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Maryland Family Law Update is a review of events as they a ect the practice of domestic relations in law in the state of Maryland published by e Daily Record, 200 St. Paul Place, Suite 2480, Baltimore, Maryland 21202.
e laws of every jurisdiction may di er, and the facts are capable of many interpretations. e contents of this publication are not to be construed as legal advice and should not be acted upon without consulting an attorney. Letters selected for publication are subject to editing. Letters from litigants in pending cases or their representatives will not be accepted for publication until a er their cases have been nally decided. Address letters and comments to Editor, Maryland Family Law Update, 200 St. Paul Place, Suite 2480, Baltimore, Maryland 21202. Maryland Family Law Update and e Daily Record Company are owned by Bridgetower Media.
3 Child Advocacy: From therapeutic care to kinship care
Preparing foster children for transitions has been, by and large, focused on the child’s transition from day care to school or from childhood to adulthood, not from a secure foster family, a likely adoptive resource, to a grandparent who suddenly appears more than a year after the child’s removal and who is a stranger to the child.
4 Cover Story: Judge should not have vacated custody order
In a reported opinion, the Maryland Appellate Court held that the Prince George’s County Circuit Court had no authority to vacate a custody order because it was a final judgment to which there had been no appeal or any proper invitation for the court to exercise its revisory powers.
5 In the News: Appeals court voids Marine’s adoption of Afghan orphan
A Virginia appellate court ruled that a U.S. Marine should never have been granted an adoption of an Afghan war orphan and voided the custody order he’s relied on to raise the girl for nearly three years, a decision that has international ramifications far greater than the fate of one child.
6 Feature Story: After 7 years of litigation, wife gets attorneys’ fee
A husband must pay his ex-wife more than $550,000 in attorneys’ fees and costs stemming from seven years of litigation, a Rhode Island Family Court judge has decided.
7 Monthly Memo
Baltimore’s mayor and city council have filed a lawsuit seeking to stop a proposal that would let voters decide whether to give all new parents a one-time $1,000 “baby bonus” meant to help alleviate childhood poverty from birth. ... A bill that bans child marriage in Sierra Leone has been signed into law, President Julius Maada Bio said, in an effort to protect girls in the West African nation where about a third are married before adulthood. … A Southern California school district involved in an ongoing legal battle with the state over the district’s gender-identity policy sued Democratic Gov. Gavin Newsom over a new law banning districts from requiring that parents be notified of their child’s gender identification change. … South Korea’s top court ruled Thursday that same-sex couples are eligible to receive the same health insurance benefits as heterosexual couples, a landmark verdict hailed by human rights groups. … A 5-year-old Nebraska boy in foster care died after being left for several hours inside a hot SUV, Omaha police said.
Child Advocacy
From therapeutic care to kinship care
Shardae was born exposed to cocaine, heroin, fentanyl, marijuana and nicotine, and was quickly diagnosed with Neonatal Abstinence Syndrome (withdrawal symptoms related to ongoing neonatal drug exposure).
When the local Department of Social Services removed Shardae from her mother’s custody, the mother was still in the hospital recovering from MRSA.
For the next 18 months, Shardae lived with a therapeutic foster family through the Kennedy Krieger Institute.
Predictably, Shardae bonded with her foster family, and they fell in love with her.
The mother rarely participated with either the court or the department, and, despite the mother starting a drug recovery program and gaining unsupervised day visits with Shardae, Shardae considered her foster parents her family.
The mother ultimately relapsed and left the recovery program.
Shardae’s foster parents remained the only adults to whom Shardae was bonded, and it appeared that the permanency plan in Shardae’s best interest was a permanent placement with her foster parents.
Seemingly out of left field, Shardae’s maternal grandmother appeared and asked that her granddaughter be placed with her.
The clinical coordinator for Kennedy Krieger contacted Shardae’s counsel to discuss transitional visits for Shardae with her grandmother.
Preparing foster children for transitions has been, by and large, focused on the child’s transition from day care to school or from childhood to adulthood, not from a secure foster family, a likely adoptive resource, to a grandparent who suddenly appears more than a year after the child’s removal and who is a stranger to the child.
Child Advocacy STAVE MARK
The obvious concern in situations such as Shardae’s is the effect on the young child in removing her from the only family she has ever known, and with whom she has bonded, and placing her with a woman, albeit a relative, who has never met the child and who is not aware of her special needs.
There has been much research concerning the importance of secure attachments in a child’s life, particularly during a child’s early years, and the significant detriment to a child if that bond is disrupted:
During the first 3 to 4 years of life, the anatomic brain structures that govern personality traits, learning processes, and coping with stress and emotions are established, strengthened, and made permanent. ... The nerve connections and neurotransmitter networks that are forming during these critical years are influenced by negative environmental conditions. ... It is known that emotional and cognitive disruptions in the early lives of children have the potential to impair brain development. ...
In terms of evolution, the cerebral cortex is the part of the brain that was last to appear and the part that is most quintessentially human. In addition to language and speech (e.g., reading, comprehension, writing), it is home to mathematical abilities. More important to decision-makers such as judges, however, is the fact that the cortex is the home of conscience, abstract reasoning, empathy, compassion, moral development, and social skills, according to the American Academy for Pediatrics. By interrupting the child with traumatic moves and separations, any attempt to bond is disrupted. The child’s developing brain is severely impaired,
setting the stage for learning disorders, behavioral problems, and mental or emotional dysfunction. ... Interrupting or severing bonded relationships takes a heavy toll on human health and wellbeing.
It is as serious as brain surgery, death or divorce. The younger the child and the deeper the bond, the more devastating is the consequence, according to James Kenny. Ph.D., and Lori Groves, MMFT.
The Kennedy Krieger clinical coordinator advised that she had a great deal of success in creating successful transitions from therapeutic foster care to parents through the use of three levels of transitional visits: a week of 2-hour visits with new caretaker (to include at least one meal, and showing the child her new room); a week of two or three overnight visits; and one weekend visit prior to moving the child permanently.
The department obtained and provided to Kennedy Krieger pertinent information about the grandmother, which enabled three successful transitional visits to be held before Shardae was transitioned permanently to her grandmother.
A recent visit with Shardae showed a healthy 3-year-old, already looking to her grandmother for support and direction, and a grandmother in regular communication with Shardae’s medical providers.
The grandmother reports that Shardae is eating well, sleeping without nightmares, and that she really loves her unicorn- themed room.
While only time will tell if Shardae experiences long-term effects from this placement change, for now, it appears the move was managed so that acute impacts were avoided; the use of transitional visits were an important part of that process.
Mark Stave is a staff attorney at Maryland Legal Aid.
B
Md. appeals court: Judge should not have vacated custody order
y Rachel Konieczny RKonieczny@TheDailyRecord.com
A lower court should not have vacated or otherwise revised a custody order, the Maryland Appellate Court held in a ruling last month.
In a reported opinion written by Chief Judge Gregory Wells, the Maryland Appellate Court held that the Prince George’s County Circuit Court had no authority to vacate the custody order between Esau Antonio Orellana Velasquez and Cecilia Del Carmen Carranza Fuentes because the order “was a final judgment to which [Fuentes] had not appealed or properly invited the court to exercise its revisory powers.”
The appeals court also held the circuit court should not have granted Fuentes’ exceptions to the magistrate’s findings.
“In a modification of custody hearing, the court is required to examine the best interests of the child only if the court first determines that a material change in circumstances has been proven, which was not the case here,” the appellate court wrote.
In September 2021, Velasquez filed a complaint for custody in the Prince George’s County Circuit Court, but Fuentes did not answer. Following Velasquez’s request for a default order, the circuit court entered a default against Fuentes in February 2022.
During a March 2022 hearing before a magistrate on Velasquez’s complaint for custody, Fuentes did not appear although she received notice and later admitted she knew of the hearing. After the hearing, according to the opinion, the magistrate recommended Velasquez be awarded joint legal custody and primary physical custody of their child.
In July 2022, Fuentes moved to modify custody, alleging, as a material change, that she was moving her pri-
mary residence from Texas to Maryland. During a November 2022 hearing before a magistrate, Fuentes testified that she lived in Maryland with some of her family, but also mentioned having “second thoughts” about staying in Maryland.
After the magistrate granted Velasquez’s motion to dismiss, Fuentes filed exceptions to the magistrate’s recommendations, which the circuit court agreed with and remanded to the magistrate to conduct a best interest analysis, or factors the judge considers in determining the child’s best interest.
Diana Valle, counsel for Velasquez, said she was pleased with the appellate court’s decision.
“I was very pleased, and I believe that the court ruled correctly,” Valle said in a phone call, also noting her surprise that the Maryland Appellate Court made its ruling in an order just one day after the oral argument took place.
“I think (the Maryland Appellate Court’s) goal was to make sure that the custody was taken care of,” Valle said.
Counsel for Fuentes did not respond to a request for comment.
Shanta Trivedi, family law professor at the University of Baltimore School of Law, agreed it is rare for the court to file its order one day after oral argument.
Trivedi said the court has the threshold determination about whether there has been a material change in circumstance to limit how frequently parents in a custody proceeding can file based on a best interest analysis.
“If you could file based on best interests every time you wanted, it would be chaos,” Trivedi said, citing the hypothetical example where a child frequently moves between parents.
Ferrier Stillman, partner at Tydings and co-chair of the family law practice
group, said this case helps with the finality, or a decision that is not going to be lightly changed, that she says children need in custody disputes.
“Children, unless they’re infants, always know what’s going on in a custody case, no matter how much the parents say they don’t tell them or don’t tell them,” Stillman said. “The longer a custody case goes on, the worse it is for the kids. It’s a very unsettling situation for them.”
Stillman said the appellate court’s ruling emphasizes that there cannot be endless litigation that perpetually repeats the same arguments and reactions to decisions. The opinion also shows the court must analyze whether there’s been a material change of circumstances before the court can use the best interest standard, Stillman added.
Valle said the appeals court likely saw the circuit court’s decision as an overstep and wanted to remedy the situation as soon as possible.
“I think they took it very seriously, and I don’t know that’s a common thing that something gets ruled upon immediately in that way,” Valle said.
THE DAILY RECORD/FILE PHOTO The reported opinion was written by Maryland Appellate Court Chief Judge Gregory Wells.
Appeals court voids Marine’s adoption of Afghan orphan
associated PRess
A Virginia appellate court ruled that a U.S. Marine should never have been granted an adoption of an Afghan war orphan and voided the custody order he’s relied on to raise the girl for nearly three years. The decision marked a major turning point in a bitter custody battle that has international ramifications far greater than the fate of one child.
The appeals court decision dealt a significant blow in Marine Maj. Joshua Mast’s yearslong legal quest to keep the child, who was orphaned on the battlefield in Afghanistan in 2019. Mast and his wife, Stephanie, convinced the courts in his hometown, rural Fluvanna County, Virginia, to grant him an adoption of the child, even though she remained in Afghanistan as the government there tracked down her extended family and reunited her with them. The family fled Afghanistan with thousands of other evacuees when the Taliban took over in the summer of 2021. Once she arrived in the United States, Mast used the Fluvanna County documents to convince federal government officials to take the child from her Afghan relatives and give her to him.
She turns 5 years old this month. The Masts have insisted they are her legal parents and “acted admirably” to save a child in a desperate and dangerous situation. The Afghan family, who challenged Mast’s adoption, have not seen her for nearly three years.
The child’s fate is still in limbo: The decision by the appellate court Tuesday does not clarify who should ultimately get to raise the girl, and she remains with the Mast family for now. No government agencies involved would clarify Tuesday what the next steps might entail, or what their role might be in determining where the child should live as the remaining legal fight unfolds.
The Masts could appeal to the Virginia Supreme Court and ask that Tuesday’s decision not be enforced through that
process.
All the parties involved have been forbidden by the court to speak to the press about this case. Attorneys for the Masts and the Afghan couple did not return phone calls. A lawyer appointed by the court to represent the interests of the child, who is referred to in court records as Baby Doe to protect her identity, also did not respond.
Several legal organizations supporting the Afghan couple said they were encouraged.
National Center for Youth Law senior attorney Becky Wolozin said that by “clearly stating that the Masts have no legal rights over Baby Doe, the Court refused to legitimize their unlawful actions -- actions which have led to profound and unnecessary suffering.”
Charlottesville Circuit Court Judge Claude Worrell last May vacated Mast’s adoption order, which was granted by another judge in 2020, but left in place a custody order that allowed the child to stay with the Masts. A three-judge appellate panel heard arguments in the fall, and issued a 23-page order Tuesday
that dissolved Mast’s legal guardianship over the girl.
Appellate Judge Daniel E. Ortiz wrote in Tuesday’s order that Mast’s adoption “did not fit into any” of the criteria required by state law. He said the “procedural errors” that led to it were “so outside the scope of the adoption code that the circuit court lacked the power” to sign the adoption.
He also acknowledged that Mast failed to inform the court of key developments, including that the government of Afghanistan never gave up its claim to the girl, that she had been given to Afghan relatives and that a federal court had already rebuffed his efforts to stop that reunification.
The appellate panel directed the circuit court to dismiss all adoption proceedings and conduct a hearing on the Afghan couple’s adoption petition, which is currently pending before the court. The Masts may file their own petition as well, Ortiz wrote.
Retired Circuit Court Judge Richard Moore, who issued the original adoption order, declined to comment on the case.
AP File Photo/Cliff Owen U.S. Marine Corp Major Joshua Mast, center, talks with his attorneys during a break in custody hearing over an Afghan orphan, March 30, 2023, at the Circuit Courthouse in Charlottesville, Virginia.
After 7 years of litigation, wife gets $550K in attorneys’ fees
By eRiK t. BeRKman BridgeTower Media
A husband must pay his ex-wife more than $550,000 in attorneys’ fees and costs stemming from seven years of litigation, a Rhode Island Family Court judge has decided.
Plaintiff Marnee McCollum and defendant Daniel McCollum first entered divorce proceedings in Connecticut more than a decade ago but halted them when they moved to Rhode Island in 2013.
Two years later, Marnee filed for divorce in Rhode Island Family Court, where the parties became embroiled in protracted litigation over a variety of issues related to their marriage, their children, and the enforceability of a postnuptial agreement.
In 2019, Judge Felix E. Gill, in issuing the divorce decree, ruled that Marnee was entitled to reasonable attorneys’ fees and costs pursuant to a fee-shifting provision in their PNA.
The Rhode Island Supreme Court affirmed the decision in 2023 and remanded the case to family court to determine the amount of counsel fees and costs that Marnee, who had cycled through four attorneys by that point, should receive.
On remand, Gill ruled that based on documentation Marnee provided and the testimony of her expert, she was entitled to $559,811 in fees, costs and interest for services provided by three of her attorneys.
However, Gill declined to award $62,000 in fees and interest stemming from the services of a fourth attorney, Ryanna T. Capalbo of West Warwick, citing the court’s inability to discern from Capalbo’s affidavit how much of the fees were from her work on the divorce versus other overlapping issues she handled for Marnee.
“[The expert] opined that because it is foreseeable that the [other] cases arose out of the divorce proceeding and contentious relationship between the parties, the fees are both reasonable and necessary and should be paid by Daniel,” Gill wrote. “The Court finds that it does not believe that it can assess attorney’s fees for other matters that may even have arisen because of the divorce proceedings without having made such an order at that time.”
The 24-page decision is McCollum v. McCollum.
Daniel and Marnee married in June 2003 and had two children. Daniel, who worked in the financial industry, was the primary provider for the family.
In 2013, the couple was living in Connecticut when Daniel received a lucrative job offer at Brown University. Marnee informed him she planned to remain with the children in Connecticut, where she filed for separation.
Marnee subsequently decided to move to Rhode Island with Daniel, and the couple began working to find a private school for the children.
But in October 2013, Marnee amended her Connecticut complaint to one for divorce because she did not believe Daniel, who had apparently been visiting dating websites and who acknowledged infidelity, was invested in saving their marriage.
Still, a month later, Marnee filed for reconciliation status, and the Connecticut divorce proceedings were put on hold.
In early 2014, the couple purchased a home in Cranston and made plans to send the children to school in Rhode Island. But at the start of the school year, Marnee took the children back to Connecticut.
Following an emergency hearing in Connecticut, the parties engaged a mediator and executed the postnuptial agreement, which was designed to resolve the prior pending divorce action and restore marital relations.
In May 2015, after learning of Daniel’s relationship with another woman, Marnee filed for divorce in Rhode Island, kicking off several years of litigation.
In December 2018, Gill ruled that the PNA was enforceable and a year later issued a decision addressing issues relating to the children, financial consequences under the PNA, and counsel and expert fees.
Specifically, he ruled that Marnee was entitled to reasonable fees under the fee-shifting provision and under Rhode Island statutory law.
Final judgment entered in March 2020. Daniel appealed the award of fees to the Supreme Court, which ruled for Marnee in a 2023 decision and remanded the case to family court to determine the amount of the award.
Up to that point, Marnee was represented by a succession of attorneys, all of whom were paid in full. Her initial attorney was Timothy J. Conlon of Providence, who represented her from 2015 until July 2017, when — apparently midtrial — Marnee switched attorneys and retained Cranston attorney Evan M. Kirshenbaum.
Following Kirshenbaum’s withdrawal in September 2019, Marnee retained Capalbo, who represented her in the divorce proceeding and, apparently, in other issues, until she withdrew in January 2021.
Finally, Marnee enlisted Providence attorney Lauren E. Jones, who represented her in the appeal.
On remand, Marnee sought more than $600,000 in fees, costs and interest.
In determining the fee award, Gill considered testimony from Marnee’s expert, Christine L. McBurney, a longtime family lawyer and probate judge in Pawtucket who reviewed fee affidavits submitted from Marnee’s various attorneys.
Gill also considered factors for determining the reasonableness of a fee that the Supreme Court laid out in its 1983 decision Colonial Plumbing & Heating Supply Co. v. Contemporary Const. Co.
Weighing the evidence and the factors, as well as the wording of the PNA, Gill awarded Marnee $249,513 in fees, expenses and interest attributable to Conlon’s representation, a significant portion of which was interest.
Similarly, Gill awarded Marnee $241,513 in fees, costs and interest for Kirshenbaum’s representation, finding his fees reasonable and necessary in light of the fact that he took over in the middle of the case, requiring him to devote substantial hours to prepare and review the matter.
That was approximately $30,000 less than requested, but the judge found that Marnee’s change of counsel was unnecessary and caused prejudice to Daniel, who was credited accordingly.
Meanwhile, due to the complexity of the underlying litigation, Gill found that the $68,785 in fees and expenses for Jones’ representation on appeal was “more reasonable than necessary.”
Eric T. Berkman is a reporter with Rhode Island Lawyers Weekly.
Baltimore officials sue to block ‘baby bonus’ initiative
Baltimore’s mayor and city council have filed a lawsuit seeking to stop a proposal that would let voters decide whether to give all new parents a onetime $1,000 “baby bonus” meant to help alleviate childhood poverty from birth.
The complaint was filed earlier this month, according to online court records. It came not long after organizers secured the necessary 10,000 signatures to bring the question to voters as a ballot initiative in November.
City leaders argue that the proposal is unconstitutional and should be blocked from the ballot because it would give voters too much say over legislative decisions, effectively “usurping those powers” from their elected officials.
An estimated 7,000 children are born in Baltimore each year, so the program would cost about $7 million annually. That amounts to roughly 0.16% of the city’s annual operating budget, according to supporters. It wouldn’t result in higher taxes, but it would be up to the city council to allocate the necessary funds.
But supporters of the baby bonus say the lawsuit is a political power grab.
“We are fully confident the courts will reject this attack on democracy,” the Maryland Child Alliance said in a statement posted to social media last week.
Associated Press
Sierra Leone outlaws child marriage
A bill that bans child marriage in Sierra Leone has been signed into law, President Julius Maada Bio said, in an effort to protect girls in the West African nation where about a third are married before adulthood.
The law is being celebrated widely. It criminalizes marrying any girl who is under 18 years old. Offenders face up to 15 years in prison or a fine of around $4,000 or both. Witnesses to such marriages will also face jail or a fine.
“I have always believed that the future of Sierra Leone is female,” Bio said on social media platform X. “This and future generations of girls must thrive in Sierra Leone in which they’re protected, equal and empowered.”
Sierra Leone is home to 800,000 child
Monthly Memo
brides, with half of them married before age 15, according to the U.N. children’s agency.
First Lady Fatima Bio was among the key champions of the law that also provides improved access to education and support services for children affected by child marriage.
When it was passed by parliament as a bipartisan bill in June, she called it “a significant step forward in protecting the rights of our next generation.”
Associated Press
Southern California school district sues over new gender-identity law
A Southern California school district involved in an ongoing legal battle with the state over the district’s genderidentity policy sued Democratic Gov. Gavin Newsom over a new law banning districts from requiring that parents be notified of their child’s gender identification change.
The Chino Valley Unified School District and a handful of parents argued the law violates the rights of parents protected under the U.S. Constitution.
But Newsom spokesperson Izzy Gardon called the lawsuit “deeply unserious” and said the new law “preserves the child-parent relationship.”
Attorney General Rob Bonta sued Chino Valley Unified over a rule its board approved last year requiring school staff to notify parents if their children change their gender identification or pronouns. Bonta said the law discriminated against gender non-conforming students. A judge halted the policy while the case plays out, and the district later updated the rule to broadly require parents to be notified if their child asks to make any changes to their student records. LGBTQ+ advocacy groups lauded the new California law, while opponents said the ban makes it harder for schools to be transparent with parents.
Associated Press
South Korea’s top court recognizes some rights for same-sex couples
South Korea’s top court ruled Thursday that same-sex couples are eligible to receive the same health insurance benefits as heterosexual couples, a landmark verdict hailed by
human rights groups.
The Supreme Court said it ruled that the state health insurance agency’s refusal to provide spousal insurance coverage for gay couples was an act of discrimination that violates the constitutional principle of equality.
Thursday’s ruling is final and cannot be appealed.
A legal battle between a gay couple, So Seong-wook and Kim Yong-min, and the National Health Insurance Service began after the insurance agency revoked So’s registration as a dependent of Kim, prompting So to file an administrative suit.
In 2022, the Seoul Administrative Court ruled in favor of the insurance agency. But in February 2023, the Seoul High Court overturned the earlier verdict, saying that denying So’s spousal coverage rights without reasonable grounds was discriminatory because such benefits are given to heterosexual spouses.
Public views on gender issues in South Korea have gradually changed in recent years, but critics say the Asian country still has a long way to go compared with other developed countries. South Korea doesn’t legally recognize same-sex marriages.
Associated Press
5-year-old child in foster care dies after being left in hot SUV
School districts in California would be A 5-year-old Nebraska boy in foster care died after being left for several hours inside a hot SUV, Omaha police said.
Officers were called at 5:11 p.m. July 10 to a beauty salon parking lot. Lt Neal Nonacci told the Omaha WorldHerald that someone saw the boy and contacted police. The child was taken to a hospital where he was pronounced dead.
“At this time, it appears that the child was left unattended inside of a vehicle for an extended period of time,” police said in the release.
An autopsy was planned to confirm the cause of death as an investigation continues. The temperature in Omaha peaked at 86 degrees (30 Celsius) about an hour before the child was found.
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 Baltimore County Circuit Court’s final protective order in favor of father, on behalf of their three minor children. The circuit court relied upon its interview of a minor child, statements made by the children to the social worker and mother’s testimony at the final protective order hearing in determining that it was more likely than not that mother caused mental injury to the children.
The Appellate Court affirmed the Howard County Circuit Court’s award of joint legal custody and shared physical custody of the minor child. Although the father would have preferred a different custody arrangement, that is not the standard by which an appellate court reviews the circuit court’s custody decision.
Argued before: Graeff, Reed, Taylor (specially assigned), JJ.
Opinion by: Reed, J.
Filed: June 6, 2024
The Appellate Court affirmed the St. Mary’s County Circuit Court’s conclusion that husband’s Federal Employees Retirement System retirement benefits were not part of the parties’ partial agreement. So the circuit court did not err in awarding wife a share of these benefits.
The Appellate Court vacated the Charles County Circuit Court’s order holding father in contempt for withholding his residential address from mother. The parties agreed to not disclose their residential addresses to one another, and that requirement was intentionally stricken from the parenting plan.
The Appellate Court affirmed the Prince George’s County Circuit Court’s award to husband of one half the equity in the parties’ marital home. The record supported a finding that, although the property remained titled in wife’s name, its acquisition was a joint venture, the mortgage payments were primarily made from marital funds and the equity acquired during the marriage was marital property.Guardian; appointment; attorney
The Appellate Court vacated the Baltimore City Circuit Court’s termination of the mother’s parental rights concerning two of her children. Some of the circuit court’s statutorily required findings are either clearly erroneous or lacking. And the circuit court did not explain how it weighed the evidence to conclude that exceptional circumstances exist sufficient to rebut the presumption favoring the parental relationship.
The Appellate Court affirmed the Carroll County Circuit Court’s modification of custody and child support. Given the broad discretion the statute affords a court in setting the amount of child support in above-guidelines matters, and the discussion by the court setting forth its reasoning, the circuit court did not abuse its discretion in ordering father to pay child support in the amount of $5,000 a month.
The Appellate Court affirmed the Harford County Circuit Court’s denial of the husband’s motion to shield records related to two protective orders filed by his former wife.
CINA; FOSTER MOTHER; TERMINATION
In re: C.S.O.
No. 1619, September Term 2023
Argued before: Arthur, Leahy, Friedman, JJ.
Opinion by: Leahy, J.
Filed: May 22, 2024
The Appellate Court affirmed the Montgomery County Circuit Court’s termination of the mother’s jurisdiction over the minor and the closing of his Child in Need of Assistance case after awarding custody and guardianship to his foster mother.
The Appellate Court affirmed the Queen Anne’s County Circuit Court’s finding that the nine-old minor’s aunt was her de facto parent and its determination that it was in the child’s best interests for the aunt to have primary physical and sole legal custody of the child. The child had resided with and been cared for by the aunt (at the aunt’s expense) for most of her life; the aunt had the
In The Court of Special Appeals: Full Text Unreported Opinion
The Appellate Court affirmed the Baltimore County Circuit Court’s final protective order in favor of father, on behalf of their three minor children. The circuit court relied upon its interview of a minor child, statements made by the children to the social worker and mother’s testimony at the final protective order hearing in determining that it was more likely than not that mother caused mental injury to the children.
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.
that Mother made threats of violence, caused mental injury to the children, shook the children, and screamed in their faces. Father added that the children were “in fear” because Mother had guns in the house and had “threatened to kill herself in front of them.” The children were “afraid [that] she will kill them first.”
That same day, the circuit court granted Father a temporary protective order on behalf of the minor children. The final protective order hearing was scheduled for July 5, 2023. Pursuant to Md. Code, Fam. Law § 4-505(e), the case was referred to the Baltimore County Department of Social Services (“BCDSS”) for an investigation.4
The DSS Report
A.C.1 (“Mother”), appellant, appeals from the entry of a final protective order in the Circuit Court for Baltimore County in favor of her ex-husband, M.C. (“Father”), appellee, on behalf of their three minor children. She presents two issues,2 which we combine and rephrase as one: Did the circuit court err or abuse its discretion by its grant of the final protective order in favor of Father on behalf of the children? We answer that question in the negative and affirm the order of the circuit court.
BACKGROUND
Mother and Father are the formerly married parents of three children: M, age 15; S, age 13; and E, age 6.3 They separated in 2020. Mother moved to Kentucky where she lived with her parents and other family members. Father continued to reside in Baltimore County, where the parties were divorced in March 2023. Mother was granted primary custody of the children during the school year and Father was granted regular access periods with the children in Maryland.
The Temporary Protective Order
At the end of May 2023, Father picked the children up for a scheduled summer access period. The children immediately told Father about an incident that occurred at Mother’s house when she beat their family dog with a bull whip in front of them, causing the dog to bleed, and continued to beat the dog while it bled. They were “agitated” and “jittery,” and Father could tell they were upset.
About a month later, on June 28, 2023, Father filed in the circuit court a petition for protection from child abuse on behalf of the children. In addition to the above incident, he alleged
On June 30, 2023, a BCDSS social worker conducted virtual interviews of Father, Mother, and the children. The social worker filed a written report with the circuit court on or about July 3, 2023 (“the DSS Report”). We summarize the report, which detailed the substance of the social worker’s virtual interviews with each family member.
Father told the social worker that the children were living with Mother in an 800 square foot house along with five other people: Mother’s parents, Mother’s sister, and Mother’s sister’s two children. The house did not have heat or air conditioning and was extremely cramped. The occupants of the house shared one bathroom that, until recently, had no door. Father reported that there were many loaded, unsecured firearms in the home and that the older children were fearful that E might access the firearms.
He reported that Mother physically disciplined M and E but did not physically discipline S because she favored him. The children expressed fear of Mother’s anger, which had increased after the incident with their dog. Father was concerned that Mother or her friends might come to Maryland to take the children or to cause him harm based upon social media posts made by Mother that he shared with the social worker.
E, then age 5, reported to the social worker that Mother “whooped” her if she did “something bad” and that she did not think it was fair that Mother hit her, but not her siblings. She also reported that Mother screamed “right in her face.”
M, then age 14, characterized Mother as “impatient and pushy.” Mother was “unpredictable with expressing anger.” When M was younger, Mother “whoop[ed]” her on her buttocks. More recently, Mother had hit M on the arm and the face while she was wearing a ring. M told the social worker that she was fearful of Mother’s anger, especially because she carries a
firearm. M had witnessed Mother “whoop” E, but stated that she does not hit S.
M reported that a few years earlier, Mother had a “meltdown” about her separation from Father, told M and her siblings goodbye, told Father that he should come get the children, and left. M’s grandparents were concerned that Mother was going to commit suicide. Mother “eventually changed her mind.”
M described cramped living conditions in her grandparents’ home in Kentucky and confirmed that the bathroom did not have a door until recently. She stated that she was responsible for most of the cooking and cleaning unless her grandmother was home. Mother “stayed in bed for long periods of time[.]” There were loaded guns in the house that she and S knew how to access.
M witnessed Mother hit the family dog with a bullwhip “six times” causing it to bleed on its stomach and mouth.
S, then age 12, reported that he witnessed Mother hit the family dog with a bullwhip and that his grandfather threatened to kill the dog. He described their home as “very small” and said that because so many people lived there, there was little food.
Mother spent most of her time “laying [sic] in bed watching television.”
S expressed fear about Mother’s “temper” and “her screaming.” He often hid in his room “for safety.” It was not unusual for Mother to “throw[] things or hit[] the wall out of anger.” S estimated that there were eight loaded guns in the house. S had witnessed Mother lift E by her arm and hit her on her buttocks “multiple times.”
Mother reported that the concerns raised by Father had been litigated during the parties’ recent divorce trial. In the interim between when the children came to stay with Father and the filing of the petition for protection from child abuse, Mother had moved out of her parents’ house and was now living with her boyfriend in Kentucky. She moved because she wanted the children to have their own bedrooms.
Mother admitted that she hit the family dog with a bullwhip, but said she had “used a part of the bullwhip that was not as dangerous to the dog itself” and that “the dog did not bleed as reported.” Mother confirmed that she had considered suicide in 2020, after she and Father separated. Mother now was seeing a psychiatrist and taking medication to treat bipolar disorder, and now has “coping strategies to deal with her anger, including going outside and walking away when she is upset.”
Mother stated that she had used physical discipline with M and S in the past but had never used it with E and discontinued it with her older children. According to Mother, as of March 1, 2023, the date the divorce judgment was entered, all firearms in her parents’ home were locked up. Mother said that she did not own any firearms, having sold her last one two years ago.
Final Protective Order Hearing
The final protective order hearing commenced on July 5, 2023. Father was represented by counsel and Mother represented herself.
Father testified in his case that as soon as he picked the children up at the end of May 2023, they “all started blurting [] out” the incident with the family dog. S told Father that Mother
keeps a loaded handgun in the console of her car. The court admitted the DSS Report into evidence without objection.5
Father requested for the court to interview the children in chambers. The court took a recess to read this Court’s recent decision in C.M. v. J.M., 258 Md. App. 40 (2023), which addresses, in part, guidelines for interviewing children in the context of protective order proceedings.
When the court reconvened, the trial judge expressed concern that it was being asked to “undo[]” the results of the divorce hearing, which had occurred just over three months earlier. The court stated that it did not see “any benefit” to reinterviewing the children a few days after they were interviewed by a social worker. The court determined to continue the hearing for two weeks, leaving the temporary protective order in place, to allow the court to consider the information and to consult with the judge who presided over the divorce hearing.6
At the continued hearing on July 18, 2023, Father renewed his request for the court to interview the children in chambers. Mother opposed that request, arguing that it was “detrimental to their mental and emotional health” to be interviewed again. The court ruled that it would interview M.
The trial judge met with M privately in another courtroom. The court summarized their conversation on the record. The court asked M what she liked to do with Mother.
M replied that Mother “stayed in bed a lot” and that when they did go out, Mother tended to take a lot of photographs as documentation of the outing rather than engaging with them and “enjoying the actual time.”
M said multiple times that she felt safer at Father’s home. She said Father engaged with them more and seemed to enjoy spending time with them. He took care of them – doing dishes and laundry, which was in contrast to Mother. M characterized Father as “patient” and said that he did not yell. His style of discipline was to talk to the children about their behavior. In contrast, she described Mother as “unpredictable and irritable.” Mother had hit her on the lip. Overall, M reiterated that she felt “better cared for and safer” with Father.
Mother testified in her case.7 She explained that Father “control[led] and manipulate[d]” the children by “playing on [their] emotions and love for him[.]” She claimed that Father held the children “hostage” in November 2020 for 51 days, refusing to allow Mother to see them before the court ordered them returned to her in Kentucky.
Mother disputed the recent allegations made by the children. She claimed that a photograph that Father had provided to the social worker purporting to show her sitting on a couch holding a firearm depicted a BB gun. She stated that there were “no loaded or unattended guns” in the home where the children lived. She listed the guns owned by her father, all of which were kept “locked and unloaded” in a camping van except a gun he kept “locked in the console of his truck[.]” She introduced into evidence a series of text messages from March showing that she had arranged to sell a firearm she owned. She testified that the firearm she sold was the only gun she had owned.
Mother denied that she was an “angry or volatile person” or that she ever “hit or scream[ed] at [her] children.” She coped with frustration by walking away or going for a jog. She denied that she ever used physical discipline with E or hit M on the
arm or the face. She asserted that M and S had never seen her “spank, hit or grab E in frustration or anger because [she had] never done that.”
Mother denied “bull whip[ping]” the dog, explaining that that “takes skill” that she does not have. She yelled at the dog because it grabbed a live chicken out of her hand.
The dog ran into the kennel with the chicken in his mouth and she chased him and “struck him two to three times with the tail end of the bull whip” to get him to release the chicken. When the dog released the chicken, the dog took off running. Mother testified that there was no blood. Mother’s father threatened to kill the dog because it killed the chicken but did not follow through on that threat.8
Mother explained that Father had a history of alienating the children from her and her family. In Kentucky, she ensured that the children had a community of people who cared for them such as the 4-H club and therapy. She described the home the children would live in if they returned to her custody and their planned enrollment in public school in the Fall as well as after school activities like ballet for E, archery for S, and dance for M. Mother introduced into evidence numerous photographs of her and other family members with the children at various attractions in Kentucky.
At the close of all the evidence, Father’s attorney argued that the case came down to the court’s assessment of the DSS Report and the court’s interview with M. Counsel maintained that evidence that M, S, and E were fearful of Mother was sufficient under the authority of C.M., 258 Md. App. at 40, to establish a mental injury to the children justifying the entry of a final protective order. The evidence that Mother beat the dog in the presence of the children, standing alone, showed that Mother had caused a mental injury to the children.
Mother responded that the evidence did not support Father’s allegation that she had caused mental injury to the children but, to the contrary, that Father had done so by alienating and manipulating them. She maintained that her love for her children was unconditional, but that Father’s love for them was not and the children had learned to “appease him.”
The court ruled from the bench that it was convinced by a preponderance of the evidence that the children suffered both mental and physical injuries at the hands of Mother. The court credited the children’s reports to the social worker that Mother whipped the family dog until it bled and rejected Mother’s testimony to the contrary. The court did not find Mother’s testimony that she never hit E credible given that M told the court that she had witnessed Mother hit E and all three children told the social worker the same. The court credited M’s statement to the court that she was fearful of Mother.
The court opined:
tak[ing] into account what occurred to the dog, the past abuse of the children, and the mental injury of the constant fear that [Mother] places on her children, it was palpable to me that [M] and through conversation clearly the younger children fear their mother and being around her in her house. They don’t feel safe.
To me that equates to mental injury, as well as physical injury.
