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3 Child Advocacy: Permanency plans consider child as an individual
Permanency plans help court determine how to best help Child in Need of Assistance.
4 Cover Story: Crypto and divorce
Cyrpto is becoming common enough that it should be part of an discovery request in divorce cases and may take experts to determine a value.
6 In the News: Court upholds ruling rejecting claim of abuse of process
The Montgomery County Circuit Court has been upheld in dismissing a lawsuit by a husband who was suing his wife for abuse of process and malicious use of process, where he alleged that she obtained a protective order by making false statements.
7 In the News: Can $1,000 at birth change a child’s future?
A House GOP proposal that has the backing of President Donald Trump would create tax-deferred investment accounts for babies born in the U.S. over the next four years, starting each of them with $1,000. At age 18, they could withdraw the money for payments toward a home, education or starting a small business. If it was used for other purposes, it would be taxed at a higher rate.
8 Monthly Memo
Judge denies privacy request in divorce case of Hawaii anesthesiologist accused of attempting to kill his wife on a hiking trail. … The former lawyer of the husband of a missing Connecticut mom pleaded guilty to interfering with police in the case. … A Massachusetts lawyer and client who failed to show for a scheduled divorce trial in 2023 are stuck with the property division ruled in the case. … In vitro fertilization becomes a central issue in the Alabama Supreme Court race as a fertility lawyer announced her candidacy. … Swedish commission recommended that international adoptions be stopped after an investigation found a series of abuses and fraud going back decades.
Child Advocacy
Permanency plans consider child as an individual
When a child is in the care and custody of the state of Maryland in a Child in Need of Assistance case, that child must have a permanency plan, which is determined by the juvenile court.
“The permanency plan is an integral part of the statutory scheme designed to expedite the movement of Maryland’s children from foster care to a permanent living, and hopefully, family arrangement.”
One of the most important roles of the court is to determine the permanency plan for the child who is in the care and custody of the local Department of Social Services.
Under Maryland law, permanency plans are to be determined with a heavy emphasis on the child’s perspective and on the child’s lived experience of the world.
The court determines the permanency plan for a child at permanency planning hearings, where the court shall “Change the permanency plan if a change in the permanency plan would be in the child’s best interest.”
The presumptive plan for CINAs is reunification with a parent, which the court should change if there are “weighty circumstances indicating that reunification with the parent is not in the child’s best interest.”
To determine the permanency plan that is in the child’s best interest, the Court must consider six specific childcentered factors.
These factors include a strong emphasis on the child’s experience, perspective, bonds, and attachments.
These factors are “(i) the child’s ability to be safe and healthy in the home of the child’s parent; (ii) the child’s attachment and emotional ties to the child’s natural parents and
PERRY RICHARD.
Child Advocacy
siblings; (iii) the child’s emotional attachment to the child’s current caregiver and the caregiver’s family; (iv) the length of time the child has resided with the current caregiver; (v) the potential emotional, developmental, and educational harm to the child if moved from the child’s current placement; and (vi) the potential harm to the child by remaining in State custody for an excessive period of time.”
Maryland law also gives a hierarchy of permanency plans.
Reunification is first in this hierarchy, followed by adoption by a relative, custody and guardianship to a relative, then adoption by a nonrelative, followed by custody and guardianship to a non-relative.
However, this hierarchy of permanency plans is limited “to the extent consistent with the best interest of the child” and to the child-centered factors that the court must consider.
As stated by the Maryland Court of Special Appeals: “As reflected in the statutory factors that the court must consider, permanency planning requires examination of the child’s actual lived experience in the world by considering the child’s point of view, valuing the child’s current emotional attachments, recognizing that time has an effect on the child, and recognizing that removing a child from a placement where the child has formed emotional attachments can cause potential emotional, developmental, and educational harm to the child.”
The experiences and the attachments of the child must
take center stage in the court’s consideration of the permanency plan.
This child-centered focus is instructive in the following example, where a substance-exposed child had been placed with foster parents since infancy, and after 18 months, the plan was to grant custody and guardianship to those foster parents.
At that time, the child’s mother, who was not able to reunify, sought to have the child placed with an uncle, who was unknown to the child.
The court correctly emphasized the child’s emotional attachment to the foster parents, and the potential harm of removing the child from the only home the child had known and effectuated the permanency plan of custody and guardianship to a nonrelative.
Some substance-exposed newborns are placed with relatives, who have been trained to meet the needs of the newborn, after they are released from the hospital.
In those situations, where more than 15 months have passed, the child is emotionally attached to that relative.
In that case, just as in a nonrelative placement, if a parent were to suggest a different relative for a new placement of the child after 15 months, the court should consider the child’s bonds and attachments to the relative with whom the child was originally placed, in determining the child’s best interests.
Under Maryland law, the court’s determination of a child’s permanency must be exercised with heavy consideration for the child’s attachments and lived experience of the world.
Richard Perry is a Supervising Attorney at Maryland Legal Aid.
Crypto and divorce: What attorneys need to know
By Hope Keller Special to The Daily Record
Divorce can be fraught enough without adding cryptocurrencies to the mix. Or at least that’s been the scuttlebutt, with news reports recounting tales of spouses trying to hide crypto riches from their estranged partners.
But divorce attorneys interviewed about crypto say the issue is not really a problem.
“The good thing about crypto –and this is the inherent thing about crypto – is that there’s a transaction log of every single transaction that’s ever occurred on the blockchain,” said Christopher Castellano, a principal at Joseph Greenwald & Laake in Rockville, describing the digital ledger that records the purchase and sale of cryptocurrency.
He put the matter in context: “If you’ve got a case where someone’s writing checks to cash, good luck finding the cash. Or they’re engaged in buying gold bullion and they’re burying it in the backyard. You can’t trace that as well as you can with crypto.”
Castellano urged family law attorneys to educate themselves about crypto and not to regard it as “some kind of drug dealer haven.”
“I think some of the early information about crypto was, oh, this is a way that you can engage in illicit activities with the dark web because it’s untraceable,” he said. “That’s just not true.”
However, Castellano said, it’s important that attorneys hire a forensic expert if a divorce case involves, or might involve, cryptocurrency assets.
“You’re going to have an expert in your corner, a forensic analyst, and you should have a tax expert
In this Feb. 9, 2021
the Smoker’s Choice store in Salem, N.H. Family
rencies as part of a divorce according to experts.
on hand as well,” Castellano said in a podcast on crypto and divorce that he did in March with his colleague David Bulitt.
Basic discovery request
Erin Kopelman, a principal at Lerch, Early & Brewer in Bethesda, said crypto should be in every family law attorney’s basic discovery request.
“That is a standard question that does need to be asked,” she said.
If attorneys suspect cryptocurrency assets exist, they should make a plan to determine the time period in question and the documents to be requested, Kopelman advised.
“That would be all the bank statements, all the credit card statements for a set period of time,” she said. “And hopefully you
would be able to see in those statements money going out in order to be able to start to trace what was purchased and when.”
The proliferation in recent years of platforms to buy and sell crypto has made tracing the assets more difficult, Kopelman acknowledged.
“(While) before we might be able to look at the account statements and we were only looking for a few places where we would see transfers out or purchases of Bitcoin, we now have to do significantly more keyword searches,” she said. “So if it was done in small amounts over various time periods, that would be significantly harder to track.”
Kopelman added that attorneys should educate themselves about how crypto works.
AP FILE PHOTO/CHARLES KRUPA
photo, the Bitcoin logo appears on the display screen of a crypto currency ATM at
law attorneys need to be aware of cryptocur-
Chris Catellano is a principal at Joseph Greenwald & Laake in Rockville, says one of the positives about cryptocurrency is there is a digital log of every transaction.
“There’s actually a lot of great YouTube videos that explain to you what this means and how to value it,” she said.
Valuing crypto assets
Crypto’s value fluctuates, sometimes significantly. Take Bitcoin, the world’s most popular cryptocurrency: It hit $1 a coin in early 2011. As of June 16, 2025, a coin was worth $107,650. And Bitcoin’s value can rise or fall by as much as 10% in a single day, according to Fidelity.
Which begs the question: How do you value crypto assets for purposes of equitable distribution in a divorce?
“It’s like an extremely volatile stock; sometimes you just have to hold your nose and pick a date,” Castellano said in the March podcast. “You plug in today’s value on
Google and, boom, you have a present-day value for the asset.”
Michael Goldberg, the managing attorney of Goldberg Tax Law in New York, often works with Maryland divorce lawyers as a financial expert witness in cases involving cryptocurrencies.
According to Goldberg, most people with crypto are not trying to hide it in divorce negotiations.
“The most complicated part is probably not (when there are) nefarious reasons but when one of the parties has gone through an exchange that does not keep good records,” said Goldberg, who is an attorney as well as a certified public accountant.
Crypto exchanges are online platforms where users can buy, sell and trade cryptocurrencies. Some exchanges are blockchain-based,
Cover Story
Michael Goldberg is the managing attorney of Goldberg Tax Law in New York and often works with divorce lawyers in Maryland as a financial expert witness.
while others function more like traditional financial institutions.
Exchanges such as Coinbase and Gemini keep good records, Goldberg said, adding that others, such as “random Russian exchanges,” make tracing crypto difficult.
Goldberg pointed to a significant forthcoming development that will make it easier to trace crypto assets: Starting next year, the IRS will require crypto exchanges and other brokers to issue customers a new form, 1099-DA, for reporting digital asset transactions.
“It will really help lawyers and experts,” Goldberg said. “They’ll be in a much easier position to identify cryptocurrency once that comes into effect.”
SUBMITTED PHOTO
Erin Kopelman is a principal at Lerch, Early & Brewer in Bethesda said crypto should be in a family law attorney’s discovery request.
SUBMITTED PHOTO
SUBMITTED PHOTO
In the News
Court upholds ruling rejecting claim of abuse of process
Daily recorD staff
Where a husband sued his wife for abuse of process and malicious use of process, alleging she obtained a protective order by making false statements, his lawsuit was dismissed and wife was awarded attorney’s fees, the Maryland Appellate Court ruled.
In upholding a decision by the Montgomery County Circuit Court, the appeals court also concluded that the amended complaint failed to plead facts of improper purpose and the commissioner and district court both found probable cause to issue the order.
The case is Charles v. Charles, No. 2342, Sept. Term, 2023 (filed May 30, 2025) (Judges Berger, NAZARIAN, Ripken).
FACTS: After years of strain in their marriage, Tiffany Summerfield Charles told her husband, Nathan Charles that she wanted a divorce. Husband, however, was “adamantly opposed to divorce.” He attempted one morning “to rekindle an emotional and physical connection” with wife, but she made clear that his advances were unwanted, rejected them and reiterated her desire for a divorce.
Husband filed a complaint for a limited divorce that afternoon. Wife then filed a petition for a protective order, alleging, among other things, that husband’s “attempt at reconciliation” was sexual abuse. The district court granted wife a temporary protective order and, within that order, gave wife temporary possession of the marital home and prohibited husband from entering it.
Husband then sued wife, alleging that she made false statements in her protective order petition. He later filed an amended complaint and dismissed all but two claims, one for abuse of process and one
for malicious use of process. The circuit court dismissed the amended complaint and awarded wife $12,693 in attorney’s fees.
LAW: Regarding the abuse of process claim, husband asserts that wife used the interim and temporary protective orders to obtain possession and use of the marital home while the divorce proceedings were pending and “to extract concessions from [him] during the divorce negotiations.”
The amended complaint, however, fails to plead facts that could support this conclusory claim of an improper purpose. Temporary use and possession of a shared residence is a permissible form of relief in protective orders.
Nevertheless, husband argues that the relief offered under these statutes is distinct from a property agreement in a divorce settlement. Even if this were an accurate characterization though, the amended complaint fails to allege facts sufficient to establish that wife used the protective order process to gain an unfair or inappropriate advantage in the divorce rather than for the legitimate purpose of securing safety from an alleged abuser.
Husband also alleged that wife’s “false statements caused [him] to lose at least one client, resulting in a loss of at least $5,000.00 in fees.” This does not satisfy the damages element for an abuse of process claim.
The second count that remained in husband’s amended complaint was malicious use of process. Unlike a claim for abuse of process, which centers on the improper use of a process after a case or action has been initiated, a claim for malicious use of process is concerned with the bringing of the case in the first instance.
Husband alleged in the amended complaint that wife filed the petition without probable cause. Specifically, he claimed that his conduct “did not constitute the crimes that [wife] claimed [he] had committed,” and “no reasonable person in her position would fear for her own safety or the safety of her children in the context of [his] cited conduct.” The fact that the commissioner and the district court found reasonable grounds to believe wife had been abused, however, established that she had probable cause to initiate the protective order proceedings, a judicial finding husband knew well about before filing his complaint.
Husband also alleged that wife “instituted the [protective order] proceeding with malice, specifically in retaliation for [husband] filing a complaint in limited divorce.” Even if she had acted with malintent, however, husband’s claim cannot survive when wife in fact had probable cause to file the petition against husband.
The second question husband raises on appeal is whether the court abused its discretion in granting wife’s motion for attorney’s fees. It did not. The circuit court considered the entire record, including husband’s opposition to wife’s motion for attorney’s fees, the history of the protective order proceedings and husband’s insistence on pursuing these meritless collateral complaints against his wife alongside their divorce proceedings for what the court seemed to agree were inappropriate motives. Under these circumstances, this court sees no abuse of discretion in the court’s decision to grant wife’s motion for attorneys’ fees in the (unchallenged) amount requested.
Judgment of the Circuit Court for Montgomery County affirmed.
Can $1,000 at birth change a child’s future?
associateD press
WASHINGTON — When children of wealthy families reach adulthood, they often benefit from the largesse of parents in the form of a trust fund. It’s another way they get a leg up on less affluent peers, who may receive nothing at all — or even be expected to support their families.
But what if all children — regardless of their family’s circumstances — could get a financial boost when they turn 18?
That’s the idea behind a House GOP proposal backed by President Donald Trump. It would create tax-deferred investment accounts — coined “Trump Accounts” — for babies born in the U.S. over the next four years, starting them each with $1,000. At age 18, they could withdraw the money to put toward a down payment for a home, education or to start a small business. If the money is used for other purposes, it’ll be taxed at a higher rate.
“This is a pro-family initiative that will help millions of Americans harness the strength of our economy to lift up the next generation,” Trump said at a White House event Monday for the proposal. “They’ll really be getting a big jump on life, especially if we get a little bit lucky with some of the numbers and the economy.”
While the investment would be symbolically meaningful, it’s a relatively small financial commitment to addressing child poverty in the wider $7 trillion federal budget. Assuming a 7% return, the $1,000 would grow to roughly $3,570 over 18 years.
It builds on the concept of “baby bonds,” which two states — California and Connecticut — and the District of Columbia have introduced as a way to reduce gaps between wealthy people and poor people.
At at time when wealth inequality
has soured some young people on capitalism, giving them a stake in Wall Street could be the antidote, said Utah Republican Rep. Blake Moore, who led the effort to get the initiative into a massive House spending bill.
“We know that America’s economic engine is working, but not everyone feels connected to its value and the ways it can benefit them,” Moore wrote in an oped for the Washington Examiner. “If we can demonstrate to our next generation the benefits of investing and financial health, we can put them on a path toward prosperity.”
Families of all income levels could receive ‘Trump Accounts’
The bill would require at least one parent to produce a Social Security number with work authorizations, meaning the U.S. citizen children born to some categories of immigrants would be excluded from the benefit. But unlike other baby bond programs, which generally target disadvantaged groups, this one would be available to families of all incomes.
Economist Darrick Hamilton of The New School, who first pitched the idea of baby bonds a quarter-century ago, said the GOP proposal would exacerbate rather than reduce wealth gaps. When he dreamed up baby bonds, he envisioned a program that would be universal but would give children from poor families a larger endowment than their wealthier peers, in an attempt to level the playing field. The money would be handled by the government, not by private firms on Wall Street.
“It is upside down,” Hamilton said. “It’s going to enhance inequality.”
Hamilton added that $1,000 — even with interest — would not be enough to make a significant difference for a child living in poverty.
A Silicon Valley investor who created
the blueprint for the proposal, Brad Gerstner, said in an interview with CNBC last year that the accounts could help address the wealth gap and the loss of faith in capitalism that represent an existential crisis for the U.S.
“The rise and fall of nations occurs when you have a wealth gap that grows, when you have people who lose faith in the system,” Gerstner said. “We’re not agentless. We can do something.”
Critics say poor families have more immediate needs
The proposal comes as Congressional Republicans and Trump face backlash for proposed cuts to programs that poor families with children rely on, including food assistance and Medicaid.
Even some who back the idea of baby bonds are skeptical, noting Trump wants to cut higher education grants and programs that aid young people on the cusp of adulthood — the same age group Trump Accounts are supposed to help. Pending federal legislation would slash Medicaid and food and housing assistance that many families with children rely on.
Young adults who grew up in poverty often struggle with covering basics like rent and transportation — expenses that Trump Accounts could not be tapped to cover, said Eve Valdez, an advocate for youth in foster care in southern California. Valdez, a former foster youth, said she was homeless when she turned 18.
Accounts for newborn children that cannot be accessed for 18 years mean little to families struggling to meet basic needs today, said Shimica Gaskins of End Child Poverty California.
“Having children have health care, having their families have access to SNAP and food are what we really need ... the country focused on,” Gaskins said.
Judge denies privacy in divorce case Of doctor charged with trying to kill wife
A judge denied a request to keep proceedings private in a divorce case for a Hawaii anesthesiologist accused of attempting to kill his wife on a hiking trail.
Gerhardt Konig’s wife filed for divorce last month after he was indicted on an attempted murder charge. Konig has pleaded not guilty. Prosecutors say he pushed her toward the edge of a cliff, attempted to inject her with a syringe and then bashed her head with a rock while they were hiking in Honolulu in March.
The couple had been visiting Oahu while their children stayed home on Maui.
An attorney representing the wife filed a motion to withhold the divorce case from the public to protect the privacy of the couple’s young children. The wife also objected to allowing news cameras to document their divorce proceedings.
According to court records, a judge denied her requests to seal the case during a hearing Monday.
An attorney for Konig said he and his client don’t have any comments on the hearing or ruling.
Konig didn’t oppose the wife’s motion to seal the divorce case.
Associated Press
GOP proposal would give child $1,000 at birth for the future
When children of wealthy families reach adulthood, they often benefit from the largesse of parents in the form of a trust fund. It’s another way they get a leg up on less affluent peers, who may receive nothing at all — or even be expected to support their families.
But what if all children — regardless of their family’s circumstances — could get a financial boost when they turn 18?
That’s the idea behind a House GOP proposal backed by President Donald Trump. It would create tax-deferred investment accounts — coined “Trump Accounts” — for babies born in the U.S. over the next four years, starting them each with $1,000. At age 18, they could withdraw the money to put toward a down payment for a home, education or to start a small business. If the money is used for other purposes, it’ll be taxed at a higher rate.
While the investment would be symbolically meaningful, it’s a relatively small
Monthly Memo
financial commitment to addressing child poverty in the wider $7 trillion federal budget. Assuming a 7% return, the $1,000 would grow to roughly $3,570 over 18 years.
It builds on the concept of “baby bonds,” which two states — California and Connecticut — and the District of Columbia have introduced as a way to reduce gaps between wealthy people and poor people.
Associated Press
No-show lawyer, client stuck with property division
One need look no further than the Plymouth, Massachusetts, Probate & Family Court to discover what can happen when the golden rule on assumptions is not heeded.
In Milka v. Milka, defendant Anita Milka wanted more time to conduct property appraisals before trial in her divorce from plaintiff William Milka.
According to court records, Judge Denise L. Meagher had scheduled trial for Dec. 5, 2023. But on Nov. 15, defense counsel Beyanid Montoya-Sheehan filed a motion for continuance, citing both the desired appraisals and the fact that she had other matters scheduled for Dec. 5.
Meagher took no action on the motion for continuance, so the original trial date remained on the schedule. But on Dec. 5, neither the defendant nor her attorney appeared for trial, though the plaintiff and his lawyer were ready and waiting.
After a two-hour delay and frantic but unsuccessful efforts by court personnel to reach the defendant and Montoya-Sheehan, Meagher proceeded with the trial.
On Jan. 10, 2024, she issued a judgment of divorce nisi that included a division of marital property based on valuations in financial statements the parties had submitted in the case.
BridgeTower Media
In vitro fertilization emerges as a central issue in the Alabama Supreme Court race
An Alabama fertility lawyer announced her candidacy for the state Supreme Court, emphasizing her personal experience with in vitro fertilization and blasting a controversial 2024 decision that ruled frozen embryos can be considered children under state law.
AshLeigh Dunham on Wednesday an-
nounced she will run in the Democratic primary in 2026 for the seat held by Republican Associate Justice Greg Shaw.
Dunham currently works as a court referee in juvenile court in Jefferson County, and also owns a law firm that specializes in helping families navigate “assisted fertilization,” according to her statement. Dunham said her work with fertility law is personal because she left Alabama to use IVF to conceive her daughter.
“Our Supreme Court needs justices who understand the real challenges families face. The court has made some anti-family rulings that are wildly out of touch with the people of Alabama,” said Dunham, referring to the 2024 ruling that said three couples whose frozen embryos were destroyed in an accident at a storage facility could pursue wrongful death lawsuits for their “extrauterine children.”
Incumbent Justice Shaw concurred in the decision and wrote a special opinion. Seven of the nine justices concurred in the result, one gave partial concurrence and one dissented.
The ruling temporarily brought IVF services to an abrupt halt statewide, drawing criticism from politicians on both sides of the aisle. The ruling swiftly prompted legislation in Alabama that shields doctors from potential legal liability.
Associated Press
Swedish inquiry finds longstanding abuse, fraud in international adoptions
A Swedish commission recommended that international adoptions be stopped after an investigation found a series of abuses and fraud dating back decades.
Sweden is the latest country to examine its international adoption policies after allegations of unethical practices, particularly in South Korea.
The commission was formed in 2021 following a report by Swedish newspaper Dagens Nyheter detailing Sweden’s problematic international adoption system. Monday’s recommendations were sent to Minister of Social Services Camilla Waltersson Grönvall, who said her department would review the report.
The commission called on the government to formally apologize to adoptees and their families.
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 MARYLAND APPELLATE COURT: FULL TEXT UNREPORTED OPINIONS
CHILD SUPPORT; INCOME
Roy Mathew v. Shiny Mathew
Nos. 1475, September Term 2024
Argued before: Shaw, Zic, Eyler, J. (retired; specially assigned), JJ.
Opinion by: Zic, J.
Filed: May 7, 2025
The Appellate Court affirmed the Howard County Circuit Court’s child support calculations. Although husband argued he did not intend to work two jobs in the future, the court did not abuse its discretion in considering his current income from both forms of employment, as they were the currently existing circumstances at the time of the proceedings. Should his employment or income change, he can petition the court for a child support modification.
The Appellate Court dismissed husband’s appeal from a Frederick County Circuit Court order. The appeal challenged an order granting wife two “makeup” visitation days with the parties’ children, on July 28 and 29, 2024. By the time husband noted his appeal on Aug. 7, 2024, the issue was already moot.
The Appellate Court reversed the Prince George’s County Circuit Court’s constructive civil contempt order and its modification of custody order. The circuit court erred by finding mother in constructive civil contempt without imposing a sanction or establishing a purge and by modifying custody without first making findings bearing upon the children’s best interests.
CUSTODY; BEST INTERESTS; SUFFICIENT EXPLANATION
Augustine Kunle Adedeji v. Taiye Adetoun Adedeji
Nos. 1621, September Term 2024
Argued before: Shaw, Zic, Eyler, J. (retired; specially assigned), JJ.
Opinion by: Shaw, J.
Filed: Apr. 11, 2025
The Appellate Court remanded the Prince George’s County Circuit Court’s custody decision. Because the trial court did not carefully set out the facts and conclusions, this court cannot discern why it determined that mother was more fit than father to have primary custody during the school year, why he was not afforded more time with his children during the summer and ultimately why this was in the best interest of the children.
The Appellate Court affirmed the Howard County Circuit Court’s award of sole legal custody and shared physical custody with primary residential custody during the school year to mother. The trial court provided clear reasoning and justifications for its sole legal custody determination.
The Appellate Court vacated the Baltimore County Circuit Court’s refusal to modify the parties’ marital settlement agreement. Where the agreement provided that husband would pay a portion of his “pension” to wife, and the parties later learned that the payments husband receives are not a “pension,” the circuit court erred when it held the agreement could not be reformed to match the parties’ intent.
The Appellate Court affirmed the Anne Arundel County Circuit Court’s modification of child custody and award of attorney’s fees to wife. The circuit court fully articulated its reasons for concluding that joint legal custody was not appropriate. The record shows that the circuit court complied with the statutory requirements for awarding expenses.
The Appellate Court vacated the Baltimore City Circuit
Court’s refusal to make the factual findings required for a 20-year-old man to become eligible to apply for Special Immigrant Juvenile status. The record showed the man’s mother “neglected” him, as that term is defined in Maryland law, and that reunification with his mother is not viable.
The Appellate Court affirmed the Talbot County Circuit Court award of sole legal and primary physical custody to father, while allowing mother supervised visitation not less than once every other week. The court appropriately considered all of the relevant factors and made an informed decision based on the totality of the evidence relevant to the minor child’s best interest.
The Appellate Court affirmed the Dorchester County Circuit Court’s termination of parental rights to four minor children previously found to be children in need of assistance. The court reached its conclusions after finding by clear and convincing evidence that both parents were unfit and that severing the parental relationships served each child’s best interests.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Washington County Circuit Court’s child support award. Although mother argued the child support award should have been retroactive to February 2020, instead of July 2023 as ordered by the circuit court, the court provided an in-depth explanation for the declination to award retroactive support to the February 2020 date.
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..
BACKGROUND
Mr. Mathew and Ms. Mathew were married in August 1999 and are the parents of six children, four of whom were minors at the time of the JAD. The parties separated around February 7, 2023, with Ms. Mathew moving out of the marital home. Ms. Mathew filed a “Complaint For Absolute Divorce” on February 14, 2023. The parties reached an initial agreement in the form of an “Interim Consent Order for Temporary Custody, Support and Related Matters,” entered by the circuit court on February 22, 2023. Mr. Mathew filed a “Counter-Complaint For Limited Divorce” on March 22, 2023.
This case arises from divorce proceedings between Mr. Roy Mathew, appellant, and Ms. Shiny Mathew, appellee. Ms. Mathew filed for divorce in the Circuit Court for Howard County in February 2023, and Mr. Mathew filed a countercomplaint in March 2023. The divorce trial took place over a period of four days in May 2024. In August 2024, the circuit court granted the parties a judgment of absolute divorce (“JAD”), ordering shared physical custody of the minor children and granting sole legal custody and primary physical custody to Ms. Mathew. Mr. Mathew now appeals.
QUESTIONS PRESENTED
Mr. Mathew presents three questions for our review, which we reproduce with minor alterations:1
1. Did the trial court err in deny[ing] appellant[’]s request for child support when the children were in his primary care and custody?
2. Did the trial court err in including income from appellant’s temporary second job in child support calculations?
3. Did the [trial] court err in denying appellant’s request for Crawford credits? Did the cour[t] err in not allocating the parties[’] obligations during the pend[e]ncy of the sale [of the marital home]?
For the following reasons, we affirm.
On August 3, 2023, the circuit court issued an “Amended Interim Consent Order for Temporary Custody, Support And Related Matters” (“Amended Interim Consent Order”). The Amended Interim Consent Order stated that Mr. Mathew “shall be solely responsible for the timely payment of the mortgage on the Home and any payments due on any second mortgage or line of credit[.]” The order also stated that Mr. Mathew would retain “temporary exclusive use and possession” of the marital home, and three of the children would have primary residence with him. The two additional minor children would have primary residence with Ms. Mathew, and the parties would share joint legal custody. A pendente lite hearing was scheduled on September 7, 2023.
The court entered a “Consent Order For Pendente Lite Custody” (“PL Consent Order”) on September 8, 2023. The PL Consent Order stipulated that access with the children would commence on an alternating week basis with specific instructions on where and how exchanges would occur. The PL Consent Order also specified that “except as modified here, the terms and provisions of the Amended Interim Consent Order entered August 7, 2023 shall remain in full force and effect until entry of a subsequent [c]ourt Order in this or any other proceeding between the parties.”
A four-day trial commenced on May 6, 2024. Ms. Mathew filed an “Amended Complaint for Absolute Divorce” (“Amended Complaint”) on August 15, 2024. Mr. Mathew filed an amended “Defendant/Counter-Plaintiff’s Counter-Complaint for Absolute Divorce” (“Amended Counter-Complaint”) on August 21, 2024. The court entered both filings “nunc pro tunc” to May 6, 2024.
On August 28, 2024, the court issued the JAD and entered a memorandum opinion on August 30, 2024. The court’s opinion detailed its determination of marital property, adjustment of the equities, legal and physical custody of the minor children, child support, and attorneys’ fees.
The court noted that Mr. Mathew sought credits as to his contribution to the mortgage, also known as “Crawford credits,” in its discussion of the adjustment of the equities. Crawford v. Crawford, 293 Md. 307 (1982). The court stated that Mr. Mathew paid the carrying costs of the home using marital funds and, thus, “granting [] Crawford credits would be inappropriate considering the facts of the case.”
In determining custody, the court examined the Taylor factors to determine whether joint custody was appropriate. Taylor v. Taylor, 306 Md. 290, 296 (1986). Applying these factors, the court found that Ms. Mathew was more capable of attending to the children’s emotional needs, Ms. Mathew had attempted to maintain natural family relations more than Mr. Mathew, and, after consultation with the Best Interest Attorney (“BIA”), that primary residence with Ms. Mathew was in the best interest of the minor children. The court conducted a detailed discussion of the family dynamics in its determination and ultimately concluded that shared physical custody with Ms. Mathew retaining primary physical custody, was most appropriate and that Ms. Mathew would also be granted sole legal custody.
The circuit court then discussed child support, noting that this case was an above-the-guidelines case. The court found that Ms. Mathew made an estimated monthly income of $15,604.78. Mr. Mathew’s income was more complicated because he had two jobs: one with the United States Department of Defense with a yearly salary of $95,628, and another with a private employer, Peraton, with a yearly salary of $220,000 and a $10,000 sign-on bonus. The court noted that Mr. Mathew was being paid for two full-time jobs, although he was working one only part-time and, thus, estimated his regular income as $26,302 per month. The court used the Child Support Obligation Worksheet A for shared custody arrangements and adjusted for the ongoing expenses for the children. The court determined that Mr. Mathew should pay Ms. Mathew $4,200 in child support per month. The court additionally determined that each party would pay his and her own attorney’s fees and that any outstanding custody evaluation fees and all BIA fees would be shared.
Mr. Mathew timely appealed the JAD. We supplement the facts in our analysis below as needed.
STANDARD OF REVIEW
“Ordinarily, child support orders are within the sound discretion of the trial court.” Reichert v. Hornbeck, 210 Md. App. 282, 316 (2013) (citation omitted). “Nonetheless, where the order involves an interpretation and application of Maryland statutory and case law, our Court must determine whether the lower court’s conclusions are legally correct under a de novo standard of review.” Id. (internal citations and quotation marks omitted).
