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Hope Keller
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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.
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3 Child Advocacy: Background checks for kinship caregivers
Legislation which expanded Maryland’s Kinship Care Program went into effect in October 2024. Among its provisions is a requirement that kinship caregivers are required to initiate a background check prior to or at the time of placement; however, there are times when the background check is not completed until after the child is placed.
4 Cover story: The importance of well-drafted settlement agreement
Maryland family law attorneys have had a range of reactions to last month’s ruling by the state’s high court that the Federal Employees’ Retirement System Act of 1986 does not preempt state law concerning the enforceability of a court-approved divorce property settlement agreement.
6 In the News: Md. high court lays out 2-step test for equitable adoption
The Maryland Supreme Court has ruled that a claimant seeking to establish equitable adoption for purposes of claiming a share of an inheritance must demonstrate proof of both the decedent’s intent to adopt the claimant and that the decedent acted in accordance with that intent.
7 Morgan E. Foster: Rethinking divorce through the ‘wellness’ lens
As practitioners, our most important job is to ask the right questions, and to encourage clients to think about the “cost” or risk-analysis not simply in terms of dollars and cents, but more holistically – how is this impacting my life, my health, my relationships, my career, my parenting? How is the divorce case affecting my children?
8 Monthly Memo
A Kern County baker violated California law when she refused to sell a cake to a lesbian couple for their wedding, a state appeals court ruled this week in a suit brought by the state’s Civil Rights Department. ... A judge in West Virginia has ordered the new chief of a state agency and several of his subordinates to be assigned as Child Protective Services workers to alleviate a critical staffing shortage. … The European Court of Human Rights sided with a French woman who had stopped having sex with her husband, saying she should not have been considered at fault on those grounds in their divorce. … Vermont’s child welfare agency relied on baseless allegations about a pregnant woman’s mental health to secretly investigate her and win custody of her daughter before the baby was born, according to a lawsuit that alleges the state routinely targets and tracks pregnant women deemed unsuitable for parenthood. … President Donald Trump has signed an executive order to study how to expand access to in vitro fertilization and make it more affordable. The signing follows up on a campaign pledge that was at odds with some members of his Republican Party. 9
Background checks for kinship caregivers
When a child who is alleged to be abused or neglected is removed from a parent’s care to the care and custody of the State, (a local department of social services – “department”), the State must provide appropriate protection for that child. FL §5-502(b) (1).
As part of that protection, if the department places the child in a licensed foster care home, that caregiver and anyone over the age of 18 in the home must have had a background check to qualify for a license, prior to any placement of a child. FL §5-551(a)(8) and (b)(5)(iv).
A background check includes reports of child abuse and neglect as well as any state and federal criminal convictions. FL §5-555.
Legislation which expanded Maryland’s Kinship Care Program went into effect in October 2024.
Under the expansion, the program identifies a preference for a child to be placed with an individual who is a “kinship caregiver” and instructs the department to approve as such if “(i) the individual is related to the child through blood or marriage, adoption, tribal law or custom, or cultural custom or practice; (ii) the individual has a strong familial or other significant bond to the child or the child’s family or is a person identified by the child’s parent; and (iii) placement with the individual is in the child’s best interest.” FL §5-534 (e)(1).
Kinship caregivers are required to initiate a background check prior to or at the time of placement; however, there are times when the background check is not completed until after the child is placed. FL §5-551(b)(4) and (5); COMAR 07.02.09.03.
Even if child is placed before a background check has been
JOAN F.
LITTLE
Child Advocacy
completed, the department still has the obligation to review the results of the background check. COMAR 07.02.09.03(A).
The department cannot approve a home for placement of a child where an individual in the home has certain felony convictions, particularly those concerning abuse or neglect against a child, abuse against a spouse, or human trafficking. COMAR 07.02.09.03(B).
After placement of the child, if the background check of the kinship caregiver reveals the caregiver or any other adult living in the home has been convicted of one of the disqualifying felonies, the department must remove the child from the kinship caregiver’s home. 07.02.25.18(C).
Depending on the type of disqualifying felony, any further contact that the child might have with that relative, may be subject to a court’s findings of appropriate contact.
Although flexibility in the completion of background checks prior to placement with a kinship caregiver may be warranted where a child has a connection to that individual, a negative result risks further traumatizing the child.
For example, under the Kinship Care Program, an elementary aged girl is placed emergently with a distant relative and whom she does not know.
Due to the emergent nature of the child’s removal, the caregiver has not undergone a background check and is not yet a licensed caregiver.
Two months later, the Department discovers that the caregiver has a disqualifying felony conviction or a child protective services history,
posing a safety risk to the child. By the time that discovery is made, the child is attending school, has her own bedroom, and has begun to establish a routine in the home.
The department is required to remove the child from the home due to the disqualifying conviction, 07.02.25.18(C)(3) and (D)(3).
Such a removal can negatively impact the well-being of a child and cause significant trauma, making a child 46% more likely to experience increased placement instability (measured in one study as three or more changes in placements) while in foster care.
In addition to disruptions to a child’s routine, school, and environment, studies suggest a strong correlation between frequent placement changes and child behavioral problems and substance use.
Particularly for placements with kin or fictive kin, when background checks cannot be effectuated prior to placement, a child’s interests are best served when the department makes its best efforts to expedite background checks.
If a child must be removed from a kinship caregiver and placed in foster care, the department should provide significant services to support a child’s ability to process the change in placement, including referrals for therapy and assistance in re-establishing his or her education and routines in the new foster home, providing as much continuity as is safe.
Particularly for disrupted placements with kin or fictive kin, the department should augment its services to the child to minimize the trauma and maximize the child’s resilience.
Joan F. Little is a chief attorney at Maryland Legal Aid.
Family law attorneys say Md. Supreme Court ruling shows importance of well-drafted settlement agreements
By Hope Keller
Special to tHe Daily recorD
Maryland family law attorneys have had a range of reactions to last month’s ruling by the state’s high court that the Federal Employees’ Retirement System Act of 1986 does not preempt state law concerning the enforceability of a court-approved divorce property settlement agreement.
In a unanimous opinion written by Chief Justice Matthew N. Fader, the Maryland Supreme Court found that enforcement of a divorce property settlement agreement created by Bonnie Campbell, who died without having removed her former spouse Michael Campbell as the beneficiary of her account, does not interfere with any federal interests and can therefore be enforced.
“The Estate’s post-distribution breach of contract claim against Mr. Campbell to enforce the terms of the Agreement does not interfere with any identified federal interests, much less do major damage to clear and substantial federal interests,” Fader wrote. “Accordingly, there is no preemption.”
Rebecca Fleming, a partner at Turnbull, Nicholson & Sanders who practices family law, said the ruling highlighted the importance of having a well-drafted marital settlement agreement.
“I think that everyone who practices family law should read this opinion and if they don’t recognize the language that’s cited from this marital settlement agreement as similar language that they use in their own marital settlement agreements, then they might want to consider changing their form,” Fleming said.
Barton Moorstein, counsel for
“I think that everyone who practices family law should read this opinion,” says Rebecca Fleming, a partner at Turnbull, Nicholson & Sanders.
the estate of Bonnie Campbell, praised the high court’s ruling, noting the case is one that impacts all federal employees.
“At least in Maryland for family law practitioners, it is important to make sure that you address the issue of what happens if a person forgets to change their beneficiary designation in a property settlement agreement,” Moorstein said in a phone call. “It gives the security of knowing that under that kind of situation, the parties’ intent in the parties’ written contract would control.”
The case began when Bonnie Campbell’s estate discovered that Michael Campbell had received more than $700,000 from his former wife’s thrift savings plan re -
tirement account from her work as a federal employee, despite Michael Campbell having waived his rights to the account in a divorce property settlement agreement.
The estate subsequently sued Michael Campbell in Montgomery County Circuit Court for breach of contract, among other claims, ultimately granting summary judgment in favor of the estate.
The Maryland Appellate Court reversed, holding instead that the Federal Employees’ Retirement System Act preempted the estate’s breach of contract claim.
In the case’s final twist, the high court reversed the appellate court’s judgment, finding the estate’s breach of contract claim “neither directly violates nor stands as an
SUBMITTED PHOTO
obstacle to accomplishing any federal interest.”
The beneficiary-related provisions of FERSA, including §§ 8433(e)(1) and 8435(c)(2), reveal a congressional intent to honor the requirements of a qualifying divorce property settlement agreement over a participant’s designated beneficiary,” Fader wrote. “However, due to competing federal interests in administrative convenience and avoiding the possibility of double payments, § 8435(c)(2) obliges the government to honor the requirements of a qualifying divorce property settlement agreement only if it receives notice of such an agreement before making payment.”
Moorstein said that while Maryland’s highest court found the post-distribution lawsuit seeking recovery of a wrongfully distributed thrift savings plan to be enforceable, courts in other states have ruled the contrary.
“I think it raises an issue that needs to be dealt with by the Supreme Court because there is this uncertainty in other jurisdictions about what they will do with a same situation that might occur,” Moorstein said.
Michael Lentz, counsel for Michael Campbell, said he is disappointed in the high court’s ruling but declined to comment further.
Michael DeHaven, a family law practitioner in Towson, said the
“At least in Maryland for family law practitioners, it is important to make sure that you address the issue of what happens if a person forgets to change their beneficiary designation in a property settlement agreement,”
says attorney Barton Moorstein.
ruling “is a call to family law practitioners to make sure that you have more to (a marital settlement agreement) than just standard boilerplate language that allows these post-distribution cases to proceed.”
“[The ruling] reinforces the need to make sure that the settlement agreements, especially when
“How could you possibly expect to receive (thrift savings plan) proceeds when you specifically waived them in the settlement agreement?” asks family law practitioner Michael DeHaven.
we’re talking about these types of federal retirement plans, [ensure] that it’s specific to allow a potential post-distribution suit,” DeHaven said. “It really does become an equitable argument. How could you possibly expect to receive TSP proceeds when you specifically waived them in the settlement agreement?”
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In the News
Md. high court lays out 2-step test for equitable adoption
Daily recorD Staff
The Maryland Supreme Court has ruled that a claimant seeking to establish equitable adoption for purposes of claiming a share of an inheritance must demonstrate proof of both the decedent’s intent to adopt the claimant and that the decedent acted in accordance with that intent.
The ruling in In Re: The Estate of Michael Gerard Schappell, No. 15, Sept. Term, 2024 (filed Feb. 11, 2025), reverses a Maryland Appellate Court ruling. The unanimous opinion in the case was written by Justice Shirley M. Watts.
FACTS: Under Maryland law, if a person dies without a will, under a hierarchy of succession set forth by statute, stepchildren do not share in the decedent’s estate if the decedent is survived by any biological relatives or formally adopted children. This, however, may not be the end of the inquiry. When an individual dies without a will, a person may claim an inheritance right to the decedent’s estate based on the theory that the decedent equitably, though not legally, adopted the person. This has sometimes been called a claim of “adoption by estoppel,” “virtual adoption,” “de facto adoption” or a claim under the doctrine of equitable adoption.
In this case, this court must determine the requirements for establishing equitable adoption where a decedent died intestate and an adult stepchild who was not legally adopted claimed a sole inheritance right under the doctrine.
LAW: Case law suggests three non-exclusive methods for establishing equitable adoption. The first method is contract based and involves an inquiry
into whether the decedent and claimant entered into a contract for which there should be specific performance. The second method relies on principles of equitable estoppel and concerns, in part, whether a claimant has relied on a relationship with the decedent. The third method is intent based and looks to whether a decedent had the intent to adopt.
This court concludes that a claimant seeking to establish equitable adoption must demonstrate a decedent’s intent to adopt under a two-step test, which requires proof of both the decedent’s intent to adopt the claimant and that the decedent acted in accordance with the intent. Where a decedent dies intestate, leaving no surviving spouse or registered domestic partner, biological or legally adopted children, parents, siblings or grandparents, a person claiming equitable adoption must, first, by clear and convincing evidence, demonstrate proof of the decedent’s intent to adopt the person.
This may be established by proof of a “direct expression, on the decedent’s part, of an intent to adopt the claimant[,]” such as “an unperformed express agreement or promise to adopt.” The requisite intent may also be shown by “proof of other acts or statements directly showing that the decedent intended the [claimant] to be, or to be treated as, a legally adopted child, such as an invalid or unconsummated attempt to adopt[ or] the decedent’s statement of [an] intent to adopt the child[.]”
Second, a claimant must demonstrate by clear and convincing evidence that the decedent acted in accordance with the intent to adopt by manifesting
to the public or community at large that the claimant was considered to be the decedent’s natural or legally adopted child and treating the claimant as the decedent’s natural or legally adopted child.
The court does not conclude that a decedent representing to the claimant or to the public or community at large that the claimant was considered or treated as a natural or adoptive child is sufficient alone to demonstrate the decedent’s intent to adopt the claimant. This results from recognition that a decedent may have held out to a claimant or to the public or the community at large that a claimant was considered to be or treated as a natural or adoptive child but have had no intent either to adopt the claimant or for the claimant to inherit.
Judgment of the Appellate Court of Maryland reversed and remanded.
THE DAILY RECORD/FILE PHOTO The unanimous opinion in the equitable adoption ruling was written by Justice Shirley M. Watts.
Rethinking divorce through the ‘wellness’ lens
The “wellness” industry is worth $7 trillion dollars in 2025, is expected to grow to $9 trillion by 2028 and is one of the fastest growing industries in the world with a current growth rate of nearly 9% per year – outpacing GDP.
When we talk about the wellness industry we refer to businesses focused on promoting holistic health and well-being through activities, products and lifestyle choices – aimed at improving physical, mental and emotional health. Businesses and products focused on nutrition, exercise, stress-management, and mindfulness are no longer considered “woo-woo” or fringe –they’ve become mainstream.
So why should we, as family law professionals, care?
As humans in our society are increasingly committing to and investing in their own wellness, we – as advisers – must learn to speak the language of wellness. We have known for a long time that the impact of divorce and other family law issues reaches far beyond the law. Family law issues impact both work and home lives, the family’s financial circumstances, relationships within the family and with outside friends and members of the community.
We have also witnessed the profound impact family law conflict can have on the mental and physical health of those going through it.
Family law attorneys (and other advisers) are often asked to assist clients in evaluating risk: What are the potential downsides of proceeding to a trial, compared with accepting a near-term settlement? In evaluating the risk, we often look at best-case-scenario outcomes in court and potential worst-case outcomes.
We also look at the cost required
to get there. For example, “Client X, you may end up with $25,000 more if we go to court, but it will cost you $50,000 in attorneys’ fees and expert fees to get through a trial.” We help clients evaluate whether “the juice is worth the squeeze.”
But I submit that this analysis is incomplete if it only considers monetary costs. There are other costs, and this is where the wellness vocabulary can serve us.
Morgan E. Foster
If the ongoing stress of litigation is causing a decline in the client ‘s mental and physical health, no risk-analysis is complete without evaluating those “costs” as well. Stress can cause physical symptoms: loss of appetite, insomnia, fatigue, headaches, digestive problems, weakened immune response. Stress can also impact mental health by causing: heightened anxiety, depression, irritability and mood swings, forgetfulness, trouble concentrating, increased substance use, withdraw from social or community activities. These impacts are not limited to the litigants: Often children and other family members can experience some or all of these symptoms, particularly when they are stuck in a prolonged state of conflict with no “answers” or resolutions.
It is virtually impossible to attach a dollar amount to these costs, but
that’s not necessary in order to weigh the risk. As practitioners, our most important job is to ask the right questions, and to encourage clients to think about the “cost” or risk-analysis not simply in terms of dollars and cents, but more holistically – how is this impacting my life, my health, my relationships, my career, my parenting? How is the case affecting my children?
At the end of the day, the client will have to identify and weigh the holistic impact, and determine whether it’s “worth it” to hold their position and keep litigating, or whether they want to prioritize resolution through negotiation. We will have served our clients well by encouraging them to think about risk more holistically, through the lens of wellness.
Morgan E. Foster is a veteran family law practitioner and the founder of The Pivot Process. She can be reached at morgan@pivotprocess. com.
Monthly Memo
California court rules against baker in revival of same-sex wedding cake disputes
A Kern County baker violated California law when she refused to sell a cake to a lesbian couple for their wedding, a state appeals court ruled this week in a suit brought by the state’s Civil Rights Department.
If the scenario sounds familiar, that’s because it’s central to a series of cases that have for years been shaping the nation’s legal debate over free speech and anti-discrimination laws.
In 2018, the U.S. Supreme Court overturned a Colorado ruling that a baker had violated that state’s nondiscrimination law when he refused to bake a cake for a same-sex couple’s wedding. The ruling was based on the court’s finding that the Colorado civil rights commission handling the case had been prejudiced against the baker’s religious beliefs.
The California decision, by the state Court of Appeals’ 5th Appellate District, draws boundaries on what counts under a business owner’s right to free expression.
Associated Press
W. Va. officials ordered to serve as child case workers
A judge in West Virginia has ordered the new chief of a state agency and several of his subordinates to be assigned as Child Protective Services workers to alleviate a critical staffing shortage.
In an unusual step, Circuit Judge Timothy Sweeney ordered the officials to appear at a hearing in his courtroom in the Ritchie County community of Harrisville to receive case assignments or risk being held in contempt.
The order named Alex J. Mayer, whose appointment as secretary of the state Department of Human Services was announced Monday, the same day Sweeney made his ruling. There were also four others including the department’s general counsel, Chanin Krivonyak.
The five were appointed as case workers within Child Protective Services and other positions to address staff shortages in a five-country district.
Child welfare workforce problems
have plagued the state for years. Currently there is a 17% vacancy rate for CPS workers, or 82 open positions, according to the department.
Associated Press
Top European court: Woman’s refusal to have sex not a fault in divorce case
The European Court of Human Rights sided with a French woman who had stopped having sex with her husband, saying she should not have been considered at fault on those grounds in their divorce.
The ruling concerned a fault-based case in which the blame was attributed solely to the applicant. Back in 2019, a French court of appeal ruled that her refusal to have sex was a breach of a marital duty and granted the couple a divorce to her detriment.
But the ECHR ruled that the French court was wrong, condemning France for a violation of the woman’s right to respect for private and family life.
“The Court considered that the reaffirmation of the principle of marital duties and the fact that the divorce had been granted on the grounds that the applicant had ceased all sexual relations with her husband amounted to interferences with her right to respect for private life, her sexual freedom and her right to bodily autonomy,” the court said in a news release.
Associated Press
Lawsuit: Vt. tracks pregnant women deemed unsuitable for parenthood
Vermont’s child welfare agency relied on baseless allegations about a pregnant woman’s mental health to secretly investigate her and win custody of her daughter before the baby was born, according to a lawsuit that alleges the state routinely targets and tracks pregnant women deemed unsuitable for parenthood.
The ACLU of Vermont and Pregnancy Justice, a national advocacy group, sued the Vermont Department for Children and Families, a counseling center and the hospital where the woman gave birth in February 2022. The lawsuit seeks both an end to what it calls an illegal surveillance program and unspecified monetary damages for the woman, who is identified only by her initials, A.V.
According to the complaint, the director of a homeless shelter where A.V. briefly stayed in January 2022 told the child welfare agency that she appeared to have untreated paranoia, dissociative behaviors and PTSD. The state opened an investigation and later spoke to the woman’s counselor, midwife and a hospital social worker, despite having no jurisdiction over fetuses and all without her knowledge.
At one point, the state sought a court order forcing the woman to undergo a cesarean section, which was rendered moot because she agreed to the surgery. It took her seven months to win full custody of her daughter.
Associated Press
Trump signs order to study how to expand IVF
President Donald Trump has signed an executive order to study how to expand access to in vitro fertilization and make it more affordable. The signing follows up on a campaign pledge that was at odds with some members of his Republican Party.
The order instructed the assistant to the president for domestic policy to give Trump a list of policy recommendations on protecting IVF access and “aggressively reducing out-of-pocket and health plan costs for IVF treatment” within 90 days.
IVF became a talking point during the 2024 presidential campaign when Alabama agreed to protect in vitro fertilization providers from legal liability a couple of weeks after the state Supreme Court ruled that frozen embryos can be considered children under state law.
Trump said at the time he strongly supported its availability. And a June poll from The Associated Press-NORC Center for Public Affairs Research found that about 6 in 10 U.S. adults support protecting access to IVF, with 26% neutral and about 1 in 10 opposed.
In 2018, assisted reproductive technology, including IVF, contributed to 2% of all infants born in the United States, according to a report by the U.S. Centers for Disease Control and Prevention.
Associated Press
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 affirmed the Anne Arundel County Circuit Court’s award of equal physical custody and joint legal custody of the minor child, its refusal to award child support and its order that wife pay a portion of husband’s attorney’s fees.
REPORT AND RECOMMENDATION; EXCEPTIONS; FINAL JUDGMENT
The Appellate Court dismissed the appeal from the Prince George’s County Circuit Court’s order. The order was not a final judgment, as it merely overruled father’s exceptions to the magistrate’s recommendations.
The Appellate Court affirmed the Montgomery County Circuit Court’s discovery sanctions orders that limited certain issues and prevented husband from presenting evidence at trial of the divorce case, its refusal to grant husband a second continuance and its order awarding wife her attorney’s fees.
REPORT AND RECOMMENDATION; EXCEPTIONS; FINAL JUDGMENT
In Re: A.F., Ab.F., H.B. & W.F.
Nos. 171 & 213, September Term 2024
Argued before: Leahy, Friedman, Beachley, JJ.
Opinion by: Leahy, J.
Filed: Dec. 19, 2024
The Appellate Court affirmed the St. Mary’s County Circuit Court’s termination of parental rights. Although both parents claimed that the St. Mary’s County Department of Social Services failed to demonstrate that its efforts to provide reunification services were reasonable, the record showed otherwise. And there was no clear error in the circuit court’s findings, and no abuse of discretion in the ultimate decision, that it was in the children’s best interests to grant the Department’s petition for guardianship and terminate mother’s and father’s parental rights.
CUSTODY AND ACCESS; MODIFICATION; DUE PROCESS
Delshawn Harris v. Breana Nicholson
No. 556, September Term 2024
Argued before: Berger, Reed, Shaw JJ.
Opinion by: Reed, J.
Filed: Dec. 18, 2024
The Appellate Court affirmed the Prince George’s County Circuit Court’s modification of custody and access. The circuit court did not violate father’s right to due process during the modification hearing. And his other challenges were untimely or not properly before this Court.
Family Law Digest
REPORT AND RECOMMENDATION; EXCEPTIONS; RECONSIDERATION
The Appellate Court affirmed the Baltimore County Circuit Court’s denial of father’s motion for reconsideration of an order striking his exceptions to a magistrate judge’s report and recommendation. Father did not assert that the circuit court committed an error in striking the deficient exceptions, nor did he claim that the clerk failed to send the deficiency notice in accordance with Rule 20203(d)(1).
The Appellate Court vacated the Baltimore County Circuit Court’s judgments of marital property and child support. The trial court failed to determine on the record the total value of all marital property before making a marital property award. And because the trial court relied on approximations to find potential income, without first finding voluntary impoverishment, the child support award must be vacated.
CUSTODY; CHILD SUPPORT; ATTORNEY’S FEES
Jennifer Meeks v. Colin Meeks
No. 654, September Term 2024
Argued before: Graeff, Nazarian, Shaw, JJ.
Opinion by: Graeff, J. Filed: Dec. 10, 2024
The Appellate Court vacated the Baltimore County Circuit Court’s denial of mother’s request for attorneys’ fees. The circuit court appeared to deny the request for attorney’s fees based solely on its finding that both parties had “substantial justification” for the proceeding, but there was not sufficient evidence, argument or analysis on the financial status and needs of the parties.
The Appellate Court reversed the Caroline County Circuit Court’s order purporting to modify the terms of a prior order that was already on appeal. Father’s earlier appeal directly challenged the award of attorney’s fees as a “sanction” for civil contempt. Once father had initiated that appellate challenge, the circuit court was prohibited from exercising its power to premise the award of fees on another ground and thus evade this Court’s ability to review its decision.
APPEALS; PERMANENCY PLAN; VISITATION STRUCTURE
In Re: I.Q.
Nos. 2039, September Term 2023; 0741, September Term 2024
Argued before: Nazarian, Friedman, Zic, JJ.
Opinion by: Nazarian, J Filed: Dec. 4, 2024
A divided Appellate Court held that Maryland Code § 12-303(3)(x) of the Courts & Judicial Proceedings Article allows appeals from orders changing a permanency plan or visitation structure, even if that change is not detrimental to the parent.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Anne Arundel County Circuit Court’s award of equal physical custody and joint legal custody of the minor child, its refusal to award child support and its order that wife pay a portion of husband’s attorney’s fees.
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..
with his family in Orlando, Florida and Wife with her family in Gulfport, Mississippi. After graduating from high school, both parties attended college in Atlanta—Husband at Morehouse College and Wife at Spelman College. After graduating from college, Husband, who had been in the ROTC, joined the United States Navy and was stationed in San Diego, California. Wife accompanied Husband to San Diego and on May 31, 2018, they married in a civil ceremony in that city.
After three years in San Diego, the Navy sent Husband to Norfolk, Virginia, and Wife accompanied him there. While in Norfolk—which was close to where his mother and other relatives lived—Husband was deployed for 200 days. At the start of that deployment, the couple learned that Wife was pregnant. Wife’s mother moved to Norfolk to be close to Wife during her pregnancy. The parties’ daughter was born on September 23, 2020 (the “Child”).
By order entered on December 14, 2023, the Circuit Court for Anne Arundel County granted Johnathon Hollis (“Husband”), appellee, an absolute divorce from Bryanni Hollis (“Wife”), appellant. The court awarded the parties equal physical custody and joint legal custody of their minor child. The court did not award child support to either party. The court ordered Wife to pay Husband $6,647.50 in attorney’s fees. Wife timely appeals.
As we understand it, Wife is asking this Court to consider the following:
1. Whether the circuit court erred in its physical and legal custody awards by failing to properly consider her allegations of domestic abuse.
2. Whether the circuit court erred in awarding the parties joint legal custody.
3. Whether the circuit court failed to consider the proper factors when awarding the parties shared physical custody.
4. Whether the circuit court erred in failing to award her child support.
5. Whether the circuit court erred in failing to grant her a monetary award.
6. Whether the circuit court erred in ordering Wife to pay a portion of Husband’s attorney’s fees.1
For the reasons to be discussed, we shall affirm the judgments.
BACKGROUND
Husband and Wife’s relationship began when they were 17 years old, dating long- distance as Husband was then living
Shortly after Child’s birth, Wife’s Mother died.2 Wife, with Husband’s encouragement, took Child to the home of Wife’s Father and stepmother in Pennsylvania during her bereavement. Wife and Child spent about six months with Wife’s father, with Husband traveling there on those weekends he was not on duty.
In 2021, after completing his tour of duty in Norfolk, the Navy sent Husband to Annapolis for a position at the Naval Academy—a tour of duty expected to last until July 2024. Husband and Wife purchased a home in Edgewater, Maryland and moved into the house in July of 2021. Child was then about nine or ten months old.
Shortly after Child’s first birthday in September 2021, Husband informed Wife that he would like them to “split up.” Wife did not want to divorce, and Husband agreed to marriage counseling. Counseling, however, did not change Husband’s desire to end the marriage.
In late May of 2022, Wife, with Husband’s consent, booked roundtrip flights for herself and Child for a two-week visit with her family in Mississippi. While in Mississippi, Wife was in a serious car accident, which prompted Husband to travel there to see her. During that visit, Husband reiterated his desire to divorce. The topic arose when they were in Husband’s rental car when Husband had a panic attack.
By mid-June 2022, Wife was still in Mississippi, but she repeatedly informed Husband that she intended to return to Maryland. At this time, she was still opposed to ending the marriage. By the end of June, Wife informed Husband that she was not ready to return to Maryland, as her “nerves are way too bad” and she could not face his rejection of her. In a text message exchange on June 30th, Wife advised Husband that she would return to Maryland “around late August or early September” and
suggested that he move out of the marital home given that he was the one seeking a divorce. Wife, however, did not return to Maryland and, as of the merits hearing in this case (November 2 -3, 2023) Wife continued to reside with her grandmother in Mississippi.
Legal Proceedings
On July 19, 2022, Husband filed a complaint for divorce, custody, and other relief.
On September 8, 2022, Wife filed a counter-complaint for divorce, custody, and other relief. In her counter-complaint, Wife asserted that she is a resident of Anne Arundel County, and that Maryland is her domicile.
A pendente lite hearing on custody, visitation, and child support was held before a magistrate on December 2, 2022.3 In its Report and Recommendation, the magistrate related that Wife testified at the hearing that she intends to remain in Mississippi for the foreseeable future. The magistrate also found that, except for a several-day Thanksgiving visit, Husband had had no in-person access to Child since June of 2022. Although Husband initially had frequent FaceTime access with Child, he had reduced that in recent months because “he indicated that it was just ‘too emotionally difficult’ to have that kind of access” with Child. Husband had not traveled to see Child in Mississippi (even though he had traveled for work and pleasure) because he claimed that Wife was always planning to return to Maryland. The magistrate also related that Wife testified to an alleged physical altercation with Husband in June 2022, which Husband denied.4
The magistrate recommended that the parties, pendente lite, be awarded joint legal custody. The magistrate found that, despite Wife’s assertions that Husband engages in hostile communication with her, gets belligerent, and hangs up on her, the parties nonetheless had the “capacity to communicate[.]”
As for physical custody, the magistrate did not recommend a shared or equal arrangement. Among other things, the magistrate noted that, given the physical distance between the parties’ residences, a shared physical custody arrangement involves substantial transportation costs. The magistrate also found that Child should have a primary residence “to promote stability” and that Husband’s “lack of effort to exercise access with the child for the past several months” did not support his claim for shared physical custody at this time. On the other hand, although Wife had indicated she wanted Husband to have significant access to Child, the magistrate found that her “recent actions appear more geared to what is best for [her] and not for the child.” The magistrate concluded that it was in Child’s best interest to have her primary residence with Wife, especially given Child’s age and the significant amount of time Child had spent in Wife’s sole care.
As for Husband’s access to Child, pending the final decision on the merits, the magistrate recommended a rotating schedule whereby Child would spend two weeks with Husband in Maryland followed by six weeks with Wife in Mississippi. The magistrate also recommended that Husband pay Wife $1,390 monthly in child support.
Neither party noted exceptions to the magistrate’s Report
and Recommendation. By order filed on January 6, 2023, the circuit court ratified and affirmed the magistrate’s findings and adopted the magistrate’s recommendations on a pendente lite bases.
The merits hearing was held 11 months later, on November 2 and 3, 2023. About a week prior to the hearing, Husband filed an amended complaint for absolute divorce, custody, and other relief. In light of Wife’s failure to return to Maryland, Husband requested primary physical custody and sole legal custody of Child and child support.
At the merits hearing, Husband testified about the panic attack he experienced in June 2022 when with Wife in Mississippi following her car accident. He related that the panic attack was precipitated by Wife’s comment that she had not actually wanted him to come to Mississippi at that time. Husband testified that, after the panic attack, he drove Wife to her grandmother’s home and he went to a hotel and left town the next day.
Husband also related that, during the pendente lite hearing Wife asserted, for the first time ever, that during this panic attack incident Husband had choked her, slammed her head against the car and threatened to kill her. At the merits hearing, Husband denied those allegations. Husband also entered into evidence text messages Wife had sent him hours after that incident. The text messages read:
Johnathon I love you. And I feel like shit about everything that’s going on. It kills me that I’ve hurt you so much that being married to me gave you an anxiety attack. If you want to sell our house I won’t stand in the way. I don’t want to keep disappointing you. Please let me know when you make it home.
I am truly grateful for all that you’ve done for me and our family.
I know that you’re done with us but I hope you know how much I love you. And I will never stop. I’ve loved you for 11 years and you gave me my only reason for living. I [sic] kills me where we are right now and I wish I never put you in this predicament. I truly truly do. You’re my heart and soul. I can’t sleep without letting you know how much you mean to me and how I love you. So please please please have safe travels tomorrow. I love you so much. Goodbye.
In a text message Wife sent on June 18th (about two weeks after the panic attack incident), Wife again expressed her love for Husband and asked whether he was sure he did not “want to take a trip together me and you to see if you’re really ready to let us go[.]”
Wife also testified at the merits hearing about the panic attack incident. She related that she and Husband had gone out to dinner because “he was upset surrounding the circumstances of him coming down . . . [a]nd he wanted to talk” about that. When Wife asked if they could “table” the discussion for another time, Husband became angry and accused Wife of not understanding him. They then left the restaurant and sat in Husband’s rental car where he continued to say that he did not feel that Wife understood him or really liked him. According to Wife, Husband started screaming and saying he hated her and then began hyperventilating. Recognizing that Husband was having a panic attack, Wife claimed that she helped him calm down. Husband then drove off and began talking about a divorce. When Wife
indicated she wanted the marital home, Husband said Wife would have to pay him back for the mortgage payments he had made. When Wife said no, she claimed Husband lunged at her with his right hand and grabbed and squeezed her throat. Husband eventually turned into a parking lot, put the car in park, and according to Wife, husband started banging her head repeatedly against the passenger car window. Wife claimed that she screamed and begged him to stop. He then drove her to her grandmother’s house.
When asked about the text messages she sent Husband a few hours later, Wife testified that she was “very confused[]” and could not “bear losing another person that [she] loved so much like that.” She noted that she was still grieving the loss of her mother, and she “just couldn’t believe . . . he would actually do that” to her. After returning home, she did immediately call Husband’s mother and spoke to her for 45 minutes. When asked why she did not report the incident to the police or immediately seek a protective order, Wife explained that she “felt like” Husband had made “a mistake.” She was reluctant to “go the legal route” and “put a stain [on] his reputation” and she knew that once she reported it to the police, she had to also report it to the military. Wife related that she did not want Husband to lose his job. Ultimately, however, Wife could no longer stand Husband’s nastiness towards her—his calling her names when she would not agree to “exactly what he wanted”—that she got her aunt involved.
After the issuance of the pendente lite order in December 2022, the parties were obliged to follow the child access order called for therein, that is, a rotation of six weeks with Wife then two weeks with Husband. Husband claimed, however, that Wife told him she wanted him to be off work for the two weeks Child was in his custody. That was not possible and Husband, as he had testified at the pendente lite hearing, enlisted his mother and other family members to care for Child when he was working.
Exchange dates also became difficult. Husband planned to travel to Mississippi over President’s Day weekend (February 2023), but a couple days before he was scheduled to depart he learned that an arrest warrant had been issued for him based on the June incident. He further learned that Wife had filed criminal charges in Mississippi alleging domestic abuse and first-degree assault, and she had sought a protective order in Mississippi as well. Wife testified that she sought the protective order because she felt like Husband “was getting more and more volatile every time [she] wanted to address something with him.”
Husband related that the criminal charges were ultimately “passed” to the “inactive” file and the charges have been expunged.5 The protective order was denied and, instead, according to Husband, “the court put a restraining order in place to not have us create a worse situation until” he “went to court” on the criminal charges.6 With respect to the restraining order, Husband testified that it was “dropped” on October 20, 2023 after he took a 12-hour anger management class and remained on “good behavior” through that date.
Wife had also filed a complaint with the Navy alleging domestic abuse based on the same incident. Husband claimed that the military denied Wife’s request for a “military protective order” because “it did not meet criteria.” Instead, according to
Husband, “the military put in a no contact order for the same reason that Mississippi put in a restraining order.”
As a result of the charges Wife filed in Mississippi, Husband’s two-week access to Child was delayed until March 2023. During that visit, Wife called the police four times requesting a welfare check. Wife explained that she had requested the welfare checks because Husband did not respond to her communications and she was worried about Child. Wife also testified that, during times when Child was in Husband’s care, her attempts to check on Child (who at times was in Husband’s family’s care) were ignored by Husband and Husband’s family. In fact, Husband’s mother and other relatives blocked Wife’s phone number, something the Child’s paternal grandmother acknowledged at the merits hearing. The grandmother explained that she blocked Wife’s phone number because she felt that Wife was “harassing” her. When Wife was on FaceTime with Child when Child was with grandmother, grandmother claimed that Wife would pepper Child with questions such as the whereabouts of Husband, who was with Husband, what Child ate, and the like.
Wife also hired a private investigator—spending over $12,000 for the services—to keep tabs on Child when in Husband’s care. Wife explained that she did so because Husband and his family were not responding to her calls, she did not know where Child was, and she wanted to make sure that Child was “safe” and “still alive.” Wife maintained that she “wouldn’t have had to hire a private investigator if the lines of communication were open.” As noted, at the time of the merits hearing Husband was assigned to a position at the Naval Academy and was residing in the marital home in Edgewater. Wife was living at her grandmother’s house in Mississippi and had no intention of moving, claiming that she had researched possibilities and concluded that she could not afford to live in Maryland. Wife works for a cybersecurity company as a proposal analyst, a fulltime remote position.
The Court’s Findings
On November 22, 2023, the court convened a hearing to announce its decision. After granting Husband’s request for a divorce, the court noted that neither party sought alimony and alimony would not be awarded. The court then turned to the factors set forth in Taylor v. Taylor, 306 Md. 290 (1986) and Montgomery County Dept. of Social Services v. Sanders, 38 Md. App. 406 (1978), which a court considers when determining the best interest of the child in custody disputes. We summarize the court’s findings as to each factor it addressed in oral decision.
Fitness of the parents. The court found that both parents are fit.
Character and reputation of the parties. The court found that both parties “are well educated, bright, appear to be successful in their respective careers[]” and that both are “of good character and reputation.”
The desire of the parents and any agreement between them. The court found that the parties were unable to reach an agreement on custody. It noted that Wife desired primary physical and sole legal custody of Child and Husband was seeking joint legal custody and “as much physical time” with Child as the court deemed appropriate.
Potentiality of maintaining natural family relations.
This factor gave the court pause. The court noted that Wife “removed” Child from Child’s home in Maryland and relocated to Mississippi, thereby “putting significant distance between [Child] and her father.” The move also created a significant distance between Child and Husband’s extended family members, noting that “both parties extended families have played a significant role in [Child’s] upbringing so far.”
Preference of the child. The court found that this factor was inapplicable given Child’s age (then three years old).
Any material opportunities affecting the future life of the child. The court did not find this to be a significant factor, as it concluded that both parents are able to provide Child with significant material opportunities.
The suitability of the parties’ residences and whether a non-custodial parent will have adequate opportunities for visitation. The court found that both parties have suitable residences, but noted, again, that Wife’s move to Mississippi “has frustrated” Husband’s “opportunity for access with and contact with” Child.
Length of time child has been separated from the natural parent who is seeking custody. The court found that neither parent had been separated from Child “at this point” but noted “that has not always been the case over the past year or so[.]”
Whether either party voluntarily abandoned or surrendered custody of the child.
The court found that neither party had done so.
The willingness of each parent to share custody. The court found that Husband is willing to share both legal and physical custody, but Wife “not so much.” Although Wife had indicated she desired sole legal custody, the court found that, when questioned, Wife “really did not establish at any point that the parties were not able to agree on any significant issues related to health care, education, or religion.” As for physical custody, the court found that, ultimately, Wife suggested that Husband have Child for one week per month and summers could be split between them. The court, however, had concerns about “additional travel time” that arrangement would entail.
The psychological and physical fitness of each parent. The court found that both parents appeared to be physically fit. The court had no concerns regarding Husband’s psychological fitness, but it did “have some concerns related to how [Wife] handled issues” involving Child’s contact with Husband. The court noted, “[f]irst and foremost,” Wife’s relocation to Mississippi “without any discussion or consent[,]” something the court found was “a self-serving decision[]” as it did not take into account Child’s “need to have a relationship with both parents.” Moreover, the court found that “just by moving that great of a distance, it has a negative impact on [Child’s] ability to have a . . . meaningful relationship with her father.”
The court chose not “to comment on the validity” of the “criminal allegations” Wife made against Husband, but it did “have a concern regarding how and when she reported the alleged assault and sought a protective order timing wise.” The court also had concerns about Wife calling the police to conduct welfare checks when Child was in Husband’s care. Of further concern to the court was “how she questions [Child] when she’s in the care of” Husband. The court also noted Wife’s hiring of a private investigator to make sure that Child “was alive and safe[
]” and concluded that there was “no need for that[]” as there was nothing to indicate that Husband or his family had “ever done anything remotely negative towards” Child. In sum, the court explained that the “overriding theme of all these concerns . . . is that they seem to be an effort to marginalize or negatively impact the relationship” between father and daughter.
The strength of the relationship between the child and each parent. The court found that Child “has a loving and healthy relationship with each of her parents.”
The potential disruption of shared physical custody upon the child’s social and school life. The court found that Child is not currently enrolled in school (but noted that both parents were doing a “tremendous job” in “stimulating her mind for purposes of learning.”) Moreover, the court found that most of Child’s social life revolves around the parents and their respective extended families and concluded that the extended family relationships were beneficial to Child.
Geographic proximity of the parents’ homes. The court found this to be a significant factor and “a big problem” in this case. The court noted that Wife’s father lives two-hours driving distance from Husband’s home in Edgewater and living with him (as she and Child had following the death of Wife’s mother) could have been an option for her. The court also acknowledged Wife’s testimony that she considered moving to Richmond, Virginia— a locale she claimed was affordable and was significantly closer to Edgewater than Mississippi—but Wife took no steps towards doing so.
Demands of parental employment. The court found that Wife works remotely from home and that she can “adjust her schedule to spend a good bit of time” with Child. Although Husband’s position was less flexible, the court found he “can work remotely at times.” The court, moreover, found that Husband’s relatives were “incredibly helpful” in assisting Husband when Child is in his care.
Sincerity or motivation of the parents’ requests. The court concluded that both parties were sincere in their requests for custody.
Financial status of the parties. The court found that both parents “make an adequate income” sufficient to care for Child.
The impact on state and federal assistance on custody determination. The court found this factor to be inapplicable, as neither the parents or Child receives any state or federal assistance.
The benefits of the parents. The court concluded that Child “having a lot of access to each parent is beneficial to them and to her.”
The court then spoke of the difficulties, on children and parents, when the parents reside in different states. The court, moreover, reminded the parties that its custody decision must be based on what is in Child’s best interest “at this point in time.” The court expressed that it had “no doubt whatsoever that both parents dearly love their daughter and that she loves them each.” The court also found that both parties are “very good parents” to Child. Despite the difficulties they experienced leading up to trial, the court concluded that Husband and Wife “are capable of effectively communicating with one another.”
The Court’s Decision
The court concluded that it is in Child’s best interest that she has “equal time with each parent.” The court acknowledged that this “won’t be a viable option when she is enrolled in school full time,” but it found that “it is a viable option at this point.” The court granted the parties “equal physical custody” on a rotating 15-day schedule, as well as joint legal custody. Among other things, the court set forth a holiday schedule, and addressed the travel costs when exchanging Child.
After considering the relevant factors, the court denied the parties a monetary award.
The court found that, although Husband earns more than Wife, Wife’s expenses are less than his and both “are leaving the marriage with similar debts and assets in similar financial circumstances[.]”
Wife did not request attorney’s fees, but she argued that each party should be responsible for their own fees. Husband, however, did request attorney’s fees related to Wife’s failures to comply with discovery requests, as well as the pendente lite proceeding. The court found that Husband “was fully justified in how he handled this case and the way he defended and prosecuted the case.” The court did grant Husband’s request for attorney’s fees and ordered Wife to pay him $6,647.50, which it broke down as follows: “$2,882.50 in discovery related counsel fees, and $3,765 in pendente lite attorney fees.” The court found that Wife “had no justification whatsoever to fail to comply with reasonable discovery requests” made by Husband. The court noted that Wife “simply ignored them and/or didn’t respond, and/or didn’t update any discovery responses she did make.” With regard to Husband’s attorney’s fees incurred in relation to the pendente lite order, the court found that Wife had moved to Mississippi with Child without Husband’s consent and left him “with no option other than pursuing access to [Child] through the courts at a PL hearing.” The court concluded that Mother’s move out of state was not only unjustified, but her suggested access schedule was also not “justified.”