The court granted a protective order for a period of 12 months and granted custody of the children to Father. The court ordered that Mother would have access to the children by telephone, FaceTime, or Zoom each day for between 15 and 30 minutes, as appropriate given the children’s schedules. Mother was granted in-person, supervised access with the children one weekend day each week for four hours, with the precise day to be determined by the Thursday prior. The visits would take place in Maryland either at a visitation center or at Father’s parents’ home.
The court entered the final protective order encompassing those findings that same day.9 This timely appeal followed.
STANDARD OF REVIEW
In reviewing the issuance of a final protective order, “we accept the circuit court’s findings of facts, unless they are clearly erroneous.” C.M., 258 Md. App. at 58 (citing Md. Rule 8-131(c)). “We [] consider evidence produced at the trial in a light most favorable to the prevailing party.” Id. (cleaned up). We defer to the court’s determinations of credibility, as it has “‘the opportunity to gauge and observe the witnesses’ behavior and testimony during the [hearing].’” Barton v. Hirshberg, 137 Md. App. 1, 21 (2001) (quoting Ricker v. Ricker, 114 Md. App. 583, 592 (1997)). In reviewing the circuit court’s ultimate decision to grant a final protective order, we independently apply the law to the particular facts of the case. Piper v. Layman, 125 Md. App. 745, 754 (1999).
DISCUSSION
I. THE CIRCUIT COURT PROPERLY GRANTED THE FINAL PROTECTIVE ORDER.
To be granted a final protective order, the party seeking the order must show “by a preponderance of the evidence that the alleged abuse has occurred[.]” Fam. Law § 4- 506(c)(1)(ii). “Abuse” of a child is defined as “the physical or mental injury of a child under circumstances that indicate that the child’s health or welfare is harmed or at substantial risk of being harmed[.]” Fam. Law § 5-701(b)(1); see also Fam. Law § 4501(b)(2)(i) (stating that if the person for whom relief is being sought under the domestic violence subtitle is a child, then abuse also includes the definition of abuse set out in the child abuse and neglect subtitle). “Mental injury” is further defined as “the observable, identifiable, and substantial impairment of a child’s mental or psychological ability to function caused by an intentional act or series of acts, regardless of whether there was an intent to harm the child.” Fam. Law § 5-701(r). “Both physical and mental harm must be intentional and cannot be the product of an accident.” C.M., 258 Md. App. at 57 (citations omitted).
In C.M., this Court held that a trial court did not err by granting a final protective order on the basis of mental abuse where a father sent text messages to his child and directed comments toward him in person about the child’s sexual orientation that caused the child to be frightened of his father. Id. at 49-55. We reasoned that, in reaching that conclusion, the trial
court properly relied upon its in camera interview with the child, text messages introduced into evidence, and the report of the social worker in which the child related that he did not feel safe with father. Id. at 61-62.
Similarly, in the instant case, the circuit court relied upon its interview of M, statements made by the children to the BCDSS social worker, and Mother’s testimony at the final protective order hearing in determining that it was more likely than not that Mother caused mental injury to the children. The trial court credited the evidence that Mother bull whipped the family dog in front of the children until it bled.10 It further found that the children were fearful of Mother’s temper based on M’s statements to the court that she felt safer with Father, her “palpable” fear of Mother, and S’s statement to the social worker that he hid in his room to avoid Mother’s temper. The court found that the children lived in “constant fear” of Mother’s temper as a result of her volatility and because they witnessed her whip the family dog. These findings were supported by evidence in the record and were not clearly erroneous. The trial court did not err by determining that this fear amounted to mental abuse. See id. at 61 (holding that the trial court’s findings that the minor child was “frightened,” “scared,” and “fearful,” of his father’s anger and his refusal to accept the child’s sexual orientation supported the determination that the father mentally abused the child). On this basis alone, we would affirm the grant of the final protective order.
Though not necessary to our decision, we also perceive no error in the court’s finding that Mother caused physical injury to the children. This finding was supported by evidence that Mother routinely “whooped” E, and M’s statement that Mother hit her on the lip while wearing a ring.11
Mother’s challenges to the court’s findings are unavailing. She asserts that the court erred by relying upon the children’s statements to the social worker summarized in the DSS Report and upon M’s in camera interview because neither were “objective.” With respect to the DSS Report, she emphasizes that the interviews were conducted virtually from Father’s
home where the children were aware that Father keeps “AI devices” in every room. She maintains that the court should have credited her testimony disputing the allegations and evidence that Father has a history of alienating the children from her. With respect to M’s in camera interview, Mother maintains that her daughter was “ushered” into the court’s presence by Father and his lawyer and that she had “no protection from his emotional manipulation” since she entered Father’s care on May 23, 2023.
It is not within the purview of an appellate court “to retry [a] case or reweigh the evidence.” Kremen v. Maryland Automobile Ins. Fund, 363 Md. 663, 682 (2001). Likewise, it is well-established that in assessing the credibility of the witnesses who testify at a final protective order hearing, the circuit court is “entitled to accept – or reject – all, part, or none of” their testimony, “whether that testimony was or was not contradicted or corroborated by any other evidence.” Omayaka v. Omayaka, 417 Md. 643, 659 (2011) (emphasis in original). Consequently, though the circumstances surrounding the interviews of the children were a factor the circuit court could consider in assigning weight to the DSS Report and to M’s statements in the in camera interview, it is not our prerogative to second guess its determination in that regard.12 Likewise, the circuit court was in the best position to gauge M’s credibility when it interviewed her in person and to assess Mother’s credibility when she testified at the hearing.
Mother also asserts that the circuit court should have considered the report prepared by the court-appointed custody evaluator in the parties’ divorce case. That report was not introduced into evidence at the final protective order hearing. Thus, it was not before the circuit court and is not before this Court on appeal.
CONCLUSION
For all these reasons, the circuit court did not err by granting the final protective order.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY
AFFIRMED. COSTS TO BE PAID BY APPELLANT
FOOTNOTES
1 To protect the children’s privacy, we refer to the parties by their initials in the caption and as “Mother” and “Father” in the body of this opinion and to the children by their first initials.
2 The issues as presented by Mother, pro se, in an informal brief are:
1. At no point during these court proceedings was there an objective interview of [the children].
2. [Father] continues to alienate [the children] from their biological mother.
3 We gather from information provided by Mother in her record extract that Father legally adopted M and S
after he married Mother and that he is the biological parent of E.
4 That statute provides that “[w]henever a judge finds reasonable grounds to believe that abuse of a child . . . has occurred, the court shall forward to the local department a copy of the petition and temporary protective order.” Fam. Law § 4- 505(e)(1). The local department “shall . . . investigate the alleged abuse” and send the court a copy of its report no later than the date of the final protective order hearing. Fam. Law § 4-505(e)(2)(i)-(ii).
5 The DSS Report was admissible under Md. Rule 5-803(b)(8)(iv), which makes factual findings in a report of an investigation commenced under Md. Ann. Code, Fam. Law § 4-506 admissible at a final protective order hearing so long as both parties have had an opportunity
to review the report. The court verified that Mother had reviewed the report.
6 This was permissible under Md. Rule 18-102.9(a)(4), which permits a judge to consult with another judge “provided the judge does not decide a case based on adjudicative facts that are not made part of the record, and does not abrogate the responsibility personally to decide the matter.” The court also is empowered to extend a temporary protective order for up to six months for good cause. Fam. Law § 4-505(c)(1)(2). Mother does not raise any issues concerning the continuance on appeal.
7 Mother told the court that she had two witnesses she wished to call, but they were in Kentucky. The court advised that because Mother had not requested in advance to call witnesses over Zoom, it would not be possible to do so. Mother does not raise this as an issue on appeal.
8 Mother also disputed allegations made by the children to the BCDSS worker that the house was unclean and expressing concerns about privacy in the home.
9 Since the entry of the final protective order, Mother moved to modify the terms of her visitation access with the children. The court held a hearing on Mother’s motion on April 8, 2024 and modified the order to provide that, going forward, visits would be supervised by a third-party
family friend at the home of Father’s parents, not by either of his parents, and that there would be no video or audio recording of the visits except as deemed necessary by the third party supervisor.
Father also moved to modify custody and child support within the parties’ divorce case. A hearing on Father’s motion is scheduled for May 15, 2024. As of the date of the filing of this opinion, the magistrate has not filed recommendations.
10 Mother did not dispute having hit the family dog with the bull whip. Rather, she disputed the manner in which she used the bull whip and the extent of the injuries to the dog.
11 We recognize that “[r]easonable corporal punishment, by definition, is not child abuse.” Charles County Dep’t of Soc. Servs. v. Vann, 382 Md. 286, 303 (2004). In this case, however, Mother did not assert that she used reasonable corporal punishment on the children, but rather denied that she struck them. The court, however, did not credit her testimony. Further, M told the trial court and the social worker that Mother hit her in the face, which is outside the realm of reasonable physical discipline of a child.
12 We note that the social worker verified with each child at the start of each interview that they were alone.
In The Court of Special Appeals: Full Text Unreported Opinion
The Appellate Court affirmed the Howard County Circuit Court’s award of joint legal custody and shared physical custody of the minor child. Although the father would have preferred a different custody arrangement, that is not the standard by which an appellate court reviews the circuit court’s custody 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.
has worked as a health insurance analyst for the federal government.
On December 27, 2022, Father filed a complaint for custody in which he sought joint legal and joint physical custody of S. Specifically, he requested “50% of the year within MD with both parents and to alternate holidays every-other year.” In Mother’s answer to the complaint, she denied that S. lived with Father and requested that his complaint be dismissed or denied. An evidentiary hearing before a magistrate was held on July 11, 2023. The parties were the only witnesses to testify at the hearing.
This case arises from a custody dispute between Stephan McKenzie (“Father”), appellant, and Lakischa Fortson (“Mother”), appellee,1 regarding their minor child, S., who was born in 2019. On August 24, 2023, the Circuit Court for Howard County entered an order granting the parties joint legal custody and shared physical custody of S. Father noted a timely appeal from that order, and presents one question for our consideration:
Did the circuit court err or abuse its discretion in its order granting the parties joint legal and shared physical custody of S.?
For the reasons set forth below, we shall affirm the circuit court’s decision.
BACKGROUND
The parties, who were never married, have the one child together. When they began living together in 2021, S. was almost two years old. Each of them also had another child. Mother has an eighteen-year-old son, who was about to enter college at the time of the underlying proceedings. Mother’s son lived with the parties and S. Father has a nineyear- old son who has autism. He lives primarily in Elkton, Maryland with his mother, but visits Father every weekend and lives with him during the summers. Mother was a stayat-home parent until May 2022 and, thereafter, she worked in the accounting department of a biotech company. Father
Father testified that during the COVID-19 pandemic and thereafter, he teleworked full-time. According to Father, S. went with Mother when the parties separated, but he continued to watch her during the day until S. started daycare. When asked what would be “the right schedule” for S., Father stated “definitely [to] be able to see both parents equally through our seven-day week.” He proposed shared physical custody with S. staying with him on Sunday, Monday, and Tuesday nights, with Mother on Wednesday and Thursday nights, and with the parties alternating the weekends. The parties lived about ten minutes apart from each other and S.’s daycare was also about ten minutes away from Father’s house. Father agreed to Mother’s selection of the daycare center because Mother qualified for, and received, a scholarship that reduced the total monthly cost to $400.
Mother left the family home in May 2023 and, for a short time thereafter, lived with her aunt and uncle, who watched S. when she was at work. On May 20, 2023, Mother moved into her own one-bedroom apartment with S. Mother testified that she and S. shared a queen-size bed and that she was setting up “a little area” with a television for the child. Mother acknowledged that she applied for, and received, a scholarship that allowed S. to attend her current daycare center. At some point prior to the time S. started attending the daycare center, Father watched S. during the day when Mother was at work. Mother testified that her job was “pretty flexible.” She worked “eight hours a day, sometimes more, sometimes less[,]” from “[a]bout 9:30 until about 4:30, 5:00.” She was sometimes able to work from home, and “might work from home for four hours.”
According to Mother, Father’s nine-year-old son received therapy for two hours every Sunday in Father’s home and, after the therapy session, he went to a local library to receive extra help from a tutor. Father also did “some type of electrical work” to earn extra money.
Mother suggested that Father have S. from Sunday evenings, after he returned from dropping off his son, through Tuesday mornings when he would drop off S. at daycare. On occasions when S. did not attend daycare, she would stay with Father while Mother was at work. At the time of the hearing, it had been “weeks” since S. had had an overnight visit with Father. Mother acknowledged that she did not always grant Father’s requests for overnight visits but “only because [she] just want[ed] [S.] to be on a schedule.”
Mother expressed concern that Father kept unsecured firearms in his home. She testified that on one occasion, she found a gun in a basket of socks, and when she asked Father to move it, “it took two days” for him to do so. Mother also testified that on one occasion when Father was outside with S., he could not locate the child. In addition, Father’s son, on one occasion, had knocked over S. and “busted” her lip, but she recognized that he did not understand what he did.
A few weeks after the hearing, the magistrate issued a written report and recommendations. The magistrate found, among other things, that each party’s home was appropriate for the child, that Mother had “shown herself to be a more careful caretaker than [Father] has at times[,]” that “[F] ather has left a gun in the open accessible to the child and even when asked by [Mother] to put the gun away he did not.” The magistrate further found that the “child goes to bed late, at about 10 p.m.[,]” that “[b]oth parents are likely capable of making good decisions for the child[,]” that “[i]t is in the best interests of the child that [she] be maintained in the primary custody of [Mother]” but with “frequent access with [Father,]” and that the child “should be able to have time with [Father] when he has the child’s sibling and also have one on one time with [Father].” The magistrate recommended, inter alia, that the parties be granted joint legal and shared physical custody of S., that Father be granted access every other weekend and on Wednesday evenings from after daycare or school until 8 p.m., that Mother shall open a child support account, and that the parties pursue “the setting of Maryland Guidelines support for the child.”
On August 22, 2023, which was more than ten days after the filing of the Magistrate’s Report and Recommendations, Father filed exceptions to the Magistrate’s Report and Recommendations. They were dismissed because they were not timely filed. In a written order dated August 24, 2023, the circuit court granted the parties shared physical custody and joint legal custody2 of S. with Mother having “tie breaking authority in the event of a bona fide disagreement[.]”3 The child’s primary residence was to be with Mother “subject to liberal and regular access reserved to” Father. Father was granted access with S. every other weekend from Friday after daycare until Monday and every Wednesday evening. The court set forth a detailed schedule for holidays and summer vacations, ordered Mother to “open a child support account with the Bureau of Support Enforcement,” and ordered “that the parties shall pursue the setting of Maryland guidelines support for” S.
APPEALABILITY
On the day of the magistrate’s hearing, but after it had been concluded, Mother filed a counter-claim for custody and child support. There is no indication in the docket entries that the counter-claim has been addressed by the circuit court. The right to appeal is granted by statute and “must be legislatively permitted.” In re C.E., 456 Md. 209, 220 (2017). Generally, appeals may only be taken from final judgments. See § 12-301 of the Courts and Judicial Proceedings (“CJP”) Article of the Maryland Code. But a litigant may appeal from certain interlocutory orders. Relevant to this case, CJP § 12-303(3)(x) permits an appeal of an interlocutory circuit court order “[d]epriving a parent . . . of the care and custody of his child, or changing the terms of such an order[.]” We conclude, therefore, that Father’s appeal is properly before us.
DISCUSSION
Father challenges the circuit court’s custody determination on the grounds that it contradicts findings of fact and recommendations set forth in the Magistrate’s Report and Recommendations. In particular, and after the magistrate found Mother should have primary custody, he points to the magistrate’s determination that he should be given ample time and frequent access to S. He argues that despite that finding, and the fact that the parties live very close to each other and to the child’s school, the circuit court granted him only every other weekend and Wednesday evening visits with S. According to Father, that schedule fails to provide ample time for him and the child to form a strong relationship. He points out that when the parties lived together, he cared for the child during the day while teleworking, and maintains that the court’s order “only assists the child in believing that one parent is the parent and decision maker while the other parent is a visitor which they must gain permission to see or speak with.” As he sees it, more overnight visits could have been allowed.
We understand that Father would have preferred a different custody arrangement, but that is not the standard by which an appellate court reviews the circuit court’s custody decision. See Gizzo v. Gerstman, 245 Md. App. 168, 206 (2020) (holding that appellant’s “arguments fail to show that any of the trial court’s findings were unsupported by sufficient evidence or that the court’s reasoning was irrational”). When a party fails to timely file exceptions, “the court may direct the entry of the order or judgment as recommended by the magistrate.” Md. Rule 9-208(h)(1)(B). In such cases, “‘any claim that the [magistrate’s] findings of fact were clearly erroneous is waived.’” Dillon v. Miller, 234 Md. App. 309, 317 (2017) (quoting Miller v. Bosley, 113 Md. App. 381, 393 (1997)). In the case at hand, Father does not challenge any of the magistrate’s findings of facts. His challenge relates to the circuit court’s disposition of the case based on the facts found by the magistrate.
Although bound by the magistrate’s findings of fact, we may review the circuit court’s application of those findings in reaching its custody decision. Id. (citing Miller, 113 Md. App. at 393); accord Barrett v. Barrett, 240 Md. App. 581, 587
(2019). In doing so, we employ three separate but interrelated standards of review:
When the appellate court scrutinizes factual findings, the clearly erroneous standard of Rule 8-131(c) applies.
Second, if it appears that the court erred as to matters of law, further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless. Finally, when the appellate court views the ultimate conclusion of the court founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the court’s decision should be disturbed only if there has been a clear abuse of discretion.
Kadish v. Kadish, 254 Md. App. 467, 502 (2022) (cleaned up) (quoting In re Yve S., 373 Md. 551, 586 (2003)).
The abuse of discretion standard “‘is premised, at least in part, on the concept that matters within the discretion of the trial court are much better decided by the trial judges than by appellate courts[.]’” Neustadter v. Holy Cross Hosp. of Silver Spring, Inc. , 418 Md. 231, 242 (2011) (internal quotation marks omitted) (quoting Aventis Pasteur, Inc. v. Skevofilax, 396 Md. 405, 436 (2007)). It is an abuse of discretion when “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.” Santo, 448 Md. at 625-26 (quotation marks and citation omitted). In other words, we only reverse when a trial court’s decision is “well removed from any center mark imagined by the reviewing court[.]” North v. North, 102 Md. App. 1, 14 (1994). An abuse of discretion should therefore “only be found in the extraordinary, exceptional, or most egregious case.” Alexander v. Alexander, 252 Md. App. 1, 17 (2021) (quotation marks and citations omitted).
Here, there is no reason to believe that the circuit court did not apply the proper legal standards or that it did not consider and rely on the Magistrate’s Report and Recommendations in making the ultimate custody determination in reaching a reasonable conclusion that provided Father with time alone with S. as well as time for S. and Father to spend together with her sibling. We perceive no error or abuse of discretion in the custody award, the child access schedule, or any other part of the court’s order.4
Father also challenges the circuit court’s decision to award tie-breaking authority to Mother in the event of a bona fide disagreement. Specifically, he asserts that the order failed to address the removal of S. from Maryland without his knowledge or consent. To address that concern, it is important to explain what is meant by tie-breaking authority. In Santo v. Santo, Maryland’s Supreme Court affirmed the propriety of awarding tie-breaking authority to one parent when the parties shared legal custody, writing that:
[i]n a joint legal custody arrangement with tie-breaking provisions, the parents are ordered to try to decide
together matters affecting their children. 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. Because this arrangement requires a genuine effort by both parties to communicate, it ensures each has a voice in the decision-making process.
* *
We require that the tie-breaker parent cannot make the final call until after weighing in good faith the ideas the other parent has expressed regarding their children. Santo, 448 Md. at 632-33.
In Santo, the father argued that a circuit court could grant one parent sole custody, or both parents joint legal custody, but did not have the option to create ‘“hybrids of the two.”’ Id. at 631. The Supreme Court disagreed and held that an award permitting both parents an equal voice in decision-making but also giving one parent the ability to make a final decision after good faith discussions was permissible. “[S]uch an award is still consonant with the core concept of joint custody because the parents must try to work together to decide issues affecting their children.” Id. at 633. The Court noted that “[t]he requirement of good faith communication between the parents helps to ensure the parent with tie-breaking authority does not abuse the privilege of being a final decision-maker. And a court has the means to sanction a breach of good faith.” Id. at 634.
In other words, just because the circuit court granted Mother tie-breaking authority does not mean that she has no obligation to engage in good faith communication with Father, who has an equal voice in decision-making regarding S. If Mother abuses her privilege as the tie-breaker, Father can then ask the court to impose appropriate sanctions. Moreover, if Mother were to relocate the child from Maryland without his consent, Father would have a good faith basis for pursuing a modification of custody based on a material change in circumstances, and the circuit court could consider a change in both physical and legal custody. See Domingues v. Johnson, 323 Md. 486, 498-99 (1991) (noting that the mother’s relocation to Texas might constitute a change in circumstance sufficient to justify a change in custody); Braun v. Headley, 131 Md. App. 588, 613 (2000) (“[T] he relocation of appellant to another state, can, under Maryland law, constitute the material change in circumstances necessary to trigger the best interests analysis.”).
For those reasons, we are not persuaded that the circuit court was required to foresee a child’s best interest in an unknown future and spell out in its written order every possible scenario when ordering joint legal custody with tie-breaking authority to Mother. In short, we perceive no error or abuse of discretion in the custody award, the child access schedule, or any other part of the court’s order.
FOOTNOTES
1 Father is proceeding on appeal, as he did below, in proper person. Mother, who proceeded in proper person below, did not note an appeal and did not file a brief in this case.
2 With joint legal custody, “both parents have an equal voice in making [long range] decisions [of major significance concerning the child’s life and welfare], and neither parent’s rights are superior to the other.” Taylor v. Taylor, 306 Md. 290, 296 (1986).
3 With joint physical custody, the parents share or divide custody of the child, “but not necessarily ‘on a 50/50
basis.”’ Santo v. Santo, 448 Md. 620, 627 (2016) (quoting Taylor, 306 Md. at 297). Both parents have “‘the right 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. (quoting Taylor, 306 Md. at 296).4 We note that the magistrate correctly recognized in her Report and Recommendations, that “[t]he most important concern of a child custody determination is the analysis of the best interests of the child.” Moreover, the magistrate specifically referenced and considered the factors discussed in Taylor, 306 Md. 290, and Best v. Best, 93 Md. App. 644 (1992).
In The Court of Special Appeals: Full Text Unreported Opinion
Argued before: Graeff, Reed, Taylor (specially assigned), JJ.
Opinion by: Reed, J.
Filed: June 6, 202
The Appellate Court affirmed the St. Mary’s County Circuit Court’s conclusion that husband’s Federal Employees Retirement System retirement benefits were not part of the parties’ partial agreement. So the circuit court did not err in awarding wife a share of these benefits.
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.
before a Magistrate and agreed to a custodial arrangement concerning their minor child, memorialized into a Consent Order, dated November 21, 2019. Pursuant to their agreement, the parties shared joint legal custody and primary physical custody was granted to Wife. Additionally, Husband was ordered to “submit to an alcohol assessment”. The trial court also ordered “that neither party shall consume or be under the influence of alcohol in the presence of the minor child.”
On October 21, 2020, Wife filed a Motion to Modify Custody and also filed an Amended Complaint for Absolute Divorce, Custody, Child Support, Alimony and for further relief.
On November 12, 2018, an action was initiated when Appellee, Anne Kathryn Allor (“Wife”) filed a Complaint for Absolute Divorce, or in the alternative, Limited Divorce against Appellant, James Sidler (“Husband”). The parties appeared before the trial court on April 28, 2022, for a divorce hearing. After lengthy discussions, the parties reached a partial agreement and narrowed the issues for the trial court to decide. On May 26, 2022, the trial court entered a Judgment of Absolute Divorce, from which Husband files this timely appeal.
In bringing his appeal, Husband presents four questions for appellate review, which we reorder and restate as follows:
I. Did the trial court err by concluding that Husband’s FERS retirement benefits were not part of the parties’ partial agreement?
II. Did the trial court err by awarding rehabilitative alimony to Wife?
III. Did the trial court err by modifying custody in the Judgment of Absolute Divorce?1
For the reasons outlined infra, we affirm the decision of the trial court.
FACTUAL & PROCEDURAL BACKGROUND
The parties in this divorce action were married on April 25, 2009, and one child was born to the marriage. On November 12, 2018, Wife filed a Complaint for Absolute Divorce, or in the alternative, Limited Divorce, Custody, Child Support, Alimony and for further relief. On August 22, 2019, the parties appeared
On April 6, 2021, the parties convened for a hearing on Wife’s Motion to Modify Custody and Wife’s Petition for Contempt. After not concluding the hearing on that date, the hearing was scheduled to continue on May 12, 2021. However, due to Husband’s counsel’s trial schedule, the hearing was continued until July 26, 2021. On that day, the hearing proceeded but was continued to August 16, 2021, after the hearing was not concluded. Following the conclusion of the hearing, in an Order dated August 23, 2021, the trial court ordered that Wife continue to have primary physical custody of the minor child and ordered that the parties share joint legal custody with tie breaking authority to Wife.
On April 8, 2021, Wife filed her Second Amended Complaint for Absolute Divorce, Custody, Child Support, Alimony and for further relief. Husband filed his Answer on December 15, 2021. The parties appeared on December 16, 2021, for a hearing on the merits of Wife’s Complaint for Absolute Divorce. However, the hearing was continued due to the illness of one party.
The parties reappeared for trial on the merits on April 28 and 29, 2022. At that time, the parties began negotiations to see if they could settle the case in full or in part. The parties entered into a partial agreement that narrowed the contested issues in the case. The terms of the partial agreement provided that the parties agreed that the custodial arrangement would continue pursuant to the previous Orders of Court. Furthermore, the agreement provided that Husband would purchase Wife’s interest in the marital home and pay her a total sum of $56,000.00 via $41,000 in cash and $15,000 from Husband’s civilian thrift savings plan (TSP) within six months. Husband agreed to pay Wife’s attorney’s fees totaling $5,000 by monthly payments of $100.00, beginning on June 1, 2022. The parties also agreed that Wife would receive one half of Husband’s larger civilian thrift savings plan (TSP) account.2 The partial agreement further provided that Wife would receive a one-half marital share of Husband’s military pension on an if, as, and
when basis. Following the terms of the agreement, the trial court inquired as to whether custody was fully resolved in the case. Counsel for Wife informed the court that custody was agreed to but not support, extraordinary medical expenses, and daycare expenses. Counsel for Husband expressly agreed that the agreement, as placed on the record was accurate. “THE COURT: Mr. Brown is that your client’s agreement as what’s read into the record by Ms. Jacobson? MR. BROWN: Yes, Your Honor.”). The parties proceeded with a contested hearing on the remaining issues of the marriage, namely alimony, child support, extraordinary medical expenses, and daycare expenses.
During the contested hearing, Husband took the stand to testify. Counsel for Wife asked him if his only retirement benefits were the military pension and thrift savings plans already resolved by agreement, to which he responded in the affirmative. Shortly thereafter, Counsel for Wife inquired whether Husband had any retirement assets under FERS (Federal Employees Retirement System). Husband conceded that he was entitled to civil service retirement funds under FERS. Ultimately, Husband argued before the trial court that Wife waived her interest in his FERS benefits as a term within their partial agreement. (“Mr. Sidler takes the position that FERS was part of the settlement agreement that was – specifically said military pension.”) Wife countered by arguing that any interest in FERS was not waived and Husband failed to identify these assets within the discovery process. After listening to argument by all sides, the trial court ruled that FERS was properly pled in the Wife’s Second Amended Complaint and further concluded that the Wife did not waive her interest in the FERS benefits.
Husband argued in his closing argument that Wife was not entitled to receive rehabilitative alimony because she did not plead it. In her closing, Wife argued that the Second Amended Complaint included a request for alimony in the prayer for relief and it was within the power of the trial court to award it. The trial court ruled that Wife was entitled to rehabilitative alimony in the amount of $1,000 per month for a term of thirty- six (36) months. The trial court also granted Wife fifty percent (50%) of the marital share of Husband’s FERS on an if, as and when basis. The trial court signed the Judgment of Absolute Divorce on May 26, 2022, that memorialized the terms of the agreement and included the court’s rulings. Following the Judgment, on June 6, 2022, Husband filed a Motion to Reconsider and Amend Order and Request for Hearing. The trial court denied Husband’s Motion to Reconsider on August 8, 2022. On August 22, 2022, Husband timely filed this appeal to the Judgment of Absolute Divorce.
STANDARD OF REVIEW
As outlined by Md. Rule 8-131, “When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Md. Rule 8-131(c); see also Gen. Motors Corp. v. Schmitz, 362 Md. 229, 233 (2001); Spector v. State, 289 Md. 407, 433 (1981).
The Supreme Court of Maryland has held that “[t]he appellate court must consider evidence produced at the trial in a light most favorable to the prevailing party and if substantial evidence was presented to support the trial court’s determination, it is not clearly erroneous and cannot be disturbed.” Gen. Motors Corp., 362 Md. at 233-234 (quoting Ryan v. Thurston, 276 Md. 360, 390 (1975)). However, when the trial court’s ruling “involves an interpretation and application of Maryland statutory and case law,” appellate courts are required to “determine whether the lower court’s conclusions are legally correct, under a de novo standard of review.” Nesbit v. Gov’t Employees Ins. Co., 382 Md. 65, 73 (2004).
DISCUSSION
I. FERS Retirement Benefits
A.
Parties’ Contentions
Husband argues that the parties entered into a binding agreement on April 28, 2022. Husband further argues that once the parties reached a binding partial separation agreement then the trial court did not have the authority to modify it. Husband contends that contrary to the trial court’s ruling, Wife was aware of Husband’s FERS benefits. Specifically, Husband asserts “[a]t all times during the (over four (4) hour) negotiation occurring on April 28, 2022, [Wife] knew or should have known about the FERS retirement, because it was disclosed four (4) months prior in the draft settlement agreement and a week before trial on the updated pay stub provided.” Husband asks that we vacate the award of Wife’s interest in the FERS civilian retirement benefits.
Wife responds that the trial court properly concluded that Husband’s FERS benefits were not part of the parties’ partial agreement. She contends that Husband failed to disclose these benefits during the discovery process despite specific interrogatories aimed at ascertaining any and all retirement benefits. Wife argues in the alternative that Husband committed fraud by failing to disclose a material fact. Wife does not seek to set aside the agreement but rather asks the Court to affirm the trial court findings that the partial agreement did not include the FERS benefits, that Wife did not waive any interest in her marital share, that Husband failed to alert Wife of her interest in FERS, and there was no agreement as to FERS.
B. Analysis
First, we will begin with a review of the specific factual scenario underlying the FERS benefits issue. As discussed supra, after the parties put their partial agreement on the record, they proceeded with trial on the remaining contested issues. During husband’s testimony on cross-examination, counsel for Wife asked him, “And the only two retirements you have are pension and TSPs?” To which, he responded “Yeah.” Shortly thereafter, the issue of the FERS benefits arose for the first time at trial.
THE COURT: Okay. Let me see if there’s anything else sir. Any questions based on mine, Ms. Jacobson?
MS. JACOBSON: I do have a follow-up, Your Honor. Realizing he’s a government employee, and I just asked him if he had any other retirements.
FURTHER QUESTIONS
MS. JACOBSON: Sir, to the extent you are also entitled to a FERS, which is another governmental retirement, did we have this conversation?
MS. JACOBSON: I mean, she would be entitled to her onehalf marital share, and I’m not waiving that because we didn’t know it exists because it wasn’t provided.
THE COURT: Do you think talking to counsel without leave of the Court is proper?
MS. JACOBSON: I do not, Your Honor. I apologize. THE COURT: Thank you. Ask your questions.
MS. JACOBSON: I presume that if there was another pension plan out there, you would agree that your wife would be entitled to her one-half marital share of that. Is that correct?
MR. BROWN: Objection, calls for a legal conclusion.
THE COURT: Yeah, he wouldn’t know the Bang’s formula. Would you agree, if you have another pension, she may have a marital share of that?
Isn’t that true, sir? Isn’t that your understanding? THE WITNESS: Probably, yeah.
THE COURT: Okay.
THE WITNESS: I thought that we’d already done that.
THE COURT: Well, do you have something under FERS?
THE WITNESS: Yeah, that’s my civil service retirement.
MS. JACOBSON: So, may I speak to counsel, Your Honor, about this issue? THE COURT: You may.
MS. JACOBSON: And may I just approach him now? THE COURT: Sure.
THE WITNESS: I didn’t hide it.
Following this exchange, Husband argued that the FERS benefits “was part of the settlement agreement that was –specifically said military pension.” Wife argued that the FERS were not part of the partial agreement “because he never gave me the information because he failed in his discovery horrendously.” The court stated:
It appears that it is not part of the settlement that was put on the record. And as I said ten minutes ago, if it’s properly pled, and she can prove her interest in that, then I believe it is something she’s allowed to litigate rather than part of the agreement, or waived, let’s say.
When trial resumed the next day, the trial court heard argument from both sides concerning the FERS issue. Ultimately, the trial court found that Wife properly pled her share of the FERS benefits. Specifically, the court stated:
I conclude that FERS is properly pled. Not only was it in discovery, it is requested in the Complaint…I further conclude the agreement between the parties did not include the first FERS, the Federal Employee Retirement system. There was not an agreement that she would waive that. And the [Husband] failed to alert the [Wife] that he had interest in a FERS. Now, you would expect that it might be known, but you cannot demand that it be known. It came up during the testimony of the [Husband] called by the [Wife]. And I conclude that there is no agreement on the [Wife]’s interest in the [Husband]’s FERS, Federal Employ-
ees Retirement System, and, accordingly she may proceed on that subject.
In its ruling after the trial on the merits, the trial court concluded that “[t]he FERS is absolutely marital property and her interest in that is one-half of the 156 months they’ve been married.”3
Husband advances three arguments why his FERS benefits were part of the parties’ partial settlement agreement and why the trial court’s award should be vacated. First, Husband asserts that the presence of his interest in FERS benefits were disclosed to opposing counsel “at a minimum of three (3) times.” Next, Husband contends that Wife waived her interest by agreeing to the partial agreement and limiting the issues for trial. Finally, Husband argues that Wife ratified the partial agreement by accepting $41,000.00 from Husband. We shall consider these contentions in order.
First, we will address the issue of whether the FERS benefits were disclosed.
Husband argues that the FERS benefits were disclosed in various pages in both his initial document production and again in an updated document production.4 He also asserts that the FERS retirement benefits were explicitly stated in a proposed settlement agreement that was sent to Wife’s counsel. Section 9.4 of the parties’ Proposed Settlement Agreement says “[w]ife shall be entitled to her marital share of Husband’s military and civilian pensions on an if, as, and, when basis.”
In response to the disclosure argument, Wife recounts the significant roadblocks that she faced to get information during the discovery process. The trial court issued two Orders to Compel Husband to provide discovery responses.5 Despite being ordered to provide complete discovery responses by the trial court, Wife contends that Husband still failed to meet his discovery obligations. According to Wife, she propounded discovery on Husband that requested Husband to “[s]tate all property…[s]uch property shall include, but not be limited to, real estate, stocks, bonds, or other securities, bank accounts, cash, tangible personal property, automobiles, boats, pension plans or funds, retirement benefits and insurance policies.” (emphasis added). During discovery, Wife also requested information about any retirement benefits that Husband was entitled to through a request for the production of documents. She argues that no responses indicated that Husband was entitled to FERS benefits.6 Finally, Wife contends that Husband failed to list his interest in FERS benefits in the Joint Statement of Marital and Non-marital Property in contravention of Md. Rule 9-207.
The goal of the discovery process is to provide each party with all of the relevant facts in the case. Androutsos v. Fairfax Hosp. , 323 Md. 634, 638 (1991). The disclosure of all relevant facts aids the parties “to prepare their claims and defenses, thereby advancing the sounds and expeditious administration of justice.” Baltimore Transit Co. v. Mezzanotti, 227 Md. 8, 13 (1961). As the Supreme Court wrote, “[m]odern discovery statutes or rules are intended to facilitate discovery, not to stimulate the ingenuity of lawyers and judges to make the pursuit of discovery an obstacle race.” Barnes v. Lednum, 197 Md. 398, 407-07 (1951) (quoting Hickman v. Taylor, 329 U.S. 507 (1946)).
Despite Husband’s arguments that he disclosed his interest in FERS retirement benefits, the record indicates that he failed to affirmatively identify this property during the discovery process. Husband did not disclose these benefits in his Responses to Interrogatories or in the Joint Statement of Marital Property, despite the presence of two Orders to Compel. Husband may have subsequently provided documents that contained references to his FERS benefits, albeit days before trial on the merits. However, this does not adhere to the spirit of the discovery rules. Neither does mention of a “civilian pension” in a Proposed Settlement Agreement discharge Husband of his earlier failures to abide by his discovery requirements. For these reasons, we decline to accept Husband’s argument that the presence of his FERS retirement benefits were disclosed to Wife. We also decline to find that the failure to disclose the presence of the FERS benefits rises to the level of fraud by Husband or Husband’s counsel.
