURT: —you know we don’t allow that here. You don’t give people the finger here in court. Do you understand that?
[D.MJ: Yes.
THE COURT: So I’m going to ask Officer [WJ to put your handcuffs in front and I’m going to trust you to respect the rules of court and not give anybody the finger, okay?
[D.MJ: Yes, Your Honor.
THE COURT: Okay. Now—
[Defense Counsel]: You’re not giving me an exception. You’re giving me a plea. This is an issue where—
THE COURT: [Defense Counsel], you do your thing, my friend. I’m just trying to run my courtroom the way I’ve been doing it for about 20 years now. Okay. Now, do you want to borrow a jacket or something to put over his handcuffs since the officer doesn’t feel comfortable?
[Defense Counsel]: I don’t see how that makes it any better, Your Honor, not really.
THE COURT: Well, other than that, he’d just have to keep them down in his lap.
[Defense Counsel]: Well, I mean, if he—
THE COURT: Your attorney, [D.], is concerned about someone seeing your handcuffs. So when you’re sitting down, can you keep your hands in your lap?
[Defense Counsel]: Well, Your Honor, that’s a problem too because I need him to communicate with me.
THE COURT: Well, he can talk to you in your ear.
[Defense Counsel]: I need him to write things down so I can—
THE COURT: He’s not going to write anything down.
[Defense Counsel]: Are you kidding me? The last two adjudications we had all he did was write things down and he has an absolute right to communicate with—
THE COURT: Well, then he can put the pad in his lap.
[Defense Counsel]: Your Honor, you’re restricting his right to effectively assist his own counsel.
THE COURT: Well, I appreciate your argument. I do not agree with your argument. I’m going to try to put him in a situation where he can participate fully. Now, actually, I don’t think that people are going to be able to see all the way over there to his table. If he wants to write on the table with a pad and pen, that’s fine. If he wants to write down in his lap, keep the pad and pen down in his lap, that’s fine, too. You two may decide that. I’m happy to lend you something to put over his handcuffs physically so they won’t be obvious or he can just—
[Defense Counsel]: Your Honor, I’m not—
THE COURT: —keep them in his lap.
[Defense Counsel]: —conceding anything. He shouldn’t have handcuffs on his hands—
THE COURT: Okay.
[Defense Counsel]: —during trial.
THE COURT: Okay. Thank you, [Defense Counsel].
[Defense Counsel]: So when the—
THE COURT: He should have handcuffs on. If—
[Defense Counsel]: —witness sees him -with handcuffs on—
THE COURT: —the Court makes a decision that he should wear handcuffs, he should wear handcuffs and I have already—
[Defense Counsel]: But there’s—
THE COURT: —spoken to—
[Defense Counsel]: —no danger, Your Honor. There’s no risk of violence, Your Honor.
THE COURT: [Defense Counsel], I am responsible. Now, this is my training. I am responsible for the welfare of everybody who comes into my courtroom. I speak to the officers about security and I respect what they tell me because I am the one who will answer if someone gets hurt in here, including [D.]. So that’s what — that’s the perspective that I’m coming from, just so you understand. Now—
[Defense Counsel]: And the first allegation that’s been raised (indiscernible)—
THE COURT: Okay. That’s enough. Don’t answer me back another time.
[Defense Counsel]: —dangerous, Your Honor.
THE COURT: Do not answer me back another time because there’s a point in time where you need to stop and say thank you Your Honor and have a seat. Call your case.

Appellant suggests that the presumption against shackling that is recognized in adult criminal courts should likewise be applied in juvenile proceedings. We agree and explain.

The U.S. Supreme Court has held that, in criminal proceedings against adult defendants, the Due Process Clause “prohibit[s] the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial.” Deck v. Missouri, 544 U.S. 622, 629, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005). The prohibition applies to both the guilt and penalty phases of trial, id. at 633, 125 S.Ct. 2007, and is based on “three fundamental legal principles”: (1) the presumption of innocence; (2) the right to consult with counsel; and (3) the “courtroom’s formal dignity, which includes the respectful treatment of defendants....” Id. at 630-31, 125 S.Ct. 2007. Maryland has adopted the law enunciated in Deck: “The prejudice posed by security measures, and whether a compelling state interest outweighs that prejudice, must be measured on a case by case basis.” Lovell v. State, 347 Md. 623, 640, 702 A.2d 261 (1997) (quoting Hunt v. State, 321 Md. 387, 410, 583 A.2d 218 (1990)).

Nonetheless, there are practical limits to this constitutional right. Where a defendant is “disruptive, contumacious, stubbornly defiant” in a manner that interferes with the dignity, order, and decorum of a courtroom, the trial court has the discretion to order “constitutionally permissible” accommodations made, after warning the defendant of those potential consequences, up to and including expelling the defendant from the courtroom. Illinois v. Allen, 397 U.S. 337, 343-44, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (offering shackling, citation for contempt, and outright removal from the courtroom as among acceptable means of maintaining order during criminal proceedings). The right does not expire upon the court’s use of such consequences; once lost, it “can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.” Id. at 343, 90 S.Ct. 1057. These measures are to be tailored to the specifics of each case, though, and are not meant for use in a blanket application to all defendants. Id.

Shackling and other such accommodations are only appropriate when there is a compelling state interest. Wagner v. State, 213 Md.App. 419, 477, 74 A.3d 765 (2013). Such essential state interests that may justify the physical restraint of a defendant include preventing the defendant’s escape, protecting those in the courtroom, and maintaining order in the courtroom. Hunt v. State, 321 Md. at 410, 583 A.2d 218. But, “[u]nless one or more of these factors outweigh any prejudice to the defendant, physical restraint is inappropriate.” Id. A particularized finding of such must be made on the record. See id.