“[T]he award of contribution is an equitable remedy within the discretion of the court. Gordon v. Gordon, 174 Md. App. 583, 642 (2007). A court’s determination as to whether a party receives contribution will not be overturned unless clearly erroneous. Caccamise v. Caccamise, 130 Md. App. 505, 525 (2000) (declining to hold a contribution clearly erroneous, when “the trial court [] had sufficient evidence before it to make the most efficient determination as to whether appellant was
deserving of contribution, and how much”).
DISCUSSION
I. THE CIRCUIT COURT DID NOT ERR IN DENYING MR. MATHEW’S REQUEST FOR CHILD SUPPORT AND ORDERING THAT HE PAY CHILD SUPPORT BEGINNING MAY 1, 2024.
Mr. Mathew first argues that “[t]he court erred in denying appellant[’]s request for child support from August 3, 2023, through August 28, 2024[,]” which was the duration of time from the Amended Interim Consent Order and PL Consent Order, through the final JAD.
“[T]he general rule is that no appeal lies from a consent order.” Barnes v. Barnes, 181 Md. App. 390, 411 (2008).2 “A party cannot be aggrieved by a judgment to which he or she acquiesced.” Suter v. Stuckey, 402 Md. 211, 224 (2007) (citation omitted). We, therefore, decline to address the section of Mr. Mathew’s argument as it relates to the period of the Amended Consent Order and PL Consent Order.
Mr. Mathew next argues that the court erred in awarding Ms. Mathew child support from May 1, 2024, through August 28, 2024, “as she did not have four (4) children in her care and custody.” He also argues that the court erred by calculating child support using shared custody guidelines under Maryland Code Ann., Family Law (“FL”) § 12-204(m) (1984, 2019 Repl. Vol., 2024 Supp.)3 and should have instead used the guidelines as described in § 12-204(l). Ms. Mathew argues that the court correctly awarded child support pursuant to the guidelines, which is the relief that Mr. Mathew requested.
Section 5-203(d)(1) of the Family Law Article (1984, 2019 Repl. Vol.) grants the court the discretion to “award custody of a minor child to either parent or joint custody to both parents.” In a divorce case, a court “may award child support for a period from the filing of the pleading that requests child support.” FL § 12-101(a)(3). Section 12-204(l) details the share of child support obligations, except in cases of shared physical custody. While child support is typically calculated using the guidelines in § 12204(e), a court may use its discretion in determining appropriate child support outside of those guidelines when in an above-theguidelines case. Ruiz v. Kinoshita, 239 Md. App. 395, 425 (2018). A case is considered above-the-guidelines when the parties’ adjusted income exceeds “the highest level of income specified in the child support guidelines set out in [] § 12-204(e).” Id. Section 12-204(m) details the requirements for shared physical custody cases, in which child support is calculated by “divid[ing] between the parents in proportion to their respective adjusted actual incomes” and then “multipl[ying] by the percentage of time the child or children spend with the other parent[.]” FL §§ 12-204(m)(1), (3).
Here, when Ms. Mathew filed her Amended Complaint, she requested that she “be awarded child support for the minor children, both pendente lite and permanently, [] and retroactively to the date of the filing of this Complaint for Absolute Divorce[.]” In his Amended Counter-Complaint, Mr. Mathew also requested that the court “[a]ward him child support in accordance with the Maryland Child Support Guidelines, to include back child
support back to the date of filing[.]” Both of these filings were entered by the court nunc pro tunc to May 6, 2024.
In the JAD, the court granted the parties shared physical custody pursuant to § 5-203 and awarded Ms. Mathew primary physical custody and sole legal custody of all the minor children. After determining custody, the court addressed child support. The court noted that this was an above-the-guidelines case after a determination that Ms. Mathew and Mr. Mathew’s combined monthly income exceeded $30,000. The court utilized the Child Support Obligation Worksheet A for shared custody arrangements and calculated the recommended child support obligation Mr. Mathew owed to be $4,266. The court, after considering the ongoing expenses of the children, ordered Mr. Mathew to pay $4,200 per month in child support beginning May 1, 2024.
We conclude that the court did not abuse its discretion in its calculation of child support for a shared custody arrangement under § 12-204(m). We further hold that, pursuant to § 12-101(a), the court did not err in granting child support retroactively, as both parties requested, beginning in May 2024.
II. THE CIRCUIT COURT DID NOT ERR IN INCLUDING MR. MATHEW’S INCOME FROM HIS SECOND JOB IN ITS CHILD SUPPORT CALCULATIONS.
Mr. Mathew next argues that the court erred when it included income from his “temporary second job” in its child support calculation. He asserts that “he does not intend to work two (2) full[-]time jobs,” and the court, therefore, should not have included both forms of employment in its child support calculations. Ms. Mathew argues that the court did not err in considering Mr. Mathew’s second job in its child support calculations “because it was ongoing, current, and not speculative[.]”
Section 12-201(b)(1) defines actual income as “income from any source.” Section 12-201(b)(3) further states that actual income includes, among others, salaries, wages, and bonuses. When “making an actual income determination, ‘[t]he court must verify the parents’ income statements ‘with documentation of both current and past actual income.’” Reichert, 210 Md. App. at 318 (internal citations omitted). “In child support cases, it is oftentimes necessary to calculate child support based on currently existing circumstances, even though the Court and the parties are fully aware that there is a significant possibility that in the future conditions might change.” Johnson v. Johnson, 152 Md. App. 609, 621 (2003). Additionally, “bonuses already paid to a parent should be used to calculate child support even though it is unknown whether such a bonus will be paid in the future.” Id. at 622.
Here, the circuit court examined the finances of both parties and determined that Mr. Mathew, at the time of the proceedings, was “being paid for two full-time jobs.” The court elaborated: Father presented into evidence a [Department of Defense] verification of employment that he is employed part-time with [a] salary of $95,628.00 annually. That is $7,969.00 per month. The letter identifies that it provides basic salary information only
and that information on overtime or other possible payments must be further requested.
A paystub from Father’s employment shows a salary of $191,900.00. The monthly income is $15,991.00 per month. Father also presented income information from his private employer, Peraton, indicating that his annual salary is $220,000.00 with a $10,000 sign-on bonus. The income from the Peraton job is $18,333.00 per month.
Father may be temporarily being paid for two full-time jobs although working one only part-time. He says that he is doing this to retire some of his debt and that this cannot and will not be permanent. The Court finds that Father’s regular income for his 1.5 jobs is $26,302.00 per month.
The court utilized this determination of actual income in its calculations and ultimately ordered Mr. Mathew pay $4,200 in child support.
We hold that the court did not abuse its discretion in considering Mr. Mathew’s income from both forms of employment as they were the currently existing circumstances at the time of the proceedings. Should Mr. Mathew’s employment or income change, “he can petition the court for a child support modification.” Johnson, 152 Md. App. at 620.
III. THE CIRCUIT COURT DID NOT ERR
IN DENYING MR. MATHEW’S REQUEST FOR CRAWFORD CREDITS.
Mr. Mathew argues that the court erred because “[t]he court did not address the equitable principle of contribution but simply denied [Mr. Mathew’s] request for contribution.” He contends that “[i]t is not equitable for [Ms. Mathew] to have the benefit of a decrease in principal and an award of fifty percent (50%) of the net proceeds.” Ms. Mathew argues that the court “undertook an in-depth analysis of the marital property issues before it” and that “Mr. Mathew does not identify any factual or legal support for his claim that the trial court erred in denying his request for Crawford credits.”
Crawford credits are granted to a party when a payor-spouse in entitled to contribution from a non-payor spouse for expenses for jointly owned property. Crawford, 293 Md. at 309. A court “is not obliged to award such contribution between husband and wife at the time of a divorce” because “contribution is an equitable remedy within the discretion of the court.” Gordon, 174 Md. App. at 641-42 (citations and quotation marks omitted). “There are four exceptions that preclude contribution; namely (1) ouster; (2) agreements to the contrary; (3) payment from marital property; and (4) an inequitable result.” Caccamise, 130 Md. App. at 525.
Here, the circuit court determined that granting Crawford credits would be inappropriate because “[t]he carrying costs of the home have been paid with marital funds.” 4 We hold that
the circuit court did not err in denying Mr. Mathew’s request for Crawford credits.
CONCLUSION
We hold that the circuit court did not abuse its discretion when it determined child support obligations considering the shared physical custody arrangement and Mr.
Mathew’s financial circumstances. Additionally, we hold that the court did not abuse its discretion when it declined to grant Mr. Mathew’s request for Crawford credits, because contributions were paid with marital funds.
JUDGMENT OF THE CIRCUIT COURT FOR HOWARD COUNTY AFFIRMED; COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Mr. Mathew originally presented a fourth question: “Did the trial court err in vesting the therapist with discretion to determ[i]ne transition and to delegate access with the minor children[?]” At oral argument, Mr. Mathew withdrew this question and, as such, we will not address it.
2 An exception to this general rule is that an appeal will lie when “the judgment exceeded the scope of consent, or for other reasons there was never any valid consent.” Barnes, 181 Md.
App. at 411 (citation and quotation marks omitted). There is no indication in the record or argument before this Court that the consent order was not valid, and as such, this exception does not apply.
3 All statutory references are to the Family Law Article unless otherwise noted.
4 Mr. Mathew, in his brief, does not challenge the circuit court’s factual findings that he paid the mortgage using marital funds.
In the Maryland Appellate Court: Full Text Unreported Opinions Cite as 06
The Appellate Court dismissed husband’s appeal from a Frederick County Circuit Court order. The appeal challenged an order granting wife two “makeup” visitation days with the parties’ children, on July 28 and 29, 2024. By the time husband noted his appeal on Aug. 7, 2024, the issue was already moot.
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..
Husband’s visitation every other weekend, Tuesday evenings on the weeks priorto his weekend access, and delineated holidays and school breaks. The court also ordered Father to pay Mother child support. Husband noted an appeal of the court’s judgment, asserting that the trial judge erred in declining to recuse herself from the proceedings after she had exhibited bias against Husband and partiality toward Wife. In an unreported opinion, this Court found no error in the trial judge’s decision not to recuse herself and affirmed the judgment of absolute divorce. See Beasley v. Beasley, No. 998, Sept. Term, 2021 (filed Feb. 15, 2022).
This appeal arises from an order entered by the Circuit Court for Frederick County in a contentious divorce case between appellant Eric Beasley (“Husband”) and appellee Elyse Beasley, n/k/a Spry (“Wife”).1 Wife petitioned for an order of contempt against Husband after he failed to grant her two days of visitation with their minor children during the children’s spring break from school, allegedly as provided to her by the parties’ prevailing consent custody order. The circuit court denied Wife’s contempt motion but, with what it characterized as Husband’s agreement, ordered that Mother be permitted two “makeup” visitation days with the children. Husband moved for reconsideration of the court’s grant of makeup days, which motion was denied by the circuit court.
In his appeal, which by written order of this Court is limited to review of the denial of his motion to reconsider, Husband continues to argue that the circuit court erred in imposing the makeup visitation days based on its erroneous understanding that Husband had agreed to that course of action. For the reasons that follow, we dismiss Husband’s appeal as moot.
BACKGROUND
Wife and Husband married in 2011 and had two children during the marriage. In 2018, Wife filed for divorce.
The circuit court entered a judgment of absolute divorce in favor of Wife on August 6, 2021. The court granted Wife sole legal and primary physical custody of the children, subject to
Following a flurry of petitions for contempt relating to visitation filed by both parties, petitions for contempt relating to payment of child support filed by Wife, and motions to modify child support filed by Husband, the parties entered into a consent custody order on April 17, 2023. Pursuant to the consent order, Husband and Wife would share joint legal and physical custody of the children, with Husband maintaining his previous visitation schedule of every other weekend and Tuesday evenings and delineated holidays and school breaks. The parties further consented to a reduction in Husband’s child support obligation, and the court entered a separate order to that effect.
On April 9, 2024, Wife filed the petition for contempt against Husband that forms the basis of this appeal. Therein, she asserted that Husband had denied or interfered with her time with the children during the second half of their 2024 school spring break. She asked that her lost visitation be rescheduled or that the prevailing custody order be amended to require additional conditions to ensure Husband’s compliance in the future.
At the June 14, 2024, hearing on the petition for contempt, Wife appeared with counsel, while Husband represented himself. Wife’s attorney made clear that what Wife sought was “a couple of makeup days” with the children. The circuit court noted that “[y]ou get makeup days if I decide that [Husband]’s in violation . . . [and] if I decide he didn’t violate the terms, then there wouldn’t be any makeup.”
The court then questioned whether it could find Husband in contempt because, although Mother asserted that she should have had visitation during the second half of the children’s spring break, the consent custody order did not explicitly state that arrangement, even if that was what the parties had contemplated when drafting it.2 It was Husband’s claim that the first half of the children’s spring break would have been from March 29 through April 4, 2024, and then his regular weekend visitation would have begun on the evening of April 5, 2024,
ending when the children returned to school on April 8, 2024. Nonetheless, he said, he had returned the children to Wife on April 3, 2024, and she had them for two nights before his regular weekend visitation began on April 5, 2024.
Wife testified that she believed the consent custody order provided her with visitation for the second half of the children’s spring break. She therefore asked the court for makeup time with the children on July 28 and 29, 2024, for the two additional visitation days she believed she should have had over spring break.
After confirming with Husband that he did not have any plans for the children during those two specific days, the court continued:
THE COURT: You’re okay with her having those two days? I mean if you say no, I’m not going to hold it against you. I’m just trying to take the path of least resistance here. I’m not trying to get you to give up your principles or compromise your position. So don’t feel like you have to vouch it in some sort of equivocal language.
[HUSBAND]: Okay.
THE COURT: I’m just plain and simple.
[HUSBAND]: I was getting ready to lawyer it, Your Honor. THE COURT: Don’t lawyer it.
[HUSBAND]: If those days are what the Court decides, I am at best—
THE COURT: I’m not going to decide, but I just want to know. I’m just asking if you agree.
[HUSBAND]: I have no plans, Your Honor.
THE COURT: All right. Are you okay with her having those days? [HUSBAND]: Non-lawyer answer, yes.
The court then addressed Wife’s attorney:
So, let me just jump to something here. So, she gave two days she would like. He said he’d be okay with those two days without compromising his position. You’re asking me to hold him in contempt, and I’m assuming you want makeup visitation and purge if he gives us makeup visitation, right? . . . Is that part of your relief at least?
Wife’s counsel advised the court that Wife did not so much want Husband held in contempt as she wanted simply “to make up the overnights and clarify that the order reads that she should have the times during the holidays when [Husband] does not have the children.”
As a possible alternative to a contempt finding, the court asked Wife’s attorney, “Are you okay with just agreeing on the record she’s going to get those two days? She said she wanted them. He said, okay. Can’t we just consider that an agreement?” Counsel agreed that Wife was willing to accept that remedy. The court again stated, “if she’s agreeable to that, I’ll consider an agreement on the record that she is to get July 28th and 29th.”
Husband then testified, stating only that he had followed the consent custody order exactly as it was written and as he believed it was intended. He therefore denied that he was in contempt of an order, but he made no comment about Wife’s request for makeup days or the court’s consideration of an
agreement between the parties.
The circuit court ruled orally that the parties’ consent custody order did not unambiguously give Wife visitation with the children for the second half of spring break in 2024. In its view, then, Wife’s remedy was likely not contempt or a finding of unreasonable denial of visitation, but rather a motion to modify the consent order to avoid ambiguity or disagreement between the parties in the future. For those reasons, the court did not find Husband in contempt.
By written order entered June 17, 2024, the circuit court denied Wife’s petition for contempt but ordered that, “per the agreement of the parties, on the record at the June 14, 2024 hearing, Mom shall have the children for ‘make-up’ visitation on July 28 and 29, 2024[.]”
Husband did not appeal the court’s order, but on July 11, 2024, he moved for reconsideration, asserting that the order did not accurately reflect the statements the parties made at the hearing. Specifically, he claimed that he had not “agreed” to makeup days on July 28 and 29, 2024; instead, he had only responded to the court’s questioning that he did not have plans for the children on those days. In his view, because the court had found no contempt on his part, no exchange of custody days was warranted.
By order entered July 23, 2024, the circuit court, “having reviewed what was said in the proceeding,” denied Husband’s motion to reconsider. Husband noted his appeal on August 7, 2024.
Wife, in the circuit court, moved to dismiss the appeal as untimely, on the ground that it was filed more than thirty days after the entry of the order denying the petition for contempt. She filed a similar motion to dismiss Husband’s appeal as untimely in this Court. We denied her motion to dismiss, but expressly limited the scope of Husband’s appeal to consideration of whether the circuit court erred in denying his motion for reconsideration.3
DISCUSSION
Husband continues to claim that the circuit court erred when it granted Wife two makeup visitation days in July 2024, based on what the court characterized as Husband’s agreement. Instead of an “agreement” to makeup days, Husband says, his response to the court’s questioning comprised nothing more than an acknowledgment that he had no pre- existing plans for the children on those specific dates in July, which “no reasonable person could have concluded” was an agreement.
Because the court ordered Wife’s makeup days to occur on specific dates in 2024, however, the issue raised by Husband is moot.
As the Supreme Court of Maryland has explained, “[o] rdinarily, in order for a case to be heard and an appellate court to provide a remedy, there must be an existing controversy.” Off. of Pub. Def. v. State, 413 Md. 411, 422 (2010). When “‘there is no longer an existing controversy when the case comes before the Court or when there is no longer an effective remedy the Court could grant[,]’” the matter is moot. In re R.S., 242 Md. App. 338, 353 (2019) (quoting Suter v. Stuckey, 402 Md. 211, 219 (2007)), aff’d, 470 Md. 380 (2020). Subject to limited exceptions, if a
controversy no longer exists when the case comes before us, we “usually dismiss the appeal without addressing the merits of the issue.” Powell v. Maryland Dep’t of Health, 455 Md. 520, 540 (2017); see also Md. Rule 8- 602(c)(8) (“Th[is] Court may dismiss an appeal if . . . the case has become moot.”).4
The circuit court granted Wife two makeup visitation days, specifically for July 28 and 29, 2024. There was no provision in the court’s order for additional or substitute makeup visitation days. Therefore, by the time Husband noted his appeal on August 7, 2024, arguing that the court should not have ordered the makeup days, the issue was already moot because, even had we agreed with Husband’s argument, there was no longer an existing controversy, nor a remedy the circuit court, or this Court, could have provided to Husband to compensate for makeup visitation days that had already occurred.5
Even had we considered Husband’s argument on its merits, he would not have prevailed. As we explained in Steinhoff v. Sommerfelt, 144 Md. App. 463, 484-85 (2002):
Appellate consideration of a denial of a motion to reconsider, or some similar post-trial revisiting of already decided issues, does not subsume the merits of a timely motion made during the trial.
That a party, arguendo, should have prevailed on the merits at trial by no means implies that he should similarly prevail on a post-trial motion to reconsider the merits. A decision on the merits, for instance, might be clearly right or wrong. A decision not to revisit the merits is broadly discretionary. The appellant’s burden in the latter case is overlaid with an additional layer of persuasion. Above and beyond arguing the intrinsic
merits of an issue, he must also make a strong case for why a judge, having once decided the merits, should in his broad discretion deign to revisit them.
Husband asserts that the circuit court was wrong in attributing to him an agreement that Wife be granted the two makeup visitation days in July 2024. A fair reading of the colloquy between the court and Husband, however, supports a finding that Husband did agree. When he was specifically asked by the court if he was “okay with [Wife] having those days?” Husband answered, “Non-lawyer answer, yes.” Later, when the court summarized the position of the parties as, “So, she gave two days she would like. He said he’d be okay with those two days without compromising his position[,]” Husband did not disagree with that characterization. Nor did he raise any lack of agreement to providing Wife the two makeup days during his own testimony before the court or during closing argument before the court ruled. Therefore, the court’s ruling was based on Husband’s own failure to disabuse the court of its reasonable understanding of his position.6
In ruling on Husband’s motion for reconsideration, the circuit court specifically pointed out that it had “reviewed what was said in the proceeding” before denying the motion. Based on the court’s statement, and our own reasonable interpretation of Husband’s statements during the contempt hearing, we cannot say that Husband made “a strong case” for why the court should have deigned to revisit the merits of its initial ruling upon reconsideration. Therefore, had we considered the issue, we would have found no abuse of discretion in the circuit court’s denial of Husband’s motion for reconsideration.
FOOTNOTES
1 The court’s judgment of absolute divorce restored Wife’s name to Elyse Diane Spry.
2 The pertinent provision of the parties’ visitation agreement states that: “In even years, Father will have parenting time . . . the first half of spring break[.]” It does not specify that Mother will have parenting time the second half of the break.
3 The scope of our review is limited by the timing of Husband’s appeal. In Pickett v. Noba, Inc., 122 Md. App. 566, 570-71 (1998), this Court recognized that a revisory motion filed within ten days of the entry of judgment stays the deadline to file an appeal, whereas one filed more than ten days after entry of judgment does not. (We will assume, for the sake of argument, that the circuit court’s order granting Wife makeup visitation days is an appealable interlocutory order pursuant to Md. Code, § 12-303(3)(x) of the Courts & Judicial Proceedings Article, because it arguably deprived Husband of the care and custody of the children.)
Here, the circuit court entered the order denying Wife’s petition for contempt but granting her two makeup visitation days on June 17, 2024. At that point, the deadline for filing an appeal of that order was July 17, 2024. Husband did not challenge the circuit court’s judgment until July 11, 2024, when he filed, not a notice of appeal, but a motion to reconsider the imposition of makeup visitation days. Because the motion was filed more than ten days after entry of judgment, the time for an appeal was not stayed.
Husband filed his notice of appeal on August 7, 2024, several weeks after the July 17, 2024, deadline. The propriety
of the underlying judgment, therefore, is not before us. We only consider the denial of his motion for reconsideration, for which the applicable standard of review is whether the court abused its discretion. See Hossainkhail v. Gebrehiwot, 143 Md. App. 716, 723-24 (2002).
4 “[O]n rare occasions, we reach issues that are otherwise moot.” Beeman v. Dep’t of Health & Mental Hygiene, 105 Md. App. 147, 158 (1995). One exception to the mootness doctrine occurs when “a case, while technically moot, presents a recurring matter of public concern which, unless decided, will continue to evade review[.]” Off. of Pub. Def., 413 Md. at 423. Another exception is the prevention of harm to the public interest. Hamot v. Telos Corp., 185 Md. App. 352, 366 (2009). There is no matter of public concern or harm raised here.
5 Moreover, the circuit court actually denied Wife’s petition for contempt. Maryland Code, § 12-304 of the Courts and Judicial Proceedings Article “clearly and unambiguously limits the right to appeal in contempt cases to persons adjudged in contempt.” Pack Shack, Inc. v. Howard Cnty., 371 Md. 243, 254 (2002) (emphasis added). In the absence of statutory authority, we cannot review an appeal brought by someone who has not been held in contempt of court. Id. Accordingly, because Husband was not held in contempt of court, his challenge to the circuit court’s order would not have been reviewable on appeal in any event.
6 Husband acknowledges in his brief that “[t]here is likely to be a question of why [Husband] did not interrupt the proceedings and dispute the existence of an agreement[,]” stating that he lacked “the fortitude and strength of character” to interrupt a judge during a court proceeding intended to determine whether he had acted in contempt.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court reversed the Prince George’s County Circuit Court’s constructive civil contempt order and its modification of custody order. The circuit court erred by finding mother in constructive civil contempt without imposing a sanction or establishing a purge and by modifying custody without first making findings bearing upon the children’s best interests.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
providing adequate notice prior to her moving more than 30 miles away; (2) not providing adequate notice prior to traveling internationally with the children; (3) not timely notifying Father that J. was bitten by an animal while traveling, requiring rabies prophylaxis; and (4) by repeatedly not returning the children to his custody on time or at the agreed-upon exchange location.
Six months later, Father moved to modify custody to make him the children’s sole legal and primary physical custodian.4 In addition to incorporating the allegations of the petition for contempt, which he asserted were a material change of circumstances affecting the welfare of the children, Father also alleged that Mother had been cited for reckless driving while the children were in her vehicle, was not ensuring that the children completed schoolwork during her access periods, and had not discussed with Father a change in the children’s school enrollment.
Appellant Maisha Jones (“Mother”) appeals from an order issued by the Circuit Court for Prince George’s County finding her in constructive civil contempt and modifying a custody order to grant her former husband, appellee Alonzo Jones, Jr. (“Father”),1 primary physical custody of their children and sole legal decision-making authority on certain topics.2 Mother argues that the circuit court erred by (1) finding her in constructive civil contempt without imposing a sanction or establishing a purge, and (2) modifying legal and physical custody in the context of a contempt proceeding and without conducting a best interest analysis. For the reasons that follow, we conclude that the contempt order is legally insufficient and that the court erred by modifying custody without first making findings bearing upon the children’s best interests. We therefore reverse the contempt order, vacate the order modifying custody, and remand for further proceedings.
BACKGROUND
Mother and Father share three sons: A., age 15; J., age 12; and M., age 9. The parents divorced in 2020. The terms of the parties’ access with the children is spelled out in their divorce decree, as modified by a consent judgment (collectively, “the custody order”).3 Under that custody order, they shared joint legal custody and split physical custody on a nearly 50-50 basis.
Father filed his petition for contempt in September 2022, alleging that Mother violated the custody order by: (1) not
The court heard evidence on contempt and modification over two days in late 2023 and early 2024.5 Since the entry of the custody order, both parties had moved. Mother had moved twice: from Bowie to Silver Spring and then to Potomac. Father had moved from Lanham to Westminster, just under 50 miles away from Mother’s home. Custody exchanges were supposed to occur at a park in Silver Spring. The evidence showed that although Mother notified Father about her most recent move, she did so only the day before school started and without discussing that the children were changing schools.
Father testified to repeated instances of Mother either not picking the children up from him as scheduled or not returning the children to his custody as scheduled. The most recent failure to abide by the access schedule was the weekend prior to the first day of the hearing.
The custody order required the parties to provide each other advance notice before flying with the children and to notify each other “immediately” if a child became ill while in their care. Father testified that Mother notified him that she was traveling to Thailand with the children only after they were already at the airport and only notified him that a monkey bit J. during that trip, necessitating prophylactic treatment for rabies, after they had returned to Maryland.
With respect to modification, Father sought sole legal custody and primary physical custody, with Mother receiving access every other weekend. He testified that Mother failed to help the children with their homework when they were in her custody and, as a result, they were falling behind academically. If he were granted primary physical custody, Father planned to enroll the children in their zoned public schools near his home, which he testified were excellent.
The court ruled from the bench during a remote proceeding
in August 2024. The court found that Mother engaged in a “regular, consistent and ongoing cycle ... of noncompliance” with the custody order, followed by periods of seeming compliance in advance of court dates. It reasoned that unlike in Breona C. v. Rodney D., 253 Md. App. 67, 76 (2021), where this Court held that past non-compliance with a custody order could not support a constructive civil contempt finding if the parent was currently compliant, Mother’s continuous, willful violations of the custody order were contemptuous. For those reasons, the court found Mother in constructive civil contempt. The court concluded that there was “no viable sanction” it could impose, however, and moved on to consider Father’s motion to modify custody.
On the issue of modification, the court found that the parents were unable to effectively communicate, and no longer lived in close proximity to each other, which combined to “create[] a major problem.” Mother’s failure to timely notify Father of deviations from the access schedule resulted in “unproductive driving” and exhausted children. As a result, the children’s grades were declining, and they were struggling with their mental health. Based on these findings, which the court stressed were not all its considerations, it found that there were material changes that negatively impacted the children, warranting modification of the custody order.
The court modified the custody order to grant Father sole legal custody with respect to passports, travel, and educational decisions and primary physical custody, with Mother’s access occurring every other weekend from Friday after school until Sunday evening. The provisions of the custody order not explicitly modified remained in effect.
Following its oral ruling, the court entered a 2-page order, captioned “Order of Contempt” setting out the above changes to custody. Although the order stated that it is “based on the ‘best interest of the child’ standard,” it did not include any factual findings related to the best interest of the children. It did, however, include findings in support of holding Mother in contempt.
DISCUSSION
I. CONTEMPT
Mother first challenges that the circuit court erred by entering an order finding her in constructive civil contempt of the custody order because the order neither imposed a sanction nor included a valid purge provision. We agree.
“Constructive, as opposed to direct contempt, is contempt that occurs outside of the ‘presence of the judge presiding in court or so near to the judge as to interrupt the court’s proceedings.’” Breona C., 253 Md. App. at 73 (quoting MD. R. 15-202) (footnote omitted). Unlike criminal contempt, which serves a punitive purpose, civil contempt proceedings are intended to coerce present or future compliance with a court order. Sayed A. v. Susan A., Md. App. , , No. 1365, Sept. Term, 2024, slip op. at 28-29 (filed Mar. 28. 2025). To achieve that purpose, a constructive civil contempt order must: (1) impose a sanction; (2) include a purge provision that gives the contemnor the opportunity to avoid
the sanction by taking specific action of which the contemnor is reasonably capable; and (3) be designed to coerce the contemnor’s future compliance with a valid legal requirement rather than punish the contemnor for past, completed conduct.
Breona C., 253 Md. App. at 71.
Here, the contempt order is defective because it fails to impose a sanction or include a purge provision. Indeed, the circuit court expressly found that there was no viable sanction it could impose because Mother already was ordered to comply with the custody order, and later in the hearing, noted that any sanctions or purge provision would be moot due to the modification of the custody order. We, therefore, reverse the finding of contempt.6
II. MODIFICATION
Next, Mother challenges that the circuit court erred in modifying custody without conducting a best interest analysis. We review decisions to modify custody using three interrelated standards of review. In re Yve S., 373 Md. 551, 586 (2003). First, we review factual findings to determine if they were clearly erroneous. Id. Next, we review legal conclusions without deference. Id. Finally, if the circuit court’s factual findings were not clearly erroneous and the legal conclusions were correct, we review the court’s ultimate decision for abuse of discretion only. Id. When considering a motion to modify custody, the circuit court engages in a two- step process to determine whether modification is warranted. Jose v. Jose, 237 Md. App. 588, 599 (2018); Gillespie v. Gillespie, 206 Md. App. 146, 171 (2012). First, the court determines whether there has been a material change in circumstances since the previous custody order was entered, and if so, the court then considers whether a change in custody would be in the best interest of the child. Jose, 237 Md. App. at 599; McMahon v. Piazze, 162 Md. App. 588, 593-94 (2005). “A change in circumstances is ‘material’ only when it affects the welfare of the child.” McMahon, 162 Md. App. at 594. This “procedural analysis” applies whether the court rules upon a standalone motion for modification or issues an ancillary order modifying custody or visitation in the context of a contempt proceeding “for the purpose of facilitating compliance or encouraging a greater degree of compliance[.]” Sayed A., slip op. at 33 (cleaned up).
Under the first step, the circuit court found at least three material changes had occurred since the entry of the divorce decree and the consent order: (1) the parents’ deteriorating communication and inability to co-parent; (2) the increased distance between their homes; and (3) Mother’s repeated failure to comply with the access schedule.