Next, we will turn to Husband’s contention that Wife waived any interest in his FERS benefits by agreeing to the parties’ partial agreement. As the Supreme Court of Maryland has previously noted, “separation agreements…are generally favored by the courts as a peaceful means of terminating marital strife and discord so long as they are not contrary to public policy.” Turner v. Turner, 147 Md. App. 350, 403 (2002) (quoting Gordon v. Gordon, 342 Md. 294, 300-01 (1996)). This concept has also been codified in Maryland’s statutory scheme. “A husband and wife may make a valid and enforceable deed or agreement that relates to alimony, support, property rights, or personal rights.” Md. Code Ann., Family Law (“FL”) § 8-101(a). Upon review, a separation agreement is “subject to the same general rules governing other contracts.” Rauch v. McCall, 134 Md. App. 624, 637 (2000), cert. denied, 362 Md. 625 (2001).
Separation agreements that do not demonstrate any blatant injustice are “presumptively valid.” Blum v. Blum, 59 Md. App. 584, 596 (1984) (internal citations omitted). Therefore, “where a contract is plain as to its meaning, there is no room for construction and it must be presumed that the parties meant what they expressed.” Pumphrey v. Pumphrey, 11 Md. App. 287, 290 (1971). Husband argues that due to the presumptive validity given to settlement agreements, the trial court did not have the authority to alter the agreement. He further argues that the existence of the FERS benefits was disclosed to Wife and her acceptance of the partial agreement included a waiver as to her interest in the FERS benefits.7 However, having already concluded that Husband did not disclose the existence of the FERS benefits to Wife, this argument does not have merit.
It is unreasonable to find that a party can waive her interest in property that had not been disclosed to her. Husband is correct in his contention that if parties agree to resolve some of the issues in a case, then the parties have implicitly agreed to waive argument as to the issues covered by the agreement. However, this waiver does not extend to issues that were not known to one of the parties or were not disclosed. We conclude that Wife did not waive her interest in the FERS retirement benefits because it had not been disclosed to her and it was not contemplated in the partial settlement agree-
ment. Instead, it was an issue outside of the agreement and therefore proper for the trial court to adjudicate as one of the remaining issues of the marriage. The trial court properly ruled that the agreement did not include the FERS benefits and there was no agreement that Wife would waive her interest. Finally, we will address Husband’s argument that Wife ratified the agreement by accepting payment in the form of $41,000.00. Husband asserts that Wife ratified the agreement by accepting a payment of $41,000.00 representing one-half of the equity of the marital home. This provision was one aspect of the parties’ resolution of their marriage and constituted part of the agreed upon monetary award that would be paid to Wife. The total monetary award was in the amount of $56,000.00. Husband argues that because Wife has ratified the agreement by accepting the payment she cannot “assert that there was no agreement.” Wife does not contend that there was no partial agreement or seek recission of the parties’ agreement. Instead, Wife asserts that she acted in accordance with the trial court’s ruling and accepted the payment in accordance with the Judgment of Absolute Divorce. Husband cites to various cases that stand for the proposition that a party to the agreement must either accept the agreement in whole or reject in whole. As the Supreme Court of Maryland has stated, “[a party] is not permitted to confirm the settlement by claiming its benefits, and repudiate the authority by which it was effected. [A party] must either adopt or reject it – ratify the whole, or no part thereof.” Smith v. Merritt Sav. & Loan, Inc., 266 Md. 526, 536-37 (1972). This is well settled law within Maryland. However, the factual situation in this case is different than a typical ratification case. As the trial court concluded, the parties’ agreement to resolve certain issues resulting from their marriage was valid and is represented exactly as the parties agreed in the Judgment of Absolute Divorce. The issue of the FERS retirement benefits that arose later at trial is wholly independent from the parties’ agreement. As we discussed supra, the existence of the FERS benefits was not properly disclosed to Wife before their partial agreement and was not contemplated in the partial resolution of the case. Just as Wife did not implicitly waive her interest in the FERS benefits, she did not commit error by accepting the payment. Wife does not seek to set aside the agreement or argue that it was in error. Instead, by accepting the payment of $41,000.00, Wife acted in accordance with the decision of the trial court and the specific decrees of the Judgment of Absolute Divorce. As to the issue of whether Wife ratified the agreement, we hold that Wife properly accepted the payment of $41,000.00 according to the parties’ agreement as to the monetary award.
In conclusion, as to the FERS issue, we affirm the decision of the trial court. Specifically, we conclude that the trial court did not err by finding that FERS was properly pled and the parties’ agreement did not include Husband’s FERS retirement benefits. Therefore, the trial court properly awarded Wife’s marital share of the FERS retirement benefits to her.
II. Circuit Court’s Award of Rehabilitative Alimony
A.
Parties’ Contentions
Husband argues that the trial court lacked the authority to order him to pay rehabilitative alimony to Wife. He posits that Wife failed to include a request for rehabilitative alimony in the operative Second Amended Complaint. In support of this proposition, Husband points this Court to Huntley v. Huntley, 229 Md. App. 484 (2016). Wife responds that her request in the Second Amended Complaint was for “alimony, pendente lite and permanently.”8 She contends that this prayer for relief put Husband on notice of a claim for alimony. Alternatively, Wife argues that her prayer for general relief gave the trial court authority to grant rehabilitative alimony.9
B. Standard of Review
Upon review by the appellate courts, trial courts conducting divorce proceedings are given great deference regarding their findings and judgment. Tracey v. Tracey, 328 Md. 380, 385 (1992). Specifically, an alimony award by the trial court “will not be disturbed upon appellate review unless the trial judge’s discretion was arbitrarily used or the judgment below was clearly wrong.” Id. (citing Brodak v. Brodak, 294 Md. 10, 28-29 (1982)).
C. Analysis
Since the adoption of the Maryland Alimony Act in 1980, alimony may be awarded either for a fixed term, referred to as “rehabilitative alimony” or for an undefined amount of time, referred to as “indefinite alimony”. Walter v. Walter, 181 Md. App. 273, 281 (2008). “Because the purpose of alimony is the ‘rehabilitation of the economically dependent spouse,’ Maryland favors the provision of rehabilitative alimony for a fixed term to assist the dependent spouse in becoming self-supporting.” Kaplan v. Kaplan, 248 Md. App. 358, 371 (2020) (quoting St. Cyr v. St. Cyr, 228 Md. App. 163, 184–85 (2016)).
In determining alimony, the court must look to Md. Code Ann., Fam. Law (“FL”) § 11-106(b), which states:
(b) In making the determination, the court shall consider all the factors necessary for a fair and equitable award, including:
(1) the ability of the party seeking alimony to be wholly or partly self- supporting;
(2) the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment;
(3) the standard of living that the parties established during their marriage;
(4) the duration of the marriage;
(5) the contributions, monetary and nonmonetary, of each party to the well-being of the family;
(6) the circumstances that contributed to the estrangement of the parties;
(7) the age of each party;
(8) the physical and mental condition of each party;
(9) the ability of the party from whom alimony is sought to meet that party's needs while meeting the needs of the party seeking alimony;
(10) any agreement between the parties;
(11) the financial needs and financial resources of each party, including:
(i) all income and assets, including property that does not produce income;
(ii) any award made under §§ 8-205 and 8-208 of this article;
(iii) the nature and amount of the financial obligations of each party; and
(iv) the right of each party to receive retirement benefits; and
(12) whether the award would cause a spouse who is a resident of a related institution as defined in § 19-301 of the Health-General Article and from whom alimony is sought to become eligible for medical assistance earlier than would otherwise occur.
Id. In the case sub judice, after considering all of the factors under FL § 11-106(b), the trial court ruled that Wife was entitled to $1,000.00 per month in rehabilitative alimony for the duration of three years.
In the instant case, the trial court took great care to methodically make findings of fact for each factor under FL § 11-106(b). As for the first factor, the court found that Wife “is unable to [be self-supporting] at this time or any time in the near future.” For factor two, the court ruled that the testimony showed that “one or two years is not enough time for [Wife] to find a job that can pay for her and [the minor child].” The trial court found that the parties had a “disparate” lifestyle during the marriage where Wife gave up luxuries such as vacations while Husband took various trips but overall “money was tight”. The duration of the marriage was 156 months or 13 years. For the fifth factor, the court ruled that Husband earned a substantial income and Wife was the minor child’s primary caregiver and paid most of the household bills. In summary, the court noted that “[s]he ran the household.” The court ruled that the circumstances that contributed to the estrangement of the parties was a lack of intimacy between the parties. At the time of the trial on the merits, both parties were 45 years old. As to factor eight, the court recounted that Husband had a number of ailments that led to him receiving disability, but he continued to work. Whereas “Wife has rheumatoid arthritis, among other things.” The court found that Husband had the ability to meet his own needs and contribute to Wife’s needs as evidenced in his expendable income. The trial court ruled that although the parties reached a partial agreement, they did not agree on alimony.
Next, for the financial needs and resources of each party, the trial court generally noted that “[h]ers are limited” while Husband’s needs and resources were “pretty generous.” Specifically, the court recounted that Wife “doesn’t have many assets” whereas Husband “has the house that is rent bearing.” The trial court also duly considered the monetary award of $56,000 in total, pursuant to the parties’ agreement, and the entitlement of both parties to retirement benefits. Finally, the trial court ruled that factor twelve did not apply. The
trial court ultimately “concluded under the totality of the circumstances given her income, her disabilities, her husband’s income, that $1,000 per month for three years is appropriate.”
At trial, Husband argued that he would be prejudiced, and his due process rights would be violated if the court awarded rehabilitative alimony. He further argued that he was not on notice of a specific request for rehabilitative alimony. Husband argued in the alternative, that if the trial court disagreed with the pleading argument, then Wife was not entitled to rehabilitative alimony. On appeal, Husband frames the issue pursuant to his pleading argument.
After hearing Husband’s argument regarding pleading, the trial court concluded, “[i]t is not my view that this pleading precludes [Wife] from arguing for, asking for, or the Court awarding rehabilitative alimony.” The court continued that “[a]nd if it did, [Husband] would not like which side of the scale I had to come down on, because the disparity is substantial.” The trial court signaled that if given the choice between awarding permanent alimony or no alimony, the court would award permanent alimony to Wife.
In support of the decision to award rehabilitative alimony, the trial court cited to Whittington v. Whittington, 172 Md. App. 317 (2007) and Innerbichler v. Innerbichler, 132 Md. App. 207 (2000). The trial court recounted that “[t]he trial court has broad discretion in awarding alimony, which may include both rehabilitative and indefinite components.” In Whittington, we reviewed an award of indefinite alimony under the unconscionable disparity standard. 172 Md. App. at 340. We noted that a trial court is “not required to award indefinite alimony (or rehabilitative alimony).” Id. at 339. Furthermore, trial courts are empowered to “award no alimony, rehabilitative alimony, or upon a proper finding of unconscionable disparity, indefinite alimony.” Id. at 339-40. We clarified that “the law does not make any of the factors listed in [FL] section 11-106(b) determinative or mandate that they be given special weight. The decision to award alimony and, if so, for what period of time, is fact-intensive and not subject to a formulaic resolution.” Id. at 341. In Whittington, the Court ultimately vacated the trial court’s award of indefinite alimony because the trial court failed to exercise discretion and apply FL § 11-106. Id. at 339. In Innerbichler, we considered two aspects of the trial court’s divorce decree, specifically, the monetary award and the award of indefinite alimony. 132 Md. App. at 214. We ultimately affirmed the trial court’s decision as to both issues. Id. at 248. In reaching that decision, we recited the prevailing caselaw that denotes the broad discretion that trial courts have in determining alimony. Id. at 246. Also, on appeal, the trial court’s determination of alimony is given due deference by the reviewing court. Id.
Next, we will consider Husband’s reliance on Huntley v. Huntley, 229 Md. App. 484 (2016). In Huntley, Ms. Huntley filed a Complaint for Absolute Divorce that sought alimony, a monetary award, and a share of her husband’s retirement benefits. 229 Md. at 486. In Mr. Huntley’s Answer, he denied her entitlement to a monetary award and requested that alimony be denied. Id. Until the onset of trial, Mr. Huntley never filed a claim for a marital share of his wife’s retirement benefits. Id. At trial, the court denied his request for a marital share of Ms.
Huntley’s retirement benefits because he had never included that request in any pleadings. Id. at 486-87. On appeal, we affirmed the trial court’s decision to deny Mr. Huntley’s late request for a share of Ms. Huntley’s retirement benefits. Id. at 490. We reasoned that “the authority of the court to act in any case is still limited by the issues framed by the pleadings.” Id. at 494 (quoting Gatuso v. Gatuso, 16 Md. App. 632, 636 (1973)).
This Court dealt again with the issue of pleading in the context of a divorce proceeding in Lasko v. Lasko, 245 Md. App. 70 (2020). In Lasko, Ms. Lasko requested in her Answer for the trial court to distribute the parties’ marital property and a general request for all further relief allowed by law. 245 Md. App. at 79.10 Mr. Lasko contended that Ms. Lasko failed to make an explicit request for a monetary award and, therefore, the trial court did not have the authority to award it. Id. at 74. On appeal, we held that Ms. Lasko’s Answer “sufficiently set forth a claim for a monetary award under the Family Law Article, and as a result, [Mr. Lasko] was on notice that he was subject to the possibility of the grant of a monetary award”. Id. at 83.
We find that the case sub judice is more akin to Lasko than Huntley. Unlike in Huntley, in this case, Wife did make a request for alimony in her initial Complaint for Absolute Divorce, her Amended Complaint, and in the operative Second Amended Complaint. As the predecessor cases to Huntley and Lasko emphasized, Wife framed the issue of alimony in her pleadings to put Husband on notice that it would be at issue in the case. See Gatuso v. Gatuso, 16 Md. App. 632, 633 (1973) (stating that the court “has no authority, discretionary or otherwise, to rule upon a question not raised as an issue by the pleadings, and of which the parties therefore had neither notice nor an opportunity to be heard”); Ledvinka v. Ledvinka, 154 Md. App. 420, 428 (2003) (holding that the trial court “exceeded its authority in setting aside the conveyance when no cause of action sufficient to put appellant on notice that the property was in dispute was pleaded in this case.”) Throughout every step in the life of the case, Husband was on notice that alimony was at issue. In fact, Husband was well prepared to address the court on the issue of alimony at the divorce trial.11 Furthermore, although not dispositive of the issue, Wife’s general request for relief lends further support to her argument that alimony was properly pled.
Therefore, after applying due deference to the trial court’s decisions on alimony and based on the past precedent of this Court, we hold that the issue of rehabilitative alimony was properly pled. Accordingly, the trial court did not err by awarding rehabilitative alimony to Wife.
III.
Custody
A. Parties’ Contentions
In his opening brief, Husband argues that the trial court improperly concluded that there was a material change in circumstances to warrant a modification of custody. Husband further contends that there was no testimony of any behavior that adversely affected the parties’ minor child. Nevertheless, Husband contends that “[n]otwithstanding the court acknowl-
edging that the issues complained of by [Wife] were resolved and none of which really affected him, the court modified custody and awarded the [Wife] sole legal custody.” In his Reply Brief, Husband “corrects the misstatement that [Wife] was awarded sole legal custody when she was awarded joint legal with tie-breaker authority” and reserves his initial argument that there was no material change in circumstances. Finally, Husband asks this Court to “vacate the award of joint legal custody with tie-breaker.”12
Wife contends that custody is not properly before this Court. Wife argues that the parties have shared custodial rights of their minor child since November 21, 2019. Specifically, Wife argues that the parties entered into a Consent Order that awarded joint legal custody of the minor child. Furthermore, Wife argues that when the parties appeared before the Court for their divorce trial on April 28, 2022, Husband conceded that custody was not at issue for the trial court to determine. Wife asks this Court to uphold the decision of the trial court.
B. Analysis
Before addressing the parties’ arguments on the custody of their minor child, we will first recount the history of the case. Wife filed for Absolute Divorce in 2018 and requested full custody of the minor child. On November 21, 2019, the parties consented to joint legal custody of their minor child, physical custody to Wife, and visitation to Husband. The Consent Order further ordered the Husband participate in an alcohol assessment and that neither party consume alcohol in the presence of the minor child. Approximately one year later, Wife filed a Motion to Modify Custody and Visitation that alleged that Husband was under the influence of alcohol around the minor child in contravention of the Consent Order. Wife requested sole legal custody of the minor child and supervised visitation for Husband. The parties appeared for a hearing on Wife’s Motion to Modify on April 6, 2021. The hearing was not concluded on that date and continued to May 12, 2021. After counsel had a conflict, the hearing was further continued until July 26, 2021. Again, the hearing was not concluded on that date and continued to August 16, 2021.
On that date, after finishing the hearing, the trial court gave a thorough recitation of his findings and determined that there was a material change in circumstances to warrant a
modification in custody. The trial court recited the evidence and testimony from the hearing that documented a contentious relationship between the parties. Specifically, the trial court found that “[Husband] continues to drink around [the minor child]” and ruled that tie- breaking authority goes to Wife. The trial court entered an Order on August 23, 2021, that memorialized its decision and ruled that Wife continued to have primary physical custody and the parties have joint legal custody with tie breaking authority to Wife.
As stated supra, the parties appeared on April 28, 2022, for a hearing on the merits of their divorce. On the first day of that hearing, the parties reached a partial agreement. In the recitation of that agreement, counsel for Wife stated, “[i]t is my understanding that the parties agree that custody has already been resolved by way of the previous Order of Your Honor.” At the conclusion of the agreement, the court asked counsel for Husband, “is that your client’s agreement as what’s read into the record?” Counsel for Husband responded, “[y]es, Your Honor.” During closing argument, counsel for Husband stated, “custody has already been determined.” Following closing argument from both sides, the trial court gave his ruling as to the merits of the parties’ divorce. The court stated that “the custody of [the minor child] is resolved” and later reiterates “custody is settled…[a]ccess has been decided.” At no point over the two-day divorce hearing, did either party argue that custody was not settled or should be modified.
Following the hearing, the trial court entered the Judgment of Absolute Divorce, on May 26, 2022. The trial court ordered that “pursuant to the partial agreement of the parties which was placed on the record on April 28, 2022, custody of the parties’ child was previously resolved in this case by Order dated August 23, 2021 and the same shall remain in full force and effect.” The Judgment of Absolute Divorce makes no further mention of custody.
A review of the record shows that custody was fully litigated by the time of the divorce hearing on April 28, 2022. Furthermore, the parties explicitly agreed that custody was not at issue at the trial on the merits. Therefore, we affirm the trial court’s decision to continue the custodial arrangement as memorialized in the Order of August 23, 2021.
CONCLUSION
Accordingly, we affirm the decision of the trial court.
JUDGMENT OF THE CIRCUIT COURT FOR ST. MARY’S COUNTY AFFIRMED; COSTS TO BE PAID BY THE APPELLANT.
FOOTNOTES
1 Husband identifies the following four questions for appellate review in his brief:
I. Are agreements placed on the record binding on the parties and enforceable?
II. Can a party to a contract ratify a contract by accepting the consideration?
III. Can the court find a martial [sic] change in circumstances and change legal custody, when there is no evidence presented regarding the minor child, or that the parties are unable to reach joint decisions regarding the minor child?
IV. Is it permissible for the court to award a party relief not specifically pled?
2 Husband has two thrift savings plans, one is a civilian plan, while the other is a military plan. According to the terms of the agreement at the time of trial, Husband’s military plan was valued at approximately $15.00. The parties agreed that Wife would receive her one-half interest from the larger of the two accounts.
3 The Judgment of Absolute Divorce, entered on May 26, 2022, ordered:
[T]hat [Wife] be and is hereby awarded fifty (50%) percent of the martial [sic] share of the [Husband]’s federal employee retirement system pension (FERS) on an if, as and when basis. [Wife]’s entitlement shall also include any pre-retirement, post-retirement, death benefit, survivor or other similar benefit available, along with any future cost of living adjustments. [Wife] is likewise granted the full survivor benefit, with such to be borne solely by [Wife]. To the extent [Husband]’s benefit is in any way reduced by the cost of [Wife]’s survivor benefits, [Wife] shall reimburse [Husband] for such benefit costs within fifteen (15) days of evidence of such cost.
4 The documents where Husband claims to have disclosed the FERS retirement benefits are quarterly statements of Husband’s Thrift Savings Plan and a Civilian Leave and Earnings Statement. On the TSP quarterly statement, in small print on the right upper side of the page appears “Retirement Coverage: FERS.” As for the Civilian LES document, item 19 reads, “Cumulative Retirement FERS: 7322.37.” These lines of text are neither conspicuous nor readily apparent without close inspection of the documents.
5 On August 15, 2019, the trial court issued an Order granting Wife’s Motion to Compel and for Sanctions. The court ordered Husband to file “full and complete responses to discovery within seven (7) days.” On September 22, 2021, the trial court granted Wife’s Second Motion to
Compel and for Sanctions and ordered complete discovery responses within ten days.
6 Husband’s Response to the aforementioned interrogatory was “I contend that I have a $50,000.00 interest in the property known as 545 Benforest Drive, Severna Park, Maryland. Maryland monies were used for the repayment of said loan.”
7 Husband cites to Nationwide Mut. Ins. Co. v. Voland, 103 Md. App. 225 (1995) to stand for the proposition that he had no duty to volunteer the existence of the FERS retirement benefits during the parties’ negotiations. Husband’s reliance on Voland is misplaced in the instant case. In Voland, following an automobile accident, the plaintiff filed suit against the defendant-driver. 103 Md. App. at 227. The plaintiff filed an Amended Complaint that named his own insurance carrier, Nationwide, as a defendant for denying his insurance claim. Id. As the case progressed, Voland ultimately settled his claim with the defendant-driver but did not inform his own insurance carrier about the settlement. Id. at 227-28. The plaintiff later settled his own claim against his insurance carrier. Id. at 228. However, Nationwide refused to pay Voland according to their settlement terms after they discovered that he had settled his claims against the defendant-driver without their consent. Id. The Court held that Voland’s failure to disclose his settlement to Nationwide did not constitute misrepresentation or fraud. Id. at 236. This case is plainly distinguishable on the basis that Husband had the duty to disclose the FERS benefits during the discovery process after specific requests by Wife.
8 In Wife’s Second Amended Complaint for Absolute Divorce, Custody, Child Support, Alimony and for further relief, prayer for relief (b) reads in full: “[t]hat Defendant be ordered to pay a reasonable sum of money as alimony, pendente lite and permanently.”
9 In Wife’s Second Amended Complaint for Absolute Divorce, Custody, Child Support, Alimony and for further relief, prayer for relief (l) reads in full: “[t]hat she be granted such other and further relief as the nature of this cause may require.”
10 The specific language that Ms. Lasko used in her Answer is as follows: “[t]hat the Court determine, at the time of the entry of its Judgment, which of the property owned by the parties is marital property and value of the same”. Lasko, 245 Md. App. at 320-21. Ms. Lasko’s general request for relief stated “[t]hat Defendant [Amanda] be granted all relief to which she may be entitled pursuant to the Family Law Article of the Annotated Code of Maryland.” Id.
11 A luxury that Wife did not have concerning the FERS Retirement Benefits at the time of trial.
12 In his initial brief, Husband asked this Court to “vacate the award of sole legal custody.”
In The Court of Special Appeals: Full Text Unreported Opinion
The Appellate Court vacated the Charles County Circuit Court’s order holding father in contempt for withholding his residential address from mother. The parties agreed to not disclose their residential addresses to one another, and that requirement was intentionally stricken from the parenting plan.
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.
contempt petitions on April 11, 2023. Following the hearing, the court delivered an oral opinion finding Father in contempt for failure to provide his residential address. The court ordered that Father could purge the contempt by updating his address with the court.
Father noted a timely appeal.
STANDARD OF REVIEW
We will not disturb an order of contempt “absent an abuse of discretion or a clearly erroneous finding of fact upon which the contempt was imposed.” Kowalczyk v. Bresler, 231 Md. App. 203, 209 (2016) (citation omitted). “But where the order involves an interpretation and application of statutory and case law, we must determine whether the circuit court’s conclusions are ‘legally correct’ under a de novo standard of review.” Id. (citation omitted).
DISCUSSION
Devereaux Fields (“Father”) appeals an order of the Circuit Court for Charles County adjudicating him in contempt for withholding his residential address from Shantae Ness (“Mother”) in violation of the custody and child access consent order entered on October 21, 2022 (“Consent Order”).1
For the reasons set forth below, we vacate the circuit court’s order of contempt.
BACKGROUND
Father and Mother are the parents of one minor child (“Child”). On October 30, 2021, Mother filed a complaint for custody and child support. Father filed an answer and countercomplaint, denying the allegations in the complaint.
The parties agreed upon a joint parenting plan using the Maryland Parenting Plan Tool Form CC-DR-109 (“Parenting Plan”) and submitted the completed Parenting Plan to the court. Page 4 of the Parenting Plan provided contained the following provision regarding the exchange of personal information:
At the merits hearing on October 21, 2022, following voir dire of the parties on the record as to the Parenting Plan, the court entered the Consent Order regarding custody and child access, which incorporated the parties’ agreed-upon Parenting Plan.
On January 12, 2023, Mother filed a petition for contempt, alleging that Father had failed to notify her that he moved to a new residence and failed to provide her with his new address. The parties appeared for a hearing on the child support and
At the contempt hearing, Father’s counsel questioned Mother regarding the terms of the Parenting Plan as follows:
[COUNSEL FOR FATHER]: You had an opportunity to review [the Parenting Plan], right?
[MOTHER]: Yes.
[COUNSEL FOR FATHER]: And you’re aware that the Order actually says that you all will give a mailing and contact address and phone number to the other party, are you not?
[MOTHER]: Yes.
[COUNSEL FOR FATHER]: And you’re aware that it was your insistence that residential be scratched out, right?
[MOTHER]: Yes.
[COUNSEL FOR FATHER]: And you all initialed that and the attorneys initialed that as well, correct?
[MOTHER]:Yes.
[COUNSEL FOR FATHER]: Okay. So it was your intention, was it not, that residential be removed and scratched out, right?
[MOTHER]: It was. * * *
[COUNSEL FOR FATHER]: Okay. And isn’t it true, [Mother], that you became concerned about where [Father] lives because you’re aware that he has a current love interest?
[MOTHER]: No.
On redirect examination Mother testified further:
[COUNSEL FOR MOTHER]: … [W]hat was your motive behind insisting that – residential address[es] not be in the document?
[MOTHER]: I did that for my protection and my family’s protection because . . . we’ve had a domestic violence case and he would still tend to pop up at my residence that he last knew of.
[COUNSEL FOR MOTHER]: . . . Why do you want the address? [MOTHER]: I just want to know where my daughter is in Delaware. Consent orders are agreements between the parties which are endorsed by the court. Chernick v. Chernick, 327 Md. 470, 478 (1992). They share characteristics of both contracts and judicial decrees. Id.; Long v. State, 371 Md. 72, 84-85 (2002). “It is the parties’ agreement that defines the scope of the decree . . . [t]his is equally applicable where the parties entered into an agreement in open court, which under Maryland law is binding upon the parties.” Barnes v. Barnes, 181 Md. App. 390, 416 (2008) (quoting Smith v. Luber, 165 Md. App. 458, 470 (2005)). “The public policy of encouraging settlements is so strong that settlement agreements will not be disturbed even though the parties may discover later that settlement may have been based on a mistake or if one party simply chooses to withdraw its consent to the settlement.” Long, 371 Md. at 85 (citing Chernick, 327 Md. at 481-83).
There was no dispute in this case that the parties agreed to not disclose their residential addresses to one another, and that requirement was intentionally stricken from the Parenting Plan. Indeed, Mother testified at the contempt and child support hearing that the residential address provision was removed from the Parenting Plan at her request. Because the parties had no obligation to share their residential addresses with each other, Father did not violate the Consent Order by failing to notify Mother that he had moved to a new address. Accordingly, the circuit court erred in holding him in contempt for failing to provide his residential address to Mother.
JUDGMENT OF CONTEMPT OF THE CIRCUIT COURT FOR CHARLES COUNTY VACATED. COSTS TO BE PAID
FOOTNOTES
1 Father filed an informal brief pursuant to this Court’s March 9, 2021 Administrative Order permit-
BY APPELLEE.
ting informal briefing in family law cases in which the appellant is a self-represented litigant. See Maryland Rule 8-502(a)(9). Mother did not file a brief.
In The Court of Special Appeals: Full Text Unreported Opinion
The Appellate Court affirmed the Prince George’s County Circuit Court’s award to husband of one half the equity in the parties’ marital home. The record supported a finding that, although the property remained titled in wife’s name, its acquisition was a joint venture, the mortgage payments were primarily made from marital funds and the equity acquired during the marriage was marital property.
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.
mortgage payments. Both parties made monthly transfers into the joint account from their personal checking accounts. Other relevant facts will be included in the discussion of the issues.
DISCUSSION
I.
Wife contends that the court erred in determining that the property was marital under Md. Code, FAM. LAW (“FL”) § 8-201(e)(3)(i) because, according to Wife, she “acquired” the property “before the marriage.” Husband responds that the court did not err in determining that the property was marital and that the court properly exercised its discretion in granting the monetary award representing fifty percent of the equity in the property.3
Appellant, Pamela R. Fields (“Wife”), and appellee, Keith Fields (“Husband”), were divorced in the Circuit Court for Prince George’s County. Wife appeals the court’s monetary award to Husband of one half the equity in the parties’ marital home and $3,000 for attorney’s fees.
Representing herself in this Court, she presents two “issues”1 for our review, which we have rephrased2 as follows:
1. Did the circuit court err in granting the monetary award to Husband?
2. Did the circuit court err in granting Husband’s counsel’s request for attorney’s fees?
For the reasons to follow, we shall affirm the judgment of the circuit court.
BACKGROUND
On June 8, 2012, Wife closed on a home titled in her name in Brandywine, Maryland (“the property”) for $180,000. When she did it, the parties were engaged to be married, and the $1,000 down payment on the property was made by a check drawn from the parties’ joint savings account. Husband testified that the house was purchased in Wife’s name, instead of jointly, to secure a better interest rate because his credit “wasn’t that strong[.]” They married on September 1, 2012. A thirty-year mortgage covered the purchase price.
Sometime in 2015, the parties opened a joint checking account that was used to pay the household bills and the
This Court has described the standard of review for the division of marital property and monetary awards as follows: First, we utilize the “clearly erroneous” standard to the court’s determination of what is, and what is not, marital property because “ordinarily, it is a question of fact as to whether all or a portion of an asset is marital or nonmarital property.” Innerbichler v. Innerbichler, 132 Md. App. 207, 229 (2000); see also Md. Rule 8-131(c). Factual findings that are supported by substantial evidence are not clearly erroneous. Collins v. Collins, 144 Md. App. 395, 409 (2002). Second, as to the court’s decision to grant a monetary award, and the amount thereof, we apply an abuse of discretion standard of review. Gallagher v. Gallagher, 118 Md. App. 567, 576 (1997). Within that context, “we may not substitute our judgment for that of the fact finder, even if we might have reached a different result.” Innerbichler, 132 Md. App. at 230.
Marital property is defined as “property, however titled, acquired by 1 or both parties during the marriage.” FL § 8-201(e)(1). Marital property generally does not include assets “(i) acquired before the marriage; (ii) acquired by inheritance or gift from a third party; (iii) excluded by valid agreement; or (iv) directly traceable to any of these sources.” FL § 8-201(e) (3).
“In determining marital and nonmarital property, Maryland follows the ‘source of funds’ theory[.]” Dave v. Steinmuller, 157 Md. App. 653, 663, cert. denied, 383 Md. 570 (2004). The “source of funds” theory provides:
“when property is acquired by an expenditure of both nonmarital and marital property, the property is char-
acterized as part nonmarital and part marital. Thus, a spouse contributing nonmarital property is entitled to an interest in the property in the ratio of the nonmarital investment to the total nonmarital and marital investment in the property. The remaining property is characterized as marital property and its value is subject to equitable distribution. Thus, the spouse who contributed nonmarital funds, and the marital unit that contributed marital funds each receive a proportionate and fair return on their investment.”
Pope v. Pope, 322 Md. 277, 281-82 (1991) (quoting Harper v. Harper, 294 Md. 54, 80 (1982)).
Applying the source of funds theory in Maryland involves “defin[ing] the term ‘acquired[]’ . . . as the on-going process of making payment for property.” Harper, 294 Md. at 80. Under the “ongoing process” theory, if a couple has a mortgage or deed of trust on their property, each time a payment is made, a bit more equity is acquired in the property—more ‘marital’ property is acquired to the extent that payment of marital funds goes to lessen the indebtedness, and there is an increase in the equity owned by the couple.
Cynthia Callahan & Thomas C. Ries, Fader’s Maryland Family Law § 13-8(e) (7th ed. 2023).
Here, Husband testified and presented evidence that the source of funds used for the mortgage payments was the parties’ joint checking account, which was funded through both parties’ personal checking accounts. He presented documentation reflecting such transfer from his individual checking account. He indicated that he tried to get statements earlier than 2016 but was told that would be “too far back” and that Wife provided no discovery documentation. To be sure, Wife testified that, for the first three years of the marriage, she paid the mortgage out of her “single checking account[,]” but she presented no documentation to support her claims and no evidence of any equity change during that period of time.4 The record thus supports a finding that, although the property remained titled in Wife’s name, its acquisition was a joint venture and the mortgage payments were primarily made from marital funds and that the equity acquired during the marriage was marital property.
For these reasons, we are not persuaded that the circuit court erred or abused its discretion in granting the monetary award to Husband.
II.
Wife claims that the court erred in ordering her to pay Husband $3,000 for attorney’s fees. In May 2023, the court granted in part Husband’s motion to compel discovery and for sanctions under Md. Rule 2-432. In that order, the court ruled “that at the discretion of the trial judge, sanctions may be levied against [Wife] should [Wife] fail to respond within the time
specified” in the order. At trial on June 6, 2023, Wife’s counsel stated as follows:
So, Your Honor, I entered into the matter late.
On May the 17th there was a settlement conference here in the court that could not move forward before [the court] because [Wife] had not produced the documents that were requested of her; i.e., tax documentations, retirements and things of that nature.
* * *
[W]e asked of our client to produce the documents.
Even up until last night I made myself available, even in the wee hours of the night, on my personal phone to present the [Md. Rule] 9-207 [joint statement of marital and non-marital property] as requested by the courts, and I simply got an okay as a response and no further answers.
My client then emailed a joint statement 9-207 filled out without assistance of counsel, and as I told her this morning, I don’t have any documentations to corroborate whether the numbers presented are accurate.
Your Honor, I honestly do not have an answer as to why [Wife] has sought to circumvent the discovery process.
As noted, the court at trial sanctioned Wife by precluding her from testifying about the documents that she failed to provide before trial:
So my ruling at this point is anything that she didn’t provide she cannot testify to here today. I am restricting her testimony because, again, it was asked on more than one occasion. [The court] continued the case so he could get the information. She didn’t provide it.
Under Md. Rule 2-433, if it “finds a failure of discovery,” the court, “after opportunity for hearing, shall require the failing party or the attorney advising the failure to act or both of them to pay the reasonable costs and expenses, including attorneys’ fees, caused by the failure,” unless the court finds “that the failure was substantially justified or that other circumstances make an award of costs and expenses unjust.”
Md. Rule 2- 433(a)(3). In Maryland, the trial judge “is entrusted with the role of administering the discovery rules and, as such, is vested with broad discretion in imposing sanctions when a party fails to comply with the rules.” Att’y Grievance Comm’n of Maryland v. Kreamer, 404 Md. 282, 342 (2008).
Here, the record reflects Wife had an annual income exceeding $87,000 plus overtime and holiday pay, a house with $228,000 in equity, and $3,000 in a bank. Husband’s income was $65,000 annually. The discovery violations caused delays in trial and increased his attorney’s fees. Given Wife’s failure to timely provide discovery in this matter, the record indicates that the court properly exercised its discretion by requiring Wife to pay $3,000 of Husband’s attorney’s fees.
In short, we reject Wife’s contention that the circuit court erred or abused its discretion in granting Husband’s request for attorney’s fees in this case.
JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 As originally phrased, Wife’s issues presented were:
1. The lower court erroneously judged the [former marital property] as mar[it]al property from the judg[]ment on June 26, 2023 . . . and to provide a monetary award 114,000 from the equity in the property.