The court then turned to child support. The court noted that, when using the child support guidelines based on each parent having Child 50% of the time, Husband’s child support obligation “comes out to $439 per month.” The court, however, deviated from that number after “finding it’s in the best interest of the party’s minor child to deviate downwards from $439 to zero dollars child support, given the fact that [Husband] will incur substantial travel expenses in order to participate in access time with his minor child as a result of [Wife’s] unwarranted relocation of the minor child to Mississippi.” In so ruling, the court acknowledged that Wife would also incur similar travel expenses, but it noted that Wife included on her financial statement “$2,500 in mortgage expenses and $960 a month in domestic assistance expenses, which she simply does not incur.” 7
The court’s rulings were reduced to writing in an order filed on December 14, 2023.
Wife noted a timely appeal.
STANDARD OF REVIEW
In an action tried to the court, we “review the case on both the law and the evidence” and “will not set aside the judgment
of the trial court on the evidence unless clearly erroneous, [as we give] due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Md. Rule 8-131(c). “When a trial court decides legal questions or makes legal conclusions based on its factual findings, we review these determinations without deference to the trial court.” E.N. v. T.R., 474 Md. 346, 370 (2021) (cleaned up). We review a trial court’s custody decision for abuse of discretion. Basciano v. Foster, 256 Md. App. 107, 128 (2022).
DISCUSSION
As noted, Wife’s brief is very difficult to follow and includes some information extraneous to the record developed in the circuit court, as well as misstatements of fact.8
I.
We begin with what we perceive as Wife’s contention that the circuit court erred in its physical and legal custody awards by failing to properly consider Wife’s allegations that, in June 2022, Husband choked her, banged her head against the car, and threatened to kill her following his panic attack. Counsel claims that the court “did not follow . . . the Family Law-Domestic Violence laws, under Family Law (“F.L.”) Article, subsection 5 of title 4 of the Maryland Code.”9 Appellant’s counsel further asserts that the court allowed Husband to testify that he did not abuse Wife and seems to maintain this was error because “Mississippi has already convicted and sentenced him for the crime of domestic violence.” First, the evidence before the circuit court was that Mississippi did not prosecute the criminal charges brought against Husband, but rather placed them in their inactive file. The charges were subsequently expunged based on that fact. Consequently, there is no evidence in the record before us that Husband was “convicted and sentenced” of any criminal charges in Mississippi. 10
Husband also denied, at the merits hearing in this case, that he committed the abuse testified to by Wife. In addition, Husband testified that Wife’s request of the Mississippi court for a civil protective or domestic violence order was denied and ultimately “dropped” after he completed an anger management class and remained on “good behavior” for a period of time. Wife did not dispute that testimony at trial in this case.
Appellant’s counsel points to the court’s statement, made in conjunction with its findings on the psychological fitness of the parents, that it was “not going to comment on the validity of any criminal allegations that [Wife] made,” but noted its “concern regarding how and when she reported the alleged assault and sought a protective order timing wise.” Appellant’s counsel then maintains that the court “holds the view that [Wife] is a liar when it comes to the ‘Domestic Violence Charges.’” Counsel further states that the Maryland trial judge “substitutes his view in place of the Mississippi State Court, which convicted the Husband; as such, he gives no credence to her charges, and it shows in his ruling that he is washing his hands of her domestic violence charges and victimization and the authorities of the Mississippi State Court System.”
Again, Appellant’s counsel is blatantly misconstruing the facts, as the record before us is devoid of any evidence that Husband was convicted of any criminal charges in Mississippi
or that the Mississippi court, in the civil protective or domestic violence case, made any findings that Husband abused Wife. Moreover, we decline to disturb the Maryland’s trial court’s credibility determinations in this case as, unlike this Court, it had the opportunity to both hear the testimony and observe the parties and it is “not our role, as an appellate court, to secondguess the trial judge’s assessment of a witness’s credibility.” Gizzo v. Gerstman, 245 Md. App. 168, 203 (2020).
Finally, we note that, at trial, Wife did not argue that Husband should be denied access to Child based on any alleged domestic violence perpetrated by Husband against her. In fact, Wife proposed a visitation schedule. And the court specifically found that “[t]here’s been no indication that [Husband] has ever done anything remotely negative towards” Child. Thus, we are satisfied that the court complied with Section 9-101.1 of the Family Law Article – a provision counsel does not cite or allege the trial court failed to comply with.11
II.
Appellant’s counsel asserts that the court erred in awarding the parties joint legal custody, pointing out that Wife testified at trial that she did not believe she and Husband could share decision-making with respect to issues involving Child. Wife testified that, “[w]ith [Husband], it’s his way or the highway. It’s very, very, very hard to get him to be amenable to anything.” Consequently, counsel argues that joint legal custody is inappropriate in this case. Counsel also appears to be contending that Mother holds (or should be awarded) tie-breaker status.
As the Maryland Supreme Court has explained, “‘[l]egal custody carries with it the right and obligation to make long range decisions’ that significantly affect a child’s life, such as education or religious training.” Santo v. Santo, 448 Md. 620, 627 (2016) (quoting Taylor, 306 Md. at 296)). In contrast, physical custody “means the rights and obligation to provide a home for the child and to make daily decisions as necessary while the child is under that parent’s care and control.” Id. (internal quotation marks omitted). When the court awards parents joint legal custody, “‘both parents have an equal voice in making [long range] decisions, and neither parent’s rights are superior to the other.’” Id. (quoting Taylor, 306 Md. at 296).
In Santo, the Maryland Supreme Court declined “to hold as a matter of law that a court errs if it awards joint custody to parents who fail to communicate effectively with one another.” Id. at 630. Here, there was certainly evidence before the court as to communication difficulties between the parties, including Husband’s failure to keep Wife apprised of Child’s whereabouts when in his care. But the court addressed that issue in its order. See footnote 11 supra.
Moreover, when questioned whether she and Husband had any unresolvable disagreements related to Child’s education, religious upbringing, or health care, Wife’s answer was no. Wife did, however, prefer to make those decisions herself. In awarding the parties joint legal custody, the court found that Wife “really did not establish at any point that the parties were not able to agree on any significant issues related to health care, education, or religion[,]” which the court recognized are “the primary legal custody determinations that are typically made in a child’s life.” The court further acknowledged that the parties
had “gone through some significant difficulties leading up to the trial in this case,” but found that “they are capable of effectively communicating with one another.” Accordingly, we are not persuaded that the court abused its discretion in awarding the parties joint legal custody.
“In a joint legal custody arrangement with tie-breaking provisions, the parents are ordered to try and decide together matters affecting their children.” Santo, 448 Md. at 632. “When, and only when the parties are at an impasse after deliberating in good faith does the tie-breaking provision permit one parent to make the final call.” Id. at 632-33. The court did not award either parent tie-breaking authority in this case. Wife’s counsel appears to claim that Wife has or should have it – counsel’s argument is unclear. Because a court is not required to grant either parent tie-breaking authority in a joint legal custody award, we cannot say that the court abused its discretion in failing to include one in this case. If the parties find, however, that they frequently are at an impasse on significant life issues involving Child, they are always free to file a motion with the circuit court requesting that it impose a tie-breaking provision.
III.
Wife challenges the shared physical custody award, contending that “transporting a three-year old from Mississippi to Maryland every fifteen days is not [in] the minor child’s best interest.” Counsel then asks: “Why” should Wife “be placed in a position where the Husband, the abuser, could injure her?” Counsel claims that this is “in total opposition” to Maryland’s domestic violence laws and asserts that the domestic violence statute is “designed to separate the parties and avoid future abuse.” Counsel further maintains that the trial court “should have addressed the guiding factors” in Sanders, supra, and Taylor, supra.
Again, based on the record before us, Wife did not seek a protective order in Maryland and the issue here is not what is in Wife’s best interest but rather what custody arrangement is in Child’s best interest. And, as we summarized previously, the court did address factors set forth in Sanders and Taylor and clearly recognized its task. The court was very cognizant of the geographic distance between the parties and found that was a “big problem,” but one that was precipitated by Wife’s decision to stay in Mississippi instead of returning to Maryland, even though Wife’s full-time remote employment enables her to live almost anywhere. The court found that both parents are fit, both are of good character and reputation, and both desired custody of Child. Most significantly, the court found that it is in Child’s best interest to have equal time with each parent. The court also acknowledged that the fifteen-day rotating schedule “won’t be a viable option when [Child] is enrolled in school full time, but it is a viable option at this point.” We cannot say that the court abused its broad discretion when granting the parents equal physical custody and ordering the fifteen-day rotation.12
IV.
Wife challenges the court’s decision not to award her child support. Wife’s counsel asser ts that the trial judge “is punishing [Wife] for filing domestic violence charges.”
In ruling that neither party would be awarded child support, the court explained why it was deviating from the child support guidelines under which Husband would have paid Wife about $439 monthly. First, the court noted that Husband would incur substantial travel expenses to have access to Child due to Wife’s “unwarranted relocation of the minor child to Mississippi.” The court further found that Wife included on her financial statement “$2,500 in mortgage expenses and $960 a month in domestic assistance expenses, which she simply does not incur.” There is no evidence whatsoever that the trial judge in this case was seeking to punish Wife.
If Wife has more substantive reasons as to why she believes she is entitled to child support, she can file a motion with the circuit court. The arguments made in this appeal are simply unavailing and it is not the role of this Court to search the record to support an appellant’s general claim of error.
V.
Wife maintains that she is “being cheated out of her share” of marital property, claiming that Husband’s income “is approximately twice as much as” Wife’s. She also asserts that the court failed to “include all of [Husband’s] income” when addressing a monetary award. She does not, however, identify what income the court failed to include in its calculations and, again, it is not our role to search the record to support an appellant’s position. Rollins v. Capital Plaza Assocs., L.P., 181 Md. App. 188, 201 (2008) (“‘We cannot be expected to delve through the record to unearth factual support favorable to [the] appellant.’”) (quoting von Lusch v. State, 31 Md. App. 271, 282 (1976)).
In addressing whether to grant a monetary award in this case, the court determined that “both parties made equal contributions, both monetary and non-monetary to the wellbeing of the family.” The court found that the value Wife placed on marital property appeared to be “simply estimates that were pulled out of the air[,]” whereas Husband “was able to justify every single value of each piece of property” and, consequently the court accepted Husband’s valuation. After considering the value of all marital property and the parties’ respective debts and assets, the court concluded that Husband and Wife are “in very similar economic circumstances.” The court did recognize that Husband earns
more than Wife, but it found that Wife has fewer expenses. The court then addressed other factors to consider before making a monetary award and concluded that it would be inequitable to grant either party one. Given what is before us—and Wife’s counsel’s failure to articulate with any precision why the court erred in denying her a monetary award—we cannot say that the court erred in its decision.
VI.
Wife appears to challenge the court’s order directing her to pay a portion of Husband’s attorney’s fees. The entirety of the “argument” is that Husband’s income “is approximately twice as much as the Appellant’s income; however, the Judge granted the Appellee attorney fees.”
Section 7-107(b) of the Family Law Article authorizes the court in a divorce action to “order either party to pay to the other party an amount for the reasonable and necessary expense of prosecuting or defending the proceeding.” Reasonable and necessary expense includes counsel fees. Fam. Law § 7-107(a) (2). Before ordering the payment, the court must consider: “(1) the financial resources and financial needs of both parties; and (2) whether there was substantial justification for prosecuting or defending the proceeding.” Fam. Law § 7-107(c).
Whether to award attorney’s fees is within the discretion of the trial court. Abdullahi v. Zanini, 241 Md. App. 372, 425 (2019) (citation omitted). “The court’s decision in this regard ‘should not be reversed on appeal unless the ruling was arbitrary or clearly incorrect or both.’” Id. (quoting Huntley v. Huntley, 229 Md. App. 484, 497 (2016)).
Here, the trial court determined that the parties were in “very similar economic circumstances” and that Husband had substantial justification for prosecuting the pendente lite motion as Wife had moved a significant distance, without Husband’s consent, thus making quite difficult his access to Child. The court also concluded that Wife “had no justification whatsoever to fail to comply with reasonable discovery requests” made by Husband. The court noted that Wife “simply ignored them and/or didn’t respond, and/or didn’t update any discovery responses she did make.” Based on this record, we cannot say that the court abused its discretion in ordering Wife to pay the attorney’s fees Husband incurred related to discovery violations and the pendente lite proceeding.
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Wife’s brief, filed by counsel, is very difficult to follow. The questions presented for appellate review in her brief are phrased as follows:
The question presented is whether the Circuit Court Order of December 12, 2023, follow Legal Custody, Physical Custody, and Mother holds tiebreaker in Legal Custody and Physical Custody Issues, as address under ‘Maryland’s Domestic Violence Act, Maryland Code, §§ 4-501 through 4-516 “and the Domestic Violence laws, under Family Law (“F.L.”) Article, subsection 5 of title 4 of the Maryland Code?
a) Legal Custody
b) Physical Custody
c) Mother holds tiebreaker in Legal Custody and Physical Custody Issues.
Did the Circuit Court Order dated December 12/2023, follow the ‘Maryland’s Domestic Violence Act, Maryland Code, §§ 4-501 through 4-516” under the Domestic Violent laws in divorce case, by not addressing the issues in its ruling for Divorce and Property Settlement?
We also note that Wife’s brief contains some assertions (such as that Husband was trained in the martial arts and that he “is a U.S. Navy-trained weapon; his hand are lethal weapons[]”) that are not based on the record before us. Husband’s informal brief, filed as a self-represented litigant, also contains some information (such as email exchanges between the parties) that occurred after the trial in this case. Because appellate review is limited to the record developed before the trial court, we shall disregard—as we must— any factual assertions in the briefs that were not in evidence in the circuit court proceedings which are the subject of this appeal.
2 In opening statements, Husband’s counsel related that Wife’s Mother died in a fire when Child was about six weeks old.
3 The record before us does not include a transcript of the hearing.
4 The magistrate’s Report and Recommendation did not recount any details regarding the alleged physical altercation.
5 Husband included in the appendix to his brief an order dated October 25, 2023, of the Municipal Court, City of Biloxi, Mississippi expunging the charge of
“domestic assault/simple 1st” after finding that “said charges were nolle prossed, dismissed, passed to the inactive files or otherwise not prosecuted[.]”
6 At the merits hearing, the petition was referred to as a “protective order,” as it is called in Maryland, but it seems Mississippi’s term for it may be a “domestic violence order.”
9 Subsection 5 of Title 4 of the Family Law Article of the Maryland Code addresses temporary and final protective orders. There is no evidence in the record before us that Wife sought a protective order in Maryland. Accordingly, we fail to understand Appellant’s counsel’s contention that the court did “not follow” this statute.
10 In Appellant’s Brief, counsel asserts that the criminal conviction was expunged and cites a Mississippi statute allowing for the expungement of one conviction from public records “five (5) years after the successful completion of all terms and conditions of the sentence.” Not only is there no evidence in the record before us that Husband was convicted of any criminal charges in Mississippi based on the alleged assault in June 2022, even if he was the Mississippi statute counsel cites would not have allowed expungement at this point because five years have not elapsed.
11 Family Law, § 9-101.1(b) provides that, “[i]n a custody or visitation proceeding, the court shall consider, when deciding custody or visitation issues, evidence of abuse by a party against,” among others, the “other parent of the party’s child.” Then, “[i]f the court finds that a party has committed abuse against the other parent[,]” the “court shall make arrangements for custody or visitation that best protect” the child and the victim of the abuse. Family Law, § 9-101.1(c).
Here, Wife’s only complaint of “abuse” by Husband against her was in relation to the June 2022 panic attack incident and, thereafter, of Husband being verbally “nasty” to her and failing to communicate with her when Child was in his care. The court’s order addressed the communication issue by requiring the parties, among other things, to communicate through Our Family Wizard app; to provide FaceTime (or similar) access to Child with the non-custodial parent every other day; to inform the non-custodial parent if Child would not be spending the night at the custodial parent’s home and, in that event, inform the non-custodial parent of the location where Child would be spending the night; and to provide the non-custodial parent with the name and phone number of any third party who might care for the Child.
12 In his brief, Husband requests that this Court “consider a 30-day rotation for custody instead of a 15-day rotation[]” and asks us to modify the exchange time from 12:00PM to another more convenient time. Husband must direct these requests to the circuit court.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 06 MFLU Supp. 19 (2024)
Report and recommendation; exceptions; final judgment
The Appellate Court dismissed the appeal from the Prince George’s County Circuit Court’s order. The order was not a final judgment, as it merely overruled father’s exceptions to the magistrate’s recommendations.
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..
exceptions. On November 26, 2023, Mr. Ucheomumu filed this appeal from that order.
On January 10, 2024, Mr. Ucheomumu filed a petition for contempt, in which he alleged that Ms. Peter was in violation of an order to pay child support. On April 12, 2024, a contempt hearing was held before a magistrate. The magistrate found that the court had not yet signed the order for child support and, therefore, the petition was prematurely filed. The magistrate recommended that the petition for contempt be dismissed without prejudice and referred the matter to the judge that presided over the exceptions hearing “for appropriate action.”
On May 1, 2024, the court signed two orders: an order dismissing the petition for contempt without prejudice, and an order for child support which adopted the magistrate’s recommendations. The order for child support was entered on the court’s docket on May 2, 2024. Mr. Ucheomumu did not file an appeal from that order.
This appeal arises from an order denying exceptions to recommendations of a magistrate in an action for the payment of child support. Because the order from which the appeal was noted was not a final judgment, this Court lacks jurisdiction and must dismiss the appeal.
FACTS AND PROCEEDINGS
Andrew Ucheomumu, appellant, and Esther Peter, appellee, are the parents of a minor child, who was born in 2016. In April of 2022, Mr. Ucheomumu was granted sole legal and physical custody of the parties’ child. On May 24, 2022, Mr. Ucheomumu filed an action for child support against Ms. Peter in the Circuit Court for Prince George’s County.
A child support hearing was held before a magistrate on December 12, 2022. Following the hearing, the magistrate recommended that Ms. Peter be ordered to pay
$1,618.00 per month in child support from June 2022 to November 2022, and $768.00 per month thereafter. On December 22, 2022, Mr. Ucheomumu filed exceptions to the magistrate’s recommendations.
On January 10, 2023, the court entered an order for child support per the magistrate’s recommendation. On January 17, 2023, Mr. Ucheomumu moved to strike that order on the ground that he had filed timely exceptions. The court granted the motion, vacated the order for child support, and directed that an exceptions hearing be scheduled.
The court held a hearing on exceptions on June 29, 2023. On November 22, 2023, the court entered an order denying the
DISCUSSION
“[U]nless constitutionally authorized, appellate jurisdiction ‘is determined entirely by statute,’ and therefore, a right of appeal only exists to the extent it has been ‘legislatively granted.’” Mayor & City Council of Baltimore v. ProVen Mgmt., Inc., 472 Md. 642, 665 (2021) (quoting Gisriel v. Ocean City Bd. of Supervisors of Elections, 345 Md. 477, 485, (1997)). “Whether a matter is appealable is a jurisdictional matter and may be raised by an appellate court even if not noted by the parties.” Gruber v. Gruber, 369 Md. 540, 546 (2002) (citation omitted). “‘[P]arties cannot confer jurisdiction on our Court, and we must dismiss a case sua sponte on a finding that we do not have jurisdiction.’” Johnson v. Johnson, 423 Md. 602, 606 (2011) (quoting Miller and Smith v. Casey PMN, LLC, 412 Md. 230, 240 (2010)).
Subject to limited exceptions not applicable here,1 a party may take an appeal to this Court “only from a ‘final judgment entered in a civil or criminal case by a circuit court.’” O’Brien v. O’Brien, 367 Md. 547, 554 (2002) (quoting Md. Code, Courts and Judicial Proceedings Article, § 12-301). To constitute a final judgment, a ruling of the court must have at least three attributes: (1) it must be intended by the court as an unqualified, final disposition of the matter in controversy, (2) unless the court properly acts pursuant to Md. Rule 2–602(b), it must adjudicate or complete the adjudication of all claims against all parties, and (3) the clerk must make a proper record of it in accordance with Md. Rule 2–601.
In re C.E., 456 Md. 209, 221 (2017) (quoting Rohrbeck v. Rohrbeck, 318 Md. 28, 41 (1989)). The purpose of the final
judgment rule is to “‘promote judicial economy and efficiency’ by preventing piecemeal appeals after every order or decision by a trial court.” Id. (quoting Sigma Reprod. Health Ctr. v. State, 297 Md. 660, 665 (1983)).
A magistrate is not vested with judicial powers, and their recommendations are advisory only. O’Brien, 367 Md. at 554. The court may proceed to enter an order or judgment where no exceptions to the recommendations are filed. Id. at 555. Where exceptions are filed, the court “must rule upon the exceptions, either by sustaining or overruling them, and it must then enter an appropriate order consistent with that ruling.”
Id. at 555 (emphasis in original). A ruling that merely sustains or overrules exceptions to recommendations of a magistrate is not a final judgment for purposes of appellate jurisdiction, “even
FOOTNOTES
1 There are three exceptions to the final judgment requirement: “(1) appeals from interlocutory orders specifically allowed by statute; (2) immediate appeals
if the parties and the court believe that, for practical purposes, the case is over.” O’Brien, 367 Md. at 555-56. The case “is not over until a judgment, entered in conformance with Rule 2-601, is signed and entered on the docket.” Id. at 556. An appeal filed before final judgment is entered is premature and should be dismissed. Id.
The order from which this appeal was noted is not a final judgment, as it merely overruled Mr. Ucheomumu’s exceptions to the magistrate’s recommendations. Consequently, this Court has no jurisdiction to render a decision and must dismiss the appeal. See Johnson, supra. Because no appeal was taken from the final judgment entered on May 2, 2024, that order is not before us for appellate review.
APPEAL DISMISSED. COSTS TO BE PAID BY APPELLANT.
permitted under Maryland Rule 2–602; [and] (3) . . . appeals from interlocutory rulings allowed under the common law collateral order doctrine.” In re: C.E., 456 Md. 209, 221 (2017) (quoting Salvagno v. Frew, 388 Md. 605, 615 (2005)).
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Montgomery County Circuit Court’s discovery sanctions orders that limited certain issues and prevented husband from presenting evidence at trial of the divorce case, its refusal to grant husband a second continuance and its order awarding wife her attorney’s fees.
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..
FACTUAL AND PROCEDURAL BACKGROUND
In March of 1996, Appellant and Appellee were married. Two children were born of the marriage. In February of 2020, Appellee filed a Complaint for Absolute/Limited Divorce from Appellant in the Circuit Court for Montgomery County. A counter-complaint was filed by Appellant in July of 2020, which he later amended. Following the entry of a custody order in February of 2021, there remained several issues, including spousal support, child support, and the distribution of marital property.
Discovery Violations and Sanctions Orders
In the course of protracted litigation in this divorce case, Appellee Linda K. Brown (“Appellee”) filed motions for discovery sanctions which were not timely opposed by Marc Bowman Brown (“Appellant”). The Circuit Court for Montgomery County then entered a series of discovery sanctions orders that limited the remaining issues and prevented Appellant from presenting evidence at trial. More than four months later, a trial on the merits was held, where the circuit court enforced the discovery orders which sanctioned Appellant. A judgment of divorce was then entered. Appellant simultaneously moved for a new trial and to vacate the sanctions orders. The circuit court denied the motion. This timely appeal followed. For the reasons that follow, we shall affirm.
ISSUES PRESENTED FOR REVIEW
Appellant presents the following issues for our review, which we have reordered and rephrased:1
I. Whether the circuit court abused its discretion by ordering sanctions against Appellant for discovery violations.
II. Whether the circuit court abused its discretion by declining to review the sanctions orders.
III. Whether the circuit court abused its discretion by declining to postpone the trial.
IV. Whether the circuit court abused its discretion by awarding attorneys’ fees to Appellee pursuant to FL § 7-107.
V. Whether the circuit court abused its discretion by denying Appellant’s motion for a new trial.
Over the ensuing twenty months, the parties engaged in discovery. At the conclusion of the discovery period and with less than two weeks prior to the scheduled trial, in October of 2022, Appellee filed two motions for immediate sanctions due to Appellant’s lack of compliance with multiple discovery requests and untimely rescheduling of depositions.2
The first motion for sanctions addressed Appellant’s failure to appear for a scheduled deposition. Appellee asserted that both Appellant and Appellant’s counsel Justin Winter (“Winter” or “Appellant’s counsel”) failed to appear for four scheduled depositions within the preceding four weeks, and that on each occasion Winter cancelled the deposition on the day it was scheduled, claiming illness of either himself or a family member. In support of these assertions, Appellee provided copies of email correspondence, the notices of intent to take deposition, subpoenas for Appellant’s appearance, and subpoenas to produce documents for each rescheduled deposition. Appellee explained the prejudice to her, as the associated expenses for the late cancellations of the depositions were not refundable. In addition, Appellant’s failure to appear at a deposition left Appellee without the opportunity to obtain information pertaining to fundamental issues such as the Appellant’s employment and ability to support himself, the reasons for the breakdown of the marriage, and the dissipation of marital assets. Based on Maryland Rule 2-433 and on Appellant’s failure to appear at the depositions, Appellee sought as sanctions, inter alia, the striking of Appellant’s counter-claims; findings related to voluntary impoverishment and dissipation of marital property; a prohibition on presentation of evidence; and attorneys’ fees and costs.
The second motion addressed Appellant’s failure to adequately respond to written discovery requests. Appellee asserted that interrogatories and requests for documents were served on Appellant in August of 2020.3 Appellant failed
to provide meaningful responses or documents related to his assets, financial accounts,4 or additional information concerning his employment history and ability to support himself. Appellee noted that good faith attempts were made to resolve the issue on November 30, 2021; January 24, 2022; and October 3, 2022.5 In each attempt, Appellee sent a letter to Appellant’s counsel identifying the deficiencies in the interrogatory responses and the missing discovery materials. Because Appellant continued to fail to provide meaningful responses, Appellee contended that she was “forced to incur unnecessary and costly attorneys’ fees and costs in pursuing documents needed for trial which the [Appellant] has repeatedly and intentionally refused to produce[.]” Appellee contended that Appellant’s failure to provide discovery responses was intentional and continuous, and had caused severe prejudice, particularly in light of the approaching trial date. Appellee requested that the court enter an order compelling Appellant to produce full and complete answers to the interrogatories and complete responses to requests for production within three days. Appellee also requested that if Appellant failed to comply, the court enter an order prohibiting Appellant “from supporting or opposing designated claims or defenses” and “from introducing designated matters into evidence for any discovery not produced as ordered[,]” in addition to requiring Appellant to pay costs and attorneys’ fees.
Appellant did not file a timely response to either motion. The circuit court granted both of Appellee’s motions for sanctions. In granting the first motion, the court noted that it had reviewed “the record and pleadings, exhibits, and . . . no opposition” from Appellant in reaching its decision. The court struck Appellant’s counter-claims, and made factual findings in favor of Appellee on three of the issues to be explored at the depositions.6 The court also prohibited Appellant from opposing Appellee’s claims, and from “introducing exhibits at any hearing on this matter,” and from “testifying about any facts or events unless such fact(s) or event(s) were provided in discovery[.]” Additionally, the court struck Appellant’s assertions in the joint statement of marital property. Last, Appellant was ordered to pay $800.00 for the late cancellation costs of the court reporter for the depositions. The issue of whether to award attorneys’ fees was to be addressed at a future date. The order on the first discovery sanctions motions was signed on October 31, 2022, and entered on November 2, 2022.
The court also granted Appellee’s second motion for discovery sanctions, ordering Appellant to produce full and complete interrogatories and the requested documents within three days or be prohibited from “supporting or opposing designated claims or defenses” and “prohibited from introducing designated matters into evidence for any discovery not produced[.]” In addition, the court ordered Appellant to pay attorneys’ fees for the preparation of the motion. This second discovery sanctions order was signed on October 31, 2022, and entered on November 4, 2022. Appellant failed to comply in production within the three days of the order, and on November 15, 2022, the court subsequently imposed the order that Appellant was “prohibited from supporting or opposing any designated claims or defenses and from introducing designated matters in evidence for any discovery not produced[.]” Appellant was
further ordered to pay $1,235.00 in attorneys’ fees and costs.7
The November 1, 2022 Postponement
On November 1, 2022, Appellee, Appellee’s counsel, and Appellant appeared for the scheduled trial on the merits; however, Appellant’s counsel informed the court that he was having a family crisis and would not be present. Appellee then explained that Appellant’s counsel had demonstrated a pattern of announcing shortly before scheduled events that he would not be in attendance based on family emergencies or crises that were never supported by evidence. The trial court directed the case to the administrative judge for a determination on whether the trial should be continued.
The parties subsequently appeared before the administrative judge on the issue of whether the trial should go forward or be continued. Appellee reiterated her claims, explaining that “this would be the third time it’s continued. [Appellant’s counsel] has been a no show [for] at least three depositions and always the same reason: there’s a family emergency.” Appellee stated that the case had been pending for three years and she was ready to proceed.
Following a discussion on the record with Appellant,8 the court indicated that Winter’s failure to appear and lack of communication with Appellant was troubling. Due to the many contested issues that required resolution, the administrative judge ordered that the three-day trial would be postponed to March 20, 2023—the next date on which counsel present were available.
Motion for Reconsideration
On December 14, 2022, Appellant filed a motion for reconsideration of one of the sanctions orders. The motion did not identify which order Appellant was requesting the court to reconsider; instead, it merely noted that sanctions had been ordered against Appellant which required the payment of a fee. Appellant stated that he had “substantially complied with discovery requests[,]” had “provided supplemental discovery[,]” and that when attempting to schedule depositions, “both sides had conflicts at least once.” Appellant did not support the motion with documents or affidavits.
Appellee opposed the motion for reconsideration on January 10, 2023. Appellee incorporated by reference her two original motions for sanctions and asserted that Appellant’s motion for reconsideration “lack[ed] in veracity[,]” in addition to being untimely and contrary to Maryland Rule 2-535. The court denied the motion to reconsider on January 13, 2023.
Appellee’s Motion for Maryland Rule 1-341 Sanctions
Subsequent to the November hearing, Appellee moved for sanctions against Appellant and his counsel, asserting that the failure to appear for the merits trial, which followed their conduct during discovery, was done in bad faith and forced Appellee to incur substantial fees, costs, and expenses, which Appellee sought to recover from Appellant and Appellant’s counsel. Appellee attached documents and affidavits demonstrating these costs. Although Appellant was ordered to file a response to this motion by November 9, 2022, no timely response was filed.9
In February of 2023, a hearing was held on the motion. Appellant, Appellee, and Appellee’s counsel were present; however, Appellant’s counsel once again failed to appear. After hearing the evidence, the court granted the motion as to Appellant’s counsel, finding that his conduct was both in bad faith and lacking in substantial justification. The court reserved the issue as to whether to sanction Appellant for the trial judge to address.10
Withdrawal of Appellant’s Counsel and Appellant’s Postponement Request
Appellant’s counsel moved to withdraw from the case on February 16, 2023.11
Appellant, who was aware of this development, filed a pro se motion for a continuance of the merits hearing on February 28, 2023, claiming that he had been “abandoned” by his counsel as demonstrated by the failure to appear at three hearings and the filing of a motion to withdraw. Appellant indicated that his efforts to find a new counsel before the scheduled trial were unsuccessful.
Appellee opposed the continuance, arguing that she had already been prejudiced by the four-month delay from the previously scheduled trial. Appellee also opposed the continuance on the grounds that Appellant had the opportunity to obtain new counsel since November of 2022, when he was aware his counsel had failed to appear for trial and had demonstrated a pattern of not attending scheduled events. The circuit court denied the motion for continuance on March 10, 2023, and ordered that the trial proceed as scheduled.
Appellant’s Motion to “Quash” Sanctions
On March 3, 2023, Appellant filed a motion requesting that the sanctions against him be “quashed,” asserting that Appellant had in fact provided “hundreds of pages of updated discovery documentation to the [Appellee] during the most recent discovery period[.]” Appellant claimed that the sanctions that had been granted were based on what he described as “false allegations made against the [Appellant.]” Although Appellant attached exhibits to his motion—primarily copies of the sanctions motions—none of them demonstrated that the missing discovery was ever provided to Appellee.12
Appellee opposed the motion to quash, arguing that Maryland Rule 2-535 applied and prevented the sanctions orders from being revisited absent procedural fraud, mistake, or irregularity—none of which were alleged by Appellant.
The court denied Appellant’s motion on the record at trial, explaining that it did not have the power to revise the sanctions order.
Trial
At the commencement of the merits trial, Appellant orally moved for another continuance on the grounds that he had still not obtained an attorney. Appellee opposed the continuance, citing the length of time the case had been ongoing, the three prior continuances, Appellant’s presence at the November 1, 2022 hearing where the administrative judge made clear that the trial would proceed on March 20, 2023, and Appellant’s recent request for a continuance that was denied.
The court inquired as to why Appellant had not obtained a new attorney after his counsel failed to appear for the previously scheduled trial. Appellant spoke at length regarding Winter’s unrelated criminal conviction and his incorrect understanding of the State Attorney’s Office efforts on his behalf, ultimately indicating that the potential substitute attorneys he spoke with “needed time to prepare[.]”
The court denied the motion to continue and found that Appellant’s actions constituted a waiver of the “right to go forward represented by counsel[.]” The court based the decision on several factors, including Appellant’s knowledge that his counsel was facing criminal charges; Appellant’s presence at the November 1, 2022 hearing, where he was informed that his counsel had failed to appear at several depositions and that trial would proceed on March 20, 2023; and the presence of witnesses, including experts, prepared for trial to proceed that day.
Circuit Court’s Findings and Judgment of Divorce
In June of 2023, after reviewing the evidence and the law, the circuit court conducted a hearing and made findings of fact and a ruling on the record. As part of its analysis, the court valued and divided the marital property.13 The court also awarded attorneys’ fees to Appellee pursuant to Maryland Code (1984, 2019 Repl. Vol.), section 7- 107 of the Family Law Article (“FL”). As support for awarding the attorneys’ fees, the court found that Appellant’s conduct “caused protracted litigation”; in addition to the missed discovery and depositions, the court also cited Appellant’s personal conduct of moving funds from financial accounts to avoid disclosure through subpoenas or by other discovery methods. The court found that Appellant’s “gamesmanship” was what caused protracted litigation and resulted in Appellee being obligated to retain experts to provide evidence concerning Appellant’s net worth and employability.
The court denied Appellant’s request for alimony, holding that even if Appellant’s complaint had not been dismissed, alimony would not be appropriate in this case. In reaching that determination, the court examined and made findings as to each of the factors relevant to alimony.
A written order was entered on June 23, 2023.
Motion for New Trial
Appellant subsequently filed a motion for new trial. The motion was predicated on the discovery sanctions and the impact of those sanctions on the trial. Appellant asserted that the issuance of the sanctions was an abuse of discretion. Appellant listed a variety of contentions as to how the court abused its discretion, including an alleged failure to consider the Taliaferro factors before issuing the sanctions;14 a failure to evaluate the relative responsibility of Appellant and Appellant’s counsel; and a failure to vacate the sanctions after the case had been postponed in November “because any potential prejudice of not being able to depose [Appellant] sufficiently before trial would have evaporated[.]” Appellee opposed the motion. Appellee asserted that to the extent the motion sought revision of the sanctions orders, those orders were final orders and any request for modification was required to be filed
within thirty days of their entry. Therefore, Appellee contended that Appellant’s motion was untimely. Appellee claimed that Maryland Rule 19-707 prevented Appellant from attaching the attorney grievance complaint, which Appellant had included as an exhibit to his motion. Appellee also contended that the court was not required to apportion the responsibility between Appellant and his attorney when awarding sanctions, per Link v. Wabash Railroad Co., 370 U.S. 626 (1962).
Appellant filed a reply, arguing that because the sanctions orders were not final orders, the circuit court could review them, and the revisory motion was therefore timely. Appellant also asserted that it was permissible to attach the attorney grievance complaint, and that the portion of Link v. Wabash Railroad Co. relied upon by Appellee was dicta.
The trial court denied the motion for new trial. This timely appeal followed.
DISCUSSION
I. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY GRANTING APPELLEE’S MOTIONS FOR SANCTIONS.
A. Contentions
Appellant contends that the trial court abused its discretion when it granted Appellee’s first motion for immediate sanctions on two grounds: first, that the trial court failed to engage in fact finding or apply the Taliaferro factors;15 and second, that it failed to apportion responsibility for the missed and rescheduled depositions between Appellant and Appellant’s counsel, per Williams v. Williams, 32 Md. App. 685 (1976). As such, Appellant argues that the sanctions must be vacated and reassessed on remand. Appellee disputes Appellant’s characterization of the law and contends the court acted within its discretion when it granted the motion for immediate sanctions on October 31, 2022.
B. Standard of Review
The trial court is afforded a great deal of discretion when it rules on discovery disputes and grants sanctions for failures of discovery. See Kadish v. Kadish, 254 Md. App. 467, 494 (2022). Thus, this Court reviews the grant of sanctions for an abuse of discretion and “we consider only the grounds relied on by the trial judge.” Muffoletto v. Towers, 244 Md. App. 510, 540 (2020) (citing Att’y Grievance Comm’n of Md. v. Kent, 447 Md. 555, 577 (2016)). Appellate review of a trial court’s resolution of a discovery dispute is “quite narrow.” Valentine-Bowers v. Retina Grp. of Washington, P.C., 217 Md. App. 366, 378 (2014) (emphasis in original) (quoting Sindler v. Litman, 166 Md. App. 90, 123 (2005)). Even if a trial court invokes “the ultimate penalty of dismissing the case” as a sanction, that ruling “cannot be disturbed on appeal without a clear showing” that the trial court abused its discretion. Id. (quoting Mason v. Wolfing, 265 Md. 234, 236 (1972)).
An abuse of discretion occurs when “[t]he decision under consideration [is] . . . well removed from any center marked imagined by the reviewing court and beyond the fringe of
what the court deems minimally acceptable.” Sindler, 166 Md. App. at 123 (quoting Wilson v. John Crane, Inc., 385 Md. 185, 199 (2005)). As such, sanctions will only be vacated in the “extraordinary, exceptional, or most egregious case.” Mason v. State, 487 Md. 216, 239 (2024) (quoting Wilson, 385 Md. at 199).
C. Analysis
The Maryland Rules provide the trial court with wide discretion to control discovery, including the ability to issue sanctions for the purpose of protecting the litigation process and preventing abuse. See Md. Rule 2-433(a); see also Hossainkhail v. Gebrehiwot, 143 Md. App. 716, 728–29 (2002). Sanctions may be initiated by the court or pursuant to a party’s motion, as in the case sub judice. Here, Appellee moved for sanctions pursuant to Rule 2-432, without first filing a motion to compel, based on Appellant’s repeated failure to appear for a deposition, after proper service. Md. Rule 2-432(a).
Appellee also moved for sanctions based on Appellant’s incomplete discovery responses under the same rule. Id.
Upon such a motion, the court may enter an order for sanctions if it finds that the party indeed committed a failure of discovery. Md. Rule 2-433. A broad spectrum of sanctions are available to the court, “ranging from striking pleadings to dismissal.”16 Rose v. Rose, 236 Md. App. 117, 131 (2018). In determining which sanctions are the most appropriate, the appellate courts have outlined five factors, known as the Taliaferro factors, “which often overlap,” to guide the trial court. See Sindler, 166 Md. App. at 124; see also Asmussen v. CSX Transp., Inc., 247 Md. App. 529, 550 (2020). Those factors include “(1) whether the disclosure violation was technical or substantial; (2) the timing of the ultimate disclosure; (3) the reason, if any, for the violation; (4) the degree of prejudice to the parties respectively offering and opposing the evidence; and (5) whether any resulting prejudice might be cured by a postponement and, if so, the overall desirability of a continuance.” Sindler, 166 Md. App. at 124; see also Asmussen, 247 Md. App. at 550 (same).
Concerning these factors, a court “is not required to discuss each factor considered, and is not required to set out in detail each and every step of [its thought process.” Kadish, 254 Md. App. at 495 (internal citations and quotation marks omitted). As such, in some circumstances, the court’s discretion may be apparent without any explicit factual findings. See Warehime v. Dell, 124 Md. App. 31, 51 (1998). A trial court is not required to make factual findings on the record; indeed, in Warehime, this Court affirmed a sanctions order dismissing a party’s complaint without any factual findings in the order. Id. at 39, 48. Instead, “a trial court must exercise its discretion in imposing sanctions in light of [the Taliaferro] factors[.]” Id. at 45. Appellate courts therefore “do not look at each incident in isolation, but rather at the entire history and context of the case in reviewing the trial court’s decision.” Kadish, 254 Md. App. at 489 n. 11 (quoting Valentine-Bowers, 217 Md. App. at 380).
Here, the court’s statement in the first sanctions order that it had reviewed the “record and pleadings, exhibits and . . . No opposition[,]” illustrates the court’s exercise of discretion in granting the sanctions motion in light of the Taliaferro factors. (emphasis added). Appellant’s failure to appear for depositions
in the final weeks before the planned merits trial on November 1, 2022, constituted a substantial violation.17 Similarly, Appellant provided incomplete interrogatory answers and other discovery to Appellee, preventing Appellee from adequately preparing for trial. Likewise, the record does not show that Appellant made any attempt to sit for a deposition or to comply with Appellee’s discovery requests following the court-ordered sanctions.
As to timing of the ultimate disclosure,18 at the time the court ordered the sanctions, the case had been ongoing for more than two years, and the merits trial was scheduled to commence. Moreover, the record does not demonstrate that Appellant made any attempt to sit for a deposition or to supplement his deficient discovery responses—before the court ordered the sanctions or thereafter. Thus, an ultimate disclosure never occurred. Likewise, Appellant did not provide a reason for the violation.19
Further, Appellee’s motion, as supported by the record, demonstrated significant prejudice20 experienced by Appellee due to Appellant’s inaction and actions. Appellee’s attempts to obtain information necessary for the resolution of marital property and the other issues were followed by incomplete answers in the interrogatories; and the failure to attend depositions further compounded this problem. It was not until the final missed deposition that Appellee moved for sanctions, after having attempted other good faith means of resolving the issues, ten days before the scheduled merits trial. Thus, with less than ten days before trial, the lack of information severely inhibited Appellee’s ability to prepare for trial, particularly as it related to marital funds and Appellant’s employment activity. See Balt. Transit Co. v. Mezzanotti, 227 Md. 8, 13 (1961) (explaining that to achieve the fundamental objectives of the discovery rules—which is to ensure litigants have disclosed all facts giving rise to the litigation to avoid confusion at trial— trial judges are vested with substantial discretion in their administration).
The prejudice to Appellee would not have been cured by a continuance,21 but instead would have been compounded. Appellee’s contention that a continuance would result in more harm to her did become a reality when the November 1, 2022 merits trial was postponed, allowing Appellant to continue to live in the marital home without contributing to the mortgage or to ongoing child support. In addition, Appellee was required to prepare new materials for the trial relating to updated financial information, including re-engaging experts, re-subpoenaing financial institutions, and updating the 9-207 statement.22 Thus, considering the Taliaferro factors and Appellant’s lack of opposition, we cannot conclude the trial court acted unreasonably in granting Appellee’s motion for immediate sanctions. See, e.g., Warehime, 124 Md. App. at 45–50.