In Holbrook v. Flynn, 475 U.S. 560, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986), the Supreme Court limited the scope of the right of adults to appear without overtly suggestive security measures to the effects of its possible violation. Id. at 567, 106 S.Ct. 1340 (“This does not mean, however, that every practice tending to single out the accused from everyone else in the courtroom must be struck down.”). Judicial review of such a complaint is limited to determining whether “what [jurors] saw was so inherently prejudicial as to pose an unacceptable threat to defendant’s right to a fair trial; if the challenged practice is not found inherently prejudicial and if the defendant fails to show actual prejudice, the inquiry is over.” Id. at 572, 106 S.Ct. 1340.

The constitutional rights afforded adult defendants are not automatically applied to juveniles, because the juvenile system is not in the nature of criminal proceedings. Rather, it is a system designed with the goal of treatment and rehabilitation of children, rather than punishment. Md.Code Ann., Cts. & Jud. Proc. § 3-8A-02(a)(l); see also In re Keith W., 310 Md. 99, 106, 527 A.2d 35 (1987).

The distinctions between the juvenile and criminal systems have engendered considerable discussion. “Juvenile proceedings are of a special species that has been designed by the General Assembly in response to a particular need and to meet a peculiar problem.” In re Appeal Misc. No. 32, 29 Md.App. 701, 704, 351 A.2d 164 (1976). “[A] distinction exists between delinquency proceedings involving juvenile offenders and criminal proceedings involving adults in the criminal justice arena, even though the conduct underlying a delinquent act and a crime may be the same.” Lopez-Sanchez v. State, 155 Md.App. 580, 598, 843 A.2d 915 (2004). “The dispositions of the juvenile court are not to be considered as punishment for a crime nor are adjudications of delinquency ‘convictions’, as that word is generally applied with respect to criminal proceedings.” Appeal Misc. No. 32, 29 Md.App. at 704, 351 A.2d 164. Juvenile proceedings aspire to “the idealistic prospect of an intimate, informal protective proceeding,” McKeiver v. Pennsylvania, 403 U.S. 528, 545, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971), and “retain their special and informal nature,” In re Victor B., 336 Md. 85, 92, 646 A.2d 1012 (1994) (quotation marks omitted). The purpose of juvenile delinquency proceedings is not primarily to punish the child; rather, “in disposition, the court will fashion a plan of supervision, treatment, and rehabilitation appropriate to the juvenile and serving the rehabilitative goals of the [Juvenile Causes] Act.” Lopez-Sanchez, 155 Md.App. at 598, 843 A.2d 915; see also Cts. & Jud. Proc. § 3-8A-19(d)(1)-(2).

Given the special characteristics of the juvenile system, the procedural rights accorded to juveniles have always deviated substantially from those guaranteed to adult defendants— differences that have been insisted upon in order to meet the treatment goals of the juvenile system. See In re Gault, 387 U.S. 1, 14, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). To combat the dangers of an entirely civil system, though, where a child theoretically cannot be deprived of his constitutional rights because he has none, the Supreme Court has held that children in the juvenile system are entitled to due process. Id. at 30-31, 87 S.Ct. 1428.

However, the Court has refrained from “taking the easy way with a flat holding that all rights constitutionally assured for the adult accused are to be imposed upon the state juvenile proceeding.” McKeiver v. Pennsylvania, 403 U.S. at 545, 91 S.Ct. 1976. There is a careful consideration required of each right prior to extending it to juveniles, which arises from a deep respect for the juvenile system’s purpose. For instance, the Supreme Court has ruled that coerced confessions may not be used against juveniles, Haley v. Ohio, 332 U.S. 596, 601, 68 S.Ct. 302, 92 L.Ed. 224 (1948), but it has also been held “that the juvenile is not entitled to bail, to indictment by grand jury, to a public trial or to a trial by jury,” Gault, 387 U.S. at 14, 87 S.Ct. 1428, as those rights would skew the focus from treatment of the child to something reflective of the criminal system. We have noted several other rights that Maryland courts have reviewed and found applicable to juveniles, including the right to a speedy trial, double jeopardy protections, and the right to counsel. See Lopez-Sanchez, 155 Md.App. at 599, 843 A.2d 915 (surveying Maryland case law as it pertains to rights of accused juvenile offenders). The analysis of whether a particular procedural right is guaranteed to juveniles under the Due Process Clause centers on whether granting that right would help achieve or serve to hinder the goals of the juvenile system.

We see no reason why extending to children the right guaranteed adult criminal defendants to appear in court free of shackles, absent a particularized finding of need, would impede the objectives of the juvenile system. Indeed, a presumption against shackling would more closely serve those objectives, while indiscriminate shackling threatens them.

The Court of Appeals summarized: “the overriding goal of Maryland’s juvenile statutory scheme is to rehabilitate and treat delinquent juveniles so that they become useful and productive members of society.” Keith W., 310 Md. at 106, 527 A.2d 35. The General Assembly included the creation of competency, character development, protection and treatment of the child, and wholesome mental and physical development among the purposes of the Juvenile Causes Act. Cts. & Jud. Proc. § 3-8A-02(a). These are less likely to be achieved in parallel to the risks of psychological harm, of an exacerbated sense of shame, and of distrust in the court system that may arise from the unnecessary shackling of juveniles.

There are practical consequences to the appearance of juveniles in restraints. While juveniles are not entitled to trial by jury, their cases often involve witnesses whose perceptions may be swayed by the sight of a child in physical restraints. Indiscriminate shackling also physically and, at times, psychologically inhibits the juvenile respondent’s right to assist counsel and participate in his or her own defense. Where there is the potential for the loss of liberty, a juvenile’s needs in court are “comparable in seriousness to a felony prosecution.” Gault, 387 U.S. at 36, 87 S.Ct. 1428. The use of restraints may impair a juvenile’s physical ability to take notes and confer freely with counsel, and it might also impair a psychological willingness to testify or answer a magistrate’s questions openly and candidly. The goals of the juvenile system being rehabilitative, a juvenile’s active participation in his or her defense may demonstrate to the court an eagerness to receive treatment or may help guide the court in crafting an effective and personalized treatment plan. It may further serve as an example to the juvenile of how engaging the support of others can be beneficial.