2. The lower court error in granting attorney fees of 3,000 on the judgment for absolute divorce.
2 Wife was represented by counsel at trial in circuit court.
3 The court’s judgment of absolute divorce incorporated by reference “the reasons stated on the record” by the court “on June 23, 2023[.]” Our review of Wife’s challenges to the monetary award and the award of fees is somewhat constrained because she did not supply the Court with a transcript of that oral opinion. See Md. Rule 8-411(a)(2) (requiring appellants to provide this Court with “a transcription of any portion of any proceeding relevant to the appeal”). Wife did
order an audio recording of the proceedings that took place on June 23, 2023, but it appears that the recording was not made part of the record on appeal. An audio recording of the proceeding, absent a written transcript, does not comply with Md. Rule 8-411. Rather than dismiss for that reason, we believe the otherwise available record is sufficient to review the court’s marital property determination and the award of attorney’s fees. In doing so, we see no reason not to assume that the court knew the law and applied it based on its factual findings and credibility assessments. See Green v. State, 259 Md. App. 341, 361 n.11 (2023) (noting that the circuit court is presumed to know the law and apply it correctly).
4 As a sanction for her failure to produce requested documents prior to that trial date, the court precluded testimony regarding any of those documents. Wife does not appeal that sanction.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Baltimore City Circuit Court’s termination of the mother’s parental rights concerning two of her children. Some of the circuit court’s statutorily required findings are either clearly erroneous or lacking. And the circuit court did not explain how it weighed the evidence to conclude that exceptional circumstances exist sufficient to rebut the presumption favoring the parental relationship.
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.
Mother had untreated mental health issues and experienced chronic homelessness, and her current housing situation was “unstable.” She had “extensive” prior involvement with the Department but had been unable to “ameliorate” the Department’s “safety concerns.” The Department further alleged that the Twins had medical needs which were not being met, and that they were “susceptible to failure to thrive.”
Following a shelter care hearing on January 22, 2020, the court granted temporary custody of the Twins and Half-Brother to the Department, and they were placed in the foster care home of “Mr. H.” and “Ms. H.” Shortly after that, Half-Brother was removed from the foster care home and placed in a different home because of reports that he was “kicking, biting, and pushing” the Twins and other members of the H. household.
Appellant, B.M. (“Mother”), challenges a judgment of the Circuit Court for Baltimore City, sitting as a juvenile court, terminating her parental rights concerning two of her children. For the reasons set forth below, we shall vacate the order terminating Mother’s parental rights and remand for further findings in accordance with this opinion.
BACKGROUND
Mother has four children. She has a daughter born in 2015, a son born in 2017, and male and female twins named Gi. G. and Ga. G. (collectively “the Twins”), who were born in December 2019. The Twins are half-siblings to their older sister and brother, whom we shall call “Half-Sister” and “Half-Brother.” The Twins’ father died before they were born. This appeal is from an order terminating Mother’s parental rights to the Twins.
Shelter Care Order and CINA Stipulation
On January 22, 2020, the Baltimore City Department of Social Services (“Department”) filed a Petition for Shelter Care,1 seeking temporary custody of the Twins and Half-Brother.2 In support of the petition, the Department alleged that in October 2019, while pregnant with the Twins, Mother was observed sleeping outside with Half-Brother and begging for food. She refused to go to a shelter at that time. When the Twins were born, one suffered from low blood sugar and struggled to gain weight. The Twins were “not properly fed” despite receiving assistance from the hospital and the Department.
On October 15, 2020, the court held an adjudication and disposition hearing during which the parties stipulated to certain facts and agreed to the disposition. Based on the parties’ agreement, the court found the children to be CINA (“Children in Need of Assistance”)3 and placed them in the care and custody of the Department.
Permanency Plan for Placement with Relative
On February 8, 2021, the Twins and Half-Brother were placed in the home of their maternal great aunt (“Great Aunt”) at Mother’s request. At a permanency planning review hearing on March 22, 2021, the parties stipulated that (1) the children should remain in the custody of the Department; (2) Mother was not working with the Department toward reunification; (3) Mother wanted Great Aunt to have custody and guardianship of the children; and (4) the children were “doing well” with Great Aunt. Following the hearing, the court found the stipulated facts to be sustained. With the parties’ agreement, the court ordered that the permanency plan be changed from reunification with Mother to placement with a relative for custody and guardianship.
In April 2021, after the Twins and Half-Brother had been in Great Aunt’s custody for about two months, Great Aunt requested that they be removed. According to Department notes, Great Aunt was “no longer willing to be a resource” “[d]ue to the behaviors of [Half-Brother] and lack of assistance from extended family members[.]” The Twins were placed back in the foster home of Mr. and Ms. H. Half-Brother went to a different foster care home.
At a review hearing on May 13, 2021, the parties stipulated that the children were “doing well in their foster care
placements.” The parties also stipulated that the Department had made reasonable efforts to accomplish the permanency plan of placement with a relative for custody and guardianship. Consistent with the parties’ joint recommendation, the court ordered that the permanency plan remain unchanged.
In various Department notes, the caseworkers assigned to the Twins’ case expressed that while the Twins’ current plan was custody and guardianship by a relative, no relatives were willing to provide care; the previous relative, Great Aunt, had “changed her mind.” Accordingly, the Department intended to request that the Twins’ plan be changed to custody and guardianship/adoption by a non-relative.
On March 3, 2022, during a phone call with the caseworker, Mother asked that the Twins be placed with Mother’s grandmother (“Great Grandmother”), who had just moved into a four-bedroom townhouse.4 A caseworker performed a health assessment of Great Grandmother’s new home the same day and found it to be appropriate. Later that month, the Department held a Family Involvement Meeting (“FIM”)5 to discuss the potential placement of the Twins with Great Grandmother. But counsel for the Twins did not agree to move the Twins.
Twins’ Permanency Plan Changed to Placement with Non-Relative
At the next review hearing, which began on June 13, 2022, and was continued to and concluded on August 1, 2022, the Twins’ permanency plan was changed, over Mother’s objection, from placement with a relative to placement with a non-relative concurrent with placement with a non-relative for adoption. Half-Brother’s permanency plan continued to be placement with a relative for custody and guardianship, with the court urging the Department to achieve placement with Great Grandmother.
In its written order, the court noted that while Great Grandmother had been cleared as a resource, the Department had the following concerns: (1) the “aggressive behavior of [Half-Brother] toward [the Twins], were they to live in the same home”; (2) because the Twins had not had “significant contact” with Great Grandmother or Half-Brother during the pendency of the CINA case, the Department “would need to see several visits that demonstrate compatibility of the arrangement[;]” and (3) the Department had concerns that Mother would be living with Great Grandmother because Mother’s name had been included on the application for Great Grandmother’s residence.
The court added that the Twins had been living with Mr. and Ms. H. since they were six weeks old, except for a brief period when they were placed with Great Aunt. Mr. and Ms. H. were willing to receive custody/guardianship of the Twins and perhaps adopt them. The court ordered that the permanency plan be changed to placement with a non-relative for custody and guardianship concurrent with placement for a non-relative for adoption. Counsel for Mother did not dispute that the Department had made reasonable efforts to place the Twins with a relative.
Termination of Parental Rights
On January 5, 2023, the Department filed a petition seeking termination of Mother’s parental rights and granting guardianship of the Twins to the Department, with the right to consent to adoption or long-term care short of adoption. The court held a contested hearing (“TPR hearing”) over six days: July 24, 2023; July 25, 2023;6 July 31, 2023; August 1, 2023; August 10, 2023; and August 30, 2023.
The Twins were three years old at the time of the hearing. The court heard testimony from two Department caseworkers assigned to the case, Mother, Ms. H., and Great Grandmother. The court admitted the record in the CINA case, caseworker notes from the Department’s file, and medical records of Mother and the Twins. The following summarizes the relevant evidence introduced at the hearing.
Department Witnesses
The Department called two caseworkers who had been assigned to the case. Pensee Saiyard-Tambe was the assigned caseworker from January 22, 2020, to October 2020. Yolanda Gamble was assigned to the case in December 2020 and remained the assigned caseworker up through and including the hearing.
When Ms. Saiyard-Tambe handled the case, Mother missed appointments to discuss and sign a service agreement and did not attend the planned FIMs. After Ms. Gamble took over the case, Mother still had not signed the service agreement and missed two other scheduled FIMs. The evidence further established that it was difficult for the caseworkers to contact Mother. Mother communicated with the Department primarily through her attorney.
The Department made efforts to facilitate visits between Mother and the Twins. After the shelter care hearing in January 2020, the Department scheduled a visit for February 6, 2020, which was cancelled because the caseworker was unavailable. Three more visits were scheduled in February 2020. The first was on February 14 when Mother appeared. The next scheduled visit on February 18 resulted in the Department and the children waiting 35 minutes for Mother to show up. Since Mother was late and had not contacted the Department, the children were sent home. At the next scheduled visit on February 25, Mother did not show up.
The Department scheduled a visit for March 17, 2020, but it was cancelled because of the COVID-19 pandemic. Between March and September 2020, Mother was offered weekly visitation via video call because of the ongoing pandemic. Mother told the caseworker that she did not have time to participate in virtual visits.
In-person visits resumed in September 2020. The caseworker notes indicate that the caseworker contacted Mother in October 2020 to schedule visits with the children, but the visits did not occur. Mother told the caseworker that she did not understand why she had to visit the children when, according to Mother, they were going to be placed with Great Aunt.
Between December 2020 and August 2023, Mother contacted the Department approximately six times. To the
Department’s knowledge, Mother never sent cards or gifts to the Twins and provided no financial support for their care.
The Department investigated three relative placement resources for the Twins: Mother’s mother (“Grandmother”), Great Aunt, and Great Grandmother. The Department’s investigation revealed that Grandmother had previous involvement with Child Protective Services (“CPS”) for neglect. Grandmother was asked to provide more information, which may have “restored” her as a possible placement for the Twins, but she did not respond. Great Grandmother was cleared personally as a placement resource in 2020, but her residence at the time did not have adequate room for the Twins.
As mentioned, on February 8, 2021, the Twins and Half-Brother were placed with Great Aunt. The caseworker’s note indicated that at a monthly home visit on March 23, 2021, Great Aunt advised the Department that Mother had visited the children twice, each visit lasting about an hour. Great Aunt had reported that Mother became “irritated with the [T]wins easily and does not have the patience for them.”
At Mother’s request, the Twins and Half-Brother were removed from Great Aunt’s home in April 2021. According to the Department, Great Aunt was not able to handle the “problematic” behavior of Half-Brother, who was “fighting with the [T]wins” and was “not listening.” The Twins were returned to the home of Mr. and Ms. H. while Half-Brother went to a different foster home. Ms. Gamble testified that the Twins were “happy” to be returned to the H. home and reacted “fine” to leaving Great Aunt’s house.
In March 2022, Great Grandmother advised the Department that she had recently moved to a larger home to be considered a placement resource for the Twins and HalfBrother. When asked how she would manage Half-Brother’s aggressive behavior toward the Twins, Great Grandmother said she had never observed such behavior but felt she could handle it.
Great Grandmother participated in three Department-facilitated visits with the Twins in 2022. Mother accompanied Great Grandmother to a visit on September 16, 2022. Great Aunt, Half-Sister, and Half-Brother were also present. The caseworker’s notes indicate that it was Mother’s first visit with the Twins in two years. Despite the family being half an hour late for the visit, the visit “went well[.]”
Half-Brother was eventually placed with Great Grandmother at the beginning of 2023. The Twins were not placed with Great Grandmother because the Department was concerned about the ability of Half-Brother to “interact with [the Twins] without incident.”
According to the Department, Mr. and Ms. H. take “excellent care” of the Twins, and there were no concerns about their health and well-being. The Twins have a good relationship with their foster parents and siblings.
Mother’s Testimony
Mother gave her present address and said she had lived there for about a year. She said that before that time, she lived in an apartment with the Twins’ father (“Father”). After
Father died, Mother was forced to move out because she was not on the lease.
Mother testified that no one from the Department “kept in contact and [she] didn’t keep in contact either.” She denied having ever been invited to a family meeting at the Department. She said that she had the caseworker’s phone number but that “no one answers” when she calls. When asked when she had last called the caseworker, she contradicted her earlier testimony and said that she had not called the caseworker because she did not have their number. Mother claimed that the Department switched caseworkers “[e]very other month[,]” and said that she “can’t keep up with everybody.”
Mother testified that she calls the Twins “all the time.” She had last spoken to them about a week before trial via a FaceTime call facilitated by Ms. H. The last time Mother visited them was about a year before trial (apparently, referring to September 16, 2022) in a “group visit” for about 30 minutes.
Mother testified that during the time the Twins were placed with Great Aunt, she saw the Twins “a lot[.]” Mother explained that Great Aunt “gave [the children] back because she had no help.” Mother testified that she helped “a lot” by giving Great Aunt money to spend on the children, but Great Aunt ended up spending the money on herself.
Mother understood that she could participate in visits with the Twins through the Department but said that each time she made a request to the Department, nothing happened, “unless [the Department] want[ed] it to happen.” She said her attorney had called the Department to arrange for a visit, but the Department “want[ed] to do it when they want[ed.]” Mother said she asked her attorney to request the court’s intervention to schedule visits, but “nobody did [any] thing.”
Mother conceded that she did not have a bond with the Twins. She blamed the lack of a bond on the Department for taking the Twins from her and not allowing her to visit. Mother told the court that she wanted the Twins to be placed with Great Grandmother, who also had custody of Half-Brother and Half-Sister. Mother described the sibling relationships as “perfect[.]” Mother stated she had no intention of living in Great Grandmother’s home.
Foster Mother’s Testimony
The Twins’ foster mother, Ms. H., testified that the Twins have been in her care since January 2020, except for two months in 2021, when they were placed with Great Aunt. Ms. H. and Mr. H. have four children who live at home. The Twins call their foster parents “Mom” and “Dad.” They attend daycare during the day and engage in activities such as ballet and soccer. They participate in family outings and vacations with the rest of the H. family.
Ms. H. testified that when the Twins were younger, Mother called “a couple of times” and asked to talk to them. When Mother did not have a phone, she contacted Ms. H. through Facebook. According to the caseworker’s notes in 2021, Ms. H. advised that Mother had “facetimed” with the children “a few times[.]” In addition, Mother contacted Ms. H. through Facebook three times. On one such occasion, Mother asked to speak with the Twins and engaged in a brief video chat
with them. She then asked Ms. H. for money. On the other two occasions, Mother only asked Ms. H. for money.
Ms. H. testified that in 2022, Mother contacted her about the Twins five or six times. In 2023, Mother contacted Ms. H. about the Twins two or three times, with the last contact in April 2023 through Facebook.
Great Grandmother’s Testimony
Great Grandmother testified that she stepped forward as a potential placement for the Twins and Half-Brother when they were first taken into care in 2020. At that time, she was told she needed a larger home. She moved into a larger house in February 2022 and was prepared to have the Twins placed with her. Great Grandmother had participated in three visits with the Twins since they were removed from Great Aunt’s care in April 2021.
When Great Aunt had custody of the Twins and Half-Brother in 2021, Great Grandmother saw them every weekend. During those visits, she did not observe Half- Brother behaving aggressively toward the Twins. On cross-examination, Great Grandmother testified that Half-Brother got into trouble at school for hitting the teacher.
He was also removed from summer camp because he hit or “tapped” a teacher.
Court’s Ruling
The court terminated Mother’s parental rights. In a written opinion, the court summarized the procedural history and made factual findings upon considering the factors listed in Maryland Code (1984, 2019 Repl. Vol.), § 5-323(d)(1)-(4) of the Family Law Article (“FL”). The findings under each statutory factor are summarized as follows:
FL § 5-323(d)(1)(i): The court found that a “myriad of services” were offered to Mother, including access to food, baby and household supplies, education regarding “proper feeding techniques for premature infants[,]” and mental health services. The court found that the services were “not utilized or accessed” by Mother.
FL § 5-323(d)(1)(ii): The court found that the Department made meaningful efforts to facilitate reunification between Mother and the Twins. These efforts included attempts to place the Twins with relatives. But the court found that Mother’s “repeated failures to maintain consistent contact with the agency both thwarted these efforts and delayed reunification efforts.” The court further found that Mother had not made herself available for the reunification efforts in well over two years.
The court recounted Mother’s failure to avail herself of Department-facilitated visits with the Twins. It found that “[a] fter placing [the Twins] in shelter care on January 22, 2020, a visit was scheduled for February 6, 2020. This visit was cancelled due to Mother running late. Another visit occurred on February 14, 2020, the first and only complete visit between Mother and [the Twins]. On February 18, 2020, “a scheduled visit was again canceled because Mother was again late.”
It further found that “[d]uring the COVID-19 pandemic, [the Department] offered virtual visits from March 2020 until September 2020, but Mother indicated that she had no time
to attend.”
“In September 2020, [the Department] notified Mother that in-person visits could occur, but Mother did not see [the Twins] until September 2022, almost two years after the lifting of restrictions on in-person visits.” Nor did Mother participate in the FIMs. Contrary to Mother’s assertion that the Department failed to seek placement with relatives as required, the court found that it did seek such placement. The Department conducted placement investigations of Great Aunt and Great Grandmother. The court found that placement with Great Aunt failed because she did not receive anticipated support from the family and did not request support from the Department. The court noted that the Department had concerns about Mother possibly living with Great Grandmother. Although Mother did not plan to live in the home, Half-Brother’s behavior “continued to be a concern because he had previously been placed in a separate foster home from [the Twins] because of his aggression towards them. As a result, [the Twins] could not be placed with [GreatGrandmother].”
FL § 5-323(d)(1)(iii): “Neither party offered or presented a social services agreement, and therefore, the [c]ourt f[ound] that Mother never entered into a service agreement with [the Department].”
FL § 5-323(d)(2)(i): The court found that Mother had not been in regular contact with the Twins. It found that “over the course of three years, Mother successfully participated in one visit . . . which was originally scheduled for only [Great Grandmother] because of a lack of participation by Mother.” It further found that Mother “failed to make contact or ask to see” the Twins despite having the foster family’s contact information and the ability to reach Ms. H. on Facebook. In addition, Mother had “consistently failed to attend family involvement meetings.”
FL
§ 5-323(d)(2)(ii): The court found that there was “no evidence that Mother ha[d] made any meaningful financial contributions to the support and care of [the Twins].”
FL
§ 5-323(d)(2)(iii): The court did not find this factor relevant as no party alleged the presence of any disability that would make Mother consistently unable to care for the Twins’ immediate or ongoing physical or psychological needs for long periods.
FL
§ 5-323(d)(2)(iv): The court noted that Mother did not want custody of the Twins as “evidenced by her behavior throughout the hearing, her failure to seek mental health services, and her failure to secure consistent housing. Mother consistently arrived late for court hearings and appeared disinterested, falling asleep during several court proceedings.”
FL
§ 5-323(d)(3)(i): The court found that there was no evidence of abuse or neglect.
FL
§ 5-323(d)(3)(ii): The court did not find this factor relevant as neither Mother nor the Twins tested positive for a drug as evidenced by a toxicology test.
FL
§ 5-323(d)(3)(iii): The court found that Mother “failed to properly nourish” the Twins before they were removed from her care, despite being offered assistance through the Department and the hospital. Based on this finding, the court found that Mother subjected the Twins to “the potential of chronic neglect.”
FL § 5-323(d)(3)(iv): The court found no evidence that Mother had been convicted of any crimes listed under the statute.
FL § 5-323(d)(3)(v): The court found no evidence that Mother had lost the rights to any of her other children.
FL § 5-323(d)(4)(i): The court found that the Twins “do not have a meaningful tie with Mother. Mother has not been in contact with [the Twins] in over two years and ceased FaceTime calls with [them] in 2020.” The court further found that the Twins had lived apart from Half-Brother for almost all their lives, except for the two months they were placed with Great Aunt. The court found that the Twins “have virtually no contact with [Half-Brother].” By contrast, the court found that the Twins had “grown very attached” to the H. family.
FL § 5-323(d)(4)(ii): The court found that the Twins have “adjusted extremely well to their current community, home, and placement” with Mr. and Ms. H. The court found that the Twins had “strong attachments” with Mr. and Ms. H., with whom they had lived with for all but two months of their lives. The court noted that the Twins refer to the H.’s as “Daddy” and “Mom,” and that they were “bonded with” the H.’s four children.
FL § 5-323(d)(4)(iii): The court found that “given the limited contact [the Twins] have had with Mother since birth, it is extraordinarily unlikely” that they would have “strong feelings about the severance of the parent-child relationship. Mother wants [the Twins] to be raised by [Great Grandmother]. There is no relationship between [the Twins] and Mother.”
FL § 5-323(d)(4)(iv): The court found that “terminating Mother’s rights would not have a meaningfully negative impact on [the Twins’] well-being.” The court noted that the Twins had never lived with Mother, and the H.’s home is the only one that the Twins have ever known. It found that Mother had “never been a significant source of support for [the Twins], financial or otherwise.” Accordingly, the court found that “the likely impact of terminating parental rights is beneficial to the [Twins] well-being.”
After considering each factor, the court found that “exceptional circumstances exist to overcome the presumption that [the Twins’] best interest [is] served by continuance of the parental relationship.”
We will include additional facts in our discussion of the issues.
STANDARD OF REVIEW
When reviewing a juvenile court’s decision to terminate parental rights, “Maryland appellate courts apply three different but interrelated standards of review[.]” In re Adoption/ Guardianship of C.E., 464 Md. 26, 47 (2019) (citation omitted). First, the juvenile court’s factual findings are reviewed for clear error. In re Adoption/Guardianship of Amber R., 417 Md. 701, 708 (2011). In evaluating the court’s findings of fact, we must give “the greatest respect” to the court’s opportunity to view and assess witness testimony and evidence. Id. at 719. “A trial court’s findings are ‘not clearly erroneous if there is competent or material evidence in the record to
support the court’s conclusion.’” Azizova v. Suleymanov, 243 Md. App. 340, 372 (2019) (citation omitted).
Second, we determine “without deference” whether the court erred as a matter of law. In re Adoption/Guardianship of H.W., 460 Md. 201, 214 (2018). If error is found, “further proceedings are ordinarily required unless the error is harmless.” Id.
Finally, we evaluate the court’s ultimate decision for abuse of discretion. Id. A decision will be reversed for abuse of discretion only if it is “well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.” In re Yve S., 373 Md. 551, 583–84 (2003) (citation omitted).
DISCUSSION
“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) (citation omitted). Although “[t]he law presumes that a child’s best interests are served by maintaining a parental relationship between the child and the child’s parents,” the presumption may be overcome if the Department establishes, by clear and convincing evidence, (1) “that the parent is unfit[,]” or (2) “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).
Here, the court terminated Mother’s parental rights upon a finding of exceptional circumstances. “The exceptional circumstances alternative is meant to cover situations . . . in which a child’s transcendent best interests are not served by continuing a relationship with a parent who might not be clearly and convincingly unfit.” In re Adoption of K’Amora K., 218 Md. App. 287, 310 (2014) (footnote omitted). “[E] xceptional circumstances can exist where a parent’s behavior might not necessarily rise to the level of unfitness, but nonetheless contributes to a broader picture that could justify termination[.]” Id. at 306 (emphasis deleted).
To determine whether termination of parental rights is in the child’s best interest, the court must consider the statutory factors set forth in FL § 5-323(d)(1)-(4). C.E., 464 Md. at 50. The statute is divided into four subparagraphs of factors that the court must assess in evaluating exceptional circumstances that would suffice to rebut the presumption for continuing the parental relationship and justify the termination of that relationship. Id. at 50-51. In pertinent part, FL § 5-323(d) 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 * * *
(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]n cases where parental rights are terminated, it is important that each factor be addressed specifically not only to demonstrate that all factors were considered but also to provide a record for review of this drastic measure.” In re Adoption/Guardianship of C.A. and D.A., 234 Md. App. 30, 48-49 (2017) (citation omitted). “[T]he court must weigh all of the statutory factors together, without presumptively giving one factor more weight than another.” In re Adoption/ Guardianship of Jasmine D., 217 Md. App. 718, 737 (2014). While not every statutory factor may apply or be found in every case, id., the court “must work through the statutory factors in detail . . . and explain with particularity how the evidence satisfied them and how the court weighed them[.]” K’Amora K., 218 Md. App. at 304. “So important are these statutory considerations that, on review, we cannot be left to speculate as to whether the trial court has fulfilled its obligations Indeed, in considering each factor under [FL § 5-323], the court must even make findings of ‘the non-existence of facts where appropriate[.]’” In re Adoption/Guardianship No. 95195062/CAD in Cir. Ct. for Balt. City, 116 Md. App. 443, 457 (1997) (citation omitted).
The court must further “determine expressly whether those findings suffice either to show an unfitness . . . or to constitute an exceptional circumstance that would make a continuation of the parental relationship detrimental to the best interest of the child[.]” In re Adoption of Ta’Niya C., 417 Md. 90, 102 (2010) (citation omitted).
Mother contends that the court’s order terminating her parental rights to the Twins must be reversed because (1) some of the court’s findings under FL § 5-323(d) were clearly erroneous, and (2) the court failed to articulate why the findings constituted “exceptional circumstances” that would make continuing the parental relationship detrimental to the children’s best interests. In significant part, we agree.
We shall vacate the court’s judgment and remand for further findings for two reasons. First, some of the court’s statutorily required findings are either clearly erroneous or lacking. Second, the court did not explain how it weighed the evidence to conclude that exceptional circumstances exist sufficient to rebut the presumption favoring the parental relationship.
I.
FACTUAL FINDINGS
Preliminarily, Mother challenges two findings by the court regarding the TPR hearing. She claims that these erroneous findings show that the court viewed the case through “a truncated and distorted lens.” First, she claims that the court erroneously stated that the TPR hearing occurred over eight months. In its written opinion, the court appears to say that the TPR proceeding took place during “several hearings occurring over the course of approximately eight months, with specific hearing dates as follows: January 24, 2023; Jan-
uary 25, 2023; January 31, 2023; August 1, 2023; August 10, 2023; and August 30, 2023.” Apparently, the court confused “January” for “July” (when the TPR hearing began) and calculated eight months from January instead of July. This de minimis error was inconsequential to the court’s decision to terminate Mother’s parental rights.
Second, Mother claims that the court erred in finding that she “consistently arrived late for court hearings and appeared disinterested, falling asleep during several of the proceedings.”7 We perceive no error. On the first day of the hearing (July 24, 2023), Mother said she did not want to “do this anymore” and wanted to leave. The court noted that Mother “[c] learly doesn’t want to be here.” At another point, the court noted that Mother had been asleep for about 20 minutes. On the fourth day of the hearing (August 1, 2023), Mother attempted to leave the courtroom during Ms. Gamble’s testimony. In an outburst, Mother accused Ms. Gamble of “f***ing lying” and said that she wanted to leave. Ultimately, Mother decided to stay. When the court asked Mother if she would “adhere to the rules of this courtroom[,]” Mother responded, “I don’t care. Can we just go? Hurry up. I got to go. My kids and my grandmother [are] out there . . . . I just said okay, I don’t care. Can we move on?” On the last day of the hearing (August 30, 2023), when the parties were scheduled to give closing statements, Mother showed up about an hour late, purportedly because of transportation issues. Although the record does not reflect other instances of Mother’s late arrivals, disinterest, or sleeping, we defer to the court’s findings on the issue.
We now turn to Mother’s claims of error regarding various statutory factors under FL § 5-323(d).
Factor (d)(1)(ii)
Mother claims that the court made various errors under factor (d)(1)(ii)—the extent, nature, and timeliness of services offered by a local department to facilitate reunion of the child and parent. First, she argues that the court erred in finding that she was late to two pre-pandemic visits, resulting in their cancellation when it was only one. We agree. Ms. Saiyard-Tambe’s testimony established that four visits were scheduled in February 2020. The first visit on February 6 had to be cancelled because the caseworker could not attend. The other three visits were scheduled on February 14, 18, and 25. The visit took place as planned on February 14; Mother was late to the February 18 visit, resulting in its cancellation; and Mother did not show up on February 25. The court clearly erred in finding that the February 6 visit “was cancelled due to Mother running late” and that the visit scheduled on February 18, 2020, was cancelled because Mother was “again late.” The evidence established that Mother’s lateness caused only one of the February scheduled visits to be cancelled. On remand, the court shall issue a corrected finding.
Second, Mother claims that the court erred in finding that Mother’s “first and complete visit” with the Twins occurred on February 14, 2020, and that she did not see the Twins again until September 2022. This is because the evidence established that Mother saw the Twins while they were in Great
Aunt’s custody in early 2021. We find no error here. This factor relates to the services offered by the Department to facilitate reunion. As we understand the court’s written opinion, these findings relate to visits facilitated by the Department for which Mother appeared.
Third, Mother contends that the court erred by finding that she “thwarted” “attempts to place [the Twins] with relatives” by “repeated failures” to maintain consistent contact with the Department. We question whether the court’s statement should be interpreted this way. Mother bases her interpretation on the introductory paragraph of the section in the court’s written opinion that assessed factor (d)(1)(ii): The [c]ourt finds that [the Department] made meaningful efforts to facilitate reunification between Mother and [the Twins]. These efforts included attempts to place [the Twins] with relatives. Despite Mother’s argument to the contrary, her repeated failures to maintain consistent contact with the agency both thwarted these efforts and delayed reunification efforts.
The court then recounted Mother’s failure to make herself available for Department- facilitated visits and FIMs. Separately, the court summarized the Department’s efforts to place the Twins with relatives and why placement with the relatives did not succeed. These reasons were unrelated to Mother’s failure to maintain contact with the Department. When considering the entire context, it seems that the court associated Mother’s lack of consistent contact with the Department with her failure to participate in Department-facilitated visitation and FIMs rather than with the Department’s attempts to place the Twins with relatives. On remand, the court shall clarify its finding in this regard.
Fourth, Mother contends that the court “gave insufficient consideration” to the “Department’s efforts vel non,” to place the Twins with Great Grandmother. According to Mother, this was “one of the central issues” during the TPR hearing. Mother disputes that the Department made adequate or reasonable efforts to place the Twins with a relative. She suggests that the Department had already decided to place the Twins with a non-relative soon after they were removed from Great Aunt’s custody in April 2021, despite the availability of Great Grandmother as a potential resource. We disagree.
The court adequately considered the Department’s efforts to place the Twins with Great Grandmother and other relatives and detailed these efforts in its written opinion. It explained that the Department initially advocated for the placement of the children in Great Aunt’s home, and the Twins were, in fact, placed there. Because of this placement, the court changed the permanency plan to placement with a relative. But the placement with Great Aunt failed and the children had to be removed from her home. The court explained that although Great Grandmother was cleared as a resource, the Twins could not be placed there with Half-Brother because of “his aggression towards them.” The court adequately considered the Department’s efforts to place the Twins with Grandmother and did not clearly err in finding that its efforts to place the Twins with relatives were sufficient.
Factor (d)(2)(ii)
Under factor (d)(2)(ii)—the parent’s contribution to a reasonable part of the child’s care and support—Mother claims that the court erred in two ways. First, Mother asserts that, in finding no evidence that she made “meaningful contributions” to the Twins’ support and care, the court ignored her testimony that she tried to support Great Aunt. We disagree. Although Mother testified that she gave an unspecified amount of money to Great Aunt during the brief period the children were in her care, the court was free to disregard Mother’s testimony, and, in any event, there was no evidence that the amount of the contribution was “meaningful.”
Second, Mother argues that the court should not have given this factor any weight, because the court made no finding that she was financially able to provide support. The statute requires the court to consider “the parent’s contribution to a reasonable part of the child’s care and support, if the parent is financially able to do so[.]” FL § 5-323(d)(2)(ii). Although it is unclear to what extent the court relied on this factor in reaching its conclusion, on remand, if the court finds this factor applies, the court shall determine whether Mother is financially able to contribute to the care and support of the Twins.
Factor (d)(3)(iii)
Under factor (d)(3)(iii)—whether the parent subjected the child to chronic abuse, chronic and life-threatening neglect, sexual abuse, or torture—Mother argues that the court erred in finding that Mother subjected the Twins to the “potential of chronic neglect” based on her failure to properly feed one of the Twins when he was an infant. She asserts that the appropriate statutory factor to be considered is not “potential chronic neglect” but rather “chronic and life-threatening neglect[.]” FL § 5-323(d)(3)(iii). Aside from the statutory language, she argues that her past conduct does not inform how Mother would treat the child now.
We agree that the statute speaks in terms of “chronic and life-threatening neglect,” not “potential chronic neglect.” On remand, the court shall reassess this factor in terms of the language used in the statute. As to Mother’s point about the court’s consideration of past conduct, “[i]t has long been established that a parent’s past conduct is relevant to a consideration of the parent’s future conduct.” In re Adriana T., 208 Md. App. 545, 570 (2012).
Factor (d)(4)(i)
Under factor (d)(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—Mother argues that (1) the court “undervalued” the Twins’ ties to their family and overvalued ties to the foster caregivers; (2) the court incorrectly found that the Twins “have had virtually no contact with [Half-Brother]”; and (3) the court did not consider whether the Twins had feelings toward family members other than Mother and Half-Brother, including Great Grandmother and Half-Sister. For the most part, we agree.
Part of the (4)(i) factor concerns ties to the child’s siblings. While the court did not err in finding that the Twins “have had virtually no contact with [Half-Brother,]” the finding did not address the Twins’ “emotional ties with and feelings toward” the Half- Brother. A caseworker’s note entered in February 2021, when the three were in Great Aunt’s custody, indicated they were “reunited and very happy together.” Another note entered in December 2021 showed that the three visited and “were having fun playing and talking together” and that Half-Brother “hugged his sibling a lot during the visit.” Great Grandmother testified that she observed no fighting between the Twins and Half-Brother. Other evidence, however, established that Half-Brother was removed from the foster care home and placed in a different home because of reports that he was “kicking, biting, and pushing” the Twins. The court did not resolve the conflicting evidence of the Twins’ relationship with Half-Brother.
Nor did the court mention the Twins’ relationship with Half-Sister. Mother testified that Half-Brother and the Twins had a “perfect relationship. Just like their sister do[es.]” A caseworker’s note about the family group visit with the Twins on September 16, 2022, indicated that Half-Sister and Half-Brother were present and that the visit “went well[.]” Great Grandmother testified about other visits the Twins had with their half-siblings, noting that those visits were “nice. I got snacks and juice. We played. They all three played . . . including their sister. They all played. They had fun.” Despite the evidence, the court did not make any findings about the Twins’ emotional ties to Half-Sister.
Similarly, the court made no findings about the last part of the (4)(i) factor concerning ties to “others who may affect the child’s best interests significantly.” While the court did not err in its findings about the Twins’ emotional ties to the H. family, it did not appear to consider other persons who may significantly affect their best interests. Mother suggests that Great Grandmother is one such person who may significantly affect the Twins’ best interest and should have been considered under this factor. On remand, the court shall consider whether persons other than Mother, the half-siblings, and the H. family, may significantly affect the Twins’ best interest. Even if the court concludes there are no other such persons, it still must make findings of “the non-existence of facts where appropriate[.]” In re Adoption/Guardianship No. 95195062/ CAD in Cir. Ct. for Balt. City, 116 Md. App. at 457.
Factors (d)(4)(iii) and (iv)
Finally, Mother challenges the court’s findings under factors (d)(4)(iii) (the child’s feelings about the severance of the parent-child relationship) and (d)(4)(iv) (the likely impact of terminating parental rights on the child’s well-being). Mother claims that the court engaged in “pure speculation” in finding that the Twins were not likely to have strong feelings about the severance of the parent-child relationship and that terminating Mother’s parental rights would not have a meaningfully negative impact on their well-being. We disagree.
The evidence established that the Twins were only one month old when they were taken into care, and Mother had seen them only a handful of times in the intervening three and
a half years. Mother also acknowledged during her testimony that she had no bond with the Twins. Thus, the court’s findings under these two factors were supported by competent and material evidence and were not clearly erroneous.
II.
EXCEPTIONAL CIRCUMSTANCES
Mother contends that the court erred in failing to explain how its findings constituted exceptional circumstances that would make the continuation of the parental relationship detrimental to the Twins’ best interest. We agree.
After the juvenile court in a TPR case makes specific findings about each factor in FL § 5-323(d), the court must then: determine expressly whether those findings suffice either to show an unfitness on the part of the parent to remain in a parental relationship with the child or to constitute an exceptional circumstance that would make a continuation of the parental relationship detrimental to the best interest of the child, and, if so, how.
In Re Adoption/Guardianship of Rashawn H., 402 Md. 477, 501 (2007) (emphasis added).
Accord C.E., 464 Md. at 53.
Here, the court expressed its ultimate determination as follows: “Having considered each factor enumerated in § 5-323(d) of the Family Law Article, the [c]ourt finds, by clear and convincing evidence, that exceptional circumstances exist to overcome the presumption that [the Twins’] best interests are served by the continuance of the parental relationship.”