Mother challenges some of the factual findings underlying the court’s determination that there had been material changes. Her arguments, however, concern the weight the court assigned to certain evidence and the court’s credibility assessments, both of which fall within the exclusive province of the circuit court.7 See In Re: Timothy F., 343 Md. 371, 379 (1996) (“Judging the weight of evidence and the credibility of witnesses and
resolving conflicts in the evidence are matters entrusted to the sound discretion of the trier of fact.”). After reviewing the record, we conclude that the circuit court’s findings were not clearly erroneous.
Mother also contends that there was no evidence showing that any of the changes affected the welfare of the children such that they would be considered “material.” There was evidence before the court that the children were exhausted and were struggling academically, which the court found demonstrated that their welfare was negatively affected by increased driving for custody exchanges, coupled with Mother’s lack of communication about deviations from the schedule. We perceive no error by the court under the first prong of its modification analysis.
The court’s analysis under the second procedural step was, however, lacking. The court granted Father’s motion to modify custody, altering the essentially 50-50 access schedule to give Father twelve overnights in every two-week block and to grant him sole decision-making authority over travel, passports, and education. But in doing so, the court did not make findings on the pertinent best interest factors set out in Taylor v. Taylor, 306 Md. 290 (1986), Montgomery County Department of Social Services v. Sanders, 38 Md. App. 406 (1978), and related cases. Though there is certainly overlap between the circuit court’s findings relative to contempt and the material changes, on
the one hand, and the best interest factors, on the other, the court did not engage in any meaningful analysis of the factors or comment upon how this dramatic change would affect the children. See Boswell v. Boswell, 352 Md. 204, 223 (1998) (in making a custody or visitation determination, a “court is to consider the [best interest] factors ... and then make findings of fact in the record stating the particular reasons for its decision”) (emphasis added). Although we are cognizant of the high degree of deference we must show to a circuit court’s decision in a contested custody case, we cannot assess whether the circuit court appropriately exercised its discretion in the absence of on the record findings bearing upon the factors that the court determined to be dispositive. Consequently, we vacate the order granting Father’s motion to modify custody and remand for further proceedings not inconsistent with this opinion.
We take judicial notice of the fact that Father has filed a new motion for modification of custody seeking to limit Mother’s access to supervised visits based upon events that transpired since this appeal was noted. A hearing on that motion is scheduled for May 22, 2025. As a matter of judicial economy, the court may, in its discretion, choose to wait until after that proceeding to make additional findings consistent with this opinion.8
ORDER OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY FINDING APPELLANT IN CONTEMPT REVERSED. ORDER GRANTING APPELLEE’S MOTION TO MODIFY CUSTODY VACATED. CASE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. COSTS TO BE EVENLY DIVIDED.
FOOTNOTES
1 Father did not file a brief in this Court.
2 By order of this Court, that judgment has been stayed pending the resolution of this appeal.
3 This Court affirmed the custody and access provisions of the divorce judgment on appeal. See Jones v. Jones, No. 369, Sept. Term 2020 (filed Nov. 23, 2020).
4 Mother also filed motions for contempt and modification of custody but does not challenge the denial of her motions in this appeal.
5 The court initially held a contempt hearing in August 2023 at which Father and his counsel appeared, but Mother and her counsel did not. After the court found Mother in contempt, she moved for reconsideration, arguing that her attorney had been advised that that hearing was postponed. The court granted her motion for reconsideration and vacated the contempt order. In this appeal, Mother suggests that the court may have improperly relied upon evidence received at the first hearing in deciding the issues before it in the second hearing. We find no support in the record for this contention.
6 Because we are reversing on the grounds that the contempt order failed to include the required sanction and purge provision, we do not address whether the evidence of Mother’s pattern of noncompliance with the custody order could have supported a finding of constructive civil contempt. See Breona C., 253 Md. App. at 76 n.6 (leaving open the possibility that a “pattern of conduct in violation of a court order that, due to its continuing
or repetitive nature, could reasonably be found to be ongoing at the time of a contempt hearing” even if the alleged contemnor is no longer “technically out of compliance” could support a finding of constructive civil contempt).
7 We note that Mother’s brief includes no citations to the record or the record extract in support of her contentions. See MD. R. 8-504(a)(4) (requiring references to “the pages of the record extract or appendix” to support factual assertions). Her record extract also does not contain the order from which she appeals. See MD. R. 8-501(c) (“The record extract shall contain all parts of the record that are reasonably necessary for the determination of the questions presented by the appeal” and “shall include ... the judgment appealed from[.]”). It is not this Court’s job to search the record to find evidence in support of Mother’s claims and we decline to do so. Ruffin Hotel Corp. of Md. v. Gasper, 418 Md. 594, 618 (2011).
8 We observe that the appointment of a best interest attorney to represent the children’s interests might aid the court in assessing the appropriate custody and access arrangement and in determining whether and in what manner the children’s preferences could be considered. MD. CODE, FAM. LAW § 1-202; see also, e.g., Augustine v. Wolf, 264 Md. App. 1, 17 (2024) (“To effectuate a child’s unique interest in the outcome of a custody dispute, a BIA is frequently appointed to represent a child in contested custody proceedings, and in certain contexts, the failure to provide independent representation to a child in such proceedings can be reversible error.”).
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 06 MFLU Supp. 23 (2025)
Custody; best interests; sufficient explanation
Augustine Kunle Adedeji v. Taiye Adetoun Adedeji
Nos. 1621, September Term 2024
Argued before: Shaw, Zic, Eyler, J. (retired; specially assigned), JJ.
Opinion by: Shaw, J.
Filed: Apr. 11, 2025
The Appellate Court remanded the Prince George’s County Circuit Court’s custody decision. Because the trial court did not carefully set out the facts and conclusions, this court cannot discern why it determined that mother was more fit than father to have primary custody during the school year, why he was not afforded more time with his children during the summer and ultimately why this was in the best interest of 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..
BACKGROUND
Appellant Augustine Kunle Adedeji (“Father”) appeals a custody determination by the Circuit Court for Prince George’s County awarding Appellee Taiye Adetoun Adedeji (“Mother”) primary residential custody of their two minor children, O.A. and I.A., during the school year and ordering that Father would have access to the children on alternate weeks from Thursdays after school to Monday mornings. The parents were awarded alternate full-week access during the summer. Appellant noted this timely appeal, and he presents one question for our review:
Did the trial court clearly err and abuse its discretion when it awarded Mother primary physical custody of the minor children during the school year and established Father’s school year parenting time as alternate weekends only without properly analyzing and applying the requisite standards of Montgomery County v. Sanders and Taylor v. Taylor in its determination?
For reasons discussed below, we remand this matter to the trial court for further proceedings consistent with this opinion.
Mother and Father married on October 24, 2015. Their son, O.A., was born in 2016, and their daughter, I.A., was born in 2018. In June 2023, Father filed for divorce in the Circuit Court for Prince George’s County, claiming irreconcilable differences. Mother filed an answer and a counter-complaint for absolute divorce. On March 19, April 16, August 22, and September 19, 2024, the circuit court held a multi-day merits hearing. Father testified and called witnesses, including his father, Augustine Adedeji, Sr., his mother, Tiaa Adedeji, and his sister, Monica Adedeji. Mother also testified and called witnesses, including the children’s nanny, Joyce Inji, and her mother, Adeola Ayoola. Father first called his father, Augustine Adedeji Sr., to testify, and he stated that the minor children visit his home “maybe twice a month” and Mother has not accompanied the children on visits to his home since 2022. He stated that, when the children visit his home, he has observed that Father primarily cares for the children by “changing diapers” and “taking the children to the bathroom.” He testified that Mother would not assist during visits and that she would participate in Zoom calls with her family. He testified that Mother informed him that she and Father “had an issue in the marriage” prior to his son informing him of the marital issue. He listened to the concerns of both Mother and Father. When asked if he believes his son to be “a fit and proper person to have shared custody of his kids[,]” he responded that he has observed “that most times he’s the one that goes to the – to the bathroom to change their diapers” and that Father will “take out their plates, give them food. . . . He’s the one to carry them each to the car – back to the car.” He described Mother as “hyper” and lacking consistency.
Father testified that, at the time of the merits hearing, he was forty years old and employed as a software developer. Father has worked “[a]t the same place for the last seventeen years” and his work schedule is “generally, Monday through Friday.” He testified that he has “more flexibility” with his work schedule and that he works remotely. He stated that, during his marriage to Mother, he was actively involved in the children’s lives, he took the children to family events and extracurricular activities, watched them when Mother traveled, “baby-proofed” their home and his parent’s home, and assisted with parenting tasks, such as potty-training, making meals, and choosing physicians for the children. Father indicated that he paid for the children’s health insurance and copays.
Father testified that he was involved in his children’s education, stating that he assisted with completing homework, performed science experiments with the children, and worked as a volunteer in the children’s schools. Father testified that
because O.A. has experienced some social and behavioral issues in school and daycare, he has taken him to places where he can improve on those issues, such as jujitsu classes and a school program called Outschool. Father also stated that he is actively involved in developing the children’s faith and that he primarily took the children to church prior to May 2023.
Father stated that he and Mother divorced due to irreconcilable differences, and he alleged that Mother hit him on multiple occasions. After Father filed for divorce in June 2023, the parties continued to live together in the marital home for approximately one year. They created a schedule during this time, whereby Father was responsible for the children on Mondays and Fridays, Mother was responsible for children on Tuesdays and Thursdays, the parties split responsibilities on Wednesdays, and the parties alternated responsibilities on Saturdays and Sundays. Father testified that he is still very involved with the children and has taken them on educational trips, such as the Library of Congress, University of Maryland’s Maryland Day, and Bowie State’s STEM Day. He also testified that he has taken the children on other trips to Ocean City, the Gaylord Hotel, Glendale Fire Station, and University of Maryland basketball games.
Father called his Mother, Tiaa Adedeji, who testified that she has observed Father with the children “many times” in both her own home and in Mother and Father’s home. In describing Father’s relationship with the children, she testified that Father “has a very cordial relation with his children, cares for them, very passionate about them, makes their food when he is with us, change[s] their diapers, put[s] them to sleep, reads to them, and [is] just very caring[.]” She stated that the children “love him” and “are excited” to see him. When the children spend the night at her house, she has observed Father put the children to bed and prepare their meals. She stated that she does not have any concerns about his parenting and that he is a fit and proper person to share custody of the children.
Father’s sister, Monica Adedeji, testified that she has observed Mother and Father with the children “a lot of times” both at her parent’s home and Mother and Father’s home. She stated that Father is “a very caring and devoted father. He’s always been there since day one[.]” She stated that Father set up the car seats and cribs for the children and that he bathes, feeds, clothes, and reads to the children. She also indicated that Father is involved in the children’s school activities, such as martial arts, swimming, and ballet. She stated that she has no concerns about Father’s parenting and that he is a fit and proper person to share custody of the children. When asked to describe concerns about Mother, she testified that “[y]ou never really know what you can expect.” She recalled helping Mother with O.A. after he was born and described Mother becoming agitated with her.
Mother first called Joyce Inji to testify, and she stated that she has worked as O.A. and I.A.’s nanny on an as-needed basis since September 2022. She indicated that both Mother and Father interviewed her for this position, and she watches the children when the parents work or when Mother is out of town. Inji testified that Mother keeps in contact with her throughout the day and informs her of when and what the children should eat. She described Mother as someone who “loves her children”
and stated that they can “get hold of her all the time.” She described Mother as an “extremely good” parent. She stated that the children “run to” Mother and are excited to see her when she returns home. She testified that the children “are not as enthusiastic” when Father comes home. On one occasion, she observed Father arguing on the phone in front of the children about the divorce after testimony had been presented on April 16, 2024. On a separate occasion, she alleged that Father refused to speak to her while picking up the children. She indicated that she usually watches the children from 6 p.m. to 9 p.m. on Tuesdays and Thursdays and sometimes on Saturdays. She stated that Mother paid her for her services.
Mother testified that, at the time of the trial, she was fortyone years old, and she was employed as a pharmacist and senior project manager for the Food and Drug Administration. She stated that her “work schedule is pretty flexible” and that she “work[s] between the hours of 9:00 or 10:00 to 5:00 or 6:00” in the evening. She indicated that her job is “currently remote[.]” Mother also testified that she has a book business in which she creates Yoruba language books. As for Father’s work schedule, Mother testified that Father would “leave around 7:30” in the morning for work and would return around 7:30 or 8 p.m.
During the marriage, Mother was “in charge of the affairs of the children” and did “grocery shopping, doing the laundry, doing the dishes, tidying the house.” She described herself as “primarily responsible” for the children, explaining that she “would get them ready, feed them breakfast, pack their lunches, drop them off at their daycare center, go to work.” In the event of issues at daycare, Mother “would run back to attend to that at the daycare center[.]” Mother testified that she was responsible for pickups from daycare and would then “come back home, feed them, bathe them, prepare their meals, [and] ensure that their laundry was done[.]” She was responsible for packing lunches and taking the children to school activities until “there was discussion about divorce.” She stated that Father “then [] began to pitch in to those [] responsibilities.” Mother has also “identified the need for extracurricular activities” and described herself as the parent who “actually initiates signing them up for those activities.”
Mother indicated that Father preferred that he “handle the mortgage and the bills” and that she “handle the childcare costs, the kids’ clothes, and groceries and cleaning the house and all those . . . related things.” When making decisions about the children’s healthcare, Mother testified that she and Father “would talk about it and then [they] would make a determination as to who was in network and [they] would make it jointly.” Father “had access to the health insurance profile and could identify which providers were in network, he provided the [] options for these providers” and Mother would “select them.” She testified that “she was responsible for taking the children to the doctor’s appointments” and “over 90 percent of the appointments” were made by her.
As for the children’s education, Mother and Father would attend standard parent- teacher conferences together, but Mother would initiate conferences “outside of the regular scheduled ones” to “constantly reach out to the teacher to get feedback, especially as it relates to [her] son.” Mother testified that she “spearheaded enrollment of [the] children into their
respective schools” and that she is “proactive about soliciting feedback from their teachers, as to how they’re doing, doing their homework with them, and ensuring that all the activities or assignments are turned in on time[.]” She testified that she “selected their schools and enrolled them in their respective schools.”
When asked what her concern would be with Father having the children for a full week, Mother responded that he “works in Virginia and leaves pretty early in the morning and returns pretty late in the evening[.]” Mother believed that “the only way that it would work for him to – for them to be with him would be for him to put them in an aftercare program, which is not necessary if they’re with me.” Due to O.A.’s issues at aftercare programs in the past, Mother testified that she did not believe this arrangement would be suitable for their son.
Mother stated that her son, O.A. is “on the waitlist to be evaluated by Kennedy Krieger” due to social and behavioral issues. Mother testified that “sometime in 2022” she approached O.A.’s pediatrician “to solicit input from her in terms of choices for therapists” for her son. Mother stated that, “after months of convincing[,]” Father agreed that O.A. could see a therapist in March 2023. Mother testified that the children began exhibiting unusual behavior after the June 2023 divorce filing, such as nail-biting and bed-wetting. Mother stated both children began seeing a therapist in May 2024. Father “pushed back on that” and stated that “he objected to [Mother] moving forward with signing the children up[.]” Mother indicated that she and Father have had an ongoing dispute about choosing a therapist for their children.
Mother testified that “the entirety of the marriage has [] been highly tumultuous.” On one occasion, Mother testified that Father “aggressively tried to force the door down to get entry” into the marital home. On a separate occasion, Mother indicated that Father grabbed her and “pushed [her] into the closet[.]” On another occasion, Mother testified that Father “banged on the door as [she] was asleep” and “began to yell threats at [her] and say that he was going to kill [her].” She also testified that Father allegedly came to the children’s aftercare program and blocked her car “to obstruct [her] ability to pull out.” She alleged that he “got out of the car and started yelling obscene things at [her] in front of [the] children, and then [the] children were terrified.” She stated that “park police came to try to calm him down. . . . The director of the program came out to calm him down.”
When Mother and Father arrived home, Mother attempted to console I.A. by taking her to her grandmother’s home and Father attempted to “yank” I.A. out of Mother’s hands.
Mother called her mother, Adeola Ayoola, who testified that she had stayed at Mother and Father’s home “many times.” She spent “almost four months” in the home after O.A.’s birth and “six weeks” in the home after I.A.’s birth. She also spent “the entire period of the lockdown” with Mother and Father. She described Mother as “an excellent mother to her children” and stated that she is involved in the children’s schooling, registration for activities, and their medical care. She has observed Mother “getting them ready for school, packing their lunch boxes, making sure that they do whatever assignment they have from school, and making sure that they’re well dressed for school.” She stated that Father “always has to leave very early” for work
but “[s]ometimes he does help to get them to school.”
When describing Father as a parent, she stated “that while [Father] may love his children, his methods are a bit harsh, very harsh, very stern.” She has observed Father “excessive[ly] discipline” the children by sending them to their room during dinner when they “drop[] a cutlery” or they do not “stop talking[.]” She has observed Father insist that I.A. sit at the dinner table until all her food is eaten which takes “hours sometimes.” On another occasion, she alleges that Father “banged on the door” of her room at 11:30 p.m., and she refused to open the door. She testified that Mother is a fit and proper person to have custody and that she believes it would be in the best interest of the children if Mother was the primary caretaker for the children. She alleges that the children’s behavior has changed since the divorce filing because the children are “scream[ing] out in their sleep” and “they run from their room to” Mother.
On September 19, 2024, the court issued an oral ruling granting an absolute divorce.
As for custody, the court ruled:
We’re here for the Plaintiff’s complaint of absolute divorce, and the Defendant’s complaint – countercomplaint for absolute divorce. Having heard the testimony of all the parties, their witnesses, and being able to witness their demeanor and judge their credibility, the Court makes the following determination.
Having reviewed factors in Montgomery County v. Sanders and Taylor v. Taylor, the Court believes that the parties are fit and proper parent (sic) for joint legal and shared physical custody of their two minor children with primary residential custody awarded to the Defendant during the school year, and reasonable rights of access to the Plaintiff as follows.
Commencing September 26th and every other week thereafter, the gentleman will have access from Thursday after school until Monday morning before school and/or daycare for the minor children.
Commencing with the Summer of 2025 and every summer thereafter, the parties will have access with the minor children on a week-on/week-off basis, with the Plaintiff having the first full week that school is out. Parties will alternate holidays on an even/odd year basis, with the Defendant having odd years, and the Plaintiff having even years. And it’ll – the years will always commence with the Martin Luther King holiday each year. So you go from Martin Luther King Day and alternate. Thanksgiving and school vacation: The Defendant shall have the minor children for the Thanksgiving holiday and school vacation commencing in 2024, and even numbered years thereafter. The Plaintiff shall have the minor children for this time period
in 2025 and in odd years thereafter.
For the Christmas holiday and school vacation commencing in 2024 and even numbered years thereafter, the Plaintiff shall have the minor children from the day the school Christmas vacation commences until 2 p.m. on Christmas Day. The Defendant shall have the children from 2 p.m. on Christmas Day through Sunday that classes resume. The schedule shall be reversed in odd years.
Easter holiday and school vacation: The Defendant shall have the minor children for the Easter holiday and school vacation commencing in 2025, and in odd numbered years thereafter. The Plaintiff shall have the minor children for this time period in 2026 and even numbered years thereafter.
The remainder of the court’s ruling related to other aspects of Mother and Father’s divorce which Father does not contest on appeal.
After the court’s ruling, Father’s counsel inquired about Mother’s grant of primary custody during the school year. The court responded:
The issue is, the Court is considering stability for the minor children during the school year. And the Court – when the parties were living together, it was reasonable that the children had, whether you want to call it stability with the parties’ interactions, but they were in the same home.
But now that the parties have moved, the Court does not believe it’s in the best interest of the children to have them constantly going from home-to- home to go to school. That is not in –the Court just does not believe that would be in their best interest.
Father’s counsel then asked the court if Father could have “a majority of the summer” to which the court responded:
The Court determination as to the summer was that, one, the children are out of school so the back-and-forth from home to school every day is not this – it is a more, for lack of a better term, free time. And each party will have a week with the minor child.
The gentleman gets the first full week the school is out to be with the children over the summer. And the parties should have no issue. There is no schooling issue. There may be some either summer camp or something of that nature, which the parties have to deal with, but other than that, there is no other issue.
But during the school year, the Court did not feel, based on what has been presented in Court, that the back-and-forth of the minor children during the school year would be in their best interest.
Appellant noted this timely appeal.
STANDARD OF REVIEW
This Court evaluates custody determinations by applying “three interrelated standards of review.” Velasquez v. Fuentes, 262 Md. App. 215, 227 (2024). We begin our analysis by deferring to the trial court’s “first-level findings (regarding credibility and the like) unless they are clearly erroneous.” Id. We then determine whether the trial court “erred as to matters of law[.]” Id. If so, “further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless.” Id.
If the trial court’s “ultimate conclusion” is based “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.” In re Yve S., 373 Md. 551, 585 (2003). A trial court abuses its discretion when “’no reasonable person would take the view adopted by the [trial] court[.]’” In re Adoption/Guardianship No. 3598, 347 Md. 295, 312 (1997).
DISCUSSION
Father argues that the trial court abused its discretion in making the custody determination because the court did not properly apply the requisite factors enunciated in Montgomery County Department of Social Services v. Sanders and Taylor v. Taylor. Father contends that the court was required to provide an analysis of the factors it determined were relevant to its decision. Father notes that the trial court relied upon considerations, such as geographical proximity and disruptions in the children’s social and school lives, stating that it sought to avoid the children “constantly going from home-to- home to go to school.” Father argues that the court failed to consider evidence, such as his “preeminent role in the children’s education” and that weekly access during the school year was reasonable given that Mother and Father do not live far from each other. Father contends that the current arrangement is not in the best interest of the children as it will cause significant disruption in the children’s lives.
Mother argues that the trial court’s ruling properly applied the factors from Montgomery County Department of Social Services v. Sanders and Taylor v. Taylor. Mother contends that Father ignores evidence presented at trial, such as their struggles to co-parent, his aggressive behavior toward herself and their children, and the passive role he played in the children’s education. She emphasizes that a trial judge is not required to articulate each factor or piece of evidence in its ruling as judges are presumed to know the law and to properly apply it. Mother argues that the court stated on the record that it took into consideration the testimony of the parties, the credibility of that testimony, and relevant caselaw and the court further clarified its ruling to Father’s counsel.
To be sure, a trial court’s authority to make custody determinations “is very broad so that it may accomplish the paramount purpose of securing the welfare and promoting the best interest of the child.” Taylor v. Taylor, 306 Md. 290, 301–02
(1986).1 In Montgomery County Department of Social Services v. Sanders, this Court delineated factors for consideration by a court evaluating a custody matter and determining a child’s best interest:
The criteria for judicial determination includes, but is not limited to, 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; 9) length of separation from the natural parents; and 10) prior voluntary abandonment or surrender[.]
38 Md. App. 406, 420 (1978) (citations omitted). In Taylor v. Taylor, the Maryland Supreme Court listed additional factors to consider, such as the capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare, willingness of parents to share custody, fitness of parents, relationship established between the child and each parent, preference of the child, potential disruption of child’s social and school life, geographic proximity of parental homes, demands of parental employment, age and number of children, sincerity of parents’ request, financial status of the parents, impact on state or federal assistance, benefit to parents, and other factors. 306 Md. at 304–11. These factors, often referred to as the Sanders-Taylor factors, are non-exhaustive, and no one factor is considered dispositive. J.A.B. v. J.E.D.B., 250 Md. App. 234, 257 (2021).
The resolution of a custody dispute requires “a careful recitation of the facts and conclusions that support the solution ultimately selected.” Taylor, 306 Md. at 311. Under Maryland Rule 2-552(a), “[i]n a contested court trial, the judge, before or at the time judgment is entered, shall dictate into the record or prepare and file in the action a brief statement of the reasons for the decision[.]” In custody determinations, courts must “state an objective to be served” and “detail the facts furthering the objective.” Boswell v. Boswell, 352 Md. 204, 223 (1998). Both this Court and the Maryland Supreme Court “have time and time again affirmed custody determinations where the trial judge embarked upon a thorough, thoughtful and well-reasoned analysis congruent with the various custody factors.” Azizova v. Suleymanov, 243 Md. App. 340, 347–348 (2019) (collecting cases).
We note that while a trial judge is not required to articulate every factor it considers in making its ruling, a trial court’s ruling
cannot be devoid of any discussion of the factors. According to the Maryland Supreme Court, “a trial court should carefully set out the facts and conclusions that support the solution it ultimately reaches.” Santo v. Santo, 448 Md. 620, 630 (2016). For example, in Viamonte v. Viamonte, cited by Appellant, the trial court acknowledged the Sanders-Taylor factors and “applied evidence adduced to each of these considerations” in determining that joint legal custody was in the child’s best interest. 131 Md. App. 151, 159 (2000). When determining physical custody, the trial court stated that it considered the required factors and that “both parents are fit and proper to have custody of the minor children, but that [the] appellee’s personal and occupational situation is more stable and that he is therefore more able to provide for” the child. Id. (internal quotation marks omitted). The trial judge had also “taken ten pages to lay a factual predicate for this inference.” Id. at 162. There, we found no abuse of discretion and noted that the court “correctly cited Maryland law and examined point-by-point the evidence in light of the considerations in Taylor.” Id. at 159.
Here, in making its determination, the court began by stating that it “heard the testimony of all the parties, their witnesses, and [was] able to witness their demeanor and judge their credibility” and that it “reviewed factors in Montgomery County v. Sanders and Taylor v. Taylor[.]” However, the court did not reference any facts from the record as a
basis for awarding primary custody to Mother, it did not analyze any specific factors, nor did the court discuss why the arrangement ordered was in the best interest of the child. Upon request from Father’s counsel, the court explained that awarding primary custody to Mother would provide stability for the children because Mother and Father would no longer be living together, but the court provided no detail. Because the trial court did not “carefully set out the facts and conclusions that support the solution it ultimately reache[d],” we cannot discern why it determined that Mother was more fit than Father to have primary custody during the school year, why he was not afforded more time with his children during the summer, and ultimately why this was in the best interest of the children. Santo, 448 Md. at 630.
As a result, we remand this case to allow the court to more fully articulate its analysis and factual basis for the primary physical custody determination, consistent with the requisite Sanders-Taylor factors and its progeny. On remand, the trial court may receive “evidence pertaining to developments since the trial, and in the exercise of its discretion may receive additional evidence to supplement the existing record.” Taylor, 306 Md. at 313.
FOOTNOTES
1 Legal custody is “the right and obligation to make long range decisions involving education, religious training, discipline, medical care, and other matters of major significance concerning the child’s life and welfare.” Taylor, 306 Md. at 296.
However, Father does not dispute the trial court’s determination regarding legal custody of the children. “Physical custody . . . means the right and obligation to provide a home for the child and to make the day-to-day decisions required during the time the child is actually with the parent having such custody.” Id.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Howard County Circuit Court’s award of sole legal custody and shared physical custody with primary residential custody during the school year to mother. The trial court provided clear reasoning and justifications for its sole legal custody determination.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
Columbia, Maryland. On November 2, 2021, she filed a complaint for limited divorce seeking sole legal and physical custody of both children. Mr. Collins first filed an answer to the complaint in early December 2021. Later in December, Mr. Collins filed a counter-complaint seeking joint legal custody, tie- breaking authority, and sole physical custody of the two minor children.
Following their separation, the parties agreed to the following two-week custody schedule to accommodate their respective work schedules. During this time, the minor children stayed with Mr. Collins for either six or seven out of the fourteen nights. In week one, the minor children stayed with Ms. Coleman on Friday, Saturday, and Sunday. Mr. Collins then had the minor children Sunday evening, Monday evening, Tuesday evening, and Wednesday morning. The minor children returned to Ms. Coleman on Wednesday evening and stayed through Friday morning. During the second week, Mr. Collins resumed custody from Friday evening through Monday morning. Ms. Coleman then had the minor children from Monday evening through Friday. The parties adhered to this schedule until the court entered the pendente lite hearing order on August 11, 2022.
This appeal originates from a custody award of the parties’ two minor children. After a custody hearing, the Circuit Court for Howard County (“trial court”) granted Appellee Takiyah A. Coleman (“Ms. Coleman”) sole legal custody and shared physical custody with primary residential custody during the school year. Appellant Jeffery A. Collins (“Mr. Collins”) was granted a regular and liberal access arrangement. Both parties were granted up to three weeks of non-consecutive summer access time with the children. Mr. Collins challenges both the legal and physical custody findings of the trial court’s memorandum opinion and order.
The parties present us with the following questions:
1. Did the trial court err in granting sole legal custody to Ms. Coleman?
2. Did the trial court err in granting shared physical custody with primary residential custody to Ms. Coleman?
For the reasons herein, we affirm the trial court’s decision as to both issues.
FACTUAL AND PROCEDURAL HISTORY
Initial Filings
The parties married in June 2016. They had two children during the course of their marriage: J.C., a son born in 2013, and C.C., a daughter born in 2017. In October 2021, Ms. Coleman, along with the minor children, moved out of the marital home in
Pendente Lite Hearing and Order
The trial court entered a pendente lite order on August 11, 2022, which awarded Mr. Collins and Ms. Coleman shared physical and legal custody. The schedule in the pendente lite order continued the agreement that followed the parties’ work schedules: on a two- week rotating schedule, Mr. Collins had the children overnight for six out of the fourteen nights. For example, during week one, the children were with Mr. Collins on Wednesday and Thursday nights, and then the following week, on Monday, Tuesday, Friday, and Saturday nights. The transitions were to occur at 6:30 p.m. or from school or daycare.
This schedule accommodated the unique work schedules of Mr. Collins and Ms. Coleman. Prior to and at the time of the pendente lite hearing, Mr. Collins worked Monday through Friday from 2:00 p.m. to 10:00 p.m. for the Department of Defense as a police officer at the Pentagon. Ms. Coleman worked for the Department of Defense in Alexandria, Virginia, following a two-week rotational schedule by which she worked two days on, two days off, and every other weekend. On the days that she worked, Ms. Coleman left for work between 4:45 a.m. and 5:00 a.m. and returned home between 7:45 p.m. and 8:00 p.m. except for one day every two weeks when she returned at 4:00 p.m.
Mr. Collins would drive the children to school and day care in the mornings. During this time, Ms. Coleman would drive the
minor children to the marital home where she would provide care during the nighttime hours, wait for Mr. Collins to return home from his 10 p.m. shift, and then leave to her separate home. Ms. Coleman and the minor children often slept at Ms. Coleman’s mother’s home in order to accommodate the early hours of her own work schedule. The minor children’s maternal grandmother then provided early morning childcare until J.C. and C.C. went to school and daycare.
In May 2023, following a filing of a motion to modify child support and to clarify access/parenting time by Mr. Collins, the trial court modified the pendente lite child support owed by Mr. Collins but declined to convene a second hearing or to modify the pendente lite access schedule to a strict 50/50 schedule.
Changes to the Parties’ Work Schedules
The changes in the parties’ work schedules were a significant factor in the trial court’s physical custody decision. After the issuance of the pendente lite order and before the final custody hearing, Mr. Collins and Ms. Coleman’s work schedules both changed. Mr. Collins began working from 6:00 a.m. to 6:30 p.m., and he worked two days on, two days off, and every other weekend. In order to continue to drop the children off at school, he was using leave time. Ms. Coleman testified that she changed jobs in April 2023 in order to spend more time with her children and shorten her commute. Ms. Coleman took a new job at Fort Meade where she works Monday through Friday from 8:00 a.m. to 4:00 p.m. and leaves for work around 7:30 a.m.