The presumption against shackling juvenile respondents has, in recent months, been one of public concern and discussion.

During the briefing in this case, effective September 21, 2015, the Court of Appeals adopted the Maryland Judicial Council’s Resolution Regarding Shackling of Children in Juvenile Court. For many of the same reasons appellant so eloquently asserted in his brief and during oral argument, the Resolution “adopts as policy the presumption against the shackling of children during proceedings in the Juvenile Court.” Pursuant to the Resolution:

[AJgencies that are responsible for the transport or transfer of children to, from, and within courthouses shall retain the discretion to employ practices that will ensure the security of the child and others. Once in the court or hearing room, however, a child is to be unshackled and remain so absent a particularized security concern. The judge or juvenile magistrate conducting the proceeding shall determine whether the child needs to be shackled in the court or hearing room pursuant to this policy. Security personnel have the ongoing responsibility for maintaining security and order throughout the proceeding.

While the adoption of the Judicial Council Resolution would preclude the routine use of shackles in juvenile proceedings, the fact remains that, prior to the Court of Appeals doing so, no court rule, policy, or statute precluded the shackling of juvenile offenders appearing in Maryland juvenile courts without any particularized findings that such restrictions were necessary., Neither the Court of Appeals nor this Court has opined regarding the due process implications of in-court restraint of juvenile respondents. Likewise, the policy has never been considered by the Rules Committee as a procedural requirement.

The actions of the Judicial Council and the Court of Appeals are aspirational policies without, as yet, force of either statutory or case law. To effect uniformity and to eliminate disparities in practice from courtroom to courtroom, we hold that juveniles should not be shackled while appearing at juvenile court hearings, unless and until there has been a finding on the record that the juvenile poses a security concern or threat that would disrupt those particular proceedings or involve danger to the juvenile or others.

Prejudice

Appellant asserts that the master erred by denying defense counsel’s request to remove his shackles during his adjudicatory hearing, that the master failed to make individualized findings that he posed a risk that justified the use of restraints, and that the record did not demonstrate that the restraints were necessary. Appellant concludes that, because the master’s refusal to remove his restraints was so highly prejudicial, it constituted reversible error, and that the circuit court further erred by overruling his exception to the master’s determinations.

In our view, the undisputed fact of D. having been restrained throughout the proceeding did not impede his right to a fair adjudicatory proceeding. It is our function to consider the scene presented to those who might have been prejudiced by the sight of the shackles and determine whether what they saw was so inherently prejudicial as to pose an unacceptable threat to D.’s right to a fair proceeding. See Holbrook, 475 U.S. at 572, 106 S.Ct. 1340. As in Holbrook, D. has failed to show that he was unable to communicate with his counsel, or that the witness was unduly prejudiced by his restraints. DiHart made a reliable out-of-court identification prior to seeing him in restraints in the courtroom, reducing the need for a constitutionally pure in-court identification. Accordingly, we shall affirm the holding of the juvenile court overruling D.’s exceptions.

Moreover, the juvenile court master who conducted appellant’s adjudicatory hearing was not bound by then-existing rules, policies, statutes, or holdings of any other jurisdiction. Thus, at the time of appellant’s adjudicatory hearing, whether to remove his shackles was left to the discretion of the court and no particularized findings of fact were required to justify denying defense counsel’s request for removal of the shackles.

The juvenile master’s function was to make factual findings and recommendations for review by the circuit court regarding the sufficiency of the evidence of appellant’s involvement in the theft of DiHart’s cell phone. See Cts. & Jud. Proc. § 3-807(d)(1) (providing “the proposals and recommendations of a master for juvenile causes do not constitute orders or final action of the court”) (applicable to this case through § 3-8A-04 of same Article); Md. Rule ll-lll(a)(2) (same); § 3-807(d)(2) (a master’s “proposals and recommendations shall be promptly reviewed by the court, and, in the absence of timely and proper exceptions, they may be adopted by the court and appropriate orders entered based on them.”); Md. Rule 11-111(c) — (d) (same).

In conducting its exceptions function, the circuit court recognized that the master was required to act as a “neutral arbitrator in the case” and to exercise her “capacity to separate and ignore any shackles” appellant was wearing during the hearing. There is no indication in the record that the master’s fact-finding and application of the law was adversely affected by the shackles. Nor, despite counsel’s assertions, does the record reveal that the shackles prevented appellant from taking notes or communicating effectively with his attorney during the hearing. While appellant asserts damaging prejudice, none is apparent from the record. Therefore, discerning no prejudice, we conclude that appellant’s due process rights and presumption of innocence were not compromised by the master’s refusal to order removal of the restraints during the adjudicatory hearing.

Appellant further suggests that DiHart may have misidentified him as her assailant at the adjudication hearing because he was the only person in the room bound in restraints. As we discuss at greater length below, neither the master nor the circuit court erred in concluding that DiHart’s out-of-court identification of appellant was reliable and therefore admissible at his adjudication hearing. It was for the master to consider all the applicable circumstances, including that appellant’s shackles were potentially visible, and to evaluate Di-Hart’s credibility in light of those circumstances. The master was able, throughout the proceedings, to consider DiHart’s demeanor and hear her responses to the parties’ questions as they occurred. The master found DiHart’s testimony, which was consistent with her previous out-of-court identification, to be compelling. There is nothing in the record to indicate that the master’s findings in this case were clearly erroneous.

For all the foregoing reasons, we conclude that the circuit court did not err by sustaining appellant’s exception to the master’s denial of his request to remove his shackles during his adjudication hearing.

II. The Out-of-Court Identification

We turn now to the assertions that the show-up procedure utilized by the police was impermissibly suggestive and that the master erred in not granting appellant’s motion to suppress the resulting out-of-court identification by DiHart. On review of D.’s exceptions, the circuit court accepted the master’s findings, agreeing that her identification was reliable, based on DiHart’s opportunity to view her assailant at the time of the incident, the detailed descriptions she provided regarding both her assailant and the bicycle, and the fact “that she appeared to memorize what he was wearing or the lack thereof.”