We conclude that the court erred as a matter of law because it did not express how its findings led to its ultimate determination. See Rashawn H., 402 Md. at 504–05 (vacating an order terminating parental rights where the juvenile court failed to relate findings under FL § 5-323(d) to any exceptional circumstances sufficient to rebut the presumption favoring continuation of the parental relationship). As in Rashawn H., the court, on remand, must “explain clearly how and why” “any amalgam of [its] findings leads to a conclusion that exceptional circumstances exist sufficient to rebut the presumption favoring the parental relationship[.]” Id. at 505. In its discretion, the court may receive additional evidence considering the time that has elapsed between the TPR hearing and the filing of this opinion. See id.
CONCLUSION
We decline Mother’s request to reverse the circuit court’s decision to terminate parental rights. Apparently, the court believed terminating parental rights was in the Twins’ best interest. But the court’s errors or omissions have led us to “speculate as to whether the trial court has fulfilled its obligations” to consider the array of factors under the statute, which in turn leads us to question the validity of its decision to terminate parental rights. See In re Adoption/Guardianship No. 95195062/CAD in Cir. Ct. for Balt. City, 116 Md. App. at 457. We recognize that in addressing the errors or omissions on remand, the court may reach the same conclusion as it did previously.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY VACATED. CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS IN CONFORMANCE WITH THIS OPINION. COSTS TO BE SPLIT EVENLY BETWEEN APPELLANT AND APPELLEE, BALTIMORE CITY DEPARTMENT OF SOCIAL SERVICES.
FOOTNOTES
1 “‘Shelter care’ means a temporary placement of a child outside of the home at any time before disposition” of a Child in Need of Assistance petition. Courts and Judicial Proceedings Article (“CJP”) § 3-801(bb).
2 Half-Sister was voluntarily placed in the care of Great Grandmother (infra) at the age of two months and has lived with her continuously since that time.
3 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.” CJP § 3- 801(f).
4 In 2020, Great Grandmother expressed a willingness to serve as a resource for the children, but her former residence did not have adequate room. She had been looking for a “bigger place” with “more room” to accommodate the children.
5 A Family Involvement Meeting (now known as a “Family Team Decision Meeting” or “FTDM”) is a meeting with family members and chosen supports to make key child welfare decisions, including placement changes and permanency plans.
6 At the outset of the second day of the hearing, the court granted a postponement because Mother had a health-related emergency.
7 The court made these findings in assessing factor (d)(2)(iv) (whether additional services would be likely to bring about a lasting parental adjustment so that the child could be returned to the parent). Mother, however, does not challenge the court’s assessment of this factor.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Carroll County Circuit Court’s modification of custody and child support. Given the broad discretion the statute affords a court in setting the amount of child support in above-guidelines matters, and the discussion by the court setting forth its reasoning, the circuit court did not abuse its discretion in ordering father to pay child support in the amount of $5,000 a month.
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.
3. Did the circuit court commit reversible error by ordering Father to pay all the BIA’s legal fees and a significant portion of the appellee’s attorney’s fees?
For the reasons set forth below, we shall affirm the judgments of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
Events Leading to Court Hearing
Father is self-employed as a medical doctor and the sole owner/CEO of Frontline Physicians. Mother works part time as a nail technician. Father and Mother are the biological parents of M.S., born September 2015.1 They never married.
This appeal arises from competing motions to modify child custody filed in the Circuit Court for Carroll County by appellant, Kristian Sandor (“Father”), and appellee, Huyen Truong (“Mother”). On November 10, 2022, at the conclusion of Father’s case-in- chief, the child’s BIA moved for an emergency temporary custody order, requesting that the court grant Mother temporary legal and physical custody, with Father having supervised access to the minor child. The court, finding Father’s conduct harmful to the child, granted the request pending final resolution of the case. On July 17, 2023, following Father’s request for a postponement and two additional hearing dates, the court entered an order modifying custody and child support and ordering Father to pay the Best Interest Attorney’s (BIA) fees and a portion of Mother’s attorney’s fees.
On appeal, Father presents the following questions for this Court’s review, which we have modified slightly, as follows:
1. Did the circuit court commit reversible error and violate Father’s constitutional due process rights by issuing an order requiring supervised child access in the middle of a merits hearing prior to giving Father an opportunity to cross-examine the Mother?
2. Did the circuit court commit reversible error by incorrectly calculating child support and misapplying Kaplan v. Kaplan?
On June 29, 2017, the parties agreed to a consent order addressing custody and child support. Pursuant to their agreement, Mother had primary custody of M.S., with Father having access every other Friday from 3:00 p.m. through Sunday at 7:00 p.m., and every Tuesday and Thursday evening from 3:00 p.m. until 7:00 p.m. The parties were granted joint legal custody. The court ordered Father to pay child support in the amount of $2,500 per month.
On February 16, 2022, Father filed a Motion to Modify Custody and Other Related Relief, alleging “several material changes of circumstances warranting a modification of child custody and access.” He alleged, among other things, that Mother was engaging in a “course of conduct that [did] not permit effective communication between the parties,” and she was attempting to degrade his relationship with M.S. Father alleged further that Mother had told M.S. his father and extended family did not love him. He asked the court to award him sole legal and primary physical custody.
On February 17, 2022, Mother filed a Petition to Modify Custody and Child Support, alleging “a material change in circumstances such that the legal custody agreement the parties made in 2017 is no longer in the child’s best interests.” She alleged that Father refused to permit her to register M.S. for school at Hanover Hills Elementary School and was “attempting to force [Mother] to enroll [M.S.]” at a school “over thirty (30) miles away.” Father “incessantly” involved M.S. in the parties’ custody dispute and consistently attempted to bully Mother into making decisions that were not in M.S.’s best interest. She alleged that Father’s regular video recording of M.S. was “having severe impacts on [his] health and welfare, resulting in [M.S.] suffering from anxiety and gastrointestinal issues.” With respect to child support, Mother alleged that there had been a material change of circumstances affecting M.S., which required the court-or-
dered child support to be modified. Specifically, the income of the parties had changed and support expenses impacting M.S. had increased. She asked the court to award her sole legal and primary physical custody.
On February 23, 2022, Father filed a Motion for Appointment of a Best Interest Attorney. On April 12, 2022, the court issued an order appointing counsel for M.S.
The Merits Hearing A.
Merits Hearing: Day One
On November 9, 2022, the court began the merits hearing on the parties’ motions. Father’s brother, Charles Sandor (“Charles”), testified that he spent time with M.S. while the child was in Father’s custody. He described his brother’s relationship with M.S. as “inseparable.” He stated: “They are carbon copy of each other.” M.S. was enthusiastic, loving, and “absolutely full of joy”; he was never fearful. Charles had observed Father record videos of M.S., and M.S. did not appear to be uncomfortable. Father never instructed M.S. on what to say in the recordings, and Charles believed it was “perfectly fine” for Father to record his own son.
Charles had concerns with respect to M.S.’s care when he was with Mother. She had told M.S. that he was not allowed to see Father, who was “terrible,” and that Father’s family “gang[s] up on her” and does not welcome her into the family. He testified that Mother “spread lies” about Father, who did “not have arguments” with Mother in front of M.S. He also characterized the communications between Father and Mother as “poor” and noted that Mother often directed Father to contact her attorney.
Father’s mother, Beatrix Sandor, testified that she spent “every other weekend” with her son while M.S. was in his custody. M.S. was a “very loving boy,” and “very smart.” He was not scared of his father or other members of the family. Ms. Sandor believed, however, that M.S. feared Mother because M.S. got anxious when it was time for him to leave Father’s home. It was impossible for Father to co-parent with Mother, and she was incapable as a mother. Father had never raised his voice or said anything negative towards Mother.
On cross-examination, Ms. Sandor stated that Mother’s behavior reminded her of a “whore,” but she never said anything to M.S. about Mother. Father had to record M.S. because he “cannot prove his innocence without [the recordings].” After testifying that Mother had sent “malicious e-mails” to M.S.’s school that contained lies, Ms. Sandor told Mother: “Shame on you.” The court ordered her not to direct any response to the parties.
Father testified that he and Mother renewed their romantic relationship after they entered into the initial consent order. His desire to maximize time with M.S. was a factor in “rekindl[ing]” his relationship with Mother, and he spent a “lot more time” with Mother and M.S. Their relationship ended in September 2021 because Mother suspected that he was being unfaithful, no longer loved her, and did not want to marry her. Father offered to marry Mother in exchange for her agreeing to sign a prenuptial agreement, which she refused to do. Around this time, M.S.
began to question whether Father’s family “love[d] him or not,” based on suggestions from Mother.
Father routinely discussed the pending custody case with M.S. He explained to M.S. he and Mother were “romantically involved” and questioned why Mother would not allow him to spend more time with M.S. He told M.S. that he and Mother “would probably have to go to court and it would be very hard on mommy . . . [and] himself.”
Father testified that, since September 2021, Mother had been unwilling to provide additional time for him to spend with M.S. He was “[c]ompletely cut off.” M.S. was not allowed to call him, and he could not call M.S. He never spoke negatively about Mother in front of M.S., but Mother spoke negatively regarding him in front of M.S.
Father initiated discussions with Mother with respect to M.S.’s future education. He informed Mother that M.S. wanted to “go to school with me where I live” in Carroll County.2 Father was concerned about Mother’s ability to provide for M.S.’s education, stating that Mother was not a “native English speaker,” and as a result, M.S. had developed “certain accents and pronunciations” that Father “ha[d] to correct.” Father testified extensively regarding the parties’ inability to communicate on issues related to M.S., including medical appointments, potty training, diet, pre-school education and training, and COVID-19 vaccinations.
In late 2021, M.S. began having reflux issues. Acting on a recommendation from M.S.’s primary physician, Mother scheduled an evaluation for M.S. with MPB Group, Inc., to determine whether he required therapy related to his reflux condition. On February 3, 2022, Father provided informed consent to M.S.’s evaluation and treatment with MPB Group, Inc. Father testified that the doctor who completed M.S.’s initial evaluation did not provide a diagnosis, but the report completed by MPB Group’s assigned therapist indicated that M.S. was diagnosed with adjustment disorder with anxiety.
In May 2022, a therapist with MPB Group made a Child Protective Services (“CPS”) report related to statements made by M.S. during his scheduled therapy session. M.S. had made comments about Father and Ms. Sandor instructing M.S. “to touch [Mother] in her private place.” M.S. informed his therapist that Father and Ms. Sandor told him to “drink his mom’s pussy,” and M.S. told Ms. Sandor “that is bad.” Ms. Sandor told M.S. that “he must do it right away when he gets home.” CPS investigators determined that M.S. was safe in Mother’s custody. Although M.S. told CPS investigators that Father and Ms. Sandor were instructing him to “touch [Mother] sexually,” and CPS noted that Father’s behavior was disturbing, it ruled out sexual abuse. Following MPB Group’s report to CPS, Father revoked his consent for M.S. to continue one-on-one therapy sessions.3
B.
Merits Hearing: Day Two
On November 10, 2022, the hearing continued. The parties agreed to go out of turn and allow the BIA to examine her witness, Mollye Kellman, to accommodate Ms. Kellman’s schedule. Ms. Kellman, an expert in mental health therapy, testified
regarding M.S.’s “individual treatment, diagnostic impressions, and clinical assessments.”4
On June 15, 2022, Ms. Kellman began therapy services for M.S. She diagnosed him with adjustment disorder with anxiety. She created an individualized treatment plan for M.S. and met with him approximately once per week for one hour. As part of her evaluation, Ms. Kellman identified several stressors that were impacting M.S.’s anxiety. The custody case was one stressor. M.S.’s parents and his paternal grandmother were “outside factors” that influenced his stressors, specifically, being “recorded by both parents for his behavior” and “his feelings about . . . where he wanted to live.” Ms. Kellman advised Mother and Father that “the multitude of videos could affect [M.S.’s] anxious behavior,” and she had observed M.S. “feeling anxious or looking anxious” in Father’s recordings. She warned Father about the effect the recording was having on M.S.’s anxiety. Following that feedback, Father continued to record M.S. Ms. Kellman testified regarding other factors impacting M.S. Father and his mother “wanted [M.S.] to tell the truth,” however, M.S. expressed that he “doesn’t want to say bad things.” Ms. Kellman interpreted Father’s statement that M.S. should see Mother naked “as the bad things.” M.S. was “scared of his father,” and he did not want Father “to go to [his] school.” She recalled one conversation in which M.S. expressed that he did not want to visit his father stating: “Four days, three nights with daddy. I don’t want to.” M.S. stated that he did not want Father and his grandma to tell him “bad things.”
After a disruption to M.S.’s therapy session in October 2022, when Father came to the office, Ms. Kellman e-mailed Father and Mother and stated that, because Mother had custody of M.S. on Wednesdays, only she would be allowed at Ms. Kellman’s office for M.S.’s one-on-one therapy sessions. Several e-mail exchanges took place, with Father stating, among other things, that Ms. Kellman’s “professional opinion is not in the best interest of [M.S.’s] wishes.” He stated: “Shame on you for making such a recommendation Mollye. You are only facilitating with this recommendation severing my time with [M.S.] and regarding [Mother’s] deplorable behavior!” Ms. Kellman explained to Father and Mother that her role was to “work with [M.S.] on his anxiety, . . . not family therapy for this case.” She noted that continuing to have “both parents in the waiting room has created a distraction for [M.S.],” and it increased his anxiety. Father ignored Ms. Kellman’s instruction, stating: “I will stop by to see [M.S.] and wait for him in a neutral place.”5
Ms. Kellman stated that “certain pieces” of Father’s e-mail correspondence undermined the professional work that she had done with M.S. She was “distraught . . . [and] felt uncomfortable.” After Ms. Kellman informed Father and Mother that only one parent should bring M.S. to the therapy sessions, Ms. Kellman observed Father in the parking lot of her facility. Although Father did not leave his car, Ms. Kellman felt “uncomfortable and intimidated.” On October 24, 2022, she terminated services for M.S., stating that, based on various factors, M.S.’s “needs are not able to be met in this current environment.”
Buithi Hong, M.S.’s maternal grandmother, testified that she lived with Mother and M.S. Mother was “a fit and proper person” to have custody of M.S., and her job was “flexible enough that she could take time off . . . to spend time with [M.S.].” Father
would come to Mother’s home on Tuesdays and Thursdays to pick up M.S. Ms. Hong would facilitate the “hand off” because Mother wanted to “avoid any contact” with Father and did not “want to argue in front of [M.S.].” M.S.’s anxiety increased when Father arrived at their home to retrieve M.S, and on several occasions, M.S would vomit “prior to [Father] coming to pick him up.”
Father then resumed his testimony on cross-examination. He discussed his finances, including that, in 2021, Frontline Physicians’ K-1 indicated the company made $434,797.6 Father took distributions from the company totaling $359,288, but he could choose to take “whatever distribution” he wanted. Father’s work schedule was flexible, and he could keep his own hours.
At the close of Father’s case, the BIA asked the court for a temporary modification of custody in light of the testimony that had been presented that day. As explained in more detail, infra, the court issued an emergency temporary order granting Mother sole physical and legal custody, with Father having supervised access for two hours per week.
The hearing was set to continue on December 23, 2022. On December 2, 2022, Father filed a motion to postpone the continued merits hearing, requesting extra time to procure additional evidence to ensure the court “has all of the evidence necessary to render a long-term decision about [M.S.’s] care and custody.” Father noted that all parties, including the BIA, were available to continue the hearing on May 22 and 23, 2023. On December 8, 2022, the court granted Father’s motion to postpone.
C.
Merits Hearing: Day Three
On May 22, 2023, the hearing continued. Mother testified that, after the parties entered into the consent agreement, she and M.S. spent “a lot of time” at Father’s home, until their relationship ended in 2021.
M.S. was currently seeing a therapist at the school. Mother believed that M.S. required therapy because he was suffering mentally and physically, stating: “Whatever happened between this broken co-parenting has caused our son [to] have a lot of anxiety and GI problem[s].” Mother testified that Ms. Kellman terminated her services because Father came to every appointment to intimidate her “and make trouble” at the office. She stated that Father insisted on discussing issues in front of other people in Ms. Kellman’s office, and when Mother would step outside, he would follow her. Mother testified that Father and Ms. Sandor threatened to hurt her and M.S. He previously told Ms. Hong: “[I]f you and your daughter make it difficult for me to access our son, we will all die on the street.”
Prior to therapy sessions with Ms. Kellman, M.S. attended therapy with MPB Group. Father only consented to therapy after a lawyer got involved. M.S. stopped therapy at MPB Group after Father terminated services due to MPB Group contacting CPS. Father made Mother agree to another therapist of his choice, and he selected Ms. Kellman.
Mother testified with respect to M.S.’s previous pediatrician, Dr. Padder, who treated M.S. for the first five years of his life. Mother and Father would attend appointments together; the appointments were never peaceful. Father would talk over Mother, stating that, because he is a doctor, he knows what
is best for M.S. He blamed any issues with respect to M.S.’s well-being on Mother and told Dr. Padder that Mother did not know “how to deal with M.S.” Father ignored Dr. Padder’s recommendations and demanded she refer M.S. to specialists who he believed were more appropriate. Mother testified that Dr. Padder grew tired of Father’s insistence that M.S. be referred to specialists of his choosing, and “she dismissed [M.S.]” from her care.
M.S. went to school at Hanover Hills Elementary School. Father did not want M.S. to attend that school because he believed M.S. “should go to the school where he live[d],” and he had filed an emergency petition to keep Mother from enrolling M.S. in school. Mother believed it was in M.S.’s best interest to continue school at Hanover Hills Elementary. Prior to the circuit court’s November 2022 order, Father would show up to the school “[a]t least three times a week.” His presence made Mother and M.S. nervous.
Mother had concerns related to M.S. spending time with Father, stating that M.S. was nervous because he had to please his father and grandmother. M.S. loved his Father, but he also was scared of his dad, just like she was. Mother also had concerns because Ms. Sandor had taught M.S. to “go home and touch [Mother’s] private part[s].” Mother testified that it was in M.S.’s best interest that she maintain primary physical custody because she had a lot of concerns related to M.S.’s safety. She stated that Father should only have supervised access to M.S.7
In the Summer of 2022, Father sent M.S. home with a recording device hidden in a toy. M.S. told Mother that Father had placed a recording device in a toy. She did not report it to the police, stating: “I didn’t want to do that because I know it’s going to harm my baby father, and I didn’t want to do that.”
As explained in more detail, infra, Mother testified with respect to her employment and earnings. With respect to money she received from friends and family in 2022, Mother stated that, without them, she would not have been able to survive the court battle and support herself and M.S. Mother had received approximately $18,850 in assistance, which she intended to pay back. Based on her current salary, she was seeking more than $5,000 per month in child support to cover her costs.
On cross-examination, Mother testified that Father threatened her “many times.” She did not notify the police because she and Father were “back and forth in the relationship,” and he was the “father of [her] son.” She had not obtained a protective order against Father.
Mother testified extensively to the parties’ inability to communicate, which she attributed to Father. For example, when Mother attempted to discuss enrolling M.S. in school, Father told her that he would do “everything in [his] power” to prevent Mother from registering M.S., and she should prepare for court. Ms. Sandor asked Mother: “Do you have enough money to keep up with us?”
Mother testified that Father manipulated her into providing him extra time with M.S. On his scheduled days of visitation, Mother would drive M.S. to Father’s home so they could spend time together. Father would intentionally keep M.S. late and not “give [M.S.] back until very late at nighttime.” M.S. would fall asleep, and occasionally Mother and M.S] would be forced to stay overnight. Father sent Mother numerous e-mails asking for
extra time, and if she did not give it to Father, he and Ms. Sanders would be upset with her. “They team up on me many, many times.” Father’s scheduled visitation was set to end at 7:00 p.m., but he would purposely fix M.S. dinner late so that Mother and M.S. could not leave his home until 10:00 p.m.
The court permitted Father to reopen his case to update the court on events alleged to have taken place since the November 2022 hearing and admit visitation records from the Carroll County Visitation Center. The court also permitted Father to call an expert witness to testify regarding child custody and parental alienation. Counsel for Father requested that Father’s expert testify out of order, prior to completing Mother’s cross examination. The court granted counsel’s request.
Ken Lewis, an expert on child custody and parental alienation, testified that he reviewed approximately 2,150 pages of documents provided to him by Father for indicators suggesting parental alienation. He described parental alienation as a medical syndrome and a strategy of behavior involving “poisoning the mind of a minor.” Dr. Lewis identified alienating behaviors from Mother here, including denying Father access to M.S., blocking
M.S. from using the phone, and telling M.S. that Father and his family did not love M.S.
On cross-examination, Dr. Lewis stated that his assessment was based on papers he was given, including motions filed by Father. He agreed that incessantly involving a minor child in a custody dispute would be considered alienating behavior. Dr. Lewis said that some of the behaviors alleged to be taken by Mother, if true, would be alienating behaviors, but he did not know whether they rose to the level of alienating M.S. If Father was harming the child, there could not be parental alienation. Mother’s testimony on cross-examination then continued. She denied telling M.S. that Father or his family did not love him. She had multiple conversations with Father about enrolling M.S. in a pre-kindergarten program. She told Father that, because she had “primary physical custody . . . [M.S.] will go to school here.” Father did not consent to Mother enrolling M.S. in the pre-kindergarten program of her choice.8
Mother stated that Father confronted her several times concerning bruising he observed on M.S. when he began walking and running. Father took M.S. to the hospital, alleging Mother and Ms. Hong were abusing M.S.
D.
Merits Hearing Day Four
On May 23, 2023, the court held its final day of hearings. Mother testified that, in August 2019, she recorded a video of M.S. for Ms. Kellman. She stated that it was the only video recording she had taken, and it was for the purposes of documenting M.S.’s statements because she believed that M.S. was suffering, and she “wanted the therapist [to] understand how” Father scared M.S. Father was not a proper and fit parent, and based on his previous conduct, Mother wanted “[M.S.] to continue to have supervised access with” Father.
M.S was receiving one-on-one therapy services through his school every other week. Mother and M.S. participated in family-style therapy with the school therapist on weeks M.S. did not have one-on-one therapy. M.S. also was involved in several
afterschool activities, including a Lego Club and Young Artist’s Club, and at the time of the hearing,
M.S. was scheduled for two summer camps. Mother testified that each of the summer camps cost between $300 and $350.
Cori O’Donnell Bock-Miller, a supervisor at the Carroll County Visitation Center, testified that, on occasion, Father broke the visitation center’s rules. Although Father was polite to Ms. Bock-Miller, she stated that, on an “almost weekly basis,” her staff reported “feeling intimidated” when interacting with Father. Specifically, Father’s visits would frequently run over, and he would not respond to redirection by staff.
Father testified that supervised visitation taught him not to video-record M.S. He stated: ‘I won’t do it again.” Father believed supervised access was never warranted, and he stated that he had “never” harmed M.S. Father testified that, despite the court-ordered visitation, he believed he was a fit parent. Mother was not a fit parent because she was trying to sever the relationship between him and M.S. His position was that M.S. should have equal time with each parent.
In closing argument, Father requested primary physical and sole legal custody, or in the alternative, tiebreaking authority. Mother requested that she retain primary physical custody and Father’s access to M.S. remain supervised.
The BIA stated that M.S. did not want her to say anything regarding his position, and she was bound by that directive. She did state that “[t]his is the worst case of mental injury that I have seen that there is documentation of and a parent who continues to engage in behaviors that are not in the best interest of a child, even when he is in a visitation setting.” She also stated that she was happy to hear Father say that he would no longer record M.S., but she was hesitant to believe that because Father requested recordings of
M.S. at the visitation center to present in court. She stated that M.S. needed both parents, but “in a safe, healthy, environment.”
III.
Circuit Court Opinion
On July 14, 2023, the circuit court issued an oral opinion granting Mother “sole legal custody and primary physical custody,” with Father to have “strictly supervised access” to M.S. The court further addressed child support and allocation of attorneys’ fees. With respect to custody, the court issued a lengthy and detailed ruling on the record.
The court found that there had “been a material change in circumstance[s] since the prior order” and noted that it had considered each of the factors enumerated in Taylor v. Taylor, 306 Md. 290 (1986)9 and Montgomery Cnty. Dep’t of Soc. Servs. v. Sanders, 38 Md. App. 406 (1978).10 In total, the court considered thirty-one factors in crafting its decision. Regarding the first factor, fitness of the parents, the court found that Father was “not a fit and proper parent,” and Mother was a fit and proper parent. The court stated:
[A]s I will fully set forth shortly, there is a great deal of behavior that has been presented . . . that persuades this [c] ourt that [Father] is not a fit and proper parent as of now. I will outline in greater detail why I reached this conclusion as we go through the factors.
With respect to the character and reputation of the parties, the court found that the testimony of Father and his family that he was not difficult or combative was not “remotely credible.” It found Father’s character and reputation to be “confrontational, controlling, intimidating and aggressive in [ ] approach.” The court noted testimony from Ms. Kellman that Father’s “demeanor and conduct during their interactions made her feel very uncomfortable and intimidated.” She had concerns for M.S.’s safety at Father’s house, and she warned Father that recording M.S. made M.S.’s anxiety worse, yet he continued to record M.S. M.S. told her that Father tried to get him to say bad things about Mother and wanted M.S. to see Mother naked. The court discussed what happened after Ms. Kellman told Father that only one parent, Mother, should come to therapy, as follows:
He doesn’t just abide by the request, but tells her his son adores him and wants him to stand there and wait for him, that her professional opinion is not in his son’s best interest, that he is being discriminated against, reminds her he is the one paying for the therapy sessions, and in the same terms used by [Father’s] mother at trial toward [Mother] tells Ms. Kellman, shame on you for making such a recommendation. It was noteworthy to me that the “shame on you” was the same way [Father’s] mother talked to [Mother] during her testimony in court and the same terminology [Father] used in chastising [Mother] in Defense Exhibit 20’s email and in the Defense Exhibit 26 email. All of this to this [c]ourt lends credibility to [Mother’s] testimony as to how she is treated by [Father] and his family and how she is talked to about [M.S.].
The court stated: “When independent providers do not submit to [Father’s] wishes or offer opinions to his liking, he attacks their professional judgment and abilities” and becomes aggressive and intimidating.
The court also noted Father’s insistence that M.S. be placed in first grade, even after the school said he was not ready to be advanced. The court found that Father continued his pattern of intimidating behavior at the visitation center. The court noted that Father sent a toy that had a recording device with M.S. to Mother’s house, which M.S. showed her but said he could not say anything because it was recording. The court found this to show that Father engaged in dishonest behavior and was willing to involve his son “to execute his plan.”
The court found Mother to be “cooperative and kind.” It noted that when Mother was upset on the stand discussing difficult topics, Father was at times “smirking during that.”
Examining the third factor, the request of each parent and the sincerity of the parent, the court found Father’s desire to be with M.S. sincere, but it found that Father coached and attempted to manipulate M.S. to do what Father wanted. The court found Mother sincere in her request for custody of M.S. Mother’s concern for M.S. “when he is with [Father] and the paternal grandmother” were concerns “shared by other providers.”
Regarding the fourth factor, any agreement between the parties, the court noted the June 28, 2017 consent agreement, “where there was joint legal custody and [Mother] had primary physical custody.” With regard to the fifth factor, willingness of the parties to share custody, the court stated that Mother is “fearful of [Father] and finds [his] behavior when they have
attempted to share custody to be untenable.” Although neither party expressed a desire for shared legal custody, Father requested tiebreaking authority if not given sole legal custody. The court stated that, given the parties’ inability to communicate, granting Father tie-breaking authority “would be the same as just granting sole legal” custody.
In evaluating factor six, each parent’s ability to maintain the child’s relationship with the other parent, siblings, relatives and any other person who may psychologically affect the best interest of the child, the court found that neither party “is particularly more suited than the other on this as neither has a relationship with the other family members that are healthy.” Ms. Sandor was a “source of contention and concern” for Mother and the therapists who had treated M.S. Moreover, “[M.S.] shared with Ms. Kellman that he [was] scared to be at [Father’s] because they make him say and do bad things.” Father’s family had not attempted to see M.S. while the temporary custody order was in place. The court found that Mother was better at fostering relationships “with others beyond family who may psychologically affect [M.S.’s] best interest . . . whether that is medical providers, therapists, or teachers.”
Turning to factor seven, the age and number of children that each parent has in the household, the court stated that M.S. was the only child present in the household. With respect to factor eight, the preference of the child, the court noted that, although M.S. was six years old, there was “overwhelming evidence of manipulation of [M.S.] to get him to express certain preferences,” and any input by M.S. “would be unreliable and unhelpful” and would only cause more harm.
Addressing factor nine, the parties’ ability to communicate, the court stated: “I find there is absolutely no capacity for the parents to communicate” and share decisions affecting M.S.’s welfare. Although Father stated that “he would let [Mother] see [M.S.] whenever she wanted and would always allow her to have extra time with him,” the court did not find Father’s testimony credible with respect to a joint-physical custody arrangement based on his testimony and behavior. It did find that “[b] oth parents have homes that are suitable for M.S.”
Regarding factor ten, the geographic proximity of the parents’ residences and opportunities for time with each parent, the court noted that Mother lives in Hanover, Maryland, and Father lives in Carroll County, approximately 30 miles away. With respect to factor 11, the ability of each parent to maintain a stable and appropriate home for the child, the court stated: “Both parents have homes that are suitable for [M.S.].”
The court briefly noted factor 12, the financial status of the parents, stating: “I will discuss in more detail the financial aspects later as to [M.S.’s] support for child support which I considered under this factor.” As more thoroughly discussed, infra, the court extensively reviewed the financial status of both parents. For the purpose of setting child support, the court found Father’s income to be $434,797, and Mother’s income to be $46,800. It noted that the “matter [was] an above-guidelines case for the purposes of child support given the combined income of $40,133 monthly between the parties.” Although Father was “more financially well off,” Mother had been able to provide sufficient financial resources for M.S.
The court next addressed factor 13, the demands of parental employment and the opportunities for time with the child. The court noted that both parties had work schedules. Regarding factor 14, the age, health, and sex of the child, the court noted M.S.’s age and that he had been diagnosed by two different therapists with adjustment disorder with anxiety.
With respect to factor 15, the relationship established between the child and each parent, the court had “no difficulty believing that [M.S.] loves both parents very much.” The court, however, noted that the relationship between Father and M.S. was “unhealthy for several reasons,” stating:
First, this very young child is being treated by [Father] in this [c]ourt’s opinion like he is 17 years old. [Father] describes his young child being, quote, very capable of picking what he wants to do. He has repeatedly noted that [M.S.] should say where he lives and where he goes to school, and that should be honored as though this very young child is in any position to know what is best at this point.
The court further noted Father’s intent on making [M.S.] “age faster than he is socially able,” and that “[Father] seems more intent on making [M.S.] demonstrate his brilliance than permitting normal social and intellectual development.” The court stated that Father’s “over-exaggerated view of his relationship with [M.S.] . . . places enormous pressure on [M.S.] to please [Father’s] wishes and demands beyond that of a normal parent-son relationship. It is unhealthy.” The court cited several examples of Father’s “controlling and obsessive behavior as to [M.S.].”
Addressing factor 16, the length of separation of the parents, the court noted the parties’ on-again, off-again relationship. The court found factor 17, whether there was a prior voluntary abandonment or surrender of custody of the child, not to be at issue. With respect to factor 18, the potential disruption of the child’s social and school life, the court noted that Father is “consistently urging the school to move [M.S.] to the first grade,” even though the school had evaluated M.S. and determined he was “not ready for advancement.” The court did not have any notable evidence regarding the nineteenth factor, any impact on state or federal assistance, or factor 20, the benefit a parent may receive from an award of joint physical custody and how that would enable the parent to bestow more benefit upon the child.
The court considered factors 21 and 22 together, each addressing the ability of the parents to meet a child’s needs. The court found that Father did not “have the ability to meet [M.S.’s] developmental needs beyond limited educational aspects.” Mother had “done well on these issues under sometimes difficult circumstances.” M.S. was “doing well in school,” and he had improved “since being in [Mother’s] exclusive care.”
Regarding factor 23, the ability of each party to consider and act on the needs of the child, as opposed to the needs or desire of the party, and protect the child from the adverse effects of any conflict between the parties, the court found Father incapable of placing M.S.’s “needs above his own desires or an ability to protect [M.S.] from adverse effects of conflict among the parties.” The court noted that Father “is a huge source of conflict,” and “the constant recording and attempts to get [M.S.] to say things he desires ends up putting th[e] child directly in the conflict.” The court stated that Mother, at times, has “let the conflict
overcome her prioritization of [M.S.’s] needs,” but it found that Mother “overwhelmingly . . . tr[ies] to keep him from conflict and prioritizes [M.S.’s] needs.”
With respect to factor 24, the history and efforts by one or the other parent to alienate or interfere with the child’s relationship with the other parent, the court noted Dr. Lewis’s testimony and accepted his opinion that “extreme alienation should be considered emotional child abuse.” The court noted Mother’s tendency to “unnecessarily . . . pre-warn providers and the school” regarding Father. It stated that Charles and Ms. Sandor “seem perfectly content . . . in supporting [Father] in his alienating actions, including recordings and discussing legal matters with [M.S.].” The court did not find Dr. Lewis’s opinion on parental alienation in the matter persuasive because “the information he reviewed was cherry-picked and [consisted of] self-serving statements made by [Father].” The court stated that Father’s “selective submission to the expert demonstrates . . . an attempt to conceal and diminish his own behavior.” The court found Father and his family’s behavior to be alienating, “extensive and repeated.”
Addressing factor 25, evidence of a child’s exposure to domestic violence, the court found “no evidence of physical abuse as to [Mother],” but it did find evidence of mental abuse of M.S by Father. Regarding factor 26, the parental responsibilities and particular parenting tasks customarily performed by each party, the court noted that both families assist in the care of M.S. in the absence of the parents. Turning to factor 27, the ability of each party to co-parent the child without disruption to the child’s social and school life, the court found that “there is absolutely . . . no ability to co-parent without major disruption to [M.S.’s] life.”
Addressing factor 28, the extent to which either party has initiated or engaged in frivolous or vexatious litigation, the court did not find the factor relevant to its custody decision. It noted, however, that it did have concerns with this factor related to attorneys’ fees. Factor 29, involving siblings, was not at issue.
The court then turned to factor 30, abuse. The court noted “overwhelming evidence, far beyond more likely than not,” that Father had abused M.S. In November 2021, M.S. made “multiple attempts to grab [Mother’s] breasts and buttocks” after Ms. Sandor instructed the child that it is “okay to touch [Mother’s] breasts because he loves her.” On May 7, 2022, MPB Group’s therapist made a referral to CPS after M.S. told his therapist that Father and Ms. Sandor “told him to drink his mom’s pussy.” The therapist also reported M.S. “was being told to touch his mother’s private area.” M.S. later told investigators that Father and Ms. Sandor “tell him to touch [Mother’s] privacy, which he identified as the crotch area, and force him to do things, but he knows they are bad, and that they make him say the opposite of what is true.”
The court noted that M.S.’s anxiety “becomes significant and serious as a result of [Father’s] conduct.” Father engaged in conduct that caused mental injury and significant anxiety, and it aggravated underlying medical issues that M.S. experienced related to vomiting. Specifically, Father continued to film M.S because “he thinks he needs to protect himself,” despite instructions from social workers and Ms. Kellman regarding the effect it was having on M.S. The court agreed with the DSS assessment
that Father’s attempts to get M.S. “to engage in sexual behavior with [Mother]” were “not for sexual gratification,” but Father “was trying to create a situation where he could report [Mother] to DSS for inappropriate sexual conduct with [M.S.].”
With respect to future abuse, the court noted that Father, who had abused M.S., had the burden to show no likelihood of future abuse, but he did not meet that burden. The court found that, even after the court ordered supervised visitation, with observers watching, Father still engaged in alienating behaviors that harmed M.S. and created anxiety. The court stated: “I truly had hoped when I ordered supervised visitation last November that [Father] would be able to go, focus on spending time with [M.S.] and desist from the behaviors toward [M.S.] that had led this matter to this point.” The visitation records, however, showed continued concerns.
For example, during his first visitation, Father asked M.S. if Mother “had told him why he can’t see him.” M.S. told his father no, and Father “asked if he wanted to know why, and [M.S.] again indicated he didn’t want to know.” Father continued to make comments regarding M.S.’s anxiety and inquired if “it [was] because he can’t see him.” In another incident, Father told M.S. that “a video was sent to him of [M.S.] saying that [Father] and Grandma were beating him up and how that really hurt him and how he was crying.” Father told M.S. “that he shouldn’t lie or say things that aren’t true.” M.S. denied making these statements. The court characterized the evidence as showing “an unhealthy relationship” between M.S. and Father. The court noted that, even in the closing argument that Father gave, he was unwilling to recognize the harm he was causing to M.S. Not only did Father not meet his burden to show that abuse was unlikely to occur again, but the court was “sure that the abuse would continue to occur, especially if it was unobserved or unsupervised.”
The court found that it was in the best interest of M.S. to award sole legal custody to Mother. With respect to Father’s access to M.S., the court found it in the best interest of M.S. that Father be granted strictly supervised access.11
This appeal followed.
