Couple’s argument based on ruling from US high court. Page 4
Attorney suspended for retaliatory claims against ex-wife, judges. Page 5
Family law burnout: Here’s my story. Page 6
Vol. XXXV, No. 8
200 St. Paul Place Suite 2480
Baltimore, Maryland 21202
Main Number: 443.524.8100
Suzanne E. Fischer-Huettner Publisher
Thomas Baden Jr. Editor
Contributing
Writers: Rachel Konieczny Hope Keller
Maryland Family Law Update, Periodical Postage Paid USPS permit (014- 143) is mailed out monthly at Baltimore MD.
Postmaster, send address changes to:
Subscription Services PO BOX 1051 Williamsport, PA 17703-9940
To order a subscription go to: https:/thedailyrecord.com/ maryland-family-law/subscribe/ or call 877-615-9536 or by email: service@bridgetowermedia.com.
To renew. change your address or to temporarily stop service. go to: https:/thedailyrecord.com/maryland-family-law/ manage-account-fc/ or call 877-615-9536 or by email support@bridgetowermedia.com.
Maryland Family Law Update is a review of events as they affect the practice of domestic relations in law in the state of Maryland published by The Daily Record, 200 St. Paul Place, Suite 2480, Baltimore, Maryland 21202.
The laws of every jurisdiction may differ, and the facts are capable of many interpretations. The contents of this publication are not to be construed as legal advice and should not be acted upon without consulting an attorney. Letters selected for publication are subject to editing. Letters from litigants in pending cases or their representatives will not be accepted for publication until after their cases have been finally decided. Address letters and comments to Editor, Maryland Family Law Update, 200 St. Paul Place, Suite 2480, Baltimore, Maryland 21202. Maryland Family Law Update and The Daily Record Company are owned by Bridgetower Media.
3 Child Advocacy: How successful has FFPSA been in Maryland?
In 2018, the president signed into law the Family First Prevention Services Act. The goal of the act is to “reduce entries into foster care and increase the number of children who can remain safely at home with their families.” Has it accomplished that goal?
Parents in Maryland cannot agree privately to waive child support, the Maryland Appellate Court held in a recent ruling, a decision that could “change the landscape in terms of child support and how it’s done in a lot of other jurisdictions,” one attorney says.
5 In the News: MoCo family law practitioner suspended
A Montgomery County lawyer who repeatedly filed retaliatory and meritless claims against his ex-wife and judges who ruled against him, among others, in out-ofstate jurisdictions has been indefinitely suspended from practicing law in Maryland.
6 Guest Column: Family Law Burnout 2.0
We all know it. Family law is famous for the highest burnout rates in a profession that tends to burn out even its most successful professionals. Here’s what I decided to do about it, writes columnist Morgan E. Foster.
7 Monthly Memo
A Virginia court has found a man in civil contempt for willfully ignoring an order 36 years ago to sell his former marital residence and give $100,000 of the proceeds to his wife. ... Missouri residents now must provide proof of gender-affirmation surgery or a court order to update their gender on driver’s licenses following a Revenue Department policy change. … A circuit court’s finding that $3,500 per month was a reasonable and necessary work-related child care expense when it calculated a husband’s child support obligation has been affirmed by a panel of the Court of Appeals of Virginia. … An Onondaga County Family Court judge with a history of inappropriate conduct has again been reprimanded by a New York state appeals court for her handling of a child support matter and ordered the case reassigned to a different judge. … Five officials from Costa Rica’s child welfare agency were arrested on charges they were involved in trafficking children for the purpose of adoption, authorities said.
Child Advocacy
How successful has FFPSA been in Maryland?
In 2018, the president signed the Bipartisan Budget Act into law, which includes the Family First Prevention Services Act.
The goal of the act is to “reduce entries into foster care and increase the number of children who can remain safely at home with their families.”
Among other items, this legislation enables states to use federal funds for evidence-based mental health programs. To receive these funds, a state must submit a plan for approval that demonstrates its proposed programs satisfy numerous specific requirements, including that they be evidence-based.
A main component of the act is the designation of Qualified Residential Treatment Programs.
A QRTP is a non-family-based placement, licensed by the state, that provides a trauma-informed model of care, has licensed nursing staff who are available 24 hours per day, and amongst other requirements, must be licensed in accordance with the requirements of Title IV-E of the Social Security Act - Federal Payments for Foster Care, Prevention and Permanency.
The state must take certain procedural steps to place children in an out-of-home placement (foster care), such as a QRTP, and hold QRTP reviews in court to receive federal reimbursement for the costs associated with such a placement.
The cost of residential treatment is high; Maryland relies heavily on federal reimbursements to support these treatment costs.
Maryland places children in QRTPs because they require additional care or protection that cannot be provided in a home/family setting, for example, children who are potential targets of sex trafficking.
Child Advocacy CRIST WILL
Maryland placed a 14-year-old girl, in a QRTP program due to her mental health needs, her tendency to leave placements without permission, and her vulnerability to being sex trafficked. Unfortunately, the QRTP program did not have sufficient staff and resources to serve this youth so, ultimately, she left the placement, is now unhoused, and is not receiving any treatment.
Although the intent of the legislation is to provide incentives for states to establish QRTPs, its stringent criteria and the limitations on funding have led to significant challenges in compliance in Maryland.
Through the University of Maryland, the state made a large push for new applications in mid-2023 and received zero applications for new providers.
As of December 2023, there were a total of six designated QRTPs in all of Maryland; however, one of those six recently closed.
Both the Department of Juvenile Services and the Department of Human Services have stated that their priority is to place children in QRTPs “when available”, but the limited number of available beds has made that priority difficult.
A recent U.S. Senate report on nonQRTP facilities found widespread sexual abuse and neglect at residential treatment facilities, including some in Maryland.
The report found that many residential treatment facilities do not provide required services and drastically reduce their staffing to be profitable, and yet, children who need the trauma-informed care provided at a QRTP are being placed at these
unqualified facilities because of the lack of available beds at QRTPs.
The Department of Human Services is required to make reasonable efforts to facilitate a child’s safe and appropriate reunification. A significant and often essential component of these efforts is providing a child with the necessary and appropriate care, which might be placement in a QRTP, but the lack of available beds frustrates the ability of the department to provide the necessary and appropriate services.
Maryland’s experience indicates that the requirements of the Family First Prevention Services Act, however well-intentioned, may be unnecessarily restrictive.
The American Academy of Pediatrics surveyed the states to conduct a oneyear review of the legislation.
Many states, like Maryland, indicated as primary barriers to successful implementation of the legislation the lack of resources, including funding.
The academy made numerous recommendations: including augmenting funding; investing in QRTP staff through retention strategies, training and compensation; and encouraging collaboration of the child welfare, juvenile justice and health care systems and the creation of customized treatment plans with expanded service arrays for youth while encouraging the engagement of family members.
The availability of tailored traumainformed, 24-hour care is essential for vulnerable children, such as the 14-year-old.
It behooves those involved in child welfare to address the challenges of the QRTP requirements so that our most vulnerable children can gain access to the individualized treatment they need.
Will Crist is a staff attorney at Maryland Legal Aid.
Parents in Maryland cannot agree privately to waive child support, the Maryland Appellate Court held in a recent ruling, a decision that one attorney said could “change the landscape in terms of child support and how it’s done in a lot of other jurisdictions.”
The reported opinion, written by Judge Kevin F. Arthur and filed earlier this month, comes after Erica Hall Houser and Nicholas Houser submitted a child support agreement proposing that the father, Nicholas Houser, would have no child support obligation.
The appeals court found that the Anne Arundel County Circuit Court correctly applied the child support guidelines, which are optional only when the court finds that application of the guidelines would be unjust or inappropriate.
The appellate court also found that the circuit court did not err in determining that Nicholas Houser owed child support and in finding that the parents “had no constitutionally protected liberty interest in agreeing that Father had no obligation to provide child support for their son.”
In an amicus brief, Maryland Attorney General Anthony Brown weighed in, writing that the child support guidelines are presumptively mandatory and reflect “the paramount importance of the child’s best interests.”
The Housers, meanwhile, argued that the maximum amount of child support is not always in the child’s best interest, citing a Maryland case that stated, “more can mean less.”
Joshua Tabor, counsel for Nicholas Houser, said his client and Erica Hall Houser thought they were in
“the best position possible” after making their custody and child support agreement.
“We still think it’s a fundamental right of parents throughout our state to make decisions that they believe are in the best interest of their minor child or minor children,” Tabor said. “The court, throughout the litigation process, from the very beginning, always stresses the importance of coming to agreements … I think that this is one of those instances, but the court disagreed, and it’s unfortunate.”
Nathan Volke, counsel for Erica Hall Houser, said his client and Nicholas Houser were disappointed with the appellate court’s ruling.
“The crux of what we were trying to argue and what we are probably going to continue to try to argue is that Troxel v. Granville and the fundamental right to parent, which the Supreme Court has established, really does, in our opinion, change the landscape in terms of some of these older cases that predate Troxel,” Volke said.
The Housers base their constitutional argument on Troxel v. Granville, a 2000 U.S. Supreme Court
case that held there is a fundamental right under the Fourteenth Amendment for a parent to oversee the care, custody and control of a child.
Tabor said he believes the court’s ruling will have a chilling effect on litigants negotiating or coming to agreements.
“Now people are going to wonder ‘is my agreement going to be good enough? Is what we have decided collectively, as the parents of a child, going to be good enough for the court?’” Tabor asked, noting individuals now must “second-guess themselves” and ask if the court will accept their agreement.
Volke said he thinks the impact of the court’s ruling is problematic because the court stepped in regardless of the parents’ education level or whether the parties have an attorney and said, “we know better than you.”
“We think this is going to change the landscape in terms of child support and how it’s done in a lot of other jurisdictions, unfortunately,” Volke said. “The amount of support that you provide to a child is a fundamental piece of how you choose to raise them.”
Joshua Tabor
Nathan Volke
MoCo family law practitioner suspended for retaliatory claims against ex-wife, judges
By Rachel Konieczny RKonieczny@TheDailyRecord.com
A Montgomery County lawyer who repeatedly filed retaliatory and meritless claims against his ex-wife and judges who ruled against him, among others, in out-of-state jurisdictions has been indefinitely suspended from practicing law in Maryland.
In a reported opinion written by Justice Steven B. Gould, the Maryland Supreme Court determined that Stephen E. Whitted violated Washington state’s attorney rules for professional conduct and is suspended indefinitely from practicing law in Maryland, effective immediately.
The court found that Whitted, who gained admission to the Maryland bar in 1995, “fails to grasp the nature and extent of his misuse of the judicial system that persisted for over a decade in multiple forums.”
According to the 40-page opinion, Whitted “engaged in a relentless pursuit” of his ex-wife, her new husband and her attorneys by filing a number of meritless claims in various courts against his exwife’s attorney, a judge and his ex-wife’s new husband.
One of the lawsuits involved Whitted alleging false imprisonment, abduction, loss of consortium and intentional infliction of emotional distress because his children lived with his ex-wife’s husband, with compensatory damages sought of $1 million from the judge, $750,000 from his ex-wife’s husband and $3,000 per day until his children were returned.
The high court noted that many times Whitted lost at the trial court level, lost on appeal and then tried to relitigate the fully adjudicated issues in future proceedings. Additionally, according to the Maryland Supreme Court, Whitted has violated multiple court orders, including orders to pay child support and orders to pay sanctions.
“Mr. Whitted’s conduct shows a disdain
for the judicial system,” the high court wrote.
In 2012, Whitted’s ex-wife and her husband moved to the state of Washington. According to the opinion, Whitted filed a number of actions in Washington’s state and federal courts, with the hearing judge finding Whitted violated the Washington Rules of Professional Conduct by engaging “in conduct involving dishonesty, fraud, deceit, or misrepresentation.”
In one instance, Whitted alleged, among other claims, that his ex-wife, her husband, his ex-wife’s attorney and the attorney’s employer intentionally interfered with the parent-child custodial relationship, entered into a civil conspiracy and defamed him. In that action, Whitted sought $750,000 in compensatory damages, plus punitive damages.
In a phone call, Whitted said he has plans to seek reinstatement to the Maryland bar. He further said that he made an offer to bar counsel for the
Attorney Grievance Commission at the time in April 2021 to fully pay child support. He said that bar counsel at that time, however, did not communicate his offer to his ex-wife.
Bar counsel for the Attorney Grievance Commission did not respond to a request for comment.
According to the high court, disciplinary action taken by another state typically leads to the imposition of reciprocal discipline in Maryland. Although the Attorney Grievance Commission requested Whitted’s disbarment, the high court declined to implement this disciplinary measure.
“There is no suggestion of misconduct by Mr. Whitted in any professional capacity,” the high court wrote. “That fact, combined with the lack of any prior discipline and his character and reputation, leads us to conclude that although Mr. Whitted should be sidelined, a sanction short of disbarment is warranted.”
THE DAILY RECORD/FILE PHOTO
The Maryland Supreme Court determined that Stephen E. Whitted violated Washington state’s attorney rules for professional conduct and is suspended indefinitely from practicing law in Maryland.
Guest Column
Family Law Burnout 2.0 – Here’s my story
We all know it. Family law is famous for the highest burnout rates in a profession that tends to burn out even its most successful professionals. Gray Robinson (who made a second career out of understanding and working to prevent family law burnout) identifies positive thinking, building resilience and committing to a life outside of work as some key strategies for preventing family law burnout.
But is it possible, dare I say it, that not all burnout is bad? Perhaps feeling burned out – like you just can’t keep trudging forward in the traditional practice anymore – can spark creativity, innovation and the courage to try something new.
Robinson quit practicing law in 2004 after 27 years as a successful family law and trial attorney. In a recent interview, he describes his own burnout: “What happened to me was that I got mentally, physically, spiritually, and emotionally burnt out, exhausted … I just got to the point where I could not go to the office and confront what I had to do on a daily basis.”
After leaving the practice of law, he went on to study burnout and to coach other professionals on how to avoid the pitfalls of burning out.
Robinson’s strategies are incredibly useful – and I felt like I had tried them over the years. I took my family law mentor’s advice and took more vacations than seemed “reasonable” – and I tried to really make them proper vacations (stepping away from e-mail and phone). I stopped taking my clients’ problems “personally” as if they were my own and drew healthy boundaries, while maintain professional zealousness.
I began teaching and appearing on television on the side, because I felt like these activities used a different part of my brain and kept things fresh. I leveraged staff and
other attorneys on my team so that I wasn’t “on call” 24 hours a day -- and all of that got me pretty far.
But family law burnout chased me – like wraith horsemen from Lord of the Rings – no matter how fast I ran, the pounding of their horses’ hooves thundered just behind me. And one day (almost 20 years after law school), they caught up.
In addition to living life in six-minute billable units, clients in a constant state of crisis, and the impossibly high stakes of cases dealing with domestic violence and child safety, there were other family law challenges whose toll became heavier over time. As a working mother who had children later in life, it became increasingly difficult to reconcile the demands of my family law clients and a litigation-driven practice with the needs of my children.
I also spent the last five years at a quickly growing firm with a generalized practice, where I felt unable to “compete” with the hours of my corporate law or general litigation colleagues, who worked very hard, but generally had the luxury of dealing in subject matter that wouldn’t break your heart or bring you to
tears.
So, on July 1, I left, and now find myself on the eve of launching my own company. Could I have leveraged Robinson’s strategies to stave off burnout for a few more years? Certainly.
But instead, I did something crazy – I listened. I leaned in. I acknowledged the pounding of my own heart as I heard the horsemen behind me. I let myself feel the exhaustion – physical, emotional and spiritual – like I was trying to run through quicksand. Instead of denying it, I let the feelings of burnout guide me toward courage and innovation.
I loosened up on the mental reins and allowed my brain to gallop with the kind of creativity that seems inappropriate in a traditional law practice. I found my inner entrepreneur.
Through the The Pivot Process I will offer mediation services in addition to a series of innovative technology products designed to assist individuals and families through divorce, while fostering healthy co-parenting relationships and reducing conflict. I will also keep my hand in traditional family law cases by serving as “of counsel” for family law boutique Rice Law in Annapolis.
Of course, this path involves financial risk, its own heavy mental lift, and a myriad of new challenges, but when the inner voice of “burnout” persists (even after we employ all of Robinson’s strategies), perhaps it is time to listen – and use that voice as a force for positive change. We spend our lives helping others usher in new chapters in life. Perhaps it is time we were less afraid of our own reinvention.
Morgan E. Foster is a veteran family law practitioner and the founder of The Pivot Process. She can be reached at morgan@pivotprocess.com..
Morgan E. Foster
A court ordered ex-husband to sell house. 36 years later, he still hasn’t
A Virginia court has found a man in civil contempt for willfully ignoring an order 36 years ago to sell his former marital residence and give $100,000 of the proceeds to his wife.
The Fairfax County Circuit Court ordered the man to pay his ex-wife $243,729 (because of appreciation), plus $80,000 in reduced attorney fees and costs.
Geraldine K. Richter, former wife of Paul S. Richter, had sought enforcement of the court’s prior order directing the sale of the former marital residence, more than 36 years after entry of the governing final decree of divorce, so as to collect the $100,000 contingent thereon. She also sought prejudgment interest and attorney fees and costs.
Paul had responded that, while the decree required him to sell the property, the timing of such sale was left to his determination and, because he has not yet made a decision to sell the property, he owes nothing to his former wife at present.
The case is Richter v. Richter, Case No. CL-2022-13830, Aug. 1, 2024.
BridgeTower Media
Missouri now requires proof of surgery or court order for gender changes on IDs
Missouri residents now must provide proof of gender-affirmation surgery or a court order to update their gender on driver’s licenses following a Revenue Department policy change.
Previously, Missouri required doctor approval, but not surgery, to change the gender listed on state-issued identification.
Missouri’s Revenue Department did not comment on what prompted the change but explained the new rules in a statement provided to The Associated Press.
“Customers are required to provide either medical documentation that they have undergone gender reassignment surgery, or a court order declaring gender designation to obtain a driver license or nondriver ID card denoting gender other than their biological gender assigned at birth,” spokesperson Anne Marie Moy said in the statement.
LGBTQ+ rights advocacy group
Monthly Memo
PROMO on Monday criticized the policy shift as having been done “secretly.”
Missouri does not have laws dictating transgender people’s bathroom use. But Missouri is among at least 24 states that have adopted laws restricting or banning gender-affirming medical care for minors.
Associated Press
Virginia appeals court: $3,500 a month for nanny is reasonable, necessary expense
A circuit court’s finding that $3,500 per month was a reasonable and necessary work-related child care expense when it calculated a husband’s child support obligation has been affirmed by a panel of the Court of Appeals of Virginia.
The husband argued that his wife unilaterally retained the nanny, then claimed the entire amount as a workrelated child care expense right before the final court hearing. But the record showed that the parties had a different nanny for more than five years.
“[C]ontrary to husband’s assertions, both husband and wife interviewed and hired the new nanny, who started a few days after the previous nanny left,” the appeals court said. “Considering the parties’ circumstances and their joint decision to hire the new nanny, the circuit court was not plainly wrong in finding that $3,500 was a ‘reasonable and necessary’ work-related child care expense.”
The unpublished per curiam opinion is Mehari v. Mesfun-Mehari.
BridgeTower Media
N.Y. family court judge again reprimanded; order reversed
An Onondaga County Family Court judge with a history of inappropriate conduct has again been reprimanded by a New York state appeals court for her handling of a child support matter and ordered the case reassigned to a different judge.
In March 2023, Judge Julie A. Cerio sentenced Marsheen B. Taylor to six months in the Onondaga County Correctional Facility after an impromptu hearing where she behaved inappropriately, according to a recent decision by the Appellate Division of state Supreme Court, Fourth Department.
The Fourth Department panel voted
unanimously to reverse Cerio’s order that Taylor willfully violated a prior order of child support.
“We agree with respondent that Family Court erred when it determined that his alleged violation of the child support order was willful and sentenced him to incarceration because the court did not afford respondent the right to a fair hearing,” the court wrote.
Cerio “had a predetermined outcome of the case in mind during the hearing and took on the function and appearance of an advocate,” the Fourth Department wrote.
“If Taylor wants to be cheeky with me, we’ll be cheeky,” Cerio said in court.
The Fourth Department has criticized Cerio’s courtroom conduct in two previous written decisions and raised questions in a third case during oral arguments.
BridgeTower Media
5 Costa Rican welfare officials charged with trafficking children for adoption
Five officials from Costa Rica’s child welfare agency were arrested on charges they were involved in trafficking children for the purpose of adoption, authorities said.
Randall Zúñiga, head of the country’s main investigative agency, the Judicial Investigation Agency, said in a video statement that the case began in 2022 when the then-president of the child welfare agency reported irregularities in adoptions at one of the agency’s regional offices.
The arrested officials worked as lawyers and social workers.
“The investigation determined that these people included false information on reports they generated, for example saying that a family consumed drugs as a basis for removing that child from the family and being able to take it to a care center,” Zúñiga said.
Once they were in state care, the accused allegedly applied to adopt the children or to be assigned as their temporary caretakers and be paid by the government.
Authorities have not said how many children were involved or whether they have been located. Officials said the children were from Costa Rica.
Family Law Digest
Use the topic and case indexes at the back of this issue to find the full-text opinions that are of most interest to you.
IN THE COURT OF SPECIAL APPEALS: FULL TEXT UNREPORTED OPINIONS
The Appellate Court vacated the Prince George’s County Circuit Court’s appointment of a trustee to sell the marital home, the award of Crawford credits and distribution of any remaining proceeds from such sale, as well as the monetary award. As the parties neither jointly own the home nor consented to its sale, the court lacked the authority to do so. And because wife was neither an owner nor a mortgagor of the home, husband was not entitled to Crawford credits.
FOSTER CARE; BEST INTEREST; NEGLECT
In Re: J.E.
No. 1980, September Term 2023
Argued before: Graeff, Friedman, Beachley, JJ.
Opinion by: Friedman, J.
Filed: July 9, 2024
The Appellate Court held there is sufficient evidence to find that it is in the minor child’s best interest to leave the foster care system and return to the care of father, as long as the minor would not be subject to further neglect if placed in father’s care. It remanded the case to the Montgomery County Circuit Court for this determination.
The Appellate Court affirmed the Baltimore County Circuit Court’s termination of mother’s parental rights with respect to one of her children. The court’s findings regarding mother’s lack of progress are supported by evidence in the record and were not clearly erroneous; the Baltimore County Department of Social Services investigated all potential relative resources but found none willing and able to be a placement resource and the Department’s efforts to facilitate reunification with mother were reasonable.
CUSTODY; BEST INTERESTS; FAMILY HOME
Michelle L. Patail v. Daniel J. Wille
No. 1841, September Term 2023
Argued before: Berger, Leahy, Ripken, JJ.
Opinion by: Ripken, J.
Filed: July 2, 2024
The Appellate Court affirmed the Montgomery County Circuit Court’s order granting father full legal and primary physical custody of child, in addition to “exclusive Use and Possession of the family home” for three years commencing October 1, 2023. The record supports the court’s diligent application of the custody factors and includes ample support for the court’s determination that sole custody of child to father would advance child’s best interests.
The Appellate Court vacated the Baltimore County Circuit Court’s judgment granting father a judgment of absolute divorce, ordering the division of the parties’ personal property and assets and awarding father sole legal and physical custody of the minor children with mother having visitation. The trial court abused its discretion in denying mother’s motion for a continuance because it appears from the record that the courts’ determination was based on several factual errors that have greater significance given the child custody issues at stake.
The Appellate Court affirmed the Anne Arundel County Circuit Court’s sanction striking husband’s divorce complaint and precluding husband from presenting evidence at trial. Not only did husband repeatedly fail to produce the requested discovery responses, but his failure was substantial.
JURISDICTION; TRANSFER; REUNIFICATION
In Re: A.B.
No. 1960, September Term 2023
Argued before: Graeff, Friedman, Beachley, JJ.
Opinion by: Beachley, J.
Filed: June 24, 2024
The Appellate Court affirmed the Calvert County Circuit Court’s transfer of jurisdiction of the child’s case to West Virginia, where the mother, father and grandparents lived. Given that the principal witnesses to the parents’ recent progress toward reunification were in West Virginia, the court determined that West Virginia was well-suited to review and work toward implementation of the permanency.
The Appellate Court affirmed the Baltimore County Circuit Court’s constructive civil contempt finding after concluding father had sufficient funds to pay his current child support plus the arrears but had chosen not to do. The court’s written order established the arrears, imposed a sanction of incarceration and articulated that father could avoid jail time by meeting his child support obligation while paying down the arrears at an established rate.
The Appellate Court affirmed the Anne Arundel County Circuit Court’s make-up visitation order. Because father was not justified in denying mother’s scheduled visitation, the court could order makeup visitation.
The Appellate Court affirmed the Prince George’s County Circuit Court’s termination of father’s parental rights. The court methodically and comprehensively analyzed the requisite statutory factors, made findings based on those factors that were not clearly erroneous and applied the correct legal standard in reaching its ultimate conclusions.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Anne Arundel County Circuit Court’s judgment of divorce but vacated its monetary, alimony and attorney’s fees awards.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
the ensuing decade, the parties resided there together as an unmarried couple. Wife gave birth to their first child, Wilbur III in 1994. The parties, both of whom had been employed since they met, continued to work during Wife’s pregnancy and after Wilbur’s birth.
Husband and Wife were married in July 2003 in a religious ceremony performed in Nassau, Bahamas. The parties conceived a second child that same year. Upon learning of the pregnancy, Husband proposed that Wife become a stay-at-home mother until the child reached five years of age, at which time she would return to work. Wife agreed and discontinued her employment shortly before the birth of their second son, Ivan in 2004.
This pro se appeal arises from a Judgment of Absolute Divorce by the Circuit Court for Prince George’s County dissolving the marriage of Appellant, Wilbur E. Brown, Jr., and Appellee, Andrea B. Williams-Brown. In its divorce decree, the court granted Wife a monetary award and ordered the appointment of a trustee to sell the marital home, with $51,293.29 of the proceeds to be distributed to Husband as Crawford credits and any remainder to be divided equally between the parties.1 Husband timely appealed.2 In his informal appellate brief, Husband presents four issues for our review, which we have consolidated, reordered, and rephrased as follows:3
1. Did the court abuse its discretion by ordering that the marital home be sold?
2. Did the court commit reversible error in calculating the Crawford credits it awarded Husband?
For the reasons that follow, we vacate the appointment of a trustee to sell the marital home, the award of Crawford credits and distribution of any remaining proceeds from such sale, as well as the monetary award. We remand with instructions that the circuit court reconsider whether to grant a monetary award and the amount thereof.
BACKGROUND
Underlying Facts
At all times relevant to this case, Husband—but not Wife— was title owner and mortgagor of a house in Prince George’s County (“the Home”), which he purchased on February 11, 1983, for $82,500. Wife met Husband in or around 1991 and moved into the Home approximately one year later. Throughout
Consistent with their agreement, Husband was the sole “breadwinner” during the five years following Ivan’s birth, while Wife assumed the role of homemaker and primary caregiver to the children. When Ivan entered kindergarten at age five, Wife chose to remain at home rather than obtain employment.4 According to Husband, her decision to do so was a source of marital tension, particularly given that, at approximately the same time, he “ended up getting a job that paid less money and . . . needed the additional income to help with the household.” Husband continued to work until he lost his job in or around 2012 and began receiving Social Security Disability benefits, which have since been his sole source of income.5
The parties separated on or about April 20, 2015, following allegations of domestic violence, and have since lived separate and apart, with Wife continuing to reside in the Home with their sons.6 In September of 2015, Wife obtained a one-year protective order against Husband, directing him to immediately vacate the Home and granting her temporary use and possession thereof.7
Throughout the separation, Husband’s sister provided both parties with financial support. For his part, Husband testified that his sister had permitted him to reside with her, assisted him in removing the Home from foreclosure, and contributed to his monthly mortgage payments.8 Wife, on the other hand, averred that her sister-in-law had both been making mortgage payments on the Home “since it [came] out of foreclosure” and helped her to finance repairs and improvements to it.9 With the exception of his contributions to the mortgage, Husband has not provided Wife with any financial support since they separated. Since 2015, Wife has relied upon “[t]he [g]overnment, [her] sister[-] in[-]law, and family members” for financial support.
Procedural History
On July 10, 2022, Husband filed a complaint for absolute divorce on the ground of a one-year voluntary separation. In
that complaint, he sought, among other things, exclusive use and possession of the Home, Wife’s removal therefrom, and “a monetary award . . . after adjusting the parties’ rights and equities in marital property and debt.” On September 6, 2022, Wife filed an answer to Husband’s complaint as well as a counterclaim for absolute divorce on the grounds of separation, adultery, actual and constructive desertion, cruelty, and excessively vicious conduct. In her counter-complaint, Wife sought, inter alia, “[her] share of the property or its value[,]” “[t]ransfer of the real property jointly owned by the parties[,]” and an alimony award. Husband filed an answer to Wife’s counterclaim on October 12, 2022. In that answer, he denied Wife’s allegations of wrongful conduct and asked that the court dismiss her counter-complaint and deny her requests for “the transfer of real property” and alimony.
Following a two-day merits hearing, the court announced its decision from the bench, stating, in part: With respect to marital property, there are three steps that the [c]ourt must make in making a monetary award. The first step[ is] to identify the marital property. Second, the value of that property and third, to make an award of marital property. * * *
The [c]ourt finds that the [Home] is marital property. It is undisputed that since 2003, [Husband] used marital funds to pay the mortgage of the [Home] and other expenses. The record is sparse as to the value of the [Home] . . . .
In fact, the record has conflicting analys[e]s regarding the value of the [Home] according to the joint statement of property. [Husband] asserts that the current value of the [Home] is $238,000. [Wife] asserts that the current value of the [Home] is $300,000. Neither party provided evidence as to the current valuation of the [Home] other than a Zillow valuation estimate. Not only is that Zillow estimate hearsay, it is not a credible source of valuation of residen[tial] property.
The [c]ourt declines to make up numbers or mathematical algorithms to unearth the marital or nonmarital percentages of the . . . [H]ome. It is clear that marital funds have been used to pay for the [Home] since . . . 2003 which is 20 years. It is also clear that the [Home] was financed in 2008 during the marriage. It is unknown what marital funds were used for the closing or if [Husband] took out any equity in the home which is also considered to be marital property arguably.
Therefore, the [c]ourt finds the [Home] is considered to be marital property. And the [c]ourt . . . will appoint a trustee and order the [Home] to be sold. [Husband] however is entitled to a Crawford credit of $51,293.29. Although [Husband] has not been at the . . . [H]ome since at least 2014, due to what the parties claim was a [domestic violence] order, it is undisputed that he paid the mortgage, property taxes and insurance from the time that he left to present day.
Subtract 2014 as the year that he was ordered out of the
home, [Husband] is entitled to a Crawford credit for half the value of each mortgage payment from 2015 to present. That amount is $48,604.29. The [c]ourt also finds that he is entitled to the proceeds of insurance claim[s] that are fraudulently submitted in his name in the amount of $2,689.[10] After the sale of the [Home] and after the lien is satisfied, [Husband] is entitled to $51,293.29. If there are any proceeds left over, then the parties will divide th[em] equally.
“Based on the evidence established at trial” and after considering the factors enumerated in Maryland Code (1984, 2019 Repl. Vol.), § 8-205(b) of the Family Law Article (“FL”), the court granted Wife a monetary award in the amount of $375 but denied her request for alimony.
The court memorialized its oral ruling in a written order entered on April 6, 2023, which provided, in pertinent part:
ORDERED, that [Wife] is granted a monetary award in the amount of Three Hundred Seventy Five ($375.00) Dollars, and it is further, * * *
ORDERED, that a trustee shall be appointed to sell the . . . [H]ome .. . , and from the proceeds of sale, [Husband] shall be entitled to Fifty One Thousand, Two Hundred Ninety Three Dollars and Twenty-Nine Cents ($51,293.29) as contribution, and the remainder of the proceeds shall be divided equally among the parties[.]
Husband timely appealed.
We will include additional facts as necessary to our resolution of the issues presented.
STANDARD OF REVIEW
“Pursuant to Maryland Rule 8-131(c), where, as here, an action has been tried without a jury, the appellate court will review the case on both the law and the evidence.”11 Friedman v. Hannan, 412 Md. 328, 335 (2010). We “accord great deference to the findings and judgments of trial judges, sitting in their equitable capacity, when conducting divorce proceedings.” Boemio v. Boemio, 414 Md. 118, 124 (2010) (quotation marks and citation omitted).
We review the trial court’s factual findings for clear error and will not disturb such findings if there is any competent evidence in support thereof. See Friedman, 412 Md. at 33536 (“If there is any competent evidence to support the factual findings below, those findings cannot be held to be clearly erroneous.” (quotation marks and citation omitted)). We owe no deference, however, to the court’s resolution of purely legal questions. See Shih Ping Li v. Tzu Lee, 210 Md. App. 73, 96 (2013) (“‘[R]egarding pure questions of law, the trial court enjoys no deferential appellate review, and the appellate court must apply the law as it discerns it to be.’” (quotation marks and citation omitted)), aff’d, 437 Md. 47 (2014). Thus, “[w]e review the circuit court’s . . . legal conclusions de novo.” Id. Finally, in a divorce case such as this, we review the circuit court’s distribution of marital property, its “decision regarding whether to grant a monetary award, and the amount of such an award, . . . for abuse of discretion.” Brown v. Brown, 195 Md. App. 72, 110 n.19 (2010). See also Jocelyn P. v. Joshua P., 250 Md. App. 435, 463 (2021) (“[W]e review a trial court’s distribution of marital property for abuse of discretion.”).
DISCUSSION
I.
Husband contends that the court abused its discretion by ordering the sale of the Home in lieu of permitting either party to buy out the other’s interest therein. Attributing the court’s decision to insufficient evidence on which to base a reasonable valuation, Husband suggests that “an appraisal of the . . . [H] ome’s condition may have provided a fair market value basis for the court to authorize one of the parties to purchase the interest of the other[.]” He argues that foregoing an appraisal and opting instead for a court-ordered sale was “not in the best interest of the divorcing parties—financially or emotionally.” We agree that the court erred in ordering the sale of the Home, albeit for a different reason than that advanced by Husband.12
When equitably distributing marital property and a prerequisite to granting a monetary award to adjust the rights and equities of the parties therein, Maryland courts conduct a three-step analysis. Alston v. Alston, 331 Md. 496, 512 (1993). First, “‘if there is a dispute as to whether certain property is marital property, the court shall determine which property is marital property[.]” FL § 8-203(a). Secondly, with certain exceptions not here relevant, “the court shall determine the value of all marital property.” FL § 8- 204(a). Finally, “the court may transfer ownership of an interest in [certain] property . . . , grant a monetary award, or both, as an adjustment of the equities and rights of the parties concerning marital property[.]” FL § 8-205(a)(1).
The meaning of “marital property” is clearly critical to the proper application of the first and second analytical steps. See Green v. Green, 64 Md. App. 122, 133 (1985) (“It is clear that steps 1 and 2 hinge on the definition of ‘marital property.’”). FL § 8-201(e)(1) defines “marital property” as “property, however titled, acquired by 1 or both parties during the marriage.” (emphasis added). As is evident from the plain language of FL § 8- 201(e)(1), “‘[m]arital’ and ‘nonmarital’ are adjectives descriptive not of ownership . . . but merely of the time or manner of acquisition by either or both spouses.” Kline v. Kline, 85 Md. App. 28, 43 (1990), cert. denied, 322 Md. 240 (1991) Thus, the designation of property as “marital or nonmarital has nothing whatsoever to do with who owns it[.]” Id. Although ownership is not directly relevant to the classification or valuation of marital assets, it is potentially dispositive of a court’s authority to order the sale or transfer of the parties’ property. Generally, “the court may not transfer the ownership of personal or real property from one party to the other.” FL § 8-202(a). In other words, a divorce court is not ordinarily “‘empowered to alter title to real or personal property held by the parties or to directly divide or distribute that property in a way that is inconsistent with title[.]’” Lohman v. Lohman, 331 Md. 113, 127 (1993) (quoting Herget v. Herget, 319 Md. 466, 471 (1990)). That general rule is, however, subject to certain exceptions enumerated in FL § 8-205(a)(2). Pursuant to FL § 8-205(a)(2), a court may “transfer ownership of an interest in . . . real property jointly owned by the parties and used as the principal residence of the parties when they lived together[.]” (emphasis added). Courts lack the authority, however, to transfer an ownership interest in individually titled real property. Thus, a court must divide such property according to title and, if it determines that doing so would be
unfair, “may make a monetary award to rectify any inequity created by the way in which property acquired during marriage happened to be titled.” Abdullahi v. Zanini, 241 Md. App. 372, 406 (2019) (quotation marks and citations omitted). See also Reichert v. Hornbeck, 210 Md. App. 282, 360-61 (2013) (“The monetary award is . . . an addition to and not a substitution for legal division of the property accumulated during the marriage, according to title. It is intended to compensate a spouse who holds title to less than an equitable portion of that property[.]” (quotation marks and citation omitted)).
Although it authorizes a court to grant a monetary award to adjust the parties’ rights and equities in marital property, FL § 8-205 “does not carry with it a right in the court to determine the assets that will be transferred or utilized to fund that award.” Blake v. Blake, 81 Md. App. 712, 726 (1990). Thus, without the parties’ consent, a court cannot order the sale of their individually—rather than jointly—owned property and the division of the proceeds therefrom. See Brewer v. Brewer, 156 Md. App. 77, 114 (holding that the court “had no authority to order the sale of [personal] property and the division of the proceeds[,]” as it “was owned by the parties individually, not jointly”), cert. denied, 381 Md. 677 (2004); Jandorf v. Jandorf, 100 Md. App. 429, 438 (1994) (“[T]he court has authority only to order the sale of jointly owned property.”); Fox v. Fox, 85 Md. App. 448, 454 n.2 (1991) (“Absent consent of the parties, ordering the sale of property owned solely by the husband and the transfer of the husband’s property to the wife, instead of increasing the monetary award pro tanto, was improper.”).
In this case, the evidence clearly indicated (and the parties agreed) that Husband was the sole title owner and mortgagor of the Home. In their joint statement of marital and nonmarital property, which was admitted in evidence without objection, the parties stipulated that the Home was titled solely to Husband. At the hearing, moreover, Wife expressly averred that Husband— and not she—was the title holder and mortgagor of the Home, testifying as follows:
Q And [the Home] is not titled in your name?
A That is correct.
Q It was titled to [Husband]?
A Correct.
Q And are you not on the mortgage set up properly either?
A Also correct.
Q And to your knowledge, . . . the mortgage is only in [Husband]’s name?
A Yes, ma’am. You are correct, again. The parties’ respective attorneys also repeatedly represented that Husband was the Home’s sole title owner. Speaking on his behalf, Husband’s counsel advised the court:
The [Home] is currently titled and mortgaged to [Husband] and he has been the sole person making payments on [it].
* * *
[T]he [Home] is not titled in [Wife’s] name.
* * *
All of the property is titled in [Husband]’s name. Wife’s attorney, in turn, stated: We agree that the [Home] is titled in [Husband’s] [name].
* * *
[T]here is no dispute . . . from [Wife] that the title of the [Home] is [in Husband’s name].
The court’s findings did not contravene these undisputed facts. Although in announcing its decision, the court determined that the Home was marital property, it did not address the separate and distinct issue of ownership. Instead, it cursorily ordered the appointment of a trustee to sell the Home. As the parties neither jointly own the Home nor consented to its sale, the court lacked the authority to do so. We must therefore vacate those portions of the court’s order directing the sale of the Home and the distribution of the proceeds therefrom.
II.
Husband also asserts that the court committed reversible error by miscalculating the Crawford credits it awarded him. He advances three arguments in support of that contention. First, he complains that the court failed to ascertain the extent to which his sister contributed to the carrying costs on the Home.13 Secondly, Husband claims that the court’s Crawford credit calculations “appear[] to have been based on an average monthly mortgage payment, including tax and insurance, of $1,012.59 for eight years (March 2015 – March 2023), which is a lower average than actual.” Finally, Husband represents that Wife retained “exclusive use and possession of the [H]ome” for (at least) five months following the date of the divorce decree, while he continued to make monthly mortgage payments in the amount of $1,117.34. As the court’s order did not include a provision pertaining to use and possession of the Home pending its sale, Husband seems to assert that he is entitled to an additional $5,586.70 in Crawford credits.
Husband’s arguments presuppose that he was entitled to an award of Crawford credits in the first instance. As Wife was neither an owner nor a mortgagor of the Home, however, he was not entitled to such an award. We will not reach the merits of Husband’s arguments. We vacate the court’s Crawford credit award.