The Trial Court’s Hearing
A three-day trial ensued in February 2024. Mr. Collins, Ms. Coleman, and Ms. Coleman’s mother, LaWania CrosslandFerguson, testified. The trial court “heard testimony concerning the personalities, interests, activities, and educational development of the children, as well as the parties’ fitness as parents and their respective relationships with the children.” In particular, during the hearing, the court admitted evidence of contentious communication between the parties regarding the minor children including copies of text messages and emails. Also admitted into evidence were financial earning statements, mortgage statements, and tax returns for both parties. The trial court held the issue sub curia.
The Trial Court’s Memorandum Opinion and Order
On July 1, 2024, the trial court entered a judgment of absolute divorce. The trial court’s memorandum opinion and order awarded Ms. Coleman sole legal custody and shared physical custody with primary residential custody during the school year awarded to Ms. Coleman. Both Mr. Collins and Ms. Coleman received up to three weeks of non-consecutive summer access, and the trial court divided the holidays equally. In the opinion, the trial court reviewed the grounds for divorce, the distribution of marital property, child custody, child support, and attorneys’ fees. Only the child custody determinations are at issue in this appeal.
The court noted that Ms. Coleman requested primary physical custody and sole legal custody or joint legal custody with tie-breaking authority of the two minor children. Mr. Collins requested joint legal and joint physical custody.
The trial court began addressing the issue of legal custody by emphasizing the importance of the Taylor factor concerning the capacity of the parents to communicate and reach shared decisions. The trial court stressed its “concerns about the parties’ ability to effectively reach shared decisions concerning the minor children about important issues including, but not limited to, education, discipline, structure [of] the children’s days, and health issues.”
The trial court explained that, prior to the separation, Ms. Coleman took the lead on the needs and activities of the children such as attending school conferences and doctor’s appointments. The trial court noted that, following the separation, Mr. Collins’ has attempted to be more involved in the lives of his children. However, in addressing the parties’ ability to communicate, the trial court found:
[Mr. Collins] has demonstrated a continuing lack of desire to work cooperatively. He gets angry at what he terms interference from [Ms. Coleman] regarding the children. He believes that [Ms. Coleman] is interfering with his parenting when she [acts in a manner] that might well be described as helpful and stable for the children. To be sure, [Mr. Collins] loves the children and wants the best for them. He remains, however, unable to compromise when the parties disagree on a topic. [Ms. Coleman] has demonstrated more flexibility and a child centered approach. This dynamic is not the basis of a positive coparenting relationship, and therefore, joint legal custody is contrary to the interests and needs of the children. [1]
The trial court cited to the following examples to showcase the “dysfunction” between Mr. Collins and Ms. Coleman. The parties disagreed about which extra-curricular activities would be best for the minor children, and when they could not come to an agreement, Mr. Collins ignored Ms. Coleman’s wishes and signed them up for his desired activities without her approval. Furthermore, Mr. Collins moved tenants into the marital home, where the children stayed when they were with him, without prior notification to Ms. Coleman.
Further, the trial court found Ms. Coleman “is more likely than . . . [Mr. Collins] to be cooperative and communicative with the other parent regarding the decision-making for the children.” The trial court cited to Ms. Coleman’s invitation to Mr. Collins to join her and the children on a Disney World trip as an example of her cooperative nature. Further, the trial court noted Ms. Coleman prior to their separation was the primary decision maker regarding the children’s education and care. In addition, she has “a history of seeking input from [Mr. Collins] and of keeping him informed.” The trial court, for these reasons, concluded that granting Ms. Coleman sole legal custody was in the best interests of the children.
After discussing the legal custody award, the trial court analyzed all of the ten Sanders factors in order to determine the physical custody award which would be in the best interests of the children. In addressing the fitness of the parents, the trial court stated:
During trial, the Court heard testimony, mainly from the parties. Credible testimony proves that [Ms. Coleman] loves her children and is concerned with and involved in the daily lives of her children. [Ms. Coleman] is fit and proper to have custody of the children. She described herself as a comforter to the children. She expressed that the children come to her to seek reassurance and comfort.
The parties’ daughter seeks out [Ms. Coleman] when she is tired in order to be physically close to [Ms. Coleman]. [Ms. Coleman] seeks to remain connected with the children while they are in the care of [Mr. Collins], and she permits the children to call their father whenever they like.
[Mr. Collins] is a fit parent as well. He participated in the caretaking of the children, both while the parties were together and afterwards. He describes his relationship with the children as a fun and loving one. He agrees that he can be stern, especially with [J.C.], because he wants to push the child to be better than himself. He describes himself as more of a disciplinarian and believes it is important for the children to follow his directions. He describes the daughter as opinionated; she knows what she likes. [Mr. Collins] describes his relationship with the son as playful. He wishes to set the children up for success later in life.
Discussing another Sanders factor, the character and reputation of the parties, the trial court found that: Nothing in the record indicates that either parties’ character or reputation should keep them from parenting their children. There was, however, credible testimony from [Ms. Coleman] about some physical abuse upon her at the hands of [Mr. Collins]. There was also credible evidence about [Mr. Collins’] controlling behaviors over [Ms. Coleman]. This is some evidence of poor behavior that reflects negatively on [Mr. Collins’] character.
The court subsequently addressed the factor of the desire of the natural parents and agreements between the parties, in depth:
The parents had been able to cooperate regarding the children’s schedule while they were living together and also during the period immediately after separation. The parties worked hard to work around their respective work schedules. The cooperation between them, however, had [Ms. Coleman] spending the night at her mother’s home with the children on a regular basis to gain her mother’s help with the caretaking of the children because [Mr. Collins]
was unable to be available. In addition, after separation, [Ms. Coleman] was delivering the children to [Mr. Collins] on a regular basis. After separation and prior to the entry of the PL Order, the parties worked their schedule around the schedule of [Ms. Coleman] and also accommodated [Mr. Collins’] ongoing 2:00 p.m. to 10:00 p.m., Monday through Friday schedule. The children were with [Mr. Collins] every other weekend and, just for sleeping purposes, about two overnights per week. [Ms. Coleman] was bringing them to [Mr. Collins’] home at about 9:30 p.m. and getting them to bed prior to [Mr. Collins] arriving home late from work. This would permit [Ms. Coleman] to go early to work the next day and for [Mr. Collins] to take the children to school/daycare in the morning.
The PL Order from 2022 had the children with [Mr. Collins] overnight on two days of the week on one week and on four days of the week on the alternating week for a total of six out of every 14 days.
[Ms. Coleman] changed jobs in April 2023 to rid herself of her long commute and to have a more regular schedule with the children. [Ms. Coleman] now has a more local and more typical Monday to Friday schedule. She is available for the children after school.
[Mr. Collins’] work schedule changed in January 2023. He now works two days on and two days off for 12 hours each day that he works and every other weekend. His hours are from 6:00 a.m. until 6:30 p.m. This is the schedule from which [Ms. Coleman] changed. The schedule to which [Ms. Coleman] moved is more useful to the children’s regular school and activity schedule.
In turning to the remaining six Sanders factors, the trial court addressed them each briefly. Regarding the potentiality to maintain natural family relations, the court found both parents involve their children with extended family, and the maternal grandmother is a large presence because she lives in Maryland whereas the paternal grandparents are out of state. In addressing the preference of the children, the trial court stated:
The preference of the children was not focused upon at trial. Both parents agree that the children love both parents and that they wish to have time with each parent. The children have regularly engaged with [Ms. Coleman] while with [Mr. Collins] when [he] will allow it. The children do not reach out to [Mr. Collins] while in the care of [Ms. Coleman] although [she] allows this.
In addition, the trial court found the minor children were in good health, and the parties “live in close enough proximity to permit ample access with both parties.” The trial court also noted that the factors concerning the length of separation
from the natural parents and prior voluntary abandonment or surrender were not relevant in this case.
With the aid of the Sanders factors, the trial court determined that shared physical custody of the minor children with Ms. Coleman having primary residential custody during the school year and with Mr. Collins having a regular and liberal access schedule was in the best interests of the child.
One month later, Mr. Collins noted this appeal. Additional facts will be included as they become relevant to the issues.
STANDARD OF REVIEW
The principal consideration in custody cases is the best interests of the child. Ross v. Hoffman, 280 Md. 172, 174 (1977). This standard is “firmly entrenched in Maryland and is deemed to be of transcendent importance.” Id. at 174-75; see Azizova v. Suleymanov, 243 Md. App. 340, 347 (2019) (“Unequivocally, the test with respect to custody determinations begins and ends with what is in the best interest of the child.”). The best interests of a child may take precedence over a parent’s liberty interest should they be at odds. Boswell v. Boswell, 352 Md. 204, 219 (1998).
Maryland courts have established two sets of potential factors to consider before awarding custody. First, this Court’s decision in Montgomery County Department of Social Services v. Sanders provides ten non-exclusive factors for a trial court to consider when determining custody: (1) fitness of the parents; (2) character and reputation of the parties; (3) desire of the natural parents and agreements between the parties; (4) potentiality of maintaining natural family relations; (5) preference of the child; (6) material opportunities affecting the future life of the child; (7) age, health, and sex of the child; (8) residences of parents and opportunities for visitation; (9) length of separation from the natural parents; and (10) prior voluntary abandonment or surrender. 38 Md. App. 406, 420 (1977).2 A court should assess the totality of the circumstances and not narrow in on one specific factor. Id. at 420-21.
The second set of factors are from Taylor v. Taylor that outline specific considerations for awarding joint custody. 306 Md. 290, 304-11 (1986). Those factors are: (1) capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare; (2) willingness of parents to share custody; (3) fitness of parents; (4) relationship established between the child and each parent; (5) preference of the child; (6) potential disruption of child’s social and school life; (7) geographic proximity of parental homes; (8) demands of parental employment; (9) age and number of children; (10) sincerity of parents’ request; (11) financial status of the parents; (12) impact on state or federal assistance; (13) benefit to parents; and (14) any other factor that reasonably relates to the issue. Id. These factors do not replace any considerations enumerated by Sanders or any other factors that a trial court might deem important to consider in custody evaluations. Id. at 303.
Appellate courts review child custody awards using three different standards. Davis v. Davis, 280 Md. 119, 125 (1977). First, factual findings are reviewed under a clearly erroneous
standard. Id. at 125-26. Second, any errors as a matter of law will typically require further proceedings in the trial court . . . unless the error is determined to be harmless. Id.
Third, we review the ultimate conclusions in a custody determination under an abuse of discretion standard. Id. “There is an abuse of discretion where no reasonable person would take the view adopted by the [trial] court, or when the court acts without reference to any guiding rules or principles.” Bord v. Baltimore County, 220 Md. App. 529, 566 (2014) (quoting In re Adoption/Guardianship No. 3598, 347 Md. 295, 312 (1997)).
To constitute an abuse of discretion, the conclusions must be “well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.” North v. North, 102 Md. App. 1, 14 (1994). An appellate court should not reverse simply because it would have made a different ruling. Id. Lastly, the reviewing court gives “due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Maryland. Rule 8-131(c).
DISCUSSION
The Trial Court Did Not Err in Granting Sole Legal Custody to Ms. Coleman
Mr. Collins contends that the trial court abused its discretion by granting Ms. Coleman sole legal custody because the court excessively relied on the finding that the parties do not effectively communicate. Mr. Collins alleges that Santo v. Santo, 448 Md. 620, 630 (2016), bars a trial court from holding effective communication between parties as a prerequisite to joint custody. He also claims the trial court’s characterization of him as uncommunicative was unsubstantiated and asserts that Ms. Coleman is the barrier towards a cooperative coparenting relationship. Ms. Coleman replied that the trial court, in balancing the totality of the circumstances, correctly evaluated their inability to communicate as an insurmountable obstacle towards effective joint legal custody. We conclude that the trial court did not err or abuse its discretion in awarding Ms. Coleman sole legal custody.
We find the trial court’s emphasis on the parties’ inability to effectively communicate is appropriate provided the parents’ capacity for effective communication is “the most important factor in the determination of whether an award of joint legal custody is appropriate.” Taylor, 306 Md. at 304. Only in rare occasions should joint custody be permitted if the parties cannot communicate. Id. The trial court provided clear reasoning and justifications for its sole legal custody determination.
In Santo v. Santo, our Supreme Court affirmed a trial court award of joint custody despite a finding that Mr. Santo and Ms. Santo failed to effectively communicate. 448 Md. at 646. The Santo Court in large part declined to reverse the trial court’s joint custody award because of its understanding of the factual complexity of a child custody determination and respect for this weighty task placed on trial courts:
In asking us to hold that joint legal custody “should be awarded only if a custody court” concludes that parents “are or likely will be capable of communicating and reaching joint
(i.e., shared) parenting decisions,” Father would have us impose an inflexible template on equity courts making child custody decisions. (Emphasis added.) But, as the Taylor Court recognized, “[f] ormula[s] or computer solutions in child custody matters are impossible because of the unique character of each case, and the subjective nature of the evaluations and decisions that must be made.” Id. at 303. To elevate effective parental communications so that it becomes a prerequisite to a joint custody award would undermine the trial court’s complex and holistic task.
Santo, 448 Md. at 629.
However, Santo did not disturb Taylor’s “proposition that effective parental communication is weighty in a joint legal custody.” Id. at 628. Further, our Supreme Court mandated that trial courts that decide to grant joint custody to parties that cannot effectively communicate must provide justifications on the record for this decision. Id. at 631.
This trial court stated its concern about the “parties’ ability to effectively reach shared decisions concerning the minor children.” When sole legal custody is awarded, the parent with custody is responsible for keeping the other parent wellinformed, and the trial court determined that Ms. Coleman was more inclined to shoulder this burden. Prior to the parties’ separation, Ms. Coleman primarily took the children to after-school activities, medical appointments, and school conferences. Following their separation, Mr. Collins became more involved in the children’s lives but “demonstrated a continuing lack of desire to work cooperatively.” Ms. Coleman had already demonstrated her ability to make decisions about the well-being of the children and to communicate with Mr. Collins about their care and education.
Mr. Collins is correct when he asserts that the trial court did make one incorrect factual finding: that it was Ms. Coleman who invited Mr. Collins to travel to Disney World with her and the children when it was actually Mr. Collins who extended the invitation. However, this one error does not affect the final conclusion of the trial court.
The record further supports the trial court’s finding that Mr. Collins’ was reluctant to communicate. On two occasions, Mr. Collins took the minor children to North Carolina to visit Mr. Collins’ parents without informing Ms. Coleman that they were leaving the state. In December 2022, Mr. Collins kept both J.C. and C.C. home from school because C.C. had a fever. Mr. Collins did not inform Ms. Coleman of C.C.’s illness or his decision to keep both children home. Ms. Coleman was only informed of their absence because she was contacted by the school.
In summary, we find the trial court did not abuse its discretion in focusing on the parents’ lack of capacity to communicate and in granting sole legal custody to Ms. Coleman.
Coleman primary residential custody during the school year and by failing to preserve the stability in the minor children’s lives established following the parties’ separation and under the pendente lite arrangement, citing as support the holding in McCready v. McCready, 323 Md. 476, 482-83 (1991). He also asserts that the trial court’s physical custody award is not in the best interests of the child. Ms. Coleman asserted the trial court did carefully weigh the necessary factors and that the physical custody award was in the best interests of both children. We hold the trial court did not err or abuse its discretion in awarding both parties shared physical custody and in awarding Ms. Coleman primary residential custody during the school year.
Mr. Collins argues that the material change in circumstances requirement, which is the condition precedent to modify a child custody award, should apply here. However, changes from pendente lite orders to final custody awards do not have this prerequisite. Knott v. Knott, 146 Md. App. 232, 259 (2002) (“The change in circumstances requirement is not applicable in establishing a final award that terminates a pendente lite order.”). A pendente lite order by its nature is a temporary measure. Speropulos v. Speropulos, 97 Md. App. 613, 617 (1993). Pendente lite orders are “designed to provide some immediate stability pending a full evidentiary hearing and an ultimate resolution of the dispute.” Frase v. Barnhart, 379 Md. 100, 111 (2003). Because a pendente lite order operates as a stopgap, it is “not intended to have long-term effect and therefore focuses on the immediate, rather than on any long-range, interests of the child.” Id. Therefore, the trial court was well within its discretion to make a physical custody determination that differed from the arrangement under the pendente lite order.
While significant changes in each party’s work schedule did occur between the execution of the pendente lite order and the final custody hearing, the trial court adequately considered the impact of the work schedules on the day-to-day lives of the children. Mr. Coleman’s shift change prevented him from being able to drop off the children in the mornings without using up his leave time. Ms. Coleman also changed jobs which allowed her to be more available to the children throughout the week, especially after school, during the evenings, and on the weekends. In arriving at the physical custody determination, the trial court balanced the ten factors enumerated in Sanders, 38 Md. App at 420, and reiterated in Best v. Best, 93 Md. App. 644, 655-56 (1992).
In response, Mr. Collins asserts that the trial court erred in its evaluation of the second, third, and eighth factors: the character and reputation of the parties, the desire of the natural parents and agreements between the parties, and the geographic proximity between the parties. We disagree because the trial court carefully evaluated each Sanders/Best factor and came to a reasonable determination supported by three days of testimony. We will address each of the three contested factors and the trial court’s respective analysis.
1. Character and Reputation of the Parties
Custody
The Trial Court Did Not Err in Granting Shared Physical Custody with Primary Residential
During the School Year to Ms. Coleman
Mr. Collins alleges that the trial court erred in granting Ms.
The trial court found the record did not indicate anything in the character or reputation of the parties that would bar them
from parenting both minor children. However, the trial court found there was credible testimony that Mr. Collins had been physically abusive to Ms. Coleman and had exhibited controlling behaviors towards her as well. Mr. Collins disputes this finding.
The trial court’s finding is supported by the evidence presented at trial, and in particular, two examples are cited in both parties’ briefs to this Court. On one occasion, Ms. Coleman testified that Mr. Collins pushed her to the ground while she was pregnant with C.C. The parties were arguing over whether J.C. had made a pen mark on the fabric of their couch. Ms. Coleman testified that Mr. Collins was angered by her nonchalant attitude to the pen mark. Mr. Collins then grabbed J.C. and shoved Ms. Coleman. Mr. Collins maintains that Ms. Coleman was the initial aggressor and that he pushed her away in order to defend himself because Ms. Coleman was hitting him. Ms. Coleman’s mother, who was called immediately after the incident, arrived at the scene soon after. She testified that both parties were very upset, and Ms. Coleman told her that Mr. Collins had pushed her down the steps.
Ms. Coleman testified about a second incident involving discipline when Mr. Collins grabbed J.C. by the back of the neck when J.C. was running around the house and not listening. Mr. Collins responded that while he did grab J.C. by the neck and the arm, it was not a violent situation because J.C. was laughing and smiling the entire time.
The trial court made factual findings that Mr. Collins exhibited physically abusive and controlling behaviors toward Ms. Coleman on different occasions. This Court will only set aside factual findings of the trial court for clear error.
Here, the trial court relied on testimony from Ms. Coleman and Ms. Crossland Ferguson, which the trial court deemed credible. This Appellate Court gives due regard to the credibility determinations of the trial court. Maryland Rule 8-131(c); Davis, 280 Md. at 122. Therefore, we will not disturb the trial court’s finding on the character and reputation of the parties.
2. Desire of the Natural Parents and Agreements Between the Parties
Mr. Collins maintains that the arrangement under the pendente lite order was working and that the children were doing well. Mr. Collins asserts that the trial court had no basis to find Ms. Coleman’s new 8:00 a.m. to 4:00 p.m. work schedule was “more useful to the children’s regular school and activity schedule.” In addition, he alleges that the children were accustomed to the parties’ atypical work schedules. Ms. Coleman testified that her new work schedule does allow her to be home with the children by 4:25 p.m. during the school week and that she switched jobs in order to accommodate the children’s schedules.
While the trial court found that the parties were able to cooperate in working around both their respective work schedules immediately following their separation, it also noted that the record details the compromises, affecting the daily lives of the children, that were necessary for the post-separation and pendente lite arrangements to function.
Prior to the pendente lite order, when Mr. Collins worked
from 2:00 p.m. to 10:00 p.m. in Arlington, Virginia, on the nights that Mr. Collins had the minor children, Ms. Coleman brought J.C. and C.C. to Mr. Collins’ home around 9:30 p.m., and she remained there late into the evening until he returned from work. When his work schedule changed to the 6:00 a.m. to 6:30 p.m. shift in January 2023, Mr. Collins testified that he was forced to “burn leave every week to get the kids to school to drop them off.”
Prior to Ms. Coleman’s job change, she often slept at her mother’s house with the minor children, so their maternal grandmother could watch them in the mornings after Ms. Coleman left for work around 4:45 a.m. This arrangement allowed for J.C. and C.C. to have a normal schedule for sleeping. Ms. Coleman’s mother, Ms. Crossland Ferguson, testified that she only remembered two occasions when Ms. Coleman did not join the children in sleeping over at her home.
The trial court also found that Ms. Coleman’s recent job change, which she started in April 2023, was “more useful to the children’s regular school and activity schedule.” The trial court’s finding that Ms. Coleman is in a better position to care for the children during the school year is also supported by the record. Ms. Coleman’s new job allows her to be available to the children after school and in the evenings. She also now works twentyfive minutes from the home and not during the weekends. The demands of parental employment are a proper consideration outlined by the Taylor Court. Taylor, 306 Md. at 309. Therefore, the trial court did not err in its findings on the desire of the natural parents and agreements between the parties.
3. Geographic Proximity
Mr. Collins argues that the trial court did not properly consider the geographic proximity of Mr. Collins and Ms. Coleman in deciding to award primary residential custody to Ms. Coleman. Mr. Collins asserts that the close proximity of the parties’ homes alleviated the concerns that “joint physical custody may seriously disrupt the social and school life of a child.” Taylor, 306 Md. at 308-09.
The trial court did not ignore this factor. The trial court noted the geographic proximity of the parties as a factor in the memorandum opinion on two occasions. First, when discussing the legal custody determination, the trial court stated geographic proximity is one factor in relation to the best interests of the child analysis. Subsequently, however, the trial court noted that “a demonstrated ability on the part of the parties to communicate effectively concerning the best interests of the child” is critical to joint custody. Second, when evaluating the Sanders factors, the trial court stated the parties “live in close enough proximity to permit ample access with both parties.”
In the memorandum opinion, the trial court also highlighted the importance of the parties facilitating the children’s regular school and activity schedule. In this case, the parties’ work schedules was a more significant factor in ensuring the maintenance of the children’s schedule than the geographic proximity of the homes. Furthermore, the record shows that neither Ms. Coleman
nor Mr. Collins raised the geographic proximity of their homes as a significant consideration during trial. Therefore, the trial court did not abuse its discretion by finding the parties’ close geographic proximity was not a dispositive factor necessitating shared residential custody throughout the school year. See Best, 93 Md. App at 643 (encouraging the trial court to examine the totality of the situation and not one single factor when determining what is in the best interests of the child).
We find the trial court did not abuse its discretion by issuing a physical custody arrangement that differs from the pendente lite order or in its application of the best interests of the child standard.
CONCLUSION
The trial court did not err or abuse its discretion as Mr. Collins challenges. At the hearing and in the accompanying memorandum opinion and order, the judge considered and analyzed the relevant Sanders-Taylor factors. Evidence presented regarding the parent’s lack of capacity to communicate adequately justified an award of sole legal custody to Ms. Coleman. The changes in the parent’s work schedules provided ample ground for the shared physical custody award with primary residential custody to Ms. Coleman during the school year. Accordingly, we shall affirm the judgment of the trial court.
JUDGMENT OF THE CIRCUIT COURT FOR HOWARD COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 The trial court refers to Mr. Collins as the Defendant in its memorandum opinion and to Ms. Coleman as the Plaintiff. To ensure consistency throughout the opinion, we have edited the cited portions of text and refer to the parties as Mr. Collins and Ms. Coleman.
2 The trial court referred to these factors as the Best factors. Best v. Best, 93 Md. App. 644, 655-56 (1992), is a more recent case that restates the ten factors which were first enumerated in Montgomery County Department of Social Services v. Sanders, 38 Md. App. 406, 420 (1977).
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Baltimore County Circuit Court’s refusal to modify the parties’ marital settlement agreement. Where the agreement provided that husband would pay a portion of his “pension” to wife, and the parties later learned that the payments husband receives are not a “pension,” the circuit court erred when it held the agreement could not be reformed to match the parties’ intent.
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..
rephrased:1
I. Whether the circuit court erred in holding that the Agreement was unenforceable.
II. Whether the circuit court erred in holding that the Agreement could not be reformed.
For the reasons set forth below, we shall affirm the circuit court’s holding that the Agreement was unenforceable. However, because the court based its finding regarding the parties’ intent on a mischaracterization of the monies Husband receives from the Association as nonmarital property, we will vacate the holding that the Agreement could not be reformed to reflect the intention of the parties and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
i. The Marital Settlement Agreement
This dispute centers on the purported division of Husband’s “pension” set forth in the Agreement. Paragraph 6A, under the section heading “PENSION,” states,
JoAnn Krause (“Wife”) and Joseph L. Krause, Jr. (“Husband”) married in October of 1974. In July of 2022, they entered into a Marital Settlement Agreement (“the Agreement”) which was incorporated but not merged with a Judgment of Absolute Divorce. The Agreement included a provision dividing the “pension” Husband receives from the Association of Maryland Pilots (“the Association”). Subsequent to the Agreement and entry of judgement, the parties learned that the payments Husband receives are not characterized as a pension payment by the Association and cannot be divided using the method specified by the terms of the Agreement. As such, Husband contended that Wife was no longer entitled to the agreedupon share. As a result, Wife filed a motion to enforce the Agreement. The Circuit Court for Baltimore County considered the positions of each party and made two findings: (1) that the relevant provision of the Agreement was not enforceable as written, and (2) that the Agreement could not be reformed to reflect the parties’ intent. Wife noted a timely appeal.
ISSUES PRESENTED FOR REVIEW
Wife presents two issues for our review, which we have
Husband is the owner of a pension plan under the Association of Maryland Pilots. Husband shall pay directly to Wife one-half of the monthly pension payment he receives from the Maryland Association of Pilots from July 1, 2022 . . . until such time as a Qualified Domestic Relations Order separates the Maryland Association of Pilots account into two accounts – one for each of the parties.
The paragraph also calls for the joint preparation of a Qualified Domestic Relations Order (“QDRO”)2 “dividing the Maryland Association of Pilot pension which is currently in pay out status.” Paragraph 6B establishes the same equal division of Husband’s 401(k) plan, also through the Association.
The circuit court entered a Judgment of Absolute Divorce in July of 2022, retaining jurisdiction to amend the judgment and any subsequent QDRO “for the purpose of maintaining its/ their qualifications as [QDRO(s)] under the Retirement Equity Act of 1984[.]” Two QDROs were prepared and served on the Association in October of 2022. The first addressed division of Husband’s 401(k) plan. The second identified its subject as the “ASSOCIATION OF MARYLAND PILOTS & EMPLOYEES RETIREMENT PLAN.” The QDRO3 identified the latter “Plan” as marital property and directed the Association to pay 50% of
Husband’s “monthly pension benefit” directly to Wife.
Shortly thereafter, the Association informed the parties of an issue with the QDRO. The Association explained that the payments Husband receives, which both parties labeled pension payments, are instead statutorily mandated shares of pilotage fees collected by the Association and distributed to pilots in amounts dependent on their status as active or inactive and their years of service. Husband receives payments as an inactive pilot.4 The Association further explained that, because it is statutorily required to make payments directly to inactive pilots, it could not create a separate account for Wife in accordance with the QDRO, as only Husband is an inactive pilot. The Association first suggested that Husband would have to continue making direct payments to Wife. Later, it suggested that the intent of the parties could instead be effectuated by signing a prepared “instruction letter,” through which Husband would direct the Association to distribute half of his monthly payments directly to Wife. Husband did not execute nor agree to sign the suggested “instruction letter.”
ii. Enforcement proceedings in the circuit court
In November of 2022, Wife moved to revise the Judgment of Absolute Divorce and the QDRO to conform to the requirements of the Association. Husband moved to dismiss the motion, arguing that the time to revise the judgment per Maryland Rule 2-535(a) had lapsed, and that the circuit court’s limited retention of jurisdiction did not encompass the relief Wife sought. Wife responded that her motion to revise the judgment should be considered as a motion to enforce the Agreement. Husband replied that a motion to enforce the Agreement was not properly before the court and that reformation of the Agreement would not be a proper remedy because the mutual mistake in identifying Husband’s payments as a “pension” rendered the intent of the parties unclear.
A hearing was held in February of 2023. The court determined that a revisory motion was not the proper vehicle for Wife’s remedy but allowed Wife to instead file a motion to enforce.
Wife filed a petition to enforce the Judgment of Absolute Divorce and the Agreement. Wife argued that though the parties misunderstood Husband’s payments to be a pension, the parties’ intent was to divide the payments in accordance with paragraph 6A of the Agreement. Wife attached, among other exhibits, copies of a direct deposit form Husband had received from the Association, checks Wife had received from Husband pursuant to his obligation to pay her directly, and the proposed “instruction letter” from the Association. Husband responded, arguing that the Agreement as written was unenforceable and that reformation would not be a proper remedy. Husband also submitted an affidavit stating that he did not understand that the payments he received from the Association were not pension benefits, and that had he understood, he would not have agreed to pay Wife half of the payments.
Another hearing was held in May of 2023. Husband characterized division of the Association payments as alimony and argued that the parties’ waiver of alimony, memorialized in paragraph 3 of the Agreement, precluded awarding Wife
half of the payments. The court, taking up an argument from Wife’s petition, inquired as to whether the parties had agreed to a waiver of alimony under the shared belief that the payments would be divisible by a QDRO. In response, Husband argued that an alimony award based on the payments might have been structured differently from an equal division of a variable source of income. Wife responded that the waiver of alimony should not be considered because the payments should not be construed as income from employment. Wife argued that the parties’ intention was to divide in half Husband’s retirement income, however characterized, and that the court should effectuate the parties’ intent by directing Husband or a trustee to sign the “instruction letter.”
The court issued a memorandum opinion in August of 2023. The court held that, because the plain language of the Agreement identified a “pension” which does not exist, paragraph 6A of the Agreement was unenforceable. The court also found that— although Wife had proved by clear and convincing evidence that there was a mutual mistake of fact as to the existence of a pension—the Agreement could not be reformed because the intent of the parties was not clear.5 Finally, the court held that reformation was precluded by the waiver of alimony.
DISCUSSION
Standard of Review
“When reviewing a ruling on a settlement agreement, we review the circuit court’s factual findings for clear error and its legal conclusions de novo.” Pattison v. Pattison, 262 Md. App. 504, 523 (2024) (internal citation and quotation marks omitted). “‘If there is any competent and material evidence to support the factual findings of the trial court, those findings cannot be held to be clearly erroneous.’” L.W. Wolfe Enters., Inc. v. Md. Nat’l Golf, L.P., 165 Md. App. 339, 343 (2005) (quoting Yivo Inst. For Jewish Rsch. v. Zaleski, 386 Md. 654, 663 (2005)). When an order “‘involves an interpretation and application of Maryland statutory [or] case law, [the appellate] [c]ourt must determine whether the lower court’s conclusions are legally correct under a de novo standard of review.’” Credible Behav. Health, Inc. v. Johnson, 466 Md. 380, 388 (2019) (quoting Nesbit v. Gov’t Emps. Ins. Co., 382 Md. 65, 72 (2004)). Interpretation of a contract is a question of law which we review de novo. W.F. Gebhardt & Co., Inc. v. Am. Eur. Ins. Co., 250 Md. App. 652, 666 (2021) (quoting Credible Behav. Health, 466 Md. at 394).