DISCUSSION I.
Custody
Father contends that the circuit court erred by issuing the temporary emergency order for supervised access in the middle of the merits hearing without giving him an opportunity to cross-examine Mother. He argues that the court did not have the legal authority to order supervised access because Mother, who had asked for supervised access in her motion to modify, had not yet testified or met her burden of proving a material change in circumstances. Father asserts that he was prejudiced because the court’s temporary ruling “for all intent and purposes both end[ed] the trial and create[d] a new prejudicial dynamic between the parents. Once the court issued the order for supervised access, the trial was over.” He requests a new trial before a different trial judge.
Mother contends that the court properly exercised its discretion in entering an emergency temporary order. She asserts that the order “was necessary to protect M.S.’s welfare and did
not violate Father’s right to due process.” She also argues that the temporary order “did not predetermine the outcome of the trial.”
A. Proceedings Below
On November 10, 2022, prior to the final ruling on July 17, 2023, the circuit court granted an Emergency Temporary Order, providing that Father would have supervised access. The order, which was issued at the end of the second day of the hearing, following Father’s presentation of his case-in-chief, was issued in response to the BIA’s oral motion to the court for a temporary custody order that day. Counsel stated that she had concerns, asserting that it was “almost beyond reasonable doubt . . . that this child is being abused and has suffered mental injury at the very least.” She noted Ms. Kellman’s testimony that, in her professional opinion, M.S. was not safe in Father’s care. The BIA further noted that the medical records in evidence showed that M.S.’s psychological well-being was “manifesting itself in terms of gastrointestinal issues. This is a six year old little boy.”
The BIA noted that CPS records in evidence indicated that Father and his mother told M.S. “to touch [Mother’s] privacy.” M.S. knew that the things Father (and his mother) told M.S. to do were “bad,” and he understood that Mother’s “privacy is . . . the crotch area.” The BIA continued:
On top of that, we have multiple professionals who have requested that Father not record [M.S.] and that it is a stressor for him. [M.S.] has already received at six years old a diagnosis of adjustment disorder with anxiety.
The recording is exacerbating it. This custody litigation is exacerbating it.
The only thing that I can request, Your Honor, at this point, is that there be supervising access for Father. I don’t know what else I can request. It has been requested of him that he stop doing these things. And it has continued even though he has been involved in custody litigation.
The BIA stated: “This is the worst case of documented mental injury I have ever seen, Your Honor. And it has not been shown that there is no likelihood that it will not continue moving forward.”
Father’s attorney noted that, pursuant to Md. Code Ann., Family Law (“FL”) § 9- 101 (2019 Repl. Vol.), when there is a finding of abuse, custody is appropriate only if there is “a showing that there is no likelihood of future harm.” Counsel argued, however, that there had not been any finding of abuse. Father had been “evaluated at least five times . . . as to whether or not he is abusing [M.S.], . . . and they have not made a finding.”
Counsel further stated:
[F]or this Court to substitute that and not take into account this serious evidence that dissuades any finding of abuse, particularly in the middle of litigation to make such a substantial change without hearing any testimony and cross of the other parent in this case who by all accounts, in every set of medical records that the Court hasn’t had the opportunity to review, is engaged in the exact same kind of behavior, is engaged in mutual arguments, is engaged in disparaging [Father] in front of [M.S.], is engaged in showing emotions
and discussing this case and [Mother’s] allegations in front of [M.S.], because we haven’t gotten there yet, but it is part of all of these medical records.
To change the custody based on that, even temporarily, is improper and it does give rise to the absolute impression that this Court has made a pre- determination without hearing all the evidence and without the opportunity to review any of these records that are now being referenced, except the CPS records.
Counsel asserted that there was “absolutely no justification for [Father] to have supervised access,” and “[t]here is no reason to believe that he poses a danger to [M.S.].”
Mother’s attorney agreed with the BIA’s assessment and argued that “[n]othing is going to stop the recording.” Mother had recorded M.S. one time “because M.S. was so terrified[,] and [Mother] wanted the therapist to see.” Counsel argued that an admonishment or order issued by the court would likely not stop Father from recording M.S., and the court need only have “reasonable grounds” under the relevant statute to find abuse.
In response to Father’s attorney’s comments regarding the CPS records, the BIA attorney stated: “CPS did specifically note, as recently as May 24th of this year, ‘This case will be closed as a rule out, though the actions of [Father] are disturbing. There was no sexual gratification to note.’”
The court then addressed whether there were reasonable grounds to believe that M.S. had been abused or neglected. It stated that abuse can be mental injury, which manifests as physical harm to the child. In the court’s view, the BIA’s motion fit within FL §§ 5-701 and 9-101.12
The court considered Ms. Kellman’s testimony with respect to the “effect between the recordings and the physical effect it was having on [M.S.],” and the “mental injury that was happening.” Father had made it clear that he did “not see a reason to stop” recording, and the court believed that Father would continue to record M.S. because he thought it would help “his cause.” The court stated that the recording was harming M.S. and causing him injury. Based on the court’s assessment of Father’s demeanor, the court did not think that was going to change.
The court continued:
[C] onsistent with [FL §] 9-101, the Court is going to order the following. The Court is going to award [Mother] in this matter temporary sole legal and physical custody of [M.S.].
I am going to give [Father] supervised visitation now twice per week, one hour each session. * * *
I made this ruling mindful of what [Father’s] counsel pointed out, which is predetermining the case. And I will just indicate that it is not.
I understand there is going to be more that is going to be presented and the Court is willing as far as the ultimate permanent custody decision. This is not reflective of what that will be.
Father and Mother had indicated that legal custody was “completely unworkable,” and M.S. was not receiving necessary care. The court stated: “[T]his is the resolution of the [c]ourt based on the reasonable grounds it has before us, pending ultimate
permanent resolution. But that will be the emergency order I submit.”
B. Analysis
Prior to argument, we requested the parties to address whether Father’s challenge to the temporary emergency order issued on November 10, 2022, was moot, given that the court subsequently issued a final custody order in July 2023. Mother argues that, because the temporary emergency order is no longer in existence, any challenge to this order is moot. Father argues that the challenge to the temporary order is not moot because that ruling tainted the final ruling.
“A case is deemed moot when ‘there is no longer an existing controversy between the parties, so that there is no longer any effective remedy which the court can provide.’” State v. Crawford, 239 Md. App. 84, 112 (2018) (quoting Powell v. Md. Dep’t of Health, 455 Md. 520, 539 (2017)). “Courts generally do not address moot controversies.” Id.
This Court addressed a similar claim in Wagner v. Wagner, 109 Md. App. 1, cert. denied, 343 Md. 334 (1996). In that case, the court issued a temporary order giving Mr. Wagner custody of the child after a 1992 hearing during which Ms. Wagner was not present. Id. at 8, 13. It issued a final custody order in 1994. Id. at 20.
On appeal, Ms. Wagner argued that her due process rights were violated when the court entered the 1992 order in her absence. Id. at 22. This Court noted that, although “interlocutory orders in domestic cases may, in most instances be appealed after a final order, in some circumstances, the final order moots the issues that might have existed earlier in the proceedings.” Id. We noted that the circuit court made a final ruling in 1994, and this Court “lack[ed] the power to reverse time in order to transfer the child’s custody between 1992 and 1994 to Ms. Wagner, even were we to desire to do so,” and therefore, “no remedy [was] now possible.” Id. at 22–23.
Similarly, here, we cannot do anything to reverse time to address custody between November 2022 and July 2023. Accordingly, no remedy is possible, and the first issue raised by Father is moot.13
II.
Child Support Modification
Father contends that the circuit court erred by “incorrectly calculating the child support calculation and misapplying Kaplan v. Kaplan, [248 Md. App. 358 (2020)].” Although the court stated that, based on the child support guidelines, Father should pay child support in the amount of $4,695, it determined that an upward deviation of $305 was appropriate, “making [Father’s] total child support obligation to be $5,000 a month.”
Father argues that the “record reflects little to no analysis as to why” the court ordered “an upward deviation of $305,” and the court’s decision “does not provide an analysis of the relevant factors; that is what the parties’ financial circumstances are or the financial needs of the child, to name a few.” He contends that, “without an analysis specifying what facts the court considered,” the court’s decision should be reversed, with a “mandate
that all child support calculations that are above-Guidelines require an analysis specifying what facts the Court considered.”
Mother contends that the circuit court “acted within its wide discretion when it fashioned an above-guidelines child support award based on the parties’ disparate financial status and the needs of the child.” She asserts that the “record reflects the court’s thorough consideration of the parties’ financial circumstances prior to setting its child support award.”
A. Proceedings Below
Father provided testimony with respect to his earnings between 2015 and 2021. In 2019, Frontline Physicians received $446,050 in earnings through its contract with Veterans Evaluation Services, Inc., and Father reported individual income totaling $344,877. In 2020, Frontline Physicians reported income totaling $434,525, and Father reported $387,595 in income. In 2021, Frontline Physicians’ income reflected earnings in the amount of $434,797, and Father received distributions totaling $359,288.
On March 16, 2022, Father filed a short-form Financial Statement indicating his monthly income (before taxes) was $15,000.14 On April 22, 2022, a month later, Father filed a longform Financial Statement reporting his monthly income (before taxes) as $12,000. The court found that his evidence showed a “lack of credibility and candor to the Court.” It also found that the evidence showed that Father began hiding money starting in 2022.
On October 18, 2022, Mother filed a long-form Financial Statement reporting her monthly income to be $4,336.72, including $2,500 in child support she was receiving from Father. Additionally, in 2022, Mother’s family had provided approximately $18,500 in loans to assist her.
In assessing Father’s income, and the court’s assessment that Father lacked credibility, the court noted that, in 2022, Father’s company received payments from January through mid-October totaling $353,145. Considering all the evidence presented, the court found Father’s income to be $434,797.
With respect to Mother’s income, the court noted her longform Financial Statement filed in October 2022, which listed monthly wages of $2,209. For purposes of calculating child support, the court used the “statement of her income for purposes of her mortgage in 2021 of $46,800” as an accurate figure regarding Mother’s income.
In making a child support determination, the court considered several other factors. The court noted Mother’s concern that M.S. “may not be eligible for health care through the State if her income . . . is too high.” Although no evidence was submitted with respect to costs associated with health insurance, the court did note that it “was a concern that was raised.” The court stated: “Several factors were relevant in setting child support, including the parties’ financial circumstances, the reasonable expenses of the child and parties’ station in life, their age and physical condition, and expenses in educating the child.”
Based on Father’s annual income amounting to $434,797, and Mother’s annual income amounting to $46,800, the court found that the combined monthly income of the parties was $40,133, making this case an above-guidelines case. The court
stated that a guidelines approach would provide monthly child support in the amount of $4,695. The court then stated: Having considered the guidelines and the general principles underlying them, all of the financial income and assets of the parties, as well as importantly the medical, education and social needs of [M.S.], as well as the expenses I reasonably anticipate to provide for him, considering all of the evidence before me[,] I will order [Father] to pay child support to [Mother] in the amount of $5,000.
B.
Analysis
The determination of child support is made pursuant to FL § 12-204. Accord Kaplan, 248 Md. App. at 386 (“The calculation of a child support award is governed by FL § 12-204.”).
“The statute includes a schedule for the calculation of child support, commonly referred to as the ‘Guidelines,’ when the parties’ combined adjusted actual income ranges from $15,000 to $180,000.”15 Kaplan, 248 Md. App. at 386. “[I]n cases where the ‘combined adjusted actual income exceeds the highest level specified in the schedule . . ., the court may use its discretion in setting the amount of child support.’” Id. (quoting FL § 12-204(d)). In these “above-Guidelines case[s], ‘the court may employ any rational method that promotes the general objectives of the child support Guidelines and considers the particular facts of the case before it.’” Id. at 387 (quoting Malin v. Mininberg, 153 Md. App. 358, 410 (2003)).
A decision relating to a child support award is made by balancing “the best interests and needs of the child with the parents’ financial ability to meet those needs.” Voishan v. Palma, 327 Md. 318, 329 (1992) (quoting Unkle v. Unkle, 305 Md. 587, 597 (1986)). The court should consider factors such as “the financial circumstances of the parties, their station in life, their age and physical condition, and expenses in educating the child[].” Id. (quoting Unkle, 305 Md. at 597). Accord Kaplan, 248 Md. App. at 387. “[T]he guiding principle in family law cases that involve children is the children’s ‘indefeasible right’ to have their best interests fully considered.” Id. (quoting Flynn v. May, 157 Md. App. 389, 410 (2004)).
Father does not dispute that this is an above-guidelines case, in which the court has significant discretion in the award of child support. As we have explained, on appeal in such a case:
“[W]e will not disturb a ‘trial court’s discretionary determination as to an appropriate award of child support absent legal error or abuse of discretion.’” Ruiz v. Kinoshita, 239 Md. App. 395, 425, 197 A.3d 47 (2018) (quoting Ware v. Ware, 131 Md. App. 207, 240, 748 A.2d 1031 (2000)); see also Frankel v. Frankel, 165 Md. App. 553, 587–88, 866 A.2d 136 (2005); Rock v. Rock, 86 Md. App. 598, 607, 587 A.2d 1133 (1991). “As long as the trial court’s findings of fact are not clearly erroneous and the ultimate decision is not arbitrary, we will affirm it, even if we may have reached a different result.” Malin, 153 Md. App. at 415, 837 A.2d 178 (quotations and citation omitted).
Kaplan, 248 Md. App. at 385.
Here, the court determined that Father’s annual income was $434,797 and Mother’s annual income was $46,800, resulting in a combined adjusted monthly income of $40,133. Father does
not dispute these findings. Rather, his contention is that the court abused its discretion in awarding monthly child support of $5,000, as opposed to an amount of $4,695 following the guidelines, without explaining why the upward deviation of $305 a month was warranted.
He cites no case, however, in support of his argument that such a detailed analysis was required. Rather, as indicated, our review is limited to determining whether the circuit court’s decision was clearly erroneous or arbitrary. See Kaplan, 248 Md. App. at 385. Given the broad discretion the statute affords a court in setting the amount of child support in above-guidelines matters, and the discussion by the court setting forth its reasoning, we cannot say that the court abused its discretion in ordering Father to pay child support in the amount of $5,000 a month.
III. Legal Fees
Father next contends that the circuit court erred in ordering him to pay all of the BIA’s legal fees in the amount of $22,579.66, and $19,650 of Mother’s attorney’s fees. He argues that the court “incorrectly determined [Mother’s] income,” and that it “wanted [Mother] to win big and [Father] to lose big,” so it “created its own conclusion without reference to the facts of the case.”
Mother contends that the circuit court’s “ruling regarding BIA fees and attorney’s fees met the requirements of [FL] § 12-103(b).” She argues that the court properly considered the required factors and exercised its discretion in determining Father’s appropriate contribution toward the fees. She asserts that the court’s “factual findings regarding [Mother’s] income [were] not clearly erroneous and should not be disturbed.”
A. Proceedings Below
In assessing the BIA’s request for legal fees, as well as Mother’s request for an award of attorney’s fees, the court noted that it considered the factors set forth in FL § 12- 103, which provides that a court “may award costs and counsel fees that are just and proper under all the circumstances.” The court noted that it had to 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.” The court noted that it had considered and discussed the parties’ financial status and needs in addressing child support.
With respect to the BIA’s fees, the court noted that the BIA was appointed at Father’s request. Father agreed to “pay for the costs of [the] best interest attorney subject to any potential reallocation at trial,” but he did not do so, stating that he did not have the money. The court stated that it did not find Father’s explanation credible and believed that he stopped paying because he was angry at the BIA for recommending that M.S. attend school near Mother.
The court stated that it had considered the financial status and needs of the parties. It noted that Father requested the BIA and agreed to pay, but he did not pay even though he had the means. The court found that Father’s conduct “has and will continue to create a great deal of work for the BIA,” noting Father’s disruptions with Ms. Kellman and the “extra effort . . . expended
by the BIA” having to address those disruptions, and Father’s “abuse and alienating behavior” relating to M.S. which “added even more demands on [the BIA’s] time.” The court found that Father’s behavior “created much of the work” the BIA had done, noting Father’s “disruptions with providers, issues at the Visitation Center and his aggressive communication with [the BIA].”
In assessing the BIA’s legal fees, the court found them to be “reasonable and appropriate.” It issued a money judgment against Father in the amount of $22,579.66 in favor of the BIA.16
With respect to Mother’s request for attorney’s fees, the court noted that there were total fees of $29,412.50. Father had paid $9,000, leaving an outstanding balance of $20,412.50. The court found that Father’s conduct “unnecessarily increased the legal fees for [Mother] given his approach and behavior,” and it did not find good cause to the contrary. The court stated: “[J]ust as I described in discussing the BIA, I do believe the same conduct of [Father] likewise unnecessarily increased the legal fees for [Mother] given his approach and behavior.” The court also noted that it believed Father had assets other than what had been disclosed. In considering all the factors and what was “just and proper,” the court ordered Father to pay Mother $10,000 “toward the attorney fees expended in this matter which is in addition to the previous [$]9,000 already paid.”
B. Analysis
“We review an award of attorney’s fees in family law cases under an abuse of discretion standard.” Sang Ho Na v. Gillespie, 234 Md. App. 742, 756 (2017). This Court “will not disturb a circuit court’s award of attorney’s fees ‘unless a court’s discretion was exercised arbitrarily[,] or the judgment was clearly wrong.’” Id. (quoting Petrini v. Petrini, 336 Md. 453, 468 (1994)).
The award of expenses in a family law case is governed by FL § 12-103 which, in relevant part, states:
(a) The court may award to either party the costs and counsel fees that are just and proper under all the circumstances in any case in which a person:
(1) applies for a decree or modification of a decree concerning the custody, support, or visitation of a child of the parties;
(b) Before a court may award costs and counsel fees under this section, 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.
(c) Upon a finding by the court that there was an absence of substantial justification of a party for prosecuting or defending the proceeding, and absent a finding by the court of good cause to the contrary, the court shall award to the other party costs and counsel fees.
“To determine whether a court abused its discretion, we examine the court’s application of the statutory factors to the unique facts of the case.” Sang Ho Na, 234 Md. App. at 756.
Father contends that the court’s award of fees was erroneous because it “incorrectly determined [Mother’s] income.” We disagree. The court noted that there was inconsistent evidence regarding the parties’ income, but it determined that the income Mother reported for her mortgage application, $46,800 per month, was an “accurate figure, as to what [her] income truly is.” Noting Mother’s assets and liabilities, the court found credible Mother’s testimony that she had borrowed money from friends and family to assist with legal fees. The court’s finding in this regard was not clearly erroneous. See Best v. Fraser, 252 Md. App. 427, 434 (2021) (we review factual findings for clear error).
Moreover, the court found that Father’s actions “unnecessarily increased the legal fees” for Mother and the BIA. The court heard testimony from Mother that Father was attempting to bankrupt her through the various court actions. She stated: “[H] e knows that I can’t afford the court fee or the lawyer, but he still put me through court because he intentionally know that I can’t afford.” The court found Father’s behavior warranted an order requiring him to pay the fees. Given the broad discretion afforded to the circuit court to make a determination with respect to the allocation of legal fees, we conclude that the court did not error or abuse its discretion in its award of fees.
JUDGMENTS OF THE CIRCUIT COURT FOR CARROLL COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 In the interest of privacy, we refer to the minor child by the initials, M.S.
2 On August 10, 2022, Father sent the following e-mail, in relevant part, to Mother:
[M.S.] will attend Sandymount Elementary School as he wishes to be with me despite your berating him with statements of him not being able to attend school where his father lives! The evidence is clear in this matter[,] and I will not have [M.S.] enrolled into a place less superior than where I would like him to go and to contin-
ue to be with a parent who will not give access to our son to be with his father; not even a phone call or vacation with me! It would fundamentally destroy [M.S.] to not see me!
[M.S.] has made it abundantly clear to all parties that he wants to live and go to school in Carroll county with his father!
3 Father did not revoke his consent for M.S. to continue therapy with Mother.
4 Father hired Ms. Kellman following his decision to terminate services with M.S.’s previous therapist, MPB Group, Inc.
5 Father’s e-mail also stated:
I am the one also paying for the therapy sessions!! So, [Mother] can wait in the car after dropping [M.S.] off for therapy and I will be there waiting for him because even the 5 minutes we get to see each other means the world to me and [M.S.]!
6 A Schedule K-1 (Form 1120-S) is used by corporations to report income and expenses, and includes information related to distributions. See 33 Am. Jur. 2d Federal Taxation ¶ 5810 (2024).
7 Mother testified that M.S. had improved “physically and mentally” since the temporary custody order and supervised visitation were put in place. M.S. was happier, less nervous, and calmer. She stated that M.S.’s health had improved, and he had gained weight. The custody order allowed her to establish a routine for M.S. that allowed him to go to bed early and to wake up early in the morning.
8 On August 12, 2022, the Circuit Court for Carroll County ordered Mother to “immediately enroll [M.S.] at Hanover Hills Elementary School.” Mother’s home was located approximately two minutes away by car or a seven-minute walk.
9 In Taylor v. Taylor, 306 Md. 290 (1986), the Supreme Court set forth the following factors: (1) willingness of parents to share custody; (2) fitness of parents; (3) relationship established between the child and each parent; (4) preference of the child; (5) potential disruption of child’s social and school life; (6) geographic proximity of parental homes; (7); demands of parental employment; (8) age and number of children; (9) sincerity of parents’ request; (10) financial status of the parents; (11) impact on state or federal assistance; and (12) benefit to parents. Id. at 307–11.
10 In Montgomery Cnty. Dep’t of Soc. Servs. v. Sanders, 38 Md. App. 406 (1978), this Court established the following factors: (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 opportunity for visitation; (8) length of separation from the natural parents; and (10) prior voluntary abandonment or surrender. Id at 420.
11 The record extract provided by the parties contains documents relating to Father’s supervised visitations after the court’s order. Although these records do not involve the propriety of the court’s ruling here, we note that they indicate Father’s questioning of M.S., which made the visitation center’s staff uncomfortable, and that Father ended all visitation with M.S. on August 18, 2023.
12 Md. Code Ann., Family Law (“FL”) § 9-101 (2019 Repl. Vol.) provides, in relevant part, as follows:
(a) Determination by court. – In any custody or visitation proceeding, if the court has reasonable grounds to believe that a child has been abused or neglected by a party to the proceeding, the court shall determine whether abuse or neglect is likely to occur if custody or visitation rights are granted to the party.
(b) Specific finding required. – Unless the court specifically finds that there is no likelihood of further child abuse or neglect by the party, the court shall deny custody or visitation rights to that party, except that the court may approve a supervised visitation arrangement that assures the safety and the physiological, and emotional well-being of the child.
The term “abuse” means: “the physical or mental injury of a child under circumstances that indicate that the child’s health or welfare is harmed or at substantial risk of being harmed . . . by a parent.” FL § 5-701(b)(1)(i).
13 Father contends that the temporary order tainted the final order and essentially ended the trial. We disagree. As shown in the facts set forth, supra, the court expressly stated that the temporary order did not predetermine the final order, the court heard two more days of testimony after the temporary order, and it made detailed findings of fact in its final ruling, based on evidence received before and after the November 2022 temporary order. Moreover, it is with ill grace that Father now argues the delay in the final ruling was prejudicial when the delay primarily was due to the court granting FATHER’s motion to postpone the continuation of hearings after the court issued the temporary order.
14 Between January 3, 2022, and October 17, 2022, Frontline Physicians received $353,145 in deposits from Veterans Evaluation Services, Inc. Father did not dispute this figure during his testimony.
15 “Combined adjusted actual income” is defined as “the combined monthly adjusted actual incomes of both parents.” FL § 12-201(f). When the motion to file custody was filed in February 2022, the highest level specified in the guidelines was $180,000. See FL § 12-204(e) (amended by 2020 Md. Laws 1959–86, as amended by Acts 2021, Ch. 305, § 1). Although the General Assembly subsequently expanded the guidelines to $360,000, effective July 1, 2022, the changes applied only to cases filed after the effective date of the Act. See FL § 12-204(e) (2023 Supp.); 2020 Md. Laws 1986.
16 In its order, the circuit court ordered $22,579.66 “be reduced to a Money Judgment against [Father]” in favor of the BIA. Father challenges this order, but not the further order for Father to pay $10,650 “for legal services rendered by the [BIA]” from February 1, 2023, through May 23, 2023.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Harford County Circuit Court’s denial of the husband’s motion to shield records related to two protective orders filed by his former wife.
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.
“subject to” the same balancing test described above. Fam. Law § 4-512(e)(1)(v).
In this case, Appellant Mr. Z. petitioned the Circuit Court for Harford County under Section 4-512 to shield the records related to two protective orders. Mr. Z.’s ex- wife, Appellee Ms. M., was the petitioner on both. The first protective order was denied and dismissed in 2007.8 The second protective order, to which Mr. Z. consented in 2018, was sought by Ms. M. on behalf of the parties’ minor son, C. Ms. M. objected to both shielding requests. After an evidentiary hearing, the circuit court denied them. Mr. Z.’s timely appeal followed.
Mr. Z. presents three questions, which we have slightly rephrased:
This appeal1 concerns the shielding of judicial records related to domestic violence protective orders.2 Section 4-512 of Maryland’s Family Law Article provides two separate shielding procedures: Subsection (d) applies to records for protective order petitions that were denied or dismissed, while Subsection (e) applies to records for petitions that were granted with the respondent’s consent.3 Under both subsections, whether the petitioner objects or consents to shielding is relevant, but even if the petitioner does consent, the court retains discretion over the ultimate decision. Nonetheless, as we discuss below, the procedures are not entirely the same. This appeal focuses mainly on a dismissed protective order, so Subsection (d).
For protective orders that were denied or dismissed (Subsection (d)), the petitioner’s objection to shielding does not, by itself, preclude shielding. Instead, on finding that four predicate requirements4 are met (none of which is the petitioner’s consent), the court “shall” shield “all court records relating to the proceeding”5 unless it finds “good cause” to deny shielding. Whether good cause exists is a question that may be raised by the court on its own motion or on the objection of the petitioner. In determining whether there is good cause to deny shielding, the court must “balance the privacy of the petitioner or the respondent and potential danger of adverse consequences to the petitioner or the respondent against the potential risk of future harm and danger to the petitioner and the community.”
Fam. Law § 4-512(d)(4)(ii).
As for protective orders that were entered with the respondent’s consent, in order for the court to grant shielding under Subsection (e), the petitioner must consent to respondent’s shielding request.6 If the petitioner does not consent, the court must deny the shielding request.7 Still, even if the petitioner does consent to shielding (and the court finds that four other predicates are met), the court is not required to shield the records. Instead, the court “may” shield the records
1. Whether the trial court incorrectly interpreted the statutory phrases “future harm” and “potential danger” when it engaged in its “good cause” balancing test, which was required when Appellee did not consent to shielding of a dismissed protective order.
2. Whether the trial court’s decision to deny the petition to shield was an abuse of discretion in light of the testimony that fifteen years had gone by since the protective order was dismissed, the parties led separate lives, only interacted regarding their son, with the Appellant only yelling at the Appellee over the phone during that time, among other evidence.9
3. Whether the trial court committed reversible error when it sustained an objection based on Md. Rule 5-408 and thus excluded material and probative impeachment testimony of negotiations about Appellee’s willingness to withdraw her opposition to the shielding in exchange for a truck.
For the reasons stated below, we answer “no” to all three questions. We therefore affirm the judgments of the circuit court.
BACKGROUND
We start with some background about the parties and the protective orders and then move to the shielding hearing (and decision) that generated this appeal.
In 2007, Ms. M. petitioned the circuit court for a protective order against Mr. Z. She did so while the parties’ divorce case was pending in the same court. In her petition, Ms. M. alleged that Mr. Z. had abused her in various ways. With the circuit court’s approval, the parties agreed to the denial and dismissal of Ms. M.’s petition and the “placement” of an agreement in their divorce case.10
In 2018, Ms. M. petitioned for protection from Mr. Z. not for herself but on behalf of the parties’ minor son, C. Ms. M. alleged that Mr. Z. forced C., then thirteen years old, to smoke marijuana with him. Unlike the 2007 protective order, Mr. Z. consented to the 2018 protective order. Thus, the circuit court issued a final protective order against Mr. Z. that lasted four months. For clarity, we refer to the 2007 protective order as “Denied PO” and the 2018 protective order as “Consent PO.”
Under the terms of the Consent PO, Ms. M. was awarded primary physical custody of C.; legal custody was to “remain joint.”11 Thereafter, C. lived with Ms. M. until late 2021, when he temporarily moved in with Mr. Z. He resumed living with Ms. M. around May 2022.
In June 2022, Mr. Z. requested shielding of records related to both protective orders. Ms. M. opposed both requests. After granting Ms. M’s request for consolidation, the court, consistent with Section 4-512(d)(1) and Section 4-512(e)(1)(ii), scheduled a hearing on both requests.12
At the shielding hearing, the circuit court heard testimony from Mr. Z., Ms. M., and C.13 Mr. Z. testified that he had had little contact with Ms. M. since their divorce, but that he and C. had a good relationship and did many activities together. Relevant to this appeal, the circuit court prevented Mr. Z. from testifying during direct examination about purported settlement negotiations with Ms. M. Counsel proffered that Mr. Z. would have testified that he and Ms. M. had been discussing a settlement agreement whereby Ms. M. would drop her opposition to shielding in exchange for Mr. Z. returning a truck that he had purchased for C. but later repossessed. On cross-examination, counsel for Ms. M. brought up Mr. Z.’s alcohol use. Mr. Z. confirmed that two years prior, he had entered in- patient rehabilitation for alcohol abuse but admitted that he still drank “occasionally.”
Ms. M. testified that she was afraid of Mr. Z. She testified that while she had not had physical contact with him since their divorce, when they spoke on the phone, he often yelled at her and used abusive language. Ms. M. testified that on one call, Mr. Z. threatened her: “I will end your world, you f ing c t.” According to Ms. M., Mr. Z. made this threat during a phone conversation about paying tuition for C. This conversation took place in the “last few years,” but Ms. M. did not provide a date. Elsewhere, Ms. M. identified two occasions within the last year when Mr. Z. had yelled “vulgar obscenities” at her over the phone.
C., seventeen years old at the time of the hearing, testified about his experiences while living with Mr. Z. Mr. Z. provided C. with beer and allowed him to drink alcohol and smoke marijuana. Mr. Z. was himself drunk “every day[,]” according to C., even following his stay at the rehabilitation facility. On one occasion, C. observed Mr. Z. attempt to drive while intoxicated.
C. also testified about Mr. Z.’s anger issues. C. testified that he “would get yelled at for anything [Mr. Z.] could come up with.” C. described one particularly dramatic dispute during which Mr. Z. threatened to kick C. out of the home. On that occasion, Mr. Z.’s yelling “scared” C., and he subsequently left Mr. Z.’s home to stay with a friend.
Following closing argument, the circuit court denied Mr. Z.’s shielding requests and delivered an oral opinion. The cir-
cuit court began by noting that Ms. M. opposed both of Mr. Z.’s shielding requests. Under Section 4-512(e)(1)(iv)(1), the circuit court was therefore obligated to deny Mr. Z.’s request to shield the Consent PO records.
With regard to the Denied PO, the circuit court found “good cause” to deny shielding even though the predicate requirements had been satisfied. The circuit court explained: What the Court has heard in this case is that this has continued to be – and when I say “volatile,” I don’t mean physically volatile. I haven’t heard any evidence of recent physical encounters between the parties, but that this has remained a volatile relationship where it’s challenging for the parties to communicate. […]
[T]he testimony that we’ve received from [Mr. Z.] is that he’s a business owner; he has concerns that this information being available to the public is a potential harm to his business. I have no doubt that his concerns within that respect are sincere and legitimate. However, I also find that the concerns raised by the original petitioners in this case remain legitimate concerns that they have with regard to any future damage that might be concerned. There’s a continued volatile relationship between the parties. I don’t need to get into the weeds of there could be a very sincere, valid argument as to why [Mr. Z.] may have repossessed, for lack of a better term, the vehicles if payments weren’t being paid. It sounds like there have been arguments that have occurred between him and his son with respect to communications which he and his wife may have deemed to be inappropriate that the child viewed as joking but that the parent, stepparent, didn’t view as such.
But the Court, in balancing the privacy concerns of [Mr. Z.] with regards to the concerns of [Ms. M.] and [C.] for any future harm, simply falls on the side of the original petitioner, that I do not believe that this is an appropriate matter to be shielded at this time. So I will deny the petition to shield. A standard form Order followed, listing both case numbers, and memorializing the circuit court’s decision. The circuit court noted that Ms. M. “appeared at the hearing and objects to the shielding.” After performing the requisite balancing test, the circuit court found good cause to deny shielding based on the “[o] ngoing contentious relationship” between the parties and “[a] llegations of continuing threats.”
MR. Z.’S CONTENTIONS
Mr. Z. contends that the circuit court erred in not granting his request to shield the Denied PO records under Section 4-512(d).14 First, he argues that the circuit court incorrectly interpreted the phrase “potential risk of future harm and danger” in the Subsection (d) balancing test. Fam. Law § 4-512(d) (4)(ii). Second, he argues that the circuit court abused its discretion in applying that balancing test. Third, he argues that the circuit court committed prejudicial error in excluding his testimony about purported settlement negotiations with Ms. M. We disagree with all of Mr. Z’s arguments. After outlining the proper standards of review that apply here, and identifying one question that is not properly before us, we explain why we disagree.
STANDARD OF REVIEW
We review questions of statutory interpretation de novo. Damon v. Robles, 245 Md. App. 233, 243 (2020). We review a circuit court’s discretionary decisions for abuse of discretion. Sumpter v. Sumpter, 436 Md. 74, 82 (2013) (“Discretionary trial court matters are much better decided by the trial judges than by appellate courts, and the decisions of such judges should only be disturbed when it is apparent that some serious error or abuse of discretion or autocratic action has occurred.”). To warrant reversal for abuse of discretion, the circuit court’s decision must be “well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable. That distance can arise in a number of ways, among which are that the ruling either does not logically follow from the findings upon which it supposedly rests or has no reasonable relationship to its announced objective.” North v. North, 102 Md. App. 1, 14 (1994). Finally, we review decisions about the admissibility of evidence either under an abuse of discretion standard or de novo depending on the specifics of the issue. If the appealed evidentiary ruling involved “discretionary weighing of relevance in relation to other factors[,]” we apply the abuse of discretion standard, but we review de novo any evidentiary ruling that “involves a pure legal question.” Hall v. Univ. of Md. Med. Sys. Corp., 398 Md. 67, 82 (2007) (quoting Bern–Shaw Ltd. P’ship v. Mayor of Balt., 377 Md. 277, 291 (2003)).
DISCUSSION
I. If Mr. Z. had intended to challenge the denial of shielding of the Consent PO records, we do not address it.
To the extent that Mr. Z. appears to challenge the circuit court’s denial of his request to shield the Consent PO records, that challenge is not properly before us because Mr. Z. has presented no question or argument about the circuit court’s denial of this request. An appellate brief must include “[a] statement of the questions presented, separately numbered, indicating the legal propositions involved and the questions of fact at issue.” Md. Rule 8-504(a)(3). Additionally, a brief must have “[a]rgument in support of the party’s position on each issue.” Md. Rule 8-504(a)(6). Our Supreme Court has interpreted Rule 8-504 as a requirement that an appellant “articulate and adequately argue all issues the appellant desires the appellate court to consider in the appellant’s initial brief.” Oak Crest Village, Inc. v. Murphy, 379 Md. 229, 241 (2004). Thus, “arguments not presented in a brief or not presented with particularity will not be considered on appeal.” Klauenberg v. State, 355 Md. 528, 552 (1999). Although we strive to read appellants’ briefs generously and we make a good-faith effort to resolve ambiguities and inconsistencies therein, we are not obliged to “delve through the record” or seek out additional legal authority to fill gaps in an appellant’s arguments. Rollins v. Cap. Plaza Assocs., L.P., 181 Md. App. 188, 201–02 (2008).
Here, to be sure, Mr. Z.’s brief mentions the circuit court’s denial of his request to shield the Consent PO records, but he presents no questions about this decision or arguments about why it is wrong. Plainly read, Mr. Z’s first two questions refer only to the Denied (or dismissed) PO.15 Although the scope of
Mr. Z’s third question is somewhat less clear, the corresponding section in Mr. Z.’s brief refers to a singular “shielding request” and invokes only the “good cause” provision found in Subsection (d), the provision that applies to the shielding of denied or dismissed protective orders, not consent protective orders.16 In sum, Mr. Z. has not adequately challenged—much less presented a legal argument with particularity about—the shielding of the Consent PO records.