Appellant is also incorrect that the circuit court was required to impose a less severe sanction merely because other sanctions were available. Although trial courts are encouraged to impose the least severe sanction that is consistent with the purpose of the discovery rules, the determination of the appropriate sanction remains within the discretion of the circuit court. Put another way, merely because a trial court could have imposed a different sanction does not mean that it was required to do so. See Valetine-Bowers, 217 Md. App. at 386. “Discretion means
just that—it was up to the trial court to fashion a remedy that it deemed appropriate in light of the course of discovery here.” Id.23
The circuit court did not abuse its discretion in granting Appellee’s motions for immediate sanctions.
II. ANY ERROR IN THE CIRCUIT COURT’S DECISION NOT TO REVISIT THE SANCTIONS WAS HARMLESS.
A. Contentions
Appellant asserts that the circuit court abused its discretion when it ruled that it did not have the power to revisit the sanctions. In support of the claim, Appellant contends that the court was permitted to review the sanctions orders because pursuant to Maryland Rule 2-602, interlocutory rulings are subject to review until there is a final judgment. Appellee disputes Appellant’s argument, asserting that the trial court correctly ruled that it did not have the power to reconsider the sanctions pursuant to Maryland Rule 2-535.
B. Analysis
Trial courts generally have broad discretion in governing the discovery process and imposing discovery sanctions. Warehime, 124 Md. App. at 43–44. However, a trial court abuses its discretion when its decision encompasses an error of law. Schlotzhauer v. Morton, 224 Md. App. 72, 84–85 (2015). In this case, the circuit court declined to review the sanctions orders, ruling that it did not have the power to reconsider the sanctions based on Maryland Rule 2-535. While the court did have the power to revise the non-final sanctions orders—Waterkeeper All., Inc. v. Md. Dep’t of Agric., 439 Md. 262, 277 (2014) (stating that “Rule 2-535 is applicable only to final judgments. Thus, non-final orders are subject to revision without regard to Rule 2-535.”) (internal citations and quotation marks omitted)—that is not the end of the analysis.
In the civil context, “[i]t has long been the policy in this State that this Court will not reverse a lower court judgment if the error is [harmless]. The burden is on the complaining party to show prejudice as well as error.” Flanagan v. Flanagan, 181 Md. App. 492, 515 (2008) (internal citation and quotation marks omitted). Standards for determining prejudice “depend upon the facts of each individual case.” Id. “Prejudice can be demonstrated by showing that the error was likely to have affected the verdict below; an error that does not affect the outcome of the case is harmless error.” Id. at 516. Appellate courts have also found reversible error “when the prejudice was substantial.” Id. “The focus of our inquiry is on the probability, not the possibility, of prejudice.” Id. (emphasis added). In this case, Appellant’s request that the court eliminate the sanctions orders did not provide the court with a basis to do so. Appellant did not address the failure to attend depositions, nor the failure to provide complete discovery requests. Appellant did not indicate that he made and supplemented his discovery responses. Without identifying what was incorrect, he merely asserted that Appellee had made “false statements” and “lies” against him. Likewise, Appellant did not identify evidence he would present if the sanctions were removed. Appellant did not
demonstrate that the trial court would have been likely to revise the sanctions orders absent the belief that it could not do so.
Although the trial court had the authority to reconsider the sanctions, its refusal to do so left the parties in the same position they were before it denied the motion, with the sanctions orders that had been in place for four months remaining as they were. Indeed, it would have been highly prejudicial to Appellee if, on the day of trial, the trial court reinstated Appellant’s claims and allowed Appellant to present evidence that was never produced in discovery.
Appellant did not meet his burden of demonstrating that the trial court’s refusal to reconsider the sanctions motion affected the outcome of the case. Flanagan, 181 Md. App. at 516. Therefore, to the extent there was an error in the court’s decision not to reconsider the sanctions orders, that error was harmless.
III. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY DENYING THE MOTIONS FOR CONTINUANCE.
A. Contentions
Appellant contends that the circuit court committed a “gross abuse of discretion” when the court denied Appellant’s motion to continue. Appellant asserts that the motion should have resulted in a continuance based on fairness and the balance of the equities, particularly because Appellant acted with due diligence and was caught by surprise. Thus, according to Appellant, the prejudice to Appellee would be minor compared to the “obvious and dramatic harms” to Appellant if the trial was not postponed.
Appellant asserts that the court committed an abuse of discretion by denying the oral motion to continue and finding that Appellant waived his right to be represented by counsel. Appellant specifically contends that the court’s interest in ensuring that the trial process is fair “strongly favored” permitting a continuance so that Appellant could acquire new counsel.
B. Standard of Review
Maryland Rule 2-508 dictates that the circuit court may, “[o] n motion of any party or on its own initiative, . . . continue or postpone a trial or other proceeding as justice may require.” Md. Rule 2-508(a). As such, the decision to grant or deny a motion for continuance is “within the sound discretion of the trial judge.” Touzeau v. Deffinbaugh, 394 Md. 654, 669 (2006); see also Prince v. State, 216 Md. App. 178, 203 (2014); Thanos v. Mitchell, 220 Md. 389, 392 (1959). “This rule applies even where the ground for the requested continuance is the withdrawal of movant’s counsel from the proceedings.” Fontana v. Walker, 249 Md. 459, 463 (1968). Thus, this Court reviews the decision for an abuse of discretion. See Bradley v. Bradley, 208 Md. App. 249, 267 (2012). An abuse of discretion exists when “‘no reasonable person would take the view adopted by the court’ or if the court acts ‘without reference to any guiding rules or principles.’” Serio v. Baystate Properties, LLC, 209 Md. App. 545, 554 (2013) (quoting North v. North, 102 Md. App. 1, 13 (1994)). As such, “[r]eversal on appeal . . . occurs only in ‘exceptional instances
where there was prejudicial error.’” Das v. Das, 133 Md. App. 1, 31 (2000) (quoting Thanos, 220 Md. at 392).
C. Analysis
The Supreme Court of Maryland, and this Court, have reviewed numerous cases wherein a motion for a continuance was denied, and have identified the following circumstances as abuses of discretion: when the continuance was mandated by law; “when counsel was taken by surprise by an unforeseen event at trial, when he had acted diligently to prepare for trial”; and “in the face of an unforeseen event, counsel had acted with diligence to mitigate the effects of the surprise[.]” Touzeau, 394 Md. at 670 (internal citations omitted). In contrast, it is not an abuse of discretion for a trial court to deny a motion to continue where a party failed to adequately prepare for trial. See Reaser v. Reaser, 62 Md. App. 643, 648 (1985) (stating that “[f]ailure to prepare adequately for trial is ordinarily not a proper ground for continuance or postponement.”). Nor has an abuse of discretion been found in many instances where the motion was based, at least in part, on the ability of party’s counsel to attend the proceeding were it not postponed. See, e.g., Cruis Along Boats, Inc. v. Langley, 255 Md. 139, 143 (1969); Travelers Indem. Co. v. Nationwide Const. Corp., 244 Md. 401, 407 (1966); Fontana, 249 Md. at 463.
In Touzeau v. Deffinbaugh, the Supreme Court of Maryland reaffirmed that the denial of a motion for continuance which “had the effect of leaving the moving party without the benefit of counsel[,]” is not an abuse of discretion. 394 Md. at 671. The mother in Touzeau filed a motion to continue a custody modification hearing on the grounds that a new custody evaluation report “vastly differed” from prior reports and thus she was now “attempting to obtain pro bono counsel.” Id. at 659, 661. The trial court denied the motion, and at the custody modification hearing ten days later, the mother renewed her motion to continue, asserting that she obtained pro bono counsel who “was unable to file a line of appearance because he already had another commitment at today’s hearing date.” Id. at 660.
The trial court denied the renewed motion, explaining that mother had plenty of time to obtain pro bono counsel at any time during the proceedings and that the nature of the report did not provide a basis for the continuance. Id. at 662–63. The Supreme Court of Maryland affirmed the trial court’s ruling, noting that the case “lack[ed] the elements of surprise and due diligence[,]” and that the mother “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[.]” Id. at 675, 678.
1. February motion to continue
Based on the record before this Court, we cannot conclude that the circuit court abused its discretion when it denied the motion to continue filed less than three weeks before trial. Here, as in Touzeau, Appellant was aware that his counsel had failed to appear at the scheduled trial in November; however, he did not act to file for a continuance until the last day of
February, less than three weeks before the merits trial. Although Appellant asserts that he acted with diligence in the face of the surprise of the abandonment of his counsel, the record and the motion filed by Appellant illustrate that he was on notice of the deficient performance of his counsel and noted counsel’s failure to appear at scheduled depositions on November 1, 2022, almost five full months before the merits trial was scheduled. Not only was Appellant on notice of his counsel’s failures on November 1, 2022, but Appellant was aware that the case had already been continued on two prior occasions and that the trial would commence on March 20, 2023.
Although Appellant asserted in the motion that he made efforts to obtain a new attorney, Appellant provided no support for the claim. He merely explained in the motion that he had tried to obtain alternative counsel; however, the attorneys he contacted “stated there is not enough time to prepare for [the] case,” unless there was a continuance. Not only did this contention lack support, but no information was provided to the court as to when Appellant would be able to obtain counsel and rectify the issue necessitating the continuance he sought. See Touzeau, 394 Md. at 671 (emphasizing that a motion for continuance “must reflect that the basis for the delay will be obviated within a brief period of time.”); see also Thanos, 220 Md. at 393.
In support of his argument, Appellant asserts that Appellee would have faced “minimal” prejudice were the trial to have been continued when he filed the February motion. This argument is belied by the record and Appellee’s opposition to the continuance, which noted that Appellee would be significantly prejudiced by a continuance because of the cost and the amount of preparation necessary for trial, particularly as Appellee had to send new subpoenas for the March trial, “re-engage experts[,]” “update the 9-207 statement[,]” and “supplement her discovery.” Nor was this the only occasion Appellee was required to reproduce her efforts, and granting another postponement would have resulted in Appellee having to engage in this process for a fourth time. Fairness to both parties required the trial court to look at the entirety of the situation, and the court does not have a duty to one party over the other, even if one party is pro se. Thus, the record before this Court demonstrates that, like Touzeau, the “elements of surprise and due diligence” were missing, such that the trial court did not abuse its discretion when it denied the February motion to continue. See Touzeau, 394 Md. at 675, 678.
2. Oral motion to continue
Nor can we conclude that an abuse of discretion occurred when the trial court denied the oral motion to continue and held that Appellant waived his right to have counsel represent him at the merits hearing. As discussed supra, the denial of a motion to continue may permissibly result in the moving party lacking the “benefit of counsel.” Touzeau, 394 Md. at 674. Here, the court denied the motion for a continuance and found that Appellant waived the presence of counsel by failing to act with diligence and acquire new counsel in a timely manner.
While Appellant emphasized that he was not waiving his right to counsel following the court’s holding, Appellant’s actions, as evidenced in the record, supported the court’s denial
of the motion to continue, leaving him without counsel for the hearing.24 In so holding, the court specifically identified that: it was aware of the denial of the February motion to continue; that Appellant had knowledge in November that his attorney failed to appear for numerous depositions; and that Appellant was previously informed by the trial court that the “trial would go forward today.”25 The trial court also noted the ongoing prejudice to Appellee as the case had been pending for three years and that Appellee had experts present in the courtroom. Notably, when the court inquired of Appellant what efforts he had taken to obtain an attorney, Appellant referenced only the efforts he made prior to the February motion to continue, even though it had been three weeks since the denial of that motion, and the order explicitly stated that the trial would proceed as scheduled.
Here, the court’s findings, as supported by the record before us, demonstrate that from the time the February motion to continue was denied, the only change was the amount of prejudice to be suffered by Appellee if the merits hearing was continued. This prejudice increased with every continuance due to the presence of experts who were prepared to testify at the merits hearings and the cost associated with the preparation and use of such experts, the length of the litigation preventing the resolution of issues related to the failure to pay child support by Appellant, and costs associated with the marital home resided in by the Appellant. Thus, we cannot conclude that the court abused its discretion when it denied the motion to continue and held that Appellant’s actions waived the presence of counsel.
IV. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY AWARDING APPELLEE ATTORNEYS’ FEES UNDER FL § 7-107.
A. Contentions
Appellant asserts that the trial court abused its discretion by awarding attorneys’ fees to Appellee under FL section 7-107. In support of this argument, Appellant claims that the trial court imputed the actions of Appellant’s counsel to Appellant and that the subsequent award of attorney fees was made based on his counsel’s conduct.
B. Standard of Review
At any point in a divorce proceeding, “the court may order either party to pay to the other party an amount for the reasonable and necessary expense of prosecuting or defending the proceeding.” FL § 7-107(b). Before ordering the payment, the court is required to consider: “(1) the financial resources and financial needs of both parties; and (2) whether there was substantial justification for prosecuting or defending the proceeding.” FL § 7-107(c). “A court’s decision to award attorney’s fees generally is reviewed under an abuse of discretion standard.” Henriquez v. Henriquez, 185 Md. App. 465, 475 (2009). “If the court gives proper consideration to the statutory factors and the circumstances of the case, an award of attorney’s fees will not be reversed ‘unless a court’s discretion was exercised arbitrarily or the judgment was clearly wrong.’” Id. at 476 (quoting Collins v. Collins, 144 Md. App. 395, 447 (2002)) (further citation and quotation marks omitted).
C. Analysis
In this case, the trial court performed an analysis under FL section 7-107 for the purpose of awarding reasonable and necessary expenses regarding attorneys’ fees. In addressing the factors identified in FL section 7-107(c), the court preliminarily determined that Appellee had more need than Appellant considering her support of the parties’ children. The court likewise found that given his substantial financial assets, Appellant had the ability to pay. In addressing the justification of the litigation, the court found that while both parties were “substantially justified in proceeding with this case,” Appellant engaged in protracting the litigation, which justified the award of attorneys’ fees. In reaching its decision, the court noted “the record is really full of examples,” which “weighed heavily on the [c]ourt.”
The court specifically referenced Appellee’s expert—who the court found to be credible—stating that the testimony reflected that the facts of the case placed it in “a category of its own as far as how much - - what disregard that the [Appellant] had for the rules of the court[.]” The court found that “there were several rescheduled depositions that had to be rescheduled and caused unnecessary expense for the court reporter fees, [and] attorneys’ fees, just because the [Appellant] and his counsel didn’t show.” While the court acknowledged Appellant’s argument that his attorney was “wayward[,]” the court found that the protracted litigation was caused not only by the actions of Appellant’s attorney, but also by Appellant’s conduct.
The court again highlighted the expert’s testimony, explaining that “money was constantly disappearing and moving from account to account in a very suspicious way,” such that “once one account was subpoenaed, the money would disappear and then go somewhere else and then another - - when that institution was subpoenaed, the money would go somewhere else[.]” The court noted that this movement of money was visible in Appellee’s exhibits. The court further noted that there was not “proper disclosure and discovery in this case[,]” and “discovery had to be reproduced” multiple times over.
The court determined that “these violations were to avoid having to disclose . . . assets” because Appellant “did not want his full assets to be shown.” As such, the court concluded that “the full extent of [Appellant’s assets]” are unknown, requiring the court to “infer that the only reason that [the bank statements were not in front of the court] is because money was intended to be hidden so that the [Appellee] wouldn’t be able to know” whether the accounts were marital. The court concluded by finding that “all of this is, I find, gamesmanship that caused . . . protracted litigation and, in the words of [the expert], showed great disregard for the rules of the [c]ourt. That’s also corroborated by the fact that sanctions were granted by [the trial court] twice and, I also believe [by another judge].” The court then awarded Appellee $95,000.00 in attorneys’ fees.
Contrary to Appellant’s assertion on appeal—that the trial court imputed the actions of Appellant’s counsel to Appellant in establishing the award of attorneys’ fees—the court’s limited finding pertaining to Winter’s prior actions was related to the deposition- scheduling behavior. The trial court clearly considered the factors established in FL section 7-107. The court gave thorough attention to the statutory factors and the
circumstances of this case. The trial court did not abuse its discretion, and therefore we decline to reverse the award of attorneys’ fees.
V. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY DENYING THE MOTION FOR A NEW TRIAL.
A. Contentions
Appellant asserts that the trial court committed an abuse of discretion in the denial of the motion for a new trial. Specifically, Appellant contends that the motion for new trial alerted the trial court to multiple errors that required the trial court to vacate the merits trial and reconsider the sanctions. Appellant identifies those errors as the following: (1) that the initial sanctions orders were in error because the trial court failed to consider the Taliaferro factors or respective fault between Appellant and Winter before issuing the sanctions; (2) that the request for sanctions was impermissible because Appellant’s counsel had not received the second request for production of documents until September 30, 2022, and thus, Appellee filed the request for sanctions nine days before the timeline permitted; and (3) that Appellant was not placed on notice of the second order granting sanctions for failure to produce documents. Appellant argues that once the trial court was alerted that Appellant was not responsible for, nor had knowledge of, the behavior precipitating the sanctions, the court “had an obligation to set aside at least the sanctions which ended [Appellant’s] case[.]”
B. Analysis
Maryland Rule 2-533 permits a party to “file a motion for a new trial within ten days after entry of judgment.” Md. Rule 2-533(a). “A trial court’s denial of a motion for new trial is generally reviewed for an abuse of discretion.” Mahler v. Johns Hopkins Hosp., Inc., 170 Md. App. 293, 321 (2006). The Supreme Court of Maryland has previously explained that: the exercise of discretion under these circumstances depends so heavily upon the unique opportunity the trial judge has to closely observe the entire trial, complete with nuances, inflections, and impressions never to be gained from a cold record, it is a discretion that will rarely, if ever, be disturbed on appeal.
Buck v. Cam’s Broadloom Rugs, Inc., 328 Md. 51, 59 (1992). This is particularly so when a motion for new trial “ask[s] the [court] to draw upon [its] own view of the weight of the evidence” to determine whether “justice would be served by granting a new trial.” Piquette v. Stevens, 128 Md. App. 590, 601–02 (1999) (quoting Buck, 328 Md. at 59).
Having previously concluded that the trial court did not abuse its discretion in granting Appellee’s motions for immediate sanctions, we quickly dispose of that argument as grounds for an abuse of discretion in the denial of the motion for new trial. Appellant’s remaining arguments turn on credibility determinations and the weighing of evidence by the trial court. Thus, the court’s discretion as to these determinations was “necessarily at its broadest.” Piquette, 128 Md. App. at 601 (quoting Buck, 328 Md. at 59).
Appellant first asserts a factual contention—that service of
the second request for the production of documents did not occur until September 30, 2022, and therefore the motion for immediate sanctions could not be filed until October 30, 2022. Notably, the court was presented with a certification that the notice of deposition and the second request for production of documents were served on August 30, 2022, and the certification was filed through the MDEC system that same day. Appellant filed an affidavit from Tina Stanczewski—one of Appellant’s former attorneys who had withdrawn from the case by September 30, 2022—which stated that Stanczewski experienced errors with MDEC and did not receive the notification. However, there was no evidence to dispute that Winter, who entered an appearance for Appellant at the same time as Stanczewski, had not received notice. Further, the only evidence to support that Appellant’s contention that he had not received notice was his own testimony. Thus, the trial court weighed the evidence. There was evidence in the record supporting notice of the August 30, 2022 date and therefore, we cannot conclude that the trial court abused its broad discretion on this issue.
Appellant finally argues that he had no notice of the order to produce documents and that trial court therefore should have set aside the sanctions immediately upon learning about his counsel’s behavior. This argument relies, again, solely on
JUDGMENT
Appellant’s testimony that he did not receive any notice to produce documents and interrogatories related to the second order for immediate sanctions, and that he had no knowledge of the actions of his attorney concerning the depositions. Thus, the trial court was tasked with determining the credibility of Appellant’s testimony, and what, if any, weight to give such testimony.
As these determinations are solely within the broad discretion of the trial court, we defer to the trial court’s findings because it had the ability to “closely observe the entire trial [and other proceedings], complete with nuances, inflections, and impressions never to be gained from a cold record[.]” Buck, 328 Md. at 59. There is evidence in the record that supports a determination to afford Appellant’s testimony little weight, to include: the original interrogatories shared by Appellant; the entry of the orders on MDEC; and Appellant’s habit of moving of money between more than ten financial institutions, which the court found was intended to serve the purpose of preventing Appellee from preparing expert reports and determining the amount of marital property.
As such, we cannot conclude that the trial court acted outside the bounds of reason and abused its discretion when it denied the motion for a new trial.
OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Reorganized and rephrased from:
I. Was it an abuse of discretion to issue disfavored discovery sanctions, including the dismissal of all counter-claims, without factual findings, or determining if the sanctions were the least severe sanctions consistent with the purpose of the discovery rules?
II. Was it an abuse of discretion to issue disfavored discovery sanctions, including dismissal of all counter-claims, without considering the respective responsibilities of a now-disbarred and criminally convicted attorney and his client?
III. Was it an abuse [of] discretion to deny Defendant’s motions to continue/postpone, to find that Defendant waived right to counsel, to not revisit the sanctions at trial, and to deny the Motion for New Trial?
2 Both motions were made pursuant to Maryland Rules 2-432 and 2-433, which permit requests for immediate sanctions without requiring a preliminary motion to compel in specific circumstances.
3 A second request for production of documents made in August of 2022 received no response from Appellant.
4 Because Appellee learned in discovery that there were numerous financial institutions at which Appellant maintained accounts that Appellant did not disclose, she sought to obtain the necessary information by subpoena directly from the financial institutions. Appellant refused, however, to cooperate in providing consent for several of these entities to enable production of the materials to Appellee.
5 Notably, the continuing failure to complete interrogatories and provide complete answers existed before Winter became Appellant’s counsel, as the first two discovery deficiency letters were each addressed to two different attorneys who represented Appellant on those respective dates.
6 Specifically, the court found that Appellant was “voluntarily impoverished[,]” had “dissipated marital property in an amount to be proved at any merits trial or hearing[,]” and had “allowed for marital property to go to waste[.]”
7 After the three referenced orders were entered, and after the time to respond to the motions had elapsed, Appellant filed an opposition to the motion for sanctions, noting that he had objected to providing certain documents and that he had provided other documents. Appellant did not reference interrogatory answers or his failure to appear at the depositions.
Nor did Appellant provide any evidence supporting his assertions.
9 On December 14, 2022, Appellant filed what he styled as an opposition to Appellee’s “[o]ral [m]otion for [a]ttorney [f]ees.” The document Appellant filed did not address Appellant’s counsel’s failure to appear at the scheduled trial. Neither did Appellant meaningfully address the discovery issues.
10 Appellant had the opportunity to speak at this hearing; however, he spent much of his argument claiming that Appellee had failed to respond to discovery and making disparaging assertions concerning Appellee and her counsel.
11 The motion was deficient, and Appellant’s counsel filed an amended motion to withdraw from the case on March 13, 2023. The court granted the motion in court on the first day of trial.
12 In this motion, Appellant also sought sanctions against Appellee based on alleged discovery failures. However, his motion failed to include a certification as required by Maryland Rule 2-431 demonstrating good faith efforts to resolve the alleged discovery dispute.
13 Although the November 2, 2022 sanctions order included a finding that Appellant was voluntarily impoverished, the circuit court, at this hearing, examined each factor to make the finding on the record. In addition, although the November 2, 2022 sanctions order included a finding that Appellant had committed waste of marital property, the circuit court examined the facts and the law and denied the request for additional funds to be apportioned to Appellee from the sale of the home based on the doctrine of marital waste.
14 See Taliaferro v. State, 295 Md. 376 (1983).
15 Though Appellant does not expressly reference Taliaferro v. State by name, he frames his analysis using the factors established in that case and cited
subsequently by other authorities. See Taliaferro v. State, 295 Md. 376 (1983).
16 Rule 2-433(a) identifies a broad range of sanctions available to the trial court for such failures of discovery, including
1. An order that the matters sought to be discovered, or any other designated facts shall be taken to be established for the purpose of the action in accordance with the claim of the party obtaining the order;
2. 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
3. An order striking out pleadings or parts thereof, . . . or dismissing the action or any part thereof[.]
17 See Taliaferro, 295 Md. at 391.
18 See id.
19 See id.
20 See id.
21 See Taliaferro, 295 Md. at 391.
22 A Rule 9-207 statement is a document filed in divorce cases when a monetary award or other property relief is at issue. In those cases, the parties are required to “file a joint statement listing all property owned by one or both of them.” Md. Rule 9-207(a).
23 To the extent Appellant argues that the circuit court’s sanctions orders were an abuse of discretion because the court failed to consider the relative fault of the Appellant as opposed to his attorney, that argument was not raised in the circuit court until Appellant filed a post- trial revisory motion. In light of Appellant’s “unexplained disregard” of outstanding discovery and “subsequent inadequate explanation” for failure to respond, the circuit court did not abuse its discretion in imposing sanctions. Warehime, 124 Md. App. at 51.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 06 MFLU Supp. 31 (2024)
Report and recommendation; exceptions; final judgment
In Re: A.F., Ab.F., H.B. & W.F.
Nos. 171 & 213, September Term 2024
Argued before: Leahy, Friedman, Beachley, JJ.
Opinion by: Leahy, J.
Filed: Dec. 19, 2024
The Appellate Court affirmed the St. Mary’s County Circuit Court’s termination of parental rights. Although both parents claimed that the St. Mary’s County Department of Social Services failed to demonstrate that its efforts to provide reunification services were reasonable, the record showed otherwise. And there was no clear error in the circuit court’s findings, and no abuse of discretion in the ultimate decision, that it was in the children’s best interests to grant the Department’s petition for guardianship and terminate mother’s and father’s parental rights.
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..
On July 22, 2022, the Department petitioned the court for an order of guardianship with respect to all four Children. On March 25, 2024, following an evidentiary hearing that was held after the Children had been in the care of the Department for over three and a half years without any contact with Father or Mother, the court granted the Department’s petitions. The court terminated Father’s parental rights to all four Children and Mother’s parental rights to W.F., and awarded guardianship to the Department with the right to consent to adoption. Father and Mother filed these timely appeals.
Father presents the following question for our review: “Did the hearing court abuse its discretion in terminating the parental rights of [Father] where the Department provided virtually no reunification services to [Father]?”
Mother asks:
“Did the trial court err in terminating [Mother’s] parental rights?”
For the following reasons, we shall affirm the judgments of the circuit court.
These consolidated appeals arise from orders terminating parental rights to four children: A.F. (born November 2013), Ab. F. (born November 2014), H.B. (born September 2015), and W.F. (born September 2018) (collectively, “the Children”).1 Appellant Mr. F. (“Father”) is the father of all four Children. Appellant Ms. F. is Father’s wife and the mother of W.F. The biological mother of A.F., Ab. F., and H.B. consented to the termination of her parental rights and is not a party to this appeal. For ease of reference, we shall refer to Ms. F. as “Mother,” even though she is the stepmother of A.F., Ab. F., and H.B.
On May 20, 2020, Father and Mother were arrested and charged with multiple counts of child abuse and child neglect. On the same date, the St. Mary’s County Department of Social Services (“Department”) removed the Children from the family home and placed them into emergency shelter care. On September 11, 2020, the Circuit Court for St. Mary’s County, sitting as the juvenile court, declared each of the Children to be a Child in Need of Assistance (“CINA”).2
Mother pleaded guilty to two counts of second-degree child abuse and was sentenced to 30 years of incarceration, with all but 15 years suspended, to be followed by five years of supervised probation. Father pleaded guilty to four counts of child neglect and was sentenced to a total of 20 years of incarceration, with all but eight years suspended, to be followed by five years of supervised probation. Neither parent has had contact with any of the Children since they were placed in the care of the Department on May 20, 2020.
BACKGROUND
A. Department’s Investigation of Report of Abuse and Neglect
On May 19, 2020, the Department received information that raised numerous concerns about the safety of the Children. It was reported that Mother hit one of the Children 15 times, in the presence of Father, who did not intervene. Mother allegedly made A.F., Ab. F., and H.B. “stand on the walls [sic] for hours holding books[.]” The Children were reportedly being deprived of food. W.F. had been bitten in the face by a dog and had a “gash” on the top of his head, but he had not received medical care. In addition, the report raised concerns about the safety of another child who lived in the house, Mother’s then 14-year-old daughter, D.C., “due to ‘drug dealers being after [Mother.]’”
On May 20, 2020, an investigator for the Department and a detective from the St. Mary’s County Sheriff’s Office made an unannounced visit to the home where the Children lived with Father, Mother, and Mother’s two older children, D.C., and A.C.3 Also living in the home were Mother’s mother, sister, and brother.
W.F. was observed to have a red mark under his eye and a “large cut” on the top of his head. When asked if W.F. had received medical attention for the cut, Mother said that she “saw a nurse” at a drugstore who told her to “put ointment on it[.]” The Department noted that the cut was “caked with dried
blood” and “had not been tended to.”
Father and Mother “refused to provide access” to A.F., Ab. F., and H.B., and “denied entry” to a locked room in the house. It “became apparent” to the Department that A.F., Ab. F., and H.B. were “being hidden.” They were located at the home of Jessica Thompson later that day.
When the Department responded to Ms. Thompson’s home, she immediately advised that, during the unannounced visit at the family home, A.F., Ab. F, and H.B. were being hidden in an upstairs bathroom by Mother’s mother. After the investigator and detective left the home, Mother brought them to Ms. Thompson’s house and told her to say that they had been with her all day.
A.F. was observed to have “significant bruising to [her] face, neck, and head.” H.B. had “several dark bruises” on his face. According to Ms. Thompson, Mother had instructed them to say that they fell, and told them that they would “go somewhere bad” if they told anyone what “actually” happened.
A.F., Ab. F., and H.B. were transported to the Child Advocacy Center where they underwent a physical examination and were interviewed and photographed. They were “observed to be visibly underweight and malnourished.” H.B.’s abdomen was “distended.” Ab. F. and H.B. had bruises on their inner thighs. They both reported that Mother “kicks them there.” A.F.’s vagina was “blistered and raw[,]” and she had “what appeared to be a burn” on her labia. She reported that Mother “kicks [her] there.” A.F. further disclosed that Mother “makes her go in the basement,” where Mother “ties her hands up with socks[,]” and then kicks her or “pulls her arms out[.]” When asked what happens after that, A.F. said, “the monster turns off the lights and yells and screams and scares me[,] and [Mother] and the monster hit, punch, bite, and kick me[,] and it hurts.”
Father’s mother (“Paternal Grandmother”) told the Department that Father and the Children lived with her for three months in 2019 due to Mother’s “violence.” During that time, A.F. complained that her mouth hurt, and told Paternal Grandmother that Mother had “shoved a marker down her throat.” Paternal Grandmother provided the Department with a photograph, evidently taken in April of 2019, that showed a “large significant cut in the back of [A.F.’s] throat.” Paternal Grandmother provided additional photographs “documenting the physical abuse of [A.F.] for a period of time.”
A.F. told the interviewer that she shares a room with Ab. F. and H.B. She said that Ab. F. and H.B. sleep in a bed, and she sleeps on the floor. Ab. F. reported that A.F. “isn’t allowed” to sleep in a bed. When Ab. F. was asked to describe their bedroom, she said that the windows are covered with boards because A.F. was “being bad.” H.B. was not interviewed “due to his inability to speak.” The Department noted that he communicated by “making grunting noises and pointing[.]”
A.F. and H.B. were transported to the emergency room for further evaluation of their injuries. Because of his distended abdomen, a skeletal survey was taken which revealed “a healed right lateral third rib and healed features of the third and fourth metacarpal bones.” A.F. was prescribed medication to treat a bacterial infection in her vaginal and inner thigh area.
A search warrant for the home was executed on the same day as the unannounced visit. In an upstairs bedroom that Mother
claimed was used for storage, police observed a mattress and box spring on a frame, and a crib mattress leaned up against a wall. Blood and feces were found on the floors, walls, and plastic bed covering. The lower portion of the two windows in the room were boarded up with plywood that was screwed into the window frames. Two more pieces of plywood with screws were located in the closet, and it was suspected that they had been secured across the upper part of the windows. Two cameras were mounted in the upper corner of the room.
An anonymous family member who lived in the home disclosed to the Department that the Children were “locked in that room all day” and were “sometimes” never let out. Father reportedly knew what was happening. The family member said that there were “some” days when she never saw the Children eat, and that she would “sneak” food to them when Mother was out of the house. She said, “I couldn’t help them when [Mother] was home because I would get in trouble. [Mother] told me she will kill me.” The family member further disclosed that D.C. was “made to fight” A.F., Ab. F., and H.B., and, if she refused, “she would be in trouble.”
Mother and Father were arrested, and both were charged with 12 counts of felony child abuse and four counts of neglect of a minor. The Children were placed in emergency shelter care.4 Mother and Father were denied bond.
B. CINA Proceedings
On May 22, 2020, the Department filed a CINA petition on behalf of each of the Children along with a request for continued shelter care.5 On August 5, 2020, the court held an adjudication and disposition hearing. Mother and Father were present and were represented by counsel. Following the hearing, the court declared each of the Children to be a CINA. The court ordered a permanency plan of reunification. Both parents were ordered to (1) complete mental health and substance abuse assessments and follow all recommendations; (2) maintain safe and stable housing, and (3) complete a parenting class and follow all recommendations. The court ordered that any contact between Father and the Children, and any contact between Mother and W.F., was to be as approved by the Department.
C. Father’s Status During CINA Proceedings
On July 9, 2020, Father was released from detention and placed on pretrial supervision. A condition of his release was that he have no contact with the Children. Father agreed to sign a service agreement with the Department to the same effect. While on pretrial supervision, Father went back to work on a full-time basis.
On November 17, 2020, Father entered a plea of guilty to four counts of neglect of a minor. He remained on pretrial supervision until January of 2022, when he was sentenced. In a report dated December 22, 2020, the Department noted that Father was not engaging in visitation with any of the Children due to the no contact order issued in his criminal case.
Father provided the Department with documentation confirming that he completed a substance abuse assessment, and that no additional services were recommended. He informed the Department that he completed a mental health assessment,
but he did not provide documentation and refused to sign a release to allow the Department to obtain those records. He repeatedly told the Department caseworker that he “didn’t do anything[,]” and that the Department was “out to get [him].” He became “angry and upset” when the caseworker explained that “by doing nothing, he did not protect the [C]hildren from abuse.” The caseworker noted that Father “does not appear to understand [that] his inaction is considered neglect and is a form of abuse[.]”
The Department provided Father with a referral for a parenting class, which he completed. According to the final report from the parenting program, Father’s remained at a “medium risk” level in all categories, and further education was recommended. In a report filed with the court on May 3, 2021,6 the Department noted that Father had completed parenting classes, but “continues to not understand his role in neglecting the [C]hildren.”
On January 21, 2022, the court sentenced Father to a total of 20 years of incarceration, with all but eight years suspended, commencing on May 20, 2020. In addition to a prison sentence, the court imposed five years of supervised probation.
On October 10, 2022, Father was released on parole and began his probation. A condition of Father’s probation is that he may not have unsupervised contact with the Children unless (1) permitted by a therapist and by the Department, and (2) ordered by the court.
D. Mother’s Status During CINA Proceedings
In December of 2020, Mother asked the Department to connect her with parenting skills classes and mental health services. Mother was unable to complete court-ordered tasks in the detention center, however, due to the COVID-19 pandemic.
On August 27, 2021, Mother pleaded guilty to two counts of second-degree child abuse. As a consequence, she was found to be in violation of conditions of probation related to a previous conviction for assaulting the biological mother of A.F., Ab. F., and H.B. She was sentenced to two and a half years for violation of probation.
On January 21, 2022, Mother was sentenced to a total of 30 years for the child abuse convictions, with all but 15 years suspended, to be followed by five years of supervised probation. Like Father, a condition of Mother’s probation is that she may not have unsupervised contact with the Children except with the permission of a therapist and the Department and upon further order of the court.
E. Children’s Placement and Progress
Upon removal from the family home on May 20, 2020, H.B. and W.F. were placed with Ms. Y, a licensed resource parent. A.F. and Ab. F were placed in a different foster home.
Paternal Grandmother expressed an interest in being a placement resource for the Children. The Department noted, however, that she had shown the caseworker “multiple photographs and videos of instances of abuse that were not reported[.]” The Department also noted that she “blames [Mother] for all of the abuse and defends [Father] despite obvious evidence [that] he was neglectful/abusive to the [C]hildren.” The Department ultimately excluded Paternal
Grandmother as an option for placement.
Mother’s mother was excluded as a placement option due to “extensive CPS [Child Protective Services] involvement to include her children being placed in foster care when they were children.” It was also noted that Mother’s mother had hidden the Children in the bathroom during the Department’s unannounced visit on May 20, 2020.
H.B. and W.F. adapted to their placement in Ms. Y’s home and became “well bonded” with her. The Department noted that H.B.’s speech “greatly improved” after his removal from the family home, and he was referred for speech therapy services. He received bi-weekly mental health therapy, which was discontinued on September 28, 2021, after the therapist determined that he had “stabilized.”
W.F. was evaluated for “behavioral concerns,” including throwing rocks and biting other children, and having “temper tantrums” when Ms. Y. or his daycare provider put him in “time out.” After some involvement by the Infants and Toddlers Program,7 it was noted that his “distress behaviors” had become age-appropriate and no further intervention was required.
A.F. and Ab. F. were moved to a second resource home in June of 2020. They were referred for “[t]rauma [f]ocused” therapy and began participating in twice-weekly virtual sessions.
A.F.’s behavior “became increasingly aggressive and potentially dangerous[.]” She was diagnosed with posttraumatic stress disorder and adjustment disorder. In October of 2020, she was moved to a diagnostic residential home upon the recommendation of her therapist, who believed A.F. needed a “higher level of care[.]” A.F. “[did] well with the structure” at the residential home and no longer displayed any of the behaviors that led to her placement. On April 14, 2021, A.F. was transitioned to a therapeutic resource home.
Ms. Y., the foster parent of H.B. and W.F., informed the Department that she wanted to reunify the Children. Ab. F. was moved to Ms. Y.’s home in January of 2021. In a report dated September 13, 2021, the Department noted that Ab. F., H.B. and W.F. were “extremely bonded” with Ms. Y., whom they referred to as “mommy.”
A.F. was transitioned to Ms. Y.’s home in September of 2021. In a report dated February 25, 2022, the Department noted that A. F. was “thriving in this placement with her siblings.” In a report dated September 10, 2023, the Department advised the court that A.F. “continues to thrive in [Ms. Y.’s] home and has a very close bond” with Ms. Y.
The Children have remained in the care of Ms. Y., who is committed to becoming their adoptive parent.
F. Permanency Plan of Reunification Changed to Adoption
In a report filed with the court on May 3, 2021, the Department advised the court that Mother and Father had not had contact with the Children since their removal from the home in May of 2020. The Department expressed concern about the pending criminal cases and informed the court that neither Mother nor Father had been “identified as safe and appropriate[.]”
In September of 2021, the Department recommended that the permanency plan for the Children be changed to adoption by a non-relative with a concurrent plan of guardianship by a
non-relative. In support of its recommendation, the Department noted that the Children had been in care for 16 months, and Mother and Father remained under orders to have no contact with the Children. The Department advised the court that Mother was “not a resource for the [C]hildren for the foreseeable future[,]” as she had been sentenced to two and a half years of incarceration for violation of probation related to a previous conviction, and she was yet to be sentenced for the child abuse convictions. As for Father, the Department noted that he was awaiting sentencing for child neglect and was under a court order that prohibited him from having contact with the Children. The Department noted that Father “continues to blame the Department and take no ownership of his involvement in the extreme abuse” of the Children.
On December 2, 2021, following a review hearing, the court rejected the Department’s recommendation for a permanency plan of adoption and instead ordered that the permanency plan for the Children be changed to custody and guardianship by a non- parent.
In a Department report dated February 25, 2022, the Department again recommended a permanency plan of adoption by a non-relative. The Department noted the Children had been in care for 21 months, during which time there had been no contact between the Children and either parent. The Children were “well[-]bonded” with Ms. Y., who had been identified as a pre-adoptive parent.
On June 1, 2022, following a review hearing, the court ordered that the permanency plan be changed to adoption by a non-relative. On July 22, 2022, the Department filed petitions seeking an order of guardianship as to all four Children, with the right to consent to adoption.
G. Termination of Parental Rights Hearing
The two-day Termination of Parental Rights (TPR) hearing began on November 20, 2023, and concluded on March 25, 2024.8 At that time, A.F. was ten years old; Ab. F. was nine, H.B. was eight, and W.F. was five. They had been in the care of the Department for three and a half years and had not had any contact with Father or Mother during that time. Both Mother and Father were represented by counsel, as were the Children.
The Department’s Evidence
At the Department’s request, the court took judicial notice of the records of the CINA cases. The Department introduced photographs of the Children that were taken after their removal from the home in May of 2020, and photographs of the family home taken during execution of the search warrant.
According to the testimony of Megan Roberts, the Crime Lab Supervisor for St. Mary’s County Sheriff’s Office, the photographs of A.F. depicted “suspected bruising” under one of her eyes, on her inner thigh and on her lower back, “suspected rash and bruising” on her inner thigh, “suspected wounds” on her elbows and legs, and “scarring” on her cheeks. Photographs of Ab. F. showed “ligature” marks on her legs, which was an indication that something had been “bound around” them, resulting in a “linear red line in that area.”9 The photographs also depicted “suspected” bruises on Ab. F.’s knees, lower back, and abdomen. Photographs of H.B. showed the distention of
his abdomen. Photographs of W.F. showed what appeared to be “bruising and potentially some . . . scabbing” on the top of his head, and a “scabbed wound” on his leg.
Stacey Hancock, a Crime Analyst employed by the St. Mary’s County Sheriff’s Office, testified about the evidence recovered during execution of the search warrant. She confirmed that the fluids and other substances depicted in the photographs of the floor and mattress in the room shared by A.F., Ab. F., and H.B. were positively identified as urine, blood, and feces. She testified that a window in the room was covered with boards, and that an audiovisual monitoring device that was taped to the wall of the room was connected to a screen in a bedroom believed to be occupied by Mother and Father.
Yvonne Wilson, a foster care caseworker assigned to the case, testified that the Children were “very much bonded” to each other, and to their foster parent, Ms. Y., who wanted to adopt them. Ms. Wilson stated that Ms. Y. is the president of the St. Mary’s County Foster Parent Association. She is employed by the federal government and holds a top-secret clearance. According to Ms. Wilson, Ms. Y. is “very nurturing and very responsive to [the Children’s] needs[,]” and the Children feel “very . . . stable and loved in [Ms. Y.’s] home.”
Ms. Wilson testified that it was in the Children’s best interest to be adopted by Ms.
Y. She explained: “Ms. Y. has shown that . . . she cares for the [C]hildren. She’s able to provide a stable home for them. She’s able to provide the support for them. She’s able to advocate for them when necessary.”
Father’s Evidence
Father testified that, since his release on parole in October of 2022, the Department contacted him once, to obtain consent for one of the Children to have a medical procedure. On cross examination, Father said that he did not contact the Department because he did not know the name of the caseworker. Father attended all but one hearing, which the caseworker also attended, but Father claimed the caseworker was never identified. He also admitted that he did not ask his attorney for the caseworker’s name or call the Department to request that information.
When Father was asked about his plan for the Children in the event his parental rights were not terminated, he said that he would be “willing to find out” how to have the order restricting his contact with the Children lifted. He claimed that he had tried to get in touch with his criminal attorney, but the attorney had not returned any of his calls or responded to any of his text messages.
In response to questioning by the court, Father said that he did not know about the bruises and ligature marks on the Children because he was not involved in dressing or bathing them. He stated that the “little gash” on W.F.’s head was the result of a fall, and he claimed that he had bandaged it. When the court asked Father to comment on the allegations that the Children were kept locked up in the bedroom, Father replied that he “didn’t spend very much time around the house”
because he “worked pretty late” and was sometimes “out of town.” When the court asked Father to explain the boardedup windows and the presence of feces, blood, and urine in the bedroom where A.F., Ab. F., and H.B. slept, Father said only that one of the windows had been boarded up because it was broken. When the court asked about the remaining evidence, Father responded, “I don’t have an explanation for it.”