I. THE CIRCUIT COURT DID NOT ERR IN FINDING THE AGREEMENT UNENFORCEABLE.
A. Party Contentions
Wife argues that the term “pension,” as used in the Agreement, is a misnomer which the circuit court could have corrected through modification of the QDRO. Wife further argues that the circuit court’s retention of jurisdiction enabled it to enter orders other than a QDRO to effectuate the intent of the Agreement.6 Wife argues that the use of the terms “pension” and “QDRO” in the Agreement and judgment should not have
prevented the circuit court from enforcing the Agreement through other means.
Husband argues that the Agreement could not be enforced because the Agreement was unambiguous and so the circuit court was bound by the plain language of the terms. Husband further argues that the use of the term “pension” was not a misnomer because the payments are of a character different from a pension. Husband argues that the court’s jurisdiction was limited to modifying the existing QDRO for the purpose of effectuating the terms of the Agreement.
B. Analysis
“Settlement agreements are enforceable as independent contracts, subject to the same general rules of construction that apply to other contracts.” Pattison, 262 Md. App. at 523 (internal citations and quotation marks omitted). Maryland courts adhere to the objective theory of contract interpretation, “wherein ‘the clear and unambiguous language of an agreement will not give way to what the parties thought the agreement meant or was intended to mean.’” Pulliam v. Pulliam, 222 Md. App. 578, 587–88 (2015) (quoting Atl. Contracting & Material Co. v. Ulico Cas. Co., 380 Md. 285, 301 (2004)).
When interpreting a contract, courts seek to effectuate the intent of the parties based on what a reasonable person would understand the contract to mean. See Sierra Club v. Dominion Cove Point LNG, L.P., 216 Md. App. 322, 331–32, cert. denied 438 Md. 741 (2014). “First, a court must ascertain whether the agreement is ambiguous.” Id. at 332. “Contractual language is considered ambiguous when the words in it are susceptible of more than one meaning to a reasonably prudent person.” Young v. Anne Arundel Cnty., 146 Md. App. 526, 587 (2002). “If [the court] finds that a contract is unambiguous, then it must only look to the language of the contract to determine the intent of the parties.” Sierra Club, 216 Md. App. at 332.
Here, paragraph 6A of the Agreement repeatedly and consistently identifies the payments from the Association as a “pension.” No other term for the payments is used. Where a specific term or figure is used in a contract, and cannot be construed to have multiple meanings, there is no ambiguity. See Higgins v. Barnes, 310 Md. 532, 537 (1987) (where a specific dollar amount could not be read to have two different meanings, but there was still an error in the contract, “correction [was] accomplished through the equitable action of reformation, and not as an ‘interpretation’ of a provision that [was] unambiguous.”) (internal citation omitted). This language is unambiguous, thus, the circuit court was bound to the terms of the Agreement and could not look elsewhere to determine the intent of the parties. See Sierra Club, 216 Md. App. at 332.
The circuit court found that “[b]y the terms of [the] Agreement the parties agreed to a division of Husband’s pension with the Association of Maryland Pilots. No such pension plan exists.” The circuit court was correct. Counsel for the Association, in an email to the parties, indicated that the payments Husband receives are not pension payments. Further, the statute providing for the payments does not contain the word “pension.” Md. Code (1989, 2018 Repl. Vol.), Bus. Occup. & Prof. § 11-505 (“BOP”). Instead, the source of Husband’s monthly
payments is “pilotage fees” collected by the Association. Id. The language of the Agreement called for the division of a pension; a pension does not exist. Therefore, the court could not effectuate a division of Husband’s payments through enforcement of the Agreement. See Higgins, 310 Md. at 537.
Wife argues that labeling the payments a “pension” was merely a misnomer subject to correction.7 A misnomer is “[a] mistake in naming a person, place, or thing, esp. in a legal instrument.” MISNOMER, Black’s Law Dictionary (12th ed. 2024). The theory of misnomer applies to situations in which the incorrect name was used, but not to mistakes of type or character. See Linz v. Montgomery Cnty., 256 Md. App. 73, 96–97 (2022). In Linz, the plaintiff sought to use the theory of misnomer to substitute a police officer as an individual defendant in place of the county after the statute of limitations on the officer had run. Id. at 82. This Court held that the county and the officer were neither factually nor legally one and the same, and therefore misnomer did not apply. Id. at 97. The same is true here. A “pension” is a retirement plan funded by obligatory wage deductions which then pays out set monthly allowances upon an employee’s retirement. See Lookingbill v. Lookingbill, 301 Md. 283, 288–89 (1984). The payments Husband receives from the Association are funded by pilotage fees collected on behalf of active pilots and which vary month to month. See BOP § 11-505. The two are not interchangeable. Thus, the circuit court did not err in finding that it could not enforce the Agreement due to the use of the term “pension.”8
Wife also argues that the circuit court was incorrect that its limited scope of jurisdiction did not allow it to grant the relief she sought. We do not agree. The circuit court, in the judgment of absolute divorce, retained jurisdiction “to amend this Judgment and/or the aforesaid [QDRO(s)] for the purpose of maintaining its/their qualifications[.]” When a trial court retains jurisdiction in this manner, it “ha[s] the authority to amend the [order] to effectuate the intent of the parties and to assist with the enforcement of their settlement agreement.” Mills v. Mills, 178 Md. App. 728, 743 (2008); see also Eller v. Bolton, 168 Md. App. 96, 116–18 (2006) (a court’s retention of jurisdiction over a judgment of divorce allows it to effectuate the plain meaning of the settlement agreement). However, it is “not permitted to change the terms of an agreement reached by the parties.” Mills, 178 Md. App. at 739. The circuit court had jurisdiction only to enforce the Agreement according to its plain meaning, which as we have discussed was not ambiguous. We agree with the circuit court that Paragraph 6A of the Agreement was unenforceable as written.
II. THE CIRCUIT COURT ERRED IN FINDING THAT THE AGREEMENT COULD NOT BE REFORMED.
A. Party Contentions
The parties agree that there was a mutual mistake of fact as to the existence of a pension. Wife argues that the circuit court erred in not reforming the Agreement because the parties’ intent to divide the payments from the Association is clear. Wife also argues that it was error for the court to determine that the alimony waiver prohibited reformation because the
payments are marital property, thus dividing them would not be a form of alimony. Husband argues that the circuit court did not err because the intent of the parties is not clear due to misunderstanding the nature of Husband’s payments. Husband argues that the waiver of alimony does apply to prohibit reformation. Husband construes the payments as a stream of future income and argues that, even if the payments were considered marital property, there is no provision in the Family Law article to transfer ownership in future income.
B. Analysis
Reformation is a remedy in contract available either where there has been a mutual mistake of fact or fraud, duress, or inequitable conduct. Md. Port Admin. v. John W. Brawner Contracting Co., Inc., 303 Md. 44, 59 (1985). A mutual mistake of fact exists when it is “conclusively established that both parties understood the contract as it is alleged it ought to have been expressed, and as in fact it was, but for the mistake alleged in reducing it to writing.” Flester v. Ohio Cas. Ins. Co., 269 Md. 544, 556–57 (1973) (internal citation and quotation marks omitted). “‘Not only must a mutual mistake be shown, but the precise agreement which the parties intended but failed to express must be proven beyond a reasonable doubt.’” Id. at 555–56 (quoting White v. Shaffer, 130 Md. 351 (1917) and citing Second Nat’l Bank of Balt. v. Wrightson, 63 Md. 81 (1885)).
Reformation of a written instrument is an exception to the inadmissibility of parol evidence. Higgins, 310 Md. at 537.
i. Findings of the circuit court
The circuit court found by clear and convincing evidence that a mutual mistake of fact existed “as to the nature of Husband’s money received by the Association[.]” Both parties believed and reduced to writing that the payments Husband receives came from a pension, when in fact they are derived from his statutorily mandated share of pilotage fees. The court did not err in this finding. Representations from both parties demonstrated their mutual, mistaken belief that the source of payments was a pension, and the court likewise had available, and considered, the parties’ jointly filed tax returns on which they reported the payments as pension income.
The circuit court next found that, despite the existence of a mutual mistake of fact which was reduced to writing in the agreement, “[t]he precise intent of the parties [was] not clear[.]” In so holding, the court did not fully explicate its reasoning, but referred to the mutual mistake of fact as “the existence of Husband’s interest in a pension,” and for the first time, “Wife’s marital property right to a divisible portion of that pension.” (emphasis added). The court further considered the parties’ waiver of alimony and found that the waiver precluded reformation under Maryland Code (1984, 2018 Repl. Vol.) section 8-103 of the Family Law Article (“FL”). From these considerations, we find it clear that the circuit court based its finding regarding intent on the legal determination that the payments Husband receives from the Association must be construed as nonmarital property. This determination was incorrect for the reasons to follow.
ii.
Retirement Benefits as Marital Property
The circuit court erred in its determination that because Husband’s payments from the Association are not a “pension,” Wife had no marital property right to a divisible portion of those payments. Marital property is defined as “the property, however titled, acquired by [one] or both parties during the marriage.” FL § 8-201(e)(1). When making determinations as to the marital character of property, courts construe “property” broadly. See Potts v. Potts, 142 Md. App. 448, 464 n.14 (2002) (“[A]ll types of property are considered ‘marital property’ under Deering and FL [section] 8-201(e)[.]”).
“[P]ensions or retirement benefits that accrue during a marriage constitute marital property.” Abdullahi v. Zanini, 241 Md. App. 372, 420 (2019) (internal citation and quotation marks omitted); see also Long v. Long, 129 Md. App 554, 573 (2000) (“When the right to receive retirement benefits is acquired during marriage, it is marital property subject to equitable distribution[.]”). The rule that retirement benefits are marital property applies to benefits of all kinds, “whether or not vested, matured, or contributory[.]” Ohm v. Ohm, 49 Md. App. 392, 399 (1981). The scope of this rule is further emphasized by a circuit court’s broad power under FL section 8-205 to transfer ownership in, or grant a monetary award based on a valuation of, “a pension, retirement, profit sharing, or deferred compensation plan[.]” FL § 8-205; see also Woodson v. Saldana, 165 Md. App. 480, 489 (2005) (“[T]he court has broad discretion in evaluating pensions and retirement benefits, and in determining the manner in which those benefits are to be distributed.”) (internal citation and quotation marks omitted). The equitable division of such benefits is distinguished from alimony; FL section 8-205(b) (10) directs courts, when making a monetary award based on the valuation of marital property, to consider as one factor “any award of alimony.”9
The parties disagree as to whether the payments from the Association should be construed as marital property. To be sure, the benefits directed to inactive pilots under BOP section 11-505 are unusual, and Maryland courts have not yet construed them as marital or non-marital property.10 Nevertheless, because of the broad definition of marital property and through an examination of the reasons courts construe retirement benefits as marital, we hold that BOP section 11-505 payments can properly be construed as marital property.
In Deering v. Deering, the Supreme Court of Maryland first addressed “the scope of a spouse’s rights in civilian retirement benefits acquired by his or her marriage partner during the coverture period.” 292 Md. 115, 117 (1981). In interpreting Maryland’s then- new equitable distribution provision,11 the Court undertook a comprehensive examination of the practices of states with comparable provisions and held that “there [was] no reason to exclude one form of deferred income asset from the marital estate while including others.” Id. at 123–25. The Court noted that “[d]eferred compensation, stock options, profit-sharing and pensions are typical examples” of such assets. Id. (internal citation omitted). The Court noted that a minority of states make distinctions of kind when determining whether a retirement benefit is a marital asset. Id. at 125–26. The Court rejected this view and instead embraced the rule construing
any type of retirement benefit as marital property. Id. at 128. In so doing, the Court found that a broad definition of marital property accords with the scope of property embraced by the statute and with the “wide variety of retirement plans available to both private and public employees”—“some flowing from the contract establishing the plan, others from statute.” Id. at 125, 128.
In Lookingbill v. Lookingbill, the Supreme Court reexamined its holding in Deering and extended its rule to embrace disability benefits accrued during the marriage as marital property. 301 Md. 283, 286, 289–90 (1984). The Court found that, like the pensions examined in Deering, the husband’s disability benefits in Lookingbill were a property right acquired during the marriage. Id. at 288. The Court noted that also as in Deering, the husband had made “contributions” to the disability benefits plan through obligatory deductions from his wages. Id.; see also Deering, 292 Md. at 118–19. The Court rejected the notion that any contingencies as to the maturing of a property right in disability benefits “[do] not degrade that right to an expectancy; the law has long recognized that a contingent future interest is property.” Lookingbill, 301 Md. at 289. Thus, the Court continued to embrace a broad construction of “marital property.”
iii. Pilotage fee payments
Husband’s payments from the Association are not a “pension” and do not share all the same features as a pension; nevertheless, they share key features of the retirement and disability benefits construed to be martial property in Deering and Lookingbill. Under BOP section 11-502 and section 11503, the Association acts as a collection agent for the pilotage fees owed to active pilots for their services. The fees are then distributed in accordance with BOP section 11-505: first, the association makes an accounting to the Board of Maryland Pilots of those eligible for payments as inactive pilots and makes the distribution; then, the remainder of the fees collected are used for the Association’s expenses and paid to the active licensed pilots. Thus, similar to obligatory wage deductions, active pilots are obligated to receive a lesser portion of the fees produced by their labor. In exchange, the pilot can later receive distributions if the requirements are met under BOP section 11504(a),12 BOP section 11-504(b),13 or BOP section 11-504(e).14
In Lookingbill, the Court noted that “[p]ension payments are actually partial consideration for past employment whether the maturity of the pension is contingent upon age and service or upon disability. Thus, a disability, like a service plan, is property and . . . constitutes marital property subject to
equitable distribution.” 301 Md. at 289. The payments of pilotage fees distributed according to BOP section 11-505 are the same. While active, pilots earn fees which they do not fully receive; later, contingent on either years of service or disability, they receive a portion of the fees being earned by active pilots. The payments to inactive pilots are thus in consideration for their past employment. These payments, if the pilot’s rights to them accrue during a marriage, can be construed as marital property in accordance with Deering and Lookingbill.
iv. Considerations on Remand
The circuit court’s finding, that the intent of the parties in forming the Agreement was not clear, is premised on an error of law: the conclusion that the Association payments were not and could not be marital property. Thus, the circuit court erred in holding that the Agreement could not be reformed. See Pattison, 262 Md. App. at 523 (“[W]e review the circuit court’s factual findings for clear error and its legal conclusions de novo.” (internal citation and quotation marks omitted)). We thus vacate the holding that the Agreement could not be reformed and remand for further proceedings. Because we agree with the circuit court that a mutual mistake of fact existed, the court need only revisit the element of the parties’ intended agreement. See Flester, 269 Md. at 555–56 (before a contract can be reformed, the court must determine whether there was a mutual mistake of fact and “the precise agreement which the parties intended.” (internal citations and quotation marks omitted)).
Understanding Husband’s payments from the Association to be marital property, the circuit court should seek to determine whether the parties intended to equally divide that property. In seeking to determine the agreement intended by the parties, the circuit court may look not only to the Agreement as a whole, but also to parol evidence. See Higgins, 310 Md. at 538–39. Here, that includes the conduct of the parties prior to and after learning of the mistake of fact; factors which might have precipitated such an agreement, including the duration of the marriage and any contributions, monetary or otherwise, by Wife in supporting Husband’s career as a pilot; the parties’ own representations to the court; any waiver of alimony; and other evidence the court deems relevant. Because the Agreement should be construed as a whole, the waiver of alimony appears to be relevant to determining intent of the parties as to the division of the pilotage fees; however, as noted above, the waiver of alimony should not be construed to preclude reformation. See supra, n.9.
FOOTNOTES
1 Rephrased from:
1. Did the Circuit Court for Baltimore [County] err in concluding that the Marital Settlement Agreement could not be enforced with a Charging Order or non- Qualified Domestic Relations Order with[out] reforming the contract?
2. Did the Circuit Court for Baltimore County err in determining that the Marital Settlement Agreement of the parties could not be reformed?
2 “A Qualified Domestic Relations Order (QDRO) is the vehicle by which pension benefits are transferred from one party to another[.]” Fischbach v. Fischbach, 187 Md. App. 61, 94 (2009).
3 The order pertaining to the “pension” is entitled “Domestic Relations Order” but also states that “[t]his Order is a Qualified Domestic Relations Order[.]” For simplicity we refer to it as “the QDRO.”
4 “Pilot” here refers to a person who navigates ships into or out of harbor. See Md. Code (1989, 2018 Repl. Vol.), Bus. Occup. & Prof. § 11-101 (“BOP”). The Association is an organization of pilots and is governed by the State Board of Pilots, which licenses and regulates pilots who operate on Maryland’s navigable waters. See BOP § 11-201.
5 The memorandum opinion originally stated that “[t]he ‘precise intent of the parties’ is clear from the terms of the Marital Settlement Agreement.” (emphasis added). Husband moved to revise this statement as a clerical error, and the court granted the motion. The corrected text of the opinion states, “‘[t]he precise intent of the parties is not clear from the terms of the Marital Settlement Agreement[.]’” (emphasis added).
6 Wife also argues that Maryland Rule 2-342, which establishes that parties may amend motions or other papers with leave of the court, should be construed to allow modification of the QDRO. In her motion to revise the judgment of absolute divorce and QDRO, Wife relies on Rule 2-535(b), which provides the court revisory power over a judgment in the case of fraud, mistake, or irregularity. See Md. Rule 2-535(b). Because Wife did not raise her rules-based argument below, it is not preserved for our review. See Md. Rule 8-131 (“Ordinarily, an appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court[.]”).
7 Wife also argues that the term “QDRO” is a misnomer and that the court could have entered another order applicable to the Association in order to effectuate division of payments between the parties. “QDRO” is not a generalized term. As described in Fischbach v. Fischbach, a QDRO is a “creature of federal employee benefits law” specific to retirement plans qualified under the Employee Retirement Income Security Act, 29 U.S.C. §§ 1001–1461. 187 Md. App. at 94–95 (quoting Barnes v. Barnes, 181 Md. App. 390, 424–25 (2008)). However, the question of what enforcement mechanism would be proper should the circuit court reform the Agreement on remand is not before us.
8 Wife also contends that correction of the purported misnomer “does not alter the intent of the parties” and argues
that the mutual mistake of the parties should not be a barrier to enforcement. “Fraud, duress, or mutual mistake must be shown to justify a reformation, but are not involved in the question of the existence of an ambiguity in the contract.” Higgins, 310 Md. at 538. In determining whether the Agreement is enforceable, the intent of the parties can only be ascertained through the unambiguous language of the contract, and parol evidence of a mutual mistake cannot be considered. Id. at 537–38. The circuit court did not err in restricting its enforceability analysis to the plain language of the Agreement only and in not looking to the mutual mistake.
9 A court’s ability to modify a separation agreement with respect to spousal support or alimony is limited by FL section 8-103(c) if the parties have expressly waived alimony and/ or have stated that the provision is not subject to any court modification. A distribution or monetary award of marital property is distinct from alimony. Thus, the waiver of alimony in Paragraph 3 of the Agreement would not extend to any provisions concerning marital property.
10 The Supreme Court of Maryland, in examining an older version of the statute directing payments of pilotage fees to inactive or disabled pilots, distinguished those payments from payments made to active pilots through the Association. Hull v. Comptroller of Treasury, Income Tax Div., 312 Md. 77, 91 (1988). The Court construed payments to active pilots as “a distribution of income,” evidenced by the fact that it was taxed as such, but held that payments to inactive and disabled former pilots could not be taxed as income. Id. at 91–
92. Thus, while no court in Maryland has yet examined whether payment of pilotage fees to inactive pilots is or is not marital property, such payments have been construed as retirement benefits distinct from taxable income.
11 The Court examined Maryland Code (1974, 1980 Repl. Vol.) section 3-6A-01 of the Courts and Judicial Proceedings Article (“CJP”), which was recodified as FL section 8- 201(e), and CJP section 3-6A-05, which was recodified as FL section 8-203. See McGeehan v. McGeehan, 455 Md. 268, 283 n.9 (2017); Williams v. Williams, 71 Md. App. 22, 28 (1987). FL section 8-201(e) defines marital property and FL section 8-203 empowers courts to determine which property is marital in the event of a dispute.
12 A pilot who has been a member in good standing of the Association for twenty-five years and chooses to be placed on the list of inactive pilots, or who is incapable of working due to disability, can be eligible to receive distributions.
13 A pilot who has been a member in good standing for twenty years and chooses to be placed on the list of inactive pilots can be eligible to receive distributions.
14 A pilot who held an unlimited docking master license on October 1, 2000, has been a member in good standing for five years, and chooses to be placed on the list of inactive pilots, can be eligible to receive distributions.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Anne Arundel County Circuit Court’s modification of child custody and award of attorney’s fees to wife. The circuit court fully articulated its reasons for concluding that joint legal custody was not appropriate. The record shows that the circuit court complied with the statutory requirements for awarding expenses.
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..
In June 2022, Mother filed a petition in the district court to extend the final protective order against Father. Because of the related child custody case, the district court transferred Mother’s motion to extend the final protective order to the circuit court.
Following a hearing, the circuit court found by a preponderance of the evidence that Father had committed “subsequent [a]cts of stalking” and extended the final protective order until September of 2024.
In July of 2022, Father plead guilty in the district court to a criminal violation of the protective order. Father was sentenced to probation before judgment. The probation was set to last 18 months and one of the conditions of his probation was to obey the protective order.
Appellant, Jason C. Brower (“Father”), challenges an order of the Circuit Court for Anne Arundel County modifying child custody and awarding attorney’s fees to appellee, Jessica M. Poland (“Mother”). For the following reasons, we affirm the judgment of the circuit court.
BACKGROUND
Father and Mother are the parents of one minor child, B., who was born in May 2019. The parties never married and lived together in Pasadena from August 2018 until June 2021, when Father changed his residence to Arnold. One month later, in July 2021, Mother filed a complaint in the circuit court against Father for custody, child support, and attorney’s fees.
In August 2021, Mother filed a petition for a protective order against Father, and in September 2021, the District Court of Maryland for Anne Arundel County granted her request for a final protective order against Father, effective until September 2022. Under the order, Father could not contact Mother, and any communication regarding B. was to go through Father’s parents only.
In November 2021, the circuit court entered a consent order between Father and Mother that incorporated a parenting plan. Under the consent order and parenting plan, the parties had joint legal custody and shared physical custody of B. and agreed to limit their communication to parenting issues only.
In March of 2023, Mother petitioned for contempt, claiming that Father had violated a court order by withholding B. from her when Father’s parents were on vacation. A magistrate found that although Father’s withholding of B. was unjustified, because Father obeyed the custody order after his parents returned from vacation, Father was not in contempt. In June 2023, the circuit court ratified the magistrate’s findings.
In September of 2023, Father filed a motion for modification of custody and child support seeking 50/50 custody of B. The next month, Mother filed a counter-complaint for modification of custody and child support, seeking sole legal and primary physical custody of B.
The circuit court held a two-day trial on the parties’ modification requests in August of 2024. Mother was represented by counsel, and Father represented himself.1 After the trial, the circuit court granted Mother sole legal custody of B., and modified physical custody, granting 225 overnights to Mother and 140 overnights to Father. The court awarded $6,000 in attorney’s fees to Mother, which amounted to “approximately 25 percent of” her attorney fees for legal services from August 2023 through July 2024. Father’s timely appeal followed.
DISCUSSION
Father presents thirteen issues on appeal. We address them all below.
I. MODIFICATION OF CUSTODY
In his first issue, Father argues that the circuit court abused its discretion by presuming that the parties’ lack of communication and cooperation was an “automatic bar” to joint legal custody.
We review decisions to modify custody using three interrelated standards of review. In re Yve S., 373 Md. 551, 586 (2003). First, we review factual findings to determine if they were clearly erroneous. Id. Next, we review legal conclusions without deference. Id. Finally, if the circuit court’s factual findings were not clearly erroneous and the legal conclusions were correct, we review the court’s ultimate decision for an abuse of discretion only. Id. When a circuit court considers a motion for modification of custody, it employs a two-step analysis: (1) whether there has been a material change in circumstances, and (2) what custody arrangement is in the best interests of the children. McMahon v. Piazze, 162 Md. App. 588, 593-94 (2005). “A change in circumstances is ‘material’ only when it affects the welfare of the child.” Id. at 594.
Here, the circuit court determined that there had been a material change in circumstances in two respects: first, B. was now old enough to begin attending school so exchanges between the parties could no longer take place during the school day; and second, there had been a significant deterioration in the ability of Mother and Father to communicate and interact with each other. The circuit court further found that both Mother and Father were fit but expressed concerns about Father’s alcohol use and the number of times that B. had been exposed to domestic conflict between his parents. Having reviewed the record, we see nothing clearly erroneous in these factual findings.
Next, the record shows that in making its ruling, the circuit court relied on and weighed the guiding factors outlined in Taylor v. Taylor, 306 Md. 290 (1986) and Montgomery Cty. Dep’t of Soc. Servs. v. Sanders, 38 Md. App. 406 (1978). This is the correct legal framework for the court to have used to make its analysis.
Because the circuit court’s factual findings were not clearly erroneous and it utilized the correct legal framework, the only question left for us to determine is whether the ultimate decision constituted an abuse of discretion. Here, the circuit court awarded the parties a shared physical custody schedule, with mother having, on average, 4 days per week and father having, on average, 3 days per week. The custody exchanges were timed around B.’s school schedule and were to be made through third parties to minimize contact between Mother and Father. The circuit court awarded Mother sole legal custody, noting that the parents had a demonstrated inability to communicate with each other that had only gotten worse over time.
Father argues that the parents’ apparent inability to communicate and cooperate with each other is an insufficient basis to justify giving sole legal custody to one parent, and the circuit court abused its discretion by not considering other options, such as the ability of Father and Mother to communicate through Father’s parents. Although the circuit court was not precluded from awarding joint custody to parents who do not communicate effectively with each other, see e.g., Santo v. Santo, 448 Md. 620, 630 (2016), “[r]arely, if ever, should joint legal custody be awarded in the absence of a record of mature conduct on the part of the parents evidencing an ability to effectively communicate with each other.” Taylor, 306 Md. at 304. In the rare case that joint legal custody is awarded to parents who have demonstrated an inability to communicate
and cooperate, the court must “articulate fully the reasons that support that conclusion.” Taylor, 306 Md. at 307. Here, the circuit court fully articulated its reasons for concluding that joint legal custody was not appropriate. This conclusion was well within the circuit court’s discretion.
II. ATTORNEY FEES
Father next argues that the circuit court erred in awarding attorney’s fees to Mother. Father asserts that Mother’s stubborn litigation strategy and frivolous claims should have prevented her from receiving attorney’s fees.
In cases involving child custody or support, “[t]he court may award to either party the costs and counsel fees that are just and proper under all the circumstances[.]” MD. CODE, FAM. LAW (“FL”) § 12-103(a). Before awarding attorney’s fees, “the court shall consider: (1) the financial status of each party; (2) the needs of each party; and (3) whether there was substantial justification for bringing, maintaining, or defending the proceeding.” FL § 12-103(b). “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) (citing Steinhoff v. Sommerfelt, 144 Md. App. 463, 487 (2002)). “An award of attorney’s fees will not be reversed unless a court’s discretion was exercised arbitrarily or the judgment was clearly wrong.” Petrini v. Petrini, 336 Md. 453, 468 (1994).
In making the decision to award counsel fees here, the circuit court explained that it had considered all the factors in FL § 12-103(b). The court found that Mother was the “prevailing party” and that although Father was justified in many of his actions, he also filed things that were unnecessary that Mother was obligated to defend. The record supports the circuit court’s factual findings and shows that the circuit court complied with the statutory requirements for awarding expenses. We conclude that the circuit court did not act arbitrarily or abuse its discretion.
III. “UNJUSTIFIED” FINDING
Third, Father asserts that the circuit court erred in adopting the magistrate’s report and recommendation, which found that he had committed “unjustified” actions when he withheld B. from Mother in March 2023.
We note first that the “unjustified” finding about which Father complains was made in the context of a contempt hearing, which took place in May 2023, more than a year before the modification of custody trial from which this appeal is taken. That proceeding is therefore outside the scope of our review. MD. R. 8-131. Moreover, the circuit court denied Mother’s contempt petition. Father’s actions were found to be “unjustified,” but he was not found in contempt. Under Maryland law, only someone found in contempt may appeal. Pack Shack, Inc. v. Howard Cty., 371 Md. 243, 254 (2002); MD. CODE, CTS. & JUD. PROC. (“CP”) § 12-304 (providing that a person held in contempt has the right to appeal). Thus, Father had no right to appeal from the denial of Mother’s contempt petition, or the circuit court’s finding that his actions were “unjustified.” Pack Shack, Inc., 371 Md. at 254.
IV. BEST INTEREST FINDING
Fourth, Father argues that the circuit court erred in how it weighed B.’s best interest “after being presented with evidence that clearly showed [Mother] denied the child’s physical needs.” Specifically, Father claims that Mother failed to meet B.’s health needs because she did not bring B. to a dental appointment. More generally, Father argues throughout his brief that the circuit court “did not review the evidence properly,” was improperly influenced by the erroneous actions of the district court with regard to the protective order, and failed to appreciate that Mother was manipulating the courts to play the victim.
When we review a circuit court’s custody determination, we do so under the abuse of discretion standard. “This standard of review accounts for the [circuit] court’s unique opportunity to observe the demeanor and the credibility of the parties and the witnesses.” Basciano v. Foster, 256 Md. App. 107, 128 (2022). A court abuses its discretion when “no reasonable person would take the view adopted by the … court or when the court acts without reference to any guiding rules or principles.” Santo, 448 Md. at 626-26.
As noted previously, the circuit court followed the correct legal standard and weighed the appropriate factors. In making its ruling, the circuit court explained that it considered the deterioration of the parties’ ability to cooperate and concerns about Father’s use of alcohol to be most significant to determining the best interest of B. It is clear that Father disagrees with the circuit court’s evaluation and weighing of the evidence. And we acknowledge that another judge may have viewed and weighed the evidence differently. Nonetheless, on review “we grant the [circuit] court broad discretion because only the [circuit] court sees the witnesses and the parties, hears the testimony and has the opportunity to speak with the child.” Basciano, 256 Md. App. At 129. “It is within the sound discretion of the [circuit court] to award custody according to the exigencies of each case.” In re Yve S., 373 Md. at 585-86; see also Braun v. Headley, 131 Md. App. 588, 596- 97 (2000) (because the trial court has the “opportunity to observe the demeanor and credibility of both the parties and the witnesses,” “[t]he determination of which parent should be awarded custody rests within the sound discretion of the trial court”). We, therefore, conclude that the circuit court’s best interest finding was not an abuse of discretion.