Even if Mr. Z. had challenged the circuit court’s denial of his request to shield the Consent PO records, we would likely have concluded that there is no basis for overturning the circuit court’s decision. Before the evidentiary hearing, Ms. M. unequivocally opposed the shielding of both protective orders. She repeated this position at the evidentiary hearing. Under Section 4-512(e)(1)(iv)(1), the petitioner’s consent is required to shield a consented-to protective order. While the Consent PO protected C., Ms. M. was the petitioner, and thus her consent to shielding—not C.’s, as Mr. Z. suggests—was required under Section 4-512(e)(1)(iv)(1). That consent was absent here, and thus the circuit court could not have granted Mr. Z.’s request to shield the Consent PO.17
II. Section 4-512(d)(4) of the Family Law article does not require a showing of “abuse” in order to find “good cause” to deny shielding.
Mr. Z. first contends that, as a matter of law, the trial court incorrectly interpreted Sections 4-512(d)(4)(ii). Mr. Z. argues that the terms “harm” and “danger” in subsection (ii) must be understood according to the context of the statutory scheme in which they appear. Section 4-512 appears in a subtitle called “Domestic Violence,” so Mr. Z. argues that Section 4-512(d)(4)(ii) must be read through the lens of domestic violence. Specifically, Mr. Z. argues for narrowly interpreting both “harm” and “danger” in terms of “abuse” as defined in the Domestic Violence subtitle’s definitions section. Fam. Law § 4-501(b)(1).18
As noted earlier, we review questions of statutory interpretation de novo. Damon, 245 Md. App. at 243. When interpreting a statute, our primary objective is to “ascertain the General Assembly’s purpose and intent when it enacted the statute.” Berry v. Queen, 469 Md. 674, 687 (2020). “To ascertain the intent of the General Assembly, our analysis begins with the normal, plain meaning of the language of the statute.” Wheeling v. Selene Finance LP, 473 Md. 356, 376 (2021). To carry out this analysis, “we read the plain meaning of the statute as a whole, so that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory.” Id. (internal quotation omitted). When a statutory term is not expressly defined, we often look to dictionary definitions to discern the “ordinary and popular meaning of the term.” Vanderpool v. State, 261 Md. App. 163, 312 A.3d 803, 813 (2024) (cleaned up).19
Our inquiry begins with a provision’s language, but it does not necessarily end there, as “[t]he meaning of the plainest language is controlled by the context in which it appears.” Brown v. State, 454 Md. 546, 551 (2017) (quoting Stickley v. State Farm Fire & Cas. Co., 431 Md. 347, 359 (2013)). Ultimately, a provision’s plain language “must be viewed within the context of the statutory scheme to which it belongs, considering the purpose,
aim or policy of the Legislature in enacting the statute.” Berry, 469 Md. at 687 (internal quotations omitted).
The overarching purpose of the analysis of a statute’s plain language is “to ascertain whether the statute is ambiguous.” Vanderpool, 312 A.3d at 813. A statutory provision is ambiguous when its language is “subject to more than one interpretation, or when the terms are ambiguous when it is part of a larger statutory scheme.” Int’l Ass’n of Fire Fighters v. Mayor & City Council of Cumberland, 407 Md. 1, 9 (2008). To resolve such ambiguity, we look to other evidence of the legislature’s intent, including “the statute's legislative history, case law, statutory purpose, as well as the structure of the statute.” Id. On the other hand, when a provision’s language is clear and unambiguous, both in isolation and when read as part of a larger statutory scheme, then “we need not look beyond the statute’s provisions and our analysis ends.” Brown, 454 Md. at 551 (2017) (quoting Phillips v. State, 451 Md. 180, 196-97 (2017)). When that is the case, we simply “apply the statute as written, without resort to other rules of construction,” and “[w]e neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute, and we do not construe a statute with forced or subtle interpretations that limit or extend its application.” Lockshin v. Semsker, 412 Md. 257, 275 (2010) (internal quotation omitted). Additionally, when interpreting a statutory provision “we avoid a construction of the statute that is unreasonable, illogical, or inconsistent with common sense.” Bellard v. State, 452 Md. 467, 481 (2017) (quoting Wagner v. State, 445 Md. 404, 419 (2015)).
Here, Mr. Z. does not claim that Section 4-512(d)(4)(ii) is ambiguous either by itself or in the context of its larger statutory scheme. Nor do we see any such ambiguity in the provision. Our task, therefore, is to interpret the legislature’s intent by determining the plain meaning of the statutory language.
Title 4, Subtitle 5 of Maryland’s Family Law Article (the Domestic Violence subtitle) does not define “harm” or “danger,” so to determine the plain meaning of those words we look to their “ordinary and popular meaning[,]” including as defined in dictionaries. Vanderpool, 312 A.3d. at 813. Black’s Law Dictionary defines “harm” as “[i]njury, loss, damage; material or tangible detriment,” and “danger” as “[p]eril; exposure to harm, loss, pain or other negative result.”20 As a matter of plain meaning, then, both terms are substantially broader than the narrow definition of “abuse” provided in Section 4-501(b) (1). And although Mr. Z. correctly points out that in determining the plain meaning of the terms “harm” and “danger” we may consider Section 4-512’s position in a statutory scheme focused on combatting domestic violence, that consideration does not allow us to simply ignore the actual language of Section 4- 512(d)(4)(ii).
In effect, Mr. Z. asks us to substitute the word “abuse,” as defined in Section 4- 501(b)(1), for the words “harm” and “danger” in Section 4-512(d)(4)(ii)’s phrase “potential risk of future harm and danger.” But the General Assembly did not use the word “abuse” in Section 4-512(d)(4)(ii); it used the words “harm” and “danger.” Had the General Assembly intended for courts to consider more narrowly the potential risk of future “abuse” under the Section 4-512(d)(4)(ii) balancing test, it
could have expressly used the word “abuse” in this subsection, as it did elsewhere in Subtitle 5.
There are at least two places in Subtitle 5 where, in legislating remedies for future abuse (i.e., abuse that might occur after the initial protective order), the General Assembly used the words “abuse” or “abusing.” First, in Section 4-506(c)(1)(ii), the General Assembly provided that a court may issue a final protective order “to protect any person eligible for relief from abuse.” To do so, the court may order a respondent to “refrain from abusing or threatening to abuse any person eligible for relief[.]” Fam. Law § 4-506(d)(1). Second, in Section 4-507(a)(3) (i)(1), the General Assembly provided that a protective order could be extended on finding, during the term of the protective order, “a subsequent act of abuse against a person eligible for relief.” From these provisions, it is apparent that when the General Assembly wanted courts to focus on future abuse, it said so directly by using the words “abuse” or “abusing” coupled with forward-looking language. Nothing of the sort appears in Section 4-512(d)(4)(ii) regarding shielding.
Ultimately, if the General Assembly had intended to confine the court’s discretion to deny the shielding of denied or dismissed protective order records to instances in which privacy interests (and the danger of adverse consequences) outweighed “the potential risk of future abuse,” it could have said so. It did not. Reading Section 4- 512(d)(4)(ii) as Mr. Z. suggests would “add…language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute.” Lockshin, 412 Md. at 275. We decline to read the statute this way.
III. The circuit court did not abuse its discretion in declining to shield the Denied PO records.
At the core of Mr. Z.’s appeal is his contention that the circuit court abused its discretion when it denied his shielding request for the Denied PO records. Mr. Z. argues that the circuit court’s decision was an abuse of discretion because it did not logically follow from the evidence. Specifically, he argues that the facts before the circuit court did not support finding any meaningful “potential risk of future harm and danger to the petitioner or community” on one side of the Section 4-512(d)(4)(ii) balancing test. Without such a finding, the circuit court should not have found good cause to deny the shielding request.
We review the circuit court’s weighing of the Section 4-512(d)(4)(ii) factors for abuse of discretion. As discussed above, a decision that fails to meet standards of minimum acceptability—for example, by not “follow[ing] logically from the facts found by the court”—is an abuse of discretion. North, 102 Md. App. at 14.
Mr. Z. makes two arguments to support his position. Mr. Z.’s first argument directly applies his legal theory, rejected earlier, that “harm” and “danger” as used in the Section 4-512(d)(4)(ii) balancing test are essentially equivalent to “abuse” as defined in Section 4-501(b)(1). Mr. Z. does not dispute that he threatened to “end [Ms. M.’s] world.”21 But phone conversations do not constitute “abuse,” his argument goes, and therefore were not sufficient to support a finding of good cause under the Section 4- 512(d)(4)(ii) balancing test. As we discussed above, though,
“harm” and “danger” in Section 4-512(d)(4)(ii) are not limited to “abuse.” In other words, a showing of “abuse” as defined in Section 4-501(b)(1) is not necessary to establish a “potential risk of future harm and danger to the petitioner or community” under Section 4-512(d)(4)(ii). Even if the parties’ phone conversations did not constitute “abuse” under Section 4-501(b)(1),22 so long as they tended to show whether Mr. Z. posed a “potential risk of future harm and danger” (and were otherwise admissible, which is not in dispute), the circuit court was free to consider them when balancing the Section 4-512(d)(4)(ii) factors.
Mr. Z.’s second line of argument focuses more squarely on facts bearing on the “potential risk of future harm and danger” to Ms. M. Mr. Z. points to several facts that he claims make that risk “non-existent or incredibly unlikely,”23 and thus contends that the circuit court had no factual basis for its finding of good cause. He concludes that the circuit court abused its discretion in denying his shielding request because its finding of good cause did not logically follow from the facts.
We are not persuaded. First, as discussed supra, the phrase “potential risk of future harm and danger” is broad. It encompasses a range of harms, not just “abuse” as defined in Section 4-501, and the risk of those harms may be decidedly speculative. To establish that the circuit court’s finding of good cause was an abuse of discretion, Mr. Z. would need to show that the circuit court’s determination that he posed a “potential risk of future harm and danger” did not logically follow from the facts before it or otherwise failed to meet minimum standards of acceptability. North, 102 Md. App. at 14. But the circuit court heard undisputed evidence that, construed fairly, tended to show that Mr. Z. posed such a risk; in particular, Mr. Z. threatened to “end [Ms. M.’s] world.” The circuit court’s finding that Mr. Z. posed a “potential risk of future harm or danger” to Ms. M. logically followed from that evidence.
Second, Mr. Z.’s argument only addresses the potential risk of future harm and danger to Ms. M. Even if we were persuaded by Mr. Z.’s arguments about the potential risk he poses to Ms. M.—and we are not—he does not make any argument about the potential risk he poses to the “community,” including his son C., as called for under the Section 4-512(d)(4)(ii) balancing test.24 Indeed, in performing the balancing test, the circuit court expressly stated that it weighed the concerns of both Ms. M. and C. for any “future harm[.]” The circuit court also expressed concern about Mr. Z.’s abrupt repossession of C.’s truck, which involved an unannounced and uninvited trip to C.’s school, and about C.’s testimony that Mr. Z. often yelled at him for apparently minor infractions. Because Mr. Z.’s argument fails to account for evidence related to C., evidence that the circuit court credited and properly considered in conducting the Section 4-512(d)(4)(ii) balance, we do not agree that the circuit court abused its discretion in finding good cause to deny shielding the Denied PO records.
IV. The circuit court did not commit reversible error in excluding testimony about settlement negotiations.
Mr. Z.’s final argument is that the circuit court committed reversible error when it excluded testimony related to settlement negotiations between the parties. We conclude that even if the circuit court erred in excluding the settlement negotiation evidence (an issue we do not decide), such error does not merit
reversal because Mr. Z. has not shown that he was prejudiced by it.
Under Maryland Rule 5-103(a), a trial court’s error in admitting or excluding evidence is only reversible when “the party is prejudiced by the ruling.” A party trying to establish that it was so prejudiced must show that the error complained of “was likely to have affected the verdict below.” Crane v. Dunn, 382 Md. 83, 92 (2004). Moreover, “[i]t is not the possibility, but the probability of prejudice which is the object of the appellate inquiry[,]” and “[c]ourts are reluctant to set aside verdicts for errors in the admission or exclusion of evidence unless they cause substantial injustice.” Brown v. Daniel Realty Co., 409 Md. 565, 584 (2009) (quoting Flores v. Bell, 398 Md. 27, 34 (2007)). Pursuant to Rule 5-103(a), a party alleging that it was prejudiced by erroneous exclusion of evidence must also have made the substance of the excluded evidence known to the court.25
Here, the excluded evidence pertained to alleged settlement negotiations about a pick-up truck that Mr. Z. had purchased for C. and Ms. M.’s objection to shielding:
[Counsel for Mr. Z]: Most recently, have you ever bought your son a vehicle? [Mr. Z.]: Yes.
[Counsel for Mr. Z]: Okay. What kind of vehicle?
[Mr. Z.]: I bought him an Audi A4 Quattro that got totaled and then I bought him a Dodge Ram pick-up truck.
[Counsel for Mr. Z]: Okay. And relative to that truck, were there any recent negotiations between you and your ex-wife?
[Counsel for Ms. M.]: Objection, Your Honor. There were settlement discussions between the parties. I do not think it’s relevant for this Court to hear.
[Counsel for Mr. Z]: I think it’s entirely relevant and I’d like to proffer. I believe that the former petitioner is going to testify that she is afraid for her life regarding her ex-husband. However, I want to offer to the court that she was willing to withdraw her objection --
[Counsel for Ms. M.]: Your Honor --
THE COURT: That’s settlement negotiations.
[Counsel for Ms. M] That’s settlement negotiations.
THE COURT: It’s settlement negotiations; okay? I’ll sustain the objection.
[Counsel for Mr. Z]: May I be heard on that briefly, Your Honor? THE COURT: Go ahead.
[Counsel for Mr. Z]: Settlement negotiation is designed in tort cases to get people to settle out of court. This isn’t a tort case. There’s no underlying tort case. I believe the law, that hearsay law is not relevant in this circumstance.
The circuit court sustained Ms. M.’s objection on the basis that Mr. Z.’s testimony would have concerned settlement negotiations, evidence of which is generally inadmissible under Maryland Rule 5-408 to prove “the validity, invalidity, or amount of a civil claim in dispute.”
On appeal, Mr. Z. argues that Rule 5-408 is not applicable.26 He also contends that even if Rule 5-408 did apply, the settlement negotiation evidence was admissible under Subsection (c) of that rule, which allows for admission of otherwise-barred evidence for “another purpose,” including showing bias or prejudice of a witness. Under Rule 5- 103(a), he continues,
the circuit court’s erroneous exclusion of the settlement negotiation evidence was reversible error. He asserts that his proffer sufficed to establish the substance of the settlement negotiation evidence and the way in which it would have been used. In his view, Ms. M.’s willingness to drop her objections to shielding in exchange for the return of the truck to C. would have tended to show that, contrary to her testimony, she was not actually afraid of Mr. Z.27 He concludes that such a showing “was important to [his] case for shielding and for that reason its preclusion was prejudicial.”
We perceive no probable prejudice to Mr. Z. from the exclusion of the settlement negotiation evidence, even if, as Mr. Z. contends, that evidence could reasonably have supported the inference that Mr. M. was no longer afraid of Mr. Z. To be sure, “fear of imminent serious bodily harm” is one kind of “abuse” under Section 4-501(b)(1). But, as discussed supra, “abuse,” or the potential risk of it in the future, is not what the court must weigh in performing Section 4-512(d) (4)(ii)’s balancing test. Instead, the court must look at “the potential risk of future harm and danger to the petitioner
and the community.” Fam. Law § 4-512(d)(4)(ii). Here, in performing this balancing test, the circuit court found that there was an “ongoing contentious relationship” between the parties and “[a]llegations of continuing threats.” Those findings were based on evidence that Mr. Z. continued to have issues with anger and alcohol, had threatened Ms. M. and yelled vulgar obscenities at her, and continued to have arguments with C. In the face of this evidence, we cannot conclude that exclusion of the settlement negotiation evidence would likely have affected the verdict below or otherwise caused substantial injustice to Mr. Z. Crane, 382 Md. at 92; Brown, 409 Md. at 584.
CONCLUSION
For the reasons stated above, we affirm the judgments of the circuit court. The circuit court did not err in interpreting, or abuse its discretion in applying, the balancing test in Fam. Law Section 4-512(d)(4)(ii). Nor did it reversibly err in excluding Mr. Z.’s proffered settlement negotiation evidence under Rule 5-408.
JUDGMENTS OF THE CIRCUIT COURT FOR HARFORD COUNTY AFFIRMED; COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 For the parties’ privacy, we refer to them by their abbreviated names and use only the initials of their names on the cover page of this opinion. Ms. M. shared Mr. Z.’s last name during their marriage, but her last name now begins with “M.” Thus, we have changed the caption of the case to “M. Z. v. M. M.” We also refer to the parties’ son, a minor at the time of the shielding hearing, as “C.” This initial was chosen at random and may or may not correspond to his actual name. We mean no disrespect in abbreviating the names of the parties and of their son.
2 Fam. Law Section 4-512(a)(4) defines “shielding” as:
(i) with respect to a record kept in a courthouse, removing the record to a separate secure area to which persons who do not have a legitimate reason for access are denied access; and
(ii) with respect to electronic information about a proceeding on the website maintained by the Maryland Judiciary, completely removing all information concerning the proceeding from the public website, including the names of the parties, case numbers, and any reference to the proceeding or any reference to the removal of the proceeding from the public website.
3 The terms “petitioner” and “respondent” in Section 4-512 are in reference to the initial petition for protective order, not the petition for shielding. We follow this usage throughout this opinion, and thus occasionally refer to Ms. M. as “petitioner” and Mr. Z. as “respondent.”
4 Section 4-512(d)(3) reads:
Except as provided in paragraphs (4) and (5) of this subsection, after the hearing, the court shall order the
shielding of all court records relating to the proceeding if the court finds:
(i) that the petition was denied or dismissed at the interim, temporary, or final protective order stage of the proceeding;
(ii) that a final protective order or peace order has not been previously issued against the respondent in a proceeding between the petitioner and the respondent;
(iii) that the respondent has not been found guilty of a crime arising from abuse against the petitioner; and
(iv) that none of the following are pending at the time of the hearing:
an interim or temporary protective order or peace order issued against the respondent in a proceeding between the petitioner and the respondent; or a criminal charge against the respondent arising from alleged abuse against the petitioner.
5 Under the shielding statute, “court record” means “an official record of a court about a proceeding that the clerk of a court or other court personnel keeps.” Fam. Law § 4-512(a)(2)(i). Court records include “an index, a docket entry, a memorandum, a transcription of proceedings, an electronic recording, an order, and a judgment” as well as “any electronic information about a proceeding on the website maintained by the Maryland Judiciary.” Fam. Law § 4-512(a)(2)(ii).
6 Subsections (e)(1)(iv)–(vi) provide:
(iv) Except as provided in subparagraph (vi) of this paragraph and subject to subparagraph (v) of this paragraph, after the hearing, the court may order the shielding of all court records relating to the proceeding if the court finds:
1. for cases in which the respondent requests shielding, that the petitioner consents to the shielding;
2. that the respondent did not violate the protective order during its term;
3. that a final peace order or protective order has not been previously issued against the respondent in a proceeding between the petitioner and the respondent;
4. that the respondent has not been found guilty of a crime arising from abuse against the petitioner; and
5. that none of the following are pending at the time of the hearing:
A. an interim or temporary peace order or protective order issued against the respondent; or
B. a criminal charge against the respondent arising from alleged abuse against an individual.
(v) In determining whether court records should be shielded under this paragraph, the court shall balance the privacy of the petitioner or the respondent and potential danger of adverse consequences to the petitioner or the respondent against the potential risk of future harm and danger to the petitioner and the community.
(vi) Information about the proceeding may not be removed from the Domestic Violence Central Repository.
7 Under Fam. Law Section 4-512(e)(2), the respondent may refile a shielding request denied due to lack of petitioner’s consent one year after the denial. The petitioner’s consent to shielding is no longer required for a shielding request so refiled. However, if the petitioner still does not consent to the refiled request, the court must find instead “that it is unlikely that the respondent will commit an act of abuse against the petitioner in the future.” Fam. Law. § 4-512(e)(2)(iv)(1)(B). In full, Section 4-512(e)(2) reads:
(i) If the respondent consented to the entry of a protective order under this subtitle, but the petitioner did not consent to shielding at the hearing under paragraph (1) of this subsection, the respondent may refile a written request for shielding after 1 year from the date of the hearing under paragraph (1) of this subsection.
(ii) On the filing of a request for shielding under this paragraph, the court shall schedule a hearing on the request.
(iii) The court shall give notice of the hearing to the other party or the other party's counsel of record.
(iv) Except as provided in subparagraph (vi) of this paragraph and subject to subparagraph (v) of this paragraph, after the hearing, the court may order the shielding of all court records relating to the proceeding if the court finds:
A. that the petitioner consents to the shielding; or
B. that the petitioner does not consent to the shielding, but that it is unlikely that the respondent will commit an act of abuse against the petitioner in the future;
2. that the respondent did not violate the protective order during its term;
3. that a final peace order or protective order has not been previously issued against the respondent in a proceeding between the petitioner and the respondent;
4. that the respondent has not been found guilty of a crime arising from abuse against the petitioner; and
5. that none of the following are pending at the time of the hearing:
A. an interim or temporary peace order or protective order issued against the respondent; or
B. a criminal charge against the respondent arising from alleged abuse against an individual.
8 The Order indicates that Ms. M.’s petition was denied and dismissed. For ease, we will say that it was denied.
9 Mr. Z. phrased his questions as follows:
1. Whether the trial court incorrectly interpreted the statutory phrases “future harm” and “potential danger” when it engaged in its “good cause” balancing test, which was required when Appellee did not consent to shielding of a dismissed protective order.
2. Whether the trial court’s decision to deny the petition to shield was well beyond the center mark of acceptable outcomes in light of the testimony that fifteen years had gone by since the protective order was dismissed, the parties led separate lives, only interacted regarding their son, with the Appellant only yelling at the Appellee over the phone during that time, among other evidence.
3. Whether the trial court committed prejudicial error when it incorrectly sustained objection based on Md. Rule 5-408 and thus excluded material and probative impeachment testimony of negotiations about Appellee’s willingness to withdraw her opposition to the shielding in exchange for a truck.
10 Mr. Z. states that the parties’ agreement included “non-abuse provisions” similar to those of the Denied PO. However, the terms of the agreement are not in the record.
11 This appears to be a reference to the custodial arrangements in the parties’ Judgment of Absolute Divorce (“JAD”), which issued in a separate case in 2008. The JAD awarded the parties joint legal custody of C. and shared physical custody upon a specified schedule. Thus, the 2018 Consent PO modified the JAD’s physical custody arrangements for C. (shared to primary with Ms. M.) but not the JAD’s legal custody award.
12 Section 4-512(d)(1) provides: “If a petition was denied or dismissed at the interim, temporary, or final protective order stage of a proceeding under this subtitle, on the filing of a written request for shielding under this section, the court shall schedule a hearing on the request.” Similarly, Section 4-512(e)(i)(ii) reads: “On the filing of a request for shielding under this paragraph [i.e., Subsection (e)], the court shall schedule a hearing on the request.
13 The circuit court also heard brief testimony from Ms. M.’s husband, whose testimony solely concerned an interaction with Mr. Z. about the disputed truck.
14 In response to Mr. Z.’s brief, Ms. M. filed a short response indicating that she was electing not to file an appellate brief. She did not appear at oral argument.
15 The first question refers in the singular to “a dismissed protective order[,]” and the second asks “[w] hether the trial court’s decision to deny the petition to shield was [an abuse of discretion] in light of the testimony that fifteen years had gone by since the protective order was dismissed” (emphasis added).
16 Specifically, Mr. Z. asserts: “Because Appellee objected to the shielding request, the trial court was required to engage in a ‘good cause’ balancing test.” For consent protective orders, though, a petitioner’s objection to shielding would require denial of the shielding request, and thus the court would not reach any balancing test. In any event, the phrase “good cause” appears only in Subsection (d), not Subsection (e).
17 There is nothing in the record to suggest that C. consented either.
18 Fam. Law Section 4-501(b)(1) defines “abuse” as follows: “Abuse” means any of the following acts:
(i) an act that causes serious bodily harm;
(ii) an act that places a person eligible for relief in fear of imminent serious bodily harm;
(iii) assault in any degree;
(iv) rape or sexual offense under § 3-303, § 3-304, § 3-307, or § 3-308 of the Criminal Law Article or attempted rape or sexual offense in any degree;
(v) false imprisonment;
(vi) stalking under § 3-802 of the Criminal Law Article; or
(vii) revenge porn under § 3-809 of the Criminal Law Article.
19 As of the filing of this opinion, pagination for this Court’s recently published opinion in Vanderpool is available on Westlaw only with respect to the Atlantic Reporter, not the Maryland Appellate Reports. We therefore cite to both reporters and provide pincites according to the Atlantic Reporter pagination.
20 Harm, BLACK’S LAW DICTIONARY (11th ed. 2019); Danger, BLACK’S LAW DICTIONARY (11th ed. 2019). Merriam-Webster’s definitions are similarly broad. “Harm” is defined as “physical or mental damage; injury[.]” Harm, THE MERRIAM-WEBSTER DICTIONARY (2016). “Danger” is defined as “exposure or liability to injury, harm, or evil[.]” Danger, THE MERRIAMWEBSTER DICTIONARY (2016).
21 At the shielding hearing, Mr. Z. did not challenge Ms. M.’s testimony that he made the threat. In his appellate brief, he makes this unprompted admission: “It’s not nice to have said, in times gone by, ‘I will end your world, you f ing c t. You’re a b h.’ [] But that was a long past communication from a ‘few years’ ago over which the Appellee would simply hang up the phone on the Appellant.”
22 This is not to say that verbal threats could never amount to “abuse.” Indeed, Section 4-501(b)(1)(ii) defines “abuse” to include “an act that places a person eligible for relief in fear of imminent serious bodily harm[.]” See also Frazelle-Foster v. Foster, 250 Md. App. 52, 82 (2021) (“[I]t is clear that the Maryland General Assembly and the courts understand domestic abuse to
encompass verbal and psychological abuse in addition to physical violence.”).
23 First, Mr. Z. notes the circuit court’s finding that since the disposition of the Denied PO he had not been found guilty of a crime involving abuse of Ms. M, and he asserts on that basis that he has not physically harmed Ms. M. in the fifteen years since their divorce. That history, he argues, tends to show that he is not likely to harm Ms. M. in the future. Second, Mr. Z. points to C.’s testimony that he has no desire for a future relationship with his father. Third, Mr. Z. points out that C. turned 18 shortly after the shielding hearing. He infers that C.’s emancipation means that he and Ms. M. will have little or no need to further interact, and that any risk of future harm to Ms. M. is thereby attenuated. Fourth, Mr. Z. testified that he and Ms. M. do not see one another unless they intend to because they do not share social circles or live near one another (according to Mr. Z., the parties’ respective homes are about twenty-five minutes apart by car).
24 We note that the circuit court also had evidence before it that, construed fairly, could support the conclusion that Mr. Z. posed a “potential risk of future harm and danger” to the broader community. For example, C. testified to Mr. Z.’s continuing problems with alcohol, including one occasion on which Mr. Z. tried to drive while intoxicated.
25 If the substance of the evidence was not “apparent from the context within which the evidence was offered[,]” the offering party may make a proffer to that effect. Md. Rule 5-103(a)(2).
26 Mr. Z. makes two equally unavailing arguments. First, he renews his assertion during the shielding hearing that Rule 5-408 only applies in tort cases, and thus was not applicable in the present case. We have found no such rule in Maryland statutes or case law. In fact, Maryland courts have frequently applied Rule 5-408 in non-tort cases. See, e.g, Est. of Castruccio v. Castruccio, 247 Md. App. 1 (2020) (applying Rule 5-408 in dispute over disposition of estate), Bittinger v. CSX Transp. Inc., 176 Md. App. 262 (2007) (applying Rule 5-408 in action against employer under Federal Employers’ Liability Act), Wolinski v. Browneller, 115 Md. App. 285 (1997) (overruled on separate grounds by Koshko v. Haining, 398 Md. 404 (2007)) (applying Rule 5-408 in custody dispute). Second, he insists that the only possible “civil claim in dispute” for purposes of Rule 5-408 would be a dispute over ownership of the truck. Because there was no such dispute, he concludes, Rule 5-408 is inapposite. This argument fails; the “civil claim in dispute” is Mr. Z.’s shielding petition.
27 Although we refrain from deciding whether the court erred in excluding the evidence under Rule 5-408(a) or whether any of the Rule 5-408(c) exceptions apply, we note that this use of the evidence veers close to the “validity…of a civil claim in dispute”—and thus exclusion under Rule 5-408(a) applies —rather than “another purpose” under 5-408(c) as Mr. Z. claims. Rather than challenging her credibility as a witness, Mr. Z.’s primary purpose in offering the evidence seems to have been to generate substantive evidence—Ms. M.’s alleged lack of fear of Mr. Z.—for the circuit court to weigh in the Section 4-512(d)(4)(ii) balancing test.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 07 MFLU Supp. 61 (2024)
CINA; foster mother; termination
In re: C.S.O.
No. 1619, September Term 2023
Argued before: Arthur, Leahy, Friedman, JJ.
Opinion by: Leahy, J.
Filed: May 22, 2024
The Appellate Court affirmed the Montgomery County Circuit Court’s termination of the mother’s jurisdiction over the minor and the closing of his Child in Need of Assistance case after awarding custody and guardianship to his foster mother.
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.
Ms. O., mother of C.S.O., brings this appeal from an order of the Circuit Court for Montgomery County, sitting as a juvenile court, denying her motion to reconsider the court’s earlier order terminating jurisdiction over C.S.O. and closing his Child in Need of Assistance (“CINA”) 1 case after awarding custody and guardianship to his foster mother, L.S. On appeal, Ms. O. (“Mother”) presents the following question for our review: 2
Whether the Court err[ed] in closing this matter on September 14, 2023, and terminating the Court’s jurisdiction in [light] of the fact that C.S.O.’s caretaker had a stroke and there was no information regarding the severity of her condition and/or her ability to continue caring for C.S.O.?
For the reasons that follow, we affirm the judgment.
BACKGROUND
C.S.O. was born in October of 2016. On September 19, 2018, just before his second birthday, the Montgomery County Department of Health and Human Services, appellee (“the Department”), filed a CINA petition following multiple reports that C.S.O. and his siblings were being neglected and/or abused in their home.3 Following a hearing, the juvenile court granted shelter care placement. Soon after, on October 12, 2018, by agreement of the parties, the court sustained the allegations in the petition, found C.S.O. to be a CINA, and committed him to the care and custody of the Department.
As part of the consent order, the court directed Mother to complete psychiatric and substance abuse evaluations, follow all treatment recommendations, and participate in the Abused Persons Program.4 The order further provided that Mother’s visitation with C.S.O. would be supervised initially but could progress to unsupervised if Mother had two successful supervised visits.
The court held its first review hearing on May 5, 2019. By this time, Mother had completed a substance abuse evaluation, which recommended that she participate in intensive outpatient treatment. Although Mother regularly attended that program, she tested positive for alcohol every time she was tested, which led to her being referred for inpatient treatment. This, in turn, caused her visitation with C.S.O., which had progressed to unsupervised, to revert to supervised. Mother was also participating in the Abused Persons Program, but she continued to maintain contact with Mr. S., C.S.O.’s father (“Father”), despite his history of domestic violence and past indicated5 child sexual abuse of C.S.O.’s siblings. Mother had obtained a protective order against Father, but she still invited him to her apartment, which led to an argument that escalated to a physical altercation and culminated in Father’s arrest. After the review hearing, the juvenile court maintained a permanency plan of reunification.
This pattern of progress and regress continued for the next three years as Mother struggled with maintaining sobriety and continued maintaining contact with Father despite reports of continued domestic violence. The juvenile court held five permanency plan review hearings during this time and, after each, continued the plan of reunification.6 But, when only minimal, lasting progress had been made by the seventh permanency planning review hearing on January 21, 2022,7 the court changed C.S.O.’s permanency plan from reunification to a concurrent plan of reunification or custody and guardianship by a non-relative. The court maintained this plan through the next two review hearings.8
On May 2, 2023, at the tenth permanency planning review hearing, the parties agreed that continued work toward reunification was no longer in C.S.O.’s best interest. Mother expressly agreed that C.S.O.’s permanency plan be of custody and guardianship by a non-relative, Ms. S., who is C.S.O.’s foster mother (“Foster Mother”), with whom he had been residing since October 2019—for over 42 months. The attorney for the child also agreed that the plan to award custody and guardianship to the Foster Mother, allowing for visitation to grow with family members, was in the best interests of C.S.O. Although Mother requested that the weekly visitation with C.S.O. continue, the child’s attorney and the Department noted that C.S.O. was “missing close to 25 percent a week of school to be able to do these visits.” Hearing the concerns expressed about how weekly visitation would be disruptive to C.S.O’s schooling and afterschool activities, the Court turned to Mother and stated, in relevant part, “[b]ut that’s something you all would have to work out, but it’s not going to be able to be every week, I want
to say that bluntly, you understand that?” Mother responded, “Yes, Your Honor.”
Based on the parties’ agreement, the court adopted a sole permanency plan of custody and guardianship by a non-relative. At the time of this hearing, the Department had not yet completed the required custody and guardianship home study, so the Court held the matter open with weekly visitation continuing until the study was complete.
On June 20, 2023, after completion of the home study, the Department moved to close C.S.O.’s CINA case and terminate jurisdiction with a grant of custody and guardianship of C.S.O. to Foster Mother. The Department requested that, upon case closure, the court grant separate visitation to Mother and Father at a minimum of one hour monthly to be supervised by Foster Mother. Mother responded to the Department’s motion expressing concerns about the sufficiency and mechanics of visitation following the closing of the case. More specifically, Mother alleged that at the May 2022 hearing, the court found that visitation with Mother should occur weekly, under supervision. She argued that “reducing [C.S.O.’s] visitation with his mother to one hour supervised once a month, and having those diminished one hour visits combined with sibling visits, is not in his best interests[.]” She requested a hearing for the court to determine a transition plan for visitation and make a finding under Family Law § 9-101 that would permit her to have unsupervised visits.9
The court held a hearing on July 28, 2023. There, the parties agreed that the case should remain open for three more weeks to allow Mother and Father to arrange their visits with Foster Mother and do a “trial run of what w[ould] occur when the case close[d].” Foster Mother would supervise separate visits for Mother and Father during the trial period and, “assuming everything [went] well,” the parties would thereafter file a consent motion to close the case. The only point on which the parties disagreed was whether the court should make a finding under § 9-101 that there is no further likelihood of abuse or neglect, enabling Mother to have unsupervised contact with C.S.O. The court declined to make that finding, and issued an order on August 28, 2023, stating that, “UPON CONSIDERATION of the [Department’s] Motion to Close and Terminate Court Jurisdiction and of [Mother’s] Opposition thereto, . . . the Court will take no action at this time.”
In the weeks following the hearing, Foster Mother coordinated four separate visits between C.S.O. and his natural parents, all of which went well. Accordingly, on September 13, 2023, the Department again moved to close C.S.O.’s CINA case. The motion requested, among other things, that the “visitation between [C.S.O.] and his [Mother] be supervised, minimum once a month for a minimum of one hour, not to include overnights, under the direction of [Foster Mother].” The court granted the motion in an order signed the next day, September 14, and that order was entered by the clerk on September 18, 2023.
On September 18, 2023, Mother filed a motion for reconsideration. The Department had contacted Mother earlier that day to inform her that Foster Mother had been hospitalized after suffering a stroke and that C.S.O. was in respite care. The motion stated that the severity of the stroke was unknown. The motion also reminded the court that it had found earlier in May that visitation with Mother should occur “minimum weekly, under supervision,” but also reiterated Mother’s request for the court to make a § 9-101
finding. Accordingly, Mother requested the court rescind its order to close case and schedule another hearing.
The Department responded on September 22, 2023. It included an affidavit from one of the Department’s Social Workers informing the court that he had visited Foster Mother in the hospital and learned that her stroke was mild. According to the affidavit, Foster Mother stated that C.S.O. did not require respite care in a stranger’s home while she was recovering because he was staying with Foster Mother’s son, daughter-in-law, and nephew—all of whom C.S.O. knew and were identified as Foster Mother’s emergency backup plan during the custody and guardianship home study process. Foster Mother was also arranging for a family member or friend to temporarily live with her and C.S.O. to assist with their daily routine while Foster Mother recovered and assured that she would arrange for a family member to transport C.S.O. for visits with his parents.
The court denied Mother’s motion on October 2, 2023, and this appeal timely followed.