Father admitted into evidence reports from 22 therapy sessions he participated in from September of 2020 to August of 2021. The sessions focused almost exclusively on his “unstable relationships” with Mother, his first wife, and his father, who had abused him; his fear of conflict; and his difficulty expressing anger and “standing up for himself.” The only mention of the Children was in a report dated January 11, 2021, in which the therapist noted: “We also explored the challenge for [Father] with his children, how he was not able to protect them from the abuse, because he had worked so hard not to see this, in the same way that his mother did not see his abuse. We explored his concerns about what would happen if he did see the abuse.”
Father asked the court not to terminate his parental rights. He said, “I know that I’ve made mistakes. There’s no denying it. I’ve been to [jail], I did my time I’m trying to change everything.” He added that he “definitely learned a lesson about this situation[,]” and that he “believe[d]” that he had “changed a lot.”
Mother’s Evidence
Mother introduced a report of her pre-sentence psychiatric evaluation, dated October 8, 2021. Mother told the psychiatrist who performed the evaluation that she did not assault the Children. She instead blamed A.F., stating that “she put her hands on the kids and it was not me[.]”
According to the report, prior to Mother’s incarceration, she experienced symptoms of “unmodulated anger, anxiety, and depression.” It was noted that Mother’s history “is significant for childhood trauma and abuse[,]” and that her “clinical profile is consistent with an individual struggling with complex trauma.” The report contains the following conclusion:
The evaluator acknowledges that [Mother] has a history of trauma and mental health concerns in addition to the stress of caring for multiple children. However, the gravity of the injuries and neglect, maladaptive and dysfunctional behaviors, and maltreatment simply cannot be ignored. Given a review of the documentation, it is this evaluator’s clinical belief that [Mother] presents as a risk of safety to her child[].
It is imperative that [Mother] continues to adhere to psychiatric treatment. This should include pharmacological interventions and long term individual therapy.” (Emphasis in original).
Mother testified that she had completed parenting and anger management classes during her incarceration. She completed training to become a “facilitator” for an “Alternatives to Violence” program and taught the class one weekend a month. She participated in therapy and a “Celebrate Recovery” program. She was a member of a book club and a writer’s club and had taken GED (General Educational Development) classes. She said that she had learned how to control her anger and that she had “changed a lot.”
Mother told the court that her parental rights should not be terminated because her rights had been violated. She said that she had only been given one update regarding W.F.; she was not advised that he had a surgical procedure; and she was not told why he was prescribed medication for ADHD. She added, “I feel [my] parental rights shouldn’t be terminated because I am his mother and he was only one and a half when he was taken from me. He hasn’t had a relationship with me due to the situation and circumstances.”
Mother stated that her mandatory release date was November 9, 2029. She would become eligible for parole in August of 2026. She proposed that W.F. be placed with Paternal Grandmother (whom the Department had previously ruled out as a placement resource) until such time as she was released and “completely . . . back on [her] feet” and “stable enough” to care for him.
On cross-examination, Mother was asked to explain her mistreatment of the Children and whether she had any regret for her actions. Mother declined to answer the question because there was a post-conviction motion pending in her criminal case.
The court then engaged in a colloquy with Mother. The court told Mother that he respected her attorney’s advice to refrain from saying anything that would negatively affect her request for post-conviction relief, but that he was “in somewhat of a difficult situation,” because he had to make a decision regarding W.F.’s welfare, which he preferred to do “based on information and not out of ignorance.” The court asked Mother whether she wanted to add anything to her testimony regarding the events that led to the Department’s investigation in May of 2020. Mother responded:
I can say that[,] from the time [A.F., Ab. F, and H.B] were in my home[,] to 2020, things were very up and down an[d] I tried to do the best that I [could] with them. And then I ended up having [W.F.] and that made things a little bit more difficult. Other than that, . . . I don’t want to say anything.
The Court’s Findings
After the parties had rested their cases, the court postponed argument and its ruling so that it could review the records in the CINA cases, and so that Father could submit documentation that he had completed mental health and substance abuse assessments. The hearing resumed on March 25, 2024.
At the conclusion of the hearing, the court the summarized the history of the case and the evidence presented at the hearing. The court engaged in an analysis of the statutory factors set forth in FL § 5-323(d), which requires the court to consider numerous factors that are grouped into four subcategories: (1) the services that the Department has offered to assist in achieving reunification of the child with the parents; (2) the results of the parent’s effort to adjust their behaviors so that the child can return home; (3) the existence and severity of aggravating circumstances [including abuse or neglect by the parent]; [and] (4) the child’s emotional ties, feelings, and adjustment to community and placement and the child’s general well- being.
In re Adoption/Guardianship of C.E., 464 Md. 26, 51 (2019) (discussing FL § 5-323(d)). We summarize the court’s findings as to
the relevant factors in each category.
a. Services That the Department Offered to Assist in Achieving Reunification – FL § 5-323(d)(1)(i-iii)
The court commented that the Department was “not going to get an A” for its efforts in attempting to contact Mother and Father, and found that the Department “[p]erhaps” could have provided additional services. At the same time, the court questioned the extent to which additional reunification services would have been “practical,” given the “criminal aspects” and the orders that restricted contact with the Children. The court found that reunification with either parent was unlikely to occur until the ultimate conclusion of their respective criminal cases. The court concluded that, in light of the “unique circumstances” of the case, the Department had offered “appropriate” reunification services.
b. Parents’ Effort to Adjust Behaviors So That the Children Could Return Home - FL § 5-323(d)(2)(i-iv)
The court commended Mother for her participation in programs while incarcerated. The court noted, however, that it was possible that Mother would remain incarcerated until 2029. The court found that, because of Mother’s incarceration, she would not be able to care for W.F. at any time “in the near future.”
The court credited Father with completing a substance abuse assessment and parenting classes. The court found that Father had made “minimal efforts” to maintain contact with the Department, but noted that his lack of effort could be attributable to the “no contact” order.10 The court found that, although Father was no longer incarcerated, and was employed, there was no evidence that he had contributed financially to the Children’s support.
c. Existence and Severity of Aggravating Circumstances – FL § 5-323d(3)(i-v)
The court commented that this was one of the worst cases of child abuse that he had seen. He described the conditions under which the Children had lived as “squalid, troublesome, [and] upsetting[.]” The court found that Mother subjected the Children to chronic abuse; that both Mother and Father subjected the Children to life-threatening neglect, and that both parents had been convicted of crimes as a result. The court remarked said that the “scale” of the abuse and neglect was comparable to cases that had garnered national attention, and found that the maltreatment of the Children was a form of torture.
d. The Children’s Emotional Ties, Adjustments, and Well-Being –FL § 5-323(d)(4)(i-iv)
The court found that the Children had been in care for almost four years. They were bonded with each other as well as with Ms. Y., who wished to adopt them. The court determined that the Children were in a stable environment and had a stable future ahead of them. The court commented that cases “of this nature[,]” did not often end with “that kind of resolution and hope.” The court found that, because the Children had been in care for almost four years, without having any contact with Mother and Father, and were adjusted to their placement, terminating Mother’s and Father’s parental rights would not have a detrimental impact on the Children.
The Court’s Ruling
Ultimately, the court concluded that Mother and Father were
unfit, and that there were extraordinary circumstances that made termination of their parental rights in the best interest of the Children. On March 25, 2024, the court issued written orders that provided for the termination of Mother’s parental rights to W.F., and the termination of Father’s parental rights to all four Children. The court granted guardianship of the Children to the Department, with the right to consent to adoption or long-term care short of adoption.
We shall include additional facts as necessary in our discussion of the issues.
STANDARD OF REVIEW
Our review of a decision to terminate parental rights “involves three interrelated standards: (1) a clearly erroneous standard, applicable to the juvenile court’s factual findings; (2) a de novo standard, applicable to the juvenile court’s legal conclusions; and (3) an abuse of discretion standard, applicable to the juvenile court’s ultimate decision.” In re Adoption/Guardianship of C.A. and D.A., 234 Md. App. 30, 45 (2017) (citing In re Yve S., 373 Md. 551, 586 (2003)).
The juvenile court’s factual findings are not “clearly erroneous” if there is any “‘competent material evidence’” in the record to support them. In re Ryan W., 434 Md. 577, 593-94 (2013) (quoting Figgins v. Cochrane, 403 Md. 392, 409 (2008)). “‘In making that decision, we must assume the truth of all of the evidence, and of all the favorable inferences fairly deducible therefrom, tending to support the factual conclusion of the trial court.’” C.A. and D.A., 234 Md. App. at 46 (quoting In re Adoption No. 09598, 77 Md. App. 511, 518 (1989)). Furthermore, “‘in a case involving termination of parental rights, the greatest respect must be accorded the opportunity [the trial court] had to see and hear the witnesses and to observe their appearance and demeanor.’” Id. (quoting In re Adoption/Guardianship Nos. 2152A, 2153A, 2154A in the Circuit Court for Allegany County, 100 Md. App. 262, 270 (1994)).
“’[I]f 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.’ C.E., 464 Md. at 47 (quoting In re Adoption/Guardianship of Ta’Niya C., 417 Md. 90, 100 (2010)). “In reviewing whether the juvenile court abused its discretion . . . [w]e are mindful that ‘to be reversed[,] the decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what the court deems minimally acceptable.’” Id. at 47-48 (quoting In re Adoption of Cadence B., 417 Md. 146, 155-56 (2010)).
DISCUSSION
It is well-established that parents have a fundamental right to raise their children. C.A. and D.A., 234 Md. App. at 47. “Nevertheless, the fundamental right of a parent to raise [their] child ‘is not absolute[.]’” Id. (quoting In re Mark M., 365 Md. 687, 705 (2001)).
“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.” C.E., 464 Md. at 48 (citing In re Najasha B., 409 Md. 20, 33 (2009)). “The grant of guardianship terminates the existing parental relationship and transfers to the State the parental rights that emanate from a parental relationship
Ideally, the State will re-transfer the parental rights to an adoptive family.” Id. (citing In re Adoption/Guardianship of Rashawn H., 402 Md. 477, 496 (2007)).
“In deciding whether parental rights should be terminated, the juvenile court’s overriding consideration is the best interest of the child.” In re: K.H., 253 Md. App. 134, 158 (2021) (citing Ta’Niya C., 417 Md. at 112). “The law presumes that a child’s best interests are served by maintaining a parental relationship between the child and the child’s parents, but the Department may overcome this presumption if it establishes, by clear and convincing evidence, that the parent is unfit or that exceptional circumstances exist that would make continuing the parental relationship detrimental to the child’s best interests.” Id. (citing C.E., 464 Md. at 50). See also FL § 5-323(b).11
The Maryland General Assembly created a list of factors that a court must consider in determining whether a parent is unfit, whether exceptional circumstances exist, and, ultimately, whether it is in the best interest of a child to terminate the relationship. Rashawn H., 402 Md. at 499. The factors are set forth in FL § 5-323(d), which provides:
[I]n 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 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 . . . or by a physician or psychologist[;]
(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
(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. FL § 5-323(d).
“[I]t is not necessary that every factor apply, or even be found, in every case.” In re Adoption/Guardianship of Jasmine D., 217 Md. App. 718, 737 (2014). Moreover, the court is not required to “weigh any one statutory factor above all others. Rather, the court must review all relevant factors and consider them together.” K.H., 253 Md. App. at 160 (quoting In re Adoption/Guardianship No. 94339058/CAD, 120 Md. App. 88, 105 (1998)). “‘Ultimately, these factors seek to assist the juvenile court in determining whether the parent is, or within a reasonable time will be, able to care for the child in a way that does not endanger the child’s welfare.’” Id. (quoting C.E., 464 Md. at 51-52) (additional citation and internal quotation marks omitted).
Parties’ Contentions
Mother’s primary challenge, and Father’s sole challenge to the termination of their parental rights is narrowly focused on the court’s analysis of one of the statutory factors, specifically FL § 5-323(d)(1)(ii), which requires the court to consider “the extent, nature, and timeliness of services offered by a local department to facilitate reunion of the child and parent[.]” “Implicit 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[.]” Rashawn H., 402 Md. at 500. Examples of reunification services include “educational services, vocational training, assistance in finding suitable housing and employment, teaching
basic parental and daily living skills, therapy to deal with illnesses, disorders, addictions, and other disabilities suffered by the parent or the child, [and] counseling designed to restore or strengthen bonding between parent and child, as relevant. Id.
Both Mother and Father claim that the Department failed to demonstrate that its efforts to provide reunification services were reasonable. The Department maintains that “any inadequacy in the Department’s provision of reunification services” was “vastly outweighed by “aggravating circumstances and other statutory factors” that favored the termination of parental rights.12 Similarly, the argument presented on behalf of the Children is that, under the facts of the case, the “limited” reunification services provided by the Department had “little practical impact on the possibility of reunification,” and, therefore, the court did not abuse its discretion in giving less weight to that factor.
Father’s Appeal
Father asserts that, although the Department provided him with referrals for a parenting class, a substance abuse assessment, and a mental health assessment, the Department failed to make reasonable efforts to provide “meaningful” reunification services. Specifically, he claims that he “repeatedly sought” a referral to a therapist “to assess the continuing viability” of the provision of his probation order that prohibits him from having unsupervised contact with the Children. He argues that the Department failed to provide him with such a referral, and, for that reason, the court abused its discretion in terminating his parental rights. We are not persuaded.
“There are some limits . . . to what the State is required to do” in providing reunification services. Rashawn H., 402 Md. at 500. For example, “[t]he State is not obliged 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.” Id. The State’s responsibility is to “provide reasonable assistance in helping the parent to achieve those goals[.]” Id. at 50001.
Contrary to Father’s claim that he “repeatedly sought” a referral to a therapist for the purpose of obtaining approval for unsupervised contact with the Children, there is no evidence in the record of any such request. Indeed, the undisputed evidence before the TPR court, including Father’s own testimony, established that he never contacted the Department in almost four years that the Children had been in care. The Department’s efforts to provide reunification services were not per se unreasonable solely because it did not offer Father an unsolicited referral so that he could petition the criminal court to modify the condition of his probation that prohibited unsupervised contact with the Children, especially where, in the Department’s view, Father was not a safe and appropriate caregiver.13
Mother’s Appeal
Mother maintains that the evidence does not support the court’s finding that the Department’s efforts were reasonable because it did not create a service plan for her, did not offer referrals to
Department-sponsored programs, did not investigate what services were available to her inside the correctional facility, and did not contact her except through her case manager at the correctional facility.14 We disagree.
The Department’s efforts to facilitate reunification “need not be perfect, . . . but are judged on a case-by-case basis.” In re Adoption/ Guardianship of H.W., 460 Md. 201, 234 (2018) (internal citation omitted). Here, the court found that, although the Department conceivably could have done more, its efforts were “appropriate” under the circumstances. We perceive no clear error in the court’s finding. Ms. Wilson, the Department caseworker, testified that the Department does not have the ability to provide services, such as substance abuse treatment or mental health assessments, inside correctional facilities. In any event, Mother received relevant services provided by the correctional facility. She was participating in therapy and a “Celebrate Recovery” program. She completed courses in parenting and anger management, and she was taking GED classes. While Mother claims that the Department should have provided her with additional services, she does not identify what additional services were reasonably required, or reasonably could have been provided by the Department, given that she was incarcerated throughout the CINA proceedings.
Mother’s secondary argument is that the court abused its discretion in terminating her parental rights because she had participated “extensively” in programs offered through the correctional facility, including therapy, anger management classes and parenting classes. We disagree. The court recognized Mother’s efforts and commended her for her participation in various programs. But that factor alone was not dispositive. See Jasmine D., supra, 217 Md. App. at 736 (all relevant factors are to be considered together without weighing any one factor above all others).
CONCLUSION
“[T]he controlling factor in adoption and custody cases is not the natural parent’s interest in raising the child, but rather what best serves the interest of the child.” C.A. and D.A., 234 Md. App. at 48 (quoting In re Adoption/Guardianship No. 10941, 335 Md. 99, 113 (1994)). “A critical factor in determining what is in the best interest of a child is the desire for permanency in the child’s life.” In re Adoption of Jayden G., 433 Md. 50, 82 (2013) (citing Nat’l Council of Juvenile and Family Court Judges, One of the Key Principles for Permanency Planning for Children (Oct. 1999)). “Permanency for children means having ‘constant, loving parents,’ knowing ‘that their home will always be their home; that their brothers and sisters will always be near; and that their neighborhoods and schools are familiar places.’” Id. at 82-83 (quoting Pew Comm’n on Children in Foster Care, Fostering the Future: Safety, Permanence and Well–Being for Children in Foster Care (2004)).
Based on our review of the record, we conclude that there was no clear error in the court’s findings, and no abuse of discretion in the ultimate decision that it was in the Children’s best interests to grant the Department’s petition for guardianship and terminate Mother’s and Father’s parental rights.
JUDGMENTS OF THE CIRCUIT COURT FOR ST. MARY’S COUNTY, SITTING AS A JUVENILE COURT, AFFIRMED. COSTS TO BE PAID BY APPELLANTS.
FOOTNOTES
1 H.B. is referred to in the CINA petition as H.F., but is otherwise referred to in the record as H.B.
2 A “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 (1973, 2020 Repl. Vol.), Courts and Judicial Proceedings Article (“CJP”) § 3-801(f).
3 As noted above, D.C. was 14 years old in May of 2020. D.C.’s CINA case was closed on January 30, 2024, after she turned 18-years old. A.C.’s age is not apparent from the record. Neither D.C. nor A.C. are parties to these appeals.
5 Shelter care is defined as “a temporary placement of a child outside of the home at any time before disposition.” CJP § 3-801(cc).
6 The date on the report is April 26, 2020, but, because it references events that occurred on April 14, 2021, and it was filed with the court on May 3, 2021, we assume that the report was finalized on April 26, 2021.
7 The St. Mary’s County Infants and Toddlers Program is “an interagency program” that is “designed for children birth to age three who are experiencing developmental delays . . . the areas of cognitive development, physical development, speech/language, social skills and/or self-help skills.” See St. Mary’s County Public Schools, Infants and Toddlers, https:// www.smcps.org/offices/special-education/infants-toddlers (last visited November 21, 2024)
8 The Supreme Court of Maryland explained that “there are three ways in which TPR proceedings may be initiated.” In re Adoption of Jayden G., 433 Md. 50, 78 (2013).
Specifically, first, . . . the department is required to file a TPR petition after the juvenile court finds that a permanency plan of adoption by a non-relative is in the child’s best interests. See CJP § 3- 823(g). Second, [Maryland Code (1984, 2019 Repl. Vol.), Family Law Article (“FL”)] § 5-525.1(b) requires the department to file a TPR petition when “the child has been in an out-of-home placement for 15 out of the most recent 22 months.” Third, if the department “determines that adoption . . . is in the best interest of the child,” it is required to “refer the case to the agency attorney,” and the attorney must file a TPR petition. FL § 5-525.1(a).
Id. Thus, “[a]lthough ‘a CINA adjudication must precede a TPR determination, it is a separate legal proceeding.’” Id. (emphasis added) (internal citations omitted). Once initiated, the procedures for the TPR proceedings are outlined in FL § 5-313, et seq. Although FL § 5-319(a) provides that the juvenile court “shall rule on a TPR petition within 180 days of filing[,]” the 180-day time limit is “not mandatory on the court.” Jayden G., 433 Md. at 81. In this appeal, the TPR proceedings were continued multiple times: first on January 20, 2023, by consent of the parties, then on August 14, 2023, on motions by both Father and Mother, and on October 25, 2023, again by consent of the parties.
9 The photos were marked, as a group, as Petitioner’s Exhibit 3. Ms. Robert’s identifies the child in the first six photos as “A.” and the child in the next two photos as “A.F.” We assume that “A.” is Ab. F., as she is also younger than A.F., and the child shown in the first six photos appears younger.
10 Although the court referred to the condition of Father’s probation as a “no contact” order, the language of the provision prohibits “unsupervised contact,” unlessapproved by a therapist and by the Department and ordered by the court. The court noted that it had no authority to modify the order for probation issued in Father’s criminal case.
11 FL § 5-323(b) provides:
If, after consideration of factors as required in this section, a juvenile 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 such that terminating the rights of the parent is in a child’s best interests, the juvenile court may grant guardianship of the child without consent otherwise required under this subtitle and over the child’s objection.
12 The Department points out that, pursuant to FL § 5-323(e), reunification efforts would have been irrelevant to the TPR court’s analysis if, in the CINA proceedings, reunification efforts were waived upon a finding that the parent “engaged in or facilitated . . . chronic or severe physical abuse . . . chronic and life-threatening neglect[,]” or torture of one or more of the Children. See CJP § 3-812(d). There is no indication in the record that reunification efforts were waived by the CINA court.
13 Although we find no clear error in the court’s finding that the Department provided reasonable reunification services, we note that, even where the Department’s efforts are not reasonable, reversal is not necessarily warranted. See In re Adoption/Guardianship No. 94339058/CAD in Circuit Court for Baltimore City, 120 Md. App. 88, 105 (1998) (affirming order terminating parental rights, even though the Department “could have done more to refer the appellant for services[,]” because the evidence pertaining to all of the statutory factors, considered together, was sufficient to uphold the court’s finding that termination was in the children’s best interests).
14 According to the record, the Department spoke with Mother on several occasions. On December 15, 2020, the caseworker participated in a conference call with Mother and her attorney. On April 22, 2021, the caseworker met with Mother at the detention center and gave her an update regarding W.F. On August 20, 2021, the caseworker spoke with Mother by phone. On December 9, 2021, the caseworker “reached out” to Mother to provide her with an update, although it is not clear if contact was made. The Department attempted to contact Mother on February 16, 2022, but was informed that she had been transferred to a different facility. On October 7, 2022, the Department spoke with Mother to give her an update regarding W.F. and advise her of the date of an upcoming hearing.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 06 MFLU Supp. 40 (2024)
Custody and access; modification; due process
Delshawn Harris v. Breana Nicholson
No. 556, September Term 2024
Argued before: Berger, Reed, Shaw JJ.
Opinion by: Reed, J.
Filed: Dec. 18, 2024
The Appellate Court affirmed the Prince George’s County Circuit Court’s modification of custody and access. The circuit court did not violate father’s right to due process during the modification hearing. And his other challenges were untimely or not properly before this Court.
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..
granted Appellee’s complaint in part and Appellant’s countercomplaint in part, and awarded the parties “joint legal custody and shared physical custody of” H.H. The trial court also granted Appellee “primary residential” custody and granted Appellant “reasonable rights of access.”
On October 26, 2023, Appellee filed a petition for modification of custody and access (hereinafter “Appellee’s petition”). On November 22, 2023, Appellant filed a petition to modify custody and visitation (hereinafter “Appellant’s petition”). On February 28, 2024, Larry A. Varner filed an “Affidavit of Personal Service,” in which he “attest[ed] and [swore] under threats of perjury that [he] served” Appellee’s petition “upon [Appellant], by personally handing him a true and correct copy of the [p]etition . . . on December 23, 2023 at 3:00 o’clock pm at 13512 Baltimore Avenue, Laurel, MD 20708, [Appellant’s] place of employment or business.”
This appeal concerns a custody dispute between Appellant, Delshawn Harris, and Appellee, Breana Nicholson. On April 26, 2024, the Circuit Court for Prince George’s County issued an order granting Appellee’s “Petition for Modification of Custody and Access.” This appeal followed.
Not all of the issues Appellant raised in his brief were timely. Rule 8-202(a) requires a notice of appeal to be filed within 30 days after entry of the judgment or order from which the appeal is taken. While Appellant’s notice of appeal of the April 26, 2024, order was timely, he also attempted to challenge the trial court’s earlier orders, including the original June 7, 2022, custody judgment. We only review Appellant’s timely allegations of error relating to the April 26, 2024, order.
While Appellant has not clearly articulated specific questions for our review, he seemingly alleges that he was denied due process during the modification proceedings. We disagree and find that the trial court did not violate Appellant’s rights to due process.
We therefore affirm the trial court’s judgments granting Appellee’s Petition for Modification of Custody and Access and dismissing Appellant’s Petition to Modify Custody and Visitation.
FACTUAL & PROCEDURAL BACKGROUND
Appellant and Appellee are the unmarried biological parents of a minor child, H.H., who was born on April 12, 2019. On November 22, 2021, Appellee filed a complaint for custody. On January 14, 2022, Appellant filed a counter-complaint for custody and child support. On February 24, 2022, Appellant filed an amended counter-complaint. On June 7, 2022, the court
On February 29, 2024, a hearing was held on the petitions before a magistrate. Appellee appeared with counsel, and Appellant appeared pro se. When the magistrate noted that both parties had filed petitions, Appellant replied: “Well, they filed first. The clerks made me file the answer. That was what I was told.” Appellee subsequently testified as to the “character of [her] communications” with Appellant, his lack of “interest in . . . co-parenting,” his failure to administer medication to H.H. and attend her medical appointments, and his failure to deliver H.H. to school in a timely manner and assist her in completing homework. Appellant subsequently testified as to his attendance of H.H.’s medical appointments and understanding of H.H.’s medical diagnoses and medication schedule. During his testimony, Appellant declared that the case was “null and void,” he was “done,” the court was to subsequently “communicate with [him] in writing,” and the court and its “building” were “triggering [Appellant’s] disabilities.” Appellant subsequently exited the courtroom.
Following the hearing, the magistrate issued a proposed order in which he recommended that the court grant Appellee’s petition, dismiss Appellant’s petition, award Appellee “sole legal and primary physical custody” of H.H., and award Appellant specified access to H.H. On April 26, 2024, the court signed the order, adopted the recommendations, and awarded the parties the recommended relief. On May 2, 2024, the clerk entered the order. On May 16, 2024, Appellant filed a notice of appeal from “the final judg[]ment dated” April 26, 2024. On October 31, 2024, Appellant filed his brief. Appellee is not participating in this appeal.
DISCUSSION AND ANALYSIS
Appellant’s brief is confusing, but as best we can determine, he presents three contentions. Appellant first challenges the court’s order of June 7, 2022, in which it granted Appellee’s complaint and granted Appellant’s counter-complaint in part. But, Maryland Rule 8-202(a) states that generally, a “notice of appeal shall be filed within 30 days after entry of the judgment or order from which the appeal is taken.” Appellant failed to file such a notice within thirty days after entry of the judgment of June 7, 2022, and hence, the judgment is not before us.
Appellant next contends that, for the following reasons, the court’s granting of Appellee’s petition and dismissal of Appellant’s petition “was done in violation of . . . due process:”
• “Appellant wasn’t served [with] that modification.”
• Mr. Varner’s affidavit is “fraudulent” and “false.”
• Appellant “was not proven guilty of an ‘injury in fact.’”
• The “evidence was proven ‘hearsay.’”
• “Appellant[’s] disabilities [were] triggered during this hearing.”
• “The court[] was given notice to only communicate with . . . Appellant in writing due to his disabilities.”
• The magistrate “already made a decision before allowing . . . Appellant to leave.”
We disagree. At the hearing on the petitions, Appellant expressly indicated that at the time that he filed his petition, he was aware of Appellee’s petition. Appellant also did not present any evidence that the statement made by Mr. Varner in his affidavit was “fraudulent” or “false.” Appellant does not
specify what constitutes an “injury in fact” in the context of a petition to modify custody and does not cite any authority that required Appellee to prove such an “injury.” Although the court, at the hearing on the petitions, excluded some of Appellee’s testimony on the ground of hearsay, the court did not exclude the entirety of Appellee’s testimony and evidence. Appellant does not cite any authority that required the court to deny Appellee’s petition, or award Appellant some form of relief, on the grounds that his “disabilities” had been “triggered” or that Appellant desired for the court to communicate with him only in writing. Finally, the transcript of the hearing on the petitions does not reflect that the court “made a decision before” Appellant exited the courtroom. In light of these circumstances, we conclude that the court did not violate Appellant’s right to due process.
Appellant next challenges the court’s “Order dated June 3rd 2024.” But the record contains no such order, nor any notice of appeal from such an order. Hence, no such judgment is before us. Finally, Appellant challenges “all decisions made from the beginning.” But, Appellant does not identify any judgment other than the court’s order of April 26, 2024, from which he timely filed a notice of appeal. Hence, any such “decisions” are not before us.
CONCLUSION
We affirm the judgment, dated April 26, 2024, granting Appellee’s Petition for Modification of Custody and Access and dismissing Appellant’s petition to modify custody and visitation.
JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 06 MFLU Supp. 42 (2024)
Report and recommendation; exceptions; reconsideration
The Appellate Court affirmed the Baltimore County Circuit Court’s denial of father’s motion for reconsideration of an order striking his exceptions to a magistrate judge’s report and recommendation. Father did not assert that the circuit court committed an error in striking the deficient exceptions, nor did he claim that the clerk failed to send the deficiency notice in accordance with Rule 20-203(d)(1).
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..
Submission of Father’s Exceptions Via MDEC
On March 1, 2024, Father, in his pro se capacity, filed “Exceptions to the Magistrate’s Report and Recommendations” through MDEC.2 See Md. Rule 9-208(f) (“Within ten days after recommendations are placed on the record or served . . . a party may file exceptions with the clerk.”). For this appeal, we do not need to detail the substance of the exceptions. What is relevant is that the submission lacked Father’s identifying information under his signature, as required by Maryland Rule 20-107(a)(2). This rule requires a filer who is required to sign a submission to include the filer’s signature3 and provide the following information below the filer’s signature: the filer’s address, e-mail address, and telephone number and, if the filer is an attorney, the attorney’s identifying Attorney Number registered with the Attorney Information System. That information shall not be regarded as part of the signature. A signature on an electronically filed submission constitutes and has the same force and effect as a signature required under Rule 1-311.
Md. Rule 20-107(a) (emphases added).4
This is an appeal from the denial, by the Circuit Court for Baltimore County, of a motion for reconsideration filed by Brian Silberberg, the appellant, whose exceptions to a magistrate’s report and recommendations in a custody matter were stricken due to his failure to cure a deficiency in the MDEC submission.1 Mr. Silberberg presents one issue for our review, which we quote:
Was the trial court’s denial of the Appellant’s Motion for Reconsideration and/or to Vacate based on his failure to cure a technical deficiency while he was unrepresented at the time legally correct?
For the following reasons, we affirm the order denying the motion for reconsideration.
BACKGROUND
Mr. Silberberg (“Father”) and Sara Silberberg, the appellee, (“Mother”) divorced in 2021, and they have two minor children together. Pursuant to the judgment of absolute divorce, the parties were awarded joint legal and shared physical custody of their children. In 2022, Father moved to modify custody.
A hearing on the merits of the modification request was held before a magistrate. The parties were each represented by counsel. On February 20, 2024, the magistrate issued a report and recommendations to deny Father’s motion to modify custody.
Father included his address and phone number in the case caption. He also listed his address, phone number, and e-mail address above his signature in the certificate of service. However, he did not include this identifying information below his signature on the exceptions.
Deficiency Notice
On March 4, 2024, the clerk issued Father a deficiency notice under Rule 20- 203(d)(1). This rule requires the clerk to send a notice to the filer describing the nature of the violation under certain circumstances. The notice described the deficiency as follows:
The submission does not have the filer’s address, e-mail address, telephone number, or the attorney’s identifying Attorney Number registered with the Attorney Information System as required by Rule 20-107(a)(2). (emphasis added).5
If the clerk issues a deficiency notice, the filer may file a request that the administrative judge (or that judge’s designee) direct the clerk to withdraw the deficiency notice. Md. Rule 20203(d)(3). “Unless (A) the judge issues such an order, or (B) the deficiency is otherwise resolved within 14 days after the notice was sent, upon notification by the clerk, the court shall strike the submission.” Id. The deficiency notice informed Father of the consequences for failing to resolve the deficiency: Pursuant to Maryland Rule 20-203(d)(3) the court will
strike the submission unless the deficiency is corrected or the deficient submission is withdrawn within 14 days or the court orders otherwise. Please make the correction(s) indicated [the deficiency described above] and refile or withdraw the submission within 14 days, making no other amendments, modifications, or changes to the submission except to correct the deficiency. The time to file any responsive submission shall run from the date that the correct submission is filed. The deficient submission file name(s) and date of filing are: Exceptions, 3/1/24.
(emphasis in original). Father, however, neither requested the court to withdraw the deficiency notice nor corrected the deficiency.
Court Strikes Father’s Exceptions and Denies His Motion to Modify Custody
On March 21, more than fourteen days after the clerk had issued the deficiency notice, the court entered an order striking Father’s exceptions. The order stated that the deficiency “has not been corrected within the required 14 days. The court has not issued an order related to the deficiency. Per Rule 20-203(d) (3), the deficient submission(s) is/are stricken.”
The following day, on March 22, the court entered an order denying Father’s request to modify custody. According to that order, this decision was made after considering the magistrate’s report and recommendations and the fact that Father’s “exceptions [had] been stricken.”
Father’s Motion for Reconsideration
That same day (March 22), Father filed a pro se “Motion for Reconsideration” of the order striking his exceptions. In the motion, Father stated:
I am representing myself in this matter. I filed Exceptions without an attorney.
I have received notice that my Exceptions, filed timely on March 1, 2024, have been stricken.
My exceptions appear to have been stricken due to a Notice that my filing did not contain my address, email address or telephone number.
The initial filing did include this information, albeit in a format and fashion which may have been irregular, but nonetheless all information required was provided.
Maryland has long held that trial courts have broad discretion to revise a judgment to ensure that “technicality does not triumph over justice.” Haskell v. Carey, 294 Md. 550, 558, 451 A.2d 658 (1982).
If Plaintiff is not permitted to proceed with his filed exceptions, this [c]ourt will be championing form over substance which case law and the notions of equity and fairness seek to prevent.
I respectfully request that the order striking my exceptions be vacated and/or reconsidered and that I be permitted to proceed with my Exceptions.
Additionally, I have paid for a copy of the transcripts to be transcribed back on March 4th 2024.
Mother opposed the motion, arguing that the clerk had issued a notice that clearly described the deficiency, the steps
needed to correct it, and the potential consequence of failure to cure it. She explained that Father was experienced in filing submissions through MDEC and had successfully corrected other deficiencies based on previous notices sent by the clerk.
On April 8, 2024, the court denied Father’s Motion for Reconsideration without explanation.
On April 22, 2024, Father noted this appeal.
SCOPE OF REVIEW & STANDARD OF REVIEW
The sole issue presented for our consideration is whether the circuit court erred in denying Father’s Motion for Reconsideration of the order striking his exceptions. During oral argument, Father confirmed that he was not appealing the earlier order that struck the exceptions. This distinction is important for appellate review.
A ruling on a motion for reconsideration is ordinarily discretionary. Morton v. Schlotzhauer, 449 Md. 217, 231 (2016). As we explained in Steinhoff v. Sommerfelt, 144 Md. App. 463, 484 (2002):
A decision on the merits, for instance, might be clearly right or wrong. A decision not to revisit the merits is broadly discretionary. The appellant’s burden in the latter case is overlaid with an additional layer of persuasion. Above and beyond arguing the intrinsic merits of an issue, he must also make a strong case for why a judge, having once decided the merits, should in his broad discretion deign to revisit them. Id. at 484–85 (emphasis added). Thus, we employ the abuse of discretion standard when reviewing a trial judge’s denial of a motion for reconsideration. See Hossainkhail v. Gebrehiwot, 143 Md. App. 716, 723–24 (2002).
Abuse occurs when the discretion was “manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons,” or when “no reasonable person would take the view adopted by the [trial] court.” Wilson-X v. Dep’t of Human Res., 403 Md. 667, 677 (2008) (alteration in original) (citation omitted); Jenkins v. State, 375 Md. 284, 295–96 (2003) (abuse occurs when the judge “exercises discretion in an arbitrary or capricious manner or when he or she acts beyond the letter or reason of the law”); Touzeau v. Deffinbaugh, 394 Md. 654, 669 (2006) (abuse may be found when the court acts without reference to any guiding rules or principles, where the ruling under consideration is clearly against the logic and effect of facts and inferences before the court, or when the ruling is violative of fact and logic).
DISCUSSION
Father’s argument can be divided into two contentions. First, he asserts that the circuit court’s denial of his Motion for Reconsideration was not “legally correct” because he was denied the right to a hearing under Maryland Rule 2-311(f). He does not claim that he was entitled to a hearing on his Motion for Reconsideration. Instead, he argues that he was entitled to a hearing on his exceptions before the court disposed of them. According to Father, he requested a hearing in the “Wherefore” clause of his exceptions, where he asked “to appear before a Judge and discuss all the evidence.” He explains that under Rule 2-311, the court cannot render a decision that is dispositive of a claim without first holding a hearing if one has been requested.
By denying his Motion for Reconsideration, he contends that the court disposed of his exceptions without providing him the opportunity for a hearing.
Second, Father argues that his exceptions contained all the necessary identifying information that would typically be found in a signature block, albeit formatted differently. He maintains that trial courts have broad discretion to revise a judgment to ensure that “technicality does not triumph over justice.” Haskell v. Carey, 294 Md. 550, 558 (1982). He also contends that upholding the denial of his motion would impose an extreme sanction for a technicality. See, e.g., Bond v. Slavin, 157 Md. App. 340, 355 (2004) (suggesting that including the wrong case number on motions for a protective order and a restraining order should not be grounds for denying those motions). Therefore, he argues that his Motion for Reconsideration should have been granted, and the court should have considered his exceptions.
A.
Entitlement to Hearing on Exceptions
Father’s first argument lacks merit. According to Maryland Rule 2-311(f), a hearing must be provided upon request before a court can grant a motion that is dispositive of a claim or defense. A dispositive ruling of a claim or defense occurs when the court’s “decision is one that conclusively settles a matter.”
Pelletier v. Burson, 213 Md. App. 284, 292 (2013) (citation omitted); see also Lowman v. Consol. Rail Corp., 68 Md. App. 64, 76 (1986) (stating that a court’s ruling can be “dispositive” even if the ruling is not a final judgment). The striking of Father’s exceptions was indeed dispositive, as it prevented him from challenging the magistrate’s recommendations, which the court ultimately adopted and resulted in the denial of his request to modify custody.
However, Father’s contention that the denial of the Motion for Reconsideration effectively disposed of the exceptions without a hearing is essentially attacking the striking of the exceptions themselves—an issue that he acknowledged is not the subject of this appeal. Even if this issue were properly presented on appeal, we would conclude that the circuit court did not err in disposing of Father’s exceptions without a hearing. Rule 2-311(f) specifies that “[a] party desiring a hearing . . . shall request the hearing in the motion or response under the heading ‘Request for Hearing.’ The title of the motion or response shall state that a hearing is requested.” The title to Father’s exceptions did not state that a hearing was requested, nor did he include a heading titled “Request for a Hearing” or a statement expressly requesting a hearing. Since Father did not request a hearing in the format required by Rule 2-311(f), the court was not required to hold a hearing before ruling on Father’s exceptions.
B.
Motion for Reconsideration
Regarding Father’s second argument, we conclude that the circuit court did not abuse its discretion in denying the Motion for Reconsideration. When a motion for reconsideration is filed within ten days after the entry of a final judgment, as in
JUDGMENT
this case,6 it is treated as a motion under Rule 2-534. See Bd. of Liquor License Comm’rs for Balt. City v. Fells Point Cafe, Inc., 344 Md. 120, 134 (1996). The court has broad discretion in deciding whether to grant a motion for reconsideration filed within ten days of the judgment, and its discretion is applied liberally so that technicality does not triumph over justice. Schlotzhauer, 224 Md. App. at 84. “[W]hether the court entertained a reasonable doubt that justice had not been done is an appropriate basis for the exercise of that discretion.” Benson v. State, 389 Md. 615, 653 (2005) (citation omitted).
“When a party requests that a court reconsider a ruling solely because of new arguments that the party could have raised before the court ruled, the court has almost limitless discretion not to consider those argument[s].” Schlotzhauer, 224 Md. App. at 85; see Steinhoff, 144 Md. App. at 484 (“The trial judge has boundless discretion not to indulge this all-too-natural desire to raise issues after the fact that could have been raised earlier but were not or to make objections after the fact that could have been earlier but were not.”). “By contrast, when a party makes a prompt and timely request that a court reconsider a ruling because of a development that the party could not have raised before the court ruled, the court can and should reconsider its decision.” Schlotzhauer, 224 Md. App. at 85. Thus, “in appeals from the denial of a post-judgment motion, reversal is warranted in cases where there is both an error and a compelling reason to reconsider the underlying ruling.” Id. at 85.
Here, the Motion for Reconsideration did not identify any error or compelling reason to revisit the order that struck Father’s exceptions. In the motion, Father did not assert that the court committed an error in striking the exceptions, nor did he claim that the clerk failed to send the deficiency notice in accordance with Rule 20-203(d)(1). Instead, Father argued that the court should overlook the technical deficiency and allow his exceptions to proceed. In evaluating whether there was reasonable doubt that justice had not been served, the court could have reasonably concluded that denying Father’s attempt to raise an argument—which could have been addressed earlier through the procedures outlined in Rule 20-203(d)(3)—would not result in any injustice. Moreover, his motion did not provide any reason, much less a compelling one, for failing to utilize those procedures before the court struck the exceptions.
During oral argument, Father acknowledged receiving an email regarding the deficiency. However, he claims that he did not realize the deficiency notice was included in that email until after his exceptions were struck. The problem with this claim is that it was not explicitly made in his Motion for Reconsideration for the court to consider. See Md. Rule 8-131(a) (“Ordinarily, an appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court.”); Baltimore County v. AECOM Servs., Inc., 200 Md. App. 380, 421 (2011) (“A contention not raised below . . . and not directly passed upon by the trial court is not preserved for appellate review.” (citation omitted)). Based on the points that were presented in the motion, we find no abuse of discretion in the court’s denial of Father’s Motion for Reconsideration.7
FOOTNOTES
1 Maryland Electronic Courts (“MDEC”) is “the electronic case management processing and record-keeping system used in the State of Maryland’s court system.” Att’y Grievance Comm’n of Md. v. Weinberg, 485 Md. 504, 540 n.22 (2023). Title 20 of the Maryland Rules governs electronic filing and the case management system. See Md. Rule 20-102.
2 That day, Father also filed a pro se motion to withdraw the appearance of his counsel through MDEC, indicating that he intended to proceed representing himself. But the clerk struck the filing because it was missing a certificate of service. On March 5, Father’s counsel filed a motion to withdraw his appearance. On March 27, the court struck the attorney’s appearance.
3 There is no dispute that Father was required to sign the exceptions submitted via MDEC. See Md. Rule 20-201(d) (“If, under Rule 1-311, the signature of the filer is required, the submission shall be signed in accordance with Rule 20-107.”); Md. Rule 1- 311(a) (requiring every pleading and paper of a party to be signed by the party if self- represented or by the attorney if represented by counsel).
4 Including identifying information is “important for purposes of identifying the filer and determining whether the filer is an attorney.” STANDING COMM. ON RULES OF PRAC. & PROC., SUP. CT. OF MD., ONE HUNDRED NINETY-SIXTH REPORT: NOTICE OF PROPOSED RULE CHANGES 15 (2018), https:// www.mdcourts.gov/sites/default/files/rules/reports/ 196threport.pdf [https://perma.cc/WY8C-MC7G].
5 The State Court Administrator adopted MDEC Policies & Procedures (the “Policy”) consistent with Title 20 of the Rules. See Md. Rule 20-103(b)(1). These policies and procedures include a non-exhaustive list of “examples of deficiencies in submissions that the State Court Administrator has determined constitute a material violation of the Rules in Title 20 or an applicable policy or procedure and justify the issuance of a deficiency notice under Rule 20-203(d).” Md. Rule 20-103(b)(1)(A). The examples listed by the Administrator “are intended . . . to require the clerk to issue a deficiency notice when the submission
is deficient in a manner listed by the State Court Administrator.” Md. Rule 20-103(b)(1)(A) Committee Note.