Principles of due process protect those accused of criminal acts “ ‘against the introduction of evidence of, or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures.’ ” James v. State, 191 Md.App. 233, 251-52, 991 A.2d 122 (2010) (quoting Webster v. State, 299 Md. 581, 599-600, 474 A.2d 1305 (1984)). The Court of Appeals recently reaffirmed the two-step analysis of the admissibility of an extrajudicial identification:

The first question is whether the identification procedure was impermissibly suggestive. If the procedure is not impermissibly suggestive, then the inquiry ends. If, however, the procedure is determined to be impermissibly suggestive, then the second step is triggered, and the court must determine whether, under the totality of circumstances, the identification was reliable. If a prima facie showing is made that the identification was impermissibly suggestive, then the burden shifts to the State to show, under a totality of the circumstances, that it was reliable.

Smiley v. State, 442 Md. 168, 180, 111 A.3d 43 (2015) (internal quotation marks and citations omitted).

In evaluating the reliability of an out-of-court identification, the factors we consider include the following:

(i) the opportunity of the witness to view the criminal at the time of the crime;
(ii) the witness’ degree of attention;
(iii) the accuracy of the witness’ prior description of the criminal;
(iv) the level of certainty demonstrated by the witness at the confrontation; [and]
(v) the length of time between the crime and the confrontation.

Webster, 299 Md. at 607, 474 A.2d 1305.

This Court has emphasized: “It is only where there is ‘a very substantial likelihood of irreparable misidentification,’ to wit, a situation where the identification could not be found to be reliable, that exclusion would be warranted. Short of that point, the ‘evidence is for the jury to weigh.’ ” Turner v. State, 184 Md.App. 175, 184, 964 A.2d 695 (2009) (drawing on Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) and Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)).

In assessing the admissibility of an extrajudicial identification, we look exclusively to the record of the suppression hearing and view the facts in the light most favorable to the prevailing party. White v. State, 374 Md. 232, 249, 821 A.2d 459 (2003). We accept the circuit court’s factual findings unless they are clearly erroneous, but extend no deference to the circuit court’s ultimate conclusion as to the admissibility of the identification. Id.

The evidence heard by the master revealed that Di-Hart contacted campus security and provided an account of the robbery she had experienced just minutes before. She also provided a detailed description of her assailant and the bicycle he had been riding. Within two-and-one-half hours, the police located a BMX-style bicycle, matching the description provided by DiHart, outside a McDonald’s a few blocks from where the robbery had occurred. After detaining appellant and his bicycle, the police brought DiHart to the scene and, while she had a clear view of him from the police cruiser, she identified him as the individual who had stolen her cell phone.

On those facts, we cannot find that DiHart’s identification of appellant was the product of an impermissibly suggestive procedure. “A show-up has always been considered a perfectly permissible procedure in the immediate wake of a crime while the apprehension of the criminals is still turbulently unsettled.” Turner, 184 Md.App. at 185, 964 A.2d 695 (citations omitted). In this case, the show-up took place less than three hours after DiHart contacted campus security, informed them that she had been robbed, and provided a detailed description of the assailant and the bicycle he was riding. Shortly thereafter, the police detained appellant with his bicycle.

To determine whether to arrest appellant for the robbery or to release him and continue the search, the police brought DiHart to the McDonald’s and asked her whether the individual they had detained was, in fact, the individual who had snatched her cell phone from her hand that morning. The show-up here was a permissible procedure justified by the police’s need to assess quickly whether they had the culprit, in which case the search could be concluded, or whether the culprit was still at large, in which case the suspect in custody could be released and the search could be continued while the trail was still fresh. See Turner, 184 Md.App. at 185, 964 A.2d 695, and Green v. State, 79 Md.App. 506, 514-15, 558 A.2d 441 (1989) (noting that the “practice of presenting single suspects to persons for the purpose of identification” may be justified by “the desirable objectives of fresh, accurate identification which in some instances may lead to the immediate release of an innocent suspect and at the same time enable the police to resume the search for the fleeing culprit while the trail is still fresh” (citations omitted)).

Even were we to assume that the show-up was impermissibly suggestive, we cannot “say that under all the circumstances of this case there is a very substantial likelihood of irreparable misidentification.” Turner, 184 Md.App. at 186, 964 A.2d 695 (internal citations and quotation marks omitted). DiHart carefully committed the physical appearance of her assailant and his bicycle to memory as he twice looked back at her while he was riding away. DiHart was able to provide a very detailed description of appellant and his bicycle that was largely consistent with his physical appearance and that of his bicycle at the time he was apprehended by the police. At the time of the show-up, DiHart was able to articulate to the police that appellant had changed his clothing, but that she was certain he was the person who had taken her cell phone only a few hours before.

We are persuaded that, under the totality of the circumstances presented, there were sufficient indicia of reliability overall to support the court’s decision to admit DiHart’s out-of-court identification of appellant, even were we to find that the show-up procedure utilized by the police rendered it impermissibly suggestive. We conclude, therefore, that the master did not err by denying the defense motion to suppress DiHart’s identification. Nor did the circuit court err in overruling appellant’s objection to the admission of this evidence.

JUDGMENTS OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED; COSTS ASSESSED TO APPELLANT.

      . As of October 1, 2015, after the relevant hearings in this case, juvenile court masters are now known as magistrates. Md. Rule 1-501 (effective March 15, 2015).

      . By stipulation, the evidence produced at the motions hearing was incorporated into the merits trial.

      . Although the Supreme Court has not yet addressed whether juvenile defendants are or should be entitled to an individualized determination before they are required to appear shackled before a juvenile court, several states have done so.