V. MEDIATION
Fifth, Father claims that the circuit court erred and denied him due process by refusing to order the parties to return to mediation as required by their consent agreement. Specifically, Father refers to section 3b of the parenting plan, which was incorporated into the consent order and stated that “[i]n the event Mother and Father are unable to resolve a major dispute or a change in circumstances regarding the terms of this [p] arenting [p]lan, they agree to return to mediation to modify this plan before bringing Court action.”
In July and August 2023, Father filed motions to return to mediation, asserting that Mother changed the parenting plan by enrolling B. in a pre-kindergarten program, which reduced Father’s time with B. Mother responded and opposed returning
to mediation. The circuit court denied Father’s motions in August of 2023, noting: “As there is still no Motion
to Modify before the Court and [Mother] again opposes mediation, these requests are Denied.” The next month, Father filed a petition to modify custody and child support. After a scheduling conference held in October of 2023, the circuit court declined to order mediation on the grounds that there was a “[s] afety concern expressed by a party.”
Mediation in child custody and visitation cases is governed by Maryland Rule 9- 205, which applies “to any action or proceeding under this Chapter in which the custody of or visitation with a minor child is an issue, including ... an action to modify an existing order or judgment as to custody or visitation[.]” MD. R. 9-205(a)(1)(B). Before entering an order requiring parties to mediate, the court must first “determine whether ... mediation … is appropriate and likely would be beneficial to the parties or the child[.]” MD. R. 9- 205(b)(1)(A). A court may not order mediation “[i]f a party ... represents to the court in good faith that there is a genuine issue of abuse of the party ... and that, as a result, mediation would be inappropriate.” MD. R. 9-205(b) (2). This Rule, of course, must supersede even the parties’ agreement to the contrary, as expressed in the parenting plan.
As discussed previously, in June 2022, the district court found that Father had engaged in “subsequent [a]cts of stalking” and granted Mother’s request to extend the final protective order against Father until September of 2024. As a result, the protective order was still in effect when Father sought to return to mediation. Stalking qualifies as a form of abuse under MD. R. 9-205(a)(2). See also FL § 4-501(b)(1)(vi). Because there was a good faith, genuine dispute regarding Father’s alleged abuse of Mother, mediation was inappropriate under Rule 9-205(b) (2). The circuit court, therefore, did not err in denying Father’s requests to return to mediation.
VI. DISTRICT COURT PROCEEDINGS
In his eight remaining issues, Father asserts that the district court exceeded its authority and acted outside its jurisdiction in numerous ways by acting to enforce the final protective order when those restrictions conflicted with the parties’ parenting plan. Specifically, Father points out that because the parenting plan was entered by the circuit court after the protective order was issued, under FL § 4-506(j)(3) the terms of the parenting plan superseded the restrictions of the protective order. As a result, Father argues that the criminal case against him for violation of the protective order was “void ab initio” because the district court did not have jurisdiction to prosecute him for a violation of a protective order that had been superseded, and consequently, the district court’s June 2022 order extending Mother’s final protective order against him until September of 2024 was also “‘void ab initio’ because it only came to fruition after the [d]istrict [c]ourt went beyond its criminal jurisdiction[.]” Moreover, Father asserts that the district court did not have jurisdiction to modify the terms of the parenting plan to conform to the restrictions of the protective order. Father further argues that because the protective order was superseded by the parenting plan, the protective order was void
and thus the district court could not threaten to arrest him or prosecute him or impose probation for his failure to comply with it. Finally, Father asserts that because the parenting plan allowed the parties to communicate about parenting issues, any attempt to enforce the “no contact” provision of the protective order violated his rights to free speech.
We acknowledge Father’s frustrations about the complex intersection of domestic violence protective orders, district court jurisdiction, circuit court jurisdiction, child custody orders, and child custody agreements. Nevertheless, this appeal is taken only from the circuit court’s order modifying custody and awarding attorney’s fees to Mother after the trial in August 2024. Thus, the district court’s actions in 2022 and 2023 prior to the trial are outside the scope of our review. MD. R. 8-131. Moreover, there are no circumstances by which this Court could review the district court’s rulings, even if those issues were
JUDGMENT
timely. While parties to a civil case are able to appeal a final judgment entered by a district court, that appeal is “taken to the circuit court for the county in which judgment was entered.” CP § 12-401(a), 12-403(a). For the circuit court’s appellate decision to be reviewed, the Supreme Court of Maryland must grant certiorari. CP § 12-305; see also CP § 12-302(a) (providing that “[u]nless a right to appeal is expressly granted by law,” there is no right for a party to appeal from an appellate judgment entered in review of a decision of a district court). Thus, Father could not have chosen to appeal the district court’s rulings to this Court at any point.
VII. CONCLUSION
For all these reasons, the circuit court properly modified custody and awarded attorney’s fees to Mother.
OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Mother and Father represent themselves in this appeal.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Baltimore City Circuit Court’s refusal to make the factual findings required for a 20-year-old man to become eligible to apply for Special Immigrant Juvenile status. The record showed the man’s mother “neglected” him, as that term is defined in Maryland law, and that reunification with his mother is not viable.
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..
Jose Manuel testified that it is dangerous is his hometown in Ecuador. He stated there were “was a lot of crime and robberies” and detailed one account where his mother’s car was broken into and stolen.2 Jose Manuel testified that he was afraid for his and his family’s safety in Ecuador, and he believed that his mother could not protect them from the dangers in his hometown. Jose Fernando agreed that there was “a lot of criminality and drugs” in Ecuador. He felt it would not “be good for [Jose Manuel] to go [back] over there.”
Jose Manuel arrived in the United States in December 2022, two months shy of his eighteenth birthday. In January 2023, he was released into his father’s custody in New York. Because his father had lived in the United States for as long as Jose Manuel could remember, this was the first time he recalled meeting the man. During his childhood, Jose Manuel had had no relationship with his father, and his family had received monetary support from his father only twice a year.
While seeking guardianship over his cousin, Jose Manuel Loja Lopez, Jose Fernando Vasquez Lopez requested an order confirming his cousin’s eligibility for Special Immigrant Juvenile (“SIJ”) status. The Circuit Court for Baltimore City granted the guardianship, but determined that it could not make the factual findings required for his cousin to become eligible to apply for SIJ status.
We vacate the circuit court’s decision and remand for further proceedings.
FACTUAL AND PROCEDURAL HISTORY
Jose Fernando1 petitioned for guardianship over his younger cousin, Jose Manuel. Simultaneously, Jose Fernando requested a predicate order containing factual findings that confirmed Jose Manuel’s eligibility to apply for SIJ status. The circuit court heard the following testimony from Jose Manuel and Jose Fernando:
Jose Manuel was born in Ecuador in February 2005. There, Jose Manuel lived with his mother, grandmother, and two sisters in a single rented room. The room had two beds, one of which Jose Manuel shared with his sisters. The room had electricity, but the bathroom and access to water were outside.
Jose Manuel attended and successfully finished high school while living in Ecuador. When Jose Manuel was 15 years old, he began working in construction. He worked 10-hour days on Saturdays and Sundays; he did not have to work on weekdays. He surrendered all his earnings to his mother to help support the family.
Jose Manuel lived with his father for about six months. He decided to move out when his father told him “to start working, to pay the rent, [and] to buy [his] own food” to “support [him] self.”After leaving his father’s house in the summer of 2023, Jose Manuel moved in with his cousin, Jose Fernando, in his Baltimore City home. There, Jose Manuel has one of the four bedrooms to himself. The home has a kitchen, living room, laundry room, basement, and backyard. Jose Manuel believes, and Jose Fernando corroborated, that Jose Fernando adequately “take[s] care of all of [Jose Manuel’s] needs.”
At the time of the guardianship and SIJ status proceeding, Jose Manuel was 19 years old and had been living with Jose Fernando for over one year. Jose Manuel was not working or enrolled in school, but he was taking English classes regularly. Jose Manuel dreams of a future in the United States; he “would like to study and become a police officer.” Both Jose Manuel and Jose Fernando wish for Jose Manuel to stay under Jose Fernando’s care and support. Jose Fernando believes that it is in Jose Manuel’s best interests to remain in the United States with him.
Along with the cousins’ testimony, the court considered Jose Manuel’s mother’s written consent to the guardianship, in which she admits that she is “unable to provide [Jose Manuel] with the financial or emotional support necessary for his well-being” and that she is “convinced that is it in [Jose Manuel’s] best interests” that the guardianship be granted.
The court granted Jose Fernando guardianship over Jose Manuel, but determined that it could not enter an order confirming Jose Manuel’s eligibility for SIJ status. The court found that Jose Manuel’s father had abandoned him.
Nonetheless, the court did not see enough evidence that Jose Manuel’s mother had abandoned, neglected, or abused him, that “forced reunification would have a negative impact” on Jose Manuel’s well- being, or that he would be exposed to more dangers in Ecuador than he would be in this country. The court acknowledged, however, that “[t]his is a challenging case.”
Jose Fernando moved to alter or amend the circuit court’s order and provided supplemental “evidence related to the degree of violent crime in Ecuador.” The circuit court denied Jose Fernando’s motion, and this timely appeal followed.
These facts are supplemented in the discussion section where relevant.
STANDARD OF REVIEW
“[W]e review the trial court’s factual findings for clear error and its legal conclusions de novo.” Romero v. Perez, 463 Md. 182, 196 (2019). “We are tasked here with interpreting Maryland and federal law to decide whether the circuit court’s order was legally correct.” Id. at 196-97. “We do so de novo.” Id. at 197.
QUESTIONS PRESENTED
We have condensed and rephrased the questions presented as follows: Did the court err in concluding that Jose Manuel was not eligible to apply for SIJ status?3
For the reasons stated below, we shall vacate the judgment and remand the case to the circuit court for further proceedings.
DISCUSSION
“Congress created SIJ status to ‘provide humanitarian protection for abused, neglected, or abandoned child immigrants’ who lack immigration status.” Romero v. Perez, 463 Md. 182, 187-88 (2019) (quoting U.S. Citizenship and Immigration Services (“USCIS”), Policy Manual, Vol. 6, Part J, Ch. 1, § A (current as of Jan. 23, 2019) (hereinafter, “USCIS Policy Manual”), https://perma.cc/2VMS-YTJD).4 “This policy allows such children to become lawful permanent residents of the United States if they satisfy certain eligibility criteria.” Id. at 185.
To apply for SIJ status, the child, or someone acting on the child’s behalf, must obtain a predicate order from a state juvenile court that includes certain factual findings regarding the child’s eligibility. Id.; see also 8 C.F.R. § 204.11(b)-(c). If the state court makes the requisite findings, the child, or someone acting on the child’s behalf, must then submit the court’s order, along with a petition, to U.S.C.I.S. for approval. Romero v. Perez, 463 Md. at 188. If USCIS approves the petition, the child is eligible to apply to become a permanent resident. Id. at 189.
In In re Dany G., 223 Md. App. 707 (2015), this Court reviewed the applicable federal statute and regulations and identified the following findings that a circuit court must make in granting an SIJ petition:
(1) The minor is presently in the U.S., unmarried, and under the age of 21;
(2) The minor is dependent on the court or has been
placed under the custody of a state agency/department or individual/entity appointed by the court;
(3) The presiding court has jurisdiction under Maryland law to make determinations about the minor’s custody and care;
(4) Reunification with one or both of the minor’s parents is not viable due to abuse, neglect, abandonment, or a similar basis under state law; and
(5) It is not in the minor’s best interest to return to [the minor’s] country of nationality or last habitual residence.
Romero v. Perez, 463 Md. at 192-93.
The statutory “terms ‘abuse,’ ‘neglect,’ and ‘abandonment’ should be interpreted broadly when evaluating whether the totality of the circumstances indicates that the minor’s reunification with a parent is not viable, i.e., workable or practical, due to prior mistreatment.” Romero v. Perez, 463 Md. at 202. “‘[A]ll the relevant factors must be understood in the light most favorable to determinations of neglect and abandonment.’” Id. (quoting B.R.L.F. v. Sarceno Zuniga, 200 A.3d 770, 777 (D.C. 2019)).
“In applying this standard, circuit courts should consider factors such as (1) the lifelong history of the child’s relationship with the parent (i.e., is there credible evidence of past mistreatment); (2) the effects that forced reunification might have on the child (i.e., would it impact the child’s health, education, or welfare); and (3) the realistic facts on the ground in the child’s home country (i.e., would the child be exposed to danger or harm).” Id. at 202-03. “Trial courts may consider other factors based on the evidence and testimony before the court, but such factors must relate to the ultimate inquiry of whether reunification is viable.” Id. at 203.
“[I]n SIJ status cases, Maryland courts are to apply Maryland law, and not the law of the child’s home country.” Id. at 204. “In rendering SIJ status findings, therefore, ‘trial judges are to determine whether the child would be considered abused, neglected, or abandoned under Maryland law without regard to where the child lived’ when the mistreatment occurred.” Id. at 205 (quoting In re Dany G. 223 Md. App. at 718). We do not employ “a standard that automatically sends a child back to wretched conditions that our state has found to be abusive, [or] neglectful, or to constitute abandonment solely because those conditions are considered acceptable in the child’s home country.” In re Dany G., 223 Md. App. at 718 (emphasis omitted).
In deciding SIJ cases, “trial courts should bear in mind that Congress established the requirements for SIJ status knowing that those seeking the status would have limited abilities to corroborate testimony with additional evidence.” Id. at 715. “The purpose of the law is to permit abused, neglected, or abandoned children to remain in this country.” Id. Thus, in making its factual findings, a circuit court “should assess witness credibility and discredit evidence when warranted” (Romero v. Perez, 463 Md. at 203), but it should not “impose insurmountable evidentiary burdens on SIJ petitioners.” Id.; accord In re Dany G., 233 Md.
App. at 715 (stating that “[i]mposing insurmountable evidentiary burdens of production or persuasion is therefore inconsistent with the intent of the Congress”).
Finally, “trial judges are not gatekeepers tasked with determining the legitimacy of SIJ petitions; that is exclusively the job of USCIS.” Romero v. Perez, 463 Md. at 203 (emphasis in original). “The ‘state court’s role in the SIJ process is not to determine worthy candidates for citizenship, but simply to identify abused, neglected, or abandoned alien children under its jurisdiction who cannot reunify with a parent or be safely returned in their best interests to their home country.’” Simbaina v. Bunay, 221 Md. App. 440, 458 (2015) (quoting Leslie H. v. Superior Court, 168 Cal.Rptr.3d 729, 737 (Ct. App.2014)).
In this case, there is no question that Jose Manuel met the first three factors for SIJ status: he is currently in the U.S., unmarried, and under the age of 21; the circuit court appointed Jose Manuel’s cousin as his guardian and thus made Jose Manuel dependent on the court; and the circuit court has jurisdiction under Maryland law to make determinations about Jose Manuel’s custody and care. See, e.g., Romero v. Perez, 463 Md. at 190. The court concluded, however, that Jose Manuel had not met the fourth factor, principally because it reasoned that his mother had not abused, neglected, or abandoned him. Having reached that conclusion, the court did not evaluate the fifth factor, about whether it would not be in Jose Manuel’s best interests to return to Ecuador.
We shall focus on the fourth factor: whether reunification with one or both of the minor’s parents is not viable because of abuse, neglect, abandonment, or a similar basis under state law.
We turn first to Jose Fernando’s argument that a “minor need only show that reunification with one parent is not viable[.]” Jose Fernando bases this argument on the federal statutory requirement that the minor show that “reunification with 1 or both of [the minor]’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law.” 8 U.S.C. § 1101(a)(27)(J)(i). Because the circuit court found that one of Jose Manuel’s parents—his father—had abandoned him, Jose Fernando argues that the court erred in concluding that he did not satisfy the fourth factor.
Jose Fernando did not make this argument in the circuit court. Consequently, he did not preserve the argument for appellate review. Md. Rule 8-131(a).
Even if Jose Fernando had made that argument, we would conclude that it lacks merit under the circumstances of this case. The statutory distinction between one or both of the child’s parents becomes relevant when the child “seeks to remain with one parent in the United States while avoiding reunification with the other.” Romero v. Perez, 463 Md. at 192 n.16. The distinction does not apply in a case like this one, where the child has been abandoned by a parent in the United States and seeks to avoid reunification with another parent in another country. See J.U. v. J.C.P.C., 176 A.3d 136, 138-39 (D.C.2018) (stating that “[a] finding is sufficient for SIJ status if reunification with only one parent is not viable due to abuse, neglect, or abandonment, at least where, as here, the parent in question is located in the home country to which the minor would otherwise be deported[]”); see also In re Israel O., 188 Cal. Rptr. 548, 556 (Ct. App. 2015)
(stating that “an eligible minor under section 1101(a)(27)(J) includes a juvenile for whom a safe and suitable parental home is available in the United States and reunification with a parent in [the juvenile’s] country of origin is not viable due to abuse, neglect or abandonment[]”).
Furthermore, under Jose Fernando’s interpretation of what he calls the “one parent” standard, the fourth factor could be satisfied by a finding of abuse, neglect, or abandonment by the parent with whom the child is not facing reunification, regardless of conduct by the parent with whom the minor would be reunified in the home country. We cannot adopt this application. Mistreatment by a U.S.-based parent who is not seeking custody is irrelevant to whether the child may be safely reunited with the parent in the home country. See In re Marisol N.H., 979 N.Y.S.2d 643, 647 (App. Div. 2014) (stating that “SIJS is designed to prevent a child from being deported to a parent who abandoned” the child). In SIJ status cases, a court’s conclusions about abuse, neglect, and abandonment pertain to the parent with whom reunification is challenged and with whom the child may be forced to reunite.
Nonetheless, we disagree with the circuit court’s conclusion that Jose Fernando failed to establish that Jose Manuel’s mother neglected him, when that term is “interpreted broadly” and “‘understood in the light most favorable to [a] determination[] of neglect[.]’” Romero v. Perez, 463 Md. at 202 (quoting B.R.L.F. v. Sarceno Zuniga, 200 A.3d at 777).
Under Maryland law, “‘[n]eglect’ means the leaving of a child unattended or other failure to give proper care and attention to a child by any parent. . . under circumstances that indicate . . . that the child’s health or welfare is harmed or placed at substantial risk of harm[.]” Md. Code (1984, 2012 Repl. Vol., 2018 Supp.), § 5-701(s) of the Family Law Article; see also Md. Code (1974, 2013 Repl. Vol.), § 3-801(s)(1) of the Courts & Judicial Proceedings Article. For example, “if a child works ‘under dangerous conditions, a finding of neglect would surely follow.’” Romero v. Perez, 463 Md. at 206 (quoting In re Dany G., 233 Md. App. at 721).
In this case, the evidence establishes that Jose Manuel’s mother required him to begin working in the construction industry on both weekend days when he was only 15 years of age. A construction site is a dangerous place even in the United States, which has workplace protections such as occupational safety and health laws. The work itself is physically demanding. The work typically involves handling, operating, or working in close proximity to heavy machinery. One can only imagine how much more dangerous a construction site would be in a lessdeveloped country like Ecuador.
Although the circuit court was correct in observing that many American teenagers are allowed to work, no 15-year-old child would be allowed (much less required) to work legally at a construction site in Maryland. To the contrary, in Maryland, minors under 16 years old are strictly prohibited from working “in, about, or in connection with . . . construction[.]” Md. Code (1991, 2016 Repl. Vol.), § 3-213(b)(4)(i) of the Labor & Employment (“L&E”) Article.5 A job at McDonald’s is not comparable to the job that Jose Manuel was forced to work. In our judgment, therefore, Jose Manuel’s mother “neglected” her child, as that term is interpreted under Maryland law, by
requiring him to work in the construction industry at the age of 15. See Romero v. Perez, 463 Md. at 206; In re Dany G., 233 Md. App. at 721.
Perhaps because it concluded that Jose Manuel’s mother had not neglected him, the circuit court also concluded that reunification with his mother was not unworkable. We disagree with that conclusion as well. Returning a young man to the care of a parent who expected him to work under conditions that posed a substantial risk of harm to his health and safety because she relied on him to help support the family financially is not “‘a reunification that is viable.’” Romero v. Perez, 463 Md. at 206 (quoting J.U. v. J.C.P.C., 176 A.3d at 143).
Forced reunification would place Jose Manuel, and probably his sisters as well, in an uncomfortable and unhealthy living situation. As a young man, Jose Manuel would return to a oneroom space that he would have to share with four women. He would share a bed with his two sisters. Forced reunification would also inhibit his ability to pursue a desired, fulfilling career. In his past, Jose Manuel surrendered all his earnings to his mother to support his family. If returned to Ecuador, he may again have to work just to help support his family, meaning he “would be unable ‘to make something of [himself][,]’” as a police officer. In re Dany G., 233 Md. App. at 712. Finally, Jose Manuel’s mother also admitted that she is “unable to provide
[Jose Manuel] with the financial or emotional support necessary for his well-being.”
“[T]he totality of the circumstances” here “indicates that [Jose Manuel]’s reunification with” his mother in Ecuador is not workable or practical. Romero v. Perez, 463 Md. at 202. The evidence, when viewed in a way that is “consistent with the humanitarian purpose of the [SIJ] law[,]” does not support the circuit court’s contrary conclusion. In re Dany G., 233 Md. App. at 718. Consequently, we shall vacate the judgment and remand the case to the circuit court with instructions to revise its findings to include the conclusion that Jose Manuel’s mother “neglected” him, as that term is defined in Maryland law, and that reunification with his mother is not viable.
Had the court concluded that Jose Manuel’s mother’s past neglect, the effects of a forced return, and the dangers in his hometown frustrated the viability of reunification, the court would have been required to then analyze the final SIJ status factor—whether it is not in Jose Manuel’s best interests to return to Ecuador. The circuit court did not make that finding because it concluded that Jose Manuel’s mother did not neglect him. On remand, the circuit court shall determine whether it is not in Jose Manuel’s best interests to return to Ecuador.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY VACATED. CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY APPELLANT. MANDATE TO ISSUE FORTHWITH.
FOOTNOTES
1 Because Jose Fernando Vasquez Lopez and Jose Manuel Loja Lopez share a surname (an appelido materno), we refer to them by their first names. We mean no disrespect.
2 The guardianship petition and the motion for findings of SIJ eligibility detail other specific incidents of crime that were not discussed at the hearing. On one occasion, an individual came to Jose Manuel’s mother’s small store, demanded a free beer, said that he was connected to a gang, said that he knew where they lived, and threatened to harm them. The following week, the man attacked Jose Manuel’s family at a cousin’s graduation; the local police were unhelpful.
3 Jose Fernando presents his questions as follows:
1. Did the Circuit Court err in determining that the evidence presented was insufficient to establish neglect or abandonment under Maryland law, particularly in light of:
a. The documented pattern of paternal abandonment;
b. The mother’s role in facilitating child labor;
c. Exposure to dangerous living conditions; and
d. The failure to protect from known dangers?
2. Did the Circuit Court err by failing to apply the broad interpretation standard required by Maryland law when evaluating whether reunification with one or both parents is
viable due to abuse, neglect, or abandonment, as mandated by In re Dany G., 223 Md. App. 655 (2015)?
3. Did the Circuit Court err in its best interest analysis by:
a. Failing to properly consider the totality of circumstances regarding Jose Manuel’s welfare;
b. Drawing improper inferences from limited positive factors; and
c. Disregarding substantial evidence of ongoing risk?
4 The identical language appears in the same volume, part, chapter, and section of the USCIS policy manual today. https:// www.uscis.gov/policy-manual/volume-6-part-j- chapter-1.
5 The “Employment of Minors” subtitle does not apply to a work activity that is performed by a minor outside of school hours, so long as the activity “does not involve manufacturing or mining[,] . . . is not a hazardous occupation restricted under § 3- 213(c)(1) or (2) . . . and . . . is limited to” the enumerated activities in L&E § 3-203(4). See L&E § 3-203(1)-(4). Here, Jose Manuel’s weekend-only work was outside of school hours, but it was not limited to one of the nine listed activities, so the subtitle, and L&E § 3-213(b)(4)(i) in particular, applies here.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Talbot County Circuit Court award of sole legal and primary physical custody to father, while allowing mother supervised visitation not less than once every other week. The court appropriately considered all of the relevant factors and made an informed decision based on the totality of the evidence relevant to the minor child’s best interest.
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..
2021, granting A.P. sole legal and physical custody after M.B. failed to attend the hearing.2 In February 2022, M.B. filed a motion to modify. This resulted in a consent order, issued on September 12, 2022, providing for joint legal and shared physical custody, with M.B. having parental access three nights per week.
In January 2023, A.P. moved in with her mother and stepfather, bringing S.P. with her.3 She filed a petition to modify custody on January 25, 2023. The petition did not specify how custody should be modified or the relief A.P. sought. M.B. filed a “Counter- Petition to Modify Custody, Access, and Support,” seeking sole legal and physical custody, and requesting that A.P.’s access be limited to supervised visitation. Shortly thereafter, the parties obtained protective orders against each other. Prior to the custody merits hearing,
A.P. was convicted of violating the protective order and was awaiting sentencing.
A.P. and M.B. filed cross-petitions to modify the custody order relating to their daughter, S.P., in the Circuit Court for Talbot County. The court granted the father, M.B., sole legal and primary physical custody, and allowed the mother, A.P., supervised visitation “not less than once every other week[.]”
A.P. timely appealed the order. A.P. is self- represented and filed a handwritten brief. Although the self-represented A.P.’s brief is a bit difficult to decipher, we discern her arguments to raise five contentions:1:
(1) whether the court’s findings were supported by the evidence;
(2) whether the court appropriately considered S.P.’s best interests;
(3) whether A.P. received effective assistance of counsel;
(4) whether there was misconduct by M.B.’s counsel; and
(5) whether the court admitted objectionable hearsay into evidence.
FACTUAL AND PROCEDURAL BACKGROUND
A.P. and M.B. are the parents of S.P., born in 2019. The parties have had a tumultuous relationship, sometimes living together and sometimes living separately. In July of 2020, when the parties were living separately, A.P. filed a complaint seeking sole physical and legal custody of S.P., including a request that M.B. have no access to S.P.
M.B. failed to respond to the complaint, resulting in an order of default. The first custody order was issued on January 15,
After a car accident in March 2023, in which A.P. was driving with S.P. as a passenger, M.B. filed a supplement to his petition, requesting an emergency hearing. An initial hearing had to be postponed because, two days before the scheduled hearing, A.P. filed a petition for an emergency evaluation of M.B., alleging that he was threatening to harm himself and others. After a hearing before a magistrate on May 1, 2023, and an exceptions hearing on June 23, 2023, the court issued a pendente lite order granting M.B. sole legal and primary physical custody of S.P., and providing A.P. visitation every other weekend in addition to limited weeknight access. In the spring of 2023, M.B. began living with his girlfriend, R.J.
As a result of A.P.’s numerous discovery violations both before and after she retained counsel, the court issued a November 8, 2023 order with the following provisions:
[D] uring the trial of this matter there will be a rebuttable presumption that:
a. The best interests of the minor child . . . will be served by providing [M.B.] with primary parenting time and sole decision-making authority, with only supervised access reserved to [A.P.];
b. [A.P.’s] mental health presents a danger to the minor child[.4]
A merits hearing was held on February 8 and 9, 2024. A.P. and M.B. both provided extensive testimony. In addition to the parties, several other witnesses testified, including both parties’ significant others, A.P.’s mother, and M.B.’s adult son.
Prior to trial, the court issued an order requiring A.P. to complete a psychiatric evaluation. A report from Maureen Vernon, Ph.D., who conducted the evaluation, was admitted
into evidence. Dr. Vernon concluded that A.P. “is an interesting, and complex individual who has clearly been experiencing significant internal psychological distress.” She stated that A.P. has impulse control issues, and this will continue to impede her ability to maintain consistent boundaries and follow any rules or social constraints she chooses not to recognize or feels are too restrictive. . . . She will need to work on addressing [these issues] for her own mental health and the well- being of her young daughter. She loves [S.P.] but because of many of her own psychological issues her judgment is often distorted and questionable.
Dr. Vernon opined that “[a]ny parenting time will need to be somewhat monitored until she is able to incorporate the necessary self-controls and appropriate behavioral constraints that are needed for raising her young daughter.” Additionally, M.B. testified extensively about A.P.’s cyclical mental health, describing a pattern where her mood begins to change in September or October, “[b]y Christmas time she’s very different, she’s colder, she’s quiet. She’s sarcastic. Very negative about everything[,]” and in February “it’s just exploded. She gets, you know accuses [M.B.] of all kinds of things, conspiracy theories.” He testified that, in February 2017, “her behavior was so erratic and bizarre” that she needed an emergency psychiatric evaluation, which resulted in A.P. staying at a psychiatric hospital for six weeks. A.P. admitted that she was hospitalized, but stated that it was only for 72 hours, not six weeks.
On a weekend in early February 2023 when M.B. had custody of S.P., A.P. requested that police conduct a welfare check on S.P. A.P. testified that she did so because S.P. was with M.B.’s adult son, E.B., at M.B.’s ex-wife’s house, where A.P. alleged “they were smoking weed and drinking.” A.P. was standing across the street from the house when she called police. E.B. testified that he had never seen any drinking or smoking at the house. The police responded, but took no action.
A.P. also admitted to sending a pornographic video to E.B. in early February that depicted A.P. and another individual engaged in sexual intercourse. A.P. stated that she sent E.B. the video accidentally, meaning to send it to someone with the same first name, who she stated was the other person in the video. Nevertheless, E.B. testified that A.P. had sent him various pornographic photos and videos on other occasions.
Concerning the March 2023 car accident, A.P. testified that the cause of the accident was “weather-related,” describing the weather at the time as “very rainy, very windy.” M.B. produced historical weather data from the National Weather Service and the U.S. Department of Commerce indicating that there was very little rain and maximum wind gusts of 29 miles per hour at the location of the accident that day. M.B. went to the site of the crash the next day and took pictures, some of which depicted miniature liquor bottles on the ground next to debris and tire marks from the vehicle. A.P. alleged that the miniature liquor bottles were “planted” there by M.B. M.B. testified that, when he viewed A.P.’s vehicle at the impound lot, it “reeked of marijuana.” Additionally, he stated that A.P. told him shortly after the accident, “I’m not responsible. There’s no way I wrecked in that ditch. Somebody turned their headlights off and
rammed into me and forced me into the ditch.” M.B. visited the site, but did not see any signs that another vehicle was involved. A.P. stated that the police report indicated that weather was the cause of the accident and that a urine test done at the hospital showed A.P. had no drugs or alcohol in her system. Neither the police report nor medical records were admitted into evidence. A.P. admitted that her driver’s license was suspended at the time of the accident.5
When presented with screenshots of Facebook posts from A.P.’s Facebook account that deny that M.B. is S.P.’s father and make claims about various other men being S.P.’s father (written after the parties received DNA test results contradicting the posts), A.P. testified that she did not author those posts, stating that her Facebook account is frequently “hacked.” She admitted to posting pictures of herself and S.P. on the account after the paternity-related posts were made, and did not have a response to why she would not have deleted the posts made by the “hacker.” She was also presented with text messages in which she denied that M.B. was S.P.’s father, one of which she admitted to sending. In response to the other texts, A.P. claimed that M.B. stole her phone and wrote those messages himself. Finally, M.B.’s counsel played voicemail messages A.P. sent to M.B.’s father claiming that M.B. was not S.P.’s father. A.P. also stated in the voicemail that she believed that the DNA test results were faked, alleging that someone paid the lab workers to produce inaccurate results. According to A.P., M.B. denied being the father of S.P., and it was as a result of M.B.’s denial of paternity that A.P. made statements about M.B. not being S.P.’s father.