One such policy, in effect during the relevant time, required the clerk “[a]s soon as practicable after receiving the e-filing” to “review the submission to make sure that: It is signed in accordance with Rule 20-107 . . . .” ADMIN. OFF. OF THE COURTS, MD. JUDICIARY, MDEC POLICIES & PROCEDURES 30 (rev. Nov. 14, 2023)
https://wayback.archive-it.org/20042/20240122001645/ https://mdcourts.gov/sites/default/ files/import/mdec/ pdfs/manualh5.pdf [https://perma.cc/7ZFK-8ZVW]. As for identifying information below the signature, the Policy states, consistent with Rule 20-107(a), that:
When a submission is required to be signed by the filer it must contain the following: the filer’s signature Rule 20-107(a)(1), the filer’s address, email address, and telephone number and, if the filer is an attorney, the attorney number Rule 20-107(a)(2). The clerk will issue a deficiency notice if any of this information is missing.
Id. at 31 (emphasis added).
6 Father’s Motion for Reconsideration was filed within ten days of the circuit court’s order denying his request to modify custody. See Md. Code Ann., Cts. & Jud. Proc. § 12- 303(x) (“A party may appeal from any of the following interlocutory orders entered by a circuit court in a civil case: . . . [d]epriving a parent, grandparent, or natural guardian of the care and custody of his child, or changing the terms of such an order.”); Velasquez v. Fuentes, 262 Md. App. 215, 236 (2024) (“Custody orders are treated as final judgments.”).
7 At oral argument, Father argues the circuit court should have articulated its reason for denying his Motion for Reconsideration. We decline to address that point as it was not argued in his brief. See Ruiz v. Kinoshita, 239 Md. App. 395, 435 n.15 (2018) (declining to consider an argument raised for the first time at oral argument); Uninsured Emps.’ Fund v. Danner, 388 Md. 649, 664 n.15 (2005) (the Court need not address arguments raised at oral argument that were not briefed on appeal).
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Baltimore County Circuit Court’s judgments of marital property and child support. The trial court failed to determine on the record the total value of all marital property before making a marital property award. And because the trial court relied on approximations to find potential income, without first finding voluntary impoverishment, the child support award must be vacated.
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..
FACTS AND PROCEDURAL HISTORY
The parties married in December 2010 in Nigeria. They had two children during their marriage: Isabella, born in July 2017, and Ivanka, born in April 2019. The parties separated in January 2020 when the children were ages 18 months and 6 months, respectively. The Circuit Court for Baltimore County held two hearings regarding the grounds for divorce and the disputed issues on February 10, 2023, and September 13, 2023. The disputed issues included custody, visitation, child support, property distribution, alimony, and attorney’s fees. The trial court granted the parties an absolute divorce.
Appellant informed Appellee that he planned on seeking a divorce in January 2020. From that time until January 2021, Appellee and their children did not see Appellant. Appellant, who served in the military, was deployed at various times throughout the marriage. However, from January 2020 to January 2021, Appellee did not know if mAppellant was deployed or just living elsewhere. In January 2021, Appellant called Appellee and informed her that he was living in Texas but was moving back to Maryland.
This appeal originates from a divorce hearing between Oliver Ojih (“Appellant”) and Chioma Okongwu (“Appellee”) at which marital property, custody, and child support, among other issues, were decided. The Circuit Court for Baltimore County granted Appellee $35,000 in marital property without determining in the record the amount of total marital property. The trial court also granted Appellee sole legal and primary physical custody over the parties’ two children, aged 5 and 7. Lastly at issue, the trial court granted Appellee $1,284 in child support per month as well as $29,532 in child support arrears to be paid by Appellant based on approximations of his income without first finding that he is voluntarily impoverished. Appellant challenges the trial court’s decision on several grounds. The parties present us with the following questions, which we have rephrased as follows:1
1. Did the trial court err or abuse its discretion by granting the Appellee a marital property award in the amount of $35,000?
2. Did the trial court err or abuse its discretion in awarding sole legal and primary physical custody to the Appellee?
3. Did the trial court err or abuse its discretion in granting a child support award to Appellee based on an approximation of Appellant’s income without having first found that Appellant is voluntarily impoverished?
For the reasons below, we shall affirm the judgment of custody and vacate the judgments of marital property, child support, alimony, and attorney’s fees and remand for further proceedings consistent with this opinion.
In September 2022, Appellee and the two children were living in the marital home at 18 Tussock Court in Middle River, Maryland. Appellant was not living there at the time. In August 2022, Appellant received notice that the marital home was being foreclosed upon and was scheduled for auction. Appellant sent Appellee a notice to vacate the property by the beginning of October when Appellant intended to move back into the house. Appellant explained in the letter and testified that he was unable to maintain the cost of two homes— the home he was renting and living in and the mortgage of the marital home in which Appellee and the children were living—and would move back into the marital home to be able to pay the mortgage. Appellee vacated the property and moved to Texas in September 2022. She did not tell Appellant at the time that she was moving. She moved in with her sister and mother, where she did not have to pay rent and was able to rely on her family for childcare.
Appellant bought the property at 18 Tussock Court in November 2009, 13 months before the parties married. During the February hearing, he testified that the mortgage on the house is $1,022 a month. There is no evidence of what he paid as the down payment on the house, the fair market value of the home at the time of the marriage, or the outstanding mortgage at the time of the marriage.
Appellant had been deployed with the military several times throughout the marriage. Appellant testified to his deployment dates, however the trial court noted that there was confusion over Appellant’s whereabouts throughout the marriage. From
June 2016 to September 2017, Appellant served in Kuwait. The parties’ first child was born in July 2017. From November 2017 to April 2018, Appellant was stationed in Fort Hood, Texas. From July 2018 to May 2019, Appellant was deployed to Iraq and Kuwait. The parties’ second child was born in April 2019. From May 2019 to September 2019, Appellant was in various medical and rehabilitation centers in Texas and Virginia for an injury that occurred while deployed. From January 2020 to January 2021, Appellant was again mobilized to Fort Hood, Texas. Appellant is no longer active duty but receives about $1,100 per month from the Defense Financing and Accounting Service as an Army Reservist. In between deployments, until May 2021 when he resigned, Appellant was working as a corrections officer for the Maryland Department of Public Safety & Correctional Services making about $113,000 per year.
Appellant began working as a home improvement contractor around the time he resigned from being a corrections officer. He testified that he can make $30 per hour as a contractor. However, during the time of the trial he had stopped working in this field, and his sole income was driving for Uber and Lyft. At the time of the trial, he had plans to start working in home improvement again. The trial court found from his testimony that he can make between $3,600 and $4,000 per month driving for Uber and Lyft.
Appellee works part-time as a nursing assistant. She works, on average, 25 hours per week at $13 an hour. She is also in school completing her prerequisites for nursing school, for which, from the time of trial, she had about 18 months remaining. She then plans to attend nursing school which would take her an additional two to two and one-half years to finish.
The Trial Court’s Rulings
The trial court published its rulings in a memorandum opinion on November 29, 2023. We summarize the rulings here.
Marital Property Award
The trial court lists certain retirement benefits and the share to which Appellee is entitled. The trial court found that Appellee is entitled to one half of the marital share of Appellant’s military retirement, one half of the marital share of Appellant’s Thrift Savings Account Plan, and one half of the marital share of Appellant’s Maryland State Retirement and Pension. The court noted that Appellant’s Maryland Supplemental Retirement Plan (457b) had a value of $20,432.02 in October 2021 but only $822.14 in June 2022. The court did not find credible Appellant’s testimony that the money was used for family- related expenses. The court also noted that Appellee made multiple withdrawals from a Wells Fargo account, including one single withdrawal of $35,000, for questionable purposes and did not find Appellee’s testimony regarding the withdrawals convincing. The trial court found that the parties owned four vehicles, but the parties agreed to keep any vehicles in their possession and transfer title accordingly, which the court found equitable.
In considering the marital home, the trial court found that from the date of the marriage forward, all income used to pay the mortgage on the marital home and increase the equity therein is marital property. The trial court found the current value of the home to be $170,000, based on a professional appraisal, and the current lien to be about $122,000. The trial court did not calculate
the value of the nonmarital portion of the home.
The trial court did not determine a single amount of the total marital property but did state that it considered the relevant FL § 8-205 factors. The trial court ordered Appellant to pay Appellee a monetary award of $35,000 and stated this amount reflected “equitable determinations in the remaining equity in the marital home as well as all of the other factors.”
Custody
The trial court granted Appellee sole legal and primary physical custody. In reaching this conclusion the trial court considered, among other factors, that Appellant’s day-to-day presence in the children’s lives was sporadic at best, even when not deployed; that Appellant lives in Maryland and Appellee lives in Texas; that Appellee receives financial and childcare support from her mother and sister with whom she lives; and that Appellee has always overseen the children’s medical visits. The trial court specifically stated that Appellant’s deployments overseas “[are] in no way being held against him,” but rather that his unknown whereabouts when returning from deployments is troubling. The trial court awarded Appellant four weeks of visitation in the summer and alternating winter and spring holiday breaks, to be implemented by agreement of the parties.
Child Support
The trial court found that Appellant has held numerous jobs over the past several years, which has caused his income to fluctuate. The trial court relied on Appellant’s testimony that he could make approximately $30 per hour in home improvement. The trial court then calculated that at $30 per hour, 40-hours per week, and 4.3 weeks per month, Appellant would make $5,160 per month. The trial court also considered his testimony that he is making $3,600 to $4,000 per month driving for Uber and Lyft, which the trial court averaged to $3,800. The trial court then averaged the average Uber/Lyft monthly income with the average home improvement monthly income to find Appellant’s monthly income to be $4,480. The trial court based this finding on “all of the credible testimony.” The trial court then added the Appellant’s military pay and found his income to be $5,642 per month, and based on the Maryland Child Support Guidelines, his monthly child support obligation would be $1,284, plus $29,532 in arrearages.
STANDARD OF REVIEW
Marital property issues are a question of fact that should not be overturned unless the trial court’s findings are clearly erroneous. Innerbichler v. Innerbichler, 132 Md. App. 207, 229 (2000). When the trial court’s findings are supported by substantial evidence, the findings are not clearly erroneous. Innerbichler, 132 Md. App. at 230. “If there is any competent evidence to support the factual findings below, those findings cannot be held to be clearly erroneous.” Fuge v. Fuge, 146 Md. App. 142, 180 (2002).
In reviewing a custody decision, “an appellate court does not make its own determination as to a child’s best interest.” Gordon v. Gordon, 174 Md. App. 583, 637 (2007). An appellate court uses “three distinct aspects of review in child custody disputes.” Davis v. Davis, 280 Md. 119, 125 (1977). First, factual findings are reviewed
for clear error. Id. at 125-26. Second, errors of law will typically require “further proceedings in the trial court…unless the error is determined to be harmless.” Id. at 126. Lastly, we review the ultimate conclusions in a custody determination under an abuse of discretion standard. Id. “There is an abuse of discretion 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.” Bord v. Baltimore County, 220 Md. App. 529, 566 (2014) (quoting In re Adoption/Guardianship No. 3598, 347 Md. 295, 312 (1997)). To constitute an abuse of discretion, the conclusions must be “well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.” North v. North, 102 Md. App. 1, 14 (1994).
Furthermore, in reviewing a child support determination, “[w] e will not disturb the trial court’s discretionary determination… absent legal error or abuse of discretion.” Smith v. Freeman, 149 Md. App. 1, 20 (2002). See also Kaplan v. Kaplan, 248 Md. App. 358, 385 (2020). “[W]here the order involves an interpretation and application of Maryland statutory and case law, our Court must determine whether the lower court’s conclusions are ‘legally correct’ under a de novo standard of review.” Walter v. Gunter, 367 Md. 386, 392 (2002).
DISCUSSION
A) THE MARITAL PROPERTY AWARD MUST BE VACATED AND THE CASE REMANDED FOR FURTHER PROCEEDINGS
Marital property is defined in Family Law Article § 8-201(e) (1) as “property, however titled, acquired by 1 or both parties during the marriage.” Marital property does not include property acquired before marriage. FL § 8-201(e)(3)(i). Maryland courts follow a three-step procedure to determine whether to grant a marital property award to achieve equity between the spouses in dividing marital property. Flanagan v. Flanagan, 181 Md. App. 492, 519 (2008). See Doser v. Doser, 106 Md. App. 329, 349 (1995) (“The purpose of the monetary award is to correct any inequity created by the way in which property acquired during marriage happened to be titled.”). First, the trial court must determine whether each item of property is marital or nonmarital. Second, the trial court must determine the value of all the marital property. Flanagan, 181 Md. App. at 519. In this step of the process, a trial court “should consider the dissipated property as extant marital property…to be valued with the other existing marital property.” Sharp v. Sharp, 58 Md. App. 386, 399 (1984). Third, the trial court must decide if the division of marital property according to title would be unfair and, if so, determine whether, and at what amount, to make a monetary award to rectify the inequity. Flanagan, 181 Md. at 519-20. To determine an equitable award, the court must consider the factors in Family Law Article § 8-205.
While the trial court here did indicate that certain items of property are marital, the court included insufficient findings in step two of the process: determining the value of all the marital property. In Randolph v. Randolph, the Appellate Court of Maryland held that the trial court should not have granted a monetary award without first identifying and valuing the marital property. 67 Md. App. 577, 584 (1986) (“§ 8–204 unequivocably [sic] requires the court to determine the value of all marital property. Those
determinations are prerequisites to the granting of a monetary award.”). See also Campolattaro v. Campolattaro, 66 Md. App. 68, 78 (1986) (“While it is discretionary with the chancellor to make a monetary award and to determine the amount of that award, it is mandatory that if the division of the property is at issue, he first determines which property is marital property and, then, determines the value of all marital property.”). In contrast to the § 8– 205 factors a judge must consider in step three, for which it is often sufficient for a trial judge merely to state that they considered the factors, § 8–204 requires a judge to determine the value of all marital property and state that determination in the record. Randolph, 67 Md. App. at 585 (“Where the statute requires the court to determine an issue, that determination must appear in the record.”).
Appellant argues that the value of the marital equity in the 18 Tussock Court property was less than the trial court considered because the court did not take into account the down payment or first year’s mortgage payments paid by Appellant before the marriage. Appellee, in contrast, argues that the monetary award determined by the trial court was within the court’s sound discretion. Appellee asserts that the court correctly classified the home as marital property because there was no testimony regarding the pre- marital value of the home.
While Appellant is generally correct that the nonmarital portion of a home should not be included in the total value of marital property subject to equitable distribution, here, Appellant did not produce sufficient evidence for the court to determine a nonmarital share of the home. The Supreme Court of Maryland, in Harper v. Harper, held that the Maryland courts should apply the source of funds theory to property divided at divorce, according to which: “when property is acquired by an expenditure of both nonmarital and marital property, the property is characterized as part nonmarital and part marital.” 294 Md. 54, 80 (1982). The nonmarital value of the home must be calculated based on the “ratio that the nonmarital investment bears to the total nonmarital and marital investment in the property.” Grant v. Zich, 300 Md. 256, 276 n.9 (1984).2
However, to make such a calculation, the trial court needs to know the fair market value of the property and the remaining indebtedness at the time of the marriage. See id. (calculating wife’s nonmarital investment using the purchase price, wife’s nonmarital down payment, and the remaining mortgage). Appellant presented neither as evidence at trial. The burden of production of such evidence is on Appellant as the party asserting that a portion of the property is nonmarital. As the Appellate Court of Maryland stated in Golden v. Golden: “[T]he party asserting that a portion is nonmarital bears the burden of tracing the expenditure to nonmarital funds. If he or she cannot do so, the increase in value is considered to be marital property.” 116 Md. App. 190, 205 (1997).
Appellee is correct that there was insufficient evidence to calculate the nonmarital share of the 18 Tussock Court property. Appellant did not present evidence of either the down payment he paid on the house or the fair market value of the house at the time of the marriage. Appellant included the down payment and purchase price in his brief on appeal, but these figures were not presented at trial and therefore could not be considered by the trial court. While there is some evidence of mortgage payments made
before the marriage by Appellant in the trial transcript, these are insufficient because there is no record of, or means of calculating, the amount remaining on the mortgage at the time of the marriage. Because Appellant did not produce sufficient evidence to trace the increase in value to his nonmarital contributions, the entire home was correctly considered marital property.
While the trial court was correct in considering the current fair market value of the house as marital property, the trial court’s failure to determine on the record the total value of all marital property before making a marital property award requires us to vacate the monetary award and remand for further proceedings. See Campolattaro, 66 Md. App. at 78 (“The failure to comply with the three-step process requires vacation of any marital award made.”).
The Appellant further takes issue with the trial court’s determination of dissipated assets. The trial court found that there was evidence that Appellant spent down approximately $20,000 of the Maryland Supplemental Retirement Plan without a credible explanation. The trial court also found that Appellee made many withdrawals from a Wells Fargo account for questionable purposes, including a single $35,000 withdrawal that she was unable to account for while testifying. The trial court noted that these findings were considered in determining the marital property award. Appellant argues that the trial court erred in awarding Appellee $10,000 from the $20,000 the court found Appellant to have dissipated without awarding Appellant anything from the $35,000 Appellee spent. In the alternative, Appellant argues that the trial court should have awarded him the entire $35,000 because that amount came from a loan which was not a marital asset.
In response to Appellant’s contention that the trial court erroneously awarded Appellee $10,000 of the $20,000 that he spent, we note that this division is not corroborated by the trial court’s memorandum opinion. The court’s opinion merely states that the award of $35,000 “reflects my equitable determination in the remaining equity in the marital home as well as all of the other factors noted above.” There is no indication in the trial court’s opinion that the amount was divided in half, only that the court found the spendings of both parties “of consequence” and both parties’ spendings were reflected in the award. Furthermore, there is no requirement that any amount must be divided equally. See Alston v. Alston, 331 Md. 496, 508 (1993) (“…[O]ur statute requires ‘equitable’ division of marital property, not ‘equal’ division.”). We cannot say that the trial court abused its discretion in finding and considering these amounts. However, insofar as these amounts are part of dissipated marital property, which is rightfully considered in determining a marital property award, these findings are also vacated. The entire marital property award should be determined anew on remand. If the trial court finds these amounts to have been dissipated on remand, the amount of dissipated marital property should be identified in the court’s schedule of marital property.
B) THE TRIAL JUDGE DID NOT ABUSE HIS DISCRETION IN AWARDING APPELLEE FULL LEGAL AND PRIMARY PHYSICAL CUSTODY.
In a child custody determination, Maryland courts must determine what is in the best interest of the child. See Ross v. Hoffman, 280 Md. 172, 174-75 (1977) (“[The] best interest standard is firmly entrenched in Maryland and is deemed to be of transcendent importance.”); Azizova v. Suleymanov, 243 Md. App. 340, 347 (2019) (“Unequivocally, the test with respect to custody determinations begins and ends with what is in the best interest of the child.”) (citing Boswell v. Boswell, 352 Md. 204, 236 (1998)). Maryland courts rely on factors from two cases to determine what custody arrangement is in a child’s best interest.
This Court’s decision in Montgomery County Department of Social Services v. Sanders provides ten non-exclusive factors for a trial court to consider when determining custody 38 Md. App. 406, 420 (1977). These factors are: (1) fitness of the parents; (2) character and reputation of the parties; (3) desire of the natural parents and agreements 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 opportunities for visitation; (9) length of separation from the natural parents; and (10) prior voluntary abandonment or surrender. Id. A court should not weigh any one factor to the exclusion of the others but instead should look at the totality of the circumstances. Id. at 420-21.
In Taylor v. Taylor the Supreme Court of Maryland also established a list of factors for custody determinations. 306 Md. 290, 304-11 (1986). These factors are: (1) capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare; (2) willingness of parents to share custody; (3) fitness of parents; (4) relationship established between the child and each parent; (5) preference of the child; (6) potential disruption of child’s social and school life; (7) geographic proximity of parental homes; (8) demands of parental employment; (9) age and number of children; (10) sincerity of parents’ request; (11) financial status of the parents; (12) impact on state or federal assistance; (13) benefit to parents; and (14) any other factor that reasonably relates to the issue. Id. These factors were not intended to replace any factors that trial judges already consider, such as the Sanders factors listed above. Id. at 303.
The trial judge explicitly discussed and weighed twenty factors from Sanders and Taylor to determine that it was in the children’s best interest to grant Appellee sole legal custody and primary physical custody. A trial court need not explicitly discuss every factor, and it is not essential that this court would have weighed the factors in the same exact way as the trial judge.
Appellant points to two supposed issues with the trial court’s evaluation of the factors. First, Appellant seems to take issue with the trial court’s weighing of Appellee’s relocation with the children to Texas. Second, Appellant contends that the trial court held his military service against him in deciding to grant Appellee sole legal and primary physical custody.
We cannot say that the trial court abused its discretion in weighing the geographic distance between the parties. The Supreme Court of Maryland has explained that the effect of one parent relocating to a different state on a decision to modify
custody will depend on “the relationship that exists between the parents and child before relocation,” noting that “[i]f one parent has become the primary caretaker, and the other parent has become an occasional or infrequent visitor, evidencing little interest in day-to-day contact with the child, the adverse effects of a move by the custodial parent will be diminished.” Domingues v. Johnson, 323 Md. 486, 501-02 (1991). Here, the trial court did acknowledge that Appellee moved abruptly and without notice to Texas. However, the court continued by noting that Appellant’s involvement with the children had been marginal before the move. As opposed to Domingues, in which the non-moving father had a very close relationship with the children, regularly exercised extensive rights of visitation, and spent substantial periods of time with the children, here, the trial court found that “[Appellant]’s day-to-day presence in the children’s lives can be described as sporadic, at best” and so, chose not to weigh the relocation against Appellee. See Domingues, 323 Md. at 502. Furthermore, in his analysis of multiple factors, the trial judge weighed the children’s location in Texas as supporting granting custody to Appellee. When considering each parent’s ability to maintain the children’s relationship with their relatives, the trial court explained that living in Texas allows the children to have a stronger relationship with their maternal aunt and grandmother, with whom they now live. The trial court also weighed the sheer geographic distance between the parties as not supportive of joint custody. When considering the ability of each parent to maintain a stable and appropriate home, the trial court reasoned that the move to Texas has allowed Appellee to provide a more stable life for the children thanks to the financial and childcare assistance she receives from her sister and mother. In considering the potential disruption of the children’s social and school lives, the trial court noted that the children are comfortable and entrenched in their schools, activities, and social lives in Texas, where they have lived for over a year. While the trial court noted the abruptness and unilateral nature of Appellee’s decision to move to Texas, overall, the court adequately exercised its discretion to weigh the circumstances of the move and the children’s lives now in favor of granting Appellee sole legal and primary physical custody.
Regarding Appellant’s second contention, in reviewing the opinion by the trial court, Appellant’s military service was not held against him. Appellant claims that Maryland Family Law Code § 9-108 states that if a parent is deployed or may be deployed in the future, the trial court cannot use this as the sole reason to change or deny custody or visitation. This section of the Family Law Code discusses the effects of a parent’s deployment when the child custody order is issued during a parent’s deployment and when a parent petitions for an order upon returning from deployment, as well as accommodations of the non-deployed parents during the other parent’s deployment. The section does not discuss how a court may weigh a parent’s military deployments. Regardless, the trial court did not weigh Appellant’s military deployments against him. The trial court explicitly stated: [Appellant] has admirably served his country and has been deployed away from home on numerous occasions. To be clear, this fact is in no way being held against him. There was, however, concerning testimony regarding [Appellant]’s whereabouts upon returning home from overseas deployments and whether/when [Appellee] and family knew
exactly where [Appellant] was living. This is troubling. This fact has undoubtedly hindered [Appellant]’s ability to nurture a full relationship with the children. Consideration of this factor does not support awarding joint custody.
The trial judge made clear that the military deployments were not considered negatively against him. Rather, his unknown whereabouts when not deployed were weighed against granting joint custody. Appellant has provided additional documents that were not presented at trial in an attempt to counter the trial court’s finding that he was absent apart from his deployments. As these documents were not admitted into evidence at trial, they cannot be considered here.
C) CHILD
SUPPORT MUST BE VACATED AND REMANDED BECAUSE TRIAL COURT RELIED ON APPROXIMATIONS AND TESTIMONY TO FIND POTENTIAL INCOME WITHOUT FIRST FINDING VOLUNTARY
IMPOVERISHMENT
When establishing child support payments, a court must calculate the income of both parents. Income is defined in § 12–201(b) of the Family Law Article as: (1) the actual income of a parent, if the parent is employed to full capacity; or (2) potential income of a parent, if the parent is voluntarily impoverished.
Section 12–201(b) of the Family Law article defines “actual income” as income from any source. This article also instructs that income statements of the parents be verified with documentation of both current and past actual income, including pay stubs, employer statements otherwise admissible under the rules of evidence, or receipts and expenses if self-employed, and copies of each parent’s three most recent federal tax returns. FL § 12203. In Ley v. Forman, the Appellate Court of Maryland vacated and remanded a child support award because the court relied on approximations and estimations of income and failed to make specific findings of fact regarding the parties’ incomes. 144 Md. App. 658, 665 (2002). The court reasoned that “[t]he clear intention of the legislature requires the trial court to consider actual income and expenses based on the evidence. The court must rely on the verifiable incomes of the parties, and failure to do so results in an inaccurate financial picture.” Id. at 670.
In contrast, “potential income” means income attributed to a parent determined by:
(1) the parent’s employment potential and probable earnings level; (2) the parent’s assets;
(3) the parent’s actual income from all sources; and (4) any other factor bearing on the parent’s ability to obtain funds for child support. FL § 12-201(m). Potential income necessarily involves a degree of speculation as it cannot be verified through documentation or otherwise. Durkee v. Durkee, 144 Md. App. 161, 187 (2002). It may only be considered, however, if the trial court first makes a finding that the party to whom income is being imputed is voluntarily impoverished. Id. at 183 (“[A] trial court must find voluntary impoverishment in order to impute income to that parent for purposes of calculating child support.”). Voluntary impoverishment occurs whenever a parent has made “the free and conscious choice, not compelled by factors beyond his or her control, to render himself or herself without adequate resources.” Goldberger v. Goldberger, 96 Md. App. 313, 327 (1993). To determine voluntary impoverishment, the court must inquire
into the parent’s motivations and intentions. Wills v. Jones, 340 Md. 480, 489 (1995).
Appellant argues that the trial court considered his potential income as opposed to his actual income, and that to consider potential income, it first needed to analyze whether, and find that, he was voluntarily impoverished. We agree.
The Appellee contends both that the trial court’s determination of Appellant’s income was not speculative and that the trial court did in fact conclude that the Appellant was voluntarily impoverished. Appellee notes that the trial court grounded its determination of income in Appellant’s own testimony regarding his approximate earning capacity and income range. However, approximations are insufficient to support a finding of actual income. Here, the trial court considered an approximate hourly wage and a monthly range to find what Appellant could make if he worked 40 hours per week. However, the trial court also noted that his jobs do not allow for guaranteed reliance on a 40-hour work week.
If actual income is not correctly considered, the court must use a party’s potential income. However, in order to consider potential income, the trial court first must find that Appellant was voluntarily impoverished, which the trial court did not do here. In arguing that the trial court correctly used Appellant’s potential income, Appellee notes that the trial court considered the factors laid out in John. O. v. Jane O., 90 Md. App. 406, 422 (1992), and that Appellant’s significant decrease in income from a stable position to the gig economy raised concerns about voluntary impoverishment. The trial court may have considered certain voluntary impoverishment factors in other areas of its opinion and these concerns may be warranted, but the failure to make a specific finding of voluntary impoverishment necessitates a remand in this case. In John O. v. Jane O., the trial court considered certain factors and found that Mr. O. was physically capable, educated, and possessed other skills which would make him employable. 90 Md. App. at 422-23. Furthermore, to make a finding of voluntary impoverishment, the trial court must consider the party’s motivation, see Wills, 340 Md. at 489,
which the trial court here also did not do.
The child support award is therefore vacated and remanded for the trial court to either make a finding on Appellant’s actual income, supported by appropriate documentation, or find that Appellant is voluntarily impoverished and then calculate potential income.
D) VACATED MARITAL PROPERTY NECESSITATES VACATING ALIMONY AND ATTORNEY’S FEES
The trial court here declined to make an award of alimony or attorney’s fees. Neither party has appealed these decisions. However, although those findings may be sustainable, our vacation of the monetary award mandates that the trial court reconsider its decision regarding alimony and attorney’s fees. See Turner v. Turner, 147 Md. App. 350, 400 (2002) (“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.”). The trial court may reconsider requests for alimony and attorney’s fees on remand.
CONCLUSION
Insufficient findings on the value of all marital property necessitates remanding the issue of the marital property award to the trial court. Because the marital property award will be reconsidered, alimony and attorney’s fees may also be reconsidered. The trial court’s findings on the Appellant’s income were not supported by adequate evidence and were rather approximations that do not constitute actual income. Nor did the trial court make a finding on voluntary impoverishment necessary to consider the Appellant’s potential income. On remand, the trial court must determine Appellant’s actual income based on adequate documentation or determine that Appellant was voluntarily impoverished. The trial court’s custody determination was not an abuse of discretion and is not to be reconsidered on remand.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY, OTHER THAN GRANT OF ABSOLUTE DIVORCE AND CUSTODY, VACATED. CASE REMANDED TO THE CIRCUIT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
FOOTNOTES
1 Appellant presented the questions as follows:
1) Whether the divorce court abused its discretion, and/or erred as a matter of law by granting a monetary award to Appellee in excess of the value of marital property the divorce court itself determined was titled in the name of husband before the marriage, resulting in wife’s receiving more than what the court determined was the value of all of the parties’ marital property?
2) Whether the circuit court erred in awarding sole legal and primary physical custody to the Appellee?
3) Whether the circuit court erred in making a child support award based on pure speculation of what Appellant “could” make?
2 Although the holding in Grant v. Zich, 300 Md. 256 (1984), was superseded by statute on the grounds that there is now a presumption that property held as tenants by the entirety is marital, the case’s requirement of tracing is still applicable to real property not titled by the entireties, as is the case here. FADER’S MARYLAND FAMILY LAW 13-24 n.122 (Cynthia Callahan & Thomas C. Ries eds., 7th ed. 2021). See also McGeehan v. McGeehan, 455 Md. 268, 283-84 (2017) (stating that Grant v. Zich has been superseded by statute).
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 06 MFLU Supp. 52 (2024)
Custody; child support; attorney’s fees
Jennifer Meeks v. Colin Meeks
No. 654, September Term 2024
Argued before: Graeff, Nazarian, Shaw, JJ.
Opinion by: Graeff, J.
Filed: Dec. 10, 2024
The Appellate Court vacated the Baltimore County Circuit Court’s denial of mother’s request for attorneys’ fees. The circuit court appeared to deny the request for attorney’s fees based solely on its finding that both parties had “substantial justification” for the proceeding, but there was not sufficient evidence, argument or analysis on the financial status and needs of the parties.
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..
FACTUAL AND PROCEDURAL BACKGROUND
I.
Family Background
Mother and Father were married on June 23, 2001. They separated in September 2020. On April 15, 2021, they entered into a Marital Settlement Agreement (“MSA”). The court finalized their divorce on May 12, 2021.
The parties have two children. One child, born in March 2004, is emancipated and not involved in this appeal. The other child, H., was born in 2010. H. has special needs.
Mother testified that H. attends the Legacy School, which offers services to meet his needs. She testified that he requires additional occupational therapy and speech pathology services. H. began receiving speech and occupational therapy treatment from a provider at Three Little Birds in 2014. He began seeing another provider in 2022. H. has been treated by psychiatrist Dr. Stuart Varon since May 2016.
This appeal arises from an order issued by the Circuit Court for Baltimore County, which granted in part, and denied in part, the complaint filed by appellant, Jennifer Nolletti (formerly Jennifer O’Connor) (“Mother”), against appellee, Colin Meeks (“Father”), for modification of custody of the parties’ minor child (“H.”)1 and child support. On appeal, appellant presents the following questions for this Court’s review, which we have rephrased slightly, as follows:
1. Did the circuit court err when it held that there was no material change in circumstances regarding legal or physical custody without analyzing the required custody factors?
2. Did the circuit court abuse its discretion in reaching its ultimate conclusion on custody?
3. Did the circuit court err when it imputed income to Mother for child support purposes without making a finding of voluntary impoverishment and without analyzing any voluntary impoverishment or potential income factors?
4. Did the circuit court err when it denied Mother’s request for reimbursement of certain medical expenses relating to the child?
5. Did the circuit court abuse its discretion when it denied Mother’s request for attorneys’ fees?
6. Did the circuit court err or abuse its discretion when it denied Mother’s Motion to Alter or Amend? For the reasons set forth below, we shall vacate the order regarding attorneys’ fees and remand for further consideration. We shall otherwise affirm the judgments of the circuit court.
Mother is a full-time mother and has not worked outside the home since the birth of her oldest child. She is now remarried and earns no income. Father works as a financial planner. At the time of the parties’ divorce in spring 2021, he reported a gross monthly income of $18,570.00, totaling $222,840.00 annually.
II.
Marriage Settlement Agreement and Judgment of Absolute Divorce
The parties’ MSA provides that they would “have joint legal custody and joint decision-making power with each other regarding the emotional, moral, educational, physical, and general welfare of the Children.” Regarding physical custody, the MSA provides:
The parties shall share physical custody of the minor child, [H.]. [H.] shall be with Husband every Monday and Tuesday overnight, with Wife every Wednesday and Thursday overnight, and shall alternate weekends with the parties from Friday evening through Monday morning. On any Monday and Tuesday when [H.] is distance learning, he will be with Wife during distance learning as stated in the Consent Order.
The MSA requires Father to maintain his existing or equivalent health insurance for the benefit of the Children. The “UNINSURED MEDICAL EXPENSES CHILDREN” section of the MSA provides, in pertinent part, as follows:
8.1 The parties shall divide by the pro rata share of their combined incomes as established by the Maryland Child Support Guidelines any necessary and reasonable medical, dental, orthodontia, eyecare and/or hospitalization expenses
incurred on behalf of their Children and which are not covered or reimbursed by insurance. This obligation shall include any necessary counselling or mental health therapy expenses for either Child which are mutually agreed upon by the parties, with neither party to unreasonably withhold his or her consent. Unless it is not practicable to do so, the health care provider of services to each Child shall be a recognized and approved participant under Husband’s health insurance plan. Unless Husband has provided his written consent for Wife to utilize services of a health care provider for each Child which is not a recognized and approved participant under Husband’s health insurance plan, and except in the event of an emergency, Husband shall have no obligation pursuant to this Paragraph. The parties acknowledge that many of [H.]’s established medical and educational professionals (Dr. Culotta, Dr. Aron, Lisa Frank, etc.) do not accept health insurance and nothing in this provision prevents either party from continuing to use existing professionals for [H.]’s medical care and for either party to seek reimbursement from the other for the cost of using said professional by the pro rata share of their combined incomes as established by the Maryland Child Support Guidelines.
8.2 The parties shall cooperate with each other in order to provide for the prompt payment of each Child’s expenses and reimbursement between the parties themselves. If one party has advanced payment of these expenses directly to the third-party provider of services, the other party’s share of these expenses shall be paid directly to the advancing party within seven days of receipt of documentation which sets forth the total expense, the uninsured portion of the expense, and the portion of the expense which has already been paid by the advancing party. If neither party has advanced payment of these expenses, then each party shall pay his or her respective share directly to the thirdparty provider of services. Each party’s payment shall be made immediately upon his or her respective receipt of documentation which sets forth the total expense and the uninsured portion of the expense. The terms of this Paragraph shall apply only to the payment of “extraordinary expenses” as defined by the Family Law article, as amended over time.
On May 12, 2021, the court issued a Judgment of Absolute Divorce (“JAD”). It incorporated, but did not merge, the MSA. The JAD granted Mother and Father joint legal custody of the children and physical custody as set forth in the MSA.
The court ordered, as the parties agreed, that Father pay Mother $1,450.00 per month for child support of H., noting that this was a downward deviation from the Maryland Child Support guidelines based on “the parties’ total income and the costs and expenses being paid directly by each party on behalf of the minor Children.” The MSA provides that Mother will deposit $450.00 each month from the child support payments into an ABLE or a 529 Account for H. 2
III.
Modification of Custody and Child Support
On February 3, 2022, approximately nine months after the divorce was granted, Mother filed a Complaint for Modification of Custody and Child Support. Mother alleged that there had been a material change in circumstances, which required modification of
custody and child support. In support, Mother alleged that “Father withheld from Mother the fact that the Children were exposed to, and contracted, COVID-19.” She alleged that Father knew that their older child was sick enough to stay home from school, but he failed to inform her of this or quarantine himself and the children. Father then dropped H. off at school for Mother to resume her access time. It was not until Mother received a call from her older child’s school regarding his absences and positive COVID test that she discovered that H. was exposed. H. ultimately tested positive as well. Mother alleged that Father jeopardized H.’s health.
Mother also alleged that in October 2021, Trellis, where H. had been receiving weekly speech and occupational therapy since 2015, advised that it had transferred its services to Three Little Birds, which would not accept Father’s insurance. Father then “unilaterally, and without consulting Mother, attempted to terminate [H.]’s Speech and Occupational therapies.” H. continued to attend therapy through Three Little Birds until December 2023, but Mother paid out-of-pocket for his sessions, allegedly incurring $18,710 in fees.
Mother further alleged that, “while in the care and custody of Father, [H.] has been subjected to increased taunting,” specifically, about a “man lurking in the woods coming to get him.” She also alleged that Father referred to her using “derogatory and vile words . . . in front of [H.],” and Father placed notes and “provocative items,” such as notes, in H.’s lunchbox and overnight bags on their custody transition days.
Mother alleged that “Father has proven that he is incapable of communicating with Mother when it comes to the Children and has even wantonly defied a court order requiring his communication with Mother.” Specifically, Mother stated that the MSA required the parties “to use Our Family Wizard to communicate concerning the medical needs of [H.],” but Father refused to follow the MSA, and he had not renewed, or had canceled, his subscription to Our Family Wizard.
Mother alleged that Father was an unfit parent, and it was in the best interest of H. for custody to be modified to award her primary physical and sole legal custody of H., with reasonable visitation awarded to Father. She asserted that, “[a]s long as Mother does not have primary custody of Henry, his health and well-being are seriously at risk, and his development will suffer as a result of inconsistent routines and care providers.” Mother additionally requested child support in accordance with the Child Support Guidelines, as well as the following relief: an order for Father to contribute to the medical and health care costs of the children; an order for Father to reimburse her for the expenses she had already expended; and an order for Father to pay her reasonable attorneys’ fees.
Father filed an answer, denying many of the factual allegations, and stating that Mother’s “histrionic language [was] an attempt to gain leverage in a case where there [was] no material change in circumstance.” Father requested that the court deny the request for modification and order Mother to pay his reasonable attorneys’ fees.
On May, 9, 2023, after the parties appeared for a settlement conference and reached a temporary agreement on some issues, the court issued a temporary consent order providing that all communications between the parties be exchanged exclusively through Our Family Wizard and relate solely to the children. It
further ordered that H.’s bag be placed for pickup with only his personal items.
In December 2023, the court held a four-day modification hearing.
A. Mother’s Testimony
Mother testified that the parties divorced on May 12, 2021, after they had been married for almost 20 years. They entered into a MSA, which provided for joint legal and physical custody. The joint custody was on a “2-5-2-2 schedule.” Mother would have H. every Wednesday and Thursday, and Father would have H. Monday and Tuesday, with the parties alternating weekends.
Mother testified that H. had been diagnosed with autism spectrum disorder, a language impairment, and a learning disability in reading, writing, and math. H. also has “anxiety and OCD tendencies as well as developmental coordination issues with dysgraphia.” Due to H.’s diagnoses, he “finds challenges in almost every bit of life’s demands.” In the last year and a half, Mother had noticed progress in H.’s development with the help of therapies, noting that he had friends. H. was in a homogenous environment at the Legacy School (“Legacy”), where “he has the stage to grow and be confident.”3
Mother testified that she was actively involved in H.’s speech and occupational therapies, bringing him to all his appointments, communicating with the therapists, and offering to bring supplies. Mother also handled all the medical appointments because Father deferred to her regarding H.’s medical needs. During times when speech or occupational therapy was scheduled for Father’s custodial day, Father advised her by e- mail that he was not going to take him, stating that H. did not need it.
H. had received speech and occupational therapies from Three Little Birds once a week since 2014. In October 2021, Three Little Birds stopped taking commercial insurance. Father then wrote to Three Little Birds, without any communication with Mother, asking to have H. removed from their roster because he did not want to pay for it. Between October 2021 and the modification hearing, H. continued therapy, but Mother had been paying outof-pocket for their services. She asked Father to contribute to the payment of these services, but he refused.
Mother also testified to numerous occasions when Father had insulted her. On a check that was deposited into the parties’ joint checking account, “J is C” was written in Father’s handwriting. Mother interpreted the writing to mean “Jen is cunt.” At the time she received this check, the nature of the party’s relationship was “[c]onstant insults” and “[i]ncendiary comments no matter what the communication.”
In another instance, there was a note in H.’s lunchbox labeled “BFC.” Mother’s interpretation of this writing was “[b]ig fucking cunt.” Mother stated that she believed “C” stands for cunt. She did not believe Father’s assertion that it referred to the initial for their oldest child’s name because she had never heard Father refer to their oldest child as big C, and she did not believe Father called him big C. Mother was upset when she saw the note, and H. had a reaction to this because she and H. were “very close,” and “[h]e reacts when his mother gets upset.”
On another occasion, after an end-of-school-year event for their oldest child, Father ran up to Mother’s car screaming and
yelling. H. was upset and crying from witnessing this.
Mother testified that she was not able to effectively communicate with Father. She stated that he does not respond, asks no questions, or insults her. “[O]n more than one occasion, [she had] received messages in [Our Family] Wizard attacking [her] personal appearance.” Every communication was unproductive, and Father continuously created roadblocks to H.’s treatment, which made things much harder. There was a Temporary Order issued in May 2023 for the parties to communicate through Our Family Wizard for medication-related issues. Prior to that, a temporary consent order from September 2020 provided that all communication was to go through the Our Family Wizard. Father, however, sent messages that he was not going to renew his subscription.
Mother used Our Family Wizard to communicate with Father because it was “ordered as part of a Temporary Order” and she found it “to be an incredibly organized and effective tool.” She “also was hoping that channeling all communication to Family Wizard would mitigate the provocative and inflammatory and abusive messages” that she received from Father.
B. Father’s Testimony
Father testified that H. is “an awesome little kid. He has a great sense of humor. He loves, he hugs. He loves to do Taekwondo . . . he jokes around.” Father, H., and the parties’ other son always engaged in “good light hearted joking.” The parties’ other son lived with Father 100% of the time.
Father testified that he was involved in the decision to enroll H. at Legacy. Before the divorce, both parents searched for schools, visited them, and talked with the administrators together. Although Mother may have sent the e-mails or communications, “it was always a joint thing.” At Legacy, H. was taking reading, math, social studies, and speech therapy. Father communicated with H.’s teachers “[a]s necessary,” and he would “e-mail them every now and then” if there was something wrong with his homework.
Father said that H. was doing “great in school,” and he had adjusted well to the divorce. Since starting at Legacy, H. was more confident, more social, and doing well academically.
Before the parties’ separation, Father attended appointments with H.’s psychiatrist.
After the divorce, Father relied on Mother for information from the psychiatrist.