In Crawford, supra, the Supreme Court of Maryland was called upon to resolve the tension between “the general law of contribution that applies to co-tenants” and “the presumption of gift doctrine[.]” 293 Md. at 309. The former principle provides that “one co-tenant who pays the mortgage, taxes, and other carrying charges of jointly owned property is entitled to contribution from the other.” Id. (emphasis added). Under the latter doctrine, “[w]hen the co-tenants are married to each other, . . . a presumption of gift usually arises as to any payment made to purchase the property; to improve the property; or to preserve the property[.]” Id. at 311 (internal citations omitted). Application of the presumption of gift doctrine therefore ostensibly “defeat[s] the payor spouse’s entitlement to contribution.” Flanagan v. Flanagan, 181 Md. App. 492, 540 (2008). The Court held, however, that “this presumption arises only when the parties are living together as husband and wife.” Crawford, 293 Md. at 311. The Crawford Court thus “‘abolished the presumption of gift between separated spouses and permitted a spouse to seek contribution in those instances when married parties were not residing together and one of them . . . had paid a disproportionate amount of the carrying costs of property.’” Gordon v. Gordon, 174 Md. App. 583, 641
(2007) (quoting Baran, 114 Md. App. at 328). Accord Turner v. Turner, 147 Md. App. 350, 406 (2002).
“The right to contribution between cotenants exists to [e] nsure that a cotenant of property who advances money for the common benefit of all the cotenants should be reimbursed by his cotenants for their pro rata share of the money advanced.” Kamin-A- Kalaw v. Dulic, 322 Md. 49, 55 (1991). See also DiTommasi v. DiTommasi, 27 Md. App. 241, 259-60 (1975) (“‘Generally, when one of two or more co-owners of an equity of redemption satisfies the mortgage debt or other encumbrance upon their common property and that payment inures to the benefit of other owners, the payor is entitled to receive contribution from his co-tenants to the extent he has paid their share.’” (quoting Aiello v. Aiello, 268 Md. 513, 518-19 (1973))). Such a payment by one cotenant inures to the benefit of another if it “protects . . . common property against loss or . . . enhances the value of . . . common property[.]” Kline, 85 Md. App. at 49. Thus, one cotenant may be “entitled” to contribution from another for disproportionate payments he or she makes on a debt encumbering their co-owned property (e.g., a mortgage), thereby protecting both of their interests therein.14 See Spessard v. Spessard, 64 Md. App. 83, 93 (1985) (“[W]hen one cotenant pays more than his share of taxes, interest on mortgages, and other necessary carrying charges, equity imposes on each cotenant the duty to contribute his proportionate share, since his interest has been protected from extinction by a tax or foreclosure sale.” (quotation marks and citation omitted)). In such circumstances, however, the payor is only eligible for contribution if the nonpaying party is an obligor on the underlying debt. See Aiello, 268 Md. at 518-19. See also Meyer v. Meyer, 193 Md. App. 640, 661 (2010) (“Father cites no cases in which a right of contribution was enforced against the share of a co-tenant who was not a party to the underlying debt.”); Kline, 85 Md. App. at 49 (explaining that absent eviction or ouster, an out-of-possession property owner is ineligible for contribution from a cotenant based solely upon the latter’s exclusive use and enjoyment of the premises).
As discussed supra, the record in this case reflects that Husband was the owner and mortgagor of the Home. Wife, by contrast, neither held title to the Home nor was a party to the mortgage.15 She did not, therefore, have any interest in the Home that Husband’s mortgage payments might protect or any liability they might reduce. Husband was not entitled to contribution from Wife for the mortgage payments he made during the parties’ separation. The court’s Crawford credit award is vacated.
CONCLUSION
For the reasons discussed above, we vacate the portions of the divorce decree requiring the sale of the Home, awarding Crawford credits to Husband, and directing distribution of any remaining proceeds from the sale. We are mindful that the court likely relied on the erroneous distribution of the proceeds from a sale when calculating the monetary award in favor of Wife. As it is the purpose and function of such an award “to achieve equity between the spouses where one spouse has a significantly higher percentage of the marital assets titled [in] his [or her] name,” we likewise vacate and remand Wife’s monetary award.16 Long v.
Long, 129 Md. App. 554, 577-78 (2000). Cf. Fox, 85 Md. App. at 461 (“In view of the fact that we are vacating and remanding . . . the monetary award, for further action by the court, we deem it appropriate to vacate as well those provisions of the divorce judgment that divided [certain marital property] (in lieu of increasing the monetary award pro tanto[.]”). We also note that “[i]n determining the amount and method of payment of the monetary award, the court must consider the statutory factors enumerated in Md. Fam. Law Code Ann. § 8–205(b). The failure to consider the statutory factors also requires that any monetary award be vacated.” Quinn v. Quinn, 83 Md. App. 460, 464–65 (1990). Finally, because we are vacating the court’s monetary award, so too must we vacate and remand the denial of Wife’s
JUDGMENT
request for alimony. See Turner, 147 Md. App. at 400 (“The factors underlying alimony, a monetary award, and counsel fees are so interrelated that, when a trial court considers a claim for any one of them, it must weigh the award of any other. Therefore, when this Court vacates one such award, we often vacate the remaining awards for re-evaluation.” (citations and footnote omitted)).
The court may, in its discretion, accept additional evidence, see Long v. Long, 141 Md. App. 341, 353 (2001), and the court must clarify, revise, and/or supplement its judgment (e.g., with respect to use and possession of the Home) in a manner consistent with this opinion.
OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY VACATED IN PART.
FOOTNOTES
1 The phrase “Crawford credits” is derived from Crawford v. Crawford, 293 Md. 307, 314 (1982), and refers to an award of contribution to a divorcing party for payments of the mortgage, taxes, insurance, and other carrying costs on real property made during a period of marital separation. See Baran v. Jaskulski, 114 Md. App. 322, 332 (1997) (“Crawford Credits—the general law of contribution between cotenants of jointly owned property applies when married parties, owning property jointly, separate. A married, but separated, cotenant is, in the absence of an ouster (or its equivalent) of the nonpaying spouse, entitled to contribution for those expenses the paying-spouse has paid.”). See also Freedenburg v. Freedenburg, 123 Md. App. 729, 737 n.1 (1998) (“A ‘Crawford Credit’ is a credit that one co-tenant, who, after separation, lays out money to make mortgage payments or other carrying charges on property held as tenants by the entireties, is usually entitled to receive, absent an agreement between the parties.”).
2 Wife neither filed an appellate brief nor otherwise participated in this appeal.
3 In his appellate brief, Husband phrased his questions presented as follows:
[1.] Did the court abuse discretion to ascertain source of funding and the mechanics?
[2.] Did the court err by omission to cease use and possession of the marital home?
[3.] Did the court err in calculation of “Crawford Contribution” credit?
[4.] Did the court abuse discretion to sale in lieu of partition using superficial property values to opt for sale as a more expedient course of action available under [FL] § 8-205?
4 At the merits hearing, Wife attributed her continued unemployment to the demands of her domestic duties,
as well as several medical conditions from which she suffers.
5 Husband testified that he was granted Social Security Disability benefits due to “bad case[s] of arthritis [and] gout[.]”
6 Wife testified that Ivan attends college and lives on campus, but returns to the Home while on break.
7 Although it is not included in the appellate record, we take judicial notice of the protective order entered in Prince George’s County Circuit Court Case Number CADV15- 24764, as it is available on MDEC. Cf. Lewis v. State, 229 Md. App. 86, 90 n.1 (2016) (“We take judicial notice of the docket entries . . . found on the Maryland Judiciary CaseSearch website, pursuant to Maryland Rule 5-201.”), aff’d, 452 Md. 663 (2017).
8 According to Husband, as of January 31, 2023, the monthly mortgage on the Home was approximately $1,150.
9 Wife testified that her sister-in-law paid for such renovations directly and then informed her “of the amount of the bill and the amount which she [wa]s going to charge [her].”
10 The court evidently is referring here to Husband’s allegation that Wife endorsed and either cashed or deposited two checks issued by Liberty Mutual, the Home’s insurance carrier, to Husband and made payable solely to him.
11 Maryland Rule 8-131(c) provides:
When an action has been tried without a jury, an appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.
12 We note in passing that the record does not support Husband’s assertion that the court ordered the appointment of a trustee to sell the Home in lieu of “authoriz[ing] one of the parties to purchase the interest of the
other[.]” To the contrary, the court expressly authorized such a buyout provided that the parties reached an agreement regarding the terms thereof. They did not do so, and that failure cannot be deemed an “error” committed by the court. Moreover, it was incumbent upon the parties and not the court to present evidence as to the Home’s value.
13 Husband concedes that he had not been “forthcoming” regarding the extent of his sister’s financial contributions, purportedly because he believed that the information was “not . . . subject to disclosure[.]” He also admits that because Ms. Moore sent the documents to counsel in March, her submission was “too late to affect the divorce.” Husband acknowledges that even if the documents had been timely sent and properly introduced into evidence, “there is no assurance that[,] in the scheme of equitable distribution, the outcome [would have] fare[d] differently.” He nevertheless asks that we remand this case to afford him an additional opportunity to introduce these records into evidence, claiming that they “have
the potential to affect the Crawford credit.” (emphasis added).
14 Although this Court has periodically referred to Crawford credits as contribution to which a payor spouse is “entitled,” the decision to award such contribution is discretionary—not mandatory. See Flanagan, 181 Md. App. at 541 (“[T]he court must exercise its discretion to determine whether Crawford credits are warranted, and it is therefore not accurate to say that the spouse who pays mortgage and other carrying charges that preserve the property is entitled to receive such credits in all cases.” (quotation marks and citation omitted; emphasis retained)); Keys v. Keys, 93 Md. App. 677, 681 (1992) (“A Crawford contribution claim . . . is not a matter of right but is an equitable remedy awarded within the discretion of the court.”). Thus, a court “is not obligated to award such contribution between [spouses] at the time of a divorce.” Gordon, 174 Md. App. at 641 (quotation marks and citations omitted).
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 06 MFLU Supp. 16 (2024)
Foster care; best interest; neglect
In Re: J.E.
No. 1980, September Term 2023
Argued before: Graeff, Friedman, Beachley, JJ.
Opinion by: Friedman, J.
Filed: July 9, 2024
The Appellate Court held there is sufficient evidence to find that it is in the minor child’s best interest to leave the foster care system and return to the care of father, as long as the minor would not be subject to further neglect if placed in father’s care. It remanded the case to the Montgomery County Circuit Court for this determination.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
When the Department social worker responded to the hotel room, it was dirty and in disarray, had a foul odor, and contained a toilet filled nearly to the brim with urine and feces. Because Mother was refusing to return, the Department removed the children and placed them in emergency shelter care. Mother was informed that the Department had taken the children but expressed no interest in seeing them that evening.
In this appeal, we are asked to determine whether the Circuit Court for Montgomery County, sitting as a juvenile court, erred in placing J.E. in the care of J.E., Sr., (“Father”) under an Order of Protective Supervision. For the reasons that follow, we conclude that the juvenile court failed to make the required express determination that J.E. would not be subject to further neglect if placed in Father’s care. MD. CODE, FAMILY LAW (“FL”) § 9- 101. We therefore remand the matter to the juvenile court to make such a determination on the record. We otherwise affirm the juvenile court’s order.
BACKGROUND
In June of 2023, appellant T.S. (“Mother”) moved her minor children J.E. (born October 2019) and R.P. (born July 2013) from Texas to Montgomery County, Maryland, without notifying Father or asking his permission, as required by the parents’ custody order.1 Several months later, on September 25, 2023, police officers responded to a complaint at the Red Roof Inn in Rockville in response to a report of trespassing and failure to pay. Although no one answered when the officers knocked on the door, the latch prevented entrance. After maintenance workers removed the latch, the officers found two naked children, later identified as J.E. and R.P., then aged three and ten respectively, on one of the beds. The officers were concerned for the children’s safety and spoke on the phone with Mother several times. During the calls, Mother told the officers that she was in several different nearby locations, including the hotel’s laundry area and a convenience store across the street. Although the officers instructed Mother to return and remained at the hotel for more than three hours, she refused to comply. While waiting, the police contacted the Montgomery County Department of Health and Human Services (the “Department”).
The following day, the Department filed an emergency shelter hearing request and a petition for J.E. and R.P. to be found children in need of assistance (“CINA”).2 The juvenile court ordered them to remain in interim shelter care, in the temporary care and custody of the Department. On October 2, 2023, the Department amended its CINA petition to add information it had learned about the family’s child welfare background in Texas, stating that: (1) Mother had been investigated for drug use and neglect in 2014; (2) R.P. had been evaluated for sexual abuse following sexualized acting out behavior in 2019; (3) Father had been investigated for neglect and drug use in 2021 after he left J.E. with a woman who also used drugs; (4) Mother was investigated in 2021 for neglect and physical abuse for being overly aggressive in disciplining the children; (5) there were reports of domestic violence between Mother and Father in 2021 and 2022, but Mother refused to cooperate or seek services; (6) in July 2022, a Texas court order established there had been domestic violence between Mother and Father, but Mother was uncooperative in the investigation; (7) in September and December 2022, Mother was investigated for physical abuse of R.P. and J.E., and the Texas authorities expressed concern for her mental health; and (8) in April 2023, Mother had been evicted from her apartment.
That same day the juvenile court held a shelter care hearing at which Mother and Father appeared remotely. The juvenile court granted the Department’s request for shelter care. The court’s written order granted Father supervised virtual weekly visitation with J.E. and granted Mother supervised in-person weekly visitation with J.E. and R.P.
On October 23, 2023, the Department filed a second amended CINA petition, which added more references to the Texas child welfare record after Department social worker Corey Magee had spoken with her Texas counterpart, Jordan Ercolani, a caseworker for the Texas Department of Child & Protective Services. Ms. Ercolani had explained that the Texas Department had a long history with Mother, including an open case that had been ongoing since April 2023. Ms. Ercolani relayed that Mother had been diagnosed with bipolar and stress-related trauma disorder, often skipped court cases, had warrants for her arrest, and that the Texas Department had tried to remove
the children but were unable to because Mother had provided a false address. In addition, Ms. Ercolani noted that Mother had made allegations of domestic violence against Father and that at the time Mother left Texas with the children, Father had been attempting to modify the existing visitation order because Mother was not showing up to transfer J.E. for visits.3 Ms. Ercolani believed removal of the children from Mother’s care would be advisable.
The second amended petition also explained that since the children’s removal in September 2023, Mother had attended only one visit with them—when she could have had four— and missed scheduled meetings with the Department. In addition, Department workers were unable to follow-up with Mother about the missed visits because she had given them an apparently false address. In contrast, Father had traveled to Maryland to see J.E. and had a “very appropriate, productive visit” with the child. Father advised the Department that Mother had falsified a family violence case against him, which was later dismissed. Despite Father’s efforts, however, the Department could not recommend placement of J.E. with him until it sorted out the Texas allegations of domestic violence.
At the adjudication and disposition hearing on October 25, 2023, Ms. Ercolani was qualified by the juvenile court as an expert in the field of child safety and risk and testified remotely from Texas. She informed the juvenile court that she had become involved with R.P. and J.E. in April 2023 and had determined that the family was “very high risk” with regard to the safety of the children, based on Mother’s and Father’s continuing conflict and Mother’s failure to engage with the Texas Department.
In addition to the information that had been included in the second amended petition, Ms. Ercolani further explained that R.P. and J.E. were bonded to each other, but during her visits to their home, the children were often using their electronic devices and she did not see a lot of hands-on parenting by Mother. She acknowledged that all the investigations of Mother were eventually closed without further action, but noted that Mother’s failure to maintain a consistent residence made it challenging for the Texas Department to intervene. In fact, at the time that Mother left Texas, Ms. Ercolani had been using a private investigator to try to locate Mother.
Ms. Ercolani believed both parents would benefit from services, such as individual and domestic violence counseling, and that significant progress should be made before the children returned to either parent’s home. Ms. Ercolani told the juvenile court that she would have concerns about J.E. being returned to Father’s care “if domestic violence were to happen in front of the children again.” She recommended that Father enroll in the Texas Batterer Intervention Program, and if he took the program seriously, Ms. Ercolani said she would feel comfortable with J.E.’s return to Father’s care because he had been cooperative with the Department and appeared motivated to engage in services.
Corey Magee, the Montgomery County Department social worker, was accepted by the court as an expert in social work and safety and risk. Ms. Magee testified that she had become involved with the family on September 25, 2023, after Mother refused to return to the motel room and the police contacted the Department. Ms. Magee had also called Mother twice and
told her that if she did not return to the motel room to reunify with her children, the Department would have to take custody of them and place them in foster care. Although Mother had said she would return, she did not. After she left the motel with the children, R.P. told Ms. Magee that Mother had left the hotel room and hadn’t returned and he didn’t know where she had gone. R.P. also said that, in Texas, he had seen Father once choke Mother to the point of unconsciousness.
After the children were placed in foster care, Mother called Ms. Magee and explained that she and the children had fled domestic violence in Texas and that she had been afraid to return to the hotel because of the police presence, because she had outstanding warrants for her arrest and was in hiding from her ex-husband who had strangled her in another state. Despite repeated attempts to have Mother meet with her, Ms. Magee said that Mother did not appear for any appointment until the day before the hearing. Similarly, Mother missed several scheduled meetings with the children and had only visited with them once since their placement in shelter care, and that visit was “awkward, at best.”
In contrast, when Ms. Magee reached out to Father, he responded immediately, had remained cooperative with the Department, and had flown from Texas to visit J.E.
It was Ms. Magee’s recommendation that J.E. be placed with Father because the Department would still be able to work with him and refer him to services in Texas if necessary. Ms. Magee did not believe the children would be safe if returned to Mother. Given Mother’s various stories about domestic violence in Texas, and her use of different names, phone numbers, and addresses, Ms. Magee was concerned that the children were simply repeating her claims of violence rather than reporting something they had actually witnessed.
Father testified that prior to Mother’s move to Maryland, she had limited his visitation with J.E., in violation of their custody order. He said the assault charge Mother had brought against him was false and had been dismissed for lack of evidence. Father acknowledged that he did violate a protection order by going to Mother’s home to see the children, despite that it had been at her invitation, but he had received probation for that infraction and the probationary period had ended.
Father also addressed an injury J.E. had sustained while in his care in 2022. He said that J.E. had engaged in a temper tantrum as Father unbuckled him from his car seat, causing him to fall out of Father’s truck and break his collar bone. The injury, Father said, was accidental. He was also adamant that the incident R.P. had described of Father choking Mother was “[a]bsolutely untrue” and “never happened.” Father agreed he would cooperate with the Texas Department relating to services and counseling if J.E. were returned to him. Mother testified that she moved from Texas to Maryland to get away from domestic violence and fighting with Father, as well as from the racism in the south. She described that Father had a history of violence and trying to control her. When she arrived in Maryland, she had been placed at the Red Roof Inn through a domestic violence assistance organization. Mother explained that on September 25, 2023, she had argued with the hotel manager about her bill and then gone to do some laundry when R.P. called to say the police were in their room. She said she had panicked, afraid to
go back to the room because she feared the police would arrest her for an outstanding warrant in Texas.
Mother described that during her one visit with the children they were crying because they wanted to be with her. She further stated that if J.E. were to go back to Texas, she believed that he would be in danger and that Father would not permit her to visit with him. In addition, Mother believed that separating her sons, who are “best friends,” would cause harm to both of them, although she acknowledged that they had been removed from her care and were already in danger of being separated because of her actions.
Mother said she had only visited the children once since their removal because she had been doing her “own investigation” into outstanding arrest warrants in Maryland to fix things so she could get her children back. She asserted that she was in a position to resume custody of the children because she had taken a drug test and procured housing through rental assistance. She said she had no problem accepting services, but she did not like the “tone” of the Department workers either in Texas or Maryland.
At the close of the hearing, the juvenile court sustained all the allegations in the second amended CINA petition by a preponderance of the evidence and adjudicated R.P. and J.E. as CINA due to neglect by both Father and Mother.
At disposition, the juvenile court declared the children CINA. Father argued, over Mother’s objection, that J.E. should be placed in his care in Texas. The juvenile court expressed concerns about that placement and imposed conditions to be met by Father before it would place J.E. with him, including provision of two negative urinalyses, submission to a psychological evaluation and a home study, and participation in the Texas equivalent of the Montgomery County Abuser Intervention Program. The juvenile court scheduled a hearing on November 14, 2023, to determine whether Father had met the conditions. The court also ordered Mother to complete a psychological and substance abuse evaluation, submit to random weekly urinalyses, and participate in parenting education and in the Abused Persons Program.
Several days after the adjudication and disposition hearing, Father filed a memo advising the juvenile court that, at the upcoming November 14, 2023, hearing, he planned to request an Order Controlling Conduct relating to Mother’s behavior. Father explained that he had received a call on his cell phone, with the caller ID indicating it was the Department social worker. When he answered the phone, however, he recognized Mother’s voice saying, “You are going to get shot in the head.” The child’s attorney had also received at least 16 text messages from Texas phone numbers—some of which were a “little threatening”— that were believed to be from Mother using fabricated screen numbers. Father was concerned about “what appears to be a pattern of harassment and threats” by Mother.
The court held an emergency hearing on Father’s request on November 3, 2023. At the hearing, Ms. Magee testified that she, too, had received “a barrage of phone calls and text messages” from various numbers sharing allegations against Father and concerns about separating the children. Moreover, Ms. Magee had learned that Mother had filed for a new protection order
against Father in Maryland, alleging that Father had broken J.E.’s collar bone and hit him, harassed her family members, filed false claims, and used sex to gain control over her. Mother acknowledged having sent Ms. Magee approximately 100 text messages but asserted that they all related to her desire to begin the required services.
The juvenile court issued an Order Controlling Conduct, requiring no direct or indirect contact between Mother and Father and permitting Mother only one contact per day with the Department. The court further ordered Mother to provide the Department with a list of people willing to be resources for the children.
In advance of the scheduled November 14, 2023, status hearing, the Department filed a written report. The report detailed that Mother had had three visits scheduled with the children since their CINA adjudication, but the Department had cancelled two of those visits when Mother was late. The one visit that did take place had gone well, and Mother had also undertaken two video calls with the children. Mother had completed a parenting education class. She had been referred for urinalysis and substance abuse evaluation, but the Department had received no results. The Department had also referred Mother to the Abused Persons Program, but she had declined therapy services and only requested legal services for pressing charges.
In contrast, Father had been speaking with J.E. virtually every day until the child’s new foster parents’ schedule required reduction of conversations to approximately once per week. Father had submitted two negative urinalyses. He had completed a psychological evaluation and registered for a batterer intervention program and was scheduled for a diagnostic evaluation. Finally, Father had submitted to a home evaluation.
The juvenile court held its status hearing on November 14, 2023, to determine if Father had met the court’s conditions for placement of J.E. with him. Father travelled to Maryland from Texas to participate. At the hearing, the Department advised the court that it had been notified that there was an open investigation involving Father in Texas, but it had not confirmed the allegations or status of that matter. It suspected, however, that the investigation was nothing more than a continuation of Mother’s “campaign of misinformation and distraction and delay.” Nonetheless, because of the open case, the Department could not recommend the return of J.E. to Father and the closure of the Maryland CINA matter at that time, despite the fact that Father had done everything the Department had asked him to do and Mother had done “nothing that she’s supposed to do, other than visit” the children twice, once before the CINA adjudication and once after. The Department reminded the court that it could overrule the Department’s recommendation and voiced “no confidence whatsoever in terms of Mother being a resource for this child.”
The juvenile court declined to change J.E.’s placement, instead scheduling another status hearing for December 1, 2023. Mother requested that the matter not be set for another status hearing but instead for a contested review, as the court had adjudicated J.E. CINA based on neglect by both parents,
and it should consider all possibilities for placement. The court agreed to a review hearing.
On November 20, 2023, Father requested an expedited hearing on a change of J.E.’s placement or a modification of visitation. He explained that he had filed the motion after learning that, due to Mother’s attorney’s purported unavailability on December 1, 2023, the scheduled review hearing would likely be continued until late December or January 2024, and he had sought to have the matter resolved earlier so that J.E. could be with him and his daughters for Christmas. In the motion, Father asserted that he had “worked diligently” and had met all the conditions within his control that were required by the juvenile court at the disposition hearing. He further complained that J.E.’s new foster parents had curtailed his visitation with the child after Mother filed what he claimed was a fraudulent petition for protection order. The children and the Department agreed with the request for expedited hearing.
Mother objected to expediting the hearing, contending that only the Department could request an emergency hearing and a change in placement. Mother added that an expedited hearing was not required because Father’s virtual visitation with J.E. had not been curtailed, and J.E. had always spent Christmas with Mother and R.P., not with Father and his daughters. The juvenile court granted Father’s motion and expedited the status hearing to December 8, 2023.
At the expedited hearing, Father repeated his request that J.E. be placed in his custody in time for Christmas, noting that he had “complied with everything the Court has asked him to do,” with the exception of completing the Abused Persons Program. He explained that he had been unable to enroll in such a program through the Texas Department, but he had found a private Battering Intervention & Prevention Program (“BIPP”) that he could register for if the juvenile court approved it. Father had also agreed to make J.E. available for visitation with Mother. If the juvenile court were not inclined to place J.E. with him, Father alternatively sought a modification of visitation, to add more than the one hour per week he had been granted since the last hearing.
The Department joined in Father’s motion to have J.E. placed with him in Texas, stating that J.E. had expressed a desire to be with Father and that it had no safety concerns with Father, who had followed through with services. Moreover, the pending protective order and potential new abuse cases against Father in Maryland, Washington, DC, and Texas had been dismissed. Father was ready, willing, and able to care for J.E. and had a large family support system in Texas, while the only potential relative resource for J.E. in Maryland was a maternal uncle that he hardly knew. The children’s attorney also endorsed the return of J.E. to Father over leaving him in foster care.
Mother argued that if the juvenile court was going to make a change in custody there should be a full hearing and insisted that the juvenile court did not have the authority to place J.E. with Father, even under an OPS, “because the mother does not agree.” Mother requested a “full hearing regarding any change of custody with the child[,]” especially as she, too, had done everything the Department had asked her to do that was within her power. Mother complained that the Department had been focused only on placing J.E. with Father from the beginning and
had never given reunification with Mother due consideration.
The juvenile court responded, “This is not a custody hearing. This is a CINA hearing, and there’s a child who is in foster care, not living with a relative, not living with mom, not living with dad, and the Court can certainly allow the child to live with his father pending his completion of the Abused Persons Program....” The court then expressed a desire to have “someone from the [D] epartment” testify as to Mother’s and Father’s efforts.
As requested by the juvenile court, Tania Downing, the Department’s foster care intake worker assigned to R.P. and J.E., testified that it was she who had prepared the November 13, 2023, report that detailed the progress of each parent in relation to court ordered services. Ms. Downing reiterated that visits between Mother and the children had “for the most part” gone well, but some visits had been cancelled because Mother either did not appear or was too late. Since the date of the report, Ms. Downing had supervised one other visit, while one visit had been cancelled. She acknowledged there may have been more visits with the newly assigned social worker.
Mother had been scheduled for a psychological evaluation in January 2024, but because Mother believed it was too far into the future, she may have canceled the appointment. Ms. Downing had not received the required weekly urinalyses from Mother. She had received the substance abuse evaluation, which recommended that Mother participate in the Abused Persons Program, but Mother had declined services until the night before the hearing, when Mother “demand[ed]” services because of the upcoming hearing. Mother had completed a parenting program. To Ms. Downing’s knowledge, Mother was not employed, and the Department did not know how she was supporting herself.
Father had “done everything he could do to comply with the Court’s requests” and had undertaken the services the Department requested of him, including a psychological evaluation, which raised no concerns. It was Ms. Downing’s professional opinion that it was in J.E.’s best interest to be placed with Father.
Following Ms. Downing’s testimony, Mother’s attorney asked to call Mother as a witness. The juvenile court, noting that Father had not testified, asked if there was anything else that hadn’t already been presented, and Mother’s attorney responded that “the only thing” was that Mother had attended two other evaluations on her own, that is, not as referred by the Department, and had she known that “this was going to be the crux of today’s hearing,” she would have made sure to have witnesses there to testify as to what actions Mother had taken to further her cause of having her children returned to her care. The juvenile court denied Mother’s request to testify.4
Mother then argued that sending J.E. to Texas with Father would in effect be changing custody, and before the court could do so it first needed to hear Mother’s testimony about visitation, the relationship between the two children, and her concerns. Father responded that at the disposition hearing, the court had put all parties on notice that it sought to place J.E. with Father once he completed several required tasks, and Father had done all those things. Therefore, he concluded, “all of this stuff is irrelevant[.]”
Based on the Department’s recommendation, and the fact
that Father had submitted two negative urinalyses, presented a psychological evaluation that raised no concerns, and passed a home evaluation, the juvenile court ordered that J.E. be placed with Father under an OPS. The court required that Father complete and provide verification of completion of the Texas BIPP and continue to participate in therapy. The court granted Mother a minimum of two Zoom visits per week with J.E. for a minimum of 15 minutes each and required her to provide proof of living arrangement and employment.
Mother noted a timely appeal of the court’s decision permitting J.E. to be moved to Texas.5 Mother now argues that the juvenile court (1) erred by transferring J.E. to Father’s custody at an expedited hearing without allowing her to be fully heard, (2) failed to comply with Maryland law because it did not make, and there would have been insufficient evidence to support, a finding that it was safe and in J.E.’s best interests to be placed in father’s care, see FL § 9-101, and (3) erred by refusing to expressly address whether Mother’s supervised inperson visitation with J.E. could continue. We shall address each issue in turn.
DISCUSSION
I. STANDARD OF REVIEW
We review CINA proceedings using three inter-related standards. We review the juvenile court’s factual findings for clear error and legal conclusions without deference. In re Yve S., 373 Md. 551, 586 (2003). If the juvenile court’s final conclusion is “based on proper factual findings and correct legal principles, [it] will stand unless the decision is a clear abuse of discretion.” In re Ashley S., 431 Md. 678, 704 (2013) (citing In re Yve S., 373 Md. at 586). We give great respect to the juvenile court’s opportunity to view and assess the witnesses’ testimony, and accord great deference to the juvenile court’s determination unless it is arbitrary or clearly wrong. Cecil Cty. Dep’t of Social Services v. Goodyear, 263 Md. 611, 622 (1971); In re Adoption/ Guardianship Nos. 2152A, 2153A, 2154A, 100 Md. App. 262, 270 (1994).
ANALYSIS
I. EXPEDITED HEARING
Mother first contends that the juvenile court erred by violating the CINA statutes, the Maryland Rules, and due process principles, when it transferred custody of J.E. to Father during an expedited hearing without allowing her to be heard fully. Mother acknowledges that the juvenile court was required to make every effort to limit J.E.’s time in foster care and that the court was authorized to place J.E. with Father under an OPS, and that she knew the court was contemplating doing so after the December 2023 hearing. Nonetheless, Mother argues that, in failing to provide “sufficient advance, detailed notice of the case allegations” to permit her to “adequately prepare and present a defense,” receiving one-sided testimony from the Department, and declining to permit her to testify at the expedited hearing, the juvenile court deprived her of due process and the right to
be heard. We are not persuaded. There can be no question that “‘[a] parent’s interest in raising a child is ... a fundamental right.’” In re Adoption/Guardianship Nos. J9610436 and J9711031, 368 Md. 666, 671 (2002) (quoting In re Mark M., 365 Md. 687, 705 (2001)). As a result, when “a state seeks to change the parent-child relationship, ‘the due process clause is implicated.’” In re Maria P., 393 Md. 661, 676 (2006) (quoting Wagner v. Wagner, 109 Md. App. 1, 25 (1996)). Exactly what “process is due” is determined by the totality of the facts of each case. In re Adoption No. 6Z980001, 131 Md. App. 187, 199 (2000).
From the outset of this matter, the only real impediment to the return of J.E. to Father were the allegations of domestic violence between Mother and Father. At the CINA adjudication and disposition hearing on October 25, the juvenile court, concerned about the alleged domestic violence, imposed conditions upon Father before it would place J.E. with him under an OPS. MD. CODE, COURTS & JUDICIAL PROCEEDINGS (“CJ”) § 3- 819(b)(1)(iii)(2)(A) (providing that in making a CINA disposition, the juvenile court may commit the child to the custody of a parent under terms it considers appropriate). At that point, Mother was on notice that the juvenile court sought to place J.E. with Father.
The November 14, 2023 hearing was scheduled so that the juvenile court could determine if the conditions had been met. At that hearing, the court heard that Father had met those requirements but that the Department had learned of another open investigation of Father in Texas. The juvenile court elected to hold its placement decision over until December 1, 2023 because, despite suspicions that the new investigation was fabricated by Mother, the Department could not recommend placing J.E. with Father until it was resolved.
Off the record sometime between November 14, 2023, and December 1, 2023, it appears that Mother’s attorney sought to postpone the hearing because of personal reasons that might delay the court’s placement decision until January 2024. Unhappy with the potential delay, Father moved to expedite the hearing. The court granted the request and the hearing was rescheduled to December 8, 2023. At that hearing, the Department, for the first time, agreed that J.E. should be placed with Father, because he had met all the conditions imposed by the court and the Department had learned that the new investigations had been dismissed.
Mother argued then, as she does now, that a full hearing with witnesses and testimony was required before a change in custody would be permitted. The juvenile court reminded her that it was not a custody hearing, but a CINA hearing, the goal of which was to remove J.E. from the foster care system. After hearing testimony from the Department about Father’s success in meeting the requirements for J.E. to be placed with him and Mother’s lackluster effort at complying with services, the court declined Mother’s request to testify about her attempts at evaluations outside the Department’s accepted providers. The sole issue before the juvenile court was whether Father had sufficiently completed its previously imposed conditions so as to permit him to take J.E. back to Texas, and Mother’s proposed testimony was not pertinent to that question.
As we have previously noted, prior to the December 8,
2023 hearing, both Mother and Father were on notice that the juvenile court’s focus was on Father’s completion of the conditions imposed upon him by the court and the resolution of the open cases against him so that J.E. could be removed from foster care. Absent offering evidence that she had completed the tasks assigned to her to the Department’s satisfaction, there was little Mother was required to do to prepare, and the purpose of the hearing should not have caught her unaware.
Moreover, because the hearing focused on the parents’ efforts since the recent November hearing, the juvenile court acted reasonably and within its discretion in having only the Department social worker testify about Mother’s and Father’s progress. See Muhammad v. State, 177 Md. App. 188, 273-74 (2007) (“To insure that a trial does not stray into distracting and confusing by-ways, broad discretion is entrusted to the trial judge to control the flow of the trial and the reception of evidence.”). Mother was permitted to cross-examine the social worker and to offer exhibits documenting her progress with services into evidence. Nothing Mother could have testified about regarding her own progress, some of which was made outside the Department’s purview and therefore could not be verified or accepted by the Department, would have changed the outcome.
Under the circumstances, we cannot say that Mother was deprived of due process or that the juvenile court abused its discretion by expediting the hearing and declining to permit Mother to testify to matters outside the scope of the hearing.
II. JUVENILE COURT’S COMPLIANCE WITH FL § 9-101 AND EVIDENCE IN SUPPORT OF J.E.’S BEST INTEREST
Mother next claims that the juvenile court erred in failing to make an express finding, as required by FL § 9-101, that there was no likelihood of future abuse or neglect by Father before placing J.E. with him. Mother further contends that the Department and Father did not adduce sufficient evidence to support the court’s conclusion that J.E.’s placement with Father was safe and in his best interest.
The Department concedes error on the part of the juvenile court in failing to make a FL § 9-101 finding on the record and agrees that the matter should be remanded to that court for consideration of that limited issue. The Department does not agree, however, that the evidence before the juvenile court was insufficient to support a conclusion that placement with Father was in J.E.’s best interest. We will address both questions.
FL § 9-101 embodies a presumption “that a child’s best interest is not served by placing the child in the custody of someone with a history” of child abuse or neglect. In re Adoption No. 12612 in Circuit Court for Montgomery Cnty., 353 Md. 209, 238 (1999). It provides that:
(a) In any custody or visitation proceeding, if the court has reasonable grounds to believe that a child has been abused or neglected by a party to the proceeding, the court shall determine whether abuse or neglect is likely to occur if custody or visitation rights are granted to the party.
(b) Unless the court specifically finds that there is no likelihood of further child abuse or neglect by the party, the court shall deny custody or visitation rights to that party,
except that the court may approve a supervised visitation arrangement that assures the safety and the physiological, psychological, and emotional well-being of the child. Once a juvenile court determines that a child is a CINA, the court is therefore bound by the requirements of FL § 9-101 in awarding custody, and the court must first find that there is not a likelihood of further abuse or neglect. See In re X.R., 254 Md. App. 608, 626-27 (2022). The statute requires a “specific finding” and, thus, an implicit finding does not satisfy that requirement. In re T. K., 480 Md. 122, 159 n.23 (2022).
Here, the juvenile court found that J.E. had been neglected by Mother and Father. As permitted by statute, the court decided to make a custody determination in favor of Father. See CJ § 3-819.2. Before doing so, however, the court failed to make an explicit finding that there was no likelihood of further neglect by Father. For that reason, we must remand this matter for the limited purpose of the court’s consideration and articulation of the FL § 9-101 requirements as applicable to this case.
Mother’s argument that there is insufficient evidence to support a finding by a preponderance of the evidence that placement of J.E. with Father is in J.E.’s best interest is, however, unavailing. The court made clear that it sought to remove J.E. from foster care, and it heard evidence from the Department that it had no concerns about placing J.E. with Father, who had complied with every service required of him. Moreover, the juvenile court’s finding of neglect on Father’s part was based on the alleged history of domestic violence between Father and Mother. The evidence establishing that history was somewhat questionable and was accepted by the juvenile court largely because a Texas court, in its custody order, had determined that it had occurred. And, with Mother seemingly planning on remaining in Maryland and Father remaining in Texas, any concerns of domestic violence between the two were greatly diminished. With Father’s completion of a batterer intervention program, and with nothing else to suggest that Father was not a fit custodian for J.E., if the juvenile court finds that there is no likelihood of further neglect, there is sufficient evidence for the court to also find that it is in J.E.’s best interest to leave the foster care system and return to the care of the one parent who had made a significant effort to effectuate the placement.
III. MOTHER’S IN-PERSON VISITATION
Finally, Mother argues that the juvenile court erred in effectively suspending her in- person visitation with J.E. by placing the child with Father in Texas and declining to include in its custody order that she be permitted to continue supervised visits if she traveled to Texas. In Mother’s view, although the court did not outright deny her request to include in-person visitation in its order, the court’s decision not to address the issue unless and until Mother planned to travel to Texas imposed an “added burden” of filing an amended motion before she could obtain in-person visitation in Texas.
As Mother acknowledges in her brief, “[d]ecisions concerning visitation generally are within the sound discretion of the [juvenile] court” and are reviewed for an abuse of discretion. In re Billy W., 387 Md. 405, 447 (2005).
The juvenile court changed Mother’s once in-person and once virtual weekly supervised visitation to two virtual visits
per week upon J.E.’s move to Texas. Mother requested inperson visits if she were able to get to Texas. The Department responded that “that should be something that’s filed with the Court.” The court agreed that once Mother purchased a plane ticket, the court would have sufficient time to fashion a ruling on in- person visitation in Texas. When Mother again pressed for permission for in-person visitation, the court responded, “We’re going to cross that bridge when we come to it.” The court’s written order following the hearing provided Mother a minimum of two virtual visitations per week but did not mention in-person visitation.
The juvenile court did not, as Mother suggests, “end her in-person visitation with J.E.” Instead, the court elected not to fashion a visitation order based on Mother’s entirely hypothetical presence in Texas. Mother did not provide the court with any dates on which she planned to be in Texas, and the court was not required to put in its order that Mother would be permitted in-person visitation in Texas on some future date, especially as
the Department had not yet been successful in engaging the Texas Department to set up services or supervised visitation, and Mother had already exhibited a lack of cooperation with the Montgomery County Department.
It was not unreasonable for the juvenile court to delay a decision on in-person visitation unless and until Mother had concrete plans to go to Texas and filed a request with the court. Then, the Department would be able to respond with its recommendation given Mother’s progress at that particular time.
In addition, we note that in the approximately six months since the expedited hearing, there is nothing in the record to indicate that Mother has filed a motion or petition with the juvenile court indicating a plan to travel to Texas and asking the court to permit in-person visitation. Therefore, with the benefit of hindsight, we cannot say the juvenile court erred or abused its discretion in postponing a decision on Mother’s in-person visitation until it became relevant.
CASE REMANDED TO THE CIRCUIT COURT FOR MONTGOMERY COUNTY, SITTING AS A JUVENILE COURT, TO MAKE FURTHER FINDINGS ON THE RECORD IN ACCORDANCE WITH THIS OPINION; JUVENILE COURT’S ORDER OTHERWISE AFFIRMED; COSTS TO BE PAID 2/3 BY APPELLANT AND 1/3 BY APPELLEE.
FOOTNOTES
1 J.E., Sr., is not R.P.’s father. Mother did not note an appeal in R.P.’s CINA case, and we mention him only as relevant to J.E.’s case.
2 A “child in need of assistance” means “a child who requires court intervention because: (1) The child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and (2) The child’s parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and the child’s needs.” MD. CODE, COURTS & JUDICIAL PROCEEDINGS (“CJ”) § 3-801(f).
3 The custody order had granted Father unrestricted visitation every other weekend from Thursday through Sunday, and one month during the summer.