Both M.B. and his girlfriend, R.J., testified that A.P.’s behavior during video visits with S.P. was sometimes inappropriate. According to R.J., “at least once a week there’s a problem” related to inappropriate behavior during video visits. R.J. and M.B. testified that
S.P. became upset when A.P. told S.P. they would meet in person “soon,” despite A.P. not knowing when they would next meet in person. On one occasion when S.P. was complaining to A.P. that M.B. would not allow her to eat peaches until after S.P. finished eating her vegetables, A.P. told S.P. she could have whatever food she wanted and did not have to listen to M.B. or R.J. M.B. also testified that A.P. appeared to be topless during two separate video visits. After one such incident, M.B. stated that S.P. asked “three times why wasn’t mommy wearing any clothes?”
Extensive evidence was presented about A.P.’s antagonistic behavior toward many members of M.B.’s family. R.J. testified that she tries to avoid direct contact with A.P. because of her behavior. M.B. testified that A.P. sent him videos in which she was “coaching” S.P. “to say bad things” about M.B. There was evidence that A.P. sent harassing or derogatory texts to R.J. and all of M.B.’s adult children. Additionally, A.P. left M.B.’s father a voicemail in which she makes negative comments about M.B. and claims he is not S.P.’s father.
There was contradictory evidence concerning the frequency of M.B.’s drinking and how it affects his parenting abilities. A.P. testified that M.B. “struggles with alcohol addiction and his temper can be very violent at times.” She stated that, when they were living together, M.B. “would drink on a daily basis.” R.J. testified that M.B. drinks wine or beer four to five days
per month, consuming only “two or three [drinks] max” at a time. M.B. admitted that he has had anger issues in the past, but testified that there was only one occasion in which he was violent toward A.P. Additionally, M.B. testified that he has since completed six months of anger management classes and no longer considers himself to be easily provoked. R.J. testified that she has never had any concerns for anyone’s safety with regard to M.B. All witnesses other than A.P. and her boyfriend (who did not testify on the matter one way or another) testified that M.B. is a fit parent. Even A.P.’s mother testified that she had no concerns about M.B.’s care of S.P.
The court rendered its opinion from the bench, concluding that there was a material change in circumstances based on the following findings:
Plaintiff has sought on more than one occasion to alienate [S.P.] from her father and his family. Plaintiff has claimed repeatedly that the Defendant is not [S.P.’s] father. Not withstanding [sic] two different tests providing otherwise. Plaintiff has exposed [S.P.] to inappropriate behaviors. Has created disturbances at [S.P.’s] school. Plaintiff was involved in an automobile accident with [S.P.] in the car while Plaintiff’s license was suspended. The cause of which is troubling to the [c]ourt given a liquor bottle or liquor bottles were found at the scene of the accident. Plaintiff has been charged with and subsequently convicted of several violations of the criminal law as relates to her violation of protective order in Caroline County. Perhaps most troubling is that which is reflected in the [c]ourt [o]rdered assessment of the Plaintiff made by Dr. [Maureen] Vernon a board licensed psychologist that was submitted to the [c]ourt. Dr. Vernon on page three of her report and reflecting on the relationship between Plaintiff and Defendant notes, “Unfortunately the love/hate relationship history is being played out in reoccurring litigation battles that are never fully resolved but continue their cycle. This is most disturbing because it spills over onto their daughter. Although she’s quite young reports from other adults in her life including her daycare provider suggest she is becoming more aware of the situation.” Page seven Dr. Vernon writes, “[A.P.] is an interesting and complex individual who has clearly been experiencing significant internal psychological distress. She professes that she’s fine and denies having problems except those relating to the conflict over her daughter. [”] Dr. Vernon further writes, [“A.P.] has impulse control issues. And this will continue to impede her ability to maintain consistent boundaries and follow any rules or social constraints she chooses not to recognize or feel[s] are too restrictive. Any parenting time will need to be somewhat monitored until she’s able to incorporate the necessary self controls and appropriate
behavioral constraints that are needed for raising her young daughter.[”] Dr. Vernon’s assessment in large part was consistent with what this [c]ourt gleaned from the testimony of Plaintiff directly and the reasonable inferences [the c]ourt drew from her testimony and demeanor on the witness stand and in the courtroom.
After finding a material change in circumstances, the court proceeded to consider S.P.’s best interest. In doing so, the court made explicit findings on each of the Sanders/Taylor factors, discussed in more detail infra.6 In light of the court’s thorough discussion, spanning ten pages of transcript, we shall highlight only a few of the court’s findings:
• A.P. and S.P. “were in a serious accident in which fortunately no one was seriously injured. And [A.P.] was not charged. But a liquor bottle or liquor bottles were observed at the scene.”
• “Shared custody, parenting time, if you will, was tried. It did not work out. And the [c]ourt is not persuaded that it would going forward.”
• As to each parent’s ability to maintain the child’s relationship with other relatives, the court found that M.B. facilitated a relationship between S.P. and her maternal grandmother, and that the grandmother “had no concerns” with M.B.’s care of S.P.
• Regarding “the capacity of the parents to communicate and to share decisions [a]ffecting [S.P.’s] welfare[, t]he short answer is sadly none.”
• “As reflected in Dr. Vernon’s report the constant bickering between the parents is beginning to have an impact on [S.P.]. Dr. Vernon is also concerned with the behavior of Plaintiff specifically as it relates . . . to comments about Defendant to and in front of [S.P.].”
• Concerning the ability of each parent to meet the child’s development needs, the court concluded that “[t]his factor clearly tilts towards Defendant. [S.P.] seems to be thriving since she’s been living with her father. Plaintiff has her own developmental needs. As Dr. Vernon[] expressed on page seven of her report, [A.P.] has impulse control[ issues] that will continue to impede[] her ability to maintain consistent boundaries. Dr. Vernon went on to say [there are] clear indications that individual therapy is strongly recommended for [A.P.]. It will be important for her to learn, to understand some of the cognitive and emotional issues that have been identified but she struggles to accept. She will need to work on addressing them for her own mental health and the wellbeing of her young daughter.”
• “In many child access cases the [c]ourt is often confronted with actions by the parties, one or both, that can [a]ffect the overall wellbeing of the child or children and that acts and deeds are more tilted towards ratcheting up the tenure of conflict in an effort to inflict mental and physical abuse upon the other party with minimal regard with what is best [for] the child or the children. Court finds this to be evident in
this case more so however from Plaintiff rather than Defendant. The protective order files, the posting on social media, the phone messages, the allegation Defendant is not [S.P.’s] father are most concerning to this [c]ourt. It has to stop or the negative impact on [S.P.] will be significant.”
• As to evidence of exposure of the child to domestic violence, the court found that “[t]here was some testimony in that regard although the domestic violence was directed more toward the parent and not in front of [S.P.]. Nonetheless children are perceptive and from Dr. Vernon’s report the conflict between the parties is starting to impact [S.P.].”
The court then returned to the two factors—fitness of the parties and character and reputation—that are typically the first two considerations in a best interest analysis. The court found as follows:
Both parties have character issues that are troubling to the [c]ourt. Defendant has had his driver’s license repeatedly suspended for failure to pay child support. He’s been convicted of second degree assault on Plaintiff. He’s failed to file income tax returns for several years and his language on social media is irresponsible and inappropriate. . . . Nonetheless Defendant’s relationship with [R.J.] seems to be strong and the [c]ourt was impressed with her testimony. . . . [S.P.] seems to be well adjusted in the home of Defendant [and R.J.]. And she seems well cared for and her needs more than met. Defendant’s character issues not withstanding [sic] the [c]ourt believes Defendant to be a fit and proper person to have care and custody of [S.P.] and is in a better position to provide the stability that [S.P.] needs. Plaintiff is facing sentencing for criminal charges rising out of violations [of] the Protective Order in Caroline County and may[ ]be incarcerated. She’s had her license suspended on occasion. Her post[s] on social media are most troubling to this [c]ourt. Her repeated allegations that the Defendant is not [S.P.’s] father in spite of substantial evidence to the contrary are inappropriate and harmful potentially to [S.P.]. The fact that she sent a video of herself involved in sexual intercourse and has sent other suggestively sexual videos and messages. If it doesn’t shock the consci[ence] of the [c]ourt it comes close to doing so. There was also persuasive testimony that she participated in a video call with [S.P.] while topless. This [c]ourt believes that Plaintiff genuinely loves [S.P.] and wants to have a meaningful relationship with her. And indeed the [c]ourt wants that to happen. At this time, however, the [c]ourt finds Plaintiff is not a fit person to have custody of [S.P.] and to have unsupervised visitation with her.
(Emphasis added). Although the court found that A.P. was
not “fit” to have custody of S.P., it proceeded to note that the November 2023 order established a rebuttable presumption that it would be in S.P.’s best interest for A.P. to have only supervised visitation and that A.P.’s mental health issues are a danger to S.P. In that regard, the court was “not persuaded that [A.P.] has provided credible evidence to rebut that presumption.” The court concluded that it was in S.P.’s best interest for M.B. to have sole legal and physical custody of S.P. and for A.P. to have supervised visitation “not less than every other week.” Additionally, the court ordered that A.P. have video visits with S.P. “not less than every Tuesday and Thursday evening but for not more than one hour each evening.”
STANDARD OF REVIEW
In Gizzo v. Gerstman, 245 Md. App. 168, 191-92 (2020), this Court discussed the standard of review for child custody decisions:
[A]ppellate courts apply different standards when reviewing different aspects of a custody or visitation decision. The appellate court will not set aside the trial court’s factual findings unless those findings are clearly erroneous. See, e.g., Burak v. Burak, 455 Md. 564, 616-17, 168 A.3d 883 (2017). To the extent that a custody decision involves a legal question, such as the interpretation of a statute, the appellate court must determine whether the trial court’s conclusions are legally correct, and, if not, whether the error was harmless. See id. at 617, 168 A.3d 883. The trial court’s ultimate decision will not be disturbed unless the trial court abused its discretion.
“When scrutinizing factual findings, this Court must ‘give due regard to the opportunity of the trial court to judge the credibility of the witnesses.’ Generally, 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.’” Id. at 200 (citation omitted) (first quoting Md. Rule 8-131(c), then quoting Azizova v. Suleymanov, 243 Md. App. 340, 372 (2019)). “In many cases, the evidence and factors ‘would support the ultimate decision made by the trial judge’ and ‘would also support a contrary decision’ to award custody to the other parent.” Id. (quoting Goldmeier v. Lepselter, 89 Md. App. 301, 313 (1991)). Because of this, trial courts are given “great discretion in making decisions concerning the best interest of the child.” Id. (quoting Petrini v. Petrini, 336 Md. 453, 469 (1994)).
DISCUSSION
I. The Court’s Findings Were Supported by the Evidence
Although the court made extensive findings related to the Sanders-Taylor factors, A.P. challenges only four findings as clearly erroneous: (1) that the cause of A.P.’s March 2023 car accident was “troubling”; (2) that M.B.’s parenting is not inappropriate; (3) that
A.P. suffers from mental health issues; and (4) that A.P. exposed S.P. to inappropriate behaviors. We shall address each of these issues in turn.
a. March 2023 Car Accident
A.P. asserts that the court erred in finding that the cause of the March 2023 car accident was “troubling” because of the presence of liquor bottles at the crash site. A.P. argues that this finding is clearly erroneous because the accident was “proved to be weather related” in a police report. The police report A.P. references was not admitted into evidence. Photographs from the crash site show two miniature liquor bottles on the ground next to debris and tire marks from the vehicle. The court did not find that A.P. had been drinking, merely noting that “a liquor bottle or liquor bottles were observed at the scene.” To the extent the court found this incident “troubling,” we discern no error in the court’s observation.
b. Appropriateness of M.B.’s Parenting
A.P. argues that the court erred in finding that M.B.’s parenting is not inappropriate.
The only evidence A.P. discusses to support this argument, aside from generally stating that
M.B. is an “abusive alcoholic,” are two video recordings. The first is a surveillance video of an altercation between the parties, which was not admitted into evidence. The second video relates to a video visit she had with S.P. on August 6, 2024, in which A.P. alleges S.P. was not wearing pants or underwear. Because this visit occurred after the February 2024 merits hearing, the court could not have considered it.
Concerning M.B.’s use of alcohol and history of violent behavior, there was evidence indicating that, to the extent that these issues existed in the past, M.B. does not currently abuse alcohol and has learned to control his temper. R.J. testified that M.B. only has “two or three” drinks “four to five” times per month. She also testified that she has never had safety concerns vis-à-vis M.B. M.B. testified that he completed six months of anger management classes and is no longer easily provoked. The court noted the domestic violence allegations, but found that it was “directed more toward the parent and not in front
of [S.P.].” Although the court did not make any explicit findings concerning M.B.’s alcohol use, its failure to list alcohol abuse in its discussion of M.B.’s “character issues” implies that it did not find M.B.’s use of alcohol to be problematic in his care of S.P.
The court’s finding that M.B. is a fit parent to care for S.P. was based on the overall circumstances, including M.B.’s “strong” relationship with R.J., who “interact[s] positively” with S.P., and S.P. being “well cared for and her needs more than met” in his care. In its findings on other factors, the court stated that M.B. has “stable and lucrative employment[,]” that he “helped to facilitate contact” between S.P. and her maternal grandmother,
that S.P. “seems to be thriving since she’s been living with her father[,]” and that she “has had all of her health and dental needs met.” It is clear that the court, in reviewing the entire evidentiary record, found that, in spite of his failings in certain areas, M.B. is a fit parent. We cannot conclude that the court’s findings are clearly erroneous.
c. A.P.’s Mental Health Issues
A.P. argues that there is no evidence supporting a finding that she has any “mental health issues.” Dr. Vernon’s report undermines A.P.’s argument. Dr. Vernon opined that A.P. “has clearly been experiencing significant internal psychological distress” and has “impulse control issues.” The court noted that Dr. Vernon’s report “in large part was consistent with what this [c]ourt gleaned from the testimony of [A.P.] . . . and demeanor on the witness stand and in the courtroom.” M.B. recounted that A.P. received in-patient psychiatric treatment for six weeks in 2017 and generally corroborated Dr. Vernon’s assessment. Finally, A.P.’s discovery violations resulted in the court imposing a rebuttable presumption that A.P.’s mental health presents a danger to S.P., a determination that has not been challenged on appeal. The court did not err in finding that it was “not persuaded that [A.P.] has provided credible evidence to rebut that presumption.”
d. A.P. Exposing S.P. to Inappropriate Behaviors
A.P. argues that the evidence does not support a finding that she exposed S.P. to inappropriate behaviors. We disagree. There was evidence that A.P. showed up outside a residence S.P. was in while M.B. had custody and called police for a “safety check”; that A.P. instigated arguments during exchanges, in front of S.P., requiring M.B. to get a Sheriff’s deputy to de-escalate the situation; that A.P. twice appeared for video visits topless; that A.P. told S.P. during video visits that S.P. did not have to listen to M.B. and could eat whatever she wanted; and that A.P. coached S.P. to say bad things about M.B. This evidence more than adequately supports the court’s finding that A.P. exposed S.P. to inappropriate behaviors.
II. The Court Based Its Decision on S.P.’s Best Interests
A.P. argues throughout her brief that the court’s decision is not in S.P.’s best interests, and that the court failed to consider S.P.’s best interests.
In making a child custody determination, the trial court must “consider the best interests of the child, evaluating guiding factors laid out in Montgomery County Dep’t of Soc. Servs. v. Sanders, 38 Md. App. 406 (1977)[,] and Taylor v. Taylor, 306 Md. 290 (1986).” Jose v. Jose, 237 Md. App. 588, 599 (2018). “Sanders provided ten non-exclusive factors”7 and “Taylor provided thirteen factors, some of which overlap the Sanders factors[.]”8 Id. at 599-600. “When considering the Sanders-Taylor factors, the trial court should examine ‘the totality of the situation in the alternative environments’ and avoid focusing on or weighing
any single factor to the exclusion of all others.” Id. at 600 (quoting Best v. Best, 93 Md. App. 644, 656 (1992)).
“It is not our role to reassess the credibility of the witnesses who testify before the trial court[,]” Thornton Mellon, LLC v. Adrianne Dennis Exempt Trust, 250 Md. App. 302, 329 (2021), aff ’d, 478 Md. 280 (2022), nor to determine the weight of the evidence before the trial court, J.A.B. v. J.E.D.B., 250 Md. App. 234, 246-47 (2021). Additionally, as noted supra, the trial court’s ultimate decision based on its assessment of the evidence will not be overturned absent an abuse of discretion. Gizzo, 245 Md. App. at 192. “An ‘appellate court does not make its own determination as to a child’s best interest; the trial court’s decision governs, unless the factual findings made by the lower court are clearly erroneous or there is a clear showing of an abuse of discretion.’” Azizova, 243 Md. App. at 372 (quoting Gordon v. Gordon, 174 Md. App. 583, 637-38 (2007)).
As best as we are able to determine, A.P.’s argument mostly relates to (1) the history of domestic violence between the parties and M.B.’s use of alcohol, (2) her belief that it is psychologically harmful for S.P. to be separated from A.P. for extended periods of time, and (3) the weight to be given to A.P.’s Facebook posts. As we discussed above, the evidence regarding M.B.’s use of alcohol and anger issues was mixed, with some evidence supporting M.B.’s contention that these issues do not negatively affect his current ability to care for S.P. A.P. did not present any evidence regarding the psychological effect that S.P. may experience as a result of her extended separation from A.P. Nonetheless, the court recognized that it is generally in S.P.’s best interest to have a relationship with A.P., but found that “[a]t this time, . . . [A.P.] is not a fit person to have custody of [S.P.] and to have unsupervised visitation with her.” As to A.P.’s argument that the court gave too much weight to her Facebook posts, we first reiterate that the weighing of evidence is fully within the trial court’s discretion. Secondly, the court only mentioned A.P.’s Facebook posts twice in its lengthy opinion, and does not appear to have given the issue undue weight. Our review of the record persuades us that the court appropriately considered all of the factors and made an informed decision based on the totality of the evidence relevant to S.P.’s best interest.
III. A.P.’s Ineffective Assistance of Counsel Argument Fails
Throughout A.P.’s brief, she complains that her trial counsel failed to communicate with opposing counsel, present certain evidence, or effectively cross-examine witnesses. We interpret
A.P.’s argument in this regard as a claim of ineffective assistance of trial counsel. An individual has a constitutional right to effective assistance of counsel when facing criminal charges. See In re Adoption/Guardianship of Chaden M., 189 Md. App. 411, 425 (2009), aff ’d 422 Md. 498 (2011). Generally, there is no right to counsel in the civil context. However, certain statutes create a right to counsel in specific proceedings, which “also includes the corresponding right to the effective assistance of counsel.” Id. at 428. A case seeking modification of a child custody order is not included within those statutes and is not otherwise a civil proceeding in which a party’s liberty is in jeopardy. See Zetty v. Piatt, 365 Md. 141, 156-59 (2001) (recognizing right to counsel in civil contempt proceedings involving incarceration). Therefore, A.P.’s ineffective assistance of counsel claim is without merit.
IV. A.P. Failed to Preserve Any Issues Concerning Improper Arguments Made by Opposing Counsel
A.P. next argues that M.B.’s counsel was “manipulative,” used “reverse psychology,” and encouraged M.B. to “blackmail” A.P. Because none of these arguments were raised below, A.P. has failed to preserve this issue for our review. See Green v. North Arundel Hosp. Ass’n, Inc., 126 Md. App. 394, 425 (1999).9
V. A.P. Failed to Preserve Her Hearsay Arguments
Lastly, A.P. argues that much of the evidence before the court was inadmissible hearsay. However, she fails in many instances to specify the objectionable statements, instead broadly labeling all evidence related to certain topics as “hearsay.” We cannot review such vague claims. See Ubom v. SunTrust Bank, 198 Md. App. 278, 285 n. 4 (2011) (noting that failure to reference pages in the record to which an argument refers is grounds for dismissal and that this Court is “not required to ferret out from the record factual support favorable to” a party’s argument (quoting Vandegrift v. State, 82 Md. App. 617, 633 (1990))). In the few instances where A.P. provides record citations related to her hearsay arguments, we note that she failed to object to the testimony she now claims was improperly admitted. A.P.’s hearsay claims are therefore waived. See Rule 2-517(a) (“An objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent. Otherwise, the objection is waived.”). Finally, some statements A.P. argues are hearsay are actually assertions made by M.B.’s counsel. Aside from her failure to object, counsel’s statements are not evidence. See Keller v. Serio, 437 Md. 277, 288 (2014).
JUDGMENT OF THE CIRCUIT COURT FOR TALBOT COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 A.P. also asserted various reasons why the court erred in admitting a report related to her psychiatric evaluation. Because A.P. did not provide a transcript of a hearing relevant to the psychiatric evaluation, this Court previously struck her arguments concerning this issue.
2 M.B. alleges that A.P. moved back in with him after filing the complaint and intercepted the notices sent to him. He testified that he found out about the complaint and custody order after the period for filing exceptions to the magistrate’s recommendation had passed. He stated: “As I read this and cried she smiled at me and she said, look, I’ll never keep her from you. I just need to have control.”
3 In October 2023, A.P. began renting a two-bedroom house from her parents.
4 A.P. mounts no appellate challenge concerning the propriety of the November 8, 2023 order.
5 M.B. stated that his driver’s license has also been suspended on multiple occasions due to failure to pay child support arrears for his older children.
6 Montgomery Cnty. Dept. of Soc. Servs. v. Sanders, 38 Md. App. 406 (1977); Taylor v. Taylor, 306 Md. 290 (1986).
7 The best interest factors identified in Sanders are as follows:
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;
9. Length of separation from the natural parents;
10. Prior voluntary abandonment or surrender.
Jose, 237 Md. App. at 599-600 (citing Sanders, 38 Md. App. at 420).
8 The best interest factors identified in Taylor are:
1. Capacity of the Parents to Communicate and to Reach Shared Decisions Affecting the Child’s Welfare;
2. Willingness of Parents to Share Custody;
3. Fitness of Parents;
4. Relationship Established Between the Child and Each Parent;
5. Preference of the Child;
6. Potential Disruption of Child’s Social and School Life;
7. Geographic Proximity of Parental Homes;
8. Demands of Parental Employment;
9. Age and Number of Children;
10. Sincerity of Parents’ Request;
11. Financial Status of the Parents;
12. Impact on State or Federal Assistance;
13. Benefit to Parents.
Jose, 237 Md. App. at 600 (citing Taylor, 306 Md. at 304-11).
9 Additionally, A.P. fails to point to specific instances in the record where M.B.’s counsel acted inappropriately. The few record citations A.P. provides merely show M.B.’s counsel presenting father’s version of the facts as shown by the evidence. That A.P. disagrees with M.B.’s interpretation of the evidence is neither surprising nor an indication that M.B.’s counsel was acting inappropriately.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Dorchester County Circuit Court’s termination of parental rights to four minor children previously found to be children in need of assistance. The court reached its conclusions after finding by clear and convincing evidence that both parents were unfit and that severing the parental relationships served each child’s best interests.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
Mother has known Father since she was thirteen years old. The two dated for at least six years and have five children together.2 Kl. was born on August 9, 2019. A month later, in September 2019, Kl. suffered a severe case of thrush. At the time, Mother was incarcerated. Father, who wasn’t incarcerated, failed to follow up with her medical care. This inaction led to contact with DSS, which indicated him for medical neglect.
On July 18, 2020, Kt. was born. During most of Mother’s pregnancy with Kt., Father was incarcerated and returned to the family’s Cambridge home around August 2020. Shortly after that, Kl. fractured her arm and was rushed to a hospital. This time Mother failed to follow up with timely medical care for Kl. and DSS became involved again, indicating Mother for neglect.
On August 16, 2021, Mother and Father had their fourth child, F. F. was born as a substance-exposed newborn (“SEN”)3 after testing positive for marijuana, which again alerted DSS. The Department began providing in-home services to the family, including transportation, help in applying for temporary cash assistance, medical assistance, food, cleaning supplies, and clothing for the children.
R.B. (“Mother”) and T.D. (“Father”) are parents to four children who are before us in this case: Kl.D., Kt.D., F.D., and T.D. The four were found to be Children in Need of Assistance (“CINA”),1 and in April 2024, the Circuit Court for Dorchester County terminated Mother and Father’s parental rights to each child. The court reached its conclusions after finding by clear and convincing evidence that both parents were unfit and that severing the parental relationships served each child’s best interests. The court grounded its findings in the parents’ failure to comply with their agreements with the Dorchester County Department of Social Services (“DSS” or the “Department”), even though the Department had offered them numerous services, in each parent’s inability to demonstrate that they would address their behavioral shortcomings meaningfully, and in the children’s established bonds with their foster families. Mother and Father appeal and we affirm.
I. BACKGROUND
A. Factual Background
1. DSS became involved early in the children’s lives.
Kevonya Moment, the DSS in-home worker at the time, worked with the family. She met resistance initially—Mother and Father did not permit her anywhere past the kitchen of their home, and the parents were uncooperative. Because she couldn’t interact with the family otherwise, Ms. Moment came close to terminating F.’s SEN case. Then, in November 2021, she received a referral to address F.’s weight issues and a heart murmur that required a specialist’s intervention. Like Kl., the family had missed F.’s medical appointment with his cardiologist. Ms. Moment also learned that this was the second time that F. had missed a cardiologist appointment. When she attempted to speak with Father about the missed appointment, Father cursed at her. It was then that Ms. Moment requested police assistance with conducting an unannounced in-home visit.
On December 1, 2021, DSS indicated the parents for neglecting F. That same day, law enforcement arrested Mother and Father upon discovering that both had active warrants. DSS involved Lindsay Peake, a Child Protective Services (“CPS”) worker at the time, due to the medical neglect of F. and the state of the home. Upon arriving at the home, Ms. Peake noticed other adults there in addition to Mother and Father, but she didn’t know who they were. DSS learned later that two of the adults were the children’s maternal grandparent, Candy Walker, and her then-boyfriend. DSS placed the children in Emergency Shelter Care.
Afterwards, Mother was incarcerated until January 7, 2022,
and Father was incarcerated until September 25, 2023. While Mother entered into an after-care plan with DSS once released, Father entered into his after-care plan with DSS while still incarcerated. Mother’s plan required her to follow through with all court orders and comply with DSS’s requests. The plan also required her to continue looking for housing, utilize community resources, and follow through with medical, mental, and substance abuse appointments. Father’s after-care plan required him to comply with his mental health recommendations, cooperate with DSS, follow through with the children’s medical appointments after they were returned to him, and maintain their safety and well-being otherwise.
Once Mother was released in January 2022, DSS returned Kl. and Kt. to her at their Cambridge home, whereas F. remained in Emergency Shelter Care. DSS continued to support the family. The Department helped Mother search for housing by taking her to visit potential homes. Ms. Moment provided Mother with photographs of homes with “For Rent” signs around Dorchester County. The Department also transported Mother to her urinalysis appointments at J.D. Collins and for an intake session at the Life Energy Wellness Center. That same month, on January 15, 2022, the Department petitioned the circuit court to declare F. a CINA, which it did, later, on February 7, 2022. The Department provided items to prepare for F.’s return and he did return to the Cambridge home under an Order of Protective Supervision (“OPS”).
DSS nevertheless remained concerned with the state of the family home where Mother resided with the three children. On a visit they observed clutter tucked away in the living room and an emaciated dog locked in a bathroom. On one side of that bathroom’s door was an “Out of Order” sign, and on the other were dog feces and trash. Ms. Moment described Mother’s and Ms. Walker’s rooms as a “mess.” When DSS informed Mother that she ought to clean the rooms, she complied. The rest of the house was littered with trash, diapers, and food. The clothes DSS found and disposed of were infested with cockroaches. The family also remained unreceptive to DSS’s unannounced visits—it took the family about two months to start allowing DSS’s workers to fully access the home.
On July 4, 2022, Mother gave birth to their fifth child, T. Mother was evicted later that month from her home in Cambridge.4 DSS paid for Mother to stay with four of the children at a hotel—the Cambridge Inn. But when DSS attempted to locate her there that same month, it couldn’t find her. What DSS did find was Ms. Walker and her then-boyfriend with F. and T. On July 18th, 2022, the Department attempted to transport Mother’s children to a medical appointment but was unable to do so because it couldn’t find Mother or any of the children. It would soon learn that Mother and the children had left the Cambridge Inn the day before, July 17th, and were at a different hotel in Baltimore City.5
DSS contacted the Baltimore City Department of Social Services to conduct a safety check on the family but didn’t receive a response. On July 26, 2022, Ms. Moment and Martika Jefferson, a family support worker, went to the Baltimore hotel themselves. They found Kl., Kt., T., and a nine-year-old alone with no adults present. Mother’s friend arrived later, but neither
Mother nor F. were there. Ms. Moment described the hotel room as “disgusting,” with food and clothes in black trash bags, leading her to believe that the family had been living there for a month rather than a few days. There also were open alcohol bottles within the children’s reach. Added to those concerns was T., a newborn at the time, lying face down on the bed with a bed cover up to her shoulder and severe thrush on her tongue. DSS provided new diapers, bottles, and clothing for the children. The Department then learned that Mother had been arrested for stealing a U-Haul truck. After issuing a missing person’s report for F., DSS found him with another of Mother’s friends. With all four children located, DSS placed them in foster homes, entrusting the older two to Stephanie Williams on July 26, 2022 and the younger two to Christy Sink that same day. The children also underwent medical evaluations, with Kl., Kt., and T. having their evaluations the following day, July 27, 2022, and F. having his on July 29, 2022. Only T. presented medical concerns—an oral thrush, a diaper rash, a failure to thrive, and blocked tear ducts.
Later that year, on September 13th, 2022, DSS petitioned the circuit court to terminate the OPS and obtain custody of F. DSS also petitioned the circuit court to declare Kl., Kt., and T. as CINA. That same month, on September 29, Mother informed DSS about her new residence in Salisbury. Having confirmed this residence, DSS completed service planning with Mother on October 4, 2022. The plan required Mother to complete her substance use disorder, mental health, and Fit-To-Parent evaluation, follow the resulting requests and recommendations, and comply with random urine analyses. Mother told the Department that she would begin employment with Perdue Farms soon after and DSS asked her to provide her work schedule and paystubs. Mother also reported that she had missed her criminal hearing about the U-Haul truck that had been scheduled for September 30, 2022. While she informed DSS that her lawyer would resolve her issue of missing the hearing, a failure to appear warrant was issued for her. She then turned herself in and was arrested.
Then on October 25, 2022, a magistrate issued their Report and Recommendations declaring Kl., Kt., and T. as CINA, terminating the OPS, and granting DSS custody over those four children. The circuit court adopted those findings on November 4, 2022. The following year, on July 25, 2023, the circuit court held a Permanency Plan Review Hearing for the four children. There, the court changed the children’s permanency plan from reunification to adoption by a non-relative and ordered DSS to file a petition for Guardianship of the children.