      . The National Center for Mental Health and Juvenile Justice, the Child Welfare League of America, the National Juvenile Defender Center, and the National Council of Juvenile and Family Court Judges, among others, have done extensive work in collecting quantitative, qualitative, and anecdotal data regarding the ill effects of indiscriminate shackling of juveniles. The National Juvenile Defender Center created the Campaign Against Indiscriminate Juvenile Shackling in conjunction with the National Campaign to Reform State Juvenile Justice Systems; in support of the Campaign’s goals, medical and mental health professionals have published detailed affidavits explaining the harmful consequences of automatic shackling of juveniles using up-to-date psychological and social research. As of the date of this opinion, nine such affidavits are available for viewing at; http://njdc.info/campaignagainst-indiscriminate-juvenile-shackling/.

      . The subject was also taken up during the 2016 Session of the General Assembly. The Senate introduced a bill prohibiting the use of restraints by the Department of Juvenile Services except under certain circumstances. Juveniles — Restraint and Searches — Limitations, S. 1072, 2016 Assemb., Reg. Sess. (Md. 2016). The Judiciary Committee of the House of Delegates amended the bill to implement a task force study instead. Task Force to Study the Restraint, Searches, and Needs of Children in the Juvenile Justice System, H.D. 1634, 2016 Assemb., Reg. Sess. (Md. 2016).

      6. The full text of the Resolution is available at: http://mdcourts.gov/ judicialcouncillpdfslresolutionregardingshackling20150921.pdf. (last visited June 27, 2016).

      . As of a survey conducted in 2012, Maryland was among the "thirty-six states and the District of Columbia” which continued to "allow indiscriminate shackling” of juveniles during juvenile court proceedings. Kim M. McLaurin, Children in Chains: Indiscriminate Shackling of Juveniles, 38 Wash. U. J.L. & Pol'y 213, 232 (2012).

      . The Circuit Court for Baltimore City, Division of Juvenile Causes, has since adopted the Court of Appeals policy, effective March 8, 2016.

      . At the time of the 2012 McLaurin survey, "[o]nly eleven states ha[d] banned indiscriminate shackling of juveniles via legislation, regulation, appellate case law, or court policy.” 38 Wash. U. J.L. & Pol’y 213, 239 (2012) (identifying three other states with pending legislation).

      . In any event, we conclude that any error in the master’s admission of DiHart’s identification of appellant was harmless beyond a reasonable doubt, because DiHart made an in-court identification of appellant as the assailant, without objection from defense counsel. Therefore, evidence regarding DiHart’s previous out-of-court identification of appellant was cumulative.


text:
    139 A.3d 1087
    Kurt KRATZ, by and through his Guardian, Carole KRATZ-SPERA v. MEDSOURCE COMMUNITY SERVICES, INC.
    No. 126,
    Sept. Term, 2015.
    Court of Special Appeals of Maryland.
    June 29, 2016.

      Meghan McCulloch (Steven H. Heisler, Law Office of Steven H. Heisler, on the brief), Baltimore, MD, for appellant.
    Daniel L. Shea (Brault Graham, LLC, on the brief), Rock-ville, MD, for appellee.
    Panel: KRAUSER, C.J., BERGER, and J. FREDERICK SHARER (Retired, Specially Assigned), JJ.
   SHARER, J.

Presented in this appeal is the question of whether the appointment of a guardian of the person of a mentally incompetent person removes the disability of that person for purposes of application of the statute of limitations. The Circuit Court for Prince George’s County (Hon. Albert Northrop, J.) ruled that the guardian of the person is not excused from the operation of the statute of limitations.

The Circuit Court for Prince George’s County found that appellant, Kurt Kratz, an adult, lacks the capacity to make responsible decisions concerning his person due to a mental disability or disease, and appointed his mother, Carole Kratz-Spera, and his sister, Heather Lamont, guardians of his person, on July 18, 2008. On June 18, 2013, and June 6, 2014, Kratz, by his guardian, Kratz-Spera, filed complaints in the Circuit Court for Prince George’s County against appellee, MedSource Community Services (“MedSource”).

Kurt Kratz was a resident of a group home operated by MedSource in Laurel, Prince George’s County when two incidents occurred, both resulting in injury to him, from which the complaints in this case arose. On March 22, 2006, he gained improper access to a bottle of chloral hydrate and ingested a quantity of the contents. On November 24, 2009, he was injured when his hand was submerged into a pot of boiling water. Both complaints alleged medical negligence resulting in injury.

MedSource moved to dismiss the initial complaint for failure to arbitrate pursuant to the Maryland Health Care Malpractice Claims Act. The motion was denied and a stay was ordered to allow for proceedings in the Health Care Alternate Dispute Resolution Office. After there was no resolution through arbitration, Kratz-Spera filed the second complaint, again alleging medical negligence as a result of both the 2006 and 2009 incidents. Kratz-Spera’s motion to lift the stay in the first case and consolidate the complaints was granted by the circuit court.

On February 26, 2015, the circuit court granted Med-Source’s motion to dismiss, as to all counts in both complaints. Kratz-Spera thereafter noted this timely appeal, raising the following issue:

Whether the Circuit Court erred in granting the motion to dismiss and finding that the appointment of a guardian of the person “removes the disability” of a mentally incompetent individual for purposes of the Maryland tolling statute.

We shall affirm the judgment of the circuit court. The tolling exception addresses a disability that is not a procedural one; rather it is a disability that prevents one from understanding the existence of a cause of action. The statute of limitations begins to run after the knowledge has been gained, which occurs when a guardian learns of the facts giving rise to the cause of action.

BACKGROUND

Kurt Kratz is an adult who suffers from severe autism and intellectual disability. On July 18, 2008, the circuit court appointed his mother, Carole Kratz-Spera, and his sister, Heather Lamont, as guardians of his person after finding that he “lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person, including provisions for health care, food, clothing, or shelter.” The order granted the guardians “all the rights, duties and powers as set forth in Estates and Trusts Article, Section 13-708 ... with the general discretion of the guardian concerning living arrangement within this State, non life threatening medical care and procedures, clothing and food.” Kratz at all relevant times lived in a group home operated by MedSource.