4 The court did, however, admit into evidence four of Mother’s documents regarding the tasks she had completed. The documents included a Texas Department
of Family and Protective Services investigation of alleged abuse or neglect, a behavioral health assessment recommending that Mother continue receiving mental health services in the Abused Persons Program, an assessment by an alcohol abuse counseling program that Mother was not a problem drinker or user of illicit drugs, and a certification of Mother’s completion in a parenting program.
5 The record contains a subsequent Department report in anticipation of a February 26, 2024, CINA review hearing. The report details that as of February 16, 2024 Mother had NOT: (1) provided the Department a permanent address; (2) been cooperative with the Department; (3) completed 14 of 23 scheduled visits with J.E.; or (4) made any significant progress toward reunification with R.P. The Department requested that J.E. remain in Father’s care under an OPS, as Father had been compliant with court ordered services. Following a hearing, the juvenile court found that J.E. was safe with Father and continued J.E.’s placement with Father under an OPS.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Baltimore County Circuit Court’s termination of mother’s parental rights with respect to one of her children. The court’s findings regarding mother’s lack of progress are supported by evidence in the record and were not clearly erroneous; the Baltimore County Department of Social Services investigated all potential relative resources but found none willing and able to be a placement resource and the Department’s efforts to facilitate reunification with mother were reasonable.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
who was then two years old, had ingested methadone. He was taken to the emergency room, where he was administered two doses of Narcan and survived. According to a report prepared by the Department, the information provided by Mother as to how and where the exposure to methadone occurred was “very difficult to understand and scattered.” Mother said that when she picked S.W. up from her mother’s house in the middle of the night, she noticed that he was “lethargic” and “acting out of character[,]” and he was transported to the hospital by “a stranger at the gas station.”
Because of Mother’s “behavior and lack of information” regarding the incident, the Department implemented a safety plan for S.W. The plan involved placing S.W. with Mother’s cousin and requiring supervised interactions between Mother and S.W. at all times. On June 23, 2021, however, the Department found out that the cousin had gone out of town for a few days, leaving S.W. in Mother’s care without supervision. As a result, the Department implemented a new safety plan, placing S.W. with his paternal grandmother.
Appellant, C.M. (“Mother”), challenges a judgment of the Circuit Court for Baltimore County, sitting as a juvenile court, which terminated her parental rights with respect to one of her children, S.W., and granted guardianship to the Baltimore County Department of Social Services (“Department”). The court also terminated the parental rights of S.W.’s father (“Father”), who is not a party to this appeal.
Mother filed an appeal and presents two questions for our review, the first of which we have divided into two and restated for clarity:1
I. Did the court err in relying heavily on Mother’s past circumstances and overlooking her progress and the stability in her current situation?
II. Did the court err by not considering Mother’s plan to have relatives help care for S.W.?
III. Did the court err in finding the Department made reasonable efforts to promote reunification? For the reasons set forth below, we shall affirm the judgment.
BACKGROUND
Mother has two children: K.C., born in November 2011, and a younger child, S.W., born in October 2018.3 In the year that S.W. was born, Mother was charged with second- degree child abuse of K.C. and was incarcerated for the first year of S.W.’s life. In January 2022, custody and guardianship of K.C. were awarded to a paternal relative.
On June 14, 2021, the Department received a report that S.W.,
On July 15, 2021, the Department filed a CINA Petition with Request for Shelter Care.4 The Department alleged that Mother “had a habit of leaving [S.W.] with different individuals for weeks at a time” without providing supplies needed for his care, a date for her return, or a way to contact her in her absence. She had recently tested positive for cocaine and cannabis. She had been diagnosed with “major depressive disorder, recurrent, severe with psychotic symptoms”; “[b]ipolar disorder, current episode manic severe with psychotic features”; and unspecified anxiety disorder and post-traumatic stress disorder. She had only been engaged in mental health treatment for two months. Father was incarcerated at that time.
After a shelter care hearing on July 16, 2021, the court granted the Department temporary custody of S.W. Mother was given liberal and supervised visitation through the Department. She had three supervised visits with S.W. in August 2021.
On August 13, 2021, S.W. was removed from the paternal grandmother’s care due to conflicts between her and Mother. The Department noted that Mother “exhibited poor boundaries” by calling the paternal grandmother every day to speak with S.W., showing up for unannounced visits multiple times a week, and “generally overwhelming [the paternal grandmother] which ultimately caused a placement disruption.” S.W. was then moved to his current foster care placement.
On October 18, 2021, the court held an adjudication and disposition hearing. Following the hearing, the court found S.W. to be a CINA. The court further found that it was contrary to S.W.’s welfare to return S.W. to Mother’s custody because
she had “insufficiently treated mental health and substance abuse issues that prevent her from providing proper care and attention” to S.W. Mother was ordered, among other things, to maintain consistent weekly contact with the Department, continue in mental health treatment and outpatient substance abuse treatment until “successfully discharged,” complete parenting classes, and maintain safe and stable housing.
On February 28, 2022, the court approved a permanency plan for S.W. of reunification with a parent. The court continued to order Mother to participate in and comply with recommended mental health treatment and substance abuse treatment until successfully discharged, submit to random drug testing, and maintain safe and stable housing. The court also ordered Mother to provide documentation of employment.
On April 22, 2022, the court continued the plan of reunification with a parent and continued to order Mother to comply with recommended mental health and substance abuse treatment, undergo random drug testing, maintain safe and stable housing, and provide documentation of employment. It also ordered Mother to complete parenting and anger management classes and produce certificates of completion.
On February 6, 2023, the court changed the permanency plan to adoption by a non- relative.5
Termination of Parental Rights
On February 15, 2023, the Department filed a petition for an order granting guardianship of S.W. to the Department, with the right to consent to adoption or long-term care short of adoption. The court held a termination of parental rights (“TPR”) hearing on the merits of the Department’s petition on December 13 and 14, 2023. S.W. was five years old at the time of the hearing and had been in foster care for almost two and a half years.
The Department called two social workers assigned to S.W.’s case: Emily Smith, a formal kinship social worker, and Gina Malphrus, an adoption social worker. The court also heard testimony from Cheryl Phillips, the Court-Appointed Special Advocate (“CASA”).6 The court admitted documents from the CINA case, including permanency planning review reports filed by the Department and court orders. Father testified in his case. Mother participated in the hearing via remote connection but did not testify. She called three family members to testify about her relationship with S.W. The following evidence was adduced at the two-day hearing.
Periods of Mother’s Incarceration
Mother was first incarcerated for the first year of S.W.’s life due to the second- degree child abuse of K.C. On September 7, 2021, before the adjudication and disposition hearing in October 2021, she was incarcerated again, this time in New Jersey, for reasons that are unclear from the record. She was not released until about two months later, on November 3, 2021.
On April 22, 2022, after the court had continued the plan of reunification with a parent, Mother was arrested on charges of violating the terms of her probation related to the 2018 child abuse conviction. She remained incarcerated in Maryland for 17 months. On September 22, 2023, she was transferred to a jail in New Jersey in relation to a violation of probation charge in that state. She was released on October 7, 2023.
Mother’s Progress During Period of Release from Incarceration: November 3, 2021–April 22, 2022
After Mother was released from incarceration on November 3, 2021, the Department noted that Mother “had poor engagement” with it and had made only minimal progress toward permanency goals. The Department had asked Mother about her progress in completing a substance abuse assessment, parenting classes, and obtaining housing. Mother responded that she might return to jail, so those things were not her priority.
Mother received mental health services and claimed to be taking her medication as directed. When it came to substance abuse treatment, Mother denied having a problem and refused to participate in court-ordered treatment. She claimed to have received treatment through her mental health provider, but the Department was unable to confirm this. The Department referred Mother for urinalysis and hair follicle testing, but she refused to submit to the testing because she “just got [her hair] done” and had purportedly tested positive for COVID. She informed the Department that she used cannabis and would continue to do so until she regained custody of S.W. Mother claimed to have completed parenting and anger management classes but did not cooperate with the Department to verify completion.
The Department had no address for Mother. Mother told the Department that she had been staying in hotels and the homes of various friends and family members. She most often stayed at her sister’s home but would not provide the address to the Department because her sister “did not want it on file.”
Mother reported that she was employed in a private security position and worked as a cosmetologist, but she provided no employment verification or proof of income.
Mother visited S.W. on November 18, 2021. A supervised visit was scheduled for March 15, 2022, but the visit was canceled because Mother did not respond to the Department’s request to confirm the visit. The Department subsequently sent text messages to Mother, requesting a date and time for her to visit S.W., and offering transportation, but Mother did not respond.
The Department reported that it was difficult to schedule visits with S.W. because Mother wanted them on different days, times, and locations. She was “not interested in a consistent weekly schedule for visits as she never knows if she will be working/busy.” She requested visits on weekends or otherwise outside of “agency time frames,” which the Department could not accommodate. When the Department attempted to schedule visits during the week, Mother did not respond with a time and location until the evening before, which did not allow the Department enough time to coordinate S.W.’s transportation to the visit. Mother later advised the Department social worker that she had been intentionally avoiding contact with the Department because she was evading arrest.
Mother’s Progress During Period of Reincarceration: April 22, 2022–October 7, 2023
During her reincarceration, Mother completed parenting and anger management classes, as well as a 45-day substance abuse program. Upon completion of that program, it was recommended that Mother complete a six-month intensive outpatient program and attend 90 Narcotics Anonymous
meetings after her release from incarceration.
From April to December 2022, Mother was housed at a correctional facility that did not allow in-person or virtual visits with S.W. After Mother was transferred to a different facility, the Department was able to set up monthly virtual visitation.
Mother participated in five virtual visits from April to August 2023. According to the Department’s witnesses, the virtual visits went “relatively poorly.” S.W. displayed “negative reactions” during each visit[,] and Mother “had a tendency to have outbursts around S.W. that were inappropriate.” According to a review report, Mother “made some attempts to engage” with S.W. but “lack[ed] the skills to appropriately connect with him.”
S.W. was “often hesitant to participate in the visits” and said to Mother, “I didn’t miss you,” “I don’t love you,” and “I don’t want to see you,” and “I’m done talking, I’ve had enough.” During one visit, Mother “raised her voice” and said, “I’m your mother. You do not talk to me that way.” She then exited the virtual meeting.
Mother requested in-person visits at the correctional facility, but the Department denied the request after consulting S.W.’s therapist. Based on the consultation, the Department decided that it was not in S.W.’s best interest to bring him to the correctional facility for in-person visits because the virtual visits were not going well. According to a review report, the Department requested that Mother’s visitation remain virtual due to her “historical lack of visitation and [S.W.’s] poor response during visitation.”
Mother’s Progress After Latest Release from Incarceration:
Post-October 7, 2023
After being released from incarceration on October 7, 2023, Mother went to live with her father. She claimed to have resumed mental health services but said she was not getting substance abuse treatment, even though it was recommended that she complete a six-month intensive outpatient program and attend 90 Narcotics Anonymous meetings after being released from incarceration. When Mother submitted to a urinalysis on October 17, 2023, after her release, the results were positive for marijuana.
As for visitation, Mother missed each of her scheduled virtual visits with S.W. upon her release from incarceration. She told the social worker, Ms. Smith, that she could not join the virtual meetings and needed help with the technology. Ms. Smith scheduled a meeting with Mother to assist and arranged for transportation by cab. She texted Mother around 9:00 a.m. the morning of the meeting, which was scheduled for noon, and Mother confirmed that she would be ready to be picked up at 11:30 a.m. Upon arriving at her home, the cab driver called Mother, but she did not answer. Mother later told the social worker that she had “dozed off” after taking medicine for a “bad cold.” The social worker then engaged in a series of text messages with Mother and was able to help her download the videoconference app onto her phone. But Mother continued to miss scheduled virtual visits. Two months before the TPR hearing, Mother again requested in-person visits. The Department denied the request upon a determination that, due to S.W.’s negative behaviors during virtual visits, it would be “detrimental” to begin in-person visitation at that time.
Department’s Efforts to Place S.W. with a Relative
Before S.W.’s permanency plan was changed to placement with a non-relative, Mother presented over 20 possible relative placement resources. The Department explored relative placement options but had concerns about Mother’s ability to respect visitation boundaries due to her asserted belief that she would have unlimited access to S.W. and her past behavior when S.W. was in the care of the paternal grandmother.7
Some of Mother’s relatives did not respond to the Department’s inquiries. Others were ruled out as placement resources for various reasons. Mother’s cousin, who was entrusted with the care of S.W. under the initial safety plan, was denied because she left Mother alone with S.W., which violated the safety plan. Another relative was eliminated from consideration due to a recent child welfare report and response for maltreatment.
Mother’s sister “self-declined due to her lack of availability to carry the responsibility.” Mother’s half-sister attended one visit with S.W. but was ruled out after she failed to attend three subsequently scheduled visits and stopped communicating with the Department.
Mother’s father was eliminated from consideration due to his “extensive criminal history.”
Mother’s niece was explored as a potential placement resource, but she failed to complete the fingerprinting process, and the criminal background check raised concerns about traffic-related offenses.
Mother’s grandfather was investigated as a resource, but his home did not pass an assessment because a gas stove was used as the sole heat source. The Department also had concerns about the adequacy of his financial resources.
S.W.’s paternal grandmother expressed an interest in becoming a placement resource, but the Department declined to consider her due to concerns that “familial conflict” would lead to another placement disruption. The Department added that the paternal grandmother had not consistently visited S.W. since he was removed from her care. She was often late to visits or did not show up at all. On the occasions the paternal grandmother showed up, S.W. did “not appear to be particularly bonded” to her and hid behind the social worker or asked the social worker not to leave the room. The Department added that the “safety of the placement” was “compromise[d]” because Father was living with the paternal grandmother.
Mother’s Status
Mother was on probation at the time of the TPR hearing in December 2023. She advised the Department that she was living with her grandfather. In early December, a week before the TPR hearing, Mother told the Department that she was unable to submit to random drug testing because she was in California and had been there since Thanksgiving. The Department did not know if Mother, who participated in the TPR hearing via remote connection, had since returned to Maryland. To the Department’s knowledge, she was not employed.
S.W.’s Status
Ms. Phillips, the CASA, was assigned to S.W.’s case in April 2022. She testified that she had observed virtual visits between Mother and S.W., which “did not go well.” Mother had a “difficult
time relating to S.W.” S.W. “did not appear to want to engage” with Mother and used “a lot of avoidance tactics,” such as talking to Ms. Phillips or the social worker instead of Mother.
Ms. Phillips testified that S.W. “showed signs of thriving” in his foster home. Ms. Smith, the kinship social worker, also described S.W. as “thriving.” Ms. Malphrus, the adoption social worker, described S.W. as “outgoing” and “very well-mannered,” and noted that S.W. is “extremely intelligent,” being able to read books at age five. He had an “excellent” home life and participated in activities and vacations with his foster mother and extended foster family. There were no concerns about his physical or mental health.
S.W. refers to his foster mother interchangeably as “godmom” or “mommy.” He “very much recognizes that placement as his home” and has “repeatedly stated that he does not want to leave[.]” The foster mother was willing and able to adopt S.W. Ms. Malphrus and the foster mother had talked to S.W. about living with the foster mother until he “becomes a grown-up and goes off to college,” and S.W. said he would “like to do that.”
Expert Testimony
Ms. Malphrus testified for the Department as an expert in general social work, child abuse and neglect, permanency planning, and adoption risk and safety assessments. According to Ms. Malphrus, S.W. has no apparent “positive emotional ties” to Mother. She explained that children “depend upon routine” and that missed or inconsistent visitation is “confusing” to a child. She testified that children “need[] to know that they can depend upon their parent[,]” and when parents miss visits, it can affect the relationship between the child and the parent.
In Ms. Malphrus’s opinion, providing more services to Mother would not be beneficial because she had not addressed the circumstances that led to S.W.’s placement in foster care in the two and a half years since he was taken into care. She added that Mother’s incarcerations “continue to provide supervision and safety concerns[.]”
According to Ms. Malphrus, S.W.’s current placement provided him with a “secure parental attachment” and a “stable, loving, and positive home environment in which he has thrived[.]” She opined that a change in S.W.’s placement would “most likely cause psychological and physical distress that would negatively impact him.” She testified that a “destruction” of his attachment to the foster mother would significantly affect his sense of safety and security and would negatively impact his short- and long-term development and mental health.
Ms. Malphrus testified that long-term placement in foster care and the associated lack of permanency would be “detrimental” to S.W.’s well-being. She explained:
Continuing the CINA case would be detrimental to S.W.’s emotional growth and development. He has been in care for approximately two-and- a-half years of his young life. . . . He just turned five. The birth parents have failed to follow through with most of the [c]ourt-ordered tasks, and have failed to maintain regular contact with S.W. Since [Mother] has been released [from incarceration], she has missed the monthly virtual visitation that has been offered to her. And giving [Mother] additional time to address [her] issues would just cause S.W. to continue to remain in foster care
unnecessarily.
In Ms. Malphrus’s opinion, terminating Mother’s rights was in S.W.’s best interest because it would give him “the permanency that he deserves.”
Mother’s Witnesses
Mother was present for the hearing via remote connection but did not testify during the hearing. Instead, she presented three witnesses: her sister, her niece, and a cousin (who was not the same person entrusted with S.W.’s care under the initial safety plan).
The sister testified that Mother was a “good” and “loving” mother who “took good care” of S.W. before he was removed from her care. She was not sure who took care of
S.W. when Mother was incarcerated during the first year of his life. She said that Mother was “doing very well” since her release from incarceration and described Mother’s appearance as “[v]ery respectful, refreshed. Her normal self.”
The niece described Mother’s interactions with S.W. before his removal from her care as “fine” and “normal.” She was unsure who had cared for S.W. while Mother was incarcerated. Although she had previously presented herself as a placement resource, she “never got a chance to complete” the background clearance process because she “had stuff going on.” She testified that her circumstances had since changed, and she was presently able to be a placement resource.
The cousin said Mother was “a loving, caring type of mom.” She described the interaction between Mother and S.W. as “very loving” and “affectionate.” She did not know who took care of S.W. while Mother was incarcerated. Since being released from prison, Mother was “very upbeat” and was trying to “reintegrate into society.” The cousin stated that she did not present herself as a placement resource before the TPR hearing. When asked if it was “possible” for her to be a resource, the cousin responded, “I can be.”
Court’s Ruling
In ruling on a petition for guardianship of a child, a juvenile court must give primary consideration to the health and safety of the child and consider various factors to determine whether terminating a parent’s rights is in the child’s best interests. These factors are enumerated in Maryland Code, Family Law Article (“FL”) § 5-323(d)(1)-(4) (1984, 2019 Repl. Vol.):
(1) (i) all services offered to the parent before the child’s placement, whether offered by a local department, another agency, or a professional;
(ii) the extent, nature, and timeliness of services offered by a local department to facilitate reunion of the child and parent; and
(iii) the extent to which a local department and parent have fulfilled their obligations under a social services agreement, if any;
(2) the results of the parent’s effort to adjust the parent’s circumstances, condition, or conduct to make it in the child’s best interests for the child to be returned to the parent’s home, including:
(i) the extent to which the parent has maintained regular contact with:
1. the child;
2. the local department to which the child is committed; and
3. if feasible, the child’s caregiver;
(ii) the parent’s contribution to a reasonable part of the child’s care and support, if the parent is financially able to do so;
(iii) the existence of a parental disability that makes the parent consistently unable to care for the child’s immediate and ongoing physical or psychological needs for long periods of time; and
(iv) whether additional services would be likely to bring about a lasting parental adjustment so that the child could be returned to the parent within an ascertainable time not to exceed 18 months from the date of placement unless the juvenile court makes a specific finding that it is in the child’s best interests to extend the time for a specified period;
(3) whether:
(i) the parent has abused or neglected the child or a minor and the seriousness of the abuse or neglect;
(ii) 1. A. on admission to a hospital for the child’s delivery, the mother tested positive for a drug as evidenced by a positive toxicology test; or
B. upon the birth of the child, the child tested positive for a drug as evidenced by a positive toxicology test; and
2. the mother refused the level of drug treatment recommended by a qualified addictions specialist, as defined in § 5-1201 of this title, or by a physician or psychologist, as defined in the Health Occupations Article;
(iii) the parent subjected the child to:
1. chronic abuse;
2. chronic and life-threatening neglect;
3. sexual abuse; or
4. torture;
(iv) the parent has been convicted, in any state or any court of the United States, of:
1. a crime of violence against:
A. a minor offspring of the parent;
B. the child; or
C. another parent of the child; or
2. aiding or abetting, conspiring, or soliciting to commit a crime described in item 1 of this item; and
(v) the parent has involuntarily lost parental rights to a sibling of the child; and
(4) (i) the child’s emotional ties with and feelings toward the child’s parents, the child’s siblings, and others who may affect the child’s best interests significantly;
(ii) the child’s adjustment to:
1. community; 2. home;
3. placement; and 4. school;
(iii) the child’s feelings about severance of the parent-child relationship; and
(iv) the likely impact of terminating parental rights on the child’s well- being.
During closing argument, the Department summarized the evidence for each factor. The court “expressly and explicitly”
adopted the Department’s closing argument as part of its findings.8 We summarize the court’s adopted and express findings as follows:
FL § 5-323(d)(1)(i): The Department implemented a safety plan for S.W., requiring S.W. to stay with Mother’s cousin and for Mother’s interactions with S.W. to be supervised at all times. But the cousin left town for a few days, leaving S.W. in Mother’s care without supervision. As a result, a new safety plan was implemented, placing S.W. with his paternal grandmother.
FL § 5-323(d)(1)(ii): The court found that the Department offered Mother “extensive services” and “all appropriate support and referrals[.]” It found that the Department provided Mother referrals for mental health and substance abuse treatment but emphasized that her “involvement and contact” with those programs were essential for success. The court found that Mother’s mental health was “clearly unstable[,]” and there was no evidence that she currently had proper mental health support or substance abuse treatment, despite the Department’s efforts to offer these services.
Regarding visitation, the court found that Mother did not attend all the virtual and in-person visitation offered by the Department. Mother missed scheduled visitation, and the few visits with S.W. were considered “insignificant” by the court. The court remarked, “[Y]ou can’t parent if you’re not there, if you’re not actively engaged with the child[.]”
According to the Department, it explored and vetted over 20 placement resources suggested by Mother. None of them were viable for one reason or another. The court found it particularly concerning [that Mother’s] three witnesses . . . were not even aware of where [S.W.] was during the time before he came into care and was placed in foster care with a non-relative. That’s particularly striking, that even the family resources didn’t seem to even know where he was. Not to say that they didn’t care, but they were not involved enough to even know who was caring for him when [M]other was not, and that’s very concerning, as far as any support that [Mother] would have.
FL
§ 5-323(d)(1)(iii): The Department acknowledged that this factor did not apply as there were no service agreements due to the lack of the parents’ engagement.
FL
§ 5-323(d)(2)(i)(1): According to the Department, while Mother was involved in virtual and in-person visits, she did not “properly engage” with S.W. during the visits. In addition, since her release from incarceration, Mother has not engaged in any visits.
FL § 5-323(d)(2)(i)(2): According to the Department, while incarcerated, Mother maintained “much better” contact with the Department. But “when left to her own devices and out on the street, . . . she did not maintain regular contact with the Department,” for example, when she was concerned about the warrant for her arrest. Since her last release, her contact with the Department has been “sporadic[.]”
FL § 5-323(d)(2)(i)(3): The Department acknowledged that this factor did not apply because Mother did not have the contact information for the caregiver; the Department facilitated the visitation.
FL
§ 5-323(d)(2)(ii): Mother did not contribute financially to S.W.’s care, but the Department acknowledged there was no
evidence of her being employed and capable of contributing financially.
FL § 5-323(d)(2)(iii): The Department acknowledged that this factor did not apply. The court agreed that there did not appear to be a parental disability, though it noted a parent’s mental health is “very close to being a full disability.”
FL § 5-323(d)(2)(iv): According to the Department, S.W. had been in the Department’s care for nearly half of his life. There was no evidence that it would be in S.W.’s best interest to “extend this any further” as he needs permanence. The expert had testified about the impact of the lack of permanency on S.W.’s life.
The court found that Mother had a “significant amount of time” to address the Department’s concerns but did not put “enough effort” into creating a safe and stable environment appropriate for S.W.’s care. The court did not believe additional services beyond what had been offered would lead to reunification within 18 months. It found that even if services were utilized going forward, they would be the same services that Mother had not fully used or that were ineffective.
FL § 5-323(d)(3)(i): The court found that Mother had been convicted of physically abusing her older child, for which she was incarcerated. The court found this to be “quite disturbing.”
According to the Department, Mother also routinely neglected S.W. by leaving him with friends and family for days at a time without any contact. She also left him with inappropriate caregivers, which resulted in his ingestion of methadone when he was two and a half years old.
FL § 5-323(d)(3)(ii): The Department acknowledged that this factor did not apply as S.W. was not a substance-exposed newborn.
FL § 5-323(d)(3)(iii): The Department acknowledged that this factor did not apply as Mother was not accused of chronic abuse, sexual abuse, “or anything along those lines.”
FL § 5-323(d)(3)(iv): Although Mother was not convicted of a crime of violence, she was convicted of child abuse of her older child and was incarcerated because of it.9
FL § 5-323(d)(3)(v): The Department acknowledged that this factor did not apply because Mother did not involuntarily lose the parental rights of S.W.’s sibling. It conceded that Mother had not lost parental rights to the older child “at this point[.]”
FL § 5-323(d)(4)(i): According to the Department, the review reports and the testimony of Ms. Smith and Ms. Phillips demonstrated that S.W. had a poor relationship with Mother. The evidence established that S.W. did not love Mother and even asked her to leave during visits.
The court found that S.W. had no emotional attachment to Mother, which was “quite concerning.” The court explained that the lack of bond was because Mother did not avail herself of the offered visitation:
Of course there would be a bond with the foster parent because the foster parent has the child all the time, and if it’s a good placement, the child should bond, we would hope that the child would bond with the foster parent. But that doesn’t preclude a bond with the parent, and . . . the only way there could be a bond with the parent is if the parent makes themselves more available. So even the limited visits that can be arranged with the Department were not fully
utilized. So how could there be an emotional bond . . . to these parents with them not even taking advantage of the access that they did have? . . . [H]ad the parents more fully participated . . . there might well have been a further bond[.]
FL § 5-323(d)(4)(ii): According to the Department, S.W. thrived in out-of-home placement. He learned to read before kindergarten, feels safe, and has bonded with his foster mother.
FL § 5-323(d)(4)(iii): According to the Department, the evidence established that S.W. did not see himself having a parent-child relationship with Mother and referred to her as his “belly mom.”
FL § 5-323(d)(4)(iv): According to the Department, the evidence established that terminating parental rights will have a positive impact on S.W. According to the expert,
S.W. has begun to understand his situation “as different” and does not want to be engaged in an impermanent situation.
In the end, the court found by clear and convincing evidence that Mother and Father were unfit to remain in a parental relationship with S.W. and that it was in S.W.’s best interest to terminate their parental rights. The court was “particularly disturb[ed]” by how S.W. came into the Department’s care. “The fact that he was in such a dangerous situation” when in Mother’s care was “significant” to the court. The court expressed that Mother’s “extensive prior behavior” caused the court to have a “grave concern” about whether she was able or would ever be able to parent a child safely. The court also explained that Mother had “not made enough progress over the course of this case, despite the best efforts of the Department.”
On December 15, 2023, the court entered a written order consistent with its oral ruling.10 This timely appeal followed. We will include additional facts in our discussion of the issues.
STANDARD OF REVIEW
“Termination of parental rights decisions are reviewed under three interrelated standards: clear error review for factual findings, de novo review for legal conclusions, and abuse of discretion for the juvenile court’s ultimate decision.”
In re K.H., 253 Md. App. 134, 156 (2021). In evaluating the court’s findings of fact, we must give “the greatest respect” to the court’s opportunity to view and assess witness testimony and evidence. In re Adoption/Guardianship of Amber R., 417 Md. 701, 719 (2011). “[W]e must assume the truth of all the evidence, and of all of the favorable inferences fairly deducible therefrom, tending to support the factual conclusion of the trial court.” In re B.C., 234 Md. App. 698, 708 (2017) (citation omitted). “A trial court’s findings are ‘not clearly erroneous if there is competent or material evidence in the record to support the court’s conclusion.’” Azizova v. Suleymanov, 243 Md. App. 340, 372 (2019) (quoting Lemley v. Lemley, 109 Md. App. 620, 628 (1996)).
“[W]hen the appellate court views the ultimate conclusion of the [juvenile court] founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the [court’s] decision should be disturbed only if there has been a clear abuse of discretion.” K.H., 253 Md. App. at 156 (citation omitted). A decision will be reversed for abuse of discretion only if it is “well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems
minimally acceptable.” In re Yve S., 373 Md. 551, 583–84 (2003).
DISCUSSION
“Parents have a fundamental right under the Fourteenth Amendment of the United States Constitution to ‘make decisions concerning the care, custody, and control of their children.’” In re Adoption/Guardianship of C.E., 464 Md. 26, 48 (2019) (citation omitted). Moreover, “there is ‘a presumption of law and fact [] that it is in the best interest of children to remain in the care and custody of their parents.’” In re Adoption/Guardianship of H.W., 460 Md. 201, 216 (2018) (citation omitted). The presumption in favor of parental rights may be rebutted “‘by a showing that the parent is either unfit [to continue the relationship] or that exceptional circumstances exist that would make the continued relationship detrimental to the child’s best interest.’” Id. at 217 (citation omitted).
“Unfitness or exceptional circumstances do not, by themselves, mandate a decision to terminate parental rights[,]” but only “demonstrate that the presumption favoring the parent has been overcome.” Id. at 218. The ultimate decision of whether to terminate parental rights “must always revolve around the best interests of the child.” Id. at 218–19 (emphasis and footnote omitted).
To determine whether termination of parental rights is in the child’s best interest, the court must consider the statutory factors in FL § 5-323(d). C.E., 464 Md. at 50. “[T]he court must weigh all of the statutory factors together, without presumptively giving one factor more weight than another.” In re Adoption/ Guardianship of Jasmine D., 217 Md. App. 718, 737 (2014). The court must further “determine expressly whether those findings suffice either to show an unfitness . . . or to constitute an exceptional circumstance that would make a continuation of the parental relationship detrimental to the best interest of the child[.]” In re Adoption/Guardianship of Ta’Niya C., 417 Md. 90, 102 (2010) (citation omitted).
I.
Mother’s Progress
Mother’s first contention is that the court erred in terminating her parental rights because it relied heavily on Mother’s past circumstances and overlooked her progress and the stability of her current situation. According to Mother, the evidence showed that she had stable housing at her grandfather’s home, was employed, and had addressed her mental health and substance abuse issues.
The record does not support Mother’s characterization of the evidence. After being released from incarceration on October 7, 2023, Mother informed the Department that she was living with her grandfather. But the evidence demonstrated that Mother had left Maryland around Thanksgiving and had been in California. She was still in California a week before the TPR hearing, which she participated in remotely. The court found no evidence of her whereabouts at the time of the TPR hearing and questioned her presence in California and the length of her stay. Ms. Smith testified that, to the Department’s knowledge, Mother had not found employment since her release.
Regarding mental health and substance abuse treatment,
the court found there was no evidence “of any significance that shows that [Mother] has proper mental health support [and] substance abuse treatment at the present time.” Although the evidence shows that Mother reported that she resumed mental health treatment upon her release from incarceration, there was no evidence that she had been “successfully discharged” from treatment, as the CINA court had ordered.
Contrary to Mother’s claim that she had addressed her substance abuse issues, there was no evidence that Mother had complied with the court order to be “successfully discharged” from outpatient substance abuse treatment as ordered by the CINA court. Although she completed a 45-day substance abuse program while incarcerated, there was no evidence that she followed up with discharge instructions to participate in intensive outpatient treatment and attend 90 Narcotics Anonymous meetings upon her release. A review report noted that Mother submitted to a urinalysis on October 17, 2023, ten days after she was released from incarceration, and the “results were positive for marijuana.”
See Amber R., 417 Md. at 722 (“given the well-known difficulty of overcoming drug addiction, and the likelihood that addiction will persist if untreated, a court can infer that a parent will continue to abuse drugs unless he or she seeks treatment”). The court’s findings regarding Mother’s lack of progress are supported by evidence in the record and were not clearly erroneous.
Mother suggests that her problems were “temporary and correctable” with more time, but the court expressly found that even if the services were provided going forward, they would be the same ones that Mother had not used and that had not been effective. We conclude that the court appropriately weighed Mother’s progress (or lack of) when it found that she had made some effort but not enough to create a safe and stable environment for S.W.
II.
Placement with a Relative
Next, Mother contends that the court failed to consider whether her “plan” to have family members care for S.W. was in his best interest. The Department responds that the issue of placement was not before the court in the guardianship proceeding but was a matter to be addressed in the CINA case. The Department maintains that, even if the issue were before the court in the proceeding to terminate parental rights, it would not change the outcome, as the evidence showed that the Department investigated all potential relative resources but found none willing and able to be a placement resource. We agree with the Department.
“[A] CINA permanency hearing and a TPR hearing are seeking to resolve related, but, ultimately distinct issues.” C.E., 464 Md. at 64. “The purpose of CINA proceedings is ‘[t]o provide for the care, protection, safety, and mental and physical development’ of CINA children; ‘conserve and strengthen the child’s family ties;’ ‘remedy the circumstances that required the court’s intervention;’ and ‘achieve a timely, permanent placement for the child consistent with the child’s best interests.’” Id. (citation omitted). “A TPR, conversely, is initiated once the Department is seeking to terminate the existing parental relationship.” Id.
As our Supreme Court has explained, “the appropriate focus of [a] TPR hearing [is] not the potential suitability of [a relative] as a placement for [the child]—as this [is] an issue properly addressed in the CINA case–but rather, the fitness of [the parents].” Id. (citation omitted).
In any event, the court found that Mother’s family was not supportive and that it was “particularly striking” that the family members who testified in Mother’s case were “not involved enough” to know who was caring for S.W. when Mother was incarcerated. Contrary to Mother’s claim that S.W. had a “large, caring, willing, and able family” available to care for him, the undisputed evidence demonstrated that all relative resources who responded to the Department’s inquiries were explored, and none were found to be appropriate.
Even Mother’s niece, who is singled out in Mother’s brief as a relative with the “means, time, and desire to care for S.W. full time[,]” testified that she never completed the fingerprint process to become a placement resource because she decided that she could not care for S.W. at that time. Although she testified at the TPR hearing that she could now be a resource, the Department had concerns about her criminal record.
The Department was also generally concerned about relative placement due to Mother’s belief that it would allow her unrestricted access to S.W. and her previous behavior when S.W. was placed with S.W.’s paternal grandmother. Furthermore, the Department’s expert testified that a change in placement would negatively impact S.W. On this record, we cannot conclude that the court erred in not considering whether placement with a relative was in S.W.’s best interest.
III. In-Person Visitation
Mother’s final contention is that the court erred in finding that the Department made reasonable efforts to facilitate
reunification. Specifically, Mother asserts that the court’s finding was erroneous because the evidence demonstrated that the Department “fail[ed] to provide in-person visits.” According to Mother, the Department “denied all in-person visits after October 2021,” refused her request for in-person visits during her incarceration from April 2022 to October 2023, and did not resume visits after her release.11 We perceive no error.
While Mother was not incarcerated between November 3, 2021, and April 22, 2022, Mother visited S.W. on November 18, 2021, but missed a scheduled visit on March 15, 2022. The Department reported difficulty in scheduling visits during this period, and Mother admitted to intentionally avoiding contact with the Department because she was evading arrest.
After Mother was reincarcerated on April 22, 2022, the Department attempted to coordinate in-person visits, but the correctional facility did not allow it. After Mother was transferred to a different facility, the Department was able to set up monthly virtual visitation, but they did not go well, according to the Department. The Department considered Mother’s request for in-person visits at the correctional facility and ultimately concluded, after consulting S.W.’s therapist, that it would not be in S.W.’s best interest. The Department requested that Mother’s visitation remain virtual due to her “historical lack of visitation and [S.W.’s] poor response during visitation.”
Even after Mother was released from incarceration on October 7, 2023, she missed her scheduled virtual visits with S.W. despite efforts by the Department to help her with the videoconferencing technology. Although the Department denied Mother’s request for in-person visits upon her release, it was due to concern that such a visit would be detrimental to S.W. based on his negative behaviors during virtual visits.
Based on this evidence, we cannot conclude that the court erred in finding that the Department’s efforts to facilitate reunification with Mother were reasonable.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Mother and the Department filed their respective briefs. Counsel for S.W. did not file a brief and instead adopted by reference the entirety of the Department’s brief.
2 Because Father did not file an appeal from the order terminating his parental rights, we recite only those facts relevant to Mother’s appeal.
3 K.C. and S.W. apparently have different fathers.
4 CINA or “child in need of assistance” is “a child who requires court intervention because: (1) The child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and (2) The child’s parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and
the child’s needs.” Md. Code, Cts. & Jud. Proc. (“CJP”) § 3-801(f) (1974, 2020 Repl. Vol.).
“‘Shelter care’ means a temporary placement of a child outside of the home at any time before disposition” of a CINA petition. CJP § 3-801(bb).
5 Initially, the court inadvertently issued an order changing the permanency plan from reunification with parent to reunification concurrent with adoption by a non-relative. It later issued a corrected order to reflect that the permanency plan had actually changed from reunification to a sole plan of adoption by a non-relative.
6 A CASA is a trained volunteer who is appointed by a judge to represent the best interests of children in cases involving alleged abuse or neglect. In re Billy W.,
387 Md. 405, 410 n.1 (2005) (citation omitted). See also CJP § 3-830.
7 Mother also provided the first name of someone from her church community but was unable to provide any contact information. The Department determined that it was not in S.W.’s best interest to pursue a different non-relative placement at that time because S.W. had “stability” in his current placement and was “so bonded to the foster parent.”
8 It is the role of the court to make specific findings with respect to each statutory factor. See In re Adoption/Guardianship of Rashawn H., 402 Md. 477, 501 (2007). There were no objections raised to the court adopting the Department’s argument as part of its findings, and this issue was not raised on appeal by any party.
9 Mother was convicted of child abuse in the second-degree, which is not a “crime of violence” within the meaning of FL § 5-323(d)(3)(iv). See FL § 5-101(d) (1) (cross- referencing the definition of “crime of violence” in § 14-101 of the Criminal Law Article).
10 The court’s written order does not include findings beyond those expressed in its oral ruling.
11 The Department argues that the law does not require the TPR court to consider the reasonableness of reunification efforts, but only the “extent, nature, and timeliness” of such services. We do not agree. See Rashawn H., 402 Md. at 500 (“The court is required to consider the timeliness, nature, and extent of the services offered by DSS or other support agencies,” and “[i]mplicit in that requirement is that a reasonable level of those services, designed to address both the root causes and the effect of the problem, must be offered[.]”)
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 06 MFLU Supp. 32 (2024)
Custody; best interests; family home
Michelle L. Patail v. Daniel J. Wille
No. 1841, September Term 2023
Argued before: Berger, Leahy, Ripken, JJ.
Opinion by: Ripken, J.
Filed: July 2, 2024
The Appellate Court affirmed the Montgomery County Circuit Court’s order granting father full legal and primary physical custody of child, in addition to “exclusive Use and Possession of the family home” for three years commencing October 1, 2023. The record supports the court’s diligent application of the custody factors and includes ample support for the court’s determination that sole custody of child to father would advance child’s best interests.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
custody of Child, use and possession of the family home, and child support. Mother counterclaimed, requesting primary physical custody of Child, sole legal custody or tie-breaking authority, use and possession of the home, as well as child support.
In May of 2022, the court ordered Mother and Father to participate in a custody evaluation which required information sharing and interviews of both Father and Mother. Father satisfied the Custody Evaluator’s requests for information and an interview; however, Mother did not, despite having been provided with “approximately 15 appointment dates and times[.]” Due to Mother’s lack of participation, at the Evaluator’s recommendation, the court terminated its custody evaluation order as the information needed was incomplete. Subsequently, in July of 2022, a Child’s Privilege Attorney was appointed. Later still, the same attorney’s role was expanded to that of Best Interest Attorney (“BIA”).6
In this divorce and custody case, Michelle Patail (“Mother”), appeals an order granting legal and primary physical custody of their now 15-year-old child (“Child”)1 to appellee, Daniel Wille (“Father”).2 Following a three-day custody hearing, the Circuit Court for Montgomery County entered an order on August 21, 2023 (the “Custody Order”). The court determined that it would be in the best interest of Child to grant Father full legal and primary physical custody of Child, in addition to “exclusive Use and Possession of the family home” for “three years commencing October 1, 2023[.]”3 Mother subsequently filed a motion to alter or amend the Custody Order which was denied. Mother noted this timely appeal.
For the reasons to follow, we shall affirm the judgment of the trial court.4
ISSUES PRESENTED FOR REVIEW
Mother presents the following issues for our review, which we have condensed and rephrased as follows:5
I. Whether the court erred in its factual findings or abused its discretion when it awarded legal custody and primary physical custody to Father.