2. DSS supervises the parental visits.
During the times DSS had custody of the children, but before the Termination of Parental Rights (“TPR”) proceeding, DSS facilitated visits between the parents and these four children and logged those visits in a report to the circuit court. Sophia Shockley, a DSS out-of-home services worker at the time, and Megan Yowell, an out-of-home placement supervisor at the time, prepared the report. However, those visits did not always go as planned. On August 2, 2023, Mother arrived late to a scheduled visit with F. and T. DSS noted that she arrived with the children’s
grandparents, who were not scheduled to be there. On another occasion, Mother was a no-show to a scheduled visit at the Salisbury Zoo with Kl. and Kt. DSS found her and Ms. Walker, along with Ms. Walker’s now-husband (now “the Walkers”), at a Dollar Store and offered her transportation, which Mother declined.
For the August 22, 2023, scheduled visit with the four children, Mother showed up again with the Walkers. Ms. Shockley noted several issues that day—Mother allowed the children to throw toys and objects; she opted first to photograph T. when T. cried before attempting to console her; Mother used inappropriate language in front of the children; she yelled loudly in the DSS parking lot; and she ignored DSS’s requests to modify her behavior. Ms. Shockley added that there was a lot of yelling and screaming and pillows thrown. Mother tried to calm Kl. and Kt. but couldn’t, as the girls were inconsolable, threw tantrums, and misbehaved.
Father was released from prison on September 25, 2023. Two days later, he contacted DSS about visiting the children. DSS informed him that he had to visit alone, without Mother, given that Mother had confirmed the pair’s domestically violent history. He expressed his disagreement with this plan through numerous texts and phone calls. DSS advised him to contact his attorney to address this and, in the meantime, that he was to meet with a DSS worker to review a service plan, a step which, once completed, would permit him to see the children.
The Department scheduled a visit with both parents for September 29, 2023, but neither showed up. Father missed another scheduled visit on October 4, 2023, despite three attempted notices via text message. It was during this period, on October 5, 2023, that DSS petitioned the circuit court for guardianship of Kl., Kt., F., and T. Five days later, on October 10, Father arrived at the Department and signed the service plan which stated, among other things, that he would attend mental health treatment, substance abuse treatment, anger management, and parent training. DSS provided him with a packet of community resources that could provide those services, and he agreed to sign consent forms to release his progress to DSS once he had chosen providers for those services.
On October 16, 2023, three days before his next visit, Father asked to visit the children with Mother. When the day of that visit came, he and Mother were both at DSS, but since they were not supposed to see the children together, each parent had two children with them at a time in different rooms. DSS had security outside each room to ensure the children’s safety. The following month, Father again requested that he and Mother be present together during supervised visits.6
On November 15, 2023, both parents had another visit at DSS. The Department requested urine screens from them; Mother assented and Father refused, stating that he already had to undergo those screens with his probation officer and that his attorney informed him that additional screens were unnecessary. DSS noted in its report in December that although Mother had agreed to submit to a urine screen, she still had not done so by the time DSS submitted the report to the circuit court. During that November visit though, the parents were to play a game of Twister with the children. DSS workers saw Father whisper into Kl. and Kt.’s ears, then hand Kl. a watch.
Kt. became upset until she received the watch, thinking it was hers to keep. Kl. threw her shoes, and so did F., thinking it was a game. After refusing to put her shoes back on, Kt. began screaming as F. and T. watched, and the visit with Kl. and Kt. ended. Father protested—he wanted the visit to continue—but DSS refused, fearing that the two daughters’ behavior would escalate if they remained and that the parents should remain with F. and T. instead. Father then said he would be contacting his lawyer. Later, Kl. and Kt. informed a DSS worker that “Daddy told us to be bad so that we could stay longer.”
Mother called DSS on November 21, 2023, stating that she did not want to be in the same room as Father. She added, this time via text message, that Father wanted nothing to do with the children. Father then contacted DSS and left a message using “foul language.” He called again and expressed how Mother’s earlier communications were untrue and that he was with her at that very moment. Mother texted DSS seven days later that “the visits are fine together btw.”
So the visits continued. DSS held a supervised visit for both parents and the four children on November 29, 2023. Although this visit was supposed to be one where the parents played a game with the children, only Mother involved herself; Father refused to play and just observed. The visit ended five minutes early because of Kl.’s and Kt.’s agitation, temper tantrums, and disobedience.
On December 25, 2023, Officer David Whipple from the Cambridge Police Department received a call related to domestic violence in Cambridge. When he arrived at the residence, he found Mother, Father, and the children’s paternal grandfather. Mother had a red mark on her face, which she said Father had caused by punching her. The officer noticed a cut on Father’s lip and a scratch on his arm. According to the paternal grandfather, Mother did not want Father to leave and assaulted Father with a fire extinguisher to prevent his departure. Officers arrested Mother and Father; Father yelled and was otherwise disorderly, and Mother resisted the arrest.
Given the incident on December 25, 2023, the parents could not visit the children together. DSS noted the next visit as February 14, 2024. Father was supposed to arrive at DSS at 9:00 a.m. but arrived instead with Mother after 10:00 a.m. DSS deemed Father to have forfeited that visit, given that his visiting time ended at 10:00 a.m., and this left him unhappy. The following month, March, Father was late again to a scheduled visit with F. and T. Ms. Shockley revealed that leading up to that visit, she received a phone call from Father, who stated that he and Mother were upset with each other and that Mother planned to take her tax money and kidnap the four children. An hour later, Father called again, stating this time that what he had said in the previous call was all false and that he was just angry. This was the last supervised visit DSS noted before the TPR hearing.
B. Procedural History
1. The circuit court issued several orders leading up to the TPR hearing.
On January 15, 2022, DSS petitioned the circuit court to declare F. a CINA. On February 7, 2022, the court found F. to be a CINA, and he returned to the Cambridge home under the OPS.
Under that order, both parents had to participate in substance abuse evaluations, tests, and treatment; refrain from using devices not designed for heating to warm their home, such as an oven; attend all medical appointments; comply with medicine and feeding instructions; limit individuals in the home to four adults and three minors; and enroll the children in an early head start program. The order also required Mother to complete psychological evaluations and counseling, permit unannounced Department visits to the home, cooperate with in-home services workers, and not use threatening language toward Department staff.
The parents appeared for a CINA review hearing for F. on September 13, 2022. After finding the children in Baltimore City, DSS petitioned the court to terminate the OPS and to grant DSS custody of F. A magistrate found it contrary to F.’s welfare to keep the child in the same home as Mother. The magistrate also credited DSS’s efforts to avoid removing F. The magistrate recommended that F. remain a CINA, that DSS retain custody over F. until the October 25, 2022 CINA disposition hearing, that Mother be permitted weekly visits with F., and that to the extent possible, DSS arrange video visits between Father and F. The circuit court adopted those Recommendations.
That same day, the magistrate also heard DSS’s petition to declare Kl., Kt., and T. CINA and issued a Report and Recommendations. The magistrate found that Mother and Father had neglected the children and that the parents were unable or unwilling to provide the children with the proper care and attention they needed. The magistrate recommended that DSS retain custody of the children until the October 25, 2022 hearing, allow Mother weekly visits, and that DSS arrange video visits between the children and Father. The circuit court adopted those Recommendations as well.
After the October 25, 2022 CINA disposition hearing, a magistrate issued another Report and Recommendations as to Kl., Kt., and T. The Department informed the court that it had tried to contact Mother, but she remained unresponsive and had yet to verify employment or completion of the evaluations and treatment. After finding the children as CINA due to parental neglect, the magistrate recommended that DSS retain custody; continue the same visitation schedule with both parents; that both parents complete the ordered evaluations and classes; and release those evaluations to the court, along with testing and participating information to the court and all parties. Both parents also were required to undergo a Fit-to-Parent Evaluation. On November 4, 2022, the circuit court adopted those findings.
Dr. Samantha Scott issued a report from the parents’ Fitto-Parent Evaluation on June 12, 2023. The doctor expressed “significant concern” over Mother’s psychological functioning and whether Mother could provide a safe environment for the children. Dr. Scott noted that Mother had “marked challenges with impulse control, healthy decision making, insight and judgment, and her ability to manage tasks of independent living without assistance.” The report noted health concerns such as unaddressed epilepsy and potential cancer. The doctor also highlighted Mother’s unprocessed trauma, aggressive and explosive behavior, daily marijuana abuse, and the ease with
which the children could access her marijuana. The report also noted Mother’s domestic violence history with Father, her difficulty completing tasks without significant assistance, poor insight and judgment, her uninterested disposition during visits with her children, her low frustration tolerance, and her authoritarian parenting style.
The doctor concluded that the children should not return to Mother’s care and that DSS should be cautious about permitting unsupervised visits with Mother and the children. The doctor added that Mother would struggle to maintain her composure and offer all four children the attention required to keep them safe. And given her arrests and homelessness, the report opined that DSS may need to consider changing the children’s permanency plan. The doctor recommended that Mother participate in continuous individual trauma-focused therapy, substance abuse treatment, treatment from a residential center specializing in co-occurring mental health disorders, additional medication, and seek a follow-up for her epilepsy and all other medical conditions and needs.
On July 25, 2023, the circuit court held a Permanency Plan Review Hearing for Kl., Kt., F., and T. The court changed their permanency plans from reunification with the parents to adoption by a non-relative. The court also ordered the Department to file a petition for Guardianship and termination of the parents’ rights, and required DSS to refer Mother for services, assist with the siblings’ visitations, provide transportation for the family, and refer Mother and Father for education and anger management or domestic violence education. Finally, the court modified the parents’ visitation schedule to change Mother’s visits from weekly to bi-weekly supervised visits and monthly remote visits with Father until he was released from prison.
2. The circuit court holds the TPR hearing and terminates Mother and Father’s parental rights.
On October 5, 2023, DSS petitioned the circuit court for guardianship of Kl., Kt., F., and T. The Department asked the court to terminate Mother and Father’s parental rights to all four children under FL § 5-323. The TPR proceeding lasted two days, from April 25 to 26, 2024. Father appeared in person while Mother appeared remotely because she was in a detention center. Each child’s case was separate, but the court consolidated them and heard the matters together.
Dr. Scott testified as an expert in clinical psychology. She opined that Mother not participating in a substance abuse treatment program due to her obtaining a medical marijuana card would not change the doctor’s opinion that Mother still needed substance abuse treatment, ideally from a treatment center specializing in co-occurring mental health disorders. She expressed concern about disrupting the children’s lives if the children were returned to Mother as well as Mother’s lack of insight into what caused her problems and how her behavior affected her children. The doctor also testified that all four children were vulnerable, given the environment in which they were raised.
When asked whether her opinion on the parents’ domestic violence would change if the doctor became aware that the relationship ended, the doctor said that it wouldn’t. The doctor
also spoke to Mother’s friend, Ciara Meadows, about Mother’s parenting when forming the Fit-to-Parent evaluation and learned that Ms. Meadows was concerned about Mother’s new boyfriend (not Father) because “he steals and in her words, it’s just not right.” Ms. Meadows also was unsure of Mother’s parenting because she had only seen Mother parent under DSS’s monitoring and was unsure of Mother’s patience to watch the children alone.
The foster parents also testified. Ms. Sink, F. and T.’s foster parent, testified that the two children had bonded well with her. The children identified her as their mother and were happy overall. The only exception came one Thanksgiving where, after a visit with Mother and Father, F. called Ms. Sink and her husband by their first names. She added that after parental visits, F. seemed angrier, threw items, and used foul language— behavior he did not exhibit in her household. T., on the other hand, wanted to be held more after a visit with her biological parents.
Ms. Williams, Kl. and Kt.’s foster parent, testified that she saw a lot of improvement in the girls from the time they first moved in through the day of the TPR hearing. Like Ms. Sink, she testified that whenever the children returned from visits with their biological parents, they were unruly: Kl. would kick, curse, and yell, and Kt. would shut down. There would also be bedwetting. She had nonetheless seen a lot of improvement in the girls and had developed a strong bond with them, as Ms. Shockley also testified. Ms. Shockley noted that on some occasions, she had to call Ms. Williams to help her calm the girls after supervised visits with the parents.
Mother testified and admitted that she had not completed several programs, such as parenting, mental health, anger management, and substance abuse, and that she did not have stable employment, leading her to work side jobs. Although she had not attended any of the children’s medical appointments since DSS’s first involvement with her children, Mother contended that this was because she hadn’t received notification about those appointments. As to her criminal history, she stated that her current charges stemmed from her removing an electronic monitoring device. She also had a traffic charge for refusing to produce a driver’s license during a traffic stop and an assault case from the December 25, 2023 incident with Father.
Father testified that despite Ms. Shockley providing him a referral packet for employment, he had remained unemployed since being released from prison in September 2023. He also did not send any documentation about his urinalysis tests to DSS. With regard to mental health treatment, Father claimed that he was awaiting one treatment center’s response, and the others had no openings for new patients. He stated that although he had not participated in an anger management program, he had been to two mental health intake appointments, although he didn’t offer proof of attendance and declined to provide information regarding those services to DSS. Father added that he was not in substance abuse treatment because his parolee status and the risk of prison deterred him from consuming illicit drugs; he thought that a sufficient deterrent and found substance abuse treatment futile. With regard to his incarceration that ended in September 2023, Father said it was due to a probation violation.
Father added that he was serving a nine-month sentence at that time and appeared in court remotely that day. He characterized his relationship with Mother as “off and on.”
After hearing the testimony and closing arguments for each child, the Department, and the parents, the case was submitted. The court issued individual written orders for Kl., Kt., F., and. T. on July 11, 2024 that considered the guidelines outlined in FL § 5-323. Although separate, the court made parallel findings in each case: that both parents were unfit, that continuing Mother’s and Father’s relationship with the children would be detrimental to each child’s best interests, and that termination of both parent’s parental rights was in the children’s best interest.
Mother and Father appeal. We supplement the facts as appropriate below.
II. DISCUSSION
Mother and Father challenge the juvenile court’s decision to terminate their parental rights.7 We agree with the Department and the children that the juvenile court ruled correctly.
“We use three distinct, but interrelated standards to review a juvenile court’s decision to terminate parental rights.” In re Adoption/Guardianship of H.W., 460 Md. 201, 214 (2018). First, the “juvenile court’s factual findings are left undisturbed unless they are clearly erroneous.” Id. Second, we “review legal questions without deference, and if the lower court erred, further proceedings are ordinarily required unless the error is harmless.” Id Third, if the juvenile court’s ultimate conclusion is “‘founded upon sound legal principles and based upon factual findings that are not clearly erroneous,’ [it] will be ‘disturbed only if there has been a clear abuse of discretion.’” Id. (quoting In re Adoption of Ta’Niya, 417 Md. 90, 100 (2010)).
In TPR cases, we consider two competing interests. We recognize first that “parents have a fundamental right to raise their children and make decisions about their custody and care.” H.W., at 215–16. Indeed, there is “‘a presumption of law and fact—that it is in the best interest of children to remain in the care and custody of their parents.’” Id. at 216 (quoting In re Adoption/Guardianship of Rashawn H., 402 Md. 477, 495 (2007)). The second interest belongs to the State, id., having the parens patriae responsibility to “protect children[] who cannot protect themselves[] from abuse and neglect.” In re Adoption/ Guardianship of Rashawn H., 402 Md. 477, 497 (2007). The transcendent standard is the children’s best interests. H.W., 460 Md. at 216.
A. The Juvenile Court Terminated Mother and Father’s Parental Rights Correctly.
Under FL § 5-323(b), courts may terminate parental rights only after finding that a parent is unfit or that exceptional circumstances exist and that continuing the parental relationship is detrimental to a child’s best interests: If, after consideration of factors as required in this section, a juvenile court finds by clear and convincing evidence that a parent is unfit to
remain in a parental relationship with the child or that exceptional circumstances exist that would make a continuation of the parental relationship detrimental to the best interests of the child such that terminating the rights of the parent is in a child’s best interests, the juvenile court may grant guardianship of the child without consent otherwise required under this subtitle and over the child’s objection.
In this case, the court made both findings as to each of the four children. Section 5-323(d) provides the factors the court used to reach its decision in the TPR proceeding:
[I]n ruling on a petition for guardianship of a child, a juvenile court shall give primary consideration to the health and safety of the child and consideration to all other factors needed to determine whether terminating a parent’s rights is in the child’s best interests, including:
(1)(i) all services offered to the parent before the child’s placement, whether offered by a local department, another agency, or a professional;
(ii) the extent, nature, and timeliness of services offered by a local department to facilitate reunion of the child and parent; and
(iii) the extent to which a local department and parent have fulfilled their obligations under a social services agreement, if any;
(2) the results of the parent’s effort to adjust the parent’s circumstances, condition, or conduct to make it in the child’s best interests for the child to be returned to the parent’s home, including:
(i) the extent to which the parent has maintained regular contact with:
1. the child;
2. the local department to which the child is committed; and
3. if feasible, the child’s caregiver;
(ii) the parent’s contribution to a reasonable part of the child’s care and support, if the parent is financially able to do so;
(iii) the existence of a parental disability that makes the parent consistently unable to care for the child’s immediate and ongoing physical or psychological needs for long periods of time; and (iv) whether additional services would be likely to bring about a lasting parental adjustment so that the child could be returned to the parent within an ascertainable time not to exceed 18 months from the date of placement unless the juvenile court makes a specific finding that it is in the child’s best interests to extend the time for a specified period;
.(3) whether:
(i) the parent has abused or neglected the child or a minor and the seriousness of the abuse or neglect;
(ii) 1. A. on admission to a hospital for the
child’s delivery, the mother tested positive for a drug as evidenced by a positive toxicology test; or
B. upon the birth of the child, the child tested positive for a drug as evidenced by a positive toxicology test; and
2. the mother refused the level of drug treatment recommended by a qualified addictions specialist, as defined in § 5-1201 of this title, or by a physician or psychologist, as defined in the Health Occupations Article;
(iii) the parent subjected the child to:
1. chronic abuse;
2. chronic and life-threatening neglect;
3. sexual abuse; or
4. torture;
(iv) the parent has been convicted, in any state or any court of the United States, of:
1. a crime of violence against:
A. a minor offspring of the parent;
B. the child; or
C. another parent of the child; or
2. aiding or abetting, conspiring, or soliciting to commit a crime described in item 1 of this item; and
(v) the parent has involuntarily lost parental rights to a sibling of the child; and
(4)(i) the child’s emotional ties with and feelings toward the child’s parents, the child’s siblings, and others who may affect the child’s best interests significantly;
(ii) the child’s adjustment to:
1. community;
2. home;
3. placement; and 4. school;
(iii) the child’s feelings about severance of the parent-child relationship; and
(iv) the likely impact of terminating parental rights on the child’s well-being.
These factors “serve both as the basis for a court’s finding (1) whether there are exceptional circumstances that would make a continued parental relationship detrimental to the child’s best interest, and (2) whether termination of parental rights is in the child’s best interest.” Ta’Niya C., 417 Md. at 116; Rashawn H., 402 Md. at 499 (“[The statutory] factors, though couched as considerations in determining whether termination is in the child’s best interest, serve also as criteria for determining the kinds of exceptional circumstances that would suffice to rebut the presumption favoring a continued parental relationship and justify termination of that relationship.”). The juvenile court considers these factors against the individual circumstances of the parent and child:
The court’s role in TPR cases is to give the most careful consideration to the relevant statutory factors, to make specific findings based on the evidence with respect to each of them, and, mindful of the presumption favoring
a continuation of the parental relationship, 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. If the court does that— articulates its conclusion as to the best interest of the child in that manner— the parental rights we have recognized and the statutory basis for terminating those rights are in proper and harmonious balance.
Rashawn H., 402 Md. at 501.
Both parents argue that the court erred in terminating their parental rights. We disagree. Although a “court may reach different conclusions under FL Section 5–323(d) regarding different children of the same parent,” Ta’Niya C., 417 Md. at 116, the juvenile court walked carefully through each factor, applied each to each parent and each child, and ample evidence supported each finding.
1. This record supported the court’s decision to overcome the presumption to maintain the parental relationship.
The juvenile court identified the services under FL § 5-323(d) (1) that the Department offered to the family and the extent to which each parent took advantage of those services. These included “In-Home Family Preservation Services, family team decision-making meetings, medical support, Child Protective Services investigations, housing assistance, and safety checks.” The record from the TPR proceedings supported these findings. Ms. Moment testified about her involvement with the family during that period, including daily meetings with the family and other caseworkers and assisting Mother with finding a home, which Ms. Moment did personally by showing Mother photographs of residences with “For Rent” signs around Dorchester County. DSS also provided temporary cash assistance, medical assistance, transportation, food, cleaning supplies, clothes, and other items for the children.
The Department was not required to find and pay for either parent’s housing. See Rashawn H., 402 Md. at 500. Nor was it required to find the parents employment. Id. The Department was required to provide reasonable services designed to address the root causes of the problems the parents faced, id., and generally, the parents didn’t accept them. When Ms. Moment first arrived at the home, Mother and Father didn’t let the caseworker anywhere past the kitchen and remained otherwise uncooperative. Although both parents received in-home services plans, see FL § 5-323(d)(1)(iii), the juvenile court found that neither parent “made any real progress under the plans.” Despite discussions with Mother about her mental health and substance abuse, she didn’t complete the action items. The Department provided her transportation to medical appointments whenever she requested, but she wouldn’t go to follow-up appointments. Father signed a service agreement to comply with substance abuse treatment, mental health, parent training, and anger management, but didn’t verify that
he completed any evaluations or received treatment. Indeed, he refused to provide any information regarding the providers he claimed he had chosen for those services. And although DSS provided him with a referral for employment opportunities, he remained unemployed.
As to the parents maintaining relationships with each child and their caregiver, see FL § 5-323(d)(2)(i), the court found that both typically contacted the Department to ask about visitations rather than the welfare of the children. The record supports this finding: Ms. Shockley testified that Mother and Father only contacted the Department to request their visitation dates and didn’t inquire about the children’s health or education. The juvenile court also found that Father’s contact with DSS related predominantly to visitation and that his communication was aggressive, displaying the tension the court noted between Father and DSS. Further supporting that tension was Father not showing up to at least one supervised visit and Ms. Moment’s testimony that Father cursed at her. The court also found that Mother struggled with appropriate parenting during visits— such as when she opted to photograph T. while T. was crying before attempting to calm her. All told, the record supported these findings.
Additionally, neither parent explained why they couldn’t provide financially for the children when not incarcerated. The court recognized that during the periods the parents were incarcerated they couldn’t provide for the children. See In re Adoption/Guardianship No. J970013, 128 Md. App. 242, 252 (1999) (“[I]ncarceration may indeed, under the facts of a particular case, be a critical factor in permitting the termination of parental rights, because the incarcerated parent cannot provide for the long-term care of the child.”). But the Department provided references for employment prospects and neither parent could find or maintain reliable employment. Mother and Father argue that the Department didn’t make reasonable efforts toward reunification. See FL § 5-323(d)(2)(iv). We disagree. Although “the Department must offer a reasonable level of services to assist in reunification[,] [t]hese efforts need not be perfect, but are judged on a case-by-case basis.” H.W., 460 Md. at 233–34. Despite the Department offering to take Mother to her own appointments, she didn’t complete her treatment plans, such as substance abuse treatment, opting instead to obtain a medical marijuana card. During most of the period that DSS was involved with the family, Father was incarcerated. Even still, the Department arranged virtual visits for him, and he testified to attending those very visits. Given both parents’ reluctance to follow through with the treatment plans and the State’s interest in protecting the children, the Department could not wait for the situation to change on its own. See In re Adoption/Guardianship No. 10941, 335 Md. 99, 107–11, 122 (1994) (holding that DSS need not offer reunification services to parent where parent had persistent and ongoing psychiatric problems rendering parent unfit and attempts at reunification would have been futile).
The court made several findings about the abuse and neglect of the children factor. FL § 5-323(d)(3). The court found that the parents had neglected the children medically and that the Department had provided medical support for the children throughout. The Department was concerned that Kl. had suffered a fracture and Mother had failed to follow up
with timely medical care. See FL § 5-323(d)(3)(i). Likewise, the parents failed to follow up with F.’s medical care. Mother tested positive for substances when birthing Kl., and F. was born as a SEN. See FL § 5-323(d)(3)(ii). The court highlighted that the Department had provided Mother recommendations and referrals to address her substance use disorder, and that she not undertaken any treatment. And the court did find that the parents had lost the rights to their firstborn child (a sibling to the four here) involuntarily. See FL § 5-323(d)(3)(v). Neither parent disputed this.
Finally, the court found that each child had adjusted well to their new settings and foster parents. See FL § 5-323(d)(4). Ms. Williams testified that she saw tremendous improvement in Kl. and Kt. and described the change from January 1, 2024, to the TPR hearing date, April 25, 2024, as “radical.” Ms. Shockley added that she relies on Ms. Williams at times to assist her in calming the girls and that the girls had a strong bond with her. The record also supported the court’s findings that the daughters were thriving and had “adjusted quite well” to their new environment. As to the two younger children, F. and T., the court found that F. had adjusted well to a home that is “stable and nurturing” and that T. was thriving in her new community. Ms. Sink testified that F. maintains a routine and is very familiar with his daycare provider. Both children also refer to Ms. Sink and her husband as “Mom and Dad.”
The juvenile court’s findings were not all negative. The court found, for example, that neither parent had been convicted of violence against each other or their children, despite the various reports of domestic violence between Mother and Father. See FL § 5-323(d)(iv). But in light of the record as a whole, this didn’t change the outcome. We agree that the juvenile court considered and weighed the appropriate factors, that its conclusions were supported by clear and convincing evidence, and that the evidence was sufficient to overcome the presumption in favor of maintaining parental relationships.
2. Terminating Mother and Father’s parental rights was in the children’s best interests.
Our analysis does not stop there. “Unfitness or exceptional circumstances do not, by themselves, mandate a decision to terminate parental rights.” H.W., 460 Md. at 218. “Rather, they demonstrate that the presumption favoring the parent has been overcome. The decision to terminate parental rights must always revolve around the best interests of the child.” Id. at 218–19. In this case, the juvenile court reached that decision after considering the evidence carefully and we agree with its conclusions.
Mother argues that allowing the children to be adopted by two different families is not in the children’s best interests. But Ms. Williams had been in communication with Ms. Sink and did express a willingness to facilitate meetings among the four children. This testimony was not refuted and there was no testimony that those meetings could not occur without Mother’s or Father’s involvement. The juvenile court also found that the children enjoyed “far stronger bonds with the foster families, where they are thriving.” We recognize that “[b]onding alone
cannot be a dispositive factor—the juvenile court must assess whether the continued relationship with a biological parent is detrimental to the child’s best interests.” H.W., 460 Md. at 233. And that is what the juvenile court did.
The court relied on Dr. Scott’s assessment of Mother. A sticking point was Mother’s substance abuse treatment (or lack of it). The court highlighted the doctor’s concern that Mother’s extensive abuse and lack of treatment were detrimental to the children. Now, Mother argues that the juvenile court failed to account for the fact that she has obtained a medical marijuana card and that her marijuana use is now legal. She cites In re Adoption of Rhona, 784 N.E.2d 22 (Mass. App. Ct. 2003), to argue that the court relied on stale facts, specifically Mother’s past illegal use of marijuana.
That argument is misplaced. In Rhona, the parent’s most recent drug use was four years before the court’s findings (in a Massachusetts juvenile proceeding that was the equivalent of a Maryland TPR proceeding). Id. at 26. In this case, there was no indication that Mother has stopped using marijuana or that she plans to. Quite the contrary: she informed Dr. Scott that she has no desire to quit using marijuana. She added that if her children were to find it around the house, they knew to return it to her with a lighter. And in any case, the issue, as far as the juvenile court was concerned and with which we agree, was not the legality of her marijuana use but her abuse of that or any substance. Indeed, Dr. Scott testified that Mother “[r]eceiving her medical marijuana card wouldn’t have changed [the doctor’s] opinion that [Mother] would still need substance abuse and cooccurring mental health treatment.” And Mother’s inability to demonstrate a likelihood of overcoming the substance abuse and her willingness to expose her children to drugs bears on the children’s best interests if returned to her. See In re Adoption/ Guardianship of Amber R., 417 Md. 701, 722 (2011) (“[G]iven the well-known difficulty of overcoming drug addiction and the likelihood that addiction will persist if untreated, a court can infer that a parent will continue to abuse drugs unless he or she seeks treatment.”).
We recognize that Mother has an extensive history of trauma, and the circuit court recognized and highlighted it as well. See In re Abiagail C., 138 Md. App. 570, 588 (2001) (recognizing that while mother suffered sexual and physical abuse growing up and was impregnated at thirteen years old, trial court considered her trauma properly and was still correct in finding that termination of parental rights was in child’s best interests). But Mother also failed to complete treatment programs or demonstrate an ability to provide a safe and stable environment for the children. As Dr. Scott acknowledged, Mother’s lack of insight into these shortcomings made her children all the more vulnerable. As a result, we see no error in the court’s ultimate conclusions about the children’s best interests.
As for Father, the juvenile court highlighted how his lack of participation in the treatment programs rendered him unfit. Father disagrees. He argues that at the time of the TPR hearing, he was complying with his parole conditions, actively seeking employment, working to complete parenting classes, and had identified a mental health provider. But outside of his testimony, Father provided no evidence that he had completed
any of the recommended programs, and the court found that he hadn’t. He didn’t submit a urinalysis to the Health Department or participate in substance abuse treatment. His “history of domestic violence issues, periods of incarceration, and unaddressed anger management issues” weighed against him. DSS also noted how Father instructed Kl. and Kt. to misbehave during one supervised visit, encouraging their disobedience. Such facts were not in the children’s best interests.
Father replies to the domestic violence finding that he and Mother were no longer in a relationship or living together. Yet at the TPR hearing, he testified that his relationship with Mother was “off and on.” Even though Father no longer was incarcerated, he testified that he was still unemployed (and did not provide proof that he ever was employed), offered no proof of attending any mental health and counseling intake
appointments, and is not attending any anger management class or program. Although courts can infer that a parent will continue to abuse drugs unless that parent seeks treatment, that “inference can shift to the parent the burden to produce evidence of sobriety, and if no such evidence is produced, the inference may satisfy the clear and convincing standard.” Amber R., 417 Md. at 722. And in Father’s case, he eschewed substance abuse treatment altogether and regarded it as futile.
Viewed as a whole, the record supports the juvenile court’s “concern[] about what the children would have been exposed to if they had remained with both parents and, what the parties have done to ameliorate such conditions in the future.” We see no error in the juvenile court’s analysis or conclusions and affirm the court’s decision to terminate Mother’s and Father’s parental rights.
JUDGMENT OF THE CIRCUIT COURT FOR DORCHESTER COUNTY AFFIRMED. APPELLANTS
FOOTNOTES
1 A Child In Need of Assistance is defined as:
(f) . . . a child who requires court intervention because:
(1) The child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and (2) The child’s parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and the child’s needs.
Md. Code (1974, 2020 Repl. Vol.), § 3-801(f)(1)–(2) of the Courts and Judicial Proceedings Article.
2 The parents’ first born child, Kl.B., sometimes referred to as K.L.B., is not a party to this proceeding because a circuit court in Florida terminated Mother and Father’s parental rights to Kl.B. in August 2020. Accordingly, the shorthand “Kl.” in this opinion will refer only to Kl.D.
3 A newborn is substance-exposed