Although Mother had received documents and notes with acronyms that she perceived as insults, Father denied writing them, and he did not know what the letters meant. Father stated that he had referred to his oldest son as “Big C, heavy C, anything C” “forever.” Father admitted to sarcastically throwing insults at the end of communications with Mother, such as “mother of the year” or “unfit mother,” given “everything that’s going on.”
C.
David Nolletti’s Testimony
Mr. Nolletti was married to Mother at the time of the hearing. He testified that he and H. had “a very close relationship” and enjoyed spending time together, playing Monopoly, watching TV, and going to Taekwondo.4 He described his relationship with H.
as normal and caring.
Since H. started attending Legacy, he had friends and a good social network. H. was making progress academically and improving in reading, math, and “[h]is understanding of certain events.” H. was more inquisitive, with a genuine interest in learning.
Mr. Nolletti testified about several confrontations with Father. On April 16, 2021, before the parties’ divorce, Father called Mother a “whore” while H. was present. On February 15, 2021, Father called Mr. Nolletti a “fuckin’ Jew and a Kike.” Father also yelled to Mother that she would never see their other son again. Mother “was obviously very upset and sobbing and got in the truck and drove up the driveway and left.” H. was in the garage and witnessed this altercation, and he was “visibly upset.”
Another time, there was a note in a Thermos when Mother received it back from Father. When she saw the note, Mother “gasped and started crying.” H. became agitated and anxious. He approached Mother, put his arms around her, and cried. H. took 15-20 minutes to recover his composure from the incident.
Mr. Nolletti testified that he filed a lawsuit against Father for trespass and harassment. The suit was related to multiple times that Father had driven across his and Mother’s lawn and thrown trash on their front porch. Some of the events leading to the lawsuit occurred before the parties’ divorce.
D.
Julianna Shleifer’s Testimony
Julianna Shleifer, a speech pathologist and co-owner of Three Little Birds, provided speech therapy and occupational therapy services to H. from October 2021 to December 2022. Prior to April 2021, H. received treatment through Trellis. Trellis was providing speech and occupational therapy programmatically through their outpatient program. In October 2021, Trellis decided not to provide these services. Ms. Shleifer then left Trellis and formed Three Little Birds. Three Little Birds had “somewhat of a partnership with Trellis,” and “some of the clients that were receiving therapies . . . through Trellis came on as Three Little Birds clients.” H.’s speech and occupational therapies carried over from Trellis to Three Little Birds at that time.
Ms. Shleifer reached out to parents whose children transferred from Trellis to inform them of the transition. She received “questions from [Father] about the insurance, whether we accepted insurance, what the cost would be.” Ms. Shleifer provided Father with information and costs, but she told him that Three Little Birds was not an in-network provider. Father advised that “it was more expensive,” so she should not put H. on the schedule. Mother responded to Ms. Shleifer “that she would like him to continue with Three Little Birds.” Ms. Shleifer sent an e-mail to both parents stating that, because of the conflicting information, Three Little Birds would need consent forms from one parent to continue with services. They received those forms from Mother. Father did not sign a consent form. Instead, he sent an e-mail stating that, if Three Little Birds were to continue with services with H., Mother would be responsible for payment. Each speech and occupational therapy session was $120 per hour, and they were all billed to, and paid by, Mother.
E. Lindsay Dyer’s Testimony
Lindsay Dyer was an occupational therapist at Three Little Birds. Ms. Dyer had treated H. once a week since August 2022. The last ten minutes of each occupational therapy session involved parental education. Mother was present for these meetings, but Father was not. Mother brought H. to sessions, and Ms. Dyer did not correspond at all with Father.
F.
Dr. Stewart Varon’s Testimony
Dr. Varon, a psychiatrist, had been treating H. since 2016. He described H. as “very sensitive, caring, compassionate,” compliant, and eager to please. Despite H.’s autism diagnosis, he was able to understand social cues.
Both parents met with Dr. Varon prior to the divorce, but between the time of the parties’ divorce and the modification hearing, Dr. Varon saw only Mother. Dr. Varon suggested after the divorce that there should no longer be collective meetings with both parents “given the acrimony.” Mother had advised that H. had behavioral problems after a “visit with dad and brother when there’s a lot of teasing.”
For example, on December 8, 2021, when H. returned to Mother after spending time with Father, H. had increased OCD and anxiety, and he “need[ed] assurance.” Dr. Varon explained that, even in the best circumstances, there were concerns about “transition and the stress that that causes for a child.” Transitions are hard for neuro-typical children, and they could be harder on “atypical or the neuro-atypical” children “because you are interrupting their routine and their structure.”
Although Mother had made comments to Dr. Varon about H.’s exposure to Father’s “extreme volatility,” H. had never “complained about either parent or either parent’s conduct.” Dr. Varon stated, however, that “[a] lot of times children are . . . very loyal to both parents,” and children generally do not talk negatively about their parents. The only source of information that Dr. Varon had regarding what happened in Father’s home was Mother because H. had not brought up any issues, and Father did not attend sessions.
G.
Closing Arguments
At the conclusion of all the evidence, counsel for the parties made closing arguments. Mother argued that circumstances had changed since the parties’ divorce, leading her to seek modification of custody and an adjustment of child support. The change in circumstances was due to Father’s behaviors, including: communications littered with offensive language and insults; unilaterally attempting to terminate H.’s speech and occupational therapy services; and not participating in H.’s care and attempting to undermine the efficacy of services received. Mother argued that the “acrimony between the parties [was] not in the Minor Child’s best interests,” citing Mr. Nolletti’s testimony about the various incidents where H. had become upset due to Father’s actions and insults towards Mother.
Mother argued that the testimony and evidence clearly showed there had been a material change in circumstances since the
parties’ divorce because “Father’s behaviors were not foreseeable at the time of the divorce.” Even if “Father had engaged in mild misbehaviors prior to the parties’ divorce, Mother was entitled to a reasonable expectation that, after the divorce concluded, Father’s behaviors would subside.” Mother argued that “there must be a modification granting Mother sole legal custody” because Father refused to communicate through Our Family Wizard “despite having been ordered to do so,” Father was not participating with H.’s therapies, and he was unable to communicate without harassing Mother.
With respect to financial issues, Mother argued that Father should be required to reimburse her for the out-of-pocket cost of H.’s speech and occupational therapy from Three Little Birds. Additionally, she argued that child support needed to be recalculated to account for the increase in Father’s income. Finally, she argued that “attorneys’ fees were necessary, at minimum, to seek reimbursement from Father for the Minor Child’s speech and occupational therapies.”
Father argued that Mother failed to show that there had been any material change in circumstance that affected the well-being of H. Accordingly, he stated that “the request to modify the terms of the prior order must be denied.” Father argued that Mother’s evidence of “what she refers to as [Father’s] ‘behaviors’” was speculative, self-serving, and unbelievable.
Regarding Mother’s allegation that Father sought to unilaterally terminate H.’s speech and occupational therapies, he argued that he believed that the services H. received at Three Little Birds were unnecessary because they were duplicative of the speech services he received at Legacy. Father also believed that H. could “receive the same benefits from extracurricular activities, like taekwondo or swimming, that he receive[d] from occupational therapy.” Father argued that he did not violate the MSA by refusing to pay for the speech and occupational therapies from Three Little Birds because the providers were “not the same providers who were treating [H.] at the time of the divorce.”
Father argued that Mother created a “false narrative” about him and the parties’ abilities to make decisions about H. In reality, “the parties [had] been able to reach shared decisions for [H.]’s well-being and the result [was] a drastic improvement in most areas of [H.]’s life.” Father argued that there had been no material change in circumstances since the parties’ divorce that affected the well-being of H., and it would not be in H.’s best interest to modify the current custody arrangement.
Father also argued that Mother should not be awarded an increase in child support. He stated that the 2022 Tax return that Mother submitted into evidence, showing his taxable income was $318,514.00, did not accurately reflect his income because he was self- employed, and his income fluctuates.
The Best Interest Attorney argued that the testimony of each of the parties was self- serving, and felt as if the parties were “litigating a divorce and the reasons for it – a matter that was resolved by agreement in 2021.” He stated that, even if the inappropriate comments and notes that Father allegedly wrote to Mother were true, by Mother’s own testimony, there was no impact on H. because H. typically was in school when she retrieved his bag, meaning that H. would not see the anxiety caused by Father. The Best Interest Attorney further noted that the evidence showed that H. had adjusted well to the divorce,
while simultaneously improving academically and socially, so the “existing custody agreement should not be disrupted.”
H.
Trial Court’s Memorandum Opinion
On March 14, 2024, the court issued a Memorandum Opinion. After discussing the evidence presented, the court found that there had not been a material change in circumstances that affected H.’s welfare. It acknowledged the clear acrimony between the parties, stating that Father’s behavior toward Mother was juvenile and served no purpose other than to generate a response from Mother. The court noted, however, that “this behavior also occurred when the parties were married so it is nothing new and was in existence when they agreed to the current custody agreement.”
The court found that the “circumstances as they exist now are primarily changes in circumstances that effect the relationship between [Mother and Father] as coparents.” Although Father regularly antagonized Mother, her reactions to Father’s behavior were rarely in the presence of H., and there was “no independent evidence to corroborate” H.’s reaction to any reaction by Mother. Although the court acknowledged that exposure to the parties’ acrimonious relationship was not in H.’s best interest, changing the custody schedule was not the solution. Rather it was on the parents to act in a way that served H.’s best interest. The court stated that, prior to the divorce, the parents used Our Family Wizard, and they should resume doing that. The court concluded that there had “not been a material change in circumstances which affects the welfare of the minor child.” The court stated that, because it did not find a material change in circumstances, it did not need to conduct a best-interest analysis.
The court next considered Mother’s request for an adjustment in child support. With respect to the parties’ income, the court noted that, at the time of the divorce, Father was earning approximately $18,570 per month, or approximately $222,840 per year. In 2021, Father’s total income was $203,145 and his total income for 2022 was $339,010. Because Father was self-employed, and his income fluctuated, the court averaged his income for 2021 and 2022 and attributed to him an annual income of $271,077, or $22,590 per month. The court gave Father $850 in credit for his health insurance premium. It stated that, based on this income and credit alone, the Child Support Guidelines5 provided for a child support obligation of $2,006.6
Turning next to Mother, the court found that, although she did not work, she had worked in the past, and she “provided no meritorious reason as to why she could not work.” Accordingly, the court stated that it would impute a monthly income of $2,580 to Mother, explaining that this monthly income was based on Maryland’s minimum wage of $15 an hour on a full-time schedule.
The court then calculated the guidelines with both parties’ income, and it determined that Father’s monthly child support obligation would be $1,610, which was “an 11% increase from his previous obligation of $1,450.” It stated that, based on Father’s income, the Child Support Guidelines recommended the monthly child support obligation to be $2,006, but a downward deviation to $1,610 was fair given that the court would be ordering Father to pay for services from Three Little Birds that were not part of the ordered agreement.
The court then addressed Mother’s request for reimbursement
of the out-of-pocket speech and occupational therapy expenses she incurred from Three Little Birds after it stopped accepting Father’s insurance. The court found that, pursuant to the MSA, Father had to provide written consent for Mother to utilize the services of a provider not covered by insurance, and Father did not consent to use the services of Three Little Birds after it stopped accepting insurance. Accordingly, the court found that Father had no obligation to reimburse Mother for the out-ofpocket expenses. The court ordered, however, that going forward, the services would continue, and unless there were in-network providers who could perform the same services, the parties would divide the costs as set forth in the MSA. It noted that, “[f]or any new out-of-network providers or additional services, the Marital Settlement Agreement regarding Defendant’s consent will apply.”
With respect to the parties’ requests for attorneys’ fees, the court noted that, in addressing this request, the court must consider “both the financial resources and financial needs of both parties and whether there was substantial justification for prosecuting or defending the proceeding.” The court stated that it agrees that the parties should have returned to mediation, per the Marital Settlement Agreement, however, the failure to do so prior to filing the petition cannot be said to be bad faith. The Court finds that Plaintiff’s Complaint for Modification of Custody and Child Support and Defendant’s defense of same was done with substantial justification based on the evident inability of the parties to communicate effectively. The Court finds substantial justification for both parties. Therefore, both parties’ requests for attorneys’ fees are denied.
On the same day, the court issued an order addressing Mother’s Complaint for Modification and Child Support. The order denied in part and granted in part her Complaint for Modification of Custody and Child Support. The court ordered that the parties would continue to share physical custody and joint legal custody of H. Additionally, the parties were ordered to communicate exclusively through the Our Family Wizard platform. The court further ordered that neither party could make disparaging remarks about the other to any third party or in front of H. Both parties were also prohibited from discussing the case in front of H.
The court determined that it would be in H.’s best interest for both parents to be equally involved in his care. It ordered each parent to regularly communicate with H.’s educational and health care providers. Additionally, the court ordered that, to the extent possible, one service be scheduled during Father’s access days and another during Mother’s access days.
With respect to child support, the court ordered that Father was required to pay Mother, effective April 5, 2024, $1,610.10 per month. The court denied Mother’s request for reimbursement of extraordinary medical expenses, but it ordered that, starting April 1, 2024, the parties were ordered to share the costs of current services from Three Little Birds, as outlined in the MSA. Finally, the court denied both parties’ requests for attorneys’ fees.
IV.
Motion to Alter or Amend
Mother subsequently filed a Motion to Alter or Amend the March 14, 2024 Order and/or For a New Trial regarding the decisions on physical and legal custody, child support, and
reimbursement of therapy costs. Mother alleged that the parties’ “inability to communicate” has led to “issues, including delays in treatment/medication decisions” for
H. She asserted that there was no evidence regarding the parties’ pre-divorce conduct, but “[e]ven assuming there was such conduct before the divorce—which would require speculation by the Court—there [was] absolutely no question that, if so, [Father’s] behaviors have massively increased in both caliber and frequency since that time, warranting a modification of custody.” Mother alleged that she had “certainly demonstrated a material change in circumstances to warrant this Court undertaking a best interest of the child analysis.” She also alleged that Father had “demonstrated unwillingness and lack of participation with [H.’s] care,” exemplified by H. only attending speech and occupational therapies on Mother’s access days.
Mother also argued that there was no basis for the court to impute income to her, noting that there was no testimony regarding her ability to work. She argued that it was [her] testimony that managing [H.’s] care is a full-time job in and of itself. Should [the court] impute income to Wife, it would need to be offset by the costs of daycare, which would net little, if any, income to Wife, especially given the need for specialized daycare to address [H.’s] specific needs, if such specialized daycare is even available.
Finally, Mother argued that the court incorrectly found that Father was not required to repay the out-of-pocket expenses according to the MSA.
On April 30, 2024, the court denied Mother’s Motion to Alter or Amend. This appeal followed.
DISCUSSION
I. & II.
Custody Modification
Mother contends that the circuit court erred in denying her request for modification of custody. Specifically, she contends that the court erred in failing to consider the best interest of H., and it abused its discretion in its ultimate conclusion regarding modification of custody.
Father contends that the court did not err or abuse its discretion in denying the motion to modify custody because Mother failed to show a material change in circumstances that affected H.’s wellbeing. He argues that, once the court made this finding, it was not obligated to further consider the best interest of the child.
In reviewing a request for a modification of custody, a court typically follows a “chronological two-step process.” Wagner v. Wagner, 109 Md. App. 1, 28, cert. denied, 343 Md. 334 (1996). The court initially considers whether there has been a material change in circumstances. Id. A change is material if it affects the “welfare of a child.” McCready v. McCready, 323 Md. 476, 481 (1991). Accord Domingues v. Johnson, 323 Md. 486, 501- 02 (1991) (a parent’s relocation may warrant a custody modification, as it could disrupt the child’s environment and potentially be against their best interests). In determining whether a material change has occurred, the court considers the circumstances that were “known to the [] court when it rendered the prior order.” Wagner, 109 Md. App. at 28.
If a party introduces evidence of material changes, the court considers the child’s best interest when “[d]eciding whether those changes are sufficient to require a change in custody.” McCready, 323 Md. at 482. While the two steps are sometimes used to help inform each other, they are distinct, and the “court must make a threshold determination whether a material change in circumstances has occurred” before engaging in the best interest analysis. Velasquez v. Fuentes, 262 Md. App. 215, 249 (2024). If the evidence of a change in circumstances is “not strong enough, i.e., either no change or the change itself does not relate to the child’s welfare,” the court need not engage in the best interest analysis. Wagner, 109 Md. App. at 29; Accord Velasquez, 262 Md. App. at 249 (the best interests analysis does not apply unless the threshold issue, a material change of circumstances, is first found); Wagner, 109 Md. App. at 28 (“[U]nless a material change of circumstances is found to exist, the court’s inquiry ceases.”).
Here, the court determined that the evidence Mother presented did not constitute a material change in circumstances because there was no showing that any change negatively affected H.’s welfare, noting that H. was “doing well academically and socially, and he continues to progress.” Because the court did not find that there had been a material change in circumstances, it stated that it did not need to engage in a best interest of the child analysis.
In reviewing the circuit court’s determination that there was no material change in circumstances, we give that determination great deference. Wagner, 109 Md. App. at 33. We conclude that the evidence supports the court’s finding that, even if a change had occurred, it did not impact H.’s welfare.
Although the parties had an acrimonious relationship, they had been able to make joint decisions regarding H.’s health and well-being in consultation with H.’s healthcare and education professionals. Moreover, the record supported the court’s finding that Father’s inappropriate behavior towards Mother could not be said to be a change in circumstances because there was evidence of similar behavior when the parties agreed to the custody arrangement. Finally, given that H. enjoyed spending time with each of the parties, and he was “doing well academically and socially,” we perceive no error or abuse of discretion by the circuit court in denying Mother’s request to modify custody.7
III. Imputed Income
Mother contends that, in assessing her request for child support, the court improperly imputed income to her without performing the necessary voluntary impoverishment and potential income analysis. She asks this court to vacate the ruling imputing income to her and remand for the court to consider “the totality of the circumstances before deciding whether the Mother has voluntarily impoverished herself by working as a full-time homemaker and mother for the last 20 years.”
Father contends that the court did not err in imputing fulltime minimum wage income to Mother. He asserts that this ruling was supported by Mother’s testimony that she had previously worked, but she was not employed at the time of the trial, had not sought employment, had no plans to look for work, and was not contributing to her own expenses.
It is well established in Maryland law that “both parents have a legal as well as a moral obligation to [financially] support and care
for their children.” Petrini v. Petrini, 336 Md. 453, 459 (1994). When determining child support pursuant to the Child Support Guidelines, the court must determine the income of each parent. Md. Code Ann., Fam. Law (“FL”) § 12-204 (2024 Supp.). The court calculates a parent’s income based on either “[a]ctual income” or “[p]otential income,” depending on the parent’s employment circumstances. FL § 12-201(i), (m).
Actual income is defined as income from any source, including salaries, wages, commissions, bonuses, and other forms of compensation. FL § 12–201(b)(1), (3). A court can impute income and determine that a parent is “voluntarily impoverished” when the parent makes “the free and conscious choice, not compelled by factors beyond his or her control, to render himself or herself without adequate resources.” Goldberger v. Goldberger, 96 Md. App. 313, 327, cert. denied, 332 Md. 453 (1993). To assess voluntary impoverishment, the court “ask[s] whether [the parent’s] current impoverishment is intentional, that is, by his own choice, of his own free will.” Stull v. Stull, 144 Md. App. 237, 248 (2002). The court may not, however, impute potential income to a parent who is incarcerated, unable to work because of a physical or mental disability, or “caring for a child under the age of 2 years for whom the parents are jointly and severally responsible.” FL § 12-204(b) (3).
In assessing whether a parent is voluntarily impoverished, the court should consider a variety of factors to determine whether the parent has “freely been made poor or deprived of resources.” Goldberger, 96 Md. App. at 327. These factors include:
1. The parent’s current physical condition;
2. The parent’s level of education;
3. The timing of any change in employment or financial circumstances relative to the divorce proceedings;
4. The relationship between the parties prior to the divorce;
5. The parent’s efforts to find and retain employment;
6. The parent’s efforts to secure retraining if necessary;
7. Whether the parent has ever withheld support;
8. The parent’s past work history;
9. The status of the job market in the area where the parties live; and
10. Any other relevant considerations presented by either party.
Lorincz v. Lorincz, 183 Md. App. 312, 331 (2008).
If the court finds that a parent is voluntarily impoverished, “child support may be calculated based on a determination of potential income.” FL § 12-204(b). In determining the amount of potential income to be imputed due to employment potential, the court shall consider the following factors:
(1) the parent’s employment potential and probable earnings level based on, but not limited to:
(i) the parent’s:
1. age;
2. physical and behavioral condition;
3. educational attainment;
4. special training or skills;
5. literacy;
6. residence;
7. occupational qualifications and job skills;
8. employment and earnings history;
9. record of efforts to obtain and retain employment; and
10. criminal record and other employment barriers; and (ii) employment opportunities in the community where the parent lives, including:
1. the status of the job market;
2. prevailing earnings levels; and
3. the availability of employers willing to hire the parent;
(2) the parent’s assets;
(3) the parent’s actual income from all sources; and (4) any other factor bearing on the parent’s ability to obtain funds for child support.
FL § 12-201(m).8
We address first Mother’s contention that the record does not reflect that the court considered the requisite factors to find voluntary impoverishment or potential income. Initially, we note that, when a court is required to consider a list of factors, it is not required to “articulate on the record its consideration of each and every factor.” I, 128 Md. App. 357, 364, cert. denied, 357 Md. 191 (1999). Accord Long v. Long, 141 Md. App. 341, 351 (2001) (the “mere lack of an explicit discussion of each of the factors on the record by the trial court does not necessarily mean that the trial court erred”); Lee v. Andochick, 182 Md. App. 268, 287 (that “the court did not catalog each factor and all the 447 Md. 647 (2016). evidence which related to each factor does not require reversal”), cert. denied, 406 Md. 745 (2008). A judge is presumed to know the law and to have performed his or her duties properly. Lapides v. Lapides, 50 Md. App. 248, 252 (1981).
Moreover, although the court did not explicitly discuss each factor, there was evidence in the record to support the court’s findings. With respect to the issue of voluntary impoverishment, Mother testified that she holds a master’s degree in finance and last worked in 2004 as a healthcare consultant with KPMG. Before the divorce, she discussed returning to work with her previous employer, but she ultimately decided that it was “not realistic” to re-enter her career at that time, due to H.’s special needs. As the trial court stated, however, although Mother had worked in the past, she “provided no meritorious reason as to why she could not work” at the time of the hearing, when H. was in a new school and doing well. Based on the record here, we cannot conclude that the court’s finding of voluntary impoverishment was clearly erroneous. Sieglein v. Schmidt, 224 Md. App. 222, 249 (2015) (finding of voluntary impoverishment of a parent for purposes of child support is reviewed under the clearly erroneous standard), aff’d, 447 Md. 647 (2016).
With respect to the amount of potential income imputed, Mother again argues that the court erred in failing to consider the requisite factors. As we indicated previously, the failure to explicitly discuss the factors on the record is not sufficient to reverse a court’s finding in this regard.
Moreover, this Court has explained:
“[A]ny determination of ‘potential income’ must necessarily involve a degree of speculation.” Reuter [v. Reuter, 102 Md. App. 212, 223 (1994)] A parent’s potential income “is not the type of fact which is capable of being ‘verified,’ through documentation or otherwise.” Id. at 224, 649 A.2d 24. But, so long as the factual findings are not clearly erroneous, “the amount calculated is ‘realistic’, and the figure is not so unreasonably high or low as to amount to abuse of discretion, the court’s ruling may not be disturbed.”
Mother does not argue that the court’s ruling in imputing to her an income of $2,580.00 a month, Maryland’s minimum wage for full-time employment, is unreasonably high or low. Based on the record here, we cannot conclude that the court erred or abused its discretion in imputing income to Mother in determining an award of child support.
IV.
Mother’s Request for Reimbursement
Mother contends that the circuit court erred in denying her request for reimbursement of $18,710 for out-of-pocket medical expenses related to speech and occupational therapy services to H. provided by Three Little Birds from October 2021 through December 2023, the date of the modification hearing. She asserts that the court based its decision on its “clearly erroneous” factual finding that she needed Father’s written consent to use a provider not covered by insurance.
Father disagrees. He contends that the court properly denied Mother’s “request for reimbursement for providers that [he] did not consent to.”
This issue is governed by the agreement of the parties. The MSA provides:
8.1 The parties shall divide by the pro rata share of their combined incomes as established by the Maryland Child Support Guidelines any necessary and reasonable medical, dental, orthodontia, eyecare and/or hospitalization expenses incurred on behalf of their Children and which are not covered or reimbursed by insurance. This obligation shall include any necessary counselling or mental health therapy expenses for either Child which are mutually agreed upon by the parties, with neither party to unreasonably withhold his or her consent. Unless it is not practicable to do so, the health care provider of services to each Child shall be a recognized and approved participant under Husband’s health insurance plan. Unless Husband has provided his written consent for Wife to utilize services of a health care provider for each Child which is not a recognized and approved participant under Husband’s health insurance plan, and except in the event of an emergency, Husband shall have no obligation pursuant to this Paragraph. The parties acknowledge that many of [H.]’s established medical and educational professionals (Dr. Culotta, Dr. Aron, Lisa Frank, etc.) do not accept health insurance and nothing in this provision prevents either party from continuing to use existing professionals for [H.]’s medical care and for either party to seek reimbursement from the other for the cost of using said professional by the pro rata share of their combined incomes as established by the Maryland Child Support Guidelines. (Emphasis added).
The circuit court construed that agreement to provide that, for Father to be obligated to pay for services of a provider not covered by his insurance, Father had to provide written consent. Because Father did not consent to services from Three Little Birds, and he specifically said that he did not consent to those services, the court concluded that he had no obligation to reimburse Mother for those incurred expenses.
“The interpretation of a contract . . . is a question of law, subject to de novo review by an appellate court.” 4900 Park Heights Ave. LLC v. Cromwell Retail 1, LLC, 246 Md. App. 1, 19 (quoting Erie Ins. Exch. v. Estate of Reeside, 200 Md. App. 453, 461 (2011)), cert. denied, 469 Md. 655 (2020). We interpret contracts— including marital settlement agreements, see Petitto v. Petitto, 147 Md. App. 280, 298 (2002)—“under ‘the objective theory of contract interpretation.’” Park Heights Ave., 246 Md. App. at 19 (quoting Credible Behav. Health, Inc. v. Johnson, 466 Md. 380, 393 (2019)). Our “primary goal . . . is to ascertain the intent of the parties in entering the agreement,” id., by “consider[ing] the contract from the perspective of a reasonable person standing in the parties’ shoes at the time of the contract’s formation,” Ocean Petroleum, Co., Inc. v. Yanek, 416 Md. 74, 86 (2010). “[U]nless a contract’s language is ambiguous, we give effect to th[e] language as written,” id., recognizing that our “interpretation should not permit an absurd or unreasonable result,” Middlebrook Tech, LLC v. Moore, 157 Md. App. 40, 66 (2004).
Here, the plain language of the MSA establishes that, if Father’s insurance does not cover a healthcare provider, his consent is required for him to assume any payment obligation. At the time the MSA was signed, the provider accepted Father’s insurance, making it an established provider for H. When Three Little Birds stopped accepting insurance, however, Father’s consent was required for him to bear any financial responsibility. Since Father did not provide his consent, the court correctly found that Father is not obligated to pay for these services. Accordingly, the court properly denied Mother’s request for reimbursement of the $18,710.10 in out-of-pocket expenses that she paid for speech and occupational therapy services to H. by Three Little Birds from October 2021 through the December 2023 Modification Hearing.
V. Attorneys’ Fees
Mother contends that the circuit court erred in denying her claim for attorneys’ fees, asserting that it failed to consider the necessary statutory factors. She asserts that an analysis of whether to award attorney’s fees under the Family Law Article “is mandatory, specific, and must be fully completed in any case in order for a decision on granting (or denying) an attorneys’ fee award to stand on appeal.” Mother argues that the court failed to conduct the required analysis here because the court evaluated only one of the three requisite factors, whether the parties had substantial justification for their actions in the proceeding. Mother claims that the court improperly failed to consider the “parties’ respective financial statuses or needs” and the reasonableness of the fees.
Father contends that the court did not err in denying Mother’s request for attorneys’ fees. Although he agrees that the court analyzed only the issue of substantial justification in bringing or defending a proceeding, he argues that Mother “cannot fault the [] court for failing to analyze” the other requisite factors “when she did not present any evidence upon which those factors could have been analyzed.”
“Although the general rule is that ‘each party is responsible for its own legal fees,’ a court may order one party to pay the other party’s attorney’s fees pursuant to statute or by an express agreement.” Meyr v. Meyr, 195 Md. App. 524, 552 (2010) (quoting
Henriquez v. Henriquez, 413 Md. 287, 294 (2010)). FL § 12103(a) provides that a circuit court “may award to either party the costs and counsel fees that are just and proper under all the circumstances” in a case involving the modification of custody, support, or visitation of a child. In deciding an award of costs and counsel fees, the court shall consider: (1) the financial status of each party; (2) the needs of each party; and (3) whether there was substantial justification for bringing, maintaining, or defending the proceeding. FL § 12- 103(b).9
If the court finds, pursuant to § 12-103(b), that both parties had substantial justification for bringing or defending their respective positions in the proceeding, it must then value the legal services afforded to both parties, and after determining the reasonableness of the legal fees, it must assess the parties’ respective financial status and needs. Davis v. Petito, 425 Md. 191, 204 (2012); see FL § 12-103(b). “So long as the parties were substantially justified in bringing, maintaining, or defending the proceeding, the [] court has significant discretion in applying the factors.” Ruiz v. Kinoshita, 239 Md. App. 395, 438 (2018). “Its failure to consider those factors, however, is legal error.” Id. The court does not need to “recite any ‘magical’ words so long as its opinion, however phrased, does that which the statute requires.” Horsley v. Radisi, 132 Md. App. 1, 31 (2000) (quoting Beck v. Beck, 112 Md. App. 197, 212 (1996)).
Here, in addressing Mother’s request for attorneys’ fees the court stated:
In determining whether to award counsel fees, the Court considers both the financial resources and financial needs of both parties and whether there was substantial justification for prosecuting or defending the proceeding. The Court agrees that the parties should have returned to mediation, per the Marital Settlement Agreement, however, the failure to do so prior to filing a petition cannot be said to be bad faith. The Court finds that Plaintiff’s Complaint for Modification of Custody and Child Support and Defendant’s defense of same was done with substantial justification based on the evident inability of the parties to communicate effectively. The Court finds substantial finds justification for both parties. Therefore, both parties’ requests for attorneys’ fees are denied. Clearly, as the parties acknowledged, the court addressed the substantial justification factor. Although the court stated that it needed to consider the financial resources and needs of the parties,10 there was no discussion about those factors.
Father contends that there was no error in performing an analysis of the financial status and needs of the parties because there was no evidence presented to permit such a finding. He asserts:
[t]here was no evidence presented that Wife was in need of an award of fees. There was no evidence presented that Husband had the ability to pay any portion of Wife’s fees. The information before the trial court was Husband’s income; Wife’s lack of income due to her choice not to work; Husband’s payment of the tuition, education, and medical expenses of [H.]; Wife’s payment of certain expenses of [H.]; and Wife’s lack of financial responsibility for any of her own expenses. There were no bank statements, no credit card statements, and no testimony regarding the information that would be contained in such documents, that would allow the trial court to assess the needs and financial resources of the parties, nor either
party’s ability to contribute to the attorney’s fees of the other.
Mother did not rebut Father’s assertion in this regard in her briefs. At oral argument, Mother stated, without elaboration, that there was such evidence in the financial statements submitted. We note, however, that Mother’s closing argument regarding attorneys’ fees in the circuit court focused solely on the factor addressed by the circuit court; i.e., substantial justification.11
We agree with Father that there was not sufficient evidence or argument for the court to make a finding regarding the financial status and needs of the parties. If that was the stated basis for the court’s ruling denying the motion for attorneys’ fees, we would uphold it. The court, however, appeared to deny the request for attorneys’ fees based solely on its finding that both parties had “substantial justification” for the proceeding. Because there was not sufficient evidence, argument, or analysis on the financial status and needs of the parties, we shall vacate the court’s ruling denying Mother’s request for attorneys’ fees. On remand, the
JUDGMENTS
court may, in its discretion, allow the parties to present additional evidence on this issue. Guillaume v. Guillaume, 243 Md. App. 6, 28 (2019).
VI.
Motion to Alter or Amend
Mother’s final contention is that the court “erred and abused its discretion when it denied [her] Motion to Alter or Amend and/or for a New Trial” based on “all of her arguments set forth [previously],” with respect to the court’s decisions on “physical and legal custody, child support, and reimbursement of therapy costs.” Because we have denied these previous arguments, we conclude that the circuit court did not abuse its discretion in denying Mother’s motion to alter or amend. See Miller v. Mathias, 428 Md. 419, 438 (2012) (review of an appeal from the denial of a motion to alter or amend a judgment is for abuse of discretion)
OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED IN PART AND VACATED AND REMANDED IN PART. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 To protect the privacy of the child, we use the child’s initial.
2 An ABLE account is a tax-advantaged savings program that helps people with disabilities and their families save for disability expenses. About ABLE Accounts, ABLE National Resource Center, https:// www.ablenrc.org/what-is-able/what-are-ableacounts/ (last visited Dec. 4, 2024). A 529 Account is a tax-advantaged education savings plan. 529 Basics, Maryland 529, https://maryland529.com/home/529-basics.html (last visited Dec. 4, 2024).
2 An ABLE account is a tax-advantaged savings program that helps people with disabilities and their families save for disability expenses. About ABLE Accounts, ABLE National Resource Center, https:// www.ablenrc.org/what-is-able/what-are-ableacounts/ (last visited Dec. 4, 2024). A 529 Account is a tax-advantaged education savings plan. 529 Basics, Maryland 529, https://maryland529.com/home/529-basics.html (last visited Dec. 4, 2024).
3 The Legacy School is an educational program for students from first through eighth grade with language-based learning disabilities. About Us, Legacy School, https://legacyschoolmd.org/about-us/ (last visited Dec. 4, 2024).
4 Mr. Nolletti volunteered as a Taekwondo instructor.
5 The Child Support Guidelines are found at Md. Code Ann., Fam. Law (“FL”) § 12-204 (2024 Supp.).
6 The prior order included a downward deviation from the guidelines, but no reason was given for the deviation.
7 Mother argues in her brief that, although the court denied her request to modify custody, it did make
minor adjustments to custody, such as requiring the parties to communicate through Our Family Wizard, mandating that H. continue attending Three Little Birds, with the parties to share costs, and specifying that one of H.’s services be scheduled on Mother’s custody days and the other on Father’s custody days. Father contends that these were not changes to legal or physical custody because the parties had already agreed to these terms, and the court merely memorialized that agreement. At oral argument, counsel for Mother stated that she was not asking for these minor adjustments to be vacated.
8 These factors are substantially similar to the factors courts used prior to the statutory enactment in 2022. See Sieglein v. Schmidt, 224 Md. App. 222, 248 (2015), aff'd,
9 If the court decides to award attorney’s fees, it also must analyze the reasonableness of the requested fees. Davis v. Petito, 425 Md. 191, 204 (2012); see F.L. § 12-103(b). Here, the parties stipulated to the reasonableness of the legal fees submitted. The parties did not stipulate to the Best Interest Attorney’s fees.
10 The court cited to FL § 11-110(c), which addresses attorney’s fees in an alimony case and requires consideration of financial resources and needs, instead of FL § 12-103, which provides for attorney’s fees for modification of custody and refers to financial status and needs.
11 Argument by counsel for Mother stated only: “There is no question that Mother’s attorneys’ fees were necessary, at minimum, to seek reimbursement from Father for the Minor Child’s speech and occupational therapies. Accordingly, Mother seeks her reasonable and necessary attorneys’ fees in the amount of $55,758.25, incurred through December 5, 2023.”
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court reversed the Caroline County Circuit Court’s order purporting to modify the terms of a prior order that was already on appeal. Father’s earlier appeal directly challenged the award of attorney’s fees as a “sanction” for civil contempt. Once father had initiated that appellate challenge, the circuit court was prohibited from exercising its power to premise the award of fees on another ground and thus evade this Court’s ability to review its decision.
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 court required Father to pay the $12,000.00 to Mother within ten days of the order.” Id.
Father appealed, and we reversed. Among other things, we reasoned that, “insofar as the order imposed a ‘sanction’ in the amount of Mother’s attorneys’ fees, it is invalid because it does not prescribe any way by which Father could avoid the ‘sanction.’” Id. at *4. “Instead, the ‘sanction’ of attorneys’ fees” was really just a “penalty for past conduct, not a coercive measure that Father could avoid by bringing himself into compliance with a court order.” Id. Because the purpose of civil contempt is to coerce a party to come into compliance with the court’s orders and not to punish a party for failing to comply with orders, the award of fees did not belong in an order for constructive civil contempt.
Meanwhile, on July 11, 2023, while Father’s first appeal was pending before this Court, Mother filed a second petition for constructive civil contempt. In that second petition, Mother alleged that Father had disobeyed the earlier contempt order because he had “failed and refused to pay the award of [attorneys’] fees” that the circuit court had imposed as a purported sanction.
In this family law case, the Circuit Court for Caroline County found a father in constructive civil contempt and ordered him to pay the mother’s attorneys’ fees as a “sanction.” While the father’s appeal of that ruling was pending, the circuit court purported to amend its order by recharacterizing the “sanction” as remedy for unjustifiably denying or interfering with visitation rights under section 9-105 of the Family Law (“FL”) Article of the Maryland Code (1984, 2019 Repl. Vol.).
The father appealed. We reverse.
BACKGROUND
Gary Stoltz (“Father”) and Tina Stoltz (“Mother”) were married in 2008 and divorced in 2022. This is the second time their case has come before this Court.
While the divorce proceedings were pending in the circuit court, Mother filed a petition for constructive civil contempt. In brief, she argued that Father had violated an agreement that the parties placed on the record. The agreement was not yet contained in a court order, in part because Father had refused to sign a proposed order.
In an order dated April 14, 2023, “the court found Father in contempt of ‘prior Orders,’ the identity of which it did not specify.” Stoltz v. Stoltz, 2023 WL 8824788, at *2 (App. Ct. Md. Dec. 21, 2023). “The court stated that Father could ‘purge’ his contempt by ‘complying with [the court’s] prior Orders’ and by providing Mother with ‘[three] additional weeks of parenting time during the Summer of 2023.’” Id. “In addition, the court imposed what it called a ‘sanction[]’ in the amount of $12,000.00, representing Mother’s reasonable and necessary attorneys’ fees.” Id.
On September 7, 2023, the trial court held a show cause hearing to address Mother’s second contempt petition. Neither party adduced evidence at the hearing. Rather, Mother argued that, when the court found Father in contempt and ordered him to pay her attorneys’ fees as a “sanction,” it “intended the award of attorney’s fees to exist separate and apart from [any] sort of carrot for [Father].” In other words, Mother argued that the court intended for the award of fees to be separate from an order of civil contempt, which is designed to induce a party to come into compliance with court orders. According to Mother, the use of the word “sanction” to describe the award of fees was “a scrivener’s error.”
To correct the alleged “scrivener’s error,” Mother requested that the trial court revise the terms of the original order, which was on appeal, to clarify that the payment of attorneys’ fees was intended as a remedy for unjustifiably denying or interfering with visitation rights under FL section 9-105, and not a “sanction” for civil contempt.1 The trial court agreed to “amend” the earlier order to state that it had based the award of fees on section 9-105. In every other respect, the order remained the same.
On September 28, 2023, Mother submitted a proposed order that revised the previous order. On October 13, 2023, the trial court signed the proposed order. This timely appeal followed.2
QUESTION PRESENTED
Father presents two questions for our review, which, in the interest of concision, we have condensed and reworded: Did the trial court erroneously modify an order that was the subject of an appeal?3
STANDARD OF REVIEW
“Post-appeal orders which affect the subject matter of the appeal
are prohibited.”
In re Emileigh F., 355 Md. 198, 202-03 (1999). Therefore, we conduct a de novo review
DISCUSSION
An appeal from a final judgment does not deprive the trial court of “fundamental jurisdiction.” See, e.g., Pulley v. State, 287 Md. 406, 417 (1980); accord Jackson v. State, 358 Md. 612, 620 (2000); In re Emileigh F., 355 Md. at 202. Thus, after the filing of an appeal, a trial court may still “act with reference to matters not relating to the subject matter of, or matters not affecting, the appellate proceeding[s].” State v. Peterson, 315 Md. 73, 80 (1989); accord In re Emileigh F., 355 Md. at 203.
Nonetheless, an appeal prohibits the trial court from acting in a way that frustrates the appellate court’s exercise of appellate jurisdiction. In re Emileigh F., 355 Md. at 202- 03. A trial court may not exercise its fundamental jurisdiction “in a manner that affects either the subject matter of the appeal or the appellate proceeding itself—that, in effect, precludes or hampers the appellate court from acting on the matter before it.” Jackson v. State, 358 Md. 612, 620 (2000); accord Folk v. State, 142 Md. App. 590, 597 (2002). “Any post-judgment ruling by a circuit court that has that effect may be subject to reversal on appeal[.]” Jackson v. State, 358 Md. at 620.
In this case, Father’s earlier appeal directly challenged the award of attorneys’ fees as a “sanction” for civil contempt. Once Father had initiated that appellate challenge, the circuit court was prohibited from exercising its power to premise the award of fees on another ground and thus, evade this Court’s ability to review its decision. The circuit
court erred in modifying the order of civil contempt and in basing the fee award on FL section 9-105.
Mother defends the modification by arguing that the court corrected a clerical mistake—a scrivener’s error—which the court may do at any time under Maryland Rule 2-535(d). Her argument has no merit. The court did not correct a clerical mistake, such as a misspelled word or name, a misplaced decimal point, or an error in punctuation; the court made a substantive change to its order by basing the award of fees on FL section 9- 105 instead of characterizing it as a “sanction” for civil contempt. Moreover, the court made the substantive change while the order was pending on appeal, which it may not do without leave of the appellate court. See Short v. Short, 136 Md. App. 570, 580 (2001); see Md. Rule 2-535(d) (stating that, “[d]uring the pendency of an appeal,” clerical mistakes may be “corrected before the appeal is docketed by the appellate court, and thereafter with leave of the appellate court”).
Mother argues, however, that the court’s error is “harmless.” Again, her argument has no merit. Once the court’s award of fees was challenged on appeal (on valid, substantive grounds), the court attempted to devise another basis to uphold the award. Unless we reverse the modified order, we would countenance these efforts to avoid the limitations on a circuit court’s ability to preclude or hamper the appellate court from acting on the matter before it.
The court’s original order was invalid for the reasons stated in our previous opinion. The amended order is invalid because the court erred in purporting to amend the original order while it was on appeal. Father has no obligation to pay the award of fees, whether as a “sanction” for contempt or as remedy under FL section 9-105.4
JUDGMENT OF THE CIRCUIT COURT FOR CAROLINE COUNTY REVERSED; APPELLEE TO PAY ALL COSTS.
FOOTNOTES
1 Section 9-105 provides as follows:
In any custody or visitation proceeding, 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, the court may, in addition to any other remedy available to the court and in a manner consistent with the best interests of the child, take any or all of the following actions:
(1) order that the visitation be rescheduled;
(2) modify the custody or visitation order to require additional terms or conditions designed to ensure future compliance with the order; or
(3) assess costs or counsel fees against the party who has unjustifiably denied or interfered with visitation rights.