II. Whether the court erred in the admission of hearsay evidence without an applicable exception.
FACTUAL AND PROCEDURAL BACKGROUND
Father filed a complaint in March of 2022 seeking a divorce,
In November of 2022, Mother and Father agreed to a pendente lite access order under which they shared physical custody of Child pending resolution of the divorce and custody petitions.
A. Custody Hearing
After bifurcating the custody and divorce proceedings, the court conducted a three- day custody hearing in August of 2023, at which Mother and Father were the only testifying witnesses. During the hearing, at the behest of Father, Mother, and the BIA, the Court admitted into evidence photos of Child, Child’s medical records and communication with Child’s doctors, text messages between Child and both parents, school records and communication with Child’s teachers, focusing particularly on a 504 plan for Child.7 Also admitted into evidence was a Child Protective Services (“CPS”) Investigatory Report as well as additional exhibits. The CPS investigative report was prepared in February of 2022 and filed under seal. The report had resulted from Mother obtaining a protective order for herself and Child on February 11, 2022. That protective order was based on a dispute in which Mother reported that Father “took” Child. At the time she made the report, Mother had knowledge that, on the advice of Child’s physician but against Mother’s wishes, Father had transported Child to Children’s Hospital in Washington, D.C. for emergency Guillain- Barre syndrome testing.
B. The Circuit Court’s Opinion and Order
On August 21, 2023, the circuit court entered a Memorandum Opinion (“Opinion”) and a separate Custody, Access and Use and Possession Order. In the 49-page Opinion, the court
reviewed in detail the testimony of Father and Mother, as well as the documentary evidence admitted during the threeday hearing. In the Opinion, the court found that the parties were the parents of Child, who was 14 years old at the time, and had recently completed eighth grade at the Montgomery County Public Schools Virtual Academy. The court noted that Father had “moved out of the family home in March of 2022, and that [Mother] lives in the family home.”8 The court also stated that Child “presents with a mountain of serious issues[,]” which included “anxiety, tics, and movement disorders[,]” and explained that Child “is unable to walk without a cane or a wheelchair.” The court noted that Child, who was assigned female at birth, now “prefers masculine pronouns” and per Father, identifies as a boy, although Mother continues to refer to child as “‘[m]y daughter.’” The court acknowledged that while “[i]t is impossible to know” how much the parties’ conduct contributed to Child’s challenges, their ongoing disputes “certainly played some terrible role.” The court further stated that due to Child’s difficulties “one of the Court’s goals is to remove [Child] from the middle of the war [between the parties] to the extent possible.”
In summarizing the factual background of the case, the court took particular care in outlining the February 2022 CPS report. The court noted that because the CPS report “was filed under seal, [] a detailed summary of the report in this public opinion would be inappropriate[.]” The court then stated that it “found the report extremely helpful in understanding what this child has gone through” and summarized the relevant factual public information:
According to the report, [Mother] blames [Father] for [Child]’s struggles. The Court finds it extremely odd that [Mother] denied saying all this in her Response to Request for Admissions (BIA Exhibit l3) when the CPS investigator cites her repeatedly and [Mother’s] own testimony in Court was consistent with the CPS report. Why [Mother] would deny saying these things in BIA Exhibit 13 is very strange. [Child] told the CPS investigator that [Mother] was mentally ill, and [Child] attributed all the fighting between [Mother] and [Father] to [Mother’s] delusions. [Mother] attributes [Child]’s mental illness to [Child] being “brainwashed” by [Father].
The CPS investigator spoke with Dr. Cantor ([Child]’s pediatrician). Dr. Cantor described [Child] as “very unstable,” with both somatic and mental health complaints that are intertwined. Dr. Cantor has been pressing this family to get mental health services for [Child] “for quite a while.” About two weeks prior, Dr. Cantor recommended that [Child] be seen at the ER for symptoms indicative of Guill[ai]n-Barre Syndrome. [Mother] became quite combative and refused treatment. “Dr. Cantor stated that these behaviors with the mother are patterned as ‘it took her a long time to come on board with psychiatric assistance’ for the child.” Dr. Cantor said that “[Mother] does not understand, and is not willing to understand, the severity of [Child]’s mental health needs . . . Mom’s rejection leads to the intensification of [Child]’s symptoms.”
Dr. Gold confirmed that Mother has made delusional or paranoid statements. She also said that [Mother] had refused
[Child] an available spot with a local DBT program due to cost even though father offered to pay for the treatment.[9] The investigator criticized [Mother] for initially declining the first available DBT spot and for opposing group therapy as part of DBT. The investigator recommended a full custody evaluation, which was subsequently ordered but not completed. (See discussion above.)
In the interest of privacy, the Court will refrain from any further summary of the lengthy CPS Report.
After providing the factual background, the court specifically addressed the factors relevant to a determination of custody.10 In addressing the fitness of the parents, the court stated: [Father] largely isolated himself from [Mother] while remaining in the family home[.] . . . [Child] lived in the middle of a ‘war zone’ for much of [Child]’s childhood. The Court finds that [Father] stayed because he thought it was best for [Child].
The Court finds [Father’s] testimony credible. He cares very much for [Child], and seeks appropriate medical attention for the child, particularly when it comes to following the advice of professionals.
As for [Mother], the Court accepts only certain parts of her testimony as credible. She testified without contradiction that she was [Child]’s primary care giver for much of [Child]’s childhood. The Court accepts her testimony that she did much of the childcare for [Child.] . . . Both [Child] and [Father] are in her debt for all the work she performed when [Child] was very young, and she should be commended for it.
Nevertheless, the Court does not find her to be a fit parent at this time. [Mother] has repeatedly shown that she is more interested in blaming [Father] for [Child]’s struggles than in addressing them.
* * *
As for credibility, the Court does not accept [Mother]’s descriptions of [Father]. Her complaints about how he was responsible for contaminating the family’s food are bizarre. The Court does not accept her testimony about [Child] sitting shirtless in [Father]’s room. [Mother’s] testimony about [Child]’s mental health struggles always focuses on why [Father] is to blame. The Court does not accept her testimony that [Father] acted improperly in taking [Child] on hikes, bike rides or kayaking. The Court understands that [Mother] “has concerns” about all these things. But these concerns are based on her own fears and not on reality. Her failure to attend to [Child]’s school needs, including the need for a 504 plan is typical of her slowness to react to [Child]’s needs. [Mother] is worried about how things will appear on a college application instead of worrying about taking care of [Child] right now.
* * *
This assessment is based largely on [Mother]’s own testimony. Her failure to obtain any mental health services for herself, despite the BIA asking for month after month, is worrisome. After all this time, she has done practically nothing to deal with her own mental health. The CPS report
also supports the notion that [Mother]’s mental health is a major source of the tension in the family and therefore the struggles of [Child]. Her testimony is that she did not give the names of any [references] to the BIA because she did not want to lose friends. The Court finds her failure to cooperate with the BIA (both in failing to get mental health services for herself and in failing to provide [references]) quite troubling. . . . [Mother] would have this Court believe that [Child] and [Child]’s wellbeing is the most important thing in [Mother]’s world, but [Mother] could not even find time to meet with the Custody Evaluator. Her actions speak louder than her words, and her actions (in failing to cooperate with the 504 process, in failing to cooperate with the BIA, and in failing to cooperate with the Custody Evaluator) have convinced this Court that [Mother] does not appreciate the seriousness of [Child]’s condition or the seriousness of this case. Moreover, the Court finds that [Mother] is unable to deal with the complexity of [Child]’s mental health struggles. This is the child custody equivalent of a 5 alarm fire, and yet [Mother] cannot find time to go to the 504 meeting! [Mother] refused to let [Child] participate in DBT group therapy because she did not want [Child] associating with “bad kids.” [Mother] is content to simply blame [Father] for the problems and not aggressively address them.
Discussing another factor, the character and reputation of the parties, the court found that: There is NO reliable evidence that [Father] ever abused [Child] or abused [Mother]. The Court does not believe or accept [Mother]’s explanations or accusations as true. [Mother] has convinced herself that she is a victim, . . . but her lack of credibility dooms these claims.
The court subsequently addressed the factor of the relationship established between the child and each parent: The evidence is that both parents love and care for [Child].
The Court finds that [Child] knows that each parent loves [Child]. . . .
The problem is that [Child] does not trust [Mother]. (See BIA Exhibit 1.) This lack of trust is justified, given [Mother’s] actions. For example, [Mother] has falsely accused [Father] of domestic violence on two occasions. When [Father] sought emergency psychiatric help for [Child], [Mother] accused him of kidnapping. When [Child] is in need, [Mother’s] response is to minimize the problem and blame [Father]. The text messages from [Child] (See Plaintiff’s Exhibits 7, 8, and 9), reflect the fact that [Child] does not trust [Mother] to help [Child] in times of need. The relationship between [Mother] and [Child] has deteriorated to the point that [Mother] should not be in charge of [Child]’s health care. The relationship between [Child] and [Father] is not perfect but is manageable. [Father] does seek out professional help in a timely manner for [Child].
Turning to another factor, the potential disruption of the child’s social and school life, the court noted:
As for [Child]’s school life, this is a major issue in the case. [Child] is currently enrolled in the MCPS virtual academy. [Mother] wants [Child] to remain in virtual school for at least one semester and then evaluate whether [Child] is ready for in-person school at Walter Johnson High School. . . . [Child]
wants to attend Walter Johnson in person. [Father] has met with the various school authorities to arrange for [Child] to attend Walter Johnson right away. The school officials have indicated that they can accommodate [Child] at Walter Johnson.
The Court has confidence in [Father] to make these decisions. If the professionals (both the doctors and the school) believe that it is time for [Child] to return to in person school, then he will follow their recommendation.
The Court has no such confidence in [Mother]. She has not presented any support for her decision to keep [Child] in virtual school. . . . No educator or doctor has said that [Child] should not be in school.
The court found that the evidence demonstrated that the “two parents cannot communicate well enough to make shared decisions[,]” and determined that “the current 50/50 arrangement is not in [Child]’s interest.” Additionally, the court concluded by acknowledging that, although Mother was “doing the best she can” and that it “observed a great deal of love and concern for [Child][,]” Mother’s inability to timely respond to genuine concerns was impeding Child’s ability to receive necessary care and support. Based on the factual findings above and consideration of the other Sanders-Taylor factors, the court granted Father sole legal custody and primary physical custody of Child, as well as use and possession of the family home. Additional facts will be included as they become relevant to the issues.
I. THE CIRCUIT COURT DID NOT ERR IN ITS FACTUAL FINDINGS OR ABUSE ITS DISCRETION IN AWARDING CUSTODY TO FATHER.
Invoking her “constitutionally protected liberty interest in the care and custody of her Child[,]” Mother contends there is “substantially uncontroverted evidence of [Father’s] abuse, violence, and detrimental impact on the Child” and that the custody decision is otherwise predicated “on erroneous findings and conjecture concerning [Mother] that are not substantiated in the Record.” According to Mother, “[t]he Order and its directives were intended to punish [Mother] for independently seeking medical and educational assistance for her Child.” We address Mother’s contentions regarding the court’s factual findings, legal rulings, and ultimate custody decision in turn.
A. Standard of Review
In child custody matters, the court’s responsibility is to protect the best interests of the child. See In re Yve S., 373 Md. 551, 569–70 (2003); Boswell v. Boswell, 352 Md. 204, 219 (1998). Maryland “recognize[s] that in almost all cases, it is in the best interests of the child to have reasonable maximum opportunity to develop a close and loving relationship with each parent.” Id. at 220. Although both parents have a fundamental constitutional “liberty interest in raising his or her children as he or she sees fit, without undue interference by the State[,]” such rights are “not absolute” and “may be restricted or even denied” when the child’s best interest is at stake, such as when the child’s health or wellbeing is effected, or when divorcing parents “are exercising those rights to opposing ends[.]” See Yve S., 373 Md. at 565–70.
In determining a child’s best interests, Maryland appellate
courts have set forth a list of non-exhaustive factors “that a court must consider when making custody determinations[.]” Azizova v. Suleymanov, 243 Md. App. 340, 345 (2019) (citing Montgomery Cnty. Dep’t of Soc. Services v. Sanders, 38 Md. App. 406 (1977) and Taylor v. Taylor, 306 Md. 290 (1986). None of the Sanders-Taylor factors are dispositive, and in determining custody, “the trial court should examine ‘the totality of the situation in the alternative environments’ and avoid focusing on or weighing any single factor to the exclusion of all others.” Jose v. Jose, 237 Md. App. 588, 600 (2018) (quoting Best v. Best, 93 Md. App. 644, 656 (1992)).
On appeal, this Court reviews a child custody decision under “three interrelated standards[.]” J.A.B. v. J.E.D.B., 250 Md. App. 234, 246 (2021). First, ‘“[w]hen the appellate court scrutinizes factual findings, the clearly erroneous standard of [Rule 8131(c)] applies.”’ Id. (quoting In re Yve S., 373 Md. at 586). Next, “if it appears that the [court] erred as to matters of law, further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless.” Id. (citation omitted). Finally, the circuit court’s “ultimate conclusion” regarding custody, when predicated on “factual findings that are not clearly erroneous” and “sound legal principles[,]” will be affirmed unless “there has been a clear abuse of discretion.” Id. (citation omitted).
Trial courts are entrusted with “great discretion in making decisions concerning the best interest of the child.” Petrini v. Petrini, 336 Md. 453, 469 (1994). “We will only disturb a decision made within the discretion of the trial court ‘where it is apparent that some serious error or abuse of discretion or autocratic action has occurred.’” J.A.B., 250 Md. App. at 247 (quoting In re Adoption/Guardianship No. 3598, 347 Md. 295, 312 (1997)). As this Court has emphasized, child custody cases are inherently difficult and complex, and due to a trial court’s superior ability to view the witnesses and make credibility determinations, “we will set aside a [custody] judgment only on a clear showing that the [trial court] abused [its] discretion.” Viamonte v. Viamonte, 131 Md. App. 151, 157 (2000). Appellate courts “rarely, if ever, actually find a reversible abuse of discretion on this issue.” McCarty v. McCarty, 147 Md. App. 268, 273 (2002).
B. The Record Does Not Support Mother’s Challenges to the Circuit Court’s Factual Findings.
Mother contends that the circuit court committed clear factual error in resolving several disputed facts. We are mindful that “[t]he clearly-erroneous standard is a deferential one, giving great weight to the trial court’s findings[,]” because the trial judge has the opportunity to observe the testifying witnesses when making credibility findings and resolving conflicts in the evidence. See Gizzo v. Gerstman, 245 Md. App. 168, 200 (2020) (internal quotation marks and citation omitted). Factual findings “are not clearly erroneous if there is competent or material evidence in the record to support the court’s conclusion.” Azizova, 243 Md. App. at 372. (internal quotation marks and citation omitted). Addressing the specific findings challenged by Mother, we conclude the court did not err.
1. Mother’s participation in 504 planning for high school
According to Mother, the court erred in finding that she
“could not find time to go to the 504 meeting” concerning plans for Child’s in-person attendance at Walter Johnson High School. To the contrary, Mother asserts, she “spent a lot of time on the Child’s 504 plan[,]” as “substantiated in both parties’ testimony.” Specifically, she points out that she attended the February 2022 meeting with school officials to start 504 accommodations, and “attended several 504 meetings[,]” as well as “had conversations” with Child’s school counselor over the course of the subsequent year and a half. In Mother’s view, any meetings she missed “were for minor amendments to 504 accommodations.” Mother contends that her “involvement was essentially discounted” by the court due to the erroneous supposition that she “could not find time for the Child’s 504 Plan.”
The record does not support Mother’s characterizations of the court’s factual findings as prejudicially erroneous, speculative, or punitive. To the contrary, the court thoroughly summarized the pertinent testimony and documents, explaining that Father testified that Mother did not attend multiple 504 meetings, and was hesitant to seek formal accommodations because “it might look bad on college applications in the future.” By contrast, the record indicated, and the court concluded, that Father consistently undertook 504 planning steps to facilitate Child’s return to a classroom setting.
Father testified that he received a copy of the initial 504 determination, which was implemented as soon as Father went to Child’s middle school and signed the document. He also attended all the ensuing 504 planning meetings. The next school year, while Child went to Montgomery Virtual Academy, Father continued his efforts to secure accommodations which would allow Child to attend classes in-person when beginning high school in August of 2023.
The court also reviewed testimony provided by Mother during Father’s case-in- chief. With respect to the 504 planning, the court recounted that email and text messages had alerted Mother that Child wished to attend in-person school, but Mother took no immediate action, and instead “tr[ied] to assess whether [Child was] being realistic” in Child’s desire to attend in-person school and noted her “concerns” about the possibility of Child attending an in-person school. In her own testimony, Mother agreed that she was “unable to make it to the [504 Plan] meeting because of a scheduling conflict[,]” but otherwise took the process “very seriously” and denied avoiding the issue.
The court also summarized Mother’s testimony during cross-examination by the BIA regarding her email dated May 1, 2023 (BIA Exhibit 17), in which Mother admitted that, while Father and Child’s counselors were planning for Child to attend in-person school at Walter Johnson starting in August 2023, Mother arranged for Child to be “enrolled in the virtual academy as of May 1, 2023.”
In evaluating the “[p]otential disruption of the child’s social and school life” from a change in custody and residence, the court found that “[Child’s] school life . . . is a major issue in the case.” The court concluded that Child should remain in the family home with Father based in part on Father’s successful 504 planning with school officials and doctors for Child to attend Walter Johnson in-person. Mother’s preference to delay that plan until the second semester based on her “concerns” undermined the court’s “confidence” in Mother to make
“appropriate adjustments” if “problems develop” while Child is attending Walter Johnson, as “both the doctors and the school” recommend.
When viewing the court’s findings regarding the 504 planning in context, we conclude the court did not predicate its custody decision on Mother’s admitted failure to attend all the 504 planning meetings. Nor did it “punish” Mother for missing the more recent 504 meetings when plans were being made for Child to start at Walter Johnson High School. Instead, the court cited Mother’s admitted absences from 504 meetings and her reluctance for Child to begin high school in person, in accordance with the wishes of Child and Child’s health care team, as reason for the court’s lack of “confidence” in Mother to respond in a timely and appropriate manner to future 504 planning.
The evidentiary record amply supports the court’s factual findings regarding Mother’s reluctant and intermittent participation in 504 planning. In turn, those findings support the court’s broader conclusion that Mother’s “actions (in failing to cooperate with the 504 process, in failing to cooperate with the BIA, and in failing to cooperate with the Custody Evaluator)” collectively indicate that she “does not appreciate the seriousness of Child’s condition or the seriousness of this case.” Accordingly, the court did not err in concluding that Mother’s failure to cooperate in 504 planning supports the premise that Child’s best interests would be furthered in Father’s custody.
2. The court-ordered custody evaluation
In assessing the fitness of both parents, the court found the Custody Evaluator’s memorandum to be “[o]ne of the most important items of evidence[,]” explaining that Mother “could not even find time to meet with the Custody Evaluator[,]” which was indicative of being unable to sufficiently prioritize Child’s best interests.
Mother challenges “the unsubstantiated supposition that [she] ‘refused to cooperate’ with” and “‘could not find time’ to meet with the Custody evaluator[.]” She maintains the court’s finding is erroneous, citing her own testimony that she “did not decline” to provide any information the custody evaluator asked for and that she “provided the Custody Evaluator with several dates for a meeting[,]” but the Custody Evaluator “was not available” on the dates Mother suggested. While tacitly conceding that she did not schedule a meeting with the courtappointed Custody Evaluator, Mother blames that failure on her busy schedule of work and parenting, and on the evaluator’s unavailability. In Mother’s view, the circuit court penalized her for being unavailable due to her responsibilities as the primary parent and argues that she was forced to choose between meeting the court’s scheduling requirements and adequately caring for Child.
Mother mischaracterizes or misreads the court’s findings. The court correctly found that Father “met with the Court’s Custody Evaluator and did not decline to give the Evaluator any information that was requested.” By contrast, the court also cited a “Custody Evaluation Memorandum” dated October of 2022 and determined that Mother “has not participated in the evaluation” even though “[s]he was provided with approximately 15 appointment dates and times, none of which
reportedly worked for her schedule.” Due to Mother’s lack of participation, the evaluator filed a memorandum requesting that the custody evaluation be terminated. After Mother was “given a chance to respond[,]” the court granted the request. The court then cited Mother’s failure to cooperate with the evaluator, consistent with her failures to assist educational and mental health providers, as support for its finding that Mother “does not appreciate the seriousness of [Child]’s condition or the seriousness of this case.”
The record supports this finding. More than five months after Mother was ordered to participate in the custody evaluation, she still had not scheduled a meeting with the Custody Evaluator. Nor did she take steps to make Child available to meet with the evaluator. Mother testified that she “was being cautious” about the court evaluation. The court did not err in finding that Mother’s “explanations” for failing to cooperate with the court evaluation “make no sense,” particularly when viewed in light of Child’s “struggles” having reached “the child custody equivalent of a 5 alarm fire” by this time, where Child’s movement difficulties were compounded by Child’s history of mental illness and selfharm. This record supports the court’s consideration of Mother’s failure to timely meet with the Custody Evaluator as another factor evidencing Mother’s inability to timely understand and address Child’s urgent and complex needs.
3. Child’s dialectical behavioral therapy
Mother next contends that the Custody Order is based on erroneous findings that she “refused to let the Child participate in DBT” and caused a delay “in the Child starting DBT[.]” Mother again misstates and misunderstands the record and the court’s factual findings.
The court expressly recognized Mother’s testimony that she “did not refuse DBT therapy” but that, “after extensive research[,]” she did not want Child in a group session that she believed would expose Child to “the worst kids in the county.” Rather, Mother “wanted [Child] to consider other alternatives” and “did not see any improvement in [Child]” resulting from the therapy. Mother’s testimony is consistent with this statement expressing her “concerns” based on her own “research.”
Regarding the recommendations by Child’s mental health providers that Child begin dialectical behavior therapy, the court recounted that Father testified that after Child had selfharming incidents, Child’s treating therapist advised “both parents that [Child] needed a higher level of care” than Child’s treating doctors could provide, and recommended DBT, which was started in March of 2022. The court noted that the CPS investigator who spoke with Child’s pediatrician and therapist “criticized [Mother] for initially declining the first available DBT spot and for opposing group therapy as part of DBT.” In addition, the court, in its “final observations” acknowledging Mother’s “great deal of love and concern for [Child,]” explained that Mother’s pervasive fears have “paralyzed [her] from acting. She calls it having ‘concerns.’” The court found that Mother’s many concerns were “genuine, but they are overstated, and they are causing [Mother] to ignore the obvious concerns right in front of her.” Identifying situations in which Mother “was ‘assessing’ . . . because she was being careful[,]” the court pointed out that “[w]hile she ‘assesses’ whether a particular DBT therapist is
best, [Child] goes without treatment.”
The court did not mischaracterize Mother’s actions or stated position on DBT, but instead recognized that Mother’s “concerns” caused delay in beginning therapy and that her opposition to group DBT resulted in discontinuation of that therapy mode. In this context, the court did not err in considering such evidence or inferring from it that Mother’s reluctance toward DBT was obstructive and contrary to Child’s best interests.
4. Mother’s ability to address Child’s mental health challenges
Mother characterizes the court’s conclusion that she “could not deal with the Child’s mental health issues” as “conjecture” that “is against the weight of the uncontroverted evidence” and one that effectively penalizes her for “requesting additional information about their Child’s health or education[.]” We again disagree. The challenged finding reflects the sum of the court’s credibility determinations, resolution of evidentiary conflicts, weighing of the evidence, and drawing of inferences. The court made its own observations of both parents, based on their testimony over three days. Those assessments aligned with information in reports from the BIA and CPS, and collectively persuaded the court to find that Child’s health needs were urgent, serious, and insufficiently addressed by Mother.
The court did not err or abuse its discretion in relying on such evidence in determining that Father should have sole legal and primary physical custody. Over the course of the two years preceding the hearing in August of 2023, Mother had at times denied, questioned, or downplayed Child’s mental health challenges, and delayed or failed in obtaining the help recommended by Child’s health care providers. By contrast, Father acknowledged Child’s serious condition, then made timely arrangements to obtain the recommended help, which including DBT, gender affirming, and other therapies, as well as 504 accommodations enabling Child to return to the classroom. We find no error in those underlying factual findings and no abuse of discretion in the ultimate custody decision predicated on them.
5. Other challenged findings
In her brief, Mother also challenges a litany of other factual findings made by the court as “conjecture and supposition” that tainted the circuit court’s conclusions and orders. Specifically, these include findings that Mother blamed Father for Child’s mental health challenges, that Mother did not sign a therapist release form, that Father and Mother’s cohabitation was fraught, and that Mother did not follow the BIA’s non-legally required requests. Upon our review of the record, these factual findings have sufficient evidentiary support.
With regard to the conclusion that Mother blamed Father for Child’s mental health struggles, the court found it significant that when Mother was asked whether Child’s mental health struggles are Father’s fault, she “initially said yes, but then said, ‘not all.’” Later, Mother testified that she “believe[s] that a lot of the behavior and abuse” allegedly committed by Father “contributed to [Child]’s anxiety,” whereas her role was limited in contributing to “the tension in the household.” Here, Mother
challenges an inference drawn by the court, which was based in significant part on Mother’s own testimony. This Court does not revisit such inferences because it is the trial court’s responsibility to make the credibility determinations and factual findings underlying them. See Gizzo, 245 Md. App. at 200–01.
Similarly, the record does not show that the court erred in concluding that Mother did not sign a release form for Child’s therapy. To the contrary, Mother testified that she could not recall whether she signed releases for the school counselor to talk with Child’s mental health providers. Mother also testified that she did not sign a release for a licensed clinical social worker referred by the BIA because her “preference was to find . . . a licensed psychologist.”
As to Mother’s claim that the court erroneously concluded that she asked Father to leave the family home, Mother misreads the record. The court accurately recounted Father’s testimony that “[i]n June of 2009, his marriage to [Mother] began to deteriorate when she accused him of stealing diamonds and of adultery.” Although Father testified that he consulted an attorney, stayed in the house, and moved into another bedroom, he also felt that this change “seemed to help the situation” and that Mother “was fine” most of the time, except for her occasionally puzzling “accusations” that he was “a drug dealer, a white supremacist, and” was “poisoning her food.”
Nor do we agree with Mother’s contention that the court “faulted [her] repeatedly for not following the BIA’s directives[.]” In so asserting, Mother mischaracterizes the BIA’s recommendations and requests as “directives” and the court’s conclusions about Mother’s refusals as “faulting” her for failing to comply. Rather, the court appropriately recognized that Mother denied the BIA’s repeated requests to seek support for her own mental health, which is an appropriate consideration for the court when evaluating Mother’s fitness to act in the best interests of Child.11 At no point did the court state or imply that the BIA’s suggestion was a legal requirement Mother was obligated to follow.
Due to the presence of competent evidence in the record supporting the court’s determination of contested factual findings, we discern no errors as to the court’s resolution of the factual questions of this case. See Wagner v. Wagner, 109 Md. App. 1, 39–40 (1996).
C. The Circuit Court Did Not Abuse Its Discretion in Granting Father Sole Legal and Primary Physical Custody.
In challenging the ultimate custody decision, Mother contends that the Order “is not in the Child’s best interests,” “lacks basis in the Record[,]” and is “against the weight of the evidence presented at trial.” In her view, the court abused its discretion because Father’s “own words and actions demonstrate that [Mother] should have remained primary physical custodian and retained legal custody.” She again asserts that the Custody Order “is directed at punishing [her] instead of determining the Child’s best interests.”
We are not persuaded that the circuit court abused its discretion in concluding that it is in Child’s best interests for Father to have sole legal and primary physical custody, along with use and possession of the family residence and Child’s
beloved cat. As we explained when addressing Mother’s challenges to factual findings, the record supports the court’s diligent application of the Sanders-Taylor custody factors and includes ample support for the court’s determination that sole custody of Child to Father would advance Child’s best interests. See Jose, 237 Md. App. at 600 (“The best interest standard is the dispositive factor on which to base custody awards.” (internal quotation marks and citation omitted)). The record includes evidence sufficient for the court to conclude that Mother’s fitness to parent Child had been materially diminished by her unjustified blaming of Father for Child’s serious health challenges, her difficulties in decision-making impacting Child’s therapy and education, and the unaddressed concerns about Mother’s own mental health. The court evaluated the testimony of Mother and Father, as well as records such as emails, text messages, audio and video recordings from police encounters, and reports from CPS and the BIA. Collectively, this evidence supports the court’s credibility determinations and factual findings that on critical occasions and in multiple forums, Mother failed to take parenting actions that the court, Child’s medical and educational providers, and the BIA identified as reasonable, necessary, and at times urgent to address Child’s needs. Among the most critical were Mother’s failure to comply with a court-ordered custody evaluation, lack of participation in 504 planning to assist Child in securing educational accommodations, and denial of or delayed consent to a range of medical or mental health care assessments and therapies.
Moreover, the court determined that Mother’s testimony was not credible and rejected her allegations that the recreational activities Father did with Child, including hiking and kayaking, were unsafe; that Father absconded with Child when he followed medical advice by taking Child for GuillainBarre testing at Children’s Hospital; that Father was physically abusive; and that Father was present while Child was in his room, not wearing a shirt. This Court defers to the circuit court’s resolution of conflicting evidence and credibility questions. Spencer v. State, 450 Md. 530, 549 (2016) (“We give due regard to the fact finder’s finding of facts, its resolution of conflicting evidence, and, significantly, its opportunity to observe and assess the credibility of witnesses.” (internal quotation marks, brackets, and citation omitted)).
Ultimately, the record supports the circuit court’s finding that Mother’s continued resistance—to therapies, educational planning, and other measures recommended by Child’s health care providers—prevented Mother from appreciating and addressing Child’s urgent needs. The evidence further supports the court’s finding that at critical times when Child was in crisis, Mother’s concerns and fears resulted in a failure to timely respond to efforts by Father and others to help Child obtain legal, medical, and educational resources.
Likewise, the evidence supports the circuit court’s assessment that Mother’s focus on what she viewed as wrongdoing by Father interfered with her ability to parent and Father’s relationship with and access to Child. Those are valid considerations in the court’s evaluation of what custody arrangements are in Child’s best interests. See Kadish v. Kadish, 254 Md. App. 464, 505–06 (2022) (affirming order granting father sole legal and primary physical custody, based
on mother’s failure to comply with court orders regarding custody exchanges and making multiple unsupported reports of abuse, which harmed child and interfered with father’s custody); Wagner, 109 Md. App. at 33 (affirming order granting father sole legal and primary physical custody in part due to mother “attempt[ing] to discontinue [the father’s] visitation[,]” in a manner that “vitiated” “the presumption of continuity and stability in favor of the original custodial parent”).
For the reasons articulated above, the court did not err in its factual determinations, nor did it abuse its discretion in concluding that the custody order was in Child’s best interests.
II. THE CIRCUIT COURT DID NOT ERRONEOUSLY ADMIT HEARSAY EVIDENCE.
A. Contentions
Mother contends that the Custody Order must be vacated because it is based on “inadmissible” and “unsubstantiated” hearsay. (emphasis omitted). In particular, Mother cites to portions of the Custody Order that summarize the CPS report, acknowledge the BIA’s report of Child’s “observations” and preference for conditional “supervised contact with” Mother, and identifies the “text messages from [Child]” in Plaintiff’s Exhibits 7-9 as “reflect[ing] the fact that [Child] does not trust [Mother] to help [Child] in times of need[,]” as an improper basis for the Order. 12
B. Standard of Review
Although trial courts generally have broad discretion over admission of evidence, “whether particular evidence is hearsay or whether it is admissible under a hearsay exception” is a legal question to which appellate courts do not defer. See Gordon v. State, 431 Md. 527, 538 (2013). “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Md. Rule 5-801(c). “Except as otherwise provided by these [Maryland R]ules or permitted by applicable constitutional provisions or statutes, hearsay is not admissible.” Md. Rule 5-802; Bernadyn v. State, 390 Md. 1, 8 (2005). “Thus, a circuit court has no discretion to admit hearsay in the absence of a provision providing for its admissibility.” Id. at 7–8.
C. Analysis
Here, the court did not err in admitting the CPS report under the hearsay exception for public reports. Maryland Rule 5-803(b) provides that “a memorandum, report, record, statement, or data compilation made by a public agency setting forth . . . matters observed pursuant to a duty imposed by law, as to which matters there was a duty to report” is admissible. See Md. Rule 5-803(b)(8)(A). Per the Supreme Court of Maryland: When such a duty clearly exists, the general doctrine [], that a witness should have personal knowledge, need not stand in the way, for . . . it has its conceded limitations; and where the officer is vested with a duty to ascertain for himself by proper investigation, this duty should be sufficient to override the general principle. It is true that due caution should be observed before reaching the conclusion that the law has in fact in a given case intended to invest the officer
with such an unusual duty. But when it clearly appears that a duty has been prescribed to investigate and to record or certify facts ascertained other than by personal observation, then it follows that, in accordance with the general principle of the present exception, the statement thus made becomes admissible.
In this civil action, the CPS report was properly admitted because it was prepared by a public agency (i.e., Montgomery County Department of Social Services) regarding “matters observed pursuant to a duty imposed by law as to which matters there was a duty to report” (i.e., a mandatory Child Protective Services investigation and report triggered by Mother’s request for a protective order covering the Child).13 Md. Rule 5-803(b) (8)(A). Thus, the summaries of interviews with Mother, Father, and Child, as well as Child’s medical providers and other witnesses, including their out-of-court statements, could be considered by the court because they were part of a report prepared by CPS “pursuant to a duty imposed by law[.]” See, e.g.
In re H.R., 238 Md. App. 374, 405–07 (2018) (finding that Court Reports prepared for a child access hearing which “largely comprise[d] factual recitations about routine matters, such as the children’s academic progress, their medical appointments, the dates and times of contacts between the Department and parents, and referrals made for the parents and the children” were “presumptively admissible under Rule 5-803(b)(8)(A)”).
To be sure, much of the evidence from that report was cumulative of other admissible evidence presented to the court. Specifically, Father and Mother both testified extensively about the events surrounding the protective order proceedings, as well as other family dynamics covered by the CPS report, including their communications with each other and Child, in addition
to communications about Child’s mental and physical health and educational history and plans. For example, the court, in evaluating one of the custody factors, expressly stated that its “assessment is based largely on [Mother]’s own testimony,” in which she acknowledged that, despite the BIA and CPS reports stating that her “mental health is a major source of the tension in the family[,]” Mother still had not “obtain[ed] any mental health services for herself[.]”
With respect to Child’s text messages and the parties’ testimony about their communications from Child, the court did not admit those out-of-court statements for their truth, but to establish Child’s perception of Child’s relationships with Mother and Father. See generally Battle v. State, 252 Md. App. 280, 312 (2021) (recognizing that one of “[t]he threshold questions when a hearsay objection is raised [is] . . . whether [the evidence] is offered for the truth of the matter asserted” (internal quotation marks and citation omitted)).
Specifically, the court cited these text messages, in which Child was seeking help from Father while in Mother’s custody, not as evidence that what Child said was true, but as evidence that Child reached out to Father because Child did not trust Mother to help when help was needed. To the limited extent Mother objected on hearsay grounds, the court did not err in admitting the text messages as non hearsay evidence of Child’s relationships with Mother and Father, then allowing Mother to testify about those texts, including those relating to an incident when Child was lying on the floor and unable to get up. See Ashford v. State, 147 Md. App. 1, 75 (2002) (“[W]hen a statement is offered for some purpose other than to prove the truth of the matter asserted therein, it is not hearsay.”)
Thus, we conclude that the court did not erroneously admit hearsay evidence by admitting the CPS report and the test messages between Child and both parents.
FOOTNOTES
1 To preserve the anonymity of the child, throughout this Opinion we will identify the minor as “Child”.
2 To avoid confusion in this custody case involving cross-claims, we will use the terms “Mother” and “Father” to refer to Mother/Defendant/CrossComplainant and Father/Plaintiff/Cross-Defendant, respectively.
3 Prior to the final order, the pendente lite consent custody arrangement had provided for shared legal and physical custody of Child with Mother living in the family’s residence.
4 Father moves to dismiss this appeal on the ground that Mother “fail[ed] to consult and create a record extract, or agreed statement of the case,” as required by Md. Rule 8-501(a)(b). “Ordinarily, an appeal will not be dismissed for failure to file a record extract in compliance with this Rule.” Md. Rule 8-501(m). “For an appellate court, the ‘preferred alternative’ is always ‘to reach a decision on the merits of the case.’ Consequently, this Court typically will not dismiss an appeal, even in the face of noncompliance with Rule 8- 501, unless the appellee sustains prejudice.” McAllister v. McAllister, 218 Md. App. 386, 399 (2014) (internal citation omitted). We decline to dismiss Mother’s appeal because the electronically available record contains the relevant documents filed in the circuit court case, including transcripts and exhibits from the three-day custody hearing from which this appeal is taken.
5 Condensed and rephrased from:
1. Unsubstantiated suppositions and conjecture about Appellant MP stated repeatedly as the basis for the Custody Order are clear error and an abuse of discretion. The Custody Order must be vacated.
2. The Custody Order must be vacated because it is based on unsubstantiated hearsay.
3. The Custody Order lacks basis in the Record and is against the weight of the evidence presented at trial. The Order is not in the Child’s best interests.
6 The BIA is an attorney appointed by the court to represent this minor child’s best interests in the parents’ divorce action, where custody and child support were contested. See Md. Code, § 1-202 of the Family Law Article (“FL”).
7 Section 504 of the Rehabilitation Act of 1973 guarantees the rights of people with disabilities who are enrolled in federally funded programs, including public schools. “504 plans” ensure students with disabilities enrolled in such schools receive reasonable accommodations designed to meet their educational needs and promote their academic success. See Section 504 Plans, Maryland Dept. of Disabilities, https://mdod.maryland.gov/education/Pages/Section504-Plans.aspx (last accessed Jun. 18, 2024).8 We note that the court mistakenly identified the parent who
moved out of the home as “Defendant,” i.e., Mother. We find this to be an inadvertent and immaterial, as in the same sentence, the court correctly stated that Mother was living in the residence. Similarly, in awarding use and possession to Father, the court recognized its Order would require Mother to vacate the residence and make other living arrangements.
9 DBT is an acronym for Dialectical Behavior Therapy a recognized form of therapy. Janet Feigenbaum, Dialectical behavioral therapy: An increasing evidence base, 16(1) J. Mental Health at 51-68 (2007).
10 These factors, collectively termed the SandersTaylor factors, are discussed in more detail infra. In short, they are a non-exclusive list of factors which trial courts should consider when determining the best interests of a child pursuant to a custody determination. See Montgomery Cnty. Dep’t of Soc. Services v. Sanders, 38 Md. App. 406 (1977) and Taylor v. Taylor, 306 Md. 290 (1986). While the court in this case made an on-the-record finding with regard to each of the Sanders-Taylor factors, we recount only the court’s consideration of factors relevant to this appeal.
11 Indeed, during the hearing, Mother testified that she had not sought out mental health support services and had yet to contact any of the references whom she had “researched . . . on the internet,” claiming that she was “having a hard time finding somebody.” She also admitted that was “the same answer” she had given the BIA eight to nine months earlier.
12 Mother also asserts that the court relied on impermissible hearsay in its Opinion and Order when on page 44 of the Opinion the court allegedly makes “[v] ague references to unnamed doctors and other professionals[.]” While the court does reference unnamed professionals on the identified page, it is for the purpose of articulating the court’s conclusion as to a Sanders-Taylor factor, specifically that Father will rely on professionals to guide his decisions. The court did not state that a specific unnamed professional provided a statement or belief that the court relied on for the basis of its opinion. Thus, it is a forward- looking generalization, not an evidentiary basis for the Order requiring review.
13 On February 11, 2022, as a result of Father taking Child to the Children’s Hospital Emergency Room for specialized testing per Child’s physician, over Mother’s objection, Mother obtained an ex parte temporary protective order for her and Child. By law, this triggered a referral to Child Protective Services to investigate, as mandated by FL § 4- 505(e) (“Whenever a judge finds reasonable grounds to believe that abuse of a child . . . has occurred, the court shall forward to the local department a copy of the petition and temporary protective order” and “the local department shall . . . investigate the alleged abuse as provided in . . . Title 5, Subtitle 7 of this article” and “send to the court a copy of the report of the investigation” before the final protective order hearing.). After Father agreed to leave the home, Mother dismissed the action before the final protective order hearing.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Baltimore County Circuit Court’s judgment granting father a judgment of absolute divorce, ordering the division of the parties’ personal property and assets and awarding father sole legal and physical custody of the minor children with mother having visitation. The trial court abused its discretion in denying mother’s motion for a continuance because it appears from the record that the courts’ determination was based on several factual errors that have greater significance given the child custody issues at stake.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
and well-being was being negatively impacted by Mother’s relocations from state to state, and twice within the State of California, over the last two years.
On the evening of September 18, 2023, Mother filed the motion for continuance that is the subject of this appeal. As grounds, Mother explained that she had been experiencing a Lupus flare, and that she woke that morning with “severe symptoms of joint pain, headache, fever, exhaustion, and chest pains.” Her children had tested positive for COVID the night before, and later that afternoon, Mother also tested positive for COVID. The trial court received the motion at the outset of the hearing on September 19, and after hearing argument from Father’s counsel, denied the motion for continuance.