On March 22, 2006, Kurt Kratz gained access to a bottle containing chloral hydrate, a sedative, and ingested a large quantity of the substance. Coincidentally, Kratz-Spera arrived at the MedSource group home to visit her son at that time, and found him asleep and “foaming at the mouth and breathing erratically.” Kratz-Spera instructed MedSource employees to call an ambulance, which transported Kratz to a hospital, where he remained in a coma for approximately 60 days.

On November 24, 2009, Kratz suffered second degree burns when his hand was submerged into a pot of boiling water at the MedSource group home. A MedSource employee reported to police during an investigation, in conjunction with Adult Protective Services, that he observed another MedSource employee hold Kratz’s hand momentarily in the hot water. Kratz-Spera was notified of this incident the following morning.

On June 18, 2013, Kratz, by his guardian Kratz-Spera, filed a complaint in the Circuit Court for Prince George’s County against MedSource, alleging liability on three different theories for negligence related to the second incident. Med-Source moved to dismiss the complaint on the grounds that the Maryland Health Care Malpractice Claims Act required arbitration prior to filing an action in court. The circuit court denied the motion to dismiss, but ordered a stay to allow Kratz to pursue a remedy through the Health Care Alternative Dispute Resolution Office.

On June 6, 2014, Kratz, by his guardian Kratz-Spera, and Kratz-Spera, individually, filed a complaint asserting liability on three different theories for both incidents, as well as claims for medical and related expenses and loss of income and wage earning capacity incurred by Kratz-Spera. Kratz’s counsel conceded that the new complaint was a redundancy to ensure the first case, previously stayed, was re-opened.

MedSource moved to dismiss the complaint on limitations grounds, arguing that Kratz’s disability had been “removed” for limitations purposes upon the appointment of the guardians. Hence, MedSource asserts, limitations began to run at the time the guardian gained notice of each incident.

On February 26, 2015, the circuit court lifted the stay in the first case, consolidated the two cases, and dismissed all counts. The circuit court ruled:

Plaintiff contends that the right of action by a mentally incompetent person would never be subject to the statute of limitations regardless of appointment of a guardian. This Court believes that runs against the prevailing policy arguments supporting the existence of a statute of limitations as well as the statutes and supporting case law on guardian-ships in Maryland.

Standard of Review

We review the grant of a motion to dismiss by determining whether the trial court was legally correct; we must determine whether the complaint, on its face, discloses a legally sufficient cause of action. Britton v. Meier, 148 Md. App. 419, 425, 812 A.2d 1082 (2002) (quoting Fioretti v. Md. State Bd. of Dental Exam’rs, 851 Md. 66, 71-72, 716 A.2d 258 (1998)). We presume the truth of all well-pleaded facts in the complaint, together with any reasonable inferences drawn therefrom. Id. “Dismissal is proper only if the facts and allegations, so viewed, would nevertheless fail to afford plaintiff relief if proven.” Id. (quoting Faya v. Almaraz, 329 Md. 435, 443, 620 A.2d 327 (1993)).

Particularly regarding motions to dismiss on limitations grounds, the Court of Appeals has said:

We have held consistently that “the question of accrual in § 5-101 is left to judicial determination.” Frederick Rd. Ltd. P’ship v. Brown & Sturm, 360 Md. 76, 95 [756 A.2d 963] (2000). We review the grant of [the] motion in order to “determine whether the court was legally correct.” Parks [v. Alpharma, Inc.,] 421 Md. [59, 72, 25 A.3d 200 (2011).]

Kumar v. Dhanda, 426 Md. 185, 193, 43 A.3d 1029 (2012).

DISCUSSION

MedSource maintains that the complaint was legally insufficient because the statute of limitations began running when Kratz-Spera, as guardian, discovered each of the separate incidents, and therefore had run by the time she filed the initial complaint. Kratz-Spera, on behalf of Kratz, argues that the appointment of a guardian of the person has no effect for statute of limitations purposes. She contends that, because her son remains under the disability, the tolling exception in the Courts and Judicial Proceedings Article of the Maryland Code (“CJP”), section 5-201, continues to apply to his claims. She asserts that guardians charged with making decisions regarding his person do not have an affirmative duty to sue on his behalf.

The general statute of limitations in Maryland for a civil cause of action is three years and is codified in CJP § 5-101, which provides:

A civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be commenced.

We explained in Antar v. Mike Egan Insurance Agency that, when considering the statute of limitations,

it is appropriate to take note of the fact that we are not dealing with a common law of limitations or with some judicial doctrine of limitations. We are dealing with the Statute of Limitations. As the noun “Statute” expressly states, we are dealing with a legislative policy determination to establish a definite and certain deadline for the filing of a civil lawsuit, notwithstanding the fact that an occasional injustice or hardship might sometimes result from such an arbitrary and definite legislative pronouncement.

209 Md.App. 336, 341, 58 A.3d 609 (2012).

We further emphasized that “statutes of limitations are to be strictly construed and courts will decline to apply strained construction that evades the effect.” Bi v. Gibson, 205 Md. App. 263, 266, 45 A.3d 305 (2012) (citing Decker v. Fink, 47 Md.App. 202, 206, 422 A.2d 389 (1980)).

As MedSource is a “health care provider” pursuant to the Maryland Health Care Malpractice Claims Act, id. § 3-2A-01, the applicable statute of limitations is within the earlier of five years of the injury or three years of the date the injury was discovered. CJP § 5-109(a). Kratz-Spera discovered her son’s injury from the ingestion of choral hydrate on the day it occurred, March 22, 2006; it was she who alerted MedSource staff to the event. She was notified of the burn injury the day after it occurred, on November 25, 2009. Her knowledge operates as discovery under the statute. By any measure, even the earlier of the two complaints was filed more than three years after knowledge was acquired. The parties disagree only as to when, and if, the limitations countdown began.