STANDARD OF REVIEW10
Appellate review of a juvenile court’s decision involves three interrelated standards: (1) a clearly erroneous standard for factual findings; (2) a de novo standard for matters of law; and (3) an abuse of discretion standard for the court’s ultimate decision. In re Adoption/Guardianship of C.E., 464 Md. 26, 47 (2019). Factual “findings are ‘not clearly erroneous if there is competent or material evidence in the record to support the court’s conclusion.’” Azizova v. Suleymanov, 243 Md. App. 340, 372 (2019) (quoting Lemley v. Lemley, 109 Md. App. 620, 628 (1996)). As we next explain, the only issue preserved on appeal is reviewed under the abuse of discretion standard. “[A]n abuse of discretion exists ‘where no reasonable person would take the view adopted by the [juvenile] court, or when the court acts without reference to any guiding rules or principles.’” In re Andre J., 223 Md. App. 305, 323 (2015) (quoting In re Yve S., 373 Md. 551, 583 (2003)).
DISCUSSION
A. Parties’ Contentions
On appeal, Mother contends that the juvenile court erred in closing C.S.O.’s CINA case for three reasons: (1) because she was “making progress” and should have been given additional time to secure employment and housing; (2) because the Department failed to fulfill its statutory obligations to make a “reasonable effort” to help her secure that employment and housing; and (3) because Foster Mother’s stroke raised “the issue of whether [she] was capable and able to care for C.S.O. [because] the severity of her condition was unknown.”
In response, the Department first points out that “at the May 2, 2023[,] CINA review hearing, all of the parties, including [Mother], agreed that it was in C.S.O.’s best interests to change his permanency plan to a sole custody and guardianship to [Foster Mother].” According to the Department, by “agree[ing] that the parties should no longer work towards reunification, [Mother] cannot now challenge the level of employment and housing services provided by the Department” or the length of time she had to secure that employment and housing. The Department further argues that the juvenile court did not abuse its discretion in denying Mother’s motion for reconsideration “[i]n light of [the] additional
information [it provided] assuring the stability of C.S.O.’s placement[.]”
B. Analysis
We agree with the Department that Mother waived her first two contentions for two reasons. First, she did not raise either contention in the juvenile court. And “an appellate court will not decide any . . . issue unless it plainly appears by the record to have been raised in or decided by the trial court[.]” Md. Rule 8-131(a). Second, Mother is, in essence, claiming that she should have been allowed more time to work towards reunification and that the Department failed to adequately assist her in doing so. But as the Department points out, in the juvenile court, Mother agreed that it was in C.S.O.’s best interests to change his permanency plan to a sole plan of custody and guardianship to Foster Mother. “It is well settled in Maryland that the right to appeal may be lost by acquiescence in, or recognition of, the validity of the decision below from the which the appeal is taken or by otherwise taking a position which is inconsistent with the right of appeal.” In re Nicole B., 410 Md. 33, 64 (2009) (quoting Osztreicher v. Juanteguy, 338 Md. 528, 534 (1995) (quotation marks omitted in Nicole B.)). Having agreed in the juvenile court that the parties should no longer work
towards reunification, Mother cannot now challenge the length of time the court allowed her to work towards reunification or the level of assistance provided by the Department during that time. Therefore, Mother has waived her first two contentions. Mother’s third contention challenging the court’s denial of her motion for reconsideration is preserved; however, we review the juvenile court’s determination for an abuse of discretion. See C.E., 464 Md. at 47. Mother asserts that the juvenile court should have reopened C.S.O.’s case upon learning that Foster Mother had suffered a stroke of unknown severity. Mother’s argument ignores the Department’s response to her motion in the juvenile court. As noted above, the Department filed an affidavit from a Social Worker who had met with Foster Mother and C.S.O. shortly after Foster Mother’s stoke. The affidavit stated that the stroke was minor and detailed the steps Foster Mother had already taken to ensure C.S.O.’s daily routine and his natural parents’ visitation continued unimpeded. Evidently the juvenile court credited these factual assertions, and it was not clearly erroneous to do so. In light of the additional information assuring the stability of C.S.O.’s care, the court acted well within its discretion in denying Mother’s motion and refusing to reopen C.S.O.’s case.
JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 A “CINA” is “a child who requires court intervention because (1) [t]he child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and (2) [t]he child’s parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and the child’s needs.” Maryland Code, (1974, 2020 Repl. Vol.), Courts & Judicial Proceedings Article (“CJP”) § 3-801(f).
2 In its appellee brief, the Montgomery County Department of Health and Human Services frames the issue as:
Did the juvenile court permissibly exercise its discretion to deny Ms. O.’s motion seeking reconsideration of the order closing C.S.O.’s CINA case where the information provided to the court indicated that the foster mother’s stroke was mild and that she had a care plan that would provide C.S.O. with stability and visitation with his parents during her recovery?
3 The Department points out in its briefing that it has been involved in investigations of Mother for physical abuse of C.S.O.’s siblings since 2014, and that Mother was ultimately convicted for assault of the children’s classmates in 2016.
4 The Abused Persons Program is a Montgomery County government program that provides domestic violence counseling and advocacy services. See https:// www.montgomerycountymd.gov/HHS- Program/Program. aspx?id=BHCS/BHCSAbusedPerson-p207.html (last visited March 28, 2024).
5 “‘Indicated’ means a finding that there is credible evidence, which has not been satisfactorily refuted, that abuse,
neglect, or sexual abuse did occur.” Md. Code Ann., Family Law § 5-701(m).
6 These hearings were held on August 5, 2019; January 23, 2020; September 8, 2020; February 19, 2021; and July 6, 2021.
7 In the months prior to this review hearing, there had been four domestic violence incidents between Mother and Father, culminating in Father’s arrest and detention after he tried to strangle Mother.
8 These hearings were held on June 17, 2022, and November 21, 2022.
9 Section 9-101 of the Family Law Article forbids a court from awarding custody or unsupervised visitation to a parent who has subjected a child to abuse or neglect unless the court makes a specific finding “that there is no likelihood of further child abuse or neglect[.]” Md. Code Ann., Family Law § 9-101(b).
10 We note that the State’s briefing suggests that we are constrained to review the juvenile court’s rulings for an abuse of discretion because Mother’s appeal was taken from the denial of her motion for reconsideration on October 2, 2023. However, by filing her motion for reconsideration on the same day as, and certainly within ten days of, the entry of the court’s order granting the Department’s Motion to Close Case and Terminate Jurisdiction on September 18, 2023, Mother stayed the deadline for filing an appeal of that order. Md. Rule 8-202(c); see also Pickett v. Noba, Inc.. 122 Md. App. 566, 570 (1998). As such, her notice of appeal encompasses the court’s Order entered on September 18, 2023, even though, as we explain, her contentions challenging that Order are not preserved.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Queen Anne’s County Circuit Court’s finding that the nine-old minor’s aunt was her de facto parent and its determination that it was in the child’s best interests for the aunt to have primary physical and sole legal custody of the child. The child had resided with and been cared for by the aunt (at the aunt’s expense) for most of her life; the aunt had the means to support the child and could continue to provide her with enrichment and development activities; mother and father’s behavior bordered on voluntary abandonment of child; the child had a “positive” relationship with aunt and there was no evidence before the court regarding the employment status of either natural 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.
2. Whether the circuit court erred in its custody award when there was no evidence of abuse or neglect by Mother or Father.
3. Whether the circuit court’s custody decision was contrary to the best interests of Child.
4. Whether Aunt presented false evidence in support of her position that she is a de facto parent to Child.
For the reasons to be discussed, we shall affirm the judgment.
BACKGROUND
Pre-Trial Proceedings
In July 2021, Aunt filed a complaint (which she subsequently amended) against Mother and Father for third-party custody of Child and other relief. Aunt alleged, among other things, that she had been actively involved in Child’s care since her infancy and that she had been responsible for “all aspects of [Child’s] care and support” for the past two years; that Aunt “functions as the parent” and is viewed as the de facto parent by others; and that Mother and Father are unfit to care for Child because, among other things, they both engage in substance abuse. Aunt requested pendente lite and permanent custody of Child and requested an emergency hearing.
This appeal involves a custody dispute between appellant, Rachel Bethea (“Mother”), and appellee, Venus McDonald, Mother’s sister (“Aunt”), regarding Mother’s daughter, S.C. (“Child”), who is currently nine years old. In July 2021, Aunt filed a complaint in the Circuit Court for Queen Anne’s County seeking primary physical and sole legal custody of Child. Aunt filed the complaint shortly before Mother took Child from Aunt’s care and moved with her to Georgia. Following a hearing held on June 30, 2022, the court found Aunt to be a de facto parent and then determined that it was in Child’s best interests for Aunt to have primary physical custody and sole legal custody of Child. The court granted visitation rights to Mother and to Cornell Chichester (“Father”). Neither Mother nor Father attended the trial, and the appearance of Mother’s counsel was stricken at the start of trial.
Mother appeals the judgment and, representing herself, raises several issues which we understand to be, and we recast, as follows:1
1. Whether the circuit court erred in proceeding with the merits trial in the absence of Mother and Father.
A hearing was held on July 16, 2021. Because we have not been provided with a transcript of that hearing, the following facts are taken from the Magistrate’s November 1, 2021 Report. Both Aunt and Mother appeared with counsel. Father, who had not yet been served with the complaint, did not appear. After hearing testimony and receiving evidence, the Magistrate found that Child was born in April 2015; Mother had recently relocated from Prince George’s County to Georgia; Aunt resides in Queen Anne’s County; beginning shortly after Child’s birth, Aunt assisted Mother in caring for Child on weekends; Aunt’s care for Child gradually increased to weeks at a time until about 2018 when Aunt assumed nearly full-time care and financial responsibility of Child, which included arranging for her daycare, taking her to doctor appointments, and enrolling her in pre-school and then kindergarten. In late May 2021, Mother advised Aunt that she intended to move to Georgia and, on or about July 4th of that year, Mother picked up Child from Aunt and relocated to Georgia.
Aunt testified that she has concerns about Child’s welfare when Child spends time with Mother or Father. On one occasion, Aunt observed marks on Child’s body after a visit with Father. Aunt also related an incident when Child, then in Father’s care for about three months, kept Aunt’s husband on the phone for five hours. When Aunt related that incident to
Mother, Mother retrieved Child from Father and returned Child to Aunt’s care.
The Magistrate found that Mother agreed that Aunt had been involved in Child’s care and that she, Mother, had relied on her family’s help in raising Child and Child’s two older siblings. Mother also agreed that, prior to her move to Georgia, Child had been residing with Aunt and attending school in Queen Anne’s County. Mother testified that she is employed by LabCorp and that she moved to Georgia when the opportunity arose to transfer to a position there, which she took to provide “better living” for her children. Mother related that Father (who is the father of all three of Mother’s children) speaks to the children by telephone, but he does not see them often and she believes his living situation is not particularly good.
Loretta Bethea, mother of Mother and Aunt, testified that Aunt has taken excellent care of Child. Candice Bethea, a younger sister to Mother and Aunt, testified that Mother had not left Child with Aunt for “weeks or months at a time.” Both of these witnesses agreed that Father’s involvement with Child has been sporadic.
In its Report, Recommendations, and Findings of Fact filed on November 1, 2021, the Magistrate correctly noted that, “[i]n disputed custody cases involving a third party (i.e. non de facto parent), there is a presumption that it is in the best interests of the minor child to be in the care and custody of the [natural] parents.” The Magistrate also set forth the factors a court must find before declaring a non-parent a de facto parent, including that both natural parents must consent to the Child’s relationship with the non-parent, either explicitly or implicitly. The Magistrate found that Father did not participate in the pendente lite hearing and that there was no evidence he was aware of the issues in this case and no evidence that he had consented to Aunt assuming a de facto parent relationship with Child. Moreover, the Magistrate concluded that, “for pendente lite purposes, [Aunt] did not overcome the presumption that it is in the best interests of the minor child be in the care and custody of her parents.” Although the Magistrate found Mother’s “testimony lacked credibility,” the Magistrate concluded that “there was no evidence presented that she was unfit or that exceptional circumstances exist” to warrant granting Aunt custody pendente lite. Rather, the Magistrate recommended that “this case remain open and proceed in the normal course as doing so is in the best interests of the minor child.” By order entered on November 1, 2021, the court ratified the findings of the Magistrate, denied Aunt’s request for expedited custody, and ordered that the matter “proceed in the normal course.”
On December 29, 2021, the court issued a scheduling order and, among others, an order directing that Child attend and complete the Queen Anne’s County Circuit Court Children’s Program on February 5 and 12, 2022.2 Child did not attend the program. On February 22, 2022, the court issued an order directing Aunt, Mother, and Father to show cause why they should not be barred from offering evidence at trial or otherwise be sanctioned for their failure to ensure Child’s attendance at the Children’s Program as ordered. Aunt responded that she was unable to comply given that Child was then in Mother’s care and custody. At a hearing held on March 22, 2022 before the Magistrate, Mother’s counsel explained that Mother
and Child currently live in Georgia and would seek a similar program there. Counsel for both Mother and Aunt advised that they had not heard from Father and his “whereabouts [are] unknown[.]”
The Magistrate issued a Report, which indicates that both Mother and Mother’s counsel attended, remotely, the March 22nd hearing. The Magistrate recommended that Mother could discharge the Show Cause Order “by ensuring that the minor child is enrolled in and attends the May 2022 dates for children’s program.” And if “an equivalent program is located in the State of Georgia, [Mother] to timely submit documentation of the program and request permission to attend program in GA instead of this Court’s program.” The Magistrate’s Report also included this notation: “***Parties are required to appear for all scheduled hearings.***” The Magistrate’s recommendations were approved and so ordered by the court on April 6, 2022. On May 6, 2022, the court issued an order directing that Child attend the Children’s Program scheduled for June 4 and 11, 2022.
On February 23, 2022, the court issued an order granting Aunt’s motion to reschedule the settlement conference from April 22nd to March 25th. Following the March 25th settlement conference, the Magistrate filed a Report noting that all parties, including Mother and Mother’s counsel, had appeared remotely. The Report indicated that the case had not settled and that the parties were to return on May 13th, with Mother and Mother’s counsel permitted to appear remotely. Among other things, the Magistrate recommended that the discovery deadline be extended to May 12, 2022 per the agreement of counsel. The court approved the recommendations and on March 29, 2022, the court issued a notice scheduling a settlement conference for May 13, 2022 at 8:45AM.
On May 3, 2022, the circuit court issued a Show Cause Order directing Mother to show cause why she should not be barred from offering evidence at trial or otherwise be sanctioned for failing to attend a scheduled mediation session. The order set a show cause hearing for May 13, 2022 (the same date as the settlement conference) and directed that Mother attend unless the Show Cause Order was discharged prior thereto by “arranging and participating in mediation and having a report filed by the mediator” no later than May 11th.
Both Mother and Mother’s counsel failed to appear for the May 13th hearing. The Magistrate’s Report, dated May 13th and entered on May 20th, noted their failure to appear, noted that the case had not settled, and set a trial date on “custody, access, and counsel fees” for June 30, 2022 at 8:45AM. The report included the notation: “***PLEASE NOTE NEW TRIAL DATE.****” The Magistrate recommended, among other things, that the court issue a Show Cause Order directed to Mother’s counsel related to his failure to appear for the May 13th hearing; issue an order directing Mother to obtain a hair follicle substance use assessment; and remind Mother that Child is expected to attend the June Children’s Program. On June 3, 2022, the court approved and adopted the Magistrate’s recommendations in an order.
On May 13th, prior to the entry of the Magistrate’s latest Report just referenced, the court issued a notice scheduling trial for July 8, 2022. A week later, however, by notice dated
May 20, 2022, the court issued a “Notice Of Change Of Assignment – Courthouse” that, in relevant part, stated:
INSTEAD OF THE TIME FORMERLY SCHEDULED, a Hearing – Show Cause Trial – Court will be held in this action on 06/30/2022 at 8:45AM, replacing previously scheduled event on 07/08/2022 at the Courthouse for the Circuit Court for Queen Anne’s County in Centreville, Maryland.
On May 23, 2022, the court entered an order directing Mother to submit to a hair follicle substance use assessment and directing her to schedule the assessment on or before May 27th. The record before us indicates that the senior case manager in Mother’s counsel’s office emailed this order to Mother on May 25th and in the email advised Mother to “call to make arrangements by May 27th.”3
On June 3, 2022, the court entered an order regarding discovery and directing Mother to complete answers to interrogatories and responses to request for production of documents no later than June 10th. The order further provided that Mother’s failure to do so would result in sanctions, including “a time limitation on Defendant Bethea’s ability to testify and otherwise present evidence and witnesses at the Trial on June 30, 2022.”
On June 7th, Mother’s counsel responded to the Show Cause Order related to his failure to appear for the May 13th hearing. Counsel explained that he missed “the scheduled Settlement Conference due to an inadvertent entry in his online digital calendar” and was in the District Court of Maryland for Montgomery County in another case at the time. Counsel asserted that his failure to appear was neither intentional nor deliberate. At the show cause hearing held on June 14, 2022 on this issue, Mother’s counsel reiterated his explanation and, in its subsequently issued Report, the Magistrate recommended that the Show Cause Order against Mother’s counsel be discharged. The court subsequently approved the recommendation and so ordered.
On June 11th, Mother replied to the email of May 25th sent to her by her attorney’s office in relation to the hair follicle test. In her reply email, which she addressed to her attorney, Mother thanked counsel for all that he had done and stated that his services were no longer needed. Counsel then sent a letter, dated June 13, 2022, to Mother by email and via the United States Postal Service informing her that, given her email to him of June 11th, he intended to withdraw his appearance as attorney of record in this case by filing a motion to strike his appearance. The letter further advised that the motion would be filed five days hence and that he would continue to represent Mother until the court granted the motion to strike his appearance. Counsel also advised Mother to have another attorney enter an appearance on her behalf or notify the circuit court in writing that she intended to represent herself.
On June 27th, Aunt’s counsel filed a motion to permit a witness for Aunt to testify remotely at “Trial on June 30, 2022 at 8:45a.m.” On June 29th, Mother’s counsel filed a motion “for continuance of the trial scheduled before this court on June 30, 2022 at 8:45am” or, in the alternative, permission for counsel to appear remotely due to a family emergency necessitating his presence out-of-state. The motion also renewed counsel’s request to strike his appearance.4 The court granted
the request for Mother’s counsel to appear remotely at the June 30th trial.
Trial
When the case was called on June 30th, Mother’s counsel announced his presence as counsel for Mother. The court noted that Mother was not present. In response, Mother’s counsel stated: “I have no representations about her whereabouts, Your Honor.” The court then turned to counsel’s motion to strike his appearance and inquired as to whether counsel had “hear[d] anything back from” Mother regarding his motion to strike his appearance. Counsel replied that he had not. The court then granted the motion striking counsel’s appearance and counsel, who had appeared remotely, left the proceedings.
After hearing from Aunt’s counsel that Aunt wished to proceed, the court went forward with the trial. Neither Mother nor Father were present.
Aunt testified that she is employed as “a federal worker, program manager” and resides with her husband in a single-family home in Church Hill. Mother is Aunt’s younger sister and, as of that date, Mother had three children: Child (then seven) and two sons (then fifteen and seventeen). Although Mother’s sons never lived with Aunt, after Child was born the boys “normally spent a few months at [her] house per year.”
Aunt related that, after Child was born, she often picked her up from Mother and cared for her on weekends. When asked why she did so, Aunt replied that Mother “wanted to party, wanted to go out, and did not want to care for [Child].” Then when Child was about eight months old, Mother’s arrangements for daycare during the week fell through and when Mother advised that she could not take care of Child, Aunt offered to take care of her. Thus, Child began residing with Aunt and Aunt paid for a babysitter while Aunt worked. During these “early days” when Child resided with Aunt, Mother would see Child about two weekends a month and eventually “off and on.” When Mother did request a weekend with Child, on most occasions, Aunt took Child to Mother and then retrieved her from Mother. Father was not involved in Child’s life at this time. However, when Child was “almost three[,]” Aunt related that Mother became angry with her and also wanted to “implant herself into [Father’s] life,” and she took Child from Aunt and dropped her at Father’s house. After about three months, Mother returned Child to Aunt’s care. Then when Child was about five years old, Aunt said Mother “got mad” again and took Child for about three weeks before again returning her to Aunt.
Aunt claimed that Child viewed her “as her mom” and called her “Mom” until Mother told Child, when Child was about three years old, not to call Aunt mom. Child then started calling Aunt “Aunty.”
Aunt related that she cared for Child as if she were her daughter, taking her to doctor appointments, staying home from work when Child was sick, enrolling her in pre-school and then kindergarten, paying for daycare, and taking her on vacation. Aunt also enrolled Child in gymnastics and recreational soccer and paid for those activities herself. Aunt attended all of Child’s soccer games; Mother attended one. Aunt also threw birthday parties for Child (every year except year one) and, although she invited Mother and Father, Father never came
and Mother attended two of the five parties Aunt hosted. Aunt claimed Child as a dependent for tax purposes “[f]our out of the six years.”
Aunt invited Mother and Mother’s sons, and other family members, on a vacation Aunt paid for to Orlando, Florida in December of 2020. Aunt rented two adjoining suites. Child stayed with Aunt in her suite, not with Mother in the adjoining suite. While there, Aunt and Mother got into a dispute when Mother’s boyfriend showed up after Aunt said he could not join them because the “boyfriend is a known drug dealer.” Mother then took her sons, but not Child, and went to Miami. Shortly after they returned from this vacation, Mother took Child from Aunt until about mid-February 2021. She returned Child to Aunt so Child could continue her schooling at Church Hill Elementary School. Sometime thereafter, Mother informed Aunt that she intended to move to Georgia, which prompted Aunt to file for custody of Child.
Aunt had not seen or spoken with Child since July 2021. Aunt expressed concerns about Mother’s care for Child, believing that Mother “will just abrogate her [caretaking] role to someone else.” Aunt expressed that she would like custody of Child to provide Child with structure, especially during the school year.
As for Father, Aunt testified that following his approximate three months of caring for Child when Child was three years old, Father would occasionally (“maybe once every four months”) text Aunt to arrange a visit with Child. Aunt would take Child to Father and then pick her up from him. Aunt never told Father he could not see Child. When asked whether she had heard from Father during this litigation, Aunt replied: I heard from him one time, he called. He said that we should be able to work this out on our own, without the courts, and I told him that I would love to work it out without the courts and if he [came] up with a proposal for him to call me back and he did not call me back.
Cari Moats, Aunt’s husband’s sister, testified that she considers Child to be her niece. Although she resides in West Virginia, she would visit with her brother and Aunt “at least six or seven times” every year. The majority of the time, Child would be with Aunt. She described Aunt as “very much the mother figure for [Child] and has been ever since [Child] has been with them.” Ms. Moats recalled a beach vacation with Aunt where Mother made “an appearance for about 20 minutes” but Child remained with Aunt. Moreover, she testified that Child regularly was with Aunt (and Aunt’s husband) when the two families gathered for holidays at Ms. Moats’s home, including Thanksgiving, Christmas, and the 4th of July.
Rachel Lloyd, Aunt’s neighbor and friend, testified that she babysat Child “throughout the years on and off.” She has a son the same age as Child and “consistently” saw Child when Child resided with Aunt. She met Mother a couple of times, once when Mother came to Ms. Lloyd’s house to pick up Child from her house when Child was about three or four years old. Ms. Lloyd recounted that Child did not want to leave with Mother and “went behind [Ms. Lloyd’s] leg and wanted [her] to shut the door.” Because Mother did not have a car seat, Ms. Lloyd gave Mother her daughter’s car seat for Child’s use. Aunt, not Mother, paid Ms. Lloyd for babysitting Child and Mother never
inquired about her credentials or engaged in any conversations with her regarding her daycare of Child. Ms. Lloyd never met Father.
Ms. Lloyd observed Aunt interact with Child on many occasions, including on outings to the park, pool, library, parties, and playdates. She related how Aunt helped Child “overcome a fear of swimming” and how impressed she was by Child’s reading ability at age five, which she attributed to Aunt.
Dana McDonald, Aunt’s adult stepdaughter, testified that she has “never known [Child] not living with” Aunt and her father (Aunt’s husband). Child was always with them when Ms. McDonald visited. When asked about Child’s relationship with Aunt’s husband, Ms. McDonald related that Child “loves him” and “adores him like a father[.]” Ms. McDonald never met Father.
Aunt submitted verification that Child was enrolled in school in Georgia. Aunt’s counsel noted that the records reflect that Child’s “attendance, although not perfect, is not glaringly terrible.” Aunt also submitted some of Mother’s bank records and flight records into evidence. Aunt’s counsel proffered that the records reflect that, since the pendente lite hearing in July 2021, Mother had traveled several times to Maryland and Florida, as well as to Cancun, Mexico. Counsel proffered that the records reflect a “pattern of [Mother] traveling[,]” but the passenger log for Southwest Airlines reflects that Child did not travel with her on trips where she flew Southwest.
In closing, Aunt’s counsel maintained that Aunt is a de facto parent to Child.
Counsel further asserted that it would be in Child’s best interest to award Aunt custody.
At the conclusion of trial, the court noted that “both parents were properly served in this case and included.”
Circuit Court Ruling
By Order entered on July 1, 2022, the court awarded sole legal custody and primary physical custody of Child to Aunt and gave access to Mother and Father one full weekend each per month and one full week during summer break “as well as other times” to be agreed upon with Aunt. In its Memorandum Opinion and Order Regarding Custody on the same date, the court summarized the evidence presented at trial and noted that neither Mother nor Father attended trial and both failed to “correspond in any way regarding their absence or lack of participation in the proceedings.”
Among other things, the court found that it was “uncontroverted that [Aunt] provided for all of [Child’s] needs during the first five years of her life[,]” including “select[ing] her pediatrician, her babysitters, her pre-school, her elementary school, and her extra-curricular activities.” The court also found that Aunt “acted as [Child’s] parent, providing for her financially, emotionally, medically, and socially.” The court concluded that Child “was fully a part of” Aunt’s family.
The court found that, although Mother was represented by counsel in these proceedings “up until the day of trial,” Mother “failed to complete discovery, failed to participate in mediation, failed to attend the online parenting program, failed to have the child attend the children’s program, and failed to submit to a hair follicle test.”
The court discussed the four-factor test set forth in Conover v. Conover, 450 Md. 51 (2016) for establishing de facto parenthood and concluded that Aunt met the test.5 Specifically, the court found:
(1) [Aunt] and [Child] resided together in the same household for the majority of five of the last six years; (2) the natural parents “consented to and fostered the formation and establishment of a parent-like relationship” between [Aunt] and [Child] by acquiescing and even arranging for [Child] to live and be cared for by [Aunt]; (3) [Aunt] assumed obligations of parenthood by taking all responsibility for the child’s care, education, development, and financial support; and (4) [Aunt] has been in the parental role for a length of time sufficient to have established a bonded dependent relationship.
After concluding that Aunt qualified as a de facto parent to Child, the court then turned to custody, correctly noting that a custody award is based on the best interests of the child. The court examined the factors set forth in Montgomery County Department of Social Services v. Sanders, 38 Md. App. 406 (1978). In discussing the “abuse” factor, the court found that, although there were allegations in the pleadings that Mother and Father abused drugs, there was no evidence at trial to support the allegation. Nor did the court find that “any party was unfit.” But the court did conclude that there were “regular and consistent periods of time where the child did not see either natural parent during the first five years of life” and that “Mother and Father’s behavior borders on voluntary abandonment and surrender, by permitting [Aunt] to raise [Child] during their extended absences from her life.” The court concluded that, when residing with Aunt, Child “want[ed] for nothing” and Aunt provided her “with enrichment and development activities[.]”
After considering the Sanders factors, the court concluded that it was in Child’s best interest for Aunt to have legal custody of Child. The court found that the “parties cannot make decisions together” regarding important issues related to Child and Mother and Father’s “lack of involvement in this litigation has provided the Court with no information to make any other decision.”
Turning to physical custody, the court reviewed the factors set forth in Taylor v. Taylor, 306 Md. 290, 303 (1986). The court found that, although the parties communicated with each other prior to this litigation, “Mother often used the child as a pawn when she was angry at [Aunt].” The court found no evidence that any party is unfit to parent Child; that the evidence demonstrated a positive relationship between Aunt and Child and no evidence was presented as to Mother’s or Father’s relationship with Child; that Child had lived for most of her life with Aunt; and that Aunt “demonstrated sincerity and full commitment to [Child] in pursuing this litigation” while both Mother and Father “demonstrated no sincerity to the child and a complete lack of respect to this Court.” The court found that Aunt is gainfully employed, while the “natural parents’ employment is unknown.” The court also found that the natural parents failed to complete court-ordered tasks. The court concluded that it is in the best interest of Child that Aunt be awarded sole legal and primary physical custody of Child. As previously noted, the court did grant Mother and Father visitation rights.
Mother’s Post-Trial Motions
On July 5, 2022, four days after the court entered its ruling, new counsel entered an appearance on behalf of Mother. On July 11th, Mother’s new counsel filed a motion for a new trial, as well as a
motion to vacate, or in the alternative, to stay the custody award. In those motions, among other things, Mother asserted that service of the complaint on Father was not “properly perfected[,]” and that she reasonably believed that the custody merits trial was scheduled for July 8, 2022. The court denied the motions. Mother then noted this appeal.6
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
De Facto Parenthood
There is no doubt that “the rights of parents to direct and govern the care, custody, and control of their children is a fundamental right protected by the Fourteenth Amendment of the United States Constitution.” Conover, 450 Md. at 60 (citing Meyer v. Nebraska, 262 U.S. 390, 399 (1923)). Accordingly, “the rights of parents to custody of their children are generally superior to those of anyone else[.]” Id. Where parents are in a child custody dispute, the paramount concern is the best interest of the child. Id. Where a third party seeks custody or visitation, the third party generally “must first show unfitness of the natural parents or that extraordinary circumstances exist before a trial court could apply the best interests of the child standard.” Id. at 61.
In Conover, however, the Supreme Court of Maryland recognized that a third party may have such a special relationship with a minor child as to be deemed a de facto parent, placing that person in a position equivalent to a natural parent. Id. at 85 (“[D]e facto parents have standing to contest custody or visitation and need not show parental unfitness or exceptional circumstances before a trial court can apply a best interests of the child analysis.”).
When a third party seeks access to a child by claiming de facto parenthood, the petitioner bears the burden of proving:
(1) that the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child;
(2) that the petitioner and the child lived together in the same household;
(3) that the petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation; and
(4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.
Id. at 74.
“The de facto parent doctrine does not contravene the principle that legal parents have a fundamental right to direct and govern the care, custody, and control of their children” because “a legal parent
does not have the right to voluntarily cultivate their child’s parental-type relationship with a third party and then seek to extinguish it.” Id. at 75.
Where there are two natural parents, both must consent to the relationship to satisfy the first prong of the test. E.N., 474 Md. at 401. But the “consent” of the natural parent to the establishment of a de facto parent-child relationship may be explicit or implicit and “implied consent may be inferred from a legal parent’s conduct[,]” including his or her “action or inaction[.]” Id. at 401-02.
Mother’s Contentions
We turn now to Mother’s contentions on appeal. First, she asserts that she and Father did not have the opportunity to present their side of this case because (1) she was not notified of the trial date and (2) Father was never served “with any notice of this trial.” She does not elaborate or proffer any facts or evidence in support of her assertions.
Mother was represented by counsel and the record before us indicates that Mother’s counsel certainly understood that trial was set for June 30th, for on June 29th, he filed a motion with the court seeking a continuance or permission to remotely attend “the trial scheduled before this court on June 30, 2022 at 8:45am” due to a personal emergency necessitating his presence out-of-state. Although Mother’s counsel had a pending motion to strike his appearance, he had also advised Mother that he would continue to represent her until the motion was ruled on. Mother does not allege that her attorney did not inform her of the June 30th trial date, as was his duty. See Md. Rule 19-301.4(a)(2) (“An attorney shall . . . keep the client reasonably informed about the status of the matter[.]”). Moreover, the Maryland Rules provide that, “[w]hen any notice is to be given by or to a party, the notice may be given by or to the attorney for that party.” Md. Rule 1-331. And “under longstanding precedent[,] once an attorney files an appearance on behalf of a client, notice to the attorney is notice to the client.”
Wells Fargo Bank, N.A. v. AMH Roman Two NC, LLC, 859 F.3d 295, 303 (4th Cir. 2017) (citing Rogers v. Palmer, 102 U.S 263, 26768 (1880) for the proposition “that the law presumes that an attorney communicates notice of any matter within the scope of representation to the client”). See also Thomas v. Hopkins, 209 Md. 321, 327 (1956) (“The lawyer’s knowledge of the hearings and the judgment rendered must be imputed to the appellants. His failure to tell them of the hearings or of the judgment . . . would not constitute irregularity justifying the striking of the judgment.” (internal citations omitted)). In short, based on the record before us we are not persuaded that Mother was unaware of the June 30th trial date.
Assuming Mother has standing to assert that Father was not served with notice of the trial, that too is a bald allegation unsupported by any facts or evidence. In fact, the trial court announced on the record of the June 30th hearing that “both parents were properly served in this case[.]” The record further reflects that the court had granted Aunt’s motion for alternative service on Father due to his alleged evasion of service. The affidavit of the process servicer filed in support of the motion reflects that the process server personally observed Father enter a home reasonably known
to be his residence, but he refused to answer her knock on the door. The process server attested that she left a writ of summons and Aunt’s complaint for custody taped to the door of the residence. After the motion for alternative service was granted, notices were mailed to Father’s last known address (the home where the summons and complaint were left) and were also posted on the courthouse door. Finally, the record reflects that Aunt testified that she had a conversation with Father about this litigation, reflecting that he was aware of the proceedings.
Mother next maintains that, given the lack of “any evidence of abuse or neglect” by the natural parents, the court erred in awarding custody of Child to Aunt. Such a finding, however, is not required upon a determination that a non-natural parent seeking custody is a de facto parent. Conover, supra, 450 Md. at 85 (“We hold that de facto parents have standing to contest custody or visitation and need not show parental unfitness or exceptional circumstances before a trial court can apply a best interests of the child analysis.”).
Mother also argues that awarding custody to Aunt is not in Child’s best interest. The court, after it concluded that Aunt is a de facto parent, engaged in a best interest of the child analysis. Based on the evidence before it, the court made findings to support its conclusion that Aunt having sole legal custody and primary physical custody was in Child’s best interest. The court, among other things, found that Child had resided with and been cared for by Aunt (at Aunt’s expense) for most of her life; that Aunt had the means to support Child and could continue to provide her with enrichment and development activities; that Mother and Father’s behavior bordered on voluntary abandonment of Child; that Child had a “positive” relationship with Aunt; and there was no evidence before the court regarding the employment status of either natural parent.
Although Mother attempts in her brief to tell her side of the story as to how Child came to reside with Aunt, and proffers reasons why it is in Child’s best interest to be in Mother’s custody, those facts are not in the record before us and, therefore, we shall not consider them. Cochran v. Griffith Energy Serv., Inc., 191 Md. App. 625, 663 (2010) (“[A]n appellate court must confine its review to the evidence actually before the trial court when it reached its decision.”); Casson v. Joyce, 28 Md. App. 634, 638 (1975) (“On appeal[,] we are confined to the record made in the court below” and “we may not go beyond it for additional facts.”). Based on the evidence before the circuit court, we cannot conclude that the court erred in its best interest of the child analysis. Thus, we find no abuse of the court’s discretion in its custody award.
Finally, Mother asserts that Aunt’s “claim that gave standing that she is a de fact[o] parent is completely false.” As noted, Mother attempts to refute Aunt’s evidence with factual allegations not presented to the circuit court and thus, not in the record before us. In short, Mother forfeited her right to tell her side of the story and enter evidence in support of her position when she failed to appear for trial.
FOOTNOTES
1 In her “assignment of error” in her informal brief, Mother states:
The trial court erred in judgment because I was never notified of the trial that took place due to the fact that I moved out-of-state. In addition, [Father] was never served with any notice of this trial. Therefore we did not have an opportunity to present the facts of our case. There was never any evidence of abuse or neglect of my child presented to a finder of fact to render any informed decision. The decision made by Queen Anne County to remove a child from her natural parents with no evidence of maleficence was erroneous and not in the best interest of the child. In addition, [Aunt’s] claim that gave standing that she is a de fact [sic] parent is completely false.
2 The order described the Children’s Program as “a nontherapeutic program designed solely for children” and intended “to provide children with an understanding of if and why their family dynamics may be changing and how they fit into this change.”
3 This particular email is in the record before us because it was subsequently attached to Mother’s counsel’s motion to strike his appearance in this case.
4 Counsel’s motion to strike his appearance was initially denied because counsel had failed to attach a
copy of the June 13, 2022 letter he had sent to Mother advising her of his intention to move to withdraw his appearance. He included the letter with his June 29th motion.
5 In Conover, the Supreme Court of Maryland held that a third party claiming de facto parent status bears the burden of proving the following when seeking access to a minor child:
(1) that the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child;
(2) that the petitioner and the child lived together in the same household;
(3) that the petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation; and
(4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.
450 Md. at 74.
6 Father did not participate at any stage in the circuit court proceedings and he has not sought to enter an appearance on appeal.