2 Although the order no longer purports to award attorneys’ fees as a “sanction” for contempt, the order continues to adjudge Father in contempt; therefore, it is appealable under section 12-304(a) of the Courts
and Judicial Proceedings Article. In addition, like the earlier order, the amended order continues to impair Father’s custodial rights by stating that he can “purge” his contempt by providing Mother with “[three] additional weeks of parenting time”; therefore, it is appealable under section 12-303(3)(x) of the Courts and Judicial Proceedings Article. Finally, a trial court’s ruling on a request for attorneys’ fees is reviewable as part of an appeal from the related custody determination. See Alexander v. Alexander, 252 Md. App. 1, 25 (2021).
3 Father formulated his questions as follows:
1. Is the trial court prohibited from modifying an order subject to appeal?
2. Did the modification of the Original Contempt Order occur without legal authority? of an order that modifies an order that is the subject of an appeal.
4 Because the amended order replicates many of the provisions of the original order, those provisions are also invalid for the reasons stated in our earlier opinion.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 06 MFLU Supp. 64 (2024)
Appeals; permanency plan; visitation structure
In Re: I.Q.
Nos. 2039, September Term 2023; 0741, September Term 2024
Argued before: Nazarian, Friedman, Zic, JJ.
Opinion by: Nazarian, J
Filed: Dec. 4, 2024
A divided Appellate Court held that Maryland Code § 12-303(3)(x) of the Courts & Judicial Proceedings Article allows appeals from orders changing a permanency plan or visitation structure, even if that change is not detrimental to the parent.
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..
I was born on October 3, 2018, to Ms. H. (“Mother”) and Mr. Q. (“Father”). His parents shared custody, although Mother was I’s primary caregiver for the first three months of his life. During those three months, I was a “happy and bubbly baby,” save for a few medical concerns in November and December 2018. In early January, however, I began showing signs of serious distress. From January 3, 2019 to January 8, 2019, he was extremely irritable and lethargic, projectile vomited and drank less milk, screamed or “screeched” whenever he was moved, and appeared cross-eyed. Despite these symptoms and I’s maternal grandmother’s recommendation that Mother take him to the hospital, neither Mother nor Father sought medical attention for him.
On January 9, 2019, three-month-old I.Q. (“I”) was hospitalized with serious injuries caused by abuse and neglect. These injuries, which remain unexplained, left I blind permanently and at risk for developmental delays. On January 10, 2019, the Circuit Court for Baltimore City, sitting as the juvenile court, found I to be a Child In Need of Assistance (“CINA”)1 and committed him to the Department of Social Services for Baltimore City (the “Department”). Once released from the hospital, I was placed in a foster home for medically fragile children where he resides to this day.
The juvenile court has held several CINA review hearings over the past five years to revisit and, in some instances, modify I’s permanency plan and visitation schedule. The Department also initiated termination of parental rights (“TPR”) proceedings in 2021 that have followed a parallel path alongside I’s CINA case in the juvenile court. I (sometimes the “Child”) and the Department have appealed from the latest orders in the CINA and TPR cases. After determining first that the Department and the Child have the right to appeal recent orders modifying earlier custody orders, we address both sets of issues in this consolidated appeal and affirm the court’s rulings in each case.
I. BACKGROUND
We provided an extensive review of the facts and procedural history of I’s CINA and TPR cases in In re I.Q., No. 0108, Sept. Term 2023 (Md. App. Nov. 29, 2023). For purposes of this consolidated appeal, we recount the history briefly and pick up the cases from there.
A. Factual Background
1. Abuse and neglect of I
By January 8, 2019, I was still irritable and vomiting and his eyes appeared “blank” and were “not moving.” Mother still didn’t bring I to the hospital but left him instead with his grandmother while Mother was at work. I’s grandmother called Mother later and suggested, for the second time, that Mother bring I to the hospital due to his continuing symptoms. Mother scheduled an appointment with I’s pediatrician for that afternoon and both parents attended.
At that appointment, the pediatrician observed that I’s head was swollen and that he became irritable and cried when she touched him, especially when she touched his abdomen. The pediatrician asked Mother and Father if I had experienced any trauma, something both parents denied. After the examination, the pediatrician told Mother and Father to “immediately take [I] to the emergency department.”
Mother and Father brought I to the University of Maryland Medical Center, where I was diagnosed with “subdural hematomas and abusive head trauma” as well as multiple fractures to his limbs and ribs. The medical team reported that I’s injuries were “diagnostic of physical abuse,” and sent I to Johns Hopkins Hospital for further testing and treatment.
The medical team at Johns Hopkins described I as “critically ill” and in need of care to “prevent cardiovascular collapse due to abusive head trauma.” Once admitted to the Pediatric Care Unit, I was diagnosed with multiple intracranial hemorrhages; multiple fractures to his ribs, legs, and arms; and “extensive multilayered retinal hemorrhages in both eyes.” His fractures were in various stages of healing, which indicated that “some of them had happened earlier than others.”
While the Johns Hopkins team was treating I, police officers and other staff members from Johns Hopkins and
the Department asked Mother and Father to explain how I had sustained his injuries. Both parents claimed they didn’t know how the injuries happened. Father said he had dropped I into his bassinet and may have caused the leg fractures by “rotating [I’s] legs like a bicycle.” He also admitted that he would try to “reshape” I’s head by pressing on it, but he didn’t believe he had hurt him. As to the delay in seeking medical care, Mother said she didn’t think I’s symptoms were serious.
The child abuse experts at Johns Hopkins determined that I’s injuries were caused by “classic multi-symptom abuse . . . that could only have been caused by abusive nonaccidental traumas.” One social worker noted that “[w] ithout a clear history of how [I] sustained such extensive injury, [she was] concerned for [I’s] safety in the care of either parent.” Neither parent has definitively explained the cause of I’s injuries since his hospitalization in January 2019.
As a result of his injuries, I is “legally and permanently blind,” suffers from a seizure disorder, and is at risk for developmental delays. Over the past five years, I has been diagnosed with various ongoing medical and psychological issues stemming from the trauma he experienced, including autism, post-traumatic stress disorder, separation anxiety, and severe sleep issues.
2. Visitation and foster care placement
Upon release from the hospital in late January 2019, I was placed in a foster home for medically fragile children, and he still lives there today. As part of the Department’s efforts to achieve reunification—the permanency plan at the time— Mother and Father each had weekly supervised visits with I at the Department’s “Banja Center.” Father, who is currently serving in the military, made some efforts to reunify with I at first. Those efforts were inconsistent and have since ceased. Mother, however, visited consistently with I at the Department and later in the community supervised by I’s foster mother, Mrs. M. (“Foster Mother”). Mother and Foster Mother often coordinated extra visits as well (also supervised by Foster Mother).
Once the court modified the permanency plan to adoption by a nonrelative in June 2021, the Department began gradually providing monthly rather than weekly supervised visits, although Mother sometimes would visit, call, and FaceTime with I in addition to the monthly visits by coordinating with Foster Mother. In early 2023, Mother asked that the Department, not Foster Mother, supervise her visits so that she could form a stronger bond with I. Under Department supervision, Mother’s visits decreased to once per month.
In December 2023, the CINA court ordered a change in the permanency plan from adoption by a nonrelative to reunification and granted Mother unsupervised visitation. Mother began having unsupervised weekly visits with I in February 2024 until May 2024, when the juvenile court expanded Mother’s unsupervised visitation rights to include one weekend a month.
B. Procedural History
The Department placed I in shelter care on January 9,
2019, the same day he was admitted to Johns Hopkins. The next day, January 10, 2019, the Department filed a CINA Petition with Request for Shelter Care in the Circuit Court for Baltimore City sitting as the juvenile court. The court granted the Department’s petition. At an adjudicatory hearing on May 15, 2019, the court found I to be a CINA, committed him to the Department, and granted limited guardianship to the Department.
Alongside these court proceedings, the Department completed an investigation and found both Mother and Father responsible for indicated child abuse. Mother appealed this decision; Father didn’t. After two hearings in July and October of 2020, the Office of Administrative Hearings changed the finding as to Mother from indicated child abuse to indicated child neglect for her failure to timely seek medical care for I. Mother didn’t appeal that decision.
In February 2021, a magistrate recommended changing I’s permanency plan from reunification to adoption by a nonrelative. Mother filed exceptions and the juvenile court held a hearing on June 11, 2021. The court approved the magistrate’s recommendation and changed I’s permanency plan to adoption by a nonrelative.
On March 18, 2021, the Department filed a petition to terminate Mother’s parental rights. The juvenile court held a separate hearing that spanned multiple days in October and November 2022, after which the court denied the Department’s TPR petition. The Child filed a motion to alter or amend the juvenile court’s decision that the court denied. Both the Child and the Department noted appeals.
While the 2023 TPR appeal was pending, the juvenile court held a review hearing in I’s CINA case that occurred over several days from July to December 2023. On November 9, 2023—while the CINA review hearing was still ongoing— this Court issued an opinion in the TPR case vacating the juvenile court’s denial of the TPR petition and remanding for further proceedings. See In re I.Q., No. 0108, Sept. Term 2023 (Md. App. Nov. 9, 2023). The CINA court reviewed that opinion but found that it did not establish the law of the case governing I’s CINA matter. On December 13, 2023, the CINA court ordered a change in I’s permanency plan back to reunification and granted Mother unsupervised visits. The Child appealed this decision. The Department initially filed a Motion for Reconsideration, but later withdrew it and filed a notice of appeal as well. This CINA review hearing, and the December 13, 2023 order that followed it, are the subject of the first appeal we address in this opinion.
While the CINA appeal was pending in this Court, Mother filed a motion in the TPR case to dismiss the TPR petition or to hold it sub curia until the CINA appeal was resolved. The juvenile court held a hearing on May 30, 2024. The parties presented their arguments on the motion and Mother requested, for the first time, that the court expand Mother’s visitation rights to include monthly overnight visits with I. The court decided to hold the TPR petition sub curia until this Court issued an opinion in the CINA case. The court also granted Mother’s visitation request initially without hearing evidence. But then the Child and the Department suggested the court hear evidence on Mother’s recent unsupervised
visits with I before making a decision. The court agreed and held a short hearing. At the end of the hearing, the court granted Mother one overnight visit per month with the condition that an Applied Behavior Analysis (“ABA”) specialist (a licensed professional who provides in-home therapy for children on the autism spectrum) be present for part of the visit. Both the Child and the Department appealed, and that’s the second appeal that we address in this opinion.
We include additional facts as necessary throughout the analysis.
II. DISCUSSION
The Child and the Department raise several issues on appeal, some of which arise from the CINA court’s December 13, 2023 ruling and others from the TPR court’s May 30, 2024 ruling. We address first the questions presented in the CINA appeal arising from the court’s decision to change I’s permanency plan to reunification and to grant Mother unsupervised visits. Then we analyze the issues raised in the second appeal arising from the court’s decisions to hold the Department’s TPR petition sub curia pending the result of the CINA appeal and to grant Mother overnight visits. But before getting to the merits of either order, we address their appealability.
A. The CINA Case
In their appeal from the CINA court’s December 13, 2023 order, the Department and the Child raise multiple issues that we consolidate and rephrase as follows:
(1) Did the juvenile court err in concluding that our 2023 TPR opinion was not part of the law of the case in the CINA proceedings?
(2) Did collateral estoppel bar the juvenile court from reconsidering issues addressed in our 2023 TPR decision?
(3) Did the juvenile court err by scheduling and conducting a permanency plan review hearing while the first TPR appeal was pending?
(4) Did the court abuse its discretion in changing I’s permanency plan to reunification and granting Mother unsupervised visits?2
We analyze each question in turn after considering a threshold matter on which we ordered supplemental briefing: whether the Department and the Child can appeal the challenged rulings at all.
1. The Department and the Child can appeal the CINA court’s rulings under CJP § 12-303(3)(x).
At the threshold, Mother argues that the CINA court’s December 13, 2023 order is not appealable by the Child or the Department. She contends that, based on the wording of Md. Code (1974, 2020 Repl. Vol.) § 12-303(3)(x) of the Courts & Judicial Proceedings Article (“CJP”) and the case law defining its scope and applicability, the order must deprive Mother of the care and custody of I or amend a previous permanency plan or visitation order to her detriment to be appealable. The Child and the Department counter that the plain language of CJP § 12-303(3)(x) does allow appeals from orders changing a permanency plan or visitation structure even if that change is not detrimental to the parent.
They argue that cases applying CJP § 12-303(3)(x) “generally turn on whether there was a deprivation of the parent’s care and custody rights” because the parents were the appellants in those cases, not because the statutory right to appeal is limited solely to parents. Finally, they argue that allowing this appeal would further the purposes of CJP § 12-303 and the CINA statutes. See CJP §§ 3-801–3-830. We agree with the Child and the Department that the order is appealable under CJP § 12-303(3)(x).
The Supreme Court of Maryland has addressed the appealability of CINA orders in several cases. Although the posture of this case is unusual in the sense that the Child and the Department are appealing rather than the parent, the legal principles remain the same. “Generally, appeals may be taken only from final judgments.” In re Damon M., 362 Md. 429, 434 (2001) (citing Md. Code (1974, 1998 Repl. Vol.) § 12-301 of the Courts & Judicial Proceedings Article). There are exceptions, however, to the “final judgment appealability rule,” id., including the interlocutory order exception under CJP § 12-303(3)(x). That statute allows interlocutory appeals from orders that deprive a parent of the care or custody of a child or, importantly, that change the terms of such an order:
A party may appeal from any of the following interlocutory orders entered by a circuit court in a civil case:
(3) An order:
(x) Depriving a parent, grandparent, or natural guardian of the care and custody of his child, or changing the terms of such an order . . . . CJP § 12-303(3)(x).
Our Supreme Court has held consistently that a change to a CINA’s permanency plan or visitation structure is appealable immediately under CJP § 12-303(3)(x). See, e.g., In re Damon M., 362 Md. at 438 (change from reunification to long-term or permanent foster care and adoption immediately appealable); In re Yve S., 373 Md. 551, 583 (2003) (“[D]espite their interlocutory nature, orders of court regarding permanency plans are immediately appealable.”); In re Billy W., 387 Md. 405, 425–26 (2005) (order maintaining permanency plan but changing visitation structure to parents’ detriment immediately appealable); In re Karl H., 394 Md. 402, 430 (2006) (change from reunification to concurrent plan of reunification and adoption immediately appealable); In re Joseph N., 407 Md. 278, 291 (2009) (order immediately appealable where plan remained reunification but juvenile court “shift[ed] [child’s] physical custody from foster care to his father”). That much is obvious from the first half of subsection (x).
Cases analyzing the scope of CJP § 12-303(3)(x) invariably have involved appeals taken by the parents, which tend to highlight the detrimental change in the parents’ rights to the care and custody of their children because, presumably, they’re invoking the first half of subsection (x). See, e.g., In re Billy W., 387 Md. at 425–26 (order changing permanency plan “must act to detrimentally affect [the parents’] parental rights to be appealable”); In re Karl H., 394 Md. at 430–31
(concurrent plan of reunification and adoption is “sufficiently far enough along the continuum of depriving a parent of a fundamental right and is immediately appealable”); In re Joseph N., 407 Md. at 291–92 (order maintaining reunification plan but “shifting [child’s] physical custody from foster care to his father” immediately appealable by mother because it changed the plan’s focus from reunification with mother to reunification with either parent).
But subsection (x) has two halves, and the second half of subsection (x) authorizes appellate review in cases where the court has “chang[ed] the terms of” a prior custody order. The text of that clause doesn’t limit itself to parents. And in cases where a court changes an earlier custody order, a child and the Department could well be aggrieved by that decision.
So did the Legislature intend to provide appellate relief under CJP § 12-303(3)(x) only to parents who were deprived of the care and custody of their child, or also to allow appeals from parties aggrieved by orders changing existing custody orders? We hold that the latter interpretation follows the plain language of CJP § 12-303 and fulfills the purposes of the CINA statute.
“As in any question of statutory interpretation, the goal is to discern and implement the intent of the Legislature.” In re O.P., 470 Md. 225, 255 (2020). And as always, we start with the text of the statute.3 Id. Section 12-303(3)(x) states that “[a] party may appeal from . . . [a]n order . . . [d]epriving a parent, grandparent, or natural guardian of the care and custody of his child, or changing the terms of such an order ” CJP § 12-303(3)(x).
The use of “[a] party” indicates that the right to appeal under CJP § 12-303(3)(x) is not limited to a parent but could mean any party to the case. See Evans v. State, 396 Md. 256, 341 (2006) (“Most courts have construed ‘a’ or ‘an’ as meaning ‘any’ and as not restricted to just one.”). Both the Child and the Department indisputably are parties to the CINA case. Interpreting CJP § 12-303(3)(x) requires a review of some common rules of grammar. To start, the second “or” in § 12-303(3)(x) is a conjunction that connects the first clause—“[d]epriving a parent, grandparent, or natural guardian of the care and custody of his child”—with the second—“changing the terms of such an order.” CJP § 12303(3)(x). The conjunctive “or” is “used as a function word to indicate an alternative.” Merriam-Webster’s Collegiate Dictionary at 872 (11th ed. 2011). When separating two alternatives—as in CJP § 12-303(3)(x)—the use of “or” signifies that one, the other, or both items is an option. See Bryan A. Garner, Garner’s Modern American Usage: The Authority on Grammar, Usage, and Style, 45 (3d ed. 2009) (“If you are offered coffee or tea, you may pick either (or, in this case, neither), or you may for whatever reason order both. This is the ordinary sense of the word, understood by everyone and universally accommodated by the simple or.”). In addition, the word “such” in the second clause— “changing the terms of such an order,” CJP § 12-303(3)(x) (emphasis added)—is a demonstrative adjective that refers back to the type of order described in the first clause— one that “[d]epriv[es] a parent, grandparent, or natural guardian of the care and custody of his child.” Id.; see also Bryan A.
Garner, Garner’s Modern American Usage: The Authority on Grammar, Usage, and Style, 783 (3d ed. 2009) (“Such is properly used as an adjective when reference has previously been made to a category of people or things: thus such means ‘of that kind’ [S]uch isn’t any more precise than the, that, or those [S]uch is a pointing word that must refer to a clear antecedent.” (emphases in original)).
With these grammatical rules in mind, the statute breaks down logically to authorize appeals from two types of orders: (1) An order that “[d]epriv[es] a parent, grandparent, or natural guardian of the care and custody of his child”; or (2) An order that “chang[es] the terms of” a previous order that “depriv[ed] a parent, grandparent, or natural guardian of the care and custody of his child.”
CJP § 12-303(3)(x).
This reading is consistent with the purposes of CJP § 12303 and the CINA statute. Section 12-303’s purpose is to avoid the “irreparable harm” a party may face if they are unable to appeal until the court issues a final judgment:
The Legislature has seen fit to carve from the general rule of nonappealability of interlocutory orders certain specified types of orders which are immediately appealable. The common denominator of the exceptions is the irreparable harm that may be done to one party if he had to await final judgment before entering an appeal. Reversal of the final order because of the time expenditure involved in trial and appeal might “rust the sharpest sword” and “consume the strongest cord.”
Flower World of Am., Inc. v. Whittington, 39 Md. App. 187, 192 (1978) (internal citations and footnotes omitted); see also Della Ratta v. Dixon, 47 Md. App. 270, 279 (1980) (“Certain types of equitable orders, if not immediately appealable, could create manifest injustice to a party.”).
The CINA statute has several goals, but its main purpose is to protect children deemed CINA from further abuse or neglect. See In re Rachel T., 77 Md. App. 20, 28 (1988) (“The purpose of a CINA proceeding is to protect children and promote their best interests.”); In re Priscilla B., 214 Md. App. 600, 626 (2013) (“‘The purpose of [the CINA statute] is to protect children—not wait for their injury.’” (alteration in original) (quoting In re William B., 73 Md. App. 68, 77–78 (1987))). Although another “key purpose of the CINA law is to ‘achieve a timely, permanent placement for the child consistent with the child’s best interests,’” In re Ashley S., 431 Md. 678, 712 (2013) (quoting CJP § 3-802(a)(7)), the desire for expediency doesn’t outweigh a child’s safety when the court must determine whether to place them in the care of a previously abusive or neglectful parent. See 42 U.S.C. § 671(a)(15)(A) (federal law explaining requirements state foster care programs must meet to receive funding, including that “the child’s health and safety shall be the paramount concern” in determining whether to reunify or continue foster care); In re J.R., 246 Md. App. 707, 733 (2020) (“Complying with [42 U.S.C. § 671], Maryland adopted ASFA through HB1093 in 1998, asserting that this bill ‘declares a legislative finding that the purpose of state adoption and guardianship law is to provide children with stable homes that protect their safety and health.’” (quoting Dep’t Leg.
Servs., Fiscal and Policy Note (rev.), H.D. 1998-1093, 412 Sess., at 1 (Md. 1998)).
Normally, of course, these appeals arise in the context of parents whose custody or visitation rights have been impaired in some fashion, whose child’s permanency plan has been changed from reunification to anything else, or whose efforts to regain custody or visitation or reunification have been rejected. But at least after an initial custody order has been entered, it’s certainly possible that a child or the Department might believe that a decision modifying such an order is inconsistent with the child’s best interests. And that’s exactly the situation here—the circuit court modified the operative visitation order to broaden Mother’s unsupervised visitation with I, and both he and the Department believe that this decision places I in jeopardy. If they were right—and we’ll deal with that below— the considerations justifying an interlocutory appeal by parents when custody orders have been modified apply equally to the child themself and to the Department as guardian. A child’s safety and well-being are at stake when CINA courts rule on permanency planning, custody, and visitation. If the court’s determination on whether a CINA should be reunified with their past abusive or neglectful parent or placed in that parent’s unsupervised care isn’t reviewable on an interlocutory basis, the child could face irreparable harm via further abuse or neglect while the child and department await the court’s final decision. Concluding otherwise would go expressly against the protective goals of CJP § 12-303 and the CINA statute. See In re Priscilla B., 214 Md. App. at 626 (“‘[C]ourts should be most reluctant to “gamble” with an infant’s future.’” (quoting McCabe v. McCabe, 218 Md. 378, 384 (1958))).
The text and purpose of CJP § 12-303(3)(x) align, then, to authorize this appeal to proceed. First, the Child and the Department both are parties to the CINA case. A “party” under the CINA statute includes “a child who is the subject of a petition,” and “the petitioner” that filed the CINA petition with the court. CJP § 3-801(u)(1)(i), (iii). I is, of course, the child who is the subject of the CINA petition in this case and the Department is the entity that filed the original CINA petition in the circuit court.
Simply being a party, however, is not enough. “Maryland common law is clear that, as a general rule, the only persons who may appeal a judgment are those aggrieved by that judgment.” Suter v. Stuckey, 402 Md. 211, 232 (2007) (emphasis added). Here, I has an interest in protecting his personal safety, which—from his perspective—is alleged in terms of preventing or limiting reunification or unsupervised visits with Mother. The Department also has a parens patriae interest in protecting the health and safety of ““those, such as minors, who cannot care for themselves.”” See In re Yve S., 373 Md. at 570 (quoting In re Mark M., 365 Md. 687, 705 (2001)). Both took the position that it would not be in I’s best interest to change the permanency plan to reunification or to allow unsupervised visits, expressing concerns about Mother’s ability to care for I and her inability or unwillingness to explain I’s injuries. The juvenile court ultimately ordered a change in the permanency plan to reunification and granted Mother unsupervised visitation, the opposite of what the
Child and the Department requested and believed to be in I’s best interest. The Child and the Department are, therefore, aggrieved parties under the circumstances of this case.
Second, the December 13, 2023 order is appealable under the second portion of CJP § 12-303(3)(x), which allows interlocutory appeals of orders that “chang[e] the terms of” a previous order that “[d]epriv[ed] a parent, grandparent, or natural guardian of the care and custody of his child.” CJP § 12-303(3)(x). “In determining whether an interlocutory order is appealable, in the context of custody cases, the focus should be on whether the order and the extent to which that order changes the antecedent custody order.” In re Karl H., 394 Md. at 430. The December 13, 2023 order changed earlier custody and visitation orders that had deprived Mother of the care and custody of I in some way. The initial CINA order, issued May 15, 2019, found I a CINA, committed him to the Department’s custody, and granted limited guardianship to the Department. On June 11, 2021, the court ordered a permanency plan of adoption by a nonrelative. All orders issued from June 2021 to December 2023 continued I’s commitment to the Department and permanency plan of adoption by a nonrelative. By altering the permanency plan and visitation structure, the December 13, 2023 order changed the antecedent orders that had deprived Mother of I’s care and custody. We hold, then, that the December 13, 2023 order is appealable by the Child and the Department under CJP § 12-303(3)(x).
2. Our 2023 Opinion in the TPR Case was not the law of the case in the CINA case.
We turn now to the issues raised by the Child and the Department in the CINA appeal. In reviewing the CINA court’s rulings, we apply “three interrelated standards of review.” In re T.K., 480 Md. 122, 143 (2022). We review the court’s factual findings for clear error, id.; we review matters of law de novo, id.; and we review “[u]ltimate conclusions of law and fact, when based on ‘sound legal principles’ and ‘factual findings that are not clearly erroneous,’ . . . under an abuse of discretion standard.” Id. (quoting In re Yve S., 373 Md. at 586).
The first argument the Department and the Child raise is that our 2023 Opinion was the law of the case and should have governed the outcome of the TPR and CINA proceedings that followed. They claim the juvenile court erred by, in their view, reaching a conclusion that contradicted the holdings in our 2023 Opinion. Mother argues that our 2023 Opinion was not the law of the case in the CINA proceedings because it pertained to a separate but related TPR case. We agree with Mother.
Under the law of the case doctrine, “[w]hen a case is appealed and remanded, the decision of the appellate court establishes the law of the case, which must be followed by the trial court on remand.” Tu v. State, 336 Md. 406, 416 (1994) (emphasis in original) (quoting 1B J.W. Moore, J.D. Lucas & T.S. Currier, Moore’s Federal Practice ¶ 0.404[1], at II-3 (2d ed. 1993)). This “prevents trial courts from dismissing appellate judgment and re-litigating matters already resolved by the appellate court.” Stokes v. Am. Airlines, Inc., 142 Md. App. 440, 446 (2002).
In determining whether the law of the case doctrine applies, we focus on whether the appellate court decided an issue “between the same parties in the same case.” Kline v. Kline, 93 Md. App. 696, 700 (1992) (emphasis added); see also id. (“[A] ruling by an appellate court upon a question becomes the law of the case and is binding on the courts and litigants in further proceedings in the same matter.” (emphasis added)). In this instance, and despite their shared guiding principle—the child’s best interest—I’s CINA and TPR proceedings are sufficiently distinct and separate that our 2023 Opinion wasn’t the law of the case in I’s CINA case.
The Maryland Supreme Court wrote extensively on the differences between TPR and CINA proceedings in In re Adoption of Jayden G., 433 Md. 50 (2013). The Court noted first that the juvenile court considers different, if similar, factors in CINA and TPR proceedings. Id. at 75. “The CINA statute focuses on factors that mostly have to do with the child’s present well-being and the likely effect of a change of placement or remaining in foster care”:
(i) the child’s ability to be safe and healthy in the home of the child’s parent;
(ii) the child’s attachment and emotional ties to the child’s natural parents and siblings;
(iii) the child’s emotional attachment to the child’s current caregiver and the caregiver’s family;
(iv) the length of time the child has resided with the current caregiver;
(v) the potential emotional, developmental, and educational harm to the child if moved from the child’s current placement; and
(vi) the potential harm to the child by remaining in State custody for an excessive period of time.
Id. at 75–76 (quoting Md. Code (1999, 2019 Repl. Vol.) § 5-525(f)(1)(i)–(vi) of the Family Law Article (“FL”)); see also CJP § 3-823(e)(2) (directing CINA court to FL §5-525(f)(1) factors). On the other hand, the TPR statute, FL § 5-323(d), “covers a broader range of considerations,” In re Adoption of Jayden G., 433 Md. at 76, and “pays particular attention to the parent’s efforts at remedying the circumstances that led to the court’s intervention,” id. at 77:
(1)(i) all services offered to the parent . . . by a local department, another agency, or a professional;
(ii) the extent, nature, and timeliness of services offered . . . ; 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 . . . ; and 3 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 . . . ;
(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 . . . ;
(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 . . . 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 parentchild relationship; and
(iv) the likely impact of terminating parental rights on the child’s well-being.
FL § 5-323(d)(1)–(4).
Alongside these statutory differences, the Court explained that CINA and TPR proceedings “serve different purposes”: CINA proceedings are designed “[t]o provide for the care, protection, safety, and mental and physical development of” children found CINA; “conserve and strengthen the child’s family ties;” ensure that parents and local departments work together to “remed[y] the circumstances that required the court’s intervention;” and “achieve a timely, permanent placement for the child consistent with the child’s best interests.” CJP § 3–802(a). In contrast, when the Department initiates TPR proceedings, it “seek[s] to terminate the existing
parental relationship.” [In re Adoption/Guardianship of Rashawn H., 402 Md. 477, 496 (2007)]. It files the TPR petition when it believes a child’s welfare will be best served in the care and custody of others, rather than the natural parents.
In re Adoption of Jayden G., 433 Md. at 75. Additionally, “[d]ifferent evidentiary burdens . . . apply” in CINA and TPR cases: the “preponderance of the evidence” standard in CINA proceedings and the higher “clear and convincing standard of proof” in TPR proceedings. Id. at 77. The Maryland Rules also demand “strict application of the Maryland Rules of Evidence” in TPR proceedings, but not in CINA adjudications. Id.; see also Md. Rule 5-101(c)(5) (“[T] he court, in the interest of justice, may decline to require strict application of the [Maryland Rules of Evidence] . . . [in] [p]roceedings under Title 11 [(Juvenile Causes)] of these Rules ”); In re Ashley E., 158 Md. App. 144, 161 (2004), aff’d, 387 Md. 260 (2005) (“[I]n a permanency plan review hearing, strict application of the Maryland Rules of Evidence is not required.”).
Finally, in rejecting the argument that reversing the change in the permanency plan would “undermine[] the footing on which the TPR proceedings st[ood],” the Court explained that ““the changing of the permanency plan to adoption is not a prerequisite to the filing of a TPR petition,’” In re Adoption of Jayden G., 433 Md. at 78 (quoting In re Adoption/Guardianship of Cross H., 200 Md. App. 142, 150 (2011)):
Under the CINA and Child Welfare Services provisions, there are three ways in which TPR proceedings may be initiated. First, as in this case, the department is required to file a TPR petition after the juvenile court finds that a permanency plan of adoption by a non-relative is in the child’s best interests. See CJP § 3-823(g). Second, FL § 5-525.1(b) requires the department to file a TPR petition when “the child has been in an out-of-home placement for 15 out of the most recent 22 months.” Third, if the department “determines that adoption . . . is in the best interest of the child,” it is required to “refer the case to the agency attorney,” and the attorney must file a TPR petition. FL § 5–525.1(a). Id.
So “[a]lthough ‘a CINA adjudication must precede a TPR 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.” Id. at 75 (internal citations omitted). The CINA court here didn’t review the same matter or issues that we reviewed in the 2023 TPR appeal. I’s CINA and TPR cases are related but ultimately resolve separate issues, and our opinion in the TPR case is not binding in the CINA case under the law of the case doctrine.
3. Collateral estoppel did not bar the juvenile court from ruling on similar issues in the CINA case.
As an alternative to the law of the case argument, the Department contends that the doctrine of collateral estoppel
“precluded the juvenile court from revisiting the core issues” resolved in the 2023 TPR appeal. Mother argues that the doctrine doesn’t apply because the issues litigated in the CINA case are different from those that were litigated in the TPR case and appeal.4 Mother is right, but for a different reason: we didn’t reach a final judgment on the merits in the TPR appeal.
Under the doctrine of collateral estoppel, also known as issue preclusion, “‘[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.’” Cosby v. Dep’t of Hum. Res., 425 Md. 629, 639 (2012) (alteration in original) (quoting Murray Int’l Freight Corp. v. Graham, 315 Md. 543, 547 (1989)). “Collateral estoppel is not concerned with the legal consequences of a judgment, but only with the findings of ultimate fact, when they can be discovered, that necessarily lay behind that judgment.” Colandrea v. Wilde Lake Cmty. Ass’n, 361 Md. 371, 391 (2000).
We apply a four-part test to determine if collateral estoppel applies:
1. Was the issue decided in the prior adjudication identical with the one presented in the action in question?
2. Was there a final judgment on the merits?
3. Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?
4. Was the party against whom the plea is asserted given a fair opportunity to be heard on the issue?
Id. Unlike the law of the case doctrine, the distinctions between TPR and CINA proceedings don’t drive the collateral estoppel analysis. Instead, we focus on the issues the court ruled on, whether in a different context or under a different statutory scheme:
Collateral estoppel does not require that the prior and present proceedings have the same purpose, nor does it mandate that the statutes upon which the proceedings are based have the same goals. The relevant question is whether the fact or issue was actually litigated and decided in a prior proceeding, regardless of the cause of action or claim. If the answer to that question is yes, then, assuming that the remaining factors of the doctrine have been met, collateral estoppel bars re-litigation of the issue.
Cosby, 425 Md. at 642 (quoting Montgomery Cnty. Dep’t of Health & Hum. Servs. v. Tamara A., 178 Md. App. 686, 701 (2008), rev’d on other grounds, 407 Md. 180 (2009)).
The collateral estoppel argument here fails on the second prong of the test—we didn’t reach a final judgment on the merits of the TPR petition in our 2023 Opinion. In In re I.Q., No.0108, Sept. Term 2023 (Md. App. Nov. 29, 2023), we held that the TPR court “improperly prioritized Mother’s efforts over I.Q.’s best interests,” id. at 39, and failed to consider several key facts before making its findings on the FL § 5-323(d)(1)–(4) factors. Id. at 24–40. But we didn’t make any final determinations on those factors. We highlighted the gaps in the TPR court’s analyses, vacated the court’s order, and remanded the case with instructions to hold a new
hearing on the TPR petition. Id. at 44. The TPR court could come to the same conclusion as before (i.e., that it’s not in I’s best interest to terminate Mother’s parental rights), or it could reach the opposite conclusion. We didn’t foreclose either outcome. And to the extent that the factors applied in the CINA review hearing overlap with the TPR factors, the CINA court was not bound to reach a particular conclusion after our 2023 Opinion. The court was, at most, on notice that it should provide a thorough explanation for each factor and shouldn’t leave out any relevant facts. As such, collateral estoppel didn’t bar the CINA court from reviewing any of the issues addressed in the review hearing.
4. The CINA court did not err when it conducted a permanency plan review hearing while the TPR appeal was pending.
The Child argues next that the CINA court erred by scheduling and conducting a permanency plan review hearing because the court was required by CJP § 3-823(g)(2) to hold a TPR hearing instead of a CINA review hearing once the permanency plan changed to adoption by a non-relative. Mother, on the other hand, contends that the court was required under CJP § 3-823(h)(1) to hold the review hearing and didn’t err in going forward with the CINA proceedings while the TPR appeal was pending. We see no error in the court’s decision to proceed.
As in In re Adoption of Jayden G., “[t]wo intricately connected, yet separate legal mechanisms come into play in this case”: CINA review hearings and TPR proceedings. 433 Md. at 54. In CINA cases, once a juvenile court determines that a child is a CINA and sets an initial permanency plan, the court must then schedule review hearings “at least every six months until commitment is rescinded or a voluntary placement is terminated.” CJP § 3-823(h)(1); see also CJP § 3-823(b)(1)(i) (court must hold initial permanency plan hearing within eleven months of child’s commitment to department); CJP § 3-823(e)(1)-(2) (ranking permanency plans in order of priority and directing court to factors it must consider in permanency plan hearing). This is a federally mandated review process designed to “‘determine the future status of the child,’” based on the child’s evolving circumstances. In re Yve S., 373 Md. at 575 (quoting The Public Health and Welfare Act, Pub. L. No. 103-432 § 675(5) (C), 108 Stat. 4398 (1994) (amended 1997); see also 42 U.S.C. § 675(5)(B) (state’s “case review system” must include review of “the status of each child . . . no less frequently than once every six months”). The permanency plan is at the heart of the CINA case and all efforts to achieve stability for the child: The permanency plan is an integral part of the statutory scheme designed to expedite the movement of Maryland’s children from foster care to a permanent living, and hopefully, family arrangement. It provides the goal toward which the parties and the court are committed to work. It sets the tone for the parties and the court and, indeed, may be outcome determinative.
In re Damon M., 362 Md. at 436. As such, regular review of a CINA’s permanency plan is essential to “determine progress and whether, due to historical and contemporary circumstances, [the plan] should be changed.” In re Yve S.,
373 Md. at 582. The default permanency plan is reunification with the child’s parent or guardian. CJP § 3-823(e)(1)(i)1.; see also In re Yve S., 373 Md. at 582 (“[CJP § 3-823] presumes that, unless there are compelling circumstances to the contrary, the plan should be to work toward reunification ”). If, however, the juvenile court decides later to change the plan to adoption by a nonrelative, the court must order the local department to file a TPR petition within thirty days—or sixty days if the department doesn’t support the change—and “[s]chedule a TPR hearing instead of the next 6-month review hearing.” CJP § 3-823(g)(1)–(2) (emphasis added). If the court grants the TPR petition, which terminates the parent’s rights and grants “a local department guardianship with the right to consent to the individual’s adoption,” FL § 5-325(a)(3), then the CINA case is terminated. FL § 5-325(a)(4). The CINA case remains active, however, if the court denies the TPR petition, at which point the court must hold a CINA review hearing within 180 days of the order denying the petition. FL § 5-324(a)(3).
Where the juvenile court in this case decided not to grant the TPR, the CINA case remained active and the juvenile court retained jurisdiction over the CINA case. The next step in the CINA case was the scheduled six-month review hearing, as required by state and federal law. See CJP § 3-823(h)(1); 42 U.S.C. § 675(5)(B). Procedurally, then, the court didn’t err in holding the CINA proceedings. We also are persuaded by the CINA court’s determination that going forward with the CINA proceedings wouldn’t frustrate the TPR appeal:
[THE COURT]: The Court cannot find here that proceeding with the CINA case in the trial court will frustrate in any way the purpose or the outcome of the case on appeal in the TPR -- in the TPR case. If [the TPR court’s] decision on appeal is upheld denying the petition, that has no effect -- that will have no effect on the CINA case. And the CINA case outcome certainly will have no effect on what the -- on what the appellate court does with the TPR case. And in fact, if that were the scenario, any stay here of the CINA case will just result in a loss of time. If, on the other hand, the case -- the TPR case is remanded in the outcome here, the Court cannot see in any way how the outcome here in the CINA case would have any effect on the appellate court’s review of the record in the TPR case. The Court will not consider what happens. The appellate court will not consider the -- this Court cannot conceive a scenario under which the appellate court would consider what happens in this proceeding in determining the appeal in the TPR case.
So the TPR case is going to proceed to finality in the appellate courts regardless of what happens here. And if the outcome of that is a remand and ultimately a granting of the TPR petition, it will render these proceedings moot, and the TPR will control. So proceeding in the -- in the CINA case will not in any way frustrate the purpose of the appeal or the outcome thereof.
. . . [T]he Court finds that it is within the best interest of the child to keep the CINA case on tract [sic] especially
given that the current order in the TPR case is a denial of the petition, such that the CINA matter will proceed to finality, however that may turn out.
The court not only followed the correct statutory procedure, but also determined that holding the CINA hearing would be in I’s best interest because proceeding would avoid unnecessary delay if we were to affirm the TPR court’s denial of the petition. We find no legal error in the court’s decision not to stay the CINA proceedings while the TPR appeal was pending.
5. The CINA court did not commit clear error or abuse its discretion in changing I’s permanency plan and visitation structure.
Finally, the Department and the Child both argue that the CINA court relied on erroneous factual findings and abused its discretion when it changed I’s permanency plan to reunification and authorized Mother to have unsupervised visits. Mother contends that the record provides ample support for the court’s findings and that the court properly exercised its discretion in changing I’s permanency plan and visitation schedule. We see no clear error or abuse of discretion.
In a CINA review hearing, the juvenile court must, among other things, determine whether a “change in the permanency plan would be in the child’s best interest.” CJP § 3-823(h)(2)(vii). Before modifying the plan, though, the court must make findings against the factors under FL § 5-525(f)(1)(i)–(vi):
(i) the child’s ability to be safe and healthy in the home of the child’s parent;
(ii) the child’s attachment and emotional ties to the child’s natural parents and siblings;
(iii) the child’s emotional attachment to the child’s current caregiver and the caregiver’s family;
(iv) the length of time the child has resided with the current caregiver;
(v) the potential emotional, developmental, and educational harm to the child if moved from the child’s current placement; and
(vi) the potential harm to the child by remaining in State custody for an excessive period of time.
FL § 5-525(f)(1)(i)–(vi); see also CJP § 3-823(e)(2) (directing court to FL § 5-525(f)(1) factors for permanency plan determinations). Also, “in cases where evidence of abuse exists, courts are required by statute to deny custody or unsupervised visitation unless the court makes a specific finding that there is no likelihood of further child abuse or neglect.” In re Mark M., 365 Md. 687, 706 (2001); see also FL § 9-101(b).
The court in this case made findings relating to all the factors required by FL § 5-525(f)(1)(i)–(vi) and FL § 9-101. We review these findings for clear error, see In re T.K., 480 Md. at 143, keeping in mind that a juvenile court’s factual finding “‘is not clearly erroneous if there is competent or material evidence in the record to support the court’s conclusion.’” In re M.H., 252 Md. App. 29, 45 (2021) (quoting Lemley v. Lemley, 109 Md. App. 620, 628 (1996)).
First, the court found that I could be safe and healthy
in Mother’s home. See FL § 5-525(f)(1)(i). The court acknowledged the Child’s and the Department’s concerns about clutter and exposed radiators in Mother’s house, but the record supports the court’s conclusion that these issues are “minor” and “readily correctable.” In past home assessments, caseworkers made notes about “clutter,” such as boxes and bins throughout Mother’s house. By June 2023, though, I’s caseworker had no concerns about clutter other than the refrigerator on the top floor, which blocked part of the hallway. Mother also testified that she has moved the bins noted as clutter in past assessments to the basement where they would be out of I’s reach. Mother’s home otherwise “passed all the basic requirements” of the Department’s health assessment. Soon after that assessment, Mother reached out to the Department for assistance in finding and paying for radiator covers because she had had difficulty finding the correct size covers on her own. Taken together, the record supports the court’s finding that I can be safe and healthy in Mother’s home but for a few “readily correctable” issues.
Additionally, the court found that Mother’s “current lack of full understanding of how best to manage [I’s] personality and disposition,” was not detrimental to I’s safety and that she is capable of learning how best to care for him. Although the court recognized that there is “some evidence that [Mother] struggles to control [I] when he has tantrums,” the record supports the court’s finding that her “current lack of full understanding of how best to manage [I’s] personality and disposition . . . does not unreasonably place [I] at risk of harm.” A family support worker from the Department testified that Mother was gentle with I when he was having a tantrum. She said Mother was patient with I and acted as his “protector” during visits. I’s behavioral analyst also testified that she had neither heard nor seen Mother raise her voice at I and that she has never suspected that Mother was abusing or neglecting I.
The court also pointed out that Foster Mother had struggled in some instances with I’s tantrums. For example, Foster Mother testified that I tends to communicate using physical aggression and that she’s had to work with I’s behavioral analyst to learn how to manage those situations. As I’s former out-of-home-placement worker noted, “[i] t takes time and a lot of effort to calm [I] down when he’s having a tantrum or an outburst.” So Mother isn’t the only one who has difficulties dealing with I’s behavior sometimes. Overall, the record supports the court’s finding that Mother’s current abilities in managing I won’t put him at risk of harm while Mother continues to improve those skills.