Following a one-day trial, the circuit court granted Father a judgment of absolute divorce, ordered the division of the parties’ personal property and assets, and awarded Father sole legal and physical custody of the minor children with Mother having visitation. The court ordered the children to relocate to Father’s home in Maryland by no later than October 12, 2023.1 Mother timely appealed and presents the following questions for our consideration, which we have rephrased as follows:2
1. Did the trial court violate Mother’s procedural due process rights in denying her motion for continuance?
Krystal Lucado (“Mother”) appeals from a Judgment of Absolute Divorce from the Circuit Court for Baltimore County, which awarded Peter Oetker (“Father”) sole legal and primary physical custody of the parties’ minor children, I.R. and A.X. Mother filed a complaint for absolute divorce in the Circuit Court for Baltimore County on January 12, 2022, and Father filed a counter-complaint for absolute divorce a month later. At the time, Mother had primary physical custody of the children and the parties shared joint legal custody.
A three-day merits hearing was originally scheduled to commence on February 13, 2023, but was ultimately rescheduled to September 19-21, 2023. Just a week before the trial was set to begin, Mother filed a motion requesting that I.R. and A.X., and her two older sons by a prior marriage, appear remotely to testify as witnesses. She cited financial constraints, stating that she could not “afford to fly the children to [Maryland].” The motions court denied this motion without explanation.
During the week prior to trial, Father filed an amended counter-complaint in which he requested sole legal and primary physical custody of the children. He claimed that Mother “makes scheduling visitation with the Minor Children incredibly difficult”— frequently inventing excuses to cancel visitations and making it challenging for Father to make travel arrangements. Father also claimed that the children’s education
2. Did the trial court err or abuse its discretion in denying Mother’s motion for continuance?
Mother’s last-minute motion for continuance was not her first and would normally be within the court’s discretion to deny. However, the court’s decision to deny the motion was premised on several factual errors, and while those errors were understandable under the circumstances in this case, because significant custody issues are at stake, we must vacate the circuit court’s judgment and remand the case for a new trial. We do not need to reach Mother’s procedural due process argument.
BACKGROUND
Procedural History
The parties were married on March 30, 2007, in a civil ceremony in Baltimore County. I.R. and A.X. were 15 and 13 years old respectively at the time of the merits hearing. Both Mother and Father also have adult children from previous marriages.
Soon after their marriage, the parties jointly purchased their marital residence in Monkton, Maryland. In August 2019, Mother purchased a second home in Havre de Grace, Maryland, “against [Father’s] wishes[,]” as he thought they had agreed to
“severely downsize.” A “week or two later,” Mother sent Father a separation agreement. Mother and the children lived at the Havre de Grace house, while Father stayed at the Monkton house but visited “most weekends.” This living arrangement continued for the next couple of years until September 2021, when the parties informed their children of their decision to divorce. By the end of September 2021, the parties no longer cohabitated.
On October 29, 2021, the parties signed a parenting agreement stating that it was in the best interests of the minor children for Mother to retain physical custody, with joint legal custody shared by both parents. This parenting agreement also stipulated that the children were “free to choose when they want[ed] to visit each parent” and “where they want[ed] to spend a holiday with practical and reasonable notice.”
Father initiated proceedings for absolute divorce in the Circuit Court for Harford County on December 20, 2021. A month later, Mother filed a separate complaint for absolute divorce in Baltimore County, which became the operative complaint after Father dismissed the Harford County action. In her complaint, Mother alleged that she “[w]as the primary parent for all of the fourteen years in raising the minor children and her twin sons from a prior marriage, while [Father] was largely an absentee parent.” She also claimed that Father began an extra-marital relationship beginning in August 2021. As grounds for divorce, Mother asserted Adultery (Count One) and Constructive Desertion (Count Two). Mother sought sole physical custody, joint legal custody, child support, permanent alimony until the businesses of Gateway Executive Suites and Gateway Executive Suites 1 were sold, equitable shares of the marital property and financial assets, and attorneys’ fees.
Father filed his answer on February 11, 2022, followed by a counter-complaint for absolute divorce filed three days later. In Father’s answer to the complaint, he alleged that Mother “liquidated the funds in the retirement account” that he had funded for her by putting her on the payroll of his company, and then she “unilaterally decided” to purchase a new home in Havre de Grace against his wishes. He claimed that upon moving into the new house, Mother presented him with a separation agreement that Father stated was “signed [by the parties] around the beginning of October 1, 2019, and [Mother] backdated to 2018.”
Thereafter, the parties met several times to try to reach an agreement on the terms of a divorce, and Father “prepared different draft versions of documents for these settlement discussion[s]”; however, according to Father, no agreement for a settlement regarding the terms of the divorce was reached. Father claimed that the Maryland Parenting Form submitted by Mother did not “correspond to any of the forms that [Father] developed during settlement discussions,” and requested that it be stricken.
Father emphasized that he had been “an active father in the lives of the minor children and stepchildren up to the separation in September/October 2019 when [Mother] unilaterally moved 50 minutes away and created circumstances that forced [Father] to work long hours on weeknights and weekends.” Father requested the court deny Mother’s request for relief except for ordering child support after utilizing the Guidelines.
In his counter-complaint for absolute divorce, Father requested joint physical custody and joint legal custody of his minor children. He also asked the court to facilitate “mediation to develop a parenting and custody plan based on the expected future geographic locations of [Father] and [Mother].”
The court’s scheduling order, issued on April 4, 2022, set a settlement conference for September 28, 2022. On September 27 at 10:18 p.m., Mother filed a request to appear remotely at the settlement conference because she and the minor children were residing in California at the time. The settlement conference occurred on September 28, with Mother’s counsel and Father present. According to Father’s counsel, Mother failed to appear for the settlement conference, and the magistrate “very graciously” attempted to call Mother to hold the hearing remotely. However, Mother “never picked up the phone.” The magistrate indicated during the settlement conference that Mother’s motion to appear remotely “didn’t even actually get ruled on.” The magistrate stated that she “would have granted it[,]” but Mother was “not answering right now.”3 A partial settlement was reached, and the trial was set for February 13, 2023, to resolve the remaining issues of “custody/access, child support, [and] marital property.” On October 17, 2022, Mother’s counsel withdrew his appearance, and Mother filed pro se thereafter.
On January 31, 2023, Mother notified Father via email that their son had tested positive for COVID. Then, on February 6, 2023, a week before the scheduled trial, Mother filed a motion for remote proceeding or to appear remotely, stating:
My 12 year old son tested positive for C[OVID] on 1/31/23 and 2/1/23. The State of California requires that he isolate for 5 days and on the 6th day, test again before returning to school. My 14 year old daughter will also be tested tomorrow. I cannot fly on February 12th, given contact with positive COVID patient.
Father opposed the motion, arguing that Mother “failed to appear in proper person for the Settlement Conference” and contended that she “never intended to appear in person for this trial.” On February 10, the parties were informed that the trial was on “standby” due to the lack of available judges. The court reset the trial to September 19, 2023.
On September 11, 2023, Mother filed a motion for remote proceeding or to appear remotely. She requested that her witnesses—her twin adult sons and the minor children— appear remotely because: “Mother cannot afford to fly the children to MD. The twin sons work in the state of MA. The minor children are in school in the state of CA.” The trial court denied the motion.
Four days before the trial, Father filed a supplemental counter-complaint for absolute divorce. He stated that Mother made “scheduling visitation with the Minor Children incredibly difficult.” He recounted that Mother would “invent[] excuses to cancel visitations, telling [Father] that his proposed dates do not work because the Minor Children have plans, only for [Father] to later find out, that there was never anything planned or scheduled.” He explained that Mother “constantly changes her mind” regarding visitation plans, “making it incredibly difficult for [Father]” to access and visit his children. Father argued that it was not in the best interest of the children “to be
away from Maryland and away from him for extended periods of time.” Father claimed that Mother makes “life- changing decisions” without discussing matters with him, and Mother’s behavior “has provided instability and uncertainty for the minor children.” Father stated that he believed “it is in the best interest of the minor children to be in his sole legal and primary physical custody.”
Motion for Continuance
At approximately 6:00 p.m. on September 18, the evening before the trial, Mother filed a motion for continuance and stated that she was experiencing a Lupus flare that prevented her from traveling and that she and the children had tested positive for COVID. Mother attached her flight information, which showed a plane ticket that was purchased on September 11, 2023 (the same day that she filed the motion to appear remotely) and showed a flight leaving from San Francisco and arriving in Baltimore at 6:35 a.m. EST on September 19, 2023.
The court reviewed the motion at the outset of trial proceedings on September 19. Opposing counsel recounted Mother’s previous failures to appear. Father’s counsel relayed to the trial court judge that Mother “went to law school” and that she was “an attorney” and was “very familiar with the law, family law.”4 Father’s counsel mistakenly told the court that Mother booked a flight that was to arrive at around 9 a.m. on the day of the trial (perhaps mistaking Pacific Standard Time with Eastern Standard Time, as Mother’s flight was actually scheduled to arrive at 6:35 a.m. EST).
The court and Father’s counsel then engaged in a conversation about the picture of the COVID tests, which was attached to Mother’s motion for continuance.
THE COURT: The COVID test. [FATHER’S COUNSEL]: Pardon me?
THE COURT: There’s also COVID allegations. I don’t know if you saw that.
[FATHER’S COUNSEL]: All the time. Sometimes there’s COVID. THE COURT: Yes.
[FATHER’S COUNSEL]: If you look at the old one, the kids have COVID – the kids have had COVID every single time we have had something scheduled here.
THE COURT: Well, and I only saw one out of three positive tests in the attachments. So I was a bit confused.
[FATHER’S COUNSEL]: Well, she said the same thing in February too on the postponement request.
THE COURT: Okay.
(Emphasis added). The Court determined to proceed with trial, explaining, in part:
THE COURT: Okay. Okay. Well, I am and have through central denied her request to postpone today. I was covering for Judge Epstein last week when the Motion for Remote was denied consistent with Judge Epstein’s policy on such things as we are living in 2023 versus 2020 or 2021. Our benches, we are not looking to do these hybrid hearings. It’s fine if it’s a witness or two, but not a party.
[DEFENSE COUNSEL]: Correct.
THE COURT: So I did not deny her remote request, which was based upon, if I am recalling correctly, really finances and convenience. Not illness or any kind of medical condition.
[DEFENSE COUNSEL]: Right.
THE COURT: So I was surprised to see the medical issues that were raised in yesterday’s –
[DEFENSE COUNSEL]: Three days later.
THE COURT: Yeah, I guess it was yesterday’s motion. I was out of the office yesterday. But I am back today. So anyway, I have denied the Motion for Continuance.
(Emphasis added). At the conclusion of the trial, the Court again reviewed Mother’s previous failures to appear and observed, “[a]ll this [is] to say I think the file is quite clear that, you know, [Mother], after filing her complaint has chosen not to appear and proceed on many of her requests[.]” The court continued:
THE COURT. This case was set -- and it was set for today, the 19th, to begin.
Eight days ago, M[other] filed a request for a remote procedure asking that she and the children be allowed to proceed remotely. I denied that consistent -- either I did or Judge Epstein did. But, either way, it’s consistent with the Court’s policy since we have moved back to phase 5.
And then today, there was a motion for continuance -yesterday, a motion for continuance filed alleging a lupus flare that started 3 months ago and a positive COVID test for herself and the children.
But, again, I did not -- I saw one positive test on the attachment.5
Again, that was used as a reason for continuance back in February.
So, at any rate, here we sit. I don’t like deciding these matters based only on one side of the story. But sometimes I am left with no choice when one party chooses to not have any significant engagement with the proceedings. And so that’s where we are at this point.
(Emphasis added).
The Trial
Defense counsel called three of Father’s friends who testified to Father’s good character, and Father testified on his own behalf. According to Father, in January 2022, Mother and the minor children left Maryland and moved to Massachusetts, where her adult children from a previous marriage reside. Although Father was “generally opposed that the children would leave the state,” he “did not fight it because [he] did not want to create drama or a situation that would harm the kids.” Mother and the children remained in Massachusetts until approximately the “middle of May of 2022.” During their time in Massachusetts, the children were allegedly “home schooled in the Calvert program. Father noted that this “really wasn’t the Calvert program” like the Calvert brick and mortar his older children had attended but “was more of a webinar thing where the parent has to be the teacher.” The program involved “some online type of tests[,]” with the parent responsible for “check[ing] the homework and . . . coach[ing] the kids[.]” According to Father, Mother did not share school records, but once he received them under a subpoena, he discovered that the children “really didn’t do all that great.”
Father expressed that he had “a number of concerns” regarding the children’s schools in California. Father also
expressed general concern about the children’s diet and overall welfare under Mother’s primary physical custody, noting that they “seem to be fending for themselves.” If he were to receive physical custody of the children, Father asserted, they would attend Havre de Grace High School and Havre de Grace Middle School. Both schools are housed within the same building, and the children had previously attended the Havre de Grace school system. Father highlighted the schools’ rankings, which showed that both of the Havre de Grace schools were top rated. He believed that these schools would provide academic advantages for the children, and particularly highlighted the magnet program tailored for students “with special interest in science.”
The current visitation arrangement was characterized by Father as “[c]haos.” Father proposed a visitation schedule with alternate vacation periods and with Mother having the majority of the summer with the children. In the event that Mother lived closer to Father, he suggested a more evenly-split-visitation time for the shorter holidays, such as Memorial Day and Labor Day weekend, as well as visitation “every other weekend[.]”
As previously noted, at the conclusion of the trial, the court discussed the relevant procedural history to explain why the trial court proceeded despite Mother’s absence. The court then determined, reluctantly, to dismiss Mother’s complaint for absolute divorce and to grant Father’s supplemental countercomplaint based upon a separation from Mother of more than 12 months.
After the judge weighed the factors under Montgomery County v. Sanders, 38 Md. App. 406 (1978) and Taylor v. Taylor, 306 Md. 190 (1986), she found that it was “in the children’s best interest to be in their father’s primary physical custody” as Father could “provide the structure and stability that his children need”6 with an access schedule for Mother as outlined in Father’s proposal. The judge recognized Father as “a very involved father who cares about his children . . . [who] has had to really make some heroic efforts to get access to them since the separation.” Additionally, the judge awarded Father sole legal custody, and ordered the children to relocate to Maryland by no later than October 12, 2023, noting that “since separation” there was a pattern to “exclude[]” Father in the decision making.
Regarding alimony and property claims, the court ruled that “[h]ousehold furnishings are to remain in the possession of the party who currently has it” and that “each party is to maintain all bank accounts and assets by title.” Despite Father not making any claims for alimony and Mother “not here to support her claim for it[,]” the court noted that both parties “either make or are capable of making comparable incomes every year.” In terms of child support, Father was ordered to pay Mother child support from February 2022 until September 2023 within two weeks of the order, with Mother obligated to pay child support to Father once the children were in his custody.
Post-Trial Motions
The trial court entered its judgment of absolute divorce on September 26, 2023, and Mother noted her timely appeal on October 4, 2023. Mother then filed an emergency amended motion to stay proceedings7 to prevent enforcement of the custody provision in the judgment of absolute divorce pending
appeal. Mother explained that she had been scheduled to appear for trial from September 19–21 in Maryland, and had purchased a plane ticket with arrival planned for “6 a.m. EST the morning of September 19, which would give her plenty of time to arrive for a 9 a.m. EST hearing[.]” However, on the morning of September 18, 2023, she and both children “awoke ill and tested positive for C[OVID.]” Given her ongoing treatment for a Systemic Lupus Flare, Mother “immediately contacted her Rheumatologist” who advised her not to travel. Mother stated that she called judicial chambers and “left a message regarding the motion for continuance[.]”
On the morning of September 19, Mother received an email instructing her to file a Notice of Restricted Information alongside the doctor’s note for it to be accepted for filing. At 8:46 a.m. the morning of trial, Mother filed a note from her rheumatologist, which stated that Mother was unable to travel due to her Lupus flare. Later that morning, Mother was informed that the motion for continuance was denied. She had scheduled a doctor’s appointment for herself and the children, but the earliest available appointment was at 7 p.m. PST that night. The doctor confirmed that Mother and the children had tested positive for COVID and provided a note advising them to quarantine, which Mother filed and submitted to the court, which, at that time, was after the trial had ended.
In her emergency amended motion to stay the custody provisions, Mother argued that the Judgment of Absolute Divorce caused Mother “irreparable injury” because the Judgment required Mother to “force the children to do something they do not want to do[,]” as the children have “refused to go because they do not want to live with Father and do not feel safe with Father.” Furthermore, Mother argued that the Judgment would disrupt the children’s lives when they are “well cared for and progressing in [] academics,” and that “the custody provision was entered without considering the expressed wishes of the children and [hearing] from both parents[.]” Mother included signed affidavits from her two minor children, A.X. and I.R.8 The affidavits each stated, among other things, that “My Father can be emotionally and physically abusive” followed by examples organized in bullet-outline form below.9 Another affidavit written by Mother’s Mother stated that I.R. “complains about [Father’s] friends touching her inappropriately and [Father] forcing her to be in their presence.”10
Subsequently, we granted the motion to stay the physical custody provisions of the Judgment of Absolute Divorce pending the outcome of Mother’s appeal.
DISCUSSION I.
DENYING THE MOTION FOR CONTINUANCE
A. Parties’ Contentions
Mother asserts that “when illness prevents a party from attending trial, particularly where child custody is at issue,” the trial court abuses its discretion by denying a motion for continuance. She contends that the court “had an obligation to hear from the mother of the minor children before deciding custody, and before deciding her claims of monetary award, child support and alimony.” By declining to grant Mother’s
motion for continuance, the trial court, in her view, “abused its discretion and [acted] arbitrarily[.]” Mother references Hart v. Miller, 65 Md. App. 620, 627 (1986), in which a plaintiff’s case was dismissed by the trial court due to failure to timely file answers to interrogatories, and we reversed for the reason that the court failed to consider alternative remedies. Mother argues that, similar to Hart, the trial court failed “to consider any alternatives to denying the continuance[,]” and that this failure to exercise its discretion, “in and of itself,” is “an abuse of discretion.”
Mother contends that her case is akin to Wells v. Wells, 168 Md. App. 382 (2006). In Wells, where the trial court entered a default judgment against the absent mother that granted the father custody of their minor child, we determined that the court “abused its discretion in denying the motion to vacate with respect to the issues of equitable distribution and alimony.” Wells, 168 Md. App. at 398. We noted that there was no evidence that granting the motion would prejudice the father—a point, Mother contends, parallels the current case. She emphasizes that “at no point” was there argument that granting a continuance would prejudice Father, whereas denying it severely prejudiced Mother’s “claims for custody, visitation, child support, alimony, marital property, and other relief sought[.]”
Mother points out that the trial court seemed influenced by opposing counsel’s “factually inaccurate” assertion that “‘[e] very single appearance we have she filed like the day before.’” According to Mother, her request for a continuance, not remote appearance, was denied seemingly “based on policy” rather than merit. Mother emphasizes that her motion was for the minor children to appear remotely, not for herself, and that she had provided evidence such as her flight information and emails to opposing counsel. She argues that the trial court’s mistaken belief that she filed a motion to appear remotely for herself, instead of for her witnesses, constitutes an “erroneous finding [that] alone may require vacating the Judgment of Absolute Divorce.”
Mother further argues that the trial court abused its discretion when it denied Mother’s continuance due to her illness with COVID. Mother contends that in this regard, her case is similar to In Re McNeil, 21 Md. App. 484 (1974), a case in which the trial court denied the mother’s motion for continuance because one of her children was ill. On appeal, our predecessors determined that refusing to grant a continuance in that case was “so arbitrary as to constitute a denial of due process.” In Re McNeil, 21 Md. App. at 499) (emphasis removed). Similarly, here Mother contends that the trial court erred in denying the motion for continuance because it failed to recognize “that illness cannot be anticipated, nor that it is an absolute reason not to come to court.” She explains that, as a pro se litigant, she encountered difficulty in properly filing the doctors’ notes and the COVID diagnoses of all three individuals due to the requirement of filing restricted information.
Father contends that the trial court acted well within its discretion to deny Mother’s motion for continuance. He argues that Mother’s question “assume[s] that the Court knew for certain that [Mother] and the Minor Children definitely had COVID.”
Father highlights that Mother’s “alleged proof” included a letter about a Lupus flare and a photo that “showed only one positive
COVID test[,]” “offered no identifying information[,]” and was filed on “September 19, 2023 at 8:46 a.m., fourteen minutes before trial was set to begin.” Furthermore, he points out that the doctor’s letter that “purport[ed] that [Mother] and the Minor Children had been diagnosed with COVID” was “unsigned” and only became available to the Court after the trial.
Father outlines the procedural history leading up to the trial and argues that Mother established “a pattern throughout the entirety of these proceedings of . . . avoiding trial.” He highlights instances when Mother attempted to delay or avoid trial, such as filing a request to appear remotely at 10:18 p.m. the night before the pre-trial settlement conference, and Mother’s subsequent motion for remote proceeding or to appear remotely because the parties’ youngest child had tested positive for COVID, filed just before the initial merits trial date.
Father argues that the situation in this case differs from cases referenced by Mother, such as Wells v. Wells, 168 Md. App. 382 (2006) and Flynn v. May, 157 Md. App. 389 (2004), as “there was no Order of Default in this matter.” He notes that Mother “has continued to file pleadings” since the Judgment of Absolute Divorce. Father suggests that
Mother is “dissatisfied with the result” of the trial, and now, after “having failed to meaningfully participate[,]” wishes to “challenge the outcome of this matter.”
B. Legal Framework
Motions for continuances or postponements are governed by Maryland Rule 2-508, which states, in pertinent part: “On motion of any party or on its own initiative, the court may continue or postpone a trial or other proceeding as justice may require.” Md. Rule 2-
508(a). Although the Supreme Court of Maryland has “not specified what the phrase ‘as justice may require’ means,” it has emphasized that the “the decision to grant a continuance lies within the sound discretion of the trial judge.” Touzeau v. Deffinbaugh, 394 Md. 654, 669 (2006). Generally, an appellate court will not “disturb[] the decision to deny a motion for continuance” unless there has been an abuse of discretion. Id. (citations omitted). An abuse of discretion occurs when the discretion exercised is “manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.” Id. (citation omitted) (internal quotations omitted).
Maryland Rule 8-131(c) provides the standard of review for actions tried without a jury:
When an action has been tried without a jury, an appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.
Md. Rule 8-131(c). In Davis v. Davis, 280 Md. 119, 12226 (1977), the Supreme Court of Maryland further clarified application of the “clearly erroneous” standard in child custody cases, instructing that appellate courts must give broad deference to the trial court because the trial judge “sees the witnesses and the parties, hears the testimony, and has the opportunity to speak with the child; [the judge] is in a far better
position than is an appellate court, which has only a cold record before it, to weigh the evidence and determine what disposition will best promote the welfare of the minor.” Id. The Court noted, however, that “when it appears on review that the [trial judge] failed to take sufficient evidence into account, we may remand the case without affirmance or reversal for a redetermination, after further proceedings, as to what is in the best interests of the children.” Id. at 126, n. 4 (citations omitted).
It is long held by our appellate courts that when the custody of children is the question, “the best interest[s] of the children is the paramount fact.” A.A. v. Ab. D., 246 Md. App. 418, 441 (2020) (quoting Kartman v. Kartman, 163 Md. 19, 22 (1932). Indeed, the best interests of the children “is the central consideration.” Id. (quoting McDermott v. Dougherty, 385 Md. 320, 354 (2005)) (citation omitted).
Turning to those decisions that address a trial court’s decision to deny a parent’s motion for a continuance in child custody case, we begin with In re McNeil, 21 Md. App. 484 (1974). In that case, this Court examined whether the trial court abused its discretion by denying the mother’s request for continuance and proceeding with an exceptions hearing in her absence. Id. at 496. The mother had initially petitioned for her minor children to be committed to the Department of Social Services (“DSS”) due to her inability at the time to care for them. Id. at 486. Approximately six months later, her circumstances had changed, and she filed a petition for review of the commitment. Id. Following a hearing, the magistrate recommended revoking the commitment and placing the children, then living in foster care, back with the biological mother. Id. DSS took exception to the magistrate’s report, and the merits hearing was scheduled in the circuit court. Id.
On the day of the merits hearing, the mother’s counsel communicated that the mother was unable to attend the hearing because her child was sick. Id. at 486-87. The court proceeded with the trial on the merits in her absence and denied mother’s counsel’s repeated requests for a continuance, ultimately dismissing her petition for review of commitment. Id. at 487, 493.
On appeal, this Court determined that the mother “was entitled to a reasonable opportunity to be present and assert her view as to why her children should be returned to her care.” Id. at 500. The Court instructed:
We can think of no right more fundamental to any parent than to be given a reasonable opportunity to be present at any judicial proceeding where the issue is whether or not the parent should be permitted to have custody of its child. We believe that there was grave and serious error on the part of the trial judge in compelling the hearing to proceed in the absence of the Appellant, and we find that it was arbitrary and unreasonable for him to refuse to grant a continuance so that she might be present.
Id. at 496-97. Of particular concern was that the court did not “mak[e] a realistic inquiry into the circumstances of [mother’s] absence, or ascertain[] whether she had been guilty of a pattern of unconcern.” Id. at 498. Moreover, the record did not reflect that the trial court judge considered “whether the mother’s testimony would be competent or material.” Id. The Court found relevant mother’s counsel’s “uncontradicted statement” that
Mother was unable to appear due to the illness of her child, as well as Ms. McNeil’s extensive involvement in the proceedings leading up to the hearing. Id.
In Touzeau v. Deffinbaugh, 394 Md. 654 (2006), the Supreme Court of Maryland held that the trial court did not abuse its discretion in denying the motion for continuance. The case involved a contentious child custody and access dispute between a divorced couple and their minor child. Id. at 656-58. The parties shared legal custody of the child, and Ms. Touzeau had primary physical custody while Mr. Deffinbaugh had liberal visitation rights. Id. at 656. The dispute escalated when Ms. Touzeau informed Mr. Deffinbaugh that she would be moving from Silver Spring to Churchton, Maryland, and would be taking their daughter with her. Id. at 658. Mr. Deffinbaugh filed an emergency motion for modification of custody and attorneys’ fees in the Circuit Court for Montgomery County and requested “injunctive relief prohibiting Ms. Touzeau from relocating [the child] to Churchton, temporary primary physical custody of [the child] until a court evaluation and a hearing on his petition could be conducted, and permanent primary physical custody of [the child]” Id. at 658. Ms. Touzeau, as a pro se defendant, filed a petition for an emergency order and counter-petition to modify custody. She also requested that the visitation schedule be altered, no long requiring the child to visit her father during the school week “because of the length of the commute.” Id. at 658-59.
The parties met on September 30, 2004, for a scheduling conference, and the judge ordered a custody evaluation, with the results announced at the January 21, 2005 settlement conference and a custody modification hearing scheduled for February 8, 2005. Id. at 659.
On January 28, 2005, Ms. Touzeau filed a motion for continuance of the February 8 custody modification hearing, citing that, in light of the “unfounded recommendations” in the custody evaluator’s report, she was attempting to obtain pro bono counsel. Id. at 659. This motion was denied. Id. During the custody modification hearing, Ms. Touzeau again raised her motion for continuance stating that she was pro se and was seeking counsel due to the recommendations of the Court evaluator’s report. Id. at 659. She explained that she had taken steps to obtain legal counsel and was able to find an attorney who was able to represent her, but he was unavailable that day. Id. at 660. Mr. Deffinbaugh opposed the motion due to the “urgency of the matter and argued that Ms. Touzeau had ample time to obtain counsel[.]” Id. at 661.
The Court agreed with Mr. Deffinbaugh and stated:
THE COURT: It seems to me that Ms. Touzeau had plenty of time as this case was pending to seek and be able to find someone perhaps to represent her in this. It’s a crisis that I think unfortunately has been generated by Ms. Touzeau waiting until the very last to seek counsel.
So the Court’s ruling on the renewed oral motion to continue is denied.
Id. at 662.
The trial judge read a portion of the custody evaluator’s report, which stated: “Mrs. Touzeau does not seem to understand that [the child] needs her father to be involved in her life on his own terms, not just when she finds it convenient or acceptable. The
parties appropriately have joint custody, yet she had numerous times made decisions unilaterally which are debatable as to whether they were in [the child’s] best interest. She has little insight into how she is contributing to the problems and she seems to have difficulty accepting that she cannot control what goes on when [the child] is with her father.” Id. at 663. Having considered the custody evaluator’s report and observed “a pattern of behavior” of removing the child’s father from her life and “totally disregarding any input by Mr. Deffinbaugh[,]” the court awarded Mr. Deffinbaugh physical and legal custody of the child and granted Ms. Touzeau liberal visitation. Id. at 664.
On appeal, Ms. Touzeau contended that “justice required” the trial court to grant her motion for continuance to enable her to obtain counsel. Id. at 666. We affirmed the trial court’s decision, noting that Ms. Touzeau had “four months to prepare for the custody modification hearing, [and] Ms. Touzeau had waited until the last moment to file a motion for a postponement.” Id. at 664-65. Moreover, the parties “had been informed at the September scheduling conference that the results would be available to them in January.” Id. at 665. The Supreme Court of Maryland agreed and delineated factors in which it would be an abuse of discretion for a trial judge to deny a motion for continuance.
We have found that it would be an abuse of discretion for the trial judge to deny a continuance when the continuance was mandated by law, see Mead v. Tydings, 133 Md. 608, 612 (1919), or when counsel was taken by surprise by an unforeseen event at trial, when he had acted diligently to prepare for trial, Plank v. Summers, 205 Md. 598, 604-05 (1954), or, in the face of an unforeseen event, counsel had acted with diligence to mitigate the effects of the surprise, Thanos v. Mithell, 220 Md. 389, 392-93 (1959).
Touzeau, 394 Md. at 669-70. The Supreme Court noted the expedited circumstances and the “consequence of the immediate impact that [the child’s] relocation had on her relationship with Mr. Deffinbaugh.” Id. at 675. Furthermore, the court noted that the continuance requested was “not merely for one day, but for a protracted period of time[.]” Unlike in other instances that the court had found exceptional circumstances, the case “lack[ed] the elements of surprise and due diligence.”
Id. The court determined that “Ms. Touzeau had failed to demonstrate that she experienced an unforeseen circumstance in the contested custody proceedings that she reasonably could not have anticipated and that she acted with due diligence to mitigate the consequences of not being represented by counsel at the hearing to modify custody.” Id. at 678. Thus, the Supreme Court of Maryland affirmed the judgment of the Appellate Court and held that the trial judge did not abuse his discretion in denying the motion for continuance. Id.
Although not a child custody case, in Reaser v. Reaser, 62 Md. App. 643, 645 (1985), we again recognized the “exceptional instance” in which there was an abuse of discretion when the trial court denied a motion for continuance in a divorce proceeding. In Reaser, the wife, previously represented by counsel, requested a continuance of the merits hearing because her attorney had withdrawn from her case, she had not been able to retain a new attorney “financially or physically,” and she “did not know until” six days prior that the case was to be heard
that day. Id. at 645, 649. The trial court denied the wife’s request for continuance and proceeded with the hearing. Id. at 649-50. Ultimately, the trial court granted the husband’s divorce request and dismissed the wife’s countercomplaint and contempt petition.11 Id. at 647.
On appeal, we analyzed the circumstances under factors set out in In Re McNeil, supra, that “militat[e] in favor of a continuance[,]” and determined:
No reason was given for the denial of the continuance. We know that Judge Thieme in September expressed concern that the case had not proceeded to trial on the merits. We might speculate that the age of the case played a role in the court's decision. If this were so, it would not provide sufficient justification for the denial of the continuance particularly when no prejudice to the other side was shown and no objection voiced. There does not appear to have been any emergency situations necessitating that the case proceed immediately. No inquiry was made of appellant as to how long it would take her to get counsel.
Id. at 650.
We concluded that denying the wife’s request for a continuance was an abuse of discretion and thus remanded the case for a new trial. Id. at 650.
D. Analysis
Applying the foregoing rules and precepts to the case before us, we hold that the trial court abused its discretion in denying Mother’s motion for a continuance because it appears from the record that the courts’ determination was based on several factual errors that, although understandable in light of Mother’s history of last-minute filings, have greater significance in this case given the child custody issues at stake.
Mother, as a pro se litigant, filed her motion for continuance the night before trial was to begin and included documentation from her rheumatologist, advising against her traveling due to health reasons, as well as a picture of three positive COVID tests. Just prior to denying Mother’s motion on the day of the hearing, the Court observed, “Well, and I only saw one out of three positive tests in the attachments.” Although Father argued, and the trial court concurred, that the COVID test picture provided in Mother’s motion for continuance depicted only one positive test, as we explained previously, the instructions for the InteliSwab COVID-19 test indicated that all three COVID tests were positive. Each test in the picture depicted a reddish-purple line next to the “T,” which, according to the instructions on interpreting the results, indicates a positive COVID test. Father has not demonstrated or averred to the contrary on appeal. Although it is true that none of the tests as depicted in the photograph were identified as belonging to Mother or anyone in particular, the diagnoses of Mother and the children were confirmed by a doctor at an urgent care facility in California, and Mother filed the documentation with the court at 12:03 a.m., a day after the hearing. The court’s error in accepting Father’s counsel’s interpretation of events instead of making further inquiry into the nature of Mother’s and the children’s illnesses may have been anodyne, especially in light of Mother previous attempt to postpone due to COVID illness, except that it was not the only factual inaccuracy in the court’s determination.
The record shows that the trial court judge was also mistaken in believing that Mother requested a remote hearing for herself when she had filed the Motion for Remote Proceeding or to Appear Remotely a week before trial. However, Mother had only requested the parties’ minor children and her witnesses, her two adult sons, appear remotely, and she had purchased a plane ticket for herself, set to arrive at BWI at 6:35 a.m. the morning of trial – not 9 a.m., as Father’s counsel contended. In denying the motion to continue, the court, referring to Mother’s motion to appear remotely, stated, “It’s fine if it’s a witness or two, but not a party.” Consequently, it is clear from the record that the trial court believed that Mother tried to avoid appearing for trial by filing a motion to appear remotely, and then, when that was denied, submitted a request for continuance with a photograph showing only two, rather than three, positive COVID tests. Although the trial court was appropriately concerned that the custody proceedings come to some resolution in the best interests of the children, the record does not indicate that there was an emergency that required the merits hearing to proceed in absentia, and certainly, as the court recognized, mother’s testimony would have been material to the court’s custody determination.12 See In Re McNeil, 21 Md. App. at 496 (1974) (determining that the mother’s testimony “could have been very
important” and “have been of probative value” in determining the custody of the child); see also Reaser, 62 Md. App. at 650 (concluding that “[t]here does not appear to have been an emergency necessitating that the case proceed immediately.”). Additionally, the record did not reflect that Father would suffer prejudice or harm from granting the continuance. Conversely, Mother’s absence rendered her unable to represent herself in the proceedings and proved to be prejudicial to her request for full legal and physical custody of the children. See In Re McNeil, 21 Md. App. at 497 (“We can think of no right more fundamental to any parent than to be given a reasonable opportunity to be present at any judicial proceeding where the issue is whether or not the parent should be permitted to have custody of its child.”).
Although Maryland Rule 2-508 “provides wide latitude” for the trial court to act within its discretion in determining whether to grant a continuance, Shpak v. Schertle, 97 Md. App. 207, 225 (1993), we must conclude the trial court’s determination in this case was clearly erroneous given the factual mistakes that factored into the trial judge’s ruling. Given our holding, we must vacate the judgment of the circuit court and remand the case for a new trial on the merits.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY VACATED; CASE REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION; COSTS TO BE PAID BY APPELLEE.
FOOTNOTES
1 On Mother’s emergency motion filed on October 15, 2023, this Court entered an order staying the provisions of the Judgment of Absolute Divorce awarding Father primary legal and physical custody of the children and requiring the children to move from California to Maryland until the resolution of Mother’s appeal.
2 Mother’s questions presented are:
1. “Did the trial court violate Appellant’s Due Process rights in denying Appellant a continuance of the September 19, 2023 merits trial, when the court was aware she and the children had tested positive for C[OVID]?”
2. “Did the trial court err or abuse its discretion, or did it act in an arbitrary manner when it denied Appellant a continuance of the September 19, 2023 trial?”
3. “Did the trial court err, abuse its discretion, or act in an arbitrary manner when it denied Appellant a continuance of the September 19, 2023 trial, knowing that she was ill with C[OVID]?”
3 Another settlement conference was scheduled for December 21, 2022. Father filed a request for a remote proceeding on December 6 because he would be in Europe visiting his mother. Father’s motion was grant-
ed; however, the settlement conference was ultimately canceled.
4 We observe that Mother is not an attorney and at the time of the trial was nearly finished with her Master of Law degree.
5 Mother had attached to her motion a photograph of three unidentified and undated COVID tests. On the photograph, only one test showed a line next to the “T” (test) and a line next to the “C” (control). The other two tests showed a line next to the “T” but no line next to the “C.” The court interpreted this photograph as depicting only one positive COVID result. However, the instructions depicted on the photograph for interpreting the results of these COVID tests stated:
The test is POSITIVE if:
• there is a reddish-purple line next to the “t” and NO reddish-purple line next to the “C”
• there is a reddish-purple line next to the “T” and a reddish-purple line next to the “C”, even if the “C” line is faint
• there is a reddish-purple line next to the “T” and a reddish-purple line next to the “C”
Mother filed a note from an urgent care doctor at 12:03 a.m. on September 20, 2023 (a day after trial). The note stated that Mother, I.R., and A.X. “all have
test[ed] positive for COVID and will need to quarantine through 09/22/23 and cannot travel.”
6 While the court acknowledged that there was not an opportunity to hear from the children and could not consider the children’s preferences, the court ultimately determined that it would be in the children’s best interests for Father to have primary physical and legal custody. We refrain from addressing the court’s reasoning in applying the Sanders and Taylor factors, as the question of custody is not before this court.
7 Before the court entered its judgment, Mother had filed a motion to stay the proceedings pending an appeal from the trial court’s denial of her motion for continuance. Mother had initially appealed from the denial of her motion for continuance on September 22, 2023, but the appeal was deficient under Md. Rule 20-201(e). Mother corrected the deficiencies in her notice of appeal and resubmitted it on October 4, 2023.
8 Father filed a motion to strike the affidavits of the minor children pursuant to Maryland Rule 2-322, specifically: "On motion made by a party before responding to a pleading or, if no responsive pleading is required by these rules, on motion made by a party within 15 days after the service of the pleading or on the court's own initiative at any time,the court may order any insufficient defense or any improper, immaterial, impertinent, or scandalous matter stricken from any pleading or may order any pleading that is late or otherwise not in compliance with these rules stricken in its entirety.” (emphasis added). Father argued that neither child is over the age of eighteen, and “[i] t is improper for [Mother] to submit an affidavit of the Minor Children.” The trial court judge granted the motion and struck the affidavits written by the minor children.
9 In order to protect the privacy interests of the children, we do not quote further from the affidavits. We observe, however, that the words and phrases used in the affidavits, such as, “Father had made a homophobic joke,” are not typically the words used by 13- yearolds.
10 We observe just as in Wagner v. Wagner, 109 Md. App. 26 (1996), where Ms. Wagner had never alleged Mr. Wagner abused the children until after she sought
a change in custody, here the affidavits in Mother’s emergency amended motion to stay the custody provisions raise allegations of abuse for the first time. the court may order any insufficient defense or any improper, immaterial, impertinent, or scandalous matter stricken from any pleading or may order any pleading that is late or otherwise not in compliance with these rules stricken in its entirety.” (emphasis added). Father argued that neither child is over the age of eighteen, and “[i]t is improper for [Mother] to submit an affidavit of the Minor Children.” The trial court judge granted the motion and struck the affidavits written by the minor children.
9 In order to protect the privacy interests of the children, we do not quote further from the affidavits. We observe, however, that the words and phrases used in the affidavits, such as, “Father had made a homophobic joke,” are not typically the words used by 13- yearolds.
10 We observe just as in Wagner v. Wagner, 109 Md. App. 26 (1996), where Ms. Wagner had never alleged Mr. Wagner abused the children until after she sought a change in custody, here the affidavits in Mother’s emergency amended motion to stay the custody provisions raise allegations of abuse for the first time.
11 The court also dismissed appellee’s petition for reduction of alimony, distributed certain monies from an IRA account to appellee, and ordered appellee to pay appellant alimony. Reaser, 62 Md. App. at 647.
12 There are numerous factors to consider in a custody determination, such as, but not limited to:
“(1) fitness of the parents; (2) character and reputation of the parties; (3) desire of the natural parents and agreement between the parties; (4) potentiality of maintaining natural family relations; (5) preference of the child; (6) material opportunities affecting the future life of the child; (7) age, health, and sex of the child; (8) residences of parents and opportunity of visitation; (9) length of separation from natural parents; and (10) prior voluntary abandonment or surrender.”