The tolling exception for filing a civil cause of action provides, “When a cause of action subject to a limitation under Subtitle 1 ... accrues in favor of a minor or mental incompetent, that person shall file his action within the lesser of three years or the applicable period of limitations after the date the disability is removed.” CJP § 5-201(a). MedSource contends that the appointment of a guardian removes the disability and begins the period of limitations running.

Courts have been careful to limit tolling exceptions to their narrowest definitions. “[W]here the legislature has not expressly provided for an exception in a statute of limitations, the court will not allow any implied or equitable exception to be engrafted upon it.” Booth Glass Co. v. Hunting-field Corp., 304 Md. 615, 623, 500 A.2d 641 (1985). See also Garay v. Overholtzer, 332 Md. 339, 359, 631 A.2d 429 (1993) (detailing Court of Appeals’s unwillingness to give expansive interpretation to, or recognize implied exceptions, in CJP § 5-201). For instance, the tolling exception was not available to a plaintiff who, though he had been confined to the Patuxent Institution when the claim accrued, was never adjudicated as mentally incompetent. McDonald v. Boslow, 363 F.Supp. 493, 496 (D.Md.1973) (“commitment to Patuxent is not, in and of itself, an adjudication of non compos status sufficient to toll the statute”). And, once the limitations period begins to run, an intervening disability will not interrupt it. Kluckhuhn v. Ivy Hill Ass’n, 55 Md.App. 41, 48, 461 A.2d 16 (1983); Gump v. Sibley, 79 Md. 165, 169, 28 A. 977 (1894).

The tolling exceptions stem from the same line of reasoning that developed into the ‘discovery rule’ applicable to all civil litigants. In order to begin the running of the limitations period, it must be shown that the plaintiff had “actual knowledge — that is, express cognition, or awareness implied from knowledge of circumstances which ought to have put a person of ordinary prudence on inquiry.” Poffenberger v. Risser, 290 Md. 631, 637, 431 A.2d 677 (1981) (internal quotations omitted). The rule serves to “distinguish between a ‘blamelessly ignorant’ plaintiff and one who had acted negligently and ‘slumbered on his rights.’ ” Doe v. Maskell, 342 Md. 684, 690, 679 A.2d 1087 (1996) (quoting Hecht v. Resolution Tr. Corp., 333 Md. 324, 334, 635 A.2d 394 (1994)).

This concept, as applied to mentally incompetent individuals, serves to protect those who lack the mental capacity to comprehend and safeguard their legal rights. Buxton v. Buxton, 363 Md. 634, 646-47, 770 A.2d 152 (2001); see also Decker v. Fink, 47 Md.App. at 207, 422 A.2d 389, Doe v. Maskell, 342 Md. at 689-90, 679 A.2d 1087. The disability of mental incompetence is “not a medical term but an imprecise legal one,” so it is “the inability of the person, by reason of the incompetence, to understand that he or she has a cause of action and to take the necessary steps to file the action” that is the concern. Buxton, 363 Md. at 647-48, 770 A.2d 152. The laches defense raised in Buxton failed because the mentally incompetent plaintiff was without the requisite knowledge of the wrongs against him to trigger application of the common law defense. Id. at 648-49, 770 A.2d 152; cf. Green v. Lombard, 28 Md.App. 1, 14, 343 A.2d 905 (1975) (statute of limitations did not begin to run for claim against guardian until third party with standing to sue obtained knowledge of injury over a decade after injury occurred).

We made the same distinction in O’Hara v. Kovens, 60 Md.App. 619, 484 A.2d 275 (1984). There, a mother and her two sons brought a common law fraud action against a group of individuals who had purchased the stock in a racetrack previously owned by the O’Haras. Id. at 621-22, 484 A.2d 275. Two years prior to bringing the suit, the sons were appointed guardians of their mother’s property and estate after she was adjudicated mentally incompetent. Id. at 635, 484 A.2d 275. The claims were barred by limitations, but the sons argued that the statute had been tolled as to Mrs. O’Hara’s claims, pursuant to CJP § 5-201. Id. at 634-35, 484 A.2d 275. We rejected the tolling argument as a “tangent” and a “red herring,” but ruled that, under the discovery rule, “Mrs. O’Hara was not capable of having the knowledge or awareness that would trigger the running of the statute.” Id. at 635-36, 484 A.2d 275. Because she was incapable of that knowledge, her claim only accrued “when guardians capable of being charged with knowledge and notice on her behalf were appointed.” Id. at 636, 484 A.2d 275.

The only Maryland case presented to us in this appeal dealing directly with the issue of a guardian triggering the statute of limitations pre-dates the Maryland guardianship statute by almost 60 years. Funk v. Wingert, 134 Md. 523, 107 A. 345 (1919). In Funk, the circuit court held that when a trustee or committee was appointed, there was no longer a disability and the statute began to run. Id. at 524-25, 107 A. 345. In reversing the circuit court, the Court of Appeals held the tolling exception included an individual found to be mentally incompetent for whom a “committee,” or guardian, had been appointed:

Such a suit must still be brought in the name of the non compos by another, and he is under no less disability to bring suit after the appointment of a committee than he was before, the only difference being that before such an appointment the suit would be by the lunatic in his own name by his next friend, and after the appointment it would be in the name of the lunatic by his committee.

Id. at 526, 107 A. 345.

The enactment and codification of the guardianship laws and the development of the discovery rule, subsequent to Funk, have created a substantive difference in the status of a mentally incompetent person before and after appointment of a guardian. We conclude that, in view of the modernization of guardianship proceedings by legislative action to the present time, the rule of Funk is no longer sustainable.