The record also contains sufficient evidence of Mother’s coachability. According to I’s behavioral analyst, Mother “seemed very open about receiving any feedback” and “very receptive to any commentary” regarding I’s care. Mother was also open to regular parent training and applied the analyst’s and support worker’s suggestions on how to calm I when he had an outburst. The Child points out instances in which Mother didn’t follow some recommended strategies, such as wearing long shirts to practice “tailing” or saying “step” when guiding I on stairs. But as the court explained, no two sets of
parents have the exact same view on what is the “best” way to teach or parent their children, and that’s not the focus of these proceedings in any event:
[THE COURT]: . . . [T]he Court is not finding competing testimony as to the differences in [Mother’s] parenting style to those of [I’s foster parents], terribly relevant or significant with respect to the Court’s ultimate determination in this case The Court will focus [its] decision in this case as the law directs on whether it’s appropriate to reunify [I] with his Mother. That, [I’s foster parents] and [Mother] may have differences of opinions as to what is best. Grab ten sets of parents in a room and ask them a question about what’s best for the child, you’re going to get ten different answers.
The court didn’t err in concluding that Mother is coachable and capable of learning how best to care for I.
Second, the court found that Mother had created “motherly bonds” with I. See FL
§ 5-525(f)(1)(ii). Department staff testified that Mother and I are affectionate towards one another and that their relationship is “loving.” Mother introduced several photographs showing her and I cuddling, smiling, and playing together during visits. Caseworker testimony also indicated that Mother is “hands-on” and “very protective” of I when he’s walking around and that she tends to I’s needs when they’re together. We find no error in the court’s conclusion that Mother has formed “motherly bonds” with I.
Third, the court found that I is attached emotionally to his foster family. See FL § 5-525(f)(1)(iii). The record contains ample evidence supporting this finding. According to Foster Mother, he has a “buddy kind of relationship” with his foster father and a typical sibling relationship with the other foster child in the home. I is “very attached” to his foster mother as well. Testimony shows that I becomes anxious when his foster mother isn’t in the room with him and Mother testified that I would “constantly run to [his foster mother]” during visits. Neither the Child nor the Department challenges the court’s finding as to his bond with them. They argue instead that the court didn’t place enough weight on this and the next two factors. As we explain below, we disagree.
Fourth, the court found that I has lived with his foster family since January 2019, all but three months of his life.
See FL § 5-525(f)(1)(iv). Nobody disputes this finding. And fifth, the court found no evidence that I wouldn’t be able to “successfully adjust” if reunified with Mother even though his removal from his foster family “would be disruptive and present challenges for both [I] and any new caregivers.”
See FL § 5-525(f)(1)(iv). Both the Child and the Department claim there is evidence that I would not be able to adjust successfully, and they highlight the fact that he would be removed from “the only family he has ever known.” The record reveals, however, that I has adjusted to being away from his foster mother and family for long periods of time, such as for school. And with the help of a night nurse, I wakes up in search of Foster Mother far less often than he used to. As Foster Mother admitted during her testimony, I “is capable of being taught to separate from [Foster Mother].”
Furthermore, the fact that a child “may be happier with
their foster parents is not a legitimate reason to remove them from a natural parent competent to care for them in favor of a stranger.” In re Barry E., 107 Md. App. 206, 220 (1995). “Were bonding to be the dispositive factor, without consideration of whether a continued relationship with the biological parent would be detrimental to the best interests of the children, then reunification with a parent would be a mere chimera.” In re Adoption/Guardianship of Alonzo D., 412 Md. 442, 464 (2010).
The Child and the Department also take issue with the court’s comment that I will be able to adjust to reunification with Mother because “children are generally resilient.” Although that sort of generalization can’t, and shouldn’t, be used to justify permanency plan changes, the comment here didn’t reduce the court’s finding to mere speculation, as the Department suggests. This ultimately reads to us less as a finding than an editorial comment, and would not, in the absence of an adequately concrete record of I’s actual adaptations and progress with Mother, support a decision to allow Mother unsupervised visits. But this record does contain sufficient evidence to support the court’s findings even if we disregard this comment, which for these purposes we will.
Sixth, the court didn’t err in “find[ing] no basis in fact to conclude that [I] would be harmed by remaining in custody, at least within the near-term.” See FL § 5-525(f)(1)(vi). The parties don’t dispute that I is safe and well-cared for in his current placement. Although there was some discussion about the fitness of I’s foster parents as a long-term adoptive resource, the parties raised no concerns as to I’s present or near-future safety. The Child claims the court failed to consider adequately the need for permanency in I’s life when making this finding. But the court did specify that this finding goes to I’s “near-term” future and set a reunification date for one year from the date of the order.
In addition to the FL § 5-525(f)(1) factors, the court made a FL § 9-101 finding that “it is unlikely, by a preponderance of the evidence, that abuse or neglect would reoccur if custody or visitation rights are granted to [Mother].” Both the Child and the Department challenge this finding. They claim that the court minimized the trauma that I had suffered and ignored evidence that he would be in danger if reunified with Mother. Again, the court heard testimony about Mother’s interactions with individuals involved in I’s care who described Mother as patient, gentle, and protective when she cared for him. Department staff confirmed that Mother has completed parenting classes, domestic violence counseling, individual therapy, drug assessments, and home assessments, all successfully, and has remained almost 100% compliant with her services agreements throughout I’s CINA case. The one unmet requirement: she hasn’t provided an explanation for I’s injuries. The Department claims the court ignored concerns about Mother sometimes becoming frustrated when working with I. Witnesses said that Mother’s frustrations came across in her facial expressions or the tone of her voice. They testified, however, that Mother “was always very polite” if she became upset and needed to take a break. To their knowledge, Mother has never raised her
voice at I or harmed him physically during visits. And in explaining these moments of frustration, Mother testified that she wasn’t upset with I but rather with the situation and her lack of knowledge on how to calm I down. Overall, the record doesn’t indicate that Mother’s frustrations are as “deeply concerning” as the Department suggests or, more to the point, that the circuit court erred in weighing this evidence as it did.
The Department also maintains that I shouldn’t be reunified with Mother until she explains how I got injured when he was a baby, the one unsatisfied requirement of Mother’s second service agreement. But Mother has said from the beginning that she didn’t cause I’s injuries and doesn’t know for sure who did (although she thinks it must have been Father). The court listened to Mother’s testimony, asked clarifying questions about the events leading up to I’s hospitalization, and ultimately found Mother to be “sincere.” When applying the clear error standard, we “give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Md. Rule 8-131(c). The court here accepted Mother’s testimony as credible, acknowledged her growth over the past five years, and determined that her failure to seek medical attention for I in January 2019 is not likely to happen again:
While one can question whether it was objectively reasonable for [Mother] to have not sought medical attention sooner, the Court cannot conclude based on the evidence before it that [Mother] exercised a level of poor judgment and neglect reflecting an individual who is prone to, and might likely repeat, such decision-making in the future.
We discern no clear error in the court’s FL § 9-101 finding. Finally, the court applied the best interests of the child standard properly as it evaluated each of the factors. “The best interest of the child standard is the overarching consideration in all custody and visitation determinations.” Baldwin v. Baynard, 215 Md. App. 82, 108 (2013). In CINA cases, “‘unless there are compelling circumstances to the contrary, the plan should be to work toward reunification, as it is presumed that it is in the best interest of a child to be returned to his or her natural parent.’” In re Ashley S., 431 Md. at 686–87 (quoting In re Yve S., 373 Md. at 582).
The Child and the Department contend that the court prioritized Mother’s interests and minimized I’s. They point to the court’s finding that Mother wasn’t responsible for the delays in I’s court proceedings and that the Department placed Mother in a “vicious conundrum” by requiring her to provide an explanation that she simply can’t provide. These findings don’t amount to an improper focus on Mother’s interests, though. “[I]n most cases, ‘the child’s interest is inextricably linked with the parents’ interest in and obligation for the welfare and health of the child. ’” In re Yve S., 373 Md. at 572 (quoting Parham v. J.R., 442 U.S. 584, 600 (1979)). But the court didn’t abandon I’s interests by acknowledging Mother’s active participation and cooperation over the years. Mother’s interests in staying engaged in I’s cases and general care bear directly on the analysis of I’s best interests.
Having found no errors in the court’s factual findings or
application of the law, we hold that the court acted within its discretion when it changed I’s permanency plan to reunification and granted Mother unsupervised visitation.
B. The TPR Case
In their second appeal, the Department and the Child challenge the juvenile court’s decision to hold the Department’s TPR petition sub curia and stay the TPR proceedings pending the outcome of the CINA appeal. They raise three issues:
(1) Did the TPR court violate the mandate rule when it held the Department’s TPR petition sub curia pending the result of the CINA appeal?
(2) Did the TPR court err by holding an impromptu visitation hearing during a guardianship status hearing?
(3) Did the TPR court abuse its discretion by granting Mother overnight visits with I?5
As with the CINA appeal, we address first the issue of appealability that Mother raised in a motion to dismiss.
1. The TPR court’s stay ruling is not appealable. Mother argues that the juvenile court’s decision to hold the TPR petition sub curia pending the outcome of the CINA appeal is not appealable. The Child and the Department claim it is appealable as a final judgment or, in the alternative, under the collateral order doctrine. We hold that the stay order is not appealable under either doctrine.
First, the court’s decision to hold the TPR petition sub curia isn’t a final judgment. “For the trial court’s ruling to be a final judgment it must either determine and conclude the rights of the parties involved or deny a party the means to ‘prosecut[e] or defend[] his or her rights and interests in the subject matter of the proceeding.’” In re Samone H., 385 Md. 282, 297–98 (2005) (emphasis added) (quoting Rohrbeck v. Rohrbeck, 318 Md. 28, 41 (1989)). The juvenile court’s stay order in this case didn’t resolve the underlying dispute between the parties conclusively (i.e., whether Mother’s parental rights should be terminated). So the order must “deny a party the means to ‘prosecut[e] or defend[] his or her rights and interests in the subject matter of the proceeding,’” to constitute an appealable final order. Id. (quoting Rohrbeck, 318 Md. at 41).
An order that doesn’t “settle the underlying dispute between the parties,” In re Billy W., 386 Md. 675, 689 (2005), may nonetheless be an appealable final judgment if it “has the effect of put[ting] the [party] out of court.” Metro Main. Sys. South, Inc. v. Milburn, 442 Md. 289, 299 (2015) (alterations in original) (quoting McCormick v. St. Francis de Sales Church, 219 Md. 422, 427 (1959)). Although the TPR court’s stay order did place the parties out of court for a time, a temporary postponement doesn’t fall within this second form of finality.
An order that terminates the action and places the parties out of court indefinitely, such as an order dismissing a complaint without prejudice, is an appealable final judgment. Moore v. Pomory, 329 Md. 428, 431–32 (1993). But an order that places the parties out of court temporarily but doesn’t dispose of the case, such as an order dismissing a
complaint but granting leave to file an amended complaint, is not an appealable final judgment because it keeps the case “pending in the trial court . . . until another order is entered disposing of the case.” Id. at 431. Thus, due to the temporary nature of stay orders, “a trial court’s decision on a motion for a postponement, continuance, or stay is ordinarily not appealable.” County Comm’rs of Frederick Cnty. v. Schrodel, 320 Md. 202, 213 (1990).
The Child and the Department rely on Monarch Academy Baltimore Campus, Inc. v. Baltimore City Board of School Commissioners, 457 Md. 1 (2017), to argue that the stay order here is appealable because it will put them out of court for an unreasonable amount of time. In Monarch, the Court held that the trial court’s order staying the proceedings so that a party could bring their claim before an administrative agency was an appealable final judgment due to the “unique circumstances of [that] case,” even though such orders will typically “only temporarily put a party ‘out of court.’” Id. at 49 (emphasis in original). Two key factors in the Court’s analysis included the lack of instruction from the court about what the parties needed to do to resume the court proceedings, coupled with no “clear procedural mechanism through which” the party could bring their claim before the administrative agency, id. at 50; and the potentially “indefinite and protracted” administrative proceedings the parties would have to endure before they could resume court proceedings. Id. at 53.
In this instance, the juvenile court stayed the guardianship proceedings “pending the appeal of [the CINA court’s] decision to change the [permanency] plan from adoption to reunification.” At the end of the TPR hearing, the parties and the court discussed having a status conference around when they expected this Court to issue a decision in the CINA appeal to set a date for a new TPR hearing:
[THE COURT]: Thank you.
Is there anything else Counsel? Do we need to schedule another hearing or I’m going to wait until I hear from the appellate court?
[COUNSEL FOR MOTHER]: As [Department’s counsel] noted, oral argument is scheduled for September.6 The [Appellate] Court has to make a decision within 60 days of oral argument. So I don’t anticipate an order being issued until early November, Your Honor.
[THE COURT]: Okay. I will wait to hear from counsel so that I can schedule if I need to another TPR hearing.
[COUNSEL FOR CHILD]: Your Honor, I was just going to suggest that perhaps a virtual status conference in midNovember just because—
[THE COURT]: That sounds—
[COUNSEL FOR CHILD]: —it took a while to get before the Court today given Your Honor’s assignments so to another court, and maybe a virtual status conference in the middle of November and then we can pick a further date if needed.
[THE COURT]: That’s fine. Would you reach out to [court staff] and we’ll set up a virtual hearing date to find the status. And I know my next year, I’m going to still be in civil and criminal, but when I have to come back down I’ll
just, you just let me know the date and we’ll figure a date for me to come, and if I need to for a TPR hearing.
Unlike the indefinite stay of the proceedings in Monarch, the stay postponed the proceedings temporarily until this Court issues its decision in the CINA appeal, which would occur within six or seven months of the May 30, 2024 TPR hearing. The parties knew what they needed to do to resume proceedings in the juvenile court (i.e., await the resolution of the CINA appeal and reach out to chambers staff to schedule a status conference for mid-November), and didn’t have to jump through administrative hoops to get there, as the parties in Monarch did. Id. at 50. The stay order is not a final judgment, then, but an interlocutory order that must fall under an exception to the final judgment rule to be appealable.
Second, the stay order isn’t appealable under the collateral order doctrine. This doctrine allows parties to appeal from a collateral order—an order that isn’t final—when the order “(1) conclusively determines the disputed question, (2) resolves an important issue, (3) resolves an issue that is completely separate from the merits of the action, and (4) would be effectively unreviewable if the appeal had to await the entry of a final judgment.” Pittsburgh Corning v. James, 353 Md. 657, 661 (1999). An order must satisfy all four elements to be appealable under this “limited exception” to the final judgment rule. Ehrlich v. Grove, 396 Md. 550, 563 (2007).
Although the collateral order doctrine is restricted to “extraordinary circumstances,” County Comm’rs for St. Mary’s Cnty. v. Lacer, 393 Md. 415, 428 (2006) (quoting In re Foley, 373 Md. 627, 634 (2003)), not something as common as postponements, our Supreme Court has found that certain stay orders can be appealable under this doctrine. Schrodel, 320 Md. at 214. In Schrodel, the County filed a condemnation petition to take a portion of the Schrodels’ land to use for a new county landfill. Id. at 204. The Schrodels later filed a second suit to enjoin the condemnation trial and moved to stay the trial. Id. The circuit court granted the stay, postponing the proceedings unless and until the County obtained an updated permit to operate the new landfill. Id. at 206–07. The County appealed and claimed the stay order was improper. Id. at 208–09. Before reaching the merits, the Supreme Court analyzed whether the stay order—an interlocutory order— was appealable under the collateral order doctrine:
First, the order conclusively determined that the County must wait until it receives a permit from the Maryland Department of the Environment before it can go to trial with its condemnation action. Second, the issue of whether a court can lawfully impose such a condition on the government’s power to acquire property by condemnation is clearly important. Many essential public projects begin with a taking of land and require various permits before completion.
Third, the question of whether the County can be required to obtain the permit before having a trial is obviously distinct from the trial itself. . . .
Fourth, if not appealable until the trial’s conclusion, the claim that the County’s right to condemn cannot
be conditioned on first obtaining all necessary permits would irretrievably be lost. The government already will have had to comply with a possibly unlawful condition. If the County were to get the permit, it would take the property after a trial on value only, and the issue of whether the court could impose the condition would be moot on appeal. Id. at 212. The Court found the stay order appealable under the collateral order doctrine but warned that their “‘holding concerning appealability goes no further than the circumstances presented in this case.’” Id. at 214 (quoting Public Serv. Comm’n v. Patuxent Valley, 300 Md. 200, 210 (1984)).
The circumstances of this case are different. The court in Schrodel “impose[d] . . . a condition on the government’s power to acquire property by condemnation” when it ordered the County to obtain a permit as a condition of continuing their case in court. 320 Md. at 212. Because condemnation proceedings are a common means of initiating “essential public projects,” id., the stay order prevented the County from carrying out “[a]n important government prerogative.” Id. at 214. The court also noted the length of the stay (at least eighteen months) and the fact that if the County failed to get the permit, they would never have their condemnation trial. Id.
Although achieving permanency for I is important in this case, the guardianship proceedings are not “essential” to achieving that permanency. I could achieve reunification with Mother through the CINA case without the juvenile court ever ruling on the TPR petition. And the importance of achieving permanency for a CINA—although great—isn’t comparable to that of a governing body’s role in completing “essential public projects.” Id. at 212. Plus the six-month delay created by the stay order here is much shorter than the eighteen months in Schrodel—the parties knew they’d be back in the juvenile court before the end of the year. Id. at 214. And unlike in Schrodel, there was no question about whether the parties would have their TPR hearing—our decision in the CINA appeal wouldn’t terminate or otherwise prevent the TPR proceedings from happening. Thus, the TPR court’s stay order isn’t appealable, and we cannot address the merits of that decision.
2. The TPR court’s visitation ruling is appealable under § 12-303(3)(x).
Mother’s argument against the appealability of the TPR court’s visitation order mirrors her argument against the appealability of the CINA court’s ruling: the ruling didn’t “depriv[e] [Mother] of the care and custody of [I],” she says, so it’s not appealable under § 12-303(3)(x). See CJP § 12-303(3)(x). As explained above, see Subsection II.A.1, though, § 12-303(3)(x) allows the Child and the Department to appeal the CINA court’s ruling because the appealed order changed the earlier custody order even though it didn’t deprive Mother of the care and custody of I further. That same analysis applies here.
Again, CJP § 12-303(3)(x) allows a party to appeal an
order that “chang[es] the terms of” a previous order that “depriv[ed] a parent, grandparent, or natural guardian of the care and custody of his child.” CJP § 12-303(3)(x). In light of the plain language and purpose of § 12-303(3)(x), the order facing appeal need not have had a further detrimental effect on the parent’s custody or visitation rights to be appealable.
Here, the Child and the Department are parties to the TPR case. A “party” under the guardianship statute includes “the child,” and “the local department to which the child is committed.” FL § 5-301(h)(1)(i), (iii). I is the child who is the subject of the guardianship petition in this case, and the Department is the entity to which I is committed. Both are aggrieved parties as well. The Child and the Department both opposed the expansion of visitation to overnight visits, arguing that it would not be in I’s best interest. The court ultimately ruled against them and granted Mother’s request.
The TPR court’s visitation order satisfies § 12-303(3)(x). The order expanded Mother’s visitation rights, which had been limited to weekly unsupervised visits under the CINA court’s December 13, 2023 order. Mother’s rights to care and custody of I remained restricted to those guidelines which, despite the intentional lack of a maximum time limit on visits, didn’t permit overnight visits. The change makes the TPR court’s order appealable under CJP § 12-303(3)(x).
3. The court didn’t err in holding a visitation hearing during the motions hearing.
The Child and the Department argue next that the TPR court erred when it granted Mother overnight visits because (1) the TPR court did not have jurisdiction to enter a visitation order without ruling first on the TPR petition; (2) the court improperly ruled on visitation matters that were the subject of the pending CINA appeal; and (3) addressing visitation on Mother’s oral motion after the hearing commenced prejudiced the Child and the Department. We disagree with the first two contentions and don’t reach the merits of the third.
First, the Child and the Department argue that FL § 5-324 limits the juvenile court’s jurisdiction in TPR proceedings so that the court may only set visitation if it grants the TPR petition. See FL § 5-324(b)(ii)(5) (“In a separate order accompanying an order granting guardianship of a child, a juvenile court . . . may allow visitation for the child with a specific individual.”). But CJP § 3-803 grants a juvenile court exclusive jurisdiction over all “[p]roceedings arising from a petition alleging that a child is a CINA,” CJP § 3-803(a)(2), and concurrent jurisdiction over the “[c]ustody, visitation, support, and paternity of a child whom the court finds to be a CINA.” CJP § 3-803(b)(1)(i). The permissive provision in FL § 5-324(b)(ii)(5) doesn’t negate the juvenile court’s fundamental jurisdiction over visitation matters under CJP § 3-803.
Moreover, and although the Supreme Court has noted the benefits of separating CINA proceedings (which generally involve permanency planning, custody, and visitation) from TPR proceedings (which deal with the fitness of the parents), the Court acknowledged that the juvenile court has the authority to address both in a single hearing:
[E]ven though the juvenile court certainly had the authority to alter the CINA child’s permanency plan during a TPR hearing, a best practice for juvenile courts is to separate the proceedings into two hearings. . . . This is optimal because a CINA permanency hearing and a TPR hearing are seeking to resolve related, but, ultimately distinct issues.
In re Adoption/Guardianship of C.E., 464 Md 26, 64 (2019). In short, a juvenile court has jurisdiction to consider visitation requests even if it doesn’t rule first on a pending TPR petition. “[I]n the absence of a stay [issued by the appellate court], trial courts retain fundamental jurisdiction over a matter despite the pendency of an appeal.” Kent Island, LLC v. DiNapoli, 430 Md. 348, 360–61 (2013). The juvenile court can, therefore, continue to deal with matters within its fundamental jurisdiction, including visitation, while an appeal is pending in the same case. Id. at 361.
The Child and the Department argue next that the TPR court was prohibited from ruling on Mother’s visitation rights because it was the subject of the pending CINA appeal. We hold that the modification was permitted under these circumstances.
Although the juvenile court retains its fundamental jurisdiction while an appeal is pending, the court can’t “exercise its jurisdiction in a manner affecting the subject matter or justiciability of the appeal.” Id. at 361; see also Jackson v. State, 358 Md. 612, 620 (2000) (A trial court can’t exercise its jurisdiction in a way that “precludes or hampers the appellate court from acting on the matter before it.”).
For example, in In re Emiliegh F., 355 Md. 198 (1999), the Supreme Court held that a juvenile court couldn’t terminate the CINA case while a prior custody order from that CINA case was on appeal. Id. at 204. By doing so, the juvenile court would “usurp[] . . . the role properly reserved to the appellate court, i.e., to decide the issues raised by the appellant in the interlocutory appeal,” In re Joseph N., 407 Md. 278, 303 (2009) (citing In re Emileigh F., 355 Md. at 202–03), which would “defeat the right of [the appellant] to prosecute [their] appeal with effect.” In re Emileigh F., 355 Md. at 204.
There’s a difference, though, between a “[p]rohibited action by the trial court that defeats the right of a party to prosecute an appeal,” as in In re Emileigh F., and a “permitted action by the trial court that renders a case moot.” In re Deontay J., 408 Md. 152, 163 (2008). In In re Deontay J., for example, the Supreme Court held that the juvenile court can modify the terms of a custody order in a CINA case while that custody order is on appeal, even if the modification renders the appeal moot, because “[t]he Circuit Court has a duty to modify a custody order when persuaded that a modification is necessary to protect the health, safety and well-being of a CINA.” Id. at 164; see also In re Adoption of Jayden G., 433 Md. at 74 (court can terminate parental rights while permanency plan is on appeal because statute authorizes court to rule on TPR petition within 180 days of its filing).
This case, although it involves visitation rather than custody, is comparable. The juvenile court modified I’s visitation structure while the CINA court’s latest order
granting unsupervised visitation was on appeal, just as the juvenile court in In re Deontay adjusted the child’s custody plan while the court’s latest custody order was on appeal. 408 Md. at 162. Although the juvenile courts’ actions in both instances addressed issues that were the subject of pending appeals, the court’s duty to modify a CINA’s plan of custody, or in this case visitation, when it’s in the child’s best interest to do so “is not affected by the pendency of an appeal, or by the fact that the next periodic review hearing is not scheduled to be held for several months.” Id. at 164.
And although such actions are permissible even when they render a pending appeal moot, id., the juvenile court’s visitation order in this case didn’t render the CINA appeal moot. The controversy in the CINA appeal is alive because the TPR court “may have been influenced by an error made in the [CINA] order.” In re Joseph N., 407 Md. at 304. As such, the TPR court didn’t err in modifying I’s visitation plan (at least so long as there was no abuse of discretion, as we will discuss in the next Section), nor did it render the CINA appeal moot.
Finally, the Child argues that the TPR court’s decision to go forward with the impromptu visitation hearing prejudiced to the Child and the Department because they had no notice of Mother’s request and therefore had no time to prepare for such a hearing. This issue, however, was not preserved for appellate review.
Under Md. Rule 8-131(a), an issue must be “raised in or decided by the trial court,” to be reviewable on appeal. Md. Rule 8-131(a). “The primary purpose of Rule 8-131(a) is to ensure fairness for all parties in a case and to promote the orderly administration of law.” Davis, v. DiPino, 337 Md. 642, 647 (1995) (cleaned up). Generally, to “provid[e] fairness to the parties . . . ‘counsel [must] bring the position of their client to the attention of the lower court at the trial so that the trial court can pass upon, and possibly correct any errors in the proceedings.’” Id. at 648 (quoting Clayman v. Prince George’s Cnty., 266 Md. 409, 416 (1972)). At a minimum, the appellant must “make a reference to” the issue during trial. See Brock v. State, 203 Md. App. 245, 270 (2012) (appellant preserved issue of using evidence for impeachment purposes when appellant made single reference to impeachment while presenting an argument centered on hearsay).
Mother raised her request for overnight visits after the court heard argument on whether to dismiss or hold the TPR petition sub curia. The court granted the request initially after hearing Mother’s short supporting proffer. The Child then asked the court to hear evidence before ruling on visitation: [COUNSEL FOR CHILD]: So, I think if Your Honor is going to make decisions about visitation then there needs to be evidence that’s being based off of her proffer by Mother’s counsel.
[THE COURT]: Well, it’s my understanding that [the CINA court] made the minimum amount, said the minimum was three hours. [The CINA court] didn’t limit it to that. The Department—well, Counsel, you’re absolutely right. Maybe I should hear evidence about that. I’ll hear from Counsel on that.
The Department told the court that they were prepared to
provide evidence on recent visits, and the Child said nothing about how prepared they were (or weren’t):
[COUNSEL FOR DEPARTMENT]: Your Honor, with respect to making a 9-101(b) finding, the Court’s going to need to hear evidence as to the nature of the visits and how they’re going, the length of time, all of those things. So the Department is, the Department would be prepared to present evidence regarding the visits. If the Court is so inclined to expand them to overnights, then that’s the Court’s decision.
[THE COURT]: I would like to hear evidence. Thank you. Could you call your first witness?
[COUNSEL FOR MOTHER]: From me, Your Honor?
[THE COURT]: Yep. Yes.
[COUNSEL FOR MOTHER]: Okay. . . .
So although the parties raised and discussed the issue of evidence, only the Department brought up their preparedness, and they said they were ready to go forward with the visitation hearing using the evidence they prepared for the TPR hearing. The Child raised no objection relating to their ability to present evidence, nor did they object to the court continuing with the hearing once it decided to hear evidence on visitation. The question of prejudice, then, is not properly before us.
4. The TPR court’s factual findings were not clearly erroneous, and the court did not abuse its discretion in granting Mother monthly overnight visits.
Finally, the Child and the Department argue that the TPR court abused its discretion when it granted Mother monthly overnight visitation. Specifically, the Child claims the “evidence was insufficient to support Mother’s request for expanded visitation,” and the Department claims that the court placed the burden of proof improperly on the Child and the Department and failed to consider all relevant evidence. We disagree.
Before expanding Mother’s visitation rights, the juvenile court made the required FL § 9-101 finding and concluded the modification would be in I’s best interest:
[THE COURT]: I’m going to find, make a 9-101 finding that is in the best interest of I. that visitation be extended. There is no evidence that I. has been in harm with the Mother and with the visitation or in the future would be in harm. There was no testimony from [I’s caseworker] that he found extending visitations would not be in the best interest of I. I heard evidence for many hours, years ago, about I. and his behavioral issues at school with the foster care mother. Whoever is with I. is going to have issues. So I am going to grant the extended visitation.
a week for at least three hours at a time. Mother addressed minor safety hazards that caseworkers had brought to her attention (i.e., she put covers on the radiators and got a baby gate), and acquired a separate bed for I. He also confirmed that even accounting for one visit that ended early, he had no reason to ask the court to stop the unsupervised visits.
The parties asked several questions during the hearing about an April 2024 visit that ended earlier than planned. The Child and the Department emphasized I’s aggressive behaviors during that visit (i.e., trying to bite Mother and allegedly breaking Mother’s glasses), and the fact that Mother called the foster mom to have I picked up early. Mother explained during her testimony, however, that I’s aggressive behaviors had nothing to do with the visit ending early. Rather, Mother brought I to the drop-off point thirty minutes earlier than planned because the zoo—where I had just spent several hours with Mother and his grandmother— was closing. She handled I’s aggressive behaviors with some “redirection” and by giving him a snack, which calmed him down. She also stated that I is not usually aggressive during visits in her home.
Although Mother declined the Department’s offer to have I’s former ABA specialist present during visits because she “didn’t really work well with [the specialist],” Mother testified that she wants her own specialist to work with her during visits. Indeed, the court made it a condition of the overnight visits that an ABA specialist be present part of the time to provide training and help manage I’s aggressive behaviors. Additionally, while I continues to engage in the “same aggressive behavior” at school, there is no evidence to support a causal link between the unsupervised visits and I’s behavior or performance at school.
As for the Department’s argument that the court placed the burden of proof improperly on the Child and the Department, we see no such error in the court’s ruling. When a court sets out to make a finding under FL § 9-101, “[t]he burden is on the parent previously having been found to have abused or neglected his or her child to adduce evidence and persuade the court to make the requisite finding under § 9-101(b).” In re Yve S., 373 Md. at 551. Mother provided sufficient evidence to meet this burden. She addressed the few remaining safety concerns in her home and passed a home assessment before the unsupervised visits began. She was able to redirect and manage I’s aggressive behaviors during a visit out in the community. And I’s caseworker testified that he hasn’t found it necessary to request termination of unsupervised visitation, the inference being that the visits have gone well enough to continue unsupervised visitation. In sum, we find no error or abuse of discretion in the juvenile court’s findings or rulings.
* * *
The record supports these findings. I’s caseworker testified that after a successful home assessment in February 2024, Mother and I had unsupervised visits at Mother’s home once
JUDGMENTS
We hold that neither the CINA court nor the TPR court abused their discretion in their respective rulings. The court’s December 13, 2023 order and the visitation ruling of the May 30, 2024 order are appealable, and we affirm them both.
The Majority asks, “So did the Legislature intend to provide appellate relief under CJP § 12-303(3)(x)[7] only to parents who were deprived of the care and custody of their child, or also to allow appeals from parties aggrieved by orders changing existing custody orders?” In re I.Q., Nos. 2039, 0741, slip op. at 12 (Md. App. Dec. , 2024). As I read the controlling case law, from the Supreme Court of Maryland and this Court, interpreting CJP § 12-303(3)(x), that question should be answered by either the Supreme Court of Maryland and/or the Maryland General Assembly. It is on this issue of appealability that I disagree with the conclusion of the Majority and must dissent. I would hold that the December 2023 and the May 2024 orders are not appealable under any of the recognized exceptions to the final judgment rule and, therefore, would not reach the merits of the case. CJP § 12-303(3)(x) provides a statutory exception to the final judgment rule for interlocutory orders “[d]epriving a parent, grandparent, or natural guardian of the care and custody of his child, or changing the terms of such an order[.]” In light of the case law outlined below, I do not agree with the Majority’s reading of this statutory language. I am not persuaded that the identity of the appellant— whether it be a parent, a child, or the Department—changes the analysis.
The Supreme Court of Maryland has repeatedly held that “to be appealable in CINA cases involving the biological parent and the State, a court order must operate to deprive a parent of the care and custody of his or her child, or change the terms of custody to the parent’s detriment.” In re Billy W., 386 Md. 675, 693 (2005) (emphasis added); see also In re Joseph N., 407 Md. 278, 291 (2009) (“The question we must answer [on] appeal is whether the court’s [] order effectuated a detrimental change to [parent’s] custody rights falling within Section 12-303(3)(x).”); In re Samone H., 385 Md. 282, 299 (2005) (“To be appealable under Section 12-303[(3)](x), an order denying a motion for independent study either must operate to deprive [mother] of the care and custody of [her children] or change the terms of her care and custody of the children.”).
When a court order amends a permanency plan and changes that plan from reunification to foster care or adoption, the court’s order is an immediately appealable interlocutory order. In re Damon M., 362 Md. 429, 438 (2001). In addition, “orders that effectively broaden a permanency plan to a parent’s detriment are immediately appealable under CJP § 12-303(3)(x).” In re D.M., 250 Md. App. 541, 556 (2021) (citing In re Joseph N., 407 Md. at 291).
The Supreme Court of Maryland addressed the appealability of concurrent permanency plans in In re Karl H., 394 Md. 402, 430 (2006): “We hold that a concurrent permanency plan that includes the option of adoption is sufficiently far enough along the continuum of depriving a parent of a fundamental right and is immediately appealable.”
See also In re D.M., 250 Md. App. at 558-59 (“[W]hen a court changes a permanency plan of reunification to a concurrent plan of reunification or custody and placement with a relative for custody and guardianship, the order sufficiently ‘changes the terms’ of an order regarding the care and custody of a
child so as to become appealable under CJP § 12-303(3) (x).”). In In re Joseph N., the juvenile court reaffirmed the permanency plan of reunification and moved the child from foster care into the care and custody of the father. 407 Md. at 291-92. The Supreme Court of Maryland applied the second half of § 12-303(3)(x) and concluded that the order “was a pivotal change in the direction of [mother’s] permanent loss of custody because it set the stage for the court’s dismissal of [the] CINA case and an award of full custody in favor of [father.]” Id. at 294. The Court held that the mother “possessed the right to maintain an interlocutory appeal[.]” Id. at 295. “[W]hen a CINA order does not ‘adversely affect’ the parent's parental rights or ‘change the permanency plan terms to [the parent’s] increased detriment[,]’ the order is not appealable under CJP § 12-303(3)(x).” In re D.M., 250 Md. App. at 557 (quoting In re Samone H., 385 Md. at 31617 (holding that the denial of mother’s motion for a bonding study was not an appealable interlocutory order under § 12303(3)(x))). See also In re Katerine L., 220 Md. App. 426, 440 (2014) (“The order denying [the putative father’s] request for genetic testing did not change the antecedent custody order as to [the children], nor did it adversely affect [the putative father’s] right to the care and custody of [the children.]”).
The Court, specifically addressing the appealability of visitation changes, held that orders that “maintained the extant [permanency] plans for the children but changed visitation” are only appealable under § 12-303(3)(x) if the orders “act to detrimentally affect” parental rights. In re Billy W., 387 Md. 405, 425-26 (2005) (Orders changing “partial weekly unsupervised visitation to total weekly unsupervised visitation . . . do[] not operate to [mother’s] detriment because she is allowed more unrestricted access” and are not appealable, whereas orders that eliminate unsupervised visitation are detrimental to mother and are appealable.). In order to fall within the bounds of § 12-303(3)(x), the orders in this case must have “effectuated a detrimental change” to Mother’s rights. In re Joseph N., 407 Md. at 291.
The December 2023 Order does change the antecedent custody order, as Appellants argue. The court changed I’s permanency plan from adoption by a non-relative to reunification with Mother. This change is the opposite of the appealable change made in In re Damon M. as it increases Mother’s custody rights. The December 2023 Order also granted Mother unsupervised visitation, whereas Mother previously had only supervised visitation. The May 2024 Order further expanded Mother’s visitation rights by allowing monthly overnight visits. These changes are comparable to the changes to visitation in In re Billy W., 387 Md. at 426, where the changes granting mother “more unrestricted access” were not appealable. The change to the permanency plan and the visitation rulings here do not adversely affect Mother’s rights to the care and custody of I. Neither the December 2023 Order nor the May 2024 Order “change the terms of custody to the parent’s detriment” and, therefore, are not appealable interlocutory orders under § 12-303(3)(x). In re Billy W., 386 Md. at 693.
Appellants further argue that the court’s visitation rulings are appealable under the collateral order doctrine because
the rulings satisfy all four requisite elements. The Majority does not reach this argument, but I also find it unpersuasive.
Appellants specifically contend:
Th[e] ruling conclusively determined that it was safe to change Mother’s visitation from supervised to unsupervised; that issue is important because I.Q. . . . has a right to safety, and the Department and the [c]ourt have duties to protect his safety; the issue is separate from the merits because visitation is not a necessary component to resolving a CINA case; and the issue will be effectively unreviewable on appeal because I.Q.’s safety is irrevocably endangered each time he visits with Mother on an unsupervised basis.”
Mother argues that the visitation ruling included in the December 2023 Order is not appealable under the collateral order doctrine because the ruling “does not conclusively determine the disputed question of whether [Mother] and I should be reunified[.]” Mother additionally contends that the change to unsupervised visitation is not “completely separate from the merits of the action” because it “is part of the issue of whether [Mother] can have full custody” and that the decision “is reviewable from an entry of a final judgment.”
This Court, in In re Katerine L., stated: [T]he collateral order doctrine is a very narrow exception to the general rule that appellate review ordinarily must await the entry of a final judgment disposing of all claims against all parties. It is applicable to a small class of cases in which the
interlocutory order sought to be reviewed (1) conclusively determines the disputed question, (2) resolves an important issue, (3) resolves an issue that is completely separate from the merits of the action, and (4) would be effectively unreviewable if the appeal had to await the entry of a final judgment. . . . The four elements of the test are conjunctive in nature, and in order for a prejudgment order to be appealable, each of the four elements must be met.
220 Md. App. at 442 (citations and internal marks omitted). Notably, interlocutory “orders are not appealable as collateral orders [when] the orders are subject to review and change” and “do not conclusively determine [] custody[.]” In re Billy W., 386 Md. at 692 (citing In re Samone H., 385 Md. at 315 n.13).
The visitation ruling in the December 2023 Order does not conclusively determine a disputed question and is not completely separate from the merits of the action. Modification of visitation is closely tied to the ultimate disputed issue of permanency for I. Visitation is subject to review and change until I’s CINA case has been terminated and, thus, was not conclusively determined. See In re Katerine L., 220 Md. App. at 438 (citing CJP § 3-823(h)).
Visitation is also not completely separate from the custody issue because, in the December 2023 Order, the court ordered unsupervised visits “[b]ased on the change in permanency plan[.]” As all four elements of the collateral order doctrine are not satisfied, the visitation rulings are not appealable.
I WOULD CONCLUDE THAT THE DECEMBER 2023 AND MAY 2024 ORDERS ARE NOT APPEALABLE PURSUANT TO CJP § 12-303(3)(X) AND ARE NOT APPEALABLE UNDER THE COLLATERAL ORDER DOCTRINE. I WOULD, THUS, HOLD THAT THE ORDERS ARE NOT REVIEWABLE BY THIS COURT AND I WOULD DISMISS THE APPEALS. AS SUCH, I RESPECTFULLY DISSENT.
FOOTNOTES
1 A child in need of assistance is defined as:
(f) . . . 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)(1)–(2).
2 The Department phrased their Questions Presented as follows:
1. Did the juvenile court commit legal error in concluding that this Court’s guardianship opinion is “not the law of this case”?
2. Alternatively, did collateral estoppel bar the juvenile court from reconsidering the conclusive determinations that this Court made in its guardianship decision, such as the severity of Mother’s neglect, the propriety of giving Mother more time to learn how to properly care for I, and the harm I likely will suffer if he is removed from his current placement?
3. Did the juvenile court abuse its discretion when it granted Mother unsupervised visitation and changed I’s permanency plan to reunification even though the evidence demonstrated that, after four years and extensive services, Mother still has not shown that she can safely care for I?
The Child phrased the Questions Presented as follows:
1. Did the juvenile court err in determining the November 9, 2023 opinion of this Court was not the law of the case and changing I’s permanency plan from adoption by a non-relative to reunification after this Court held that I deserved permanency after 4 years in care and that his permanency should not be further delayed to allow Mother to develop parenting skills?
2. Did the juvenile court err by scheduling and conducting a permanency planning review hearing in violation of CJP § 3-823(g)(2)?
3. Did the juvenile court err in awarding Mother unsupervised visitation where Mother failed to prove I would be safe in her care?
4. Did the juvenile court err and abuse its discretion in changing I’s permanency plan to reunification where it elevated Mother’s parental interests above I’s best interests?
3 Although “[r]eview of the legislative history of the provision may help confirm conclusions drawn from the text or resolve its ambiguities,” In re O.P., 470 Md. at 255, there is nothing in the bill file of Senate Bill 664—the bill in which the language of CJP § 12-303(3) (x) originated—to assist in the interpretation of this section. See S. 664, 1975 Leg., 380th Sess. (Md. 1975).
4 Mother argued first that the Child and the Department didn’t preserve this collateral estoppel argument for appeal. We disagree. Generally, an issue must be “raised in or decided by the trial court,” to be reviewable on appeal. Md. Rule 8-131(a). “To raise an issue, a party need not discuss it at length.” Lockett v. Blue Ocean
Bristol, LLC, 446 Md. 397, 417 (2016). And an appellant need not use “magic words” during trial to preserve an issue for appeal properly. Cox v. State, 397 Md. 200, 212 (2007). What’s important is that the parties and the trial court had notice of the issue and that the trial court had a chance to address that issue. See Davis v. DiPino, 337 Md. 642, 647 (1995) (“The primary purpose of Rule 8-131(a) is to ensure fairness for all parties in a case and to promote the orderly administration of law.” (cleaned up)).
The Department asked the CINA court to take judicial notice of our findings in the 2023 Opinion, arguing that the appeal “deal[t] with the exact same issues” and “[went] to the central issues of [the CINA] case.” The CINA court said it would review the 2023
Opinion but would not “take judicial notice of factual findings made in that case as evidence in [the CINA] case.” Although limited, this exchange represents the Department’s argument that the issues decided in the 2023 appeal should not be relitigated by the CINA court and a decision from the CINA court that it would not treat the findings of the 2023 appeal as having a preclusive effect.
5 The Department phrased their Questions Presented as follows:
1. Did the juvenile court violate the mandate rule when it stayed the guardianship proceedings, despite this Court’s instructions to resolve this guardianship case expeditiously and provide I with the permanence he deserves?
2. Did the juvenile court err when, during a guardianship status hearing, the court, without statutory authority, and on Mother’s oral motion, increased Mother’s visits to include unsupervised overnight visits?
3. Alternatively, if the juvenile court had authority to expand visitation, did the court abuse its discretion by applying the wrong burden of proof and by failing to consider all the relevant evidence?
The Child phrased their Questions Presented as follows:
1. Did the juvenile court err by refusing to hold a hearing on the Petition in compliance with the Mandate and Opinion of the Appellate Court of Maryland, which directed that I should no longer continue to be in “legal limbo”?
2. Did the juvenile court err by holding a visitation hearing during a guardianship hearing where the court did not grant or deny the Petition, the issue of Mother’s visitation was on appeal in the [sic] I’s CINA case, and I and the Department had no notice of Mother’s request for expanded visitation?
3. Did the juvenile court abuse its discretion by expanding Mother’s visitation with I, where Mother refused to work with the ABA therapist during visits and I’s school performance declined when unsupervised visits started?
6 Due to the consolidation of the CINA and TPR appeals, oral argument was later rescheduled to October 7, 2024.