J.A.B. v. J.E.D.B., 250 Md. App. 234, 253 (2021) (quoting Montgomery Cnty. Dept. of Social Services v. Sanders, 38 Md. App. 406, 420 (1977) (citations omitted).
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Anne Arundel County Circuit Court’s sanction striking husband’s divorce complaint and precluding husband from presenting evidence at trial. Not only did husband repeatedly fail to produce the requested discovery responses, but his failure was substantial.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
relief.
On August 12, 2021, Husband filed, in the circuit court, a complaint for limited divorce. Shortly thereafter, Wife filed a counter-complaint for absolute divorce.
On September 22, 2021, Wife filed a notice indicating that Husband had been served with Interrogatories and a Request for Production of Documents. On October 29, 2021, Husband filed a notice indicating that he had responded to Wife’s discovery requests.
Wife’s First Motion to Compel
This appeal arises out of a divorce action in the Circuit Court for Anne Arundel County involving Joseph Ferko (“Husband”) and Patricia Ferko (“Wife”). Following a two-day trial, the court entered a judgment of absolute divorce that resolved all issues related to marital property and support. Husband thereafter noted an appeal of that judgment.
In his pro se, informal brief, Husband presented three questions for our review.
For clarity, we have consolidated, reordered, and rephrased those questions as:1
1. Did the hearing court err or abuse its discretion when, as a discovery sanction, it struck Husband’s divorce complaint and precluded Husband from presenting evidence at trial?
2. Did the trial court err in considering or refusing to consider certain evidence at trial?
As to the first question, we hold that the hearing court did not err or abuse its discretion in sanctioning Husband. As to the second question, we hold that Husband’s argument is either waived or unpreserved. Accordingly, we affirm the court’s judgment.
BACKGROUND
Husband and Wife were married in 2001. During the marriage, the parties accumulated various assets, most notably, a business that provided supplies for disaster preparation and
On November 10, 2021, Wife filed a Motion to Compel Discovery and Request for Sanctions against Husband. Wife alleged, among other things, that Husband’s discovery responses were inadequate regarding significant marital assets, namely, the parties’ business, and that Husband had rebuffed Wife’s good-faith efforts to obtain the information without court involvement. On December 7, 2021, the court granted Wife’s motion and ordered Husband to “produce full and complete discovery responses within ten (10) days[.]”
Wife’s Second and Third Motions to Compel
On December 17, 2021, and then again on February 25, 2022, Wife filed additional motions to compel. In those motions, Wife alleged that Husband’s responses to her requests for interrogatories and the production of documents continued to be deficient.
On March 18, 2022, the court granted both of Wife’s motions. The court ordered Husband to provide full and complete discovery responses by March 27, 2022. The court also ordered that, if any documents requested by Wife were not produced by that date, then Husband would be prohibited from using those documents at trial.
Wife’s Fourth Motion to Compel
On August 19, 2022, Wife filed a fourth motion to compel, again claiming that Husband’s discovery responses were deficient. On September 14, 2022, the court granted Wife’s motion and ordered Husband to provide “full and complete supplementation of all discovery responses” within 15 days.
Wife’s Fifth Motion to Compel and Hearing Court’s Imposition of Sanctions
On September 30, 2022, Wife filed a fifth motion to compel. On November 3, 2022, a hearing was held on Wife’s motion. At that hearing, Wife proffered that she had been trying to obtain a current valuation of the parties’ business but was unable to
because Husband had continually refused to provide updated records. Wife further proffered that Husband had reportedly liquidated a large portion of the business’s assets and had not provided documentation showing those transactions. Wife noted that Husband’s refusal to provide discovery had been a continuing problem throughout the litigation. Wife requested that the court sanction Husband by precluding him from presenting evidence at trial.
Husband refuted Wife’s claims. At the outset of the hearing, Husband alleged that he had recently filed for bankruptcy. Husband argued that his bankruptcy filing should stay the proceedings, which would include the hearing on Wife’s motion for sanctions.
When the court asked Husband how his bankruptcy filing would affect the court’s ability to enforce the rules of discovery, Husband gave a non-responsive answer about how the bankruptcy would impact the divorce proceedings and the court’s distribution of marital property. Eventually, Husband addressed the documents, insisting that he had provided “over 3,000 documents” and that he had “never refused to provide any information to” Wife. After another brief tangent about the state of his finances, Husband stated that, at some point during discovery, he had told Wife to contact his attorney, who was in possession of the documents.
The hearing court then asked Husband if he was aware of the discovery order that was entered in May 2022 and, if so, whether he had complied with that order. Husband responded that he was aware of the order. Husband again stated that his attorney had the documents and that Wife “would get them when the bankruptcy was filed.” Husband then engaged in another monologue about how the divorce proceedings were affecting him personally and financially.
Later, Husband claimed that he had recently provided to Wife updated bank records regarding the business. Wife’s counsel acknowledged that Husband had provided those documents, but counsel added that, overall, Husband’s responses to discovery had been seriously deficient. The court then addressed Husband, asking: “Why didn’t you give him everything he’s asked for?” Husband responded: “Your Honor, the attorneys have all the original documents. I do not have them.” When the court explained that Husband, not his attorney, was responsible for making sure the documents were given to Wife, Husband stated that he tried to get the documents from his attorney and that he was “doing [his] best.”
Ultimately, the hearing court granted Wife’s motion for sanctions. In so doing, the court struck Husband’s complaint for limited divorce. In addition, the court ordered that Husband “shall be prohibited at trial from introducing any testimony or evidence related to the issues of marital property, determination of marital property or ownership of title of real property and/ or personal property to include the business[, and] . . . any information relating to alimony or attorney’s fees.”
Trial
On February 13, 2022, the parties returned to court for the start of the divorce trial. At the beginning of the hearing, before any meaningful proceedings had ensued, Husband asked the trial court if he could “make a statement,” and the court agreed.
Husband then engaged in a lengthy diatribe regarding his frustrations with how the case had transpired and how those events had affected him, his finances, and his family. Husband stated that he was “not going through five days of listening to this BS” and that he would “pray upon the [c]ourt to make the decisions that you feel are appropriate and get this done.” Husband concluded his statement by telling the court that “it’s in your hands” and “I hope that you’ll treat me fairly and I don’t want to go any further.”
The court then heard from Wife’s attorney, who provided a response and some additional opening remarks. After several minutes, Husband interrupted, stating that he would “like to end this now” and would “like to leave.” After the court informed Husband that he was not under subpoena and therefore did not have to participate, Husband reiterated that he wished to leave and that he wanted the court to “take this into your hands and make the divisions appropriately.” Husband then left the courtroom and did not return.
Following Husband’s voluntary exit from the courtroom, the court proceeded with trial, at which Wife presented significant testimonial and documentary evidence related to the parties’ past and present financial circumstances. It does not appear from the record that Husband was present for any portion of the trial, aside from his brief appearance at the start of the first day.
At the conclusion of trial, the court entered judgment granting the parties an absolute divorce, identifying the parties’ marital property, and distributing that property accordingly. The court also ordered Husband to pay Wife alimony and a lump sum for past-due support and attorney’s fees.
This timely appeal followed. Additional facts will be supplied as needed below.
MOTION TO DISMISS
Wife has included, in her appellee brief, a motion to dismiss Husband’s appeal. She contends that Husband’s appeal should be dismissed because the issues raised by Husband were not preserved pursuant to Maryland Rule 8-131.
Wife is mistaken. Failing to meet the preservation requirements of Rule 8-131 is not grounds for dismissing an appeal. Lockett v. Blue Ocean Bristol, LLC, 446 Md. 397, 416 (2016). Consequently, Wife’s motion is denied.
DISCUSSION
I. THE HEARING COURT DID NOT ERR OR ABUSE ITS DISCRETION WHEN IT PREVENTED HUSBAND FROM PRESENTING EVIDENCE AT TRIAL AS A DISCOVERY SANCTION.
Husband first claims that the hearing court erred when, as a discovery sanction, it struck his pleading and barred him from presenting evidence at trial. Husband insists, as he did below, that he did not violate discovery and that he provided Wife with all the pertinent documents. Husband claims that Wife presented false information to the hearing court and that the hearing court exhibited bias against him.2
Wife argues that the hearing court acted within its discretion in sanctioning Husband for his repeated discovery violations. Wife asks that we affirm the court’s ruling.
Maryland Rule 2-433 states, in pertinent part, that, if a
court finds a failure of discovery, the court may enter an order “refusing to allow the failing party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence; or . . . striking out pleadings or parts thereof.” Md. Rule 2-433(a). In addition, a court may enter such an order “[i]f a person fails to obey an order compelling discovery[.]” Md. Rule 2-433(c).
“When reviewing the circuit court’s imposition of sanctions for discovery abuse, we are bound to the court’s factual findings unless we find them to be clearly erroneous.” Klupt v. Krongard, 126 Md. App. 179, 193 (1999) (citations and quotations omitted). The scope of our review in that respect is narrow, and we do not substitute our judgment for that of the court. Id. at 193. “Instead, we must decide only whether there was sufficient evidence to support the trial court’s findings.” Id. (citations and quotations omitted).
“When considering the actual imposition of discovery sanctions by the trial court, our review is narrower still.” Id. We review that decision for abuse of discretion, and we will not reverse unless the decision is “well removed from any center mark imagined by the reviewing court and beyond the fringe of what the court deems minimally acceptable.” ValentineBowers v. Retina Group of Washington, P.C., 217 Md. App. 366, 378 (2014) (citations and quotations omitted). “Even when the ultimate penalty of dismissing the case or entering a default judgment is invoked, it cannot be disturbed on appeal without a clear showing that the trial judge’s discretion was abused.” Klupt, 126 Md. App. at 193 (cleaned up).
We have identified several factors that a court should consider before imposing sanctions: (1) whether the failure to disclose was technical or substantial; (2) the timing of the disclosure; (3) the reason for the failure to disclose; (4) any prejudice to the parties;
(5) whether such prejudice may be cured by a continuance, and, if so, whether a continuance is desirable. Muffoletto v. Towers, 244 Md. App. 510, 542 (2020). That said, the court need not “go through a checklist and note its consideration for each factor.” Id. Moreover, because the factors often overlap, we view them in conjunction with one another and within the context of the entire history of the case. Id.
Against that backdrop, we hold that the hearing court did not err or abuse its discretion in striking Husband’s pleading or in precluding him from presenting evidence at trial as a sanction for his discovery violations. First, the record supports the hearing court’s finding of a discovery violation, and Husband has presented no evidence or argument to suggest that the court’s finding was clearly erroneous. Although Husband claims, as he did below, that he complied with all discovery requests, the court was under no obligation to accept Husband’s self-serving assertion. Valentine-Bowers, 217 Md. App. at 380 (noting that a court is entitled to grant little weight to a party’s unsupported explanation related to a discovery violation). Nevertheless, Husband all but admitted that he failed to meet his discovery obligation when, after the court asked him why he did not provide all the requested documents, he intimated that he did not comply with the request because his attorneys were in possession of the documents. As such, we cannot say the court erred in finding a failure of discovery on
the part of Husband.
As to the court’s ultimate decision to impose sanctions, the record shows that, not only did Husband repeatedly fail to produce the requested discovery responses, but his failure was substantial. Over the course of approximately one year, Wife filed multiple motions to compel that resulted in multiple court orders commanding Husband to comply with Wife’s discovery requests. And yet, Husband consistently failed to meet his discovery obligations, even though, as the plaintiff in the case, he had an affirmative duty to move the case forward. Id. at 380 (“Disregard of discovery deadlines constitutes a ‘substantial violation’ because the plaintiff, as the party initiating suit, has an affirmative duty to move her case toward trial[.]”). Moreover, the information requested by Wife related to the parties’ primary marital asset (the business), and it appeared that, during the discovery process, Husband was making decisions that may have affected the business’s valuation. Providing complete and updated information regarding that asset was therefore essential, and Husband’s failure to do so prejudiced Wife. Finally, when Husband was given the opportunity to explain his reasons for failing to disclose, he provided conflicting responses, claiming on the one hand that he had complied with all discovery requests while at the same time admitting that he had not disclosed all of the requested documents, blaming his attorney for that failure, and relying on his alleged bankruptcy filing as an excuse for his non-compliance. And, rather than being contrite in explaining his failures, Husband was belligerent and seemingly more concerned with addressing issues that were irrelevant to the matter at hand. Given those circumstances, we cannot say that the court abused its discretion in sanctioning Husband.
As to Husband’s claim that the hearing court was biased against him, we find no merit to that assertion. Although the record suggests that the court may have become frustrated with Husband and may have chastised him for his behavior during the hearing, Husband has presented no evidence to overcome the strong presumption of impartiality on the part of the court.
See In re K.H., 253 Md. App. 134, 153-56 (2021).
II. HUSBAND’S CLAIM THAT THE TRIAL COURT ERRED IN CONSIDERING EVIDENCE SUPPLIED BY WIFE AT TRIAL IS NOT PRESERVED.
Husband next claims that the trial court erred in accepting into evidence various documents compiled and submitted by Wife. Husband argues that those documents were “falsified” and that the court should have considered other documents instead.
Wife argues, and we agree, that Husband’s claims are not preserved. Maryland Rule 5-103 states, in pertinent part, that error may not be predicated upon a ruling that admits evidence unless “a timely objection or motion to strike appears of record.” Md. Rule 5-103(a)(1). The Rule also states that error may not be predicated upon a ruling that excludes evidence unless “the substance of the evidence was made known to the court by offer on the record or was apparent from the context within which the evidence was offered.” Md. Rule 5-103(a)(2).
“Further, where a party acquiesces in a court’s ruling, there is no basis for appeal from that ruling.” Simms v. State, 240 Md. App. 606, 617 (2019).
Here, Husband voluntarily left the courtroom at the start of trial. Prior to doing so, Husband stated quite clearly that he was imploring the trial court to “make the decisions that you feel are appropriate” and to “take this into your hands and make the divisions appropriately.” From that, a reasonable inference can be drawn that Husband was acquiescing in the court’s impending decisions regarding the evidence it would
consider in issuing its decision. Regardless, because Husband was voluntarily absent from the evidentiary portion of the trial, he did not lodge any objections to Wife’s evidence, nor did he offer any evidence of his own. Consequently, Husband’s claims of error as to the court’s admission or exclusion of evidence are either waived or unpreserved.
APPELLEE’S MOTION TO DISMISS DENIED.
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED; COSTS TO BE PAID
BY APPELLANT.
FOOTNOTES
1 Husband phrased the questions as:
1. What Documents were falsified by [Wife’s counsel] on 2/14- 2/15/23?
2. Why did Joseph Ferko only attend the beginning of the hearing (2/14/23)[?]
3. Why did [the court] react inappropriately on 11/3/22?
2 It appears that Husband continues to maintain that the proceedings should have been stayed in light of his bankruptcy filing. We find no merit to that assertion.
Although Husband claims that he filed for bankruptcy on October 26, 2022, the record suggests that his bankruptcy petition was not filed until November 9, 2022, several days after the hearing court issued its ruling on November 3, 2022, granting Wife’s discovery sanctions. Moreover, the bankruptcy court lifted the stay in January 2023, several weeks prior to the start of trial.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 06 MFLU Supp. 54 (2024)
Jurisdiction; transfer; reunification
In Re: A.B.
No. 1960, September Term 2023
Argued before: Graeff, Friedman, Beachley, JJ.
Opinion by: Beachley, J.
Filed: June 24, 2024
The Appellate Court affirmed the Calvert County Circuit Court’s transfer of jurisdiction of the child’s case to West Virginia, where the mother, father and grandparents lived. Given that the principal witnesses to the parents’ recent progress toward reunification were in West Virginia, the court determined that West Virginia was well-suited to review and work toward implementation of the permanency.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
an abbreviated history of A.B.’s CINA proceeding.
The CINA Petition and Shelter Care Request
J.B. (“Father”), appellant, and K.R. (“Mother”), appellee, are the parents of two- year-old A.B. In January 2023, the Calvert County Department of Social Services (“the Department”) filed a “Petition for Shelter Care and a Finding of Child in Need of Assistance” in the Circuit Court for Calvert County.1 Following a hearing, the circuit court, sitting as a juvenile court, granted the Department’s shelter care request and placed A.B. in its temporary custody.2 Shortly thereafter, Mother and Father moved to West Virginia. On February 6, 2023, the court held an adjudication and disposition hearing, at the conclusion of which it determined that A.B. was a child in need of assistance (“CINA”) and committed him to the Department’s care and custody.3 As a result of a July 17, 2023 review hearing, the court established a permanency plan of reunification with the parents. Thereafter, Mother filed a motion to transfer jurisdiction to West Virginia, where she, Father, and A.B.’s grandparents resided. Following a hearing, the court granted Mother’s motion and ordered the case transferred to “the appropriate court in Mercer County, West Virginia[.]” Father timely appealed that decision and presents a single question for our review, which we have rephrased as follows:4
Did the court abuse its discretion by relinquishing jurisdiction of A.B.’s CINA case to West Virginia after determining that Maryland was an inconvenient forum? We answer this question in the negative and will affirm the judgment of the juvenile court
FACTS AND PROCEEDINGS
Because this appeal only concerns the court’s decision to decline jurisdiction pursuant to Md. Code (1984, 2019 Repl. Vol.), § 9.5-207 of the Family Law Article (“FL”), we shall provide
A.B. first came to the attention of the Department on January 3, 2023, when it received a report that he had been exposed to a violent physical altercation between the parents. On January 10, 2023, the Department removed A.B. from the parents’ custody and placed him in emergency shelter care. The Department filed a petition the following day requesting, inter alia, that the court declare A.B. a CINA and continue shelter care for his benefit. According to the Department’s petition, “[t] he family [was] residing in a corner of an unfinished basement with no appropriate sleeping arrangements” for A.B. and his half-sister, B.R.5 In its petition, the Department also recounted that on January 7, 2023, its representatives made contact with the parents and A.B., whereupon they noticed that A.B. was suffering from severe, untreated skin problems and advised the parents to take him to the emergency room. According to the petition, although the parents took A.B. to the hospital, they became embroiled in an argument and left the hospital before A.B. could be seen. The petition further alleged, inter alia, that: (1) the Calvert County Sheriff’s Office had responded to thirtyeight 911 calls concerning the parents between August 2022 and January 2023; (2) Father, the primary caretaker, had not been taking medication prescribed for a mental health condition; (3) both parents tested positive for cannabis in January 2023;
(4) the parents were being evicted and had not secured another place to live; (5) A.B. had not received adequate medical care; and (6) B.R. “had an unexplained black eye upon entering foster care.”
The Shelter Care Hearing
On January 12, 2023, the court held a hearing on the Department’s request for continued shelter care of A.B., at which the parties agreed to proceed by proffer. In addition to the relief requested in its petition, the Department sought home studies, pursuant to the Interstate Compact on the Placement of Children (“ICPC”), of both the West Virginia residence of A.B.’s maternal grandmother (“Grandmother”) and the North Carolina residence of two other maternal relatives.6 Both parents assented to expedited home studies. Mother, through counsel, proffered that “before the Department . . . got involved,” she had been preparing to grant Grandmother temporary custody of the children so that she could “have [them] in West Virginia.” Father’s attorney, in turn, relayed his client’s desire for A.B. and B.R. to remain together and “to be with family.”
At the conclusion of the hearing, the court granted the
Department’s shelter care request and placed A.B. in its temporary custody. The court granted the parents supervised visitation with A.B. and ordered them to “submit to a substance abuse and mental health assessment,” “complete a domestic violence assessment,” and “engage in and comply with [a] service case plan with the Department.” The court also announced that it would order expedited home studies of the North Carolina and West Virginia residences. The court scheduled an adjudication and disposition hearing for February 6, 2023. The court memorialized its oral rulings in a written order entered on January 13, 2023.
The Department’s CINA Report
On February 1, 2023, the Department filed a CINA report that it had prepared at the court’s direction and in anticipation of the adjudication and disposition hearing. In that report, the Department advised the court that the parents had “recently moved to Princeton[,] West Virginia.” The report also indicated that it was “unknown” whether the parents had “completed any tasks that the court ordered” and noted that “an ICPC request ha[d] been made to the home states of the relatives.” Ultimately, the Department continued to recommend that the court declare A.B. a CINA and stated, in part: It continues to be contrary to the best interest of [A.B.] to return home at this time. [Mother] and [Father] have recently moved to West Virginia and are attempting to engage in services there. However, at this time, neither parent’s circumstances have changed since the time of removal and due to the fact that the parents are no longer in the state of Maryland, the Department would be unable to monitor the children and the famil[y’s] progress should they be returned to their parents.
The CINA Adjudication and Disposition Hearing
At the outset of the February 6, 2023 adjudication and disposition hearing, the parties again agreed to proceed by proffer. During the adjudication phase of that hearing, the Department asked the court to sustain the allegations in its CINA petition. As the parents neither admitted nor denied those allegations, the court granted the Department’s request.
During the disposition portion of the hearing, the Department introduced the CINA report into evidence without objection and reiterated the allegations contained therein. Mother’s attorney then advised the court that her client had relocated to Princeton, West Virginia because “[s]he hadn’t been living [in Maryland] for very long[,]” and West Virginia was the state in which Grandmother and her older sister—both key members of her support system—resided. According to counsel, Mother was residing with her sister and had started working as a waitress. Father’s attorney, in turn, reported that Father was residing in Bluefield, West Virginia and had also recently obtained employment.7 Both parties represented that they had attempted to undergo domestic violence assessments but reported having difficulty locating appropriate providers in West Virginia and requested the Department’s assistance in this regard. At the conclusion of the hearing, the court declared A.B. a CINA, continued to commit him to the Department’s care and custody, ordered the parents to complete mental health, parenting skills,
and domestic violence assessments, and set a review hearing for July 17, 2023. Later that day, the court entered a written order to the same effect.
The Department’s Review Report
On July 9, 2023, the Department filed a progress review report. In that report, the authoring caseworker confirmed that Mother had “been in contact with the Department during this last review period and shar[ed] updates on her progress with employment, program involvement and attendance, and her living situations.” With respect to their places of residence, the report recounted that although the parents had initially lived with Mother’s sister, they were “evicted . . . due to frequent law enforcement activity.” The parents began renting an apartment in May 2023, but that living arrangement was short- lived. After her relationship with Father “dissolved,” Mother moved out of the apartment and into the home of Grandmother, who had “agreed to help get her back on her feet[.]” The report also noted that Mother had struggled to maintain steady employment and lacked “access to reliable transportation.” Notwithstanding the latter limitation, the report reflected that, in addition to fourteen “virtual visits,” both Father and Mother had managed to attend five in-person supervised visits with A.B. in Calvert County during the preceding four months.
Turning to Father, the report characterized his contact with the Department as “inconsistent and sporadic[.]” For example, although it relayed that Father had “reported . . . that he was working at McDonald’s,” the report added that “it is unclear if he is still working at this time.” The report then noted that Father had “struggled with finding providers in West Virginia to complete the required assessments.”
After opining that A.B. had “adjusted well” to being in foster care, the report concluded by recommending, inter alia, that A.B. “remain[] in his current placement to allow [Mother] and [Father] to continue working on their court[-]ordered programs and establish stability.”
The Permanency Plan Hearing
On July 12, 2023, Father filed a motion to participate virtually in a permanency plan hearing scheduled for July 17. In support of his motion, Father represented, in part:
1. [Father] lives in West Virginia;
2. The Department . . . is requesting that the matter be transferred to West Virginia;
3. All parties agree with the transfer to West Virginia; * * *
5. [Father] cannot afford to travel such great lengths from West Virginia to attend the hearing[.]
Mother filed a similar motion on July 14, 2023, in which she too sought permission to participate in the permanency plan hearing remotely, claiming that she was also “residing in West Virginia and . . . unable [to] participate in court in person.” The court granted both parties’ motions.
At the July 17, 2023 permanency plan hearing, the Department requested, among other things, that the court (1) find that A.B. remained a CINA, (2) continue to commit A.B. (as well as B.R.) to its care and custody, and (3) order a permanency plan of reunification. In support of its requested factual findings, the
Department introduced its July 9 review report into evidence. The Department noted that Mother lacked both a driver’s license and “access to reliable transportation.” Finally, the Department advised the court that “an ICPC request was . . . completed for . . . [G]randmother[,]” but cautioned that the fact that Mother was residing with Grandmother “would be a concern for placing the children there.” Neither parent disputed the facts set forth by the Department and both supported its proposed permanency plan.
At the conclusion of the hearing, the court found that A.B. remained a CINA, continued the commitment of A.B. to the Department’s care and custody, established A.B’s permanency plan as reunification with the parents, and directed the parents to participate in several court-ordered services. The court memorialized its findings and rulings in an order entered on July 17, 2023.
Mother’s Motion to Transfer Jurisdiction
On November 28, 2023, Mother filed a “Motion to Transfer Jurisdiction,” which provided, in pertinent part:
[M]other is unable to visit with [A.B.] on a weekly basis because o[f] the distance between Calvert County and West Virginia. She is currently relying on public transportation. She is working full-time, and it takes 8 hours by car and 20 hours by bus to get to Calvert County, Maryland for inperson visits.
[Father] reside[s] in West Virginia.
The maternal grandparents, paternal grandparents[,] and all of [A.B.]’s aunts, uncles, and cousins reside in West Virginia. It is in the best interest of [A.B.] for this case to be moved to Huntingto[]n, West Virginia so [he] can be close to [his] mother, father[,] and relatives and visit with them on a regular basis.
(Paragraph numbering omitted). The court promptly set a hearing on Mother’s motion for December 1, 2023. In a “daily sheet” dated the following day, the presiding judge documented his consultations with judges of the Circuit Courts for Mercer and Cabell Counties in West Virginia, and confirmed that the former court could accommodate the case.
The Hearing on Mother’s Motion
On December 1, 2023, the court heard argument on Mother’s motion for Calvert County to relinquish jurisdiction of both of the children’s cases to West Virginia.8 In support of her motion, Mother, through counsel, argued that transferring jurisdiction to West Virginia would both be in the best interest of A.B. and promote reunification with the parents. Mother represented that she did not own a motor vehicle and either had relied on others to transport her to and from Maryland or had taken the bus. According to Mother, “for her to get to Calvert County[,] it takes eight hours by car and at least 16 hours by bus.” Although she acknowledged that A.B.’s foster parents had driven him to West Virginia “about once a month” for “the last couple months,” Mother claimed that the distance between her home in Huntington, West Virginia, and Calvert County, Maryland, where A.B.’s foster parents lived, prevented her from fully availing herself of weekly visitation. Mother added that A.B.’s and B.R.’s respective fathers both resided in West Virginia, as
did their aunts, uncles, and cousins. Thus, she maintained that transferring the case would not only permit weekly visitation between the parents and children, but would also allow the children “to have frequent contact with their extended family[.]”
In opposing Mother’s motion, Father, also through counsel, asserted that he “was really a resident of . . . Maryland and intend[ed]” to return to the State. This representation was contrary to the statement in Father’s July 12, 2023 motion that he resided in West Virginia and agreed to the proposed transfer. He also expressed both approval of the care that A.B.’s foster parents had provided and concern that removing A.B. from their custody could traumatize him. Father was now particularly averse to the case being transferred to West Virginia for fear that A.B. “could be placed with a relative of [Mother], and that would essentially cut him out of the child’s life[.]”
A.B.’s attorney joined Mother in urging the court to relinquish jurisdiction to West Virginia. While he conceded that Maryland had initial jurisdiction over the case, A.B.’s attorney contended that “West Virginia probably is a more appropriate forum at this stage[.]” His argument in support of that position was based in large part upon the apparent consensus among the parties “that the permanency plan should be reunification, and that it is in the children’s best interest that reunification take place.” Specifically, A.B.’s attorney asserted that the geographical distance between the parents’ respective residences and the children’s foster home would likely hinder the reunification process, stating, in part: “I think it’s going to be very difficult to increase the number of supervised visits . . . considering the distance that is involved here for the parents to come.” In support of that assertion, he noted the parties’ limited income, Mother’s lack of access to a vehicle, and that travel by bus could take “up to 16 hours,” all of which made visitation a “very difficult process[.]”
Although the Department now concurs with Mother’s position on appeal, it opposed Mother’s motion in the circuit court to transfer jurisdiction. The Department emphasized that A.B. “ha[d] never resided in . . . West Virginia[,]” and alleged that B.R. had suffered consistent anxiety at the prospect of “being removed from her current foster home.” The Department expressed “serious concerns about the children . . . potentially being separated.”9 It cautioned that “[s]tarting over in a new foster home with new people that [the children] do not know . . . [would be] a serious loss [of] attachment for them, which could lead to attachment disorders as they grow up.”10 Finally, the Department advised the court that it had “asked . . . the parents to make an additional visit to . . . Maryland so that they . . . hav[e] two in-person visits per month,” adding that it would “support them by providing gift cards for gas and booking hotels for them,” as it had on a prior occasion.
In responding to the Department’s argument, Mother’s attorney emphasized the implications of Mother’s geographical distance from the children in the context of the reunification process, stating:
[T]he goal is for the kids to return home as soon as possible. It is concerning that [the Department] has indicated that [it is] not contemplating any sort of traveling visit or movement home. Because as the [reunification] progression is, once you have unsupervised visits, you keep progressing. [The Department] start[s] out with two hour visits for three
week[s], four hour visits for three weeks, six hour visits for three weeks, eight hour visits for three weeks, an overnight visit, and then another overnight, and they keep increasing as long as everything goes well.
So, . . . in Calvert County in particular, the Department . . . has a very long, extended transition to a trial home visit. And our concern is that that won’t be able to occur with both of her kids residing in Maryland.
[T]he goal is reunification with the parents. And everyone agrees that that is the goal We are really concerned that reunification will not be able to occur in this case because of the transition time and the travel distance, and we’re not really sure how a transition to overnights is going to be able to occur and how a transition to extended visits is going to occur if [the] children continue to reside in Maryland.
The Court’s Ruling
After hearing from the parties, the court announced its decision from the bench. The court explicitly addressed and applied all of the factors set forth in FL § 9.5-207, which we will discuss in detail infra. In so doing, the court found: (1) the parents shared a history of domestic violence in Maryland and West Virginia, and both states were “in a position to protect the [parents] and the children”; (2) A.B. “has had no contact . . . within West Virginia”; (3) traveling between Princeton, West Virginia and Calvert County, Maryland requires either a sixhour drive each way, or a sixteen-hour bus ride; (4) Mother had limited financial means, lived with Grandmother, lacked access to an automobile, and “relie[d] on others for transportation”; (5) the parents disagreed about which state should exercise jurisdiction; (6) Mother’s prospective witnesses were primarily located in West Virginia, while Father maintained “that his witnesses would be [predominantly] in Maryland”; (7) the courts of Maryland and West Virginia were both able to expeditiously “handle” the case; and (8) West Virginia was better situated to assess the parents’ progress toward reunification, as the relevant witnesses were located there.
After addressing the statutorily prescribed factors, the court considered the children’s best interests. The court acknowledged that the children appeared to be “bonding well” and “thriving” while in shelter care and that a transfer of jurisdiction “would . . . require that there be [a] change either in foster care and/ or placement[.]” The court then turned to the consequences of separating the children from each other if it transferred jurisdiction in one case but not the other. It observed that each child had been a mainstay in the other’s life and stated: “I’m not inclined to separate the children. I think it’s important that [they] remain together.”
Finally, the court discussed the practical implications of its prospective decision on the reunification permanency plan. The court concluded that maintaining the case in Maryland—as opposed to relinquishing jurisdiction to West Virginia—would impede reunification. It explained that reunification is a gradual process that begins with supervised visitation, progresses to unsupervised visitation, and may eventually include overnight visits. Given the distance between the parents’ residences and the children’s foster home, the fact that Mother lacked access
to an automobile, and the parties’ “limited financial means,” the court reasoned that reunification would be more likely to occur if West Virginia had jurisdiction of the case. The court therefore granted Mother’s motion, staying the proceedings pending transfer of the case to the Circuit Court for Mercer County in accordance with FL § 9.5-207(c). 11
On December 5, 2023, the court entered a written order which memorialized its oral ruling and provided as follows: ORDERED, that the Motion to Transfer Jurisdiction be and the same hereby is GRANTED pursuant to [FL §] 9.5207; and it is further[,]
ORDERED, that the matter be transferred to the appropriate court in Mercer County, West Virginia; and, it is further,
ORDERED, that the matter shall be stayed pending transfer of the matter to West Virginia. This court shall retain jurisdiction until said transfer is effectuated; and, it is further, ORDERED, that this [c]ourt shall communicate with the appropriate [j]udge in Mercer County, West Virginia . . . to facilitate transfer. The Department . . . shall communicate with the Department of Human Resources or other appropriate agency in West Virginia to facilitate transfer of the matter to Mercer County, West Virginia.
Father noted a timely appeal from that order.
DISCUSSION
Father contends that “the court erred as a matter of law by transferring jurisdiction to West Virginia.” Relying on four of the eight factors enumerated in FL § 9.5-207(b)(2), he argues that the circuit court abused its discretion by relinquishing jurisdiction because (1) “the children were currently residing in Maryland,” (2) the evidence was located in Maryland, (3) “Maryland could decide the issue[s] expeditiously and West Virginia could not,” and (4) the Maryland court “was [already] familiar with the facts and issues in the pending litigation[.]”12 (First alteration in original) (quotation marks omitted).
The Maryland Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), codified as FL § 9.5-101 et seq., governs subject matter jurisdiction over child custody cases—including CINA proceedings—involving Maryland and another state. 13 See Toland v. Futagi, 425 Md. 365, 370 (2012) (“Whenever a child custody dispute in Maryland involves another state or another country, the Maryland Uniform Child Custody Jurisdiction and Enforcement Act is implicated.” (citing In re Kaela C., 394 Md. 432, 454 (2006))). A court may decline to exercise its jurisdiction “if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.” FL § 9.5-207(a) (1). Before determining whether Maryland is an inconvenient forum, a court must consider the propriety of another state assuming jurisdiction, including the following factors:
(i) whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(ii) the length of time the child has resided outside this State;
(iii) the distance between the court in this State and the court in the state that would assume jurisdiction;
(iv) the relative financial circumstances of the parties;
(v) any agreement of the parties as to which state should assume jurisdiction;
(vi) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(vii) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(viii) the familiarity of the court of each state with the facts and issues in the pending litigation.[14]
FL § 9.5-207(b)(2). While courts must consider and apply the above-enumerated factors in assessing whether to transfer jurisdiction, “[t]he decision whether to relinquish the court’s jurisdiction in favor of a more convenient one is . . . addressed to the sound discretion of the court[,]” and we will not disturb the exercise of that discretion absent a clear abuse thereof. Miller v. Mathias, 428 Md. 419, 454 (2012).
A court abuses its discretion when “the decision under consideration [is] well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.” Miller, 428 Md. at 454 (alteration in original) (quoting In re Yve S., 373 Md. 551, 583-84 (2003)). An abuse of discretion also occurs where “‘no reasonable person would take the view adopted by the trial court,’ or when the court acts ‘without reference to any guiding rules or principles.’” Id. at 454-55 (quoting Touzeau v. Deffinbaugh, 394 Md. 654, 669 (2006)). A court does not abuse its discretion, however, merely because the reviewing court would have reached a different conclusion. Aventis Pasteur, Inc. v. Skevofilax, 396 Md. 405, 436 (2007); see also In re Yve S., 373 Md. at 583 (“Questions within the discretion of the trial court are ‘much better decided by the trial judges than by appellate courts[.]’” (quoting In re Adoption/ Guardianship No. 3598, 347 Md. 295, 312 (1997))).
We begin by noting that Father does not deny that the court recognized and considered the law applicable to this case, i.e., the eight statutory factors the court shall consider in determining whether to relinquish jurisdiction to another state. Thus, the narrow question before us is whether the court abused its discretion in its evaluation of those factors and in reaching the ultimate conclusion that West Virginia was a more convenient forum.
As noted, Father argues that four of the eight factors enumerated in FL § 9.5-207(b) weigh in favor of Maryland retaining jurisdiction. First, he claims that the duration of A.B.’s residence in Maryland favored the court retaining jurisdiction. In announcing its ruling from the bench, the court acknowledged that “both children have been in Maryland substantially” and that “A.B. has had no contact . . . within West Virginia[.]” The court noted, however, that B.R. had previously lived in West Virginia and found that separating the children would be contrary to their best interests. Based on these considerations, coupled with the undisputed fact that A.B. had resided in North Carolina before moving to Maryland, the court could have readily concluded that this factor weighed only slightly in favor
of its retaining jurisdiction.
Father next asserts that “[t]he ‘nature and location of the evidence’ was in Maryland . . . and Maryland was familiar with the ‘facts and issues in the pending litigation.’” With respect to the former factor, the court acknowledged that the children resided in Maryland, but inferred from their ages that neither would be able to testify.15 As to the states’ familiarity with the underlying facts and issues, the court observed that although Maryland was more familiar with the facts relevant to a CINA determination, that adjudication had concluded, and the proceedings had therefore transitioned to reunification pursuant to the established permanency plan. Given that the principal witnesses to the parents’ recent progress toward reunification were in West Virginia, the court determined that West Virginia was well-suited to review and work toward implementation of the permanency plan. We agree with the court’s reasoning in this regard, which applies with equal force to the former factor (i.e., the nature and location of the evidence). As the parents resided in West Virginia and the court’s permanency plan order directed them to participate in various services, it stands to reason that West Virginia would be best positioned to assess their progress toward reunification based on evidence located in West Virginia.
Finally, Father maintains that “Maryland could ‘decide the issue[s] expeditiously’ and West Virginia could not,” (alteration in original), as the court’s decision to transfer jurisdiction triggered FL § 9.5-207(c)’s requirement that it stay the case pending the commencement of proceedings in West Virginia. In addressing this fourth factor, the court recounted its conversation with the Mercer County circuit court judge, who had indicated that Mercer County’s docket was “running smoothly and expeditiously.”16 The court thus concluded that “both courts have the ability to handle this case expeditiously.” The court’s finding is amply supported by the record.
To whatever extent the factors Father cites might weigh in favor of Maryland retaining jurisdiction, the court could readily have concluded that they were counterbalanced by the factors he fails to address. Of those remaining factors, the distance concern, as well as the parties’ limited financial circumstances, were especially significant given the permanency plan in effect and the parties’ consensus that parental reunification was in A.B.’s best interest. The court reasonably determined that the distance between the parents’ West Virginia residences and Calvert County, coupled with their limited financial means, would hinder visitation and therefore frustrate the reunification process if Maryland were to retain jurisdiction. Based upon that inference, viewed in light of the other factors, the court was well within its discretion in concluding that West Virginia represented a more convenient forum to monitor and resolve A.B.’s case.
We conclude that the court’s decision to relinquish jurisdiction to West Virginia was neither “well removed from any center mark” nor “beyond the fringe of what [we] deem[] minimally acceptable.” Miller, 428 Md. at 454 (quoting Touzeau, 394 Md. at 669). Finding no abuse of discretion, we affirm the judgment of the juvenile court.
1 The Department and A.B. are also appellees in this appeal.
2 “‘Shelter care’ means a temporary placement of a child outside of the home at any time before [CINA] disposition.” Md. Code (1974, 2020 Repl. Vol., 2023 Supp.),
§ 3-801(bb) of the Courts & Judicial Proceedings Article (“CJP”).
3 A “CINA” is “a child who requires court intervention because: (1) The child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and (2) The child’s parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and the child’s needs.”
CJP § 3-801(f).
4 Father phrased his question presented as follows: Did the Court commit prejudicial error when it ruled that jurisdiction should be transferred from Maryland to West Virginia[?]
5 A.B. and B.R. share the same mother but have different fathers. B.R.’s status is not directly at issue in this case, nor is her father a party on appeal.
6 “The ICPC is a binding contractual agreement among all fifty states, the District of Columbia, and the U.S. Virgin Islands regarding the interstate placement of children.” In re R.S., 470 Md. 380, 398 (2020). Currently codified as FL §§ 5-601 through 5-611, “[t]he ICPC requires the sending state to notify the receiving state prior to placement of the child in the receiving state. Afterwards, the out-of-state resident must undergo a pre- placement home study to ascertain whether they are a viable placement option.” In re R.S., 470 Md. at 400 (citation omitted).
7 It appears that when Mother and Father first moved to West Virginia, they were both living with Mother’s sister in Princeton. Father moved out shortly before the hearing, but moved back in with Mother and her sister at some point after the hearing.
8 Specifically, Mother clarified at the hearing that she sought transfer of the cases to the Circuit Court for Mercer County.
9 Thus, the Department effectively argued that just as B.R.’s best interests would be served by remaining in her foster parents’ care, so too would it be in A.B.’s best interest to remain with his sister, to whom he was “extremely bonded[.]”
10 The Department added:
If the [c]ourt is considering granting the move to West Virginia, the Department believes that it would be best to do so gradually and have visits before the move . . . occur[s] with the foster family so they can become accustomed to a new home and to new foster parents.
11 FL § 9.5-207(c) states:
(c) If a court of this State determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.
12 Father also claims that any inconvenience that Mother may have incurred as a consequence of the court retaining jurisdiction could have been mitigated by, inter alia, “requiring that services be provided to [her], including transportation into Maryland for visits [and] requesting the Department to provide [her] gas cards and hotel lodging[.]”