Indeed, prior to the appointment of a guardian, any “next friend” can bring suit on behalf of the individual. Under the tolling exception, the next friend can do so at any time because the mentally incompetent individual would not have, at any point, gained the knowledge necessary to understand the existence of a cause of action. A guardian though, granted the “powers necessary to provide for the demonstrated need of the disabled person” by section 13-708(a)(l) of the Estates and Trusts Article (“ET”), operates as the competent party responsible for the mentally incompetent adult’s needs, and is subject to the statute of limitations once knowledge is gained that those needs have been jeopardized by a tortfeasor.

Kratz-Spera urges us to compare a mentally incompetent adult with a minor, arguing that the General Assembly, by treating the two types of disabled individuals in the same limitations statute, indicates “a close link between the two protected classes of people.” Notably, the guardianship statute also makes a direct comparison between minors and persons under disability: “The rights, duties, and powers which the court may order include ... [t]he same rights, powers, and duties that a parent has with respect to an unemancipated minor child....” ET § 13-708(b)(l).

However, there are two significant distinctions between minors and mentally incompetent individuals that bear on the issue before us. First, unlike mentally incompetent individuals, the disability of infancy has a finite end date. Mason v. Bd. of Educ. of Balt. Cty., 143 Md.App. 507, 515, 795 A.2d 211 (2002) (disability of infancy is removed the day prior to 18th anniversary of individual’s birth). Potential defendants are thus aware that, within a calculable amount of time, they may be subject to suit.

A second distinction exists in the relationship between those under disability and their guardians. For a child, the guardian is, by default, the parent, unless other arrangements have been made and approved by the court. The tolling exception applicable to minors is meant to protect children from a curtailment of their legal rights should a parent neglect to file suit within the typical statute of limitations. Piselli v. 75th Street Medical, 371 Md. 188, 216, 808 A.2d 508 (2002) (“if the parents’ failure to bring a claim before the expiration of limitations had the effect of barring the minor child’s claim, the child would be twice victimized — once at the hands of the tortfeasor, and once by parents who, for whatever reason, failed to timely prosecute the claims”) (quoting Johns Hopkins Hospital v. Pepper, 346 Md. 679, 695, 697 A.2d 1358 (1997) (quotations omitted)). Rather than entrust the right to sue to a parent, who might lack the knowledge, experience, means, or plain enthusiasm to sue, the exception serves to save the legal action for the child to pursue, if he so chooses, once majority is gained.

As to a mentally incompetent adult, on the other hand, the guardian must petition the court and satisfy the statutory requirements prior to appointment. ET § 13 — 705(a); Md. Rule 10-201. See also In re Lee, 132 Md.App. 696, 754 A.2d 426 (2000). Therefore, as the guardian of a mentally incompetent adult actively seeks to be an advocate, the concerns expressed by the courts in cases involving children and the statute of limitations are not as great where the guardianship is not imposed by operation of law. Although the guardianship statute allows the court to grant the guardian “[t]he same rights, powers, and duties that a parent has with respect to an unemancipated minor child,” ET § 13-708(b)(l), the comparison does not extend to the application of the statute of limitations. A guardian has a right to bring suit on behalf of a mentally incompetent individual, as does a parent on behalf of a minor child, but imposing the statute of limitations on a guardian does not threaten the mentally incompetent adult’s rights the way it would those of a child.

In the matter before us, the circuit court opined that a tolling exception for mentally incompetent persons even where a guardian is appointed “runs against the prevailing policy arguments supporting the existence of a statute of limitations as well as the statutes and supporting case law on guardian-ships in Maryland.” For the reasons we have discussed, we agree. We cannot imagine a policy requiring a potential defendant to be on notice of future litigation for years, if not decades, to be a sound public policy.

The tolling exception preserves the legal rights of a mentally incompetent individual until a guardian is appointed; once a guardian is appointed, and gains the requisite knowledge to file a claim on the individual’s behalf, the statute begins to run.

Kratz-Spera failed to file the complaint in a timely manner. The claims that arose from the 2006 incident were preserved by the tolling exception until July 18, 2008, when the co-guardians of the person were appointed, at which point the statute of limitations began to run, as Kratz-Spera had knowledge of the injury. Likewise, her knowledge of the 2009 incident triggered the statute when it was reported to her the day after it occurred, on November 25, 2009. Therefore, the statute of limitations on the claims had already run when Kratz-Spera first filed a complaint on June 18, 2013.

JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY AFFIRMED; COSTS ASSESSED TO APPELLANT.

      . Kurt Kratz suffers from autism and intellectual disability.

      . Kratz-Spera had previously filed a complaint on behalf of Kratz concerning both incidents, on May 12, 2012, but voluntarily dismissed it on August 30, 2012. Kratz does not assert that the 2012 complaint preserves his rights as to the second incident, nor would he be able to do so under the relation-back doctrine. See, e.g., Wilcox v. Orellano, 217 Md.App. 417, 94 A.3d 127 (2014) (precluded from re-filing malpractice action outside limitations period after stipulating to dismissal of initial action); Bi v. Gibson, 205 Md.App. 263, 45 A.3d 305 (2012) (principle of relation-back did not save negligence action that was voluntarily dismissed and filed again beyond limitations period).

      . The Court of Appeals reversed to the extent it regarded affirming the dismissal of the sons’ claims on the grounds that discovery of fraud is a factual issue and therefore, the case could not be decided on summary judgment. O'Hara v. Kovens, 305 Md. 280, 503 A.2d 1313 (1986).

      . A next friend may pursue a cause of action on behalf of an individual by establishing: (1) an “adequate explanation — such as inaccessibility, mental incompetence, or other disability” why the individual cannot appear; and (2) that he is "truly dedicated to the best interests” of the individual. Whitmore v. Arkansas, 495 U.S. 149, 163, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990).

      . Given the distinctions discussed above, our holding in this case does not affect the tolling exception relevant to minor children as discussed in, among others, Piselli v. 75th Street Medical, 371 Md. at 212, 808 A.2d 508, and Mason v. Bd. of Educ. of Balt. Cty., 143 Md.App. at 515, 795 A.2d 211.