13 The parties do not dispute that the Maryland court had subject-matter jurisdiction to render an initial child custody determination in this case. Accordingly, we will presume “that jurisdiction over the subject matter and parties [was] rightfully acquired and exercised.” In re John F., 169 Md. App. 171, 180 (2006) (quoting In re Nahif A., 123 Md. App. 193, 212 (1998), overruled in part on other grounds by In re Antoine M., 394 Md. 491 (2006)).
14 Notably, “FL § 9.5-207 only requires that the court consider these factors[.]” Cabrera v. Mercado, 230 Md. App. 37, 95 (2016). It does not mandate that a court “state a finding as to each factor onto the record.” Id.
15 Although the court also acknowledged that Father planned to return to Maryland, it subsequently added that it was unclear “when, where, or how” he would do so. Furthermore, Father’s request in July of 2023 that the case be transferred to West Virginia suggests that his intent to return to Maryland has not been constant.
16 The court’s conversation was authorized by FL § 9.5-109(b), which provides: “A court of this State may communicate with a court in another state concerning a proceeding arising under this title.” During that conversation, the Mercer County judge also indicated that West Virginia “operates under similar procedures with adjudication and disposition, with planning reviews, and that they have resources available . . . to handle these cases, including access to foster parents, mental health resources, substance abuse resources, and other issues such as that.”
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Baltimore County Circuit Court’s constructive civil contempt finding after concluding father had sufficient funds to pay his current child support plus the arrears but had chosen not to do. The court’s written order established the arrears, imposed a sanction of incarceration and articulated that father could avoid jail time by meeting his child support obligation while paying down the arrears at an established rate.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
current income.” He further claimed that the court imposing jail time or revoking his driver’s license, as Mother requested, would “not help [him] earn more money.”
At the May 4, 2023, contempt hearing Mother and Father testified. Mother’s testimony was straightforward and was largely uncontradicted. She reiterated what she had alleged in her petition, namely that Father paid the full court ordered child support amount in March, April, and May 2021, but by June had paid no more than $500 per month. She added that Father would pay for the children’s extracurricular activities on an as-neededbasis. More significantly, she testified that a month after the divorce, in April 2021, Father received a lump sum payment of $30,000 from his employer. According to Mother, Father used the money to take vacations, buy a recreational vehicle, purchase another vehicle, and a boat. Father moved within “a half mile” of Mother and pays $700 to $800 more in rent, according to her. By her estimation, the child support arrears were “over $30,000.”
In the Circuit Court for Baltimore County, appellee Heather David (“Mother”) requested a finding of contempt against appellant Benjamin David (“Father”) for failing to make complete and timely child support payments under a court order. After a hearing, the circuit court agreed with Mother. The court found Father in contempt, sentenced him to a period of incarceration, but suspended it, established the child support arrears, and as a purge, ordered Father to pay an amount toward the arrearage in addition to meeting his monthly court-ordered child support obligation to avoid incarceration.
Father timely appealed. In an informal brief he raises several issues, but we conclude the only issue we may properly address is whether the circuit court erred in finding him in constructive civil contempt.1 We conclude it did not and affirm.
BACKGROUND
The parties were divorced in 2021. The parties’ judgment of divorce establishes that Father is to pay Mother $1,637 per month for the support of the parties’ two minor children, starting from March 1, 2021. At the time of divorce the child support arrears were $8,018. Father was to pay an additional $135 toward the arrears.
In her contempt petition, Mother alleged that Father had only paid $500 starting in June 2021 and at the time of her petition the arrears “exceed[ed] $10,000….” In his answer, Father averred that the court ordered amount “exceed[ed] [his]
Father admitted he had not paid the full amount of child support, but after reading the transcript of the hearing, his explanation for why is difficult to follow. He started by explaining that the child support order was based on his 2019 income of $80,000, which, in his reckoning, was $47,000 more than he made when the child support was established. In 2021, Father claimed his income was $12,850 and in 2022 his income was $25,900. Apparently, he lost his job at United Parcel Service (UPS) and now earned a living by doing “painting and caulking,” as well as by cutting grass. He admitted that he was $29,265.25 in arrears as of November 2022. A large part of his testimony focused on facts and concerns which though legitimate, were not the focus of the contempt hearing. These matters included an allegation that he had molested his daughter, communication problems between him and the children, and his frustration with trying to navigate the legal system on his own.
Mother’s cross examination of Father revealed that Father received $33,000 from UPS upon his separation from that company. Father also admitted that, at the time of divorce, he had $150,000 in an Individual Retirement Account (IRA). Father testified that, on the one hand, he “transferred” the IRA money to an account to be managed by his sister at Edward Jones, a financial planning business. On the other hand, Father acknowledged that he used some of the money “[t]o make ends meet.”
When the court directly asked him, Father clarified that after he received the $30,000, he bought a truck and paid off his credit cards, and then the money simply “went.” As for the $150,000, Father testified that IRA account’s value by the time of the hearing was $75,000. When the court asked where the other
$75,000 had gone, Father’s response was, “Lord knows. Lord knows.” The court asked Father explicitly whether he spent $105,000 ($30,000 + $75,000) on necessities, to which Father admitted he had not, saying: And yes, I probably -- I could have sent that to her in August, but then how would I have mended or created the opportunity to spend that time with the kids. I could have done it otherwise. People do a lot more with a lot less. That was frivolous on my part.
After hearing the parties’ closing statements the court ruled as follows:
And based on the evidence, I don’t believe Mr. David has proven that he never had the ability to pay more than he paid. The testimony is that -- and this is even with his income drop, I understand his income drop. But at the time of the divorce, or the day after the divorce, he gets a thirty some thousand-dollar lump payment, or a couple days after. He signed the agreement the day after the divorce became final and signed. Then he gets a payment of $30,000 within a short time frame. And he has, at the time, $150,000 in an IRA account. So shortly after the divorce he had access to $180,000, the $150,000 plus the $30,000. And for three months he did pay the ordered amount of $1,600, whatever it was, he paid in. And then in June it dropped down to $500 a month. And he’s been paying $500 a month. And it doesn’t sound like he’s not trying to pay anything, he’s paying $500 a month. And there’s some additional payments as well. And I noted and I questioned him, I guess about there was some additional payments there. You know, $127, $150, $80, unusual smaller amounts which were, as he testified to, he paid extra when needed.
In any event, $30,000 is the amount that everybody agrees on is owed as of now, as of this hearing. So I don’t find that he’s proven by a preponderance of the evidence that he never had the ability to pay more than he had, because he had the $180,000. And he used it for purposes that are important to him and his family and so forth. I’m not saying that they’re frivolous at all, but there were these funds available to pay more child support in this case. And he had the funds. He had the funds necessary to make the payment, but he just elected not to do it.
Ultimately, the court found Father in constructive civil contempt, concluding he had sufficient funds to pay his current child support plus the arrears but had chosen not to do so. To purge himself of contempt and stay out of jail, the court ordered him to pay down the arrears at the rate of $500 per month for 60 months, and to continue to meet his child support obligation. All payments were to be submitted through the local bureau of child support enforcement. The court issued a written order of the court’s oral findings and conclusions the following day. This appeal followed.
ANALYSIS
The body of law on constructive civil contempt is now wellestablished. As the Supreme Court of Maryland (at the time called the Court of Appeals) explained in Arrington v. Dept. of Human Resources, 402 Md. 79 (2008)
[A] civil contempt proceeding is intended to preserve and
enforce the rights of private parties to an action and to compel obedience to orders and judgments entered primarily for their benefit. Such a proceeding, we said, is remedial, rather than punitive, in nature, intended to coerce future compliance, and, accordingly, “a penalty in a civil contempt must provide for purging.”
Id. at 93. See Rule 15-206 (delineating the rules for seeking a constructive civil contempt petition). “[T]his Court will not disturb a contempt order absent an abuse of discretion or a clearly erroneous finding of fact upon which the contempt was imposed.” Kowalczyk v. Bresler, 231 Md. App. 203, 209 (2016). A trial court abuses its discretion when its decision encompasses an error of law, Schlotzhauer v. Morton, 224 Md. App. 72, 84-85 (2015), which this Court reviews without deference, Walter v. Gunter, 367 Md. 386, 392 (2002).
In a civil contempt proceeding for failure to pay child support, the moving party must prove, by clear and convincing evidence, that the “alleged contemnor has not paid the amount owed. . . .” Rule 15–207(e)(2). Once this threshold has been met, the obligation shifts to the defendant to prove by a preponderance of the evidence that one or more of the defenses set out in Rule 15–207(e)(3) are present. If the court finds that the moving party has met its burden of proof and none of the defenses apply, it shall enter an order pursuant to Rule 15–207(e)(4), which provides:
(4) Order. Upon a finding of constructive civil contempt for failure to pay spousal or child support, the court shall issue a written order that specifies (A) the amount of the arrearage for which enforcement by contempt is not barred by limitations, (B) any sanction imposed for the contempt, and (C) how the contempt may be purged. If the contemnor does not have the present ability to purge the contempt, the order may include directions that the contemnor make specified payments on the arrearage at future times and perform specified acts to enable the contemnor to comply with the direction to make payments.
The authority granted to a court to fashion both a sanction and a purge under Rule 15–207(e)(4) is constrained because a defendant in a civil contempt proceeding “must have the ability to avoid both the commencement and the continuation of incarceration.” Arrington, 402 Md. at 101. Any purge must be within the present ability of the defendant to perform at the time of sentencing. Arrington, 402 Md. at 101; Bryant v. Soc. Servs., 387 Md. 30, 48 (2005); Jones v. State, 351 Md. 264, 275(1998). The reason for the rule lies in the coercive, as opposed to punitive, nature of sanctions in a civil contempt proceeding. Jones, 351 Md. at 281 (“If a defendant is unable to pay a purge provision, no amount of time in prison will induce compliance.”). Therefore, if the sanction is incarceration and the purge is the payment of money,
the question will be whether the defendant is then, on that day, able to make that payment. The court may not order an incarceration to commence in the future, because the finding of ability to purge must be contemporaneous with when the incarceration is to commence and must remain in existence throughout the period of incarceration.
Arrington, 402 Md. at 101 (citing Jones, 351 Md. at 282) (italicized emphasis in original, underlined emphasis added); see
also Wilson, 364 Md. at 601–02.
And, importantly, this Court has emphasized that an order holding a person in constructive civil contempt must satisfy certain basic requirements. The order must: (1) impose a sanction; (2) a purge provision that gives the contemnor the opportunity to avoid the sanction by taking specific action of which the contemnor is reasonably capable; and (3) be designed to coerce the contemnor’s future compliance with a valid legal requirement rather than punish the contemnor for past, completed conduct. Breona C. v. Rodney D., 253 Md. App. 67, 74 (2021).
In this case, the court issued a valid contempt order under Rule 15-207(e)(4) for Father’s failure to make timely child support payments under the judgment of divorce. The court heard the testimony of both parties, largely crediting Mother’s testimony and discounting Father’s. The court found that Father had the ability to pay child support during the period specified
in the petition but, by his own admission, chose not to do so. Instead, he exhausted a $30,000 cash settlement from his former employer and depleted half of a $150,000 IRA account. In both cases, Father admitted that he spent the money on vacations, various motor vehicles, a boat, and other non-essential items, rather than paying the child support ordered in this case. Further, the court found that Father had the present ability to pay child support, because he could work, offered no proof of a mental or physical disability that would have prevented him from earning what he had at the time of the divorce. Additionally, he had $75,000 left in his IRA account. The court’s written order complied with the Rule in that it established the arrears, imposed a sanction of incarceration, and articulated that Father could avoid jail time by meeting his child support obligation while paying down the arrears at an established rate.2 Accordingly, we perceive no error with the court’s findings, or the civil contempt order the court fashioned. We, therefore, affirm.
THE JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY IS AFFIRMED. APPELLANT TO PAY
THE COSTS.
FOOTNOTES
1 Mother did not file a brief.
2 We understand Father’s concerns and frustrations about navigating the legal system without an attorney. We suggest he and Mother, because she too was
self- represented, explore the possibilities of obtaining assistance in better understanding the court system through the judiciary’s website which offers information about what to expect when going to court in family law-related issues. Additionally, the Family Services Office within the circuit court may have resources to assist both parents.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Anne Arundel County Circuit Court’s make-up visitation order. Because father was not justified in denying mother’s scheduled visitation, the court could order make-up visitation..
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
primary physical and sole legal custody, with Mother to have visitation every other weekend.
In this case, we are asked to determine whether the Circuit Court for Anne Arundel County erred in ordering make-up visitation. For the reasons that follow, we affirm the judgment of the circuit court.
BACKGROUND
Appellant, Robert Guyette (“Father”), and appellee, Erin Guyette (“Mother”), are the divorced parents of one minor child, T., who was born in March 2011. The parties have an extensive litigation history over custody of and visitation with T. When T. was born, the parties were residing together in Yuma, Arizona. In 2012, Mother relocated with T. to Maryland to live with her parents. At the time of their divorce in 2013, Father was still residing in Arizona and Mother was residing in Easton, Maryland. Mother was awarded primary physical and sole legal custody of T., with access periods awarded to Father.
In Fall 2014, Father, an active-duty member of the U.S. Marine Corps, was restationed from Arizona to Maryland and sought modification of custody based on a material change in circumstances. Following a 5-day hearing, the magistrate found that Mother had demonstrated a lack of honesty with her psychiatrist and was unable to be financially independent of her parents. The magistrate also found evidence that Mother had been making unsupported claims that Father abused T. and was encouraging T. to be afraid of Father, potentially causing damage to T.’s mental health. Due to character concerns regarding Mother, the magistrate recommended that Father be awarded primary physical and sole legal custody. The circuit court accepted the magistrate’s findings and recommendations, and in January 2016, modified custody of T. to award Father
In the ensuing years, the parties continued to have a high conflict dynamic. Father was relocated to South Carolina in 2018 and the parties returned to court on cross motions to modify visitation of T. and petitions to hold each other in contempt. Following another 5-day hearing, the magistrate found that there were significant safety concerns when T. was in Mother’s care, due primarily to her alcohol abuse and poor decision making. Evidence also showed a pattern of difficulties with Mother’s visitation, such as missed visits, late returns, and missing items. In addition, the magistrate found that throughout Mother’s interactions with Father, the court system, and the family services professionals involved in the case, Mother had repeatedly made false accusations, filed unfounded complaints, and demonstrated herself to be not reliable or credible. The magistrate also found that Father had added unilateral restrictions to Mother’s access to T., exceeding his authority as designated in the custody order. The circuit court adopted the magistrate’s findings and issued a new order in 2019 that, among other things, changed Mother’s visitation to the second weekend of every month, and imposed conditions on her contact with T., including participation in an alcohol monitoring program.
Following the circuit court’s 2019 modification, Father was relocated with his family, including T., to Japan in 2020, and then relocated again in 2022, to Yuma, Arizona where they currently reside.1 The most recent visitation order was entered by the circuit court on January 30, 2023. In that order, Mother was granted visitation with T. for four consecutive weeks every summer, and for T.’s spring break every year.
In the spring of 2023, Mother contacted T.’s school to determine the dates of his spring break to make arrangements for her visitation. The school calendar designated the week of April 3, 2023 as spring break. On March 23, 2023, approximately 10 days prior to start of spring break, Mother notified Father that she would be picking T. up for her visitation on the morning of April 1, 2023. In response, Father informed Mother that he believed she was supposed to give him 30-days’ notice before any travel with T., and because she had not done so, he would not make T. available for the visitation. The parties sent numerous emails back and forth, both between each other and involving their attorneys, disputing whether 30-days’ notice was required for the spring break visitation. Despite Father informing Mother that he had made plans to travel out of town with T. for spring break, Mother nonetheless flew to Arizona on April 1 and drove to T.’s school to pick him up. T. was not there, however, and Mother was unable to exercise her visitation. Shortly thereafter, on April
4, 2023, Mother notified Father that she would be exercising her summer visitation. Throughout April and into May, the parties sent contentious emails back and forth regarding Mother’s plans to exercise her visitation with T. Although Mother disputed that she was required to send Father her travel itinerary 30 days in advance, she nonetheless provided the flight information in advance, and Father purportedly agreed that he would meet her at the airport with T. at 9 a.m. on May 27, 2023.
On May 1, following Mother’s failed spring break visitation and while she and Father were arguing over her upcoming summer visitation, Mother placed a phone call to T.’s school. She spoke with three school employees, including the principal, who reported to Father that Mother sounded heavily intoxicated and had told them that Father was violating a court order. She also told them that she would be coming to Arizona for her summer visitation with T. and after that she would be taking him to live with her in Maryland permanently. In response, on May 19, 2023, Father filed a petition for an Order of Protection from the Yuma superior court.2 Father’s petition was granted and the Yuma superior court issued an Order of Protection for Mother to have no contact with either Father or T.
On May 26, when Mother arrived in Arizona, she was served with the order of protection. On May 27, Father did not bring T. to the airport and Mother did not exercise her summer visitation.
On June 15, 2023, Mother filed a petition to hold Father in contempt for intentionally denying her court ordered visitation. Following a hearing, the magistrate found that Father had unjustifiably denied and interfered with Mother’s visitation. The magistrate did not recommend that Father be held in contempt, only that make-up time be awarded to Mother and that Father reimburse Mother for her travel expenses. The circuit court accepted the magistrate’s findings and ordered that Mother would have additional visitation over T.’s 2023 Christmas break and an additional four weeks of visitation during the summer of 2024. Father now appeals the circuit court’s order granting Mother make- up visitation.
DISCUSSION
For cases involving the custody of children, we review the decision of the circuit court on both the law and evidence, and apply a three-part standard of review to address the findings of fact, conclusions of law, and the overall determination of the court. In re Yve S., 373 Md. 551, 584 (2003). We review the circuit court’s factual findings for clear error only. We review the circuit court’s legal conclusions without deference. Id. And, if the circuit court’s ultimate conclusion is “founded upon sound legal principles and based upon factual findings that are not clearly erroneous,” we review that decision for an abuse of discretion.” Id. at 586 (quoting Davis v. Davis, 280 Md. 119, 126 (1977)).
I. INTERPRETATION OF CUSTODY AND VISITATION ORDER
In his first issue, Father argues that the circuit court erred in its interpretation of the custody order. Specifically, Father argues that Mother was required to give him 30-days advance notice before any visitation. The circuit court disagreed and so do we.
We interpret the language of a judicial decree, such as the
court’s visitation order, in similar fashion to interpretation of a contract. Jones v. Hubbard, 356 Md. 513, 533-34 (1999). That is, where the language is plain and unambiguous, we interpret that language according to what a reasonable person in the position of the parties or the court would have thought it meant. Id. at 534 (citations omitted). Here, there is nothing ambiguous about the wording of the visitation order.
There are three sections that are relevant to the current dispute. First, with regard to the summer and spring break visitation, the order grants Mother access and specifically designates the start and end of the access periods:
ORDERED, that [Mother] shall have summer access … in Maryland for a four consecutive week period from Friday to Friday each summer to begin on the second Friday of July; and it is further
ORDERED, that [Mother] shall have access … in Maryland every Spring/Easter break according to [the] school calendar to begin no later that 6:00 p.m. EST on the first day of said break and to end no later than 6:00 p.m. EST on the last day of said break
Neither clause includes a notice requirement for Mother to exercise her visitation.
In contrast, a separate clause grants Mother the option of additional weekend visits during the school year, specifically contingent on giving Father advance notice:
ORDERED, that with thirty (30) days advance written notice, to include written confirmation of her flight itinerary, [Mother] may visit … for up to one weekend per month during the school year in his hometown from Friday after school until Monday return to school (or Tuesday return to school if there is no school on Monday).
The clauses granting Mother summer and spring break visitation and the clause granting Mother optional monthly visitation contain notably different language. Although the summer and spring visitation clauses include no notice requirement, they do specifically designate the visitation periods such that both parties should be aware of the schedule without needing notice from the other. In contrast, the optional monthly visitation is flexible and not designated for any particular weekend. Thus, advance notice is needed to accommodate Mother’s and Father’s schedules.
Finally, the order contains a separate clause requiring Mother to provide copies of airline reservations:
ORDERED, that in lieu of direct payment of child support, [Mother] shall pay all costs associated with [T’s] transportation for her access in Maryland and all costs associated with her travel to [T.’s] hometown to visit him there. [Mother] shall provide [Father] with copies of all roundtrip airline reservations at least thirty (30) days in advance of said scheduled travel.
Although this clause directs Mother to provide Father with copies of airline reservations 30 days prior to travel, that requirement is separate from the awarded visitation. There is no language connecting it to any of the visitation awards, nor is there any language suggesting that Mother would forfeit her visitation if she failed to meet this requirement. Father strenuously argues that the notice requirement should be a prerequisite to exercising visitation and the order’s silence
makes it ambiguous. We do not consider the complete absence of language to be ambiguous. The language is not there because the consequence Father wants is not part of the circuit court’s order.
We conclude, therefore, that the plain language of the circuit court’s order is not ambiguous, and it does not include a requirement for Mother to notify Father of her travel itinerary 30 days prior to summer or spring break visitation. The circuit court therefore did not err in its interpretation of the notice provision.
II. UNJUSTIFIABLE DENIAL OF VISITATION
Next, Father argues that the circuit court erred in finding that he had unjustifiably denied Mother access to T. Specifically, Father argues that the order of protection he obtained from the Yuma superior court justified his denial of Mother’s summer visitation with T., and by finding otherwise the circuit court failed to give full faith and credit to the Yuma order under MD. CODE, FAM. LAW (“FL”) § 4-508.1. Father’s reliance on FL § 4-508.1 is, however, misplaced.
Under FL § 4-508.1, Maryland courts give full faith and credit to protective orders issued by another state and shall enforce them to the extent that relief is permitted under Maryland law. FL § 4-508.1(b). But Father is not seeking enforcement of a protective order. Rather, he has offered the Yuma order to the circuit court as evidence to support his position that his actions were justified. Thus, FL § 4-508.1(b) does not apply here.
Whether Father was justified in denying Mother’s scheduled visitation was a fact question for the circuit court to determine. We review the circuit court’s factual findings only to determine whether they were clearly erroneous. Yve S., 373 Md. at 58586. The Yuma protective order was one piece of evidence. In addition to the order of protection and the factual findings of the magistrate, the circuit court was able to review the extensive
record of emails between the parties and Father’s original petition stating his grounds for seeking the order of protection. Moreover, the circuit court was quite familiar with the parties and the case, having issued the very visitation order in dispute. Although Father believes that the circuit court should have given more weight to the Yuma order, how to “weigh the evidence and determine what disposition will best promote the welfare” of T. was a matter left to the discretion of the circuit court. Burak v. Burak, 455 Md. 564, 617 (2017) (quoting Yve S., 373 Md. at 585-86). Based on its familiarity with the history of the case and the parties, the circuit court found that Father’s objective was to deny Mother’s court-ordered visitation with T. and Father’s decision to seek the order of protection “absolutely smack[ed] of gamesmanship” to achieve that goal. After reviewing the evidence as a whole, including the Yuma order, the circuit court found that Father’s efforts to deny Mother’s visitation were unjustified. We see nothing clearly erroneous about that finding.
III. MAKE-UP VISITATION
Finally, Father argues that the circuit court erred in ordering make-up visitation under FL § 9-105 because the requirements of the statute were not met. We disagree.
Under FL § 9-105, a court may order make-up visitation if the “court determines that a party to a custody or visitation order has unjustifiably denied or interfered with visitation granted by a custody or visitation order.” FL § 9-105(1). Father argues that, because he was justified in denying Mother’s scheduled visitation, the circuit court could not order makeup visitation. As justification, Father reiterates that (1) Mother failed to give him 30-days advance notice and (2) he was relying on the existence of the Yuma protective order.
We have already rejected both of those arguments, and Father offers nothing new. Thus, we conclude there was no error in the circuit court’s decision to order make-up visitation.
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Following the parties’ divorce, Father remarried and has two additional children.
2 In addition to the phone call to the school, Mother also made four phone calls to Father’s employer on May 1 and May 9. The duty clerks who received the calls reported that Mother had sounded intoxicated and made allegations that Father was keeping her from her son and violating a court order. Throughout the parties’ involvement, Mother had demonstrated a pattern of contacting Father’s employer and
making false allegations such that the circuit court had permanently enjoined Mother from making false reports to Father’s employer. On May 15, 2023, Father filed a petition in the circuit court to hold Mother in contempt for violating that permanent injunction. Following a hearing on August 22, 2023, Mother was found to be in contempt and was ordered to undergo substance abuse evaluation and pay Father a portion of his attorney fees incurred due to the contempt proceedings. Father’s petition for the order of protection from the Yuma superior court also relied partially on Mother’s phone calls in violation of the permanent injunction.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Prince George’s County Circuit Court’s termination of father’s parental rights. The court methodically and comprehensively analyzed the requisite statutory factors, made findings based on those factors that were not clearly erroneous and applied the correct legal standard in reaching its ultimate conclusions.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
the District of Columbia. It was discovered that Mother had an open warrant in Montgomery County, and she was transferred there. When she was released, Mother was transferred to Prince George’s County where she had another open warrant. K.D.H.’s maternal grandmother advised a Child Protective Services investigator that she no longer felt safe having her daughter in her home “or any involvement with [Father] as she is fearful of her life.”
DSS learned that K.D.H. had tested positive for marijuana at birth and had a low birth weight. Due to those facts and because Mother was homeless, DSS placed K.D.H. in shelter care2 with foster parents Mr. and Mrs. B. (“the Bs”). DSS filed a petition alleging that K.D.H. was a child in need of assistance (“CINA”).3
On August 5, 2021, the Prince George’s County Department of Social Services (“DSS”), filed in the Circuit Court for Prince George’s County, sitting as a juvenile court, a Petition for Guardianship with the Right to Consent to Adoption or Other Planned Permanent Living Arrangement (“the petition for guardianship”) for K.D.H., a minor child born on January 28, 2019. Following hearings on the merits that occurred on various dates from May 24, 2022, to July 21, 2023, the juvenile court entered a written order on September 26, 2023, granting the petition for guardianship and terminating the parental rights of D.D. (“Mother”) and E.H. (“Father”) to their minor child K.D.H.1 This timely appeal followed.
The sole issue presented for our consideration is whether the juvenile court abused its discretion in granting the petition for guardianship and terminating Father’s parental rights to K.D.H. For the reasons set forth below, we shall affirm.
PROCEDURAL AND FACTUAL BACKGROUND
A. K.D.H.’s Entry into Care
K.D.H. was born at Howard University Hospital on January 28, 2019. At that time, Mother was seventeen years old and resided in Prince George’s County. Father was present for the child’s birth, but after an incident between him and Mother, he did not return to the hospital. K.D.H.’s maternal grandmother, who resided in Prince George’s County, initially agreed to have Mother and K.D.H. live with her. In early February 2019, Mother was advised that she could not take K.D.H. home from the hospital because there was a social hold on the child. Mother “went into a rage and destroyed the property in the nursery room at the hospital and attacked her [own] mother.” Mother was taken into the custody of the Department of Juvenile Services in
An adjudication and disposition hearing was held on March 5, 2019. Father was not present at that hearing. Mother reported that Father had signed papers to be listed on the birth certificate as K.D.H.’s father. On March 20, 2019, the juvenile court found K.D.H. to be a CINA and placed her in the care and custody of DSS.4 The juvenile court ordered that visitation between K.D.H. and Father “if located is to be liberal and supervised as arranged by DSS or its designee[,]” that DSS was to make certain referrals, and that Father was to enter into a service agreement with DSS, attend parenting classes, and obtain a domestic violence assessment and a substance abuse assessment, as well as any needed services.
DSS attempted to locate a mother and baby placement for Mother and K.D.H. and eventually located a treatment foster home that was willing to accept them. That placement began on April 1, 2019, but was disrupted days later when the foster parent reported that Mother had Father in the home and that he “threatened to kill the foster parent.” Mother took K.D.H. and left the home. Later, after Mother returned to the foster home with K.D.H., she threatened the foster parent with a knife. Mother was arrested, but after her release, she returned to the foster parent’s home and was, thereafter, arrested for violating a protective order. K.D.H. was returned to the care of her prior foster parents, the Bs.
B. Permanency Planning Review Hearings
A permanency planning review hearing was held on May 1, 2019. Father appeared for the first time and stated that he would represent himself. The juvenile court found that Father did not have a home address. It continued K.D.H.’s foster care placement with the Bs and awarded both parents liberal, supervised visits. The juvenile court ordered Father to enter into a service agreement with DSS and to attend parenting classes and obtain assessments for domestic violence, mental health,
and substance abuse.
The next permanency planning and review hearing was held on October 4, 2019. Father did not attend that hearing. In a report prepared in advance of the hearing, DSS noted that Father had had supervised visits with K.D.H. He had been referred for a substance abuse assessment and parenting classes through the Family Tree, which were to begin on October 9, 2019. DSS also completed a referral for a psychological evaluation and a domestic violence assessment and was in the process of making a referral for individual therapy for Father, who did not have medical insurance. DSS reported that K.D.H. was doing well in her foster home, had begun attending a daycare center, and she was up to date on her vaccinations.
At the conclusion of the October 4, 2019 permanency planning review hearing, the juvenile court continued the permanency plan of reunification. It issued written findings including that mail sent to Father at an address on Bryans Road was being returned with a note stating that mail should not be sent to that address as Father does not live there. The juvenile court noted that “minimal progress” toward reunification had been made by Father “as he has visited but ... not engaged in services and his whereabouts/address is unknown.” The court determined that K.D.H.’s permanency plan was “reunification with Mother with implementation by 3/2020.” The juvenile court again ordered Father to enter into a service agreement with DSS and to attend parenting classes and the other services set forth in the prior orders.
In late 2019, Father requested a new social worker because he did not believe that his assigned social worker, who was a white woman, could understand the experience of a black man. DSS responded by assigning a new social worker, Omar Wilkins, to the case.
In a report prepared in anticipation of the March 6, 2020 permanency planning review hearing, DSS recognized that Father had “been consistent with his weekly ongoing visitation with” K.D.H. On January 9, 2020, however, Father arrived late to a supervised visit. He reportedly grabbed K.D.H. aggressively from Mother’s arms and appeared to be under the influence of alcohol or another substance. He became upset and was disruptive and had to be escorted from DSS premises by Mr. Wilkins. DSS suspended Father’s supervised visits until its workers had a chance to meet with him. Father’s supervised visits resumed on January 23, 2020. The report noted that Father was “not engaged in any court- ordered services.” DSS invited Father to attend a six-week “father’s group” which addressed topics such as building better relationships, parenting and coparenting, employment assistance, effective communication, and navigating the child welfare system. Although Father said he would like to attend, DSS reported that he had not attended any of the sessions.
Mr. Wilkins observed ten visits with K.D.H. between January and September 2020. At a hearing on July 26, 2022, he testified that Father would engage with K.D.H., but would then turn his focus on Mother and start arguing with her. At that time, Mother was pregnant with their second child. Mr. Wilkins asked Mother if she and Father would like separate visits, but Mother declined stating that she and Father had discussed it, “were going to work through” their issues, and “wanted to have the visitations
together as a family.” Thereafter, arguments between the parents became less frequent.
In March 2020, in-person visits were suspended due to the start of the COVID-19 pandemic. At that time, Father had not participated in any services, did not have a fixed address, and mail to his address on file continued to be returned. Father did not attend virtual meetings of the fathers’ group and efforts by the group’s leader and a DSS worker to reach Father by phone were unsuccessful because his phone number was no longer in service.
Although the parents’ visits with K.D.H. had been two hours long prior to the pandemic, the virtual visits were reduced to one hour due to K.D.H.’s young age and her inability to interact for two hours. When Father was made aware of the shortened visitation, he emailed Mr. Wilkins and stated that he could “put [Mr. Wilkins’] job in jeopardy just like I did with respect to” the prior DSS worker and that he should “fix it or I’ll make your life hell like I did [hers].” Mr. Wilkins replied, “please don’t ever threaten me.” Father then sent three emails stating, “[w]ell I did now what are you gonna do about it[,]” “[y]ou really don’t know who I am and I’m not scared of nothing out [sic] or anyone so like I said fix it before your job is in jeopardy don’t make me repeat myself[,]” and, “[s]o f[***] you and whoever else backs you up.”
Father engaged in a virtual visit with K.D.H. on March 26, 2020. Sometime in March 2020, Mother gave birth to her second child with Father. During a virtual visit on April 7, 2020, Father was at Mother’s residence, and he was observed talking to their new baby, but he did not engage with K.D.H. Although DSS sent scheduling emails to Father for all visits using both email addresses he had provided, Father did not visit K.D.H. at all during the second half of 2020.
A permanency planning review hearing was held on August 26, 2020, but Father did not attend. The court found that Father had “not yet engaged in any services[,]” and that although he had been invited to the fathers’ group, he was not able to attend because he started working at Uber Eats. The court found that Father had no fixed address, that he had a substance abuse assessment and was recommended for substance abuse treatment, but had not attended, and that he had a pending criminal case. Based on those findings, the court concluded that there had “been no progress made toward the plan of reunification with Father[.]” The court continued the permanency plan of reunification with implementation by February 2021.
Father failed to attend the next hearing on February 5, 2021. DSS reported that it had not had contact with Father since the prior hearing, emails sent to him were not returned, he had no physical address, his whereabouts were unknown, and he was “not engaged in any court ordered services.”5 The juvenile court found:
Father is not yet engaged in any services. He was invited to a DSS six-week program called The Father’s Group during the last review period but said that he started working at Uber Eats and was not able to attend. Father currently has no fixed address) [sic]. Father previously had a substance abuse assessment and was recommended for substance abuse treatment but has not attended. Father also has a pending criminal cases [sic] with a trial date postponed due to the
pandemic. Mail to Father is coming back. * * *
There has been no progress made toward the plan of reunification with Father as he has not visited [K.D.H.], engaged in any services, or had contact with DSS. Father’s whereabouts are currently unknown.
The juvenile court changed the permanency plan from reunification to “TPR/Adoption with implementation by 8/2021.” Thereafter, Father sent an email to DSS stating that Mother had kept him out of the loop, that he had his “own spot” and was “finally working.” He asked what he needed to do in addition to classes, which he would be starting “soon now that I have insurance.”
A paternity arraignment and a permanency planning review hearing were held on July 8, 2021, via Zoom. Father waived his right to contest paternity and testified that he was K.D.H.’s biological father. The juvenile court found that he was the biological and legal father of the child. In its written findings, the juvenile court wrote:
Father expressed concern that [DSS] has not worked with him and frustration that his efforts to connect with service providers have been met with a lack of response.
Father explained that he has invited options from [DSS] regarding placing documents requested of him for signature in a form that does not require access to a computer or facsimile transmission machine. Regarding visitation with [K.D.H.], Father has been employed at a Chipotle Restaurant since November 2020, a job that has come with a “tight schedule” that gives him “no access to free time.” Father added that there is no need for COVID-19 testing to facilitate visitation since he is testing regularly at his employment. Father now has an apartment; he was homeless when [K.D.H.] was born. Though his schedule is tight, he offered that his girlfriend resides with him and is available to care for [K.D.H.] when he is not present. Father is in the process of obtaining a second job.
DSS and counsel for K.D.H. recommended that the child’s permanency plan be adoption by a non-relative, specifically her foster parents. Father requested a permanency plan of reunification with him. The court found that it was in K.D.H.’s best interest that her permanency plan be adoption by a non-relative, specifically the Bs. In reaching that decision, the court stated:
The Court has considered a number of factors in determining the appropriate permanency plan for [K.D.H.]. Among the factors are the time that [K.D.H.] has been in care; [K.D.H.’s] attachment to the [B.s] and the stability provided in the only home [K.D.H.] has known; the absence of any bond with either Mother or Father; the lack of fulfillment of various of the requirements regarding accessing services by Mother and Father (in different degrees or regards as to each), where accessing services for which [DSS] made referrals is within the responsibilities of Mother and Father; and the absence of a reasonable time within which reunification could be achieved were Father to fully comply with unfulfilled requirements.
C. Guardianship Proceeding
On August 5, 2021, DSS filed a petition for guardianship seeking to terminate the parental rights of Mother and Father to K.D.H. Mother consented to the petition and Father filed a timely objection. Counsel for K.D.H. initially objected to the petition, but later withdrew the objection and consented to it on the condition that the child be adopted by the Bs.
A permanency planning review hearing was held virtually on December 20, 2021. Father did not appear at that hearing. DSS informed the court that subsequent to its report dated December 9, 2021, Father informed his case manager that he had not received prior court orders. The court found that the address used by the court was the same as the address to which the DSS case manager had mailed copies of the court orders to Father. The court took note of Father’s opposition to the permanency plan of adoption by a non-relative and noted that Father had filed an objection to the petition for guardianship. The court ordered, among other things, that DSS begin the adoption home study process.
The petition for guardianship and to terminate the rights of the parents to K.D.H. was heard by the juvenile court over the course of several days from May 2022 through July 21, 2023. Sharnice Thorne, a child protective services investigator with DSS, testified as an expert in the field of child welfare and safety. She stated that on February 1, 2019, DSS received a report that K.D.H. and Mother were homeless and that K.D.H. was exposed to marijuana at the time of her birth. Because Mother was a minor at the time of K.D.H.’s birth, Ms. Thorne contacted the baby’s maternal grandmother who advised that although previously she agreed to allow Mother and K.D.H. to live in her home, she changed her mind because she “was fearful[.]” Ms. Thorne completed an initial investigation and referred the case to foster workers, one of whom was assigned to Mother and the other to K.D.H. During the time of her involvement in the case, Ms. Thorne did not meet Father. She “just knew the name” and did not have any contact information for him.
Debra-Lynn Pierson testified as an expert in child welfare and permanency. She worked for DSS as a supervisor for K.D.H.’s social worker, Scholastica Dalmeda, from August 2020 through January 2021 and again, for various periods, until July 2021. Ms. Pierson met with Ms. Dalmeda weekly and reviewed the case on a regular basis. Ms. Pierson testified that she had no concerns about K.D.H.’s foster home or her safety or wellbeing while in that home. She was aware that Ms. Dalmeda sent emails to Father in an attempt to obtain his physical address and employment information, but did not receive a response from him. Father did not have a service agreement with DSS, and no home assessment was done for Father’s home because DSS did not have his address. Ms. Pierson opined that adoption was the appropriate permanency plan for K.D.H. based on the child’s “age, development, stability with the Bs,” and Father’s lack of engagement in services including parenting classes, a mental health assessment, substance abuse assessment, and domestic violence assessment, as well as his lack of consistent visits and progress towards reunification.
Jennifer Davis worked in the foster care unit at DSS. She was assigned to K.D.H.’s case in about February 2019 and monitored her placement with her foster parents, the Bs. Ms. Davis first
had interactions with Father in May or June 2019. She made referrals for Father to obtain a substance abuse assessment, a psychological assessment, a domestic violence assessment, and to attend parenting classes. The assessments were not completed. Father did not attend a parenting class scheduled to begin on October 9, 2019, and did not complete the parenting classes. Ms. Davis acknowledged that Father did not receive any referrals that were funded by DSS.
Ms. Davis stated that Father’s visits with K.D.H. “were sporadic[.]” According to Ms. Davis, Father did not request make up visits for those he missed. Nor did he request visits separate from those between Mother and K.D.H. During the visits she observed, Ms. Davis noted that Mother and Father “would argue and bicker” and when she would intervene, Father was not receptive of the feedback. Ms. Davis explained that “she had difficulty getting him to engage” with respect to accepting feedback and changing his behavior. She felt his behavior “negatively impact[ed]” K.D.H.
On one occasion, Father showed up for a regularly scheduled visit, but it was denied. After Father persisted in demanding that the visit take place, the Deputy Assistant Director of DSS directed that the supervised visit occur. Some visits were canceled because the foster parents took K.D.H. with them on business trips. On other occasions when the Bs were out of town, K.D.H. stayed with Mrs. B’s aunt and DSS provided the child transportation to the visits. Father expressed some concerns about K.D.H.’s appearance, but Ms. Davis did not have any concerns about K.D.H.’s general welfare.
As of December 2019, K.D.H. “was doing very well” in her placement with the Bs. According to Ms. Davis, K.D.H. looked to the Bs “for everything” and interacted with the other children in the Bs’ home. For two reasons, Ms. Davis’s work on the case ended in December 2019. First, Mother complained that she was withholding K.D.H. from her and second, Father did not want to work with a woman and did not feel “that a white woman in particular could understand the experience of a black man.” The case was then transferred to Omar Wilkins.
Omar Wilkins, a foster care reunification worker at DSS, testified that he began working on K.D.H.’s case in January 2020, when the permanency plan was reunification with Mother. He did not make any referrals for Father because they had already been made by Ms. Davis, but he followed up on the referrals by making sure that Father had necessary phone numbers for service providers and by speaking with a substance abuse specialist who advised that Father had failed to follow through with him. Mr. Wilkins also confirmed with Family Tree that Father had not made contact with that organization and confirmed that Father did not follow up with the referral for individual counseling.
Mr. Wilkins’s first in-person involvement with Father occurred on January 9, 2020, when Father “was being escorted out of” DSS “due to … aggressive behaviors.” According to Mr. Wilkins, Father “was being very belligerent” and used “inappropriate language towards the staff,” Mother, and K.D.H.’s maternal grandmother. Father “could not explain why he was so upset,” his “words were slurred,” and he appeared to be “under the influence of either alcohol or substance.” Father used inappropriate language and said, “I don’t
give a f[***] what you all say to me[,]” “I will f[***] everybody up in here[,]” “[n]obody going to tell me what I need to do[,]” “[f] [***] all you all[,]” and “[y]ou all mother f[******].”
From January 9, 2020, through September 2020, Mr. Wilkins observed ten visits between K.D.H. and her parents. Mr. Wilkins observed Father and Mother argue specifically about Mother’s claim that Father was not providing for the needs of their second child, with whom Mother was pregnant. Mr. Wilkins testified that the arguments “took away from them being engaged with” K.D.H. Mr. Wilkins asked Mother if she would like separate visits with K.D.H. A couple of days later, Mother reported that she spoke with Father and they wanted to have visitations with K.D.H. together as a family. According to Mr. Wilkins, Father never requested DSS to provide individual visits for him and K.D.H.
After the visits became virtual due to the pandemic, Father became upset and used “threatening language towards” Mr. Wilkins and DSS. Mr. Wilkins sent email notices of the visits to two email addresses he had for Father, but Father appeared at only one visit. According to Mr. Wilkins, the emails he sent to Father did not “bounce back[.]” At no time did Father advise Mr. Wilkins that his address had changed. For a period of time, Mr. Wilkins was able to communicate with Father by phone, but in about June 2020, his phone service was disconnected. Mr. Wilkins acknowledged that in virtual visits, Mother and Father were unable to hug and kiss K.D.H. and that impacted their ability to be physically present with their child.
In April 2020, Mr. Wilkins referred Father to a class for fathers that was held in a virtual format. According to Mr. Wilkins, Father did not attend any of those classes. Father reported that he was self-employed “in the clothing line business,” making t-shirts and sweatshirts. At no time during Mr. Wilkins’s work on the case did Father sign a service agreement with DSS.
Mr. Wilkins observed K.D.H. once a month in the home of her foster family. He observed K.D.H. to be happy, comfortable, and safe, and he did not have any concerns about her wellbeing or placement. The child was current with her medical appointments. K.D.H.’s foster mother, Mrs. B., testified that she and her husband, Mr. B., lived in Prince George’s County in a single-family home with their two sons, who were twelve and eight years old, their twin daughters, who were ten years old, and K.D.H. K.D.H. first came into their foster home on February 5, 2019. From about April 1 through April 5, 2019, K.D.H. was placed back in Mother’s care, but thereafter she was returned to the B.’s home and had lived there ever since. K.D.H. did not have any chronic or acute medical conditions and Mrs. B. described her as “very happy.” She liked to “dress up like a princess,” play with “a Baby Alive doll,” and play dress up, but she did not like to go swimming. She was attending summer camp and getting ready to begin gymnastics. On occasion, Mr. and Mrs. B. traveled out of town together. If their children and K.D.H. did not travel with them, they stayed with Mrs. B’s aunt who was registered as the B’s back- up care provider.
Mrs. B. first met Father in February 2019, when he was with Mother and K.D.H.’s maternal grandmother. Mrs. B. testified that “it was clear” from the way they interacted that Father “really loved” K.D.H. He kissed the child “all over” and told her she would be going home with him soon. Mrs. B. stated that he
was “kind” to her and her husband. Thereafter, Father attended some visits with the child, but there was a period where there was “no interaction for about a year.”
In February 2022, Father requested visits with K.D.H. Mrs. B. set up a virtual meeting for February 22, 2022, and several other virtual visits, but Father “never logged on.” Mrs. B. testified that she had a few unpleasant email exchanges with Father and, at one point, she asked Father to communicate only with Mr. B. One unpleasant exchanged involved birthmarks on K.D.H.’s back that Father thought were bruises, but a doctor identified as birthmarks. In addition, Father told the Bs he felt they “were negligent” with communication when the Bs took two or three days to respond to an email. Thereafter, the Bs told Father to contact DSS to schedule visits. Mrs. B. testified that she never asked Father for financial support for K.D.H. because “[t]here wasn’t a need.”
Mrs. B. testified that she and her husband were willing and able to adopt K.D.H. Mrs. B. testified that if she and her husband were to adopt K.D.H., they would be willing to allow Mother and Father to have contact with the child if they wanted that to happen.
Father testified on his own behalf. In addition to K.D.H. and her younger sister, Father had an eight-year-old son and a sevenyear-old daughter from prior relationships. Father stated that he loved K.D.H. and that the word love was “an understatement.” Father did not pay child support for any of his children but testified that “if [he] was obligated [he] would have sent something, anything.”
Father lived with his girlfriend of four years in a one-bedroom apartment in Landover where they had lived for almost four years. If K.D.H. were to live with him, he would move to a twobedroom apartment. When asked where K.D.H. and his other children would sleep in his one-bedroom apartment, Father testified that K.D.H. would have “her own room, own bed,” and that his son would sleep on an air mattress. Father also stated that usually his son does not sleep because “[w]e stay up all night together. We don’t really go to sleep[,]” or his son “ends up falling asleep on the couch.” As for Father’s girlfriend, she would also “stay up all night” or fall “asleep on the couch watching a movie or something. We usually – we’re usually all the way –always up.” Father testified that he slept “about four hours every day[.]”
Father had been employed at a Popeye’s restaurant since July 10 or 11, 2023, and earned about $17 an hour. Because he was still in training, Father was unsure of his ultimate work schedule, but he had requested to work 5 p.m. to 11 p.m. He also had several other jobs. He worked for Door Dash and as an independent contractor doing day labor through an app known as Bacon. He also earned money from streaming video game content for “Twitch.” With regard to “Twitch,” Father testified that “people, usually they donate” and when that happens, he is paid instantly. Father was “working to get into a program where they actually like pay pay [sic] you thousands of dollars” for streaming video game content. Father worked for Door Dash seven days a week, from about 2 p.m. to 2 a.m., and earned between $125 to $250 per day. If he got an independent contractor position through the Bacon app, he would work that job, and if he was not working a job through the app, he would
work for Door Dash. Previously, for about two and a half years, he worked for Amazon, where he worked ten-hour night shifts, from 6:30 p.m. to 4:30 a.m., and earned $17.80 per hour. At that time, he worked for Door Dash as well. He left his job at Amazon but kept his job at Door Dash in order to have more flexible and less stressful hours while working to get his daughter back.
Father claimed he did not need daycare for K.D.H. because his girlfriend would watch her while he was at work. Father’s girlfriend worked full time as a leasing consultant at an apartment complex. When asked who would provide daycare if he and his girlfriend split up, Father said his girlfriend would still be the daycare provider. Father testified that if K.D.H. lived with him, he would quit his job at Popeye’s and stream video games on Twitch full time and work at Door Dash two or three days a week.
Father learned from Mother that K.D.H. had been placed in foster care. When asked if the hospital had his contact information, Father stated that he did not have a hospital wristband and “had no access to actually get [K.D.H.] at the time of her pick up.”
Father claimed that Jennifer Davis “only gave [him] one service and said she had put in a referral but never followed up.” On or about October 15, 2019, Ms. Davis referred him for parenting classes, but she could not give him a start date and “had to go through her boss” because he did not have insurance. Father eventually obtained health insurance. Father testified that he completed two parenting classes but, due to his job, he “woke up late and missed one parenting class.” Later, he stated that he completed all of the parenting classes except for one. Instead of having to wait another month to finish the missed class, Mr. Wilkins “redirected” him from the parenting classes to a “less strenuous” fathers’ group that started on or about October 23, 2019. Father testified that he attended one in- person class before the Covid-19 pandemic and eventually completed the program on July 21, 2023. Father was unaware that the fathers’ group switched to a virtual format during the pandemic, because “nobody reached out to” him. He stated that he did not have any contact information for the fathers’ group because that was supposed to be shared at the second meeting. Father did not complete a mental health assessment because he never received a referral for it. According to Father, his ability to complete the substance abuse assessment and other referrals was hindered because of the Covid-19 pandemic. He completed a substance abuse assessment on June 10, 2023, and the report indicated that there was no abuse or use detected and no further recommendations were required. Father stated that he was able to complete referrals more recently because a DSS worker followed up with him through email and texts. Father claimed that all of the reunification efforts early on were focused on Mother and not him and that he was never informed that reunification could be with either him or Mother. He received all information about visits with K.D.H. from Mother and never received any emails from DSS. Father stated that he was never offered any make-up time when visits were cancelled. Father asked Ms. Davis for visits with K.D.H. separate from Mother and the child’s maternal grandmother and, although she said she would take his request into consideration, she did not. That was when he asked for another DSS worker and Mr.
Wilkins was assigned to the case.
Father testified about some issues he had with the Bs. He complained that K.D.H. arrived to visits “poorly dressed,” with a “snotty” nose, and “boogers crusted in her nose.”
He spoke to Mr. B. and reached an understanding about the situation and “there were no more problems or friction[.]” He also worked with the Bs to schedule Zoom visits with K.D.H. Father testified that in-person visits resumed on January 24, 2022, and that he had not missed any visit since that time. Father acknowledged that K.D.H. was attached to her foster family and testified that if the child was reunified with him, he was willing to maintain a relationship between K.D.H. and the B family. Father testified that he was financially able to support K.D.H.
Father’s girlfriend, Tatyana G., testified that she met Father in December 2019 and lived with him in her apartment in Oxon Hill. At one point, Father was on her lease, but his name was later removed from it. The lease on her apartment was set to expire and her plan was to upgrade to a two-bedroom unit so K.D.H. would have her own bedroom. Ms. G. had met and cared for Father’s youngest daughter, but she only met K.D.H. and Father’s son one time each on Facetime. She denied that Father was ever abusive toward her or his children. She worked forty hours a week as a leasing agent, made $17.50 per hour, and worked about one hour of overtime two or three days per week.
D. Juvenile Court’s Decision
The juvenile court announced its ruling from the bench on September 11, 2023. The court took note of Father’s testimony that he was present at K.D.H.’s birth and that there were no allegations of abuse or neglect by him in the initial shelter care or CINA petitions. The court found that Father did not present for a substance abuse assessment until April 26, 2023. Although Father claimed DSS did not follow up on referrals, the court found that “Father did not appropriately and timely avail himself of the referrals.” The court found that although “Father had bouts of employment[,]” they “were few and far between[,]” and he did not verify either his employment or income. The court accepted Father’s testimony that he was consistent with visitation until the Covid-19 pandemic, but when the visits were held remotely, Father “was not very consistent.” The court found no parental disability and noted that there was “no testimony of any psychological, psychiatric, or emotional, or physical disabilities.”
As to whether additional services would likely bring K.D.H. “into a lasting parental adjustment,” the court found that no “additional services would be necessary, just [Father’s] participation in the services would have been advantageous to both himself and the child.” “[T]here was no allegation that the Father abused or neglected” K.D.H., and the court acknowledged the observation by DSS workers that Father appeared to be appropriate with K.D.H. The court also acknowledged, however, that there were occasions when “the visits would take a turn when he began to argue with the Mother or argue with [DSS].” The court determined that it was “inappropriate” that this behavior occurred in front of K.D.H.
The court found that there were “significant ties” between K.D.H. and her foster parents and that she considered Mr. and Mrs. B. to be her parents and their children her siblings.
According to the court, that bond was strong and “irreparable at this point.” The court stated that “the child’s adjustment to the community, the home, school, all of it is just, again, I use the word irreparable – something that cannot be severed.” The court found that it would be “traumatizing” for K.D.H. to be removed from the home of her foster parents and that the termination of parental rights would not “be traumatic for this child.”
After considering all of the required factors, the court concluded that, by clear and convincing evidence, it was in K.D.H.’s best interest that the petition for guardianship with the right to consent to adoption be granted. The court specified that it was making this finding on the issue of extraordinary circumstances, and that it did not find Father to be an unfit parent. The extraordinary circumstances included “specifically the bond with the [Bs] since the child was six days old, her adjustment to their home, the community, their family, their extended family, and her school[.]”
On September 26, 2021, those findings were set forth in a written order by which the juvenile court terminated Father’s parental rights to K.D.H. based on exceptional circumstances. We shall review the court’s findings as set forth in the written order in more detail in our discussion below.
STANDARD OF REVIEW
In reviewing the juvenile court’s decision to terminate Father’s parental rights to K.D.H., we apply three different but interrelated standards of review. In re Adoption/Guardianship of C.E., 464 Md. 26, 47 (2019) (quoting In re Adoption/ Guardianship of Cadence B., 417 Md. 146, 155 (2010)). We leave the factual findings by the juvenile court undisturbed unless they are clearly erroneous. In re Adoption/Guardianship of B.C., 234 Md. App. 698, 707 (2017) (citation omitted). We review legal questions de novo, and if the juvenile court erred, further proceedings are ordinarily required unless the error is harmless. Id. Finally, if the court’s ultimate conclusion is “founded upon sound legal principles and based upon factual findings that are not clearly erroneous,” the decision of the juvenile court will be “disturbed only if there has been a clear abuse of discretion.” Id. An abuse of discretion exists when “‘no reasonable person would take the view adopted by the [juvenile] court, or when the court acts without reference to any guiding rules or principles.’” In re K.L., 252 Md. App. 148, 185 (2021) (quoting Santo v. Santo, 448 Md. 620, 325-26 (2016)). Stated otherwise, an abuse of discretion occurs when the court’s decision is “‘well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.’” In re Shirley B., 419 Md. 1, 19 (2011) (quoting In re Yve S., 373 Md. 551, 583-84 (2003)).
The juvenile court’s “determination is accorded great deference, unless it is arbitrary or clearly wrong.” In re Adoption/Guardianship of C.A. & D.A., 234 Md. App. 30, 46 (2017) (citations and internal quotation marks omitted). In reviewing the juvenile court’s decision to terminate parental rights, our role: is not to determine whether, on the evidence, we might have reached a different conclusion. Rather, it is to decide only whether there was sufficient evidence – by a clear
and convincing standard – to support the chancellor’s determination that it would be in the best interest of [the child] to terminate the parental rights of the natural [parent]. In making this decision, we must assume the truth of all the evidence, and of all of the favorable inferences fairly deducible therefrom, tending to support the factual conclusion of the trial court.
In re B.C., 234 Md. App. at 708 (quoting In re Abiagail C., 138 Md. App. 570, 587 (2001)).
DISCUSSION
Father presents several challenges to the juvenile court’s decision to terminate his parental rights to K.D.H. Specifically, he argues that DSS failed to comply with certain CINA statutes, that the evidence was not sufficient to show that he was unfit, and that the juvenile court abused its discretion in terminating his parental rights based on exceptional circumstances.
A. CINA Statutes
Father contends that “the court intervened in a family matter and took [his] child into their custody using the authority of the State of Maryland and when he refused to comply with their demands, they then moved to terminate his parental rights.” Relying on CJP § 3-8096, Father argues that DSS failed to make reasonable efforts toward reunifying him with K.D.H. Subtitle 8 of the Courts and Judicial Proceedings Article applies in CINA proceedings and is not applicable in guardianship proceedings. Maryland’s Supreme Court has explained that although “a CINA adjudication must precede a [termination of parental rights] determination, it is a separate legal proceeding. The two are governed by different statutes, serve different purposes, depend on different factors, require different standards of proof, and follow different case tracks.” In re Adoption/Guardianship of Jayden G., 433 Md. 50, 74-75 (2013) (citation and quotation marks omitted). Our review of the record makes clear that throughout the course of K.D.H.’s CINA case, the juvenile court consistently found that DSS had made reasonable efforts, and Father never challenged those findings.
In guardianship proceedings such as the case at hand, we look to FL § 5-323(d), which addresses the required considerations for a termination of parental rights, including consideration of “all services offered to the parent before the child’s placement,” “the extent, nature, and timeliness of services offered” by DSS “to facilitate reunion of the child and parent,” and whether DSS and the parent have “fulfilled their obligations under a social services agreement, if any[.]” FL § 5-323(d)(1). We shall address the juvenile court’s consideration of the factors required by FL § 5-323(d), infra.
B. Whether Father is Unfit
As we have already noted, a juvenile court may terminate parental rights without the consent of a parent when it “finds by clear and convincing evidence that a parent is unfit to remain in a parental relationship with the child or that exceptional circumstances exist that would make a continuation of the parental relationship detrimental to the best interests of the child such that terminating the rights of the parent is in a child’s
best interests.” FL § 5-323(b). Father argues that aside from his “lack of engagement” in the services DSS offered, “there does not appear to be any reason that would stand up to the required level of scrutiny to show that [he] should be deemed unfit to parent” K.D.H. That argument is without merit because in its written findings and order granting the petition for guardianship, the juvenile court specifically stated, that it did “not find that the father is unfit.”
C. Termination of Parental Rights
Father contends that the juvenile court abused its discretion in terminating his parental rights. In support of that contention, Father makes numerous arguments pertaining to the juvenile court’s decision. We shall address those arguments below, as we consider the findings of the juvenile court and its ultimate decision to terminate his parental rights to K.D.H.
Analysis
It is well-established that parents have a fundamental right to “‘make decisions concerning the care, custody, and control of their children.’” In re C.E., 464 Md. at 48 (quoting Troxel v. Granville, 530 U.S. 57, 66 (2000)); In re C.A. and D.A., 234 Md. App. at 47. However, a parent’s fundamental right to raise his or her child is not absolute. In re C.A. and D.A., 234 Md. App. at 47; In re Yve S., 373 Md. 551, 568 (2003). That right “must be balanced against the fundamental right and responsibility of the State to protect children, who cannot protect themselves, from abuse and neglect.” In re Adoption/Guardianship of Rashawn H., 402 Md. 477, 497 (2007). “When it is determined that a parent cannot adequately care for a child, and efforts to reunify the parent and child have failed, the State may intercede and petition for guardianship of the child pursuant to its parens patriae authority.” In re C.E., 464 Md. at 48.
“When the State seeks to terminate parental rights without the consent of the parent, the standard is whether the termination of rights would be in the best interest of the child.” In re Abiagail C., 138 Md. App. at 586. “[I]n all cases where the interests of a child are in jeopardy the paramount consideration is what will best promote the child’s welfare, a consideration that is of ‘transcendent importance.’” In re Adoption/Guardianship No. A91- 71A, 334 Md. 538, 561 (1994) (citation omitted). “[T]he child’s best interest standard trumps all other considerations.” In re Adoption/Guardianship of Ta’Niya C., 417 Md. 90, 111 (2010) (footnote omitted). “[T]he controlling factor … is not the natural parent’s interest in raising the child, but rather what best serves the interest of the child.” In re Adoption/Guardianship No. 10941, 335 Md. 99, 113-14 (1994).
Before terminating parental rights, a juvenile court must consider the factors set forth in FL § 5-323(d).7 In re C.A. & D.A., 234 Md. App. at 48. Under the statute, “a juvenile court shall give primary consideration to the health and safety of the child and consideration to all other factors needed to determine whether terminating a parent’s rights is in the child’s best interests[.]” FL § 5-323(d). If, after considering those factors, the court “finds by clear and convincing evidence that a parent is unfit to remain in a parental relationship with the child or that exceptional circumstances exist that would make a continuation of the parental relationship detrimental to the best interests of the
child[,]” the court may terminate the parental relationship and grant guardianship of the child to DSS. FL § 5-323(b).
“An exceptional circumstances analysis must turn on whether the presence – or absence – of particular facts and circumstances makes continuation of the parental relationship detrimental to the child’s best interests.” In re Adoption/ Guardianship of H.W., 460 Md. 201, 231 (2018). “In addition to being mandatory considerations prior to a termination of parental rights, the factors outlined in FL § 5-323 also serve ‘as criteria for determining the kinds of exceptional circumstances that would suffice to rebut the presumption favoring a continued parental relationship and justify termination of that relationship.” In re C.A. and D.A., 234 Md. App. at 50 (quoting In re Rashawn H., 402 Md. at 499). Other criteria relevant to an exceptional circumstances determination include: the length of time that the child has been with his adoptive parents; the strength of the bond between the child and the adoptive parent; the relative stability of the child’s future with the parent; the age of the child at placement; the emotional effect of the adoption on the child; the effect on the child’s stability of maintaining the parental relationship; whether the parent abandoned or failed to support or visit with the child; and, the behavior and character of the parent, including the parent’s stability with regard to employment, housing, and compliance with the law.
In re C.A. and D.A., 234 Md. App. at 50 (citing In re Adoption/ Guardianship No. A91-71A, 334 Md. at 562-64).
Here, the juvenile court considered the required factors under FL § 5-323(d) and concluded that exceptional circumstances existed that made continuation of the parental relationship detrimental to K.D.H.’s best interests. We review the court’s findings and Father’s arguments as they pertain to those findings, as follows:
FL § 5-323(d)(1)(i) – Services Offered to Parent Before Child’s Placement
In its written order, the court determined, under FL § 5-323(d)(1)(i), that “[d]ue to the emergent circumstances of this case,” no services were offered to either parent before K.D.H. entered care because she “went into placement when she was five or six days old,” and Mother “had been taken to a Juvenile detention center.” Father argues that the facts that Mother was homeless and K.D.H. was “exposed to substance abuse” should not be imputed to him. There is no evidence in the record to suggest that occurred. The evidence showed that DSS did not have contact with Father, or any contact information for him, prior to the time K.D.H. entered care. Moreover, the court specifically stated that there were no allegations of abuse or neglect by Father.
FL § 5-323(d)(1)(ii) – Extent, Nature, Timeliness of Services
In considering the extent, nature, and timeliness of services offered by DSS to facilitate reunification with the parents, as required by FL § 5-323(d)(1)(ii), the court found: that several services were offered to the father, which included a substance abuse assessment, psychological assessment, domestic violence assessment and parenting
classes. The court finds that it was not until five months ago, after the hearing had already initiated, that the father presented for an assessment for both substance and alcohol abuse. That was April 26, 2023. There was no indication of substance and alcohol abuse. Prior to the petition for Guardianship there was no follow up by father. This weighs heavily in favor of [DSS]. The father claims the referrals were made but [DSS] did not follow up. [DSS] claims that the father did not follow up. As stated, the Court notes no follow up by the father until five months ago. Although Father asserts that his home address, phone number, and email address never changed, the juvenile court was free to credit evidence that DSS workers attempted to reach Father by email to obtain his physical address and employment information but did not receive a response from him. See In re Joseph G., 94 Md. App. 343, 349 (1993) (“The trial court has discretion as to the credibility of witnesses.”). Ms. Davis first had interactions with Father in May or June 2019, and she made referrals for him to obtain a substance abuse assessment, a psychological assessment, a domestic violence assessment, and to attend parenting classes. The permanency plan for K.D.H. was changed to adoption in about March 2021. The evidence showed that Father failed to complete a substance abuse assessment until the spring of 2023, never completed the parenting classes initially offered to him, and did not obtain a certificate for completing the fathers’ group until the summer of 2023.
It was undisputed that Father never completed courtordered mental health or domestic violence assessments. Father’s complaint that there was no reliable evidence to justify DSS’s referral for a substance abuse assessment or a domestic violence assessment is not supported by the evidence. K.D.H. was born exposed to marijuana and her maternal grandmother reported that she did not want any interaction with Father because she was fearful of her life. Subsequent events also supported the referrals. Mr. Wilkins testified that at a visit with K.D.H. on January 9, 2020, Father was belligerent, grabbed K.D.H. aggressively from Mother’s arms, slurred his words, and appeared to be under the influence of either alcohol or a substance.
There is no dispute that DSS did not provide funding for Father’s referrals, but Father has not directed us to any requirement that it do so. For that reason, Father’s complaint that he either had to pay for certain services or take the time to apply for and purchase insurance on his own, is without merit. Similarly, Father’s assertion that the money paid to the foster parents could have been used to assist him to move into a larger apartment is without merit. DSS is “not obligated to find employment for the parent, to find and pay for permanent and suitable housing for the family, to bring the parent out of poverty, or to cure or ameliorate any disability that prevents the parent from being able to care for the child.” In re Rashawn H., 402 Md. at 500.
FL § 5-323(d)(1)(iii) – Fulfillment of Obligations Under Social Services Agreement
Pursuant to FL § 5-323(d)(1)(iii), the juvenile court considered the extent to which DSS and Father fulfilled their obligations
under a social services agreement, if any. The juvenile court found that DSS “fulfilled its obligations by offering a substance abuse assessment, psychological assessment, domestic violence assessment and parenting classes to father. The father failed or refused to avail himself of those services.”
The court’s finding was supported by the evidence. It is undisputed that Father never entered a social services agreement with DSS despite having been ordered to do so. In announcing its ruling from the bench, the court rejected Father’s claim that DSS did not follow up on referrals and found that “Father did not appropriately and timely avail himself of the referrals.” As the court noted in addressing FL § 5-323(d)(1)(ii), Father did not follow up on the referrals for a substance abuse assessment or complete the father’s group until after the petition for guardianship was filed. Moreover, as we have already noted, DSS was not required to find or pay for permanent and suitable housing for the family or provide Father with funds so that he would not have to secure insurance or pay for services on his own.
FL § 5-323(d)(2)(i)(1), (2), and (3) – Parent’s
Efforts to Adjust Circumstances
Under FL § 5-323(d)(2)(i)(1), (2), and (3), the juvenile court considered Father’s effort to adjust his circumstances, condition, or conduct to make it in K.D.H.’s best interest to be returned to his home and the extent to which Father maintained regular contact with K.D.H., DSS, and the foster parents. The juvenile court found that: father had bouts of employment that were not verified and were few and far between. He told DSS worker Omar Wilkins, that he was a clothing designer, and was self-employed. He said he was soon to be employed at Popeyes, a year after the hearing had started. He testified that he was working at Amazon and Door Dash as well as receiving compensation for playing video games. His employment was never verified, nor did he verify his income. The Court finds he was consistent with visiting until the pandemic hit, the Court accepts that. The Court finds that he initially attempted to maintain regular contact with the child, but trailed off again when they were remote.
The juvenile court’s findings were supported by the evidence. Father argues that DSS failed to conduct an assessment of his home to determine if it was proper for K.D.H. and never permitted an overnight visit with his child. Father testified that he lived in a one- bedroom apartment, that his son stayed with him every weekend, that usually he and his son “stay up all night together” and “don’t really go to sleep.” Father’s plan was for him, his girlfriend, and his son to stay up all night or fall asleep on a couch or air mattress while K.D.H. slept in the bedroom. Father was “waiting to find out” if K.D.H. would live with him before securing a two-bedroom apartment. As Father had not obtained the two- bedroom apartment where he intended for K.D.H. to live, his arguments about the home assessment and overnight visits are without merit.
FL § 5-323(d)(2)(ii) – Parent’s Contribution to Care and Support
The juvenile court considered Father’s contribution to
K.D.H.’s care and support, per FL § 5-323(d)(2)(ii), and found that Father “testified that he did not know he was supposed to financially contribute to the care and support” of his daughter, and therefore, made no contributions, although he testified to being “gainfully employed.” Father does not challenge those findings, but argues that DSS attempted to portray him as a “dead-beat dad” by insinuating that he should have been paying child support. He does not direct our attention to any particular portion of the record to support his contention. Nevertheless, the juvenile court was required to consider Father’s contribution to the care and support of his child. Our role is to determine if the findings of the juvenile court were supported by the evidence. We find that they were. It is undisputed that Father did not make any contribution despite being employed. Accordingly, we find that the court’s findings were supported by the evidence.
FL § 5-323(d)(2)(iii) – Parental Disability
Under FL § 5-323(d)(2)(iii), the juvenile court found that Father did not have a disability that would make him “consistently unable to care for” K.D.H.’s “immediate and ongoing physical or psychological needs for long periods of time.” Father does not challenge that finding. As there was no evidence that Father had a disability, we find no error with the court’s determination.
FL § 5-323(d)(2)(iv) – Additional Services
In considering whether additional services would be likely to bring about a lasting parental adjustment so that K.D.H. could be returned to Father within an ascertainable time not to exceed eighteen months from the date of placement, as required by FL § 5- 323(d)(2)(iv), the juvenile court found that “additional services would not be necessary, rather it’s father’s participation in services that would have been advantageous.” In its oral ruling, the court stated that Father’s “participation in the services would have been advantageous to both himself and the child.”
Father argues that “he was not afforded the opportunity to have the court judge his mental and physical ability to parent his child as he was denied access, denied adequate bonding time, denied make up time, expected to fulfill unreasonable requests by [DSS], all when it was not his actions or inaction that brought [K.D.H.] into care.” He maintains that his request to have his own visits with K.D.H., without the presence of Mother or the child’s maternal grandmother, was denied “by virtue of it never being presented as an option.” He also points out that if Mother failed to confirm a visit within 24 hours, the visit would be canceled without any consultation with him and with no make-up visits given. He claims there was no record by DSS of any inappropriate contact between him and K.D.H. and that he attended visits and did not cancel any visits. Father also asserts that he was not offered time with K.D.H. when the foster parents traveled out of town and K.D.H. stayed with the foster mother’s sister. We are not persuaded.
This factor focuses on additional services that would bring about a lasting adjustment by Father so that K.D.H. could be returned to his care in a time not to exceed eighteen months from the date of placement. The statute further provides that the eighteen- month time frame may be extended if “the juvenile court makes a specific finding that it is in the child’s best interests
to extend the time for a specified period.” FL § 5-323(d)(2)(iv).
The eighteen-month time period in the case at hand has long since passed and the juvenile court did not extend the time period. The record shows that K.D.H.’s placement occurred in February 2019, just days after her birth, and she has been in care ever since. At the time of Father’s testimony at the hearing on the petition for guardianship, he still had not completed all the services for which DSS made referrals. Nor had he verified his employment or income. Further, the record shows that he was inconsistent with visits when they were held remotely, and there was no evidence that all of his missed visits were the result of Mother failing to confirm them. Based on the record evidence, the court did not err in finding that no additional services would be likely to bring about a lasting parental adjustment or in recognizing that Father’s participation in services would have been advantageous to both him and K.D.H. with respect to bringing about a lasting parental adjustment, and K.D.H.’s return, within the eighteen-month period.
FL
§ 5-323(d)(3)(i)
– Abuse or Neglect of the Child
With respect to FL § 5-232(d)(3)(i), the juvenile court found no evidence that Father abused or neglected K.D.H. The evidence supports that finding and Father does not challenge it.
FL § 5-323(d)(3)(ii) –
Positive Toxicology Test
With respect to FL § 5-323(d)(3)(ii) 1.A, 1.B, and 2, which address positive toxicology tests relating to the child, the court found that there was no evidence presented, and there was no allegation or averment by the Department, that this section was applicable to the present case. Father does not challenge this finding. We note that in its March 2019 CINA order, the court found that K.D.H. tested positive for marijuana at birth. Father did not challenge the CINA court’s finding with regard to the test result. In any event, the record with respect to the petition for guardianship makes clear that the issue of the child’s positive toxicology for marijuana was not a factor in the juvenile court’s decision with respect to the termination of Father’s parental rights.
FL § 5-323(d)(3)(iii) – Chronic Abuse, Neglect, Sexual Abuse, Torture
Under FL § 5-323(d)(3)(iii), which addresses chronic abuse, chronic and life- threatening neglect, sexual abuse, and torture, the court found that “there was no evidence presented and there was no allegation or averment by the Department that this section was applicable to the present case.” Father does not challenge that finding and the evidence supports the court’s finding.
FL §
5-323(d)(3)(iv)
– Convictions of Crime of Violence
FL § 5-323(d)(3)(iv) addresses whether a parent has been convicted of a crime of violence against a minor offspring of the parent, the child, or another parent of the child, or aiding or abetting, conspiring, or soliciting to commit such crimes. The court found that there was no evidence and no allegation or averment by DSS that this section was applicable to the present case. Father does not challenge that finding and the evidence supports the court’s determination.
FL § 5-323(d)(3)(v)
– Involuntary Loss of Parental Rights of Sibling
Pursuant to FL § 5-323(d)(3)(v), the court was required to consider whether the parent had involuntarily lost parental rights to a sibling of K.D.H. The court found, and the evidence showed, that no evidence had been presented and there was no allegation or averment by DSS that this section was applicable to the present case. Father does not challenge that finding.
FL § 5-323(d)(4)(i) – Child’s Emotional Ties
Under FL § 5-323(d)(4)(i), which addresses “the child’s emotional ties with and feelings toward the child’s parents, the child’s siblings, and others who may affect the child’s best interests significantly[,]” the court found “that when the workers observed the father with the child, they reported that he appeared to be very loving and appropriate with the child, but visits would often take a turn when he would argue with the mother or the worker in front of the child and this is inappropriate.” Father argues that there was no evidence to describe the alleged “aggressive behaviors” by him that occurred when visits with K.D.H. were changed from two hours to one hour. We disagree. The court did not use the phrase “aggressive behaviors” in its findings, but Mr. Wilkins testified that his first in-person involvement with Father involved “aggressive behaviors” which he described as Father “being very belligerent” and using “inappropriate language towards the staff[.]” As noted previously, Mr. Wilkins gave examples of the inappropriate language used by Father including the statement, “I will f[***] everybody up in here[.]” Mr. Wilkins observed Father and Mother arguing and testified that the arguments “took away from them being engaged with” K.D.H. He also stated that after the visits were held virtually, Father used threatening language towards him. This evidence supported the court’s conclusion that Father inappropriately argued with Mother or DSS workers in the child’s presence.
FL
§ 5-323(d)(4)(ii)
– Child’s Adjustments
FL § 5-323(d)(4)(ii) 1, 2, 3, and 4, requires the court to consider the child’s adjustment to community, home, placement and school. As to those factors, the court found as follows: The Court finds that the child had significant ties with the foster parents. The child was in the home of Mr. and Mrs. [B.] since she was six days old. She considers them to be her mother and father and the children are her siblings. The extended family are her relatives. The bond is strong and irreparable and the termination of that bond would likely be traumatic to the child.
In its ruling from the bench, the court found that the bond between K.D.H. and her foster family, was strong and “irreparable at this point,” which the court described as “something that cannot be severed.” There was no dispute that K.D.H. had been in the care of the Bs since she was only a few days old. In addition to finding that it would be “traumatizing” for K.D.H. to be removed from the home of her foster parents, the court also found that termination of Father’s parental rights would not be traumatic for the child. Father acknowledged K.D.H.’s attachment to her foster family and testified that if she
was reunified with him, he was willing to maintain a relationship between the child and the B. family. We find no error in the juvenile court’s finding on this factor.
FL § 5-323(d)(4)(iii) – Child’s Feelings About Severance of Relationship
The court made a similar finding with respect to FL § 5-323(d)(4)(iii), the child’s feelings about the severance of the parent-child relationship, when it determined:
The Court does not feel that at this time it would be traumatic to the child for the parent-child relationship to be severed. The Court finds that in the reverse, it would be traumatizing if she was removed from the home of her foster parents, Mr. and Mrs. [B.].
For the reasons expressed above with respect to FL § 5-323(d) (4)(ii), we find no error in the juvenile court’s findings with regard to this factor.
FL § 5-323(d)(4)(iv) – Impact on Child’s Well-Being
The juvenile court again referenced K.D.H.’s bond with her foster parents when considering FL § 5-323(d)(4)(iv), which requires consideration of “the likely impact of terminating parental rights” on K.D.H.’s well-being. The court found:
The Court notes that [K.D.H.] has a strong bond with Mr. and Mrs. [B.] and their immediate and extended family. This is a bond that cannot be severed. A termination of parental rights would not impact the child’s wellbeing. To the contrary, the child would be adversely impacted if the bond between her and Mr. and Mrs. [B.] is severed.
For the reasons expressed above with respect to FL § 5-323(d)(4)(ii) and (iii), we find no error in the juvenile court’s findings with regard to this factor.
Exceptional Circumstances
After consideration of the required factors, the juvenile court determined that it was in K.D.H.’s best interest that the petition for guardianship with the right to consent to adoption be granted. The court determined, by clear and convincing evidence, that it was in K.D.H.’s best interest that the parental rights of Father be terminated based on extraordinary circumstances. The court specifically stated that it did not find that Father was unfit.
As we have already stated, “[a]n exceptional circumstances analysis must turn on whether the presence – or absence – of particular facts and circumstances makes continuation of the parental relationship detrimental to the child’s best interests.”
In re H.W., 460 Md. at 231. Here, the court clearly considered that K.D.H. had been in the home of her foster family for more than four years and that it was the only home the child had ever known. The court determined that the extraordinary circumstances in this case included “specifically the bond with the [Bs] since the child was six days old, her adjustment to their home, the community, their family, their extended family, and her school[.]” In its written order, the court stated that “the bond the child has with [her foster parents], their family, her school, and her community is irreparable, and a termination of that bond would be traumatic.”
Against this backdrop, we hold that the court did not err in terminating Father’s parental rights based on exceptional circumstances. The court methodically and comprehensively analyzed the requisite statutory factors, made findings based on those factors that were not clearly erroneous, and applied the correct legal standard in reaching its ultimate conclusions. The court’s findings provided ample evidence from which it could conclude that terminating Father’s parental rights was in K.D.H.’s best interest.
JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY, SITTING AS A JUVENILE COURT, AFFIRMED; COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 K.D.H.’s mother, D.D., did not object to the petition for guardianship and was deemed to have consented to the termination of her parental rights. She is not a party to this appeal.
2 Although the specific subsection defining “shelter care” has changed over time, in 2019 it was defined, as it is now, as “a temporary placement of a child outside of the home at any time before disposition” as a child in need of assistance. Md. Code, § 3-801(bb) of the Courts and Judicial Proceedings Article (“CJP”).
3 A child in need of assistance is one who requires court intervention because the child has been abused or neglected, or has a developmental disability or
mental disorder, and the child’s parents, guardian, or custodian cannot or will not give proper care and attention to the child’s needs. CJP § 3-801(f) and (g).
4 A separate CINA proceeding was filed with regard to Mother, who was a minor, but that case was closed on May 1, 2019.
5 While DSS was presenting its case, Mother interrupted and said that she was focused on raising her second child, that she would no longer cooperate with DSS, and that DSS could keep K.D.H. “because you all aren’t going to give her back anyway.”
6 CJP § 3-809 provides, in part, that “[o]n receipt of a complaint from a person or agency having knowledge of facts which may cause a child to be subject to the
jurisdiction of the court under this subtitle, the local department shall file a petition under this subtitle if it concludes that the court has jurisdiction over the matter and that the filing of a petition is in the best interests of the child.” It is part of subtitle 8 of the Maryland Code which addresses CINA proceedings.
7 Section 5-323(d) of the Family Law Article provides, in relevant part, as follows:
(d) Except as provided in subsection (c) of this section, in ruling on a petition for guardianship of a child, a juvenile court shall give primary consideration to the health and safety of the child and consideration to all other factors needed to determine whether terminating a parent’s rights is in the child’s best interests, including:
(1)(i) all services offered to the parent before the child’s placement, whether offered by a local department, another agency, or a professional;
(ii) the extent, nature, and timeliness of services offered by a local department to facilitate reunion of the child and parent; and
(iii) the extent to which a local department and parent have fulfilled their obligations under a social services agreement, if any;
(2) the results of the parent’s effort to adjust the parent’s circumstances, condition, or conduct to make it in the child’s best interests for the child to be returned to the parent’s home, including:
(i) the extent to which the parent has maintained regular contact with:
1. the child
2. the local department to which the child is committed; and
3. if feasible, the child’s caregiver;
(ii) the parent’s contribution to a reasonable part of the child’s care and support, if the parent is financially able to do so;
(iii) the existence of a parental disability that makes the parent consistently unable to care for the child’s
immediate and ongoing physical or psychological needs for long periods of time; and
(iv) whether additional services would be likely to bring about a lasting parental adjustment so that the child could be returned to the parent within an ascertainable time not to exceed 18 months from the date of placementunless the juvenile court makes a specific finding that it is in the child’s best interests to extend the time for a specified period;
(3) whether:
(i) the parent has abused or neglected the child or a minor and the seriousness of the abuse or neglect;
(ii) 1.A. on admission to a hospital for the child’s delivery, the mother tested positive for a drug as evidenced by a positive toxicology test; or
B. upon the birth of the child, the child tested positive for a drug as evidenced by a positive toxicology test; and
2. the mother refused the level of drug treatment recommended by a qualified addictions specialist, as defined in § 5-1201 of this title, or by a physician or psychologist, as defined in the Health Occupations Article;
* * *
(4)(i) the child’s emotional ties with and feelings toward the child’s parents, the child’s siblings, and others who may affect the child’s best interests significantly;
(ii) the child’s adjustment to:
1. community;
2. home;
3. placement; and 4. school;
(iii) the child’s feelings about severance of the parent-child relationship; and
(iv) the likely impact of terminating parental rights on the child’s well- being.
Wilbur E. Brown Jr. v. Andrea B. Williams-Brown (Unrep.)
Parental
Joseph G. Ferko III v. Patricia M. Ferko (Unrep.)
Visitation; denial; make-up Robert Guyette II v. Erin Guyette (Unrep.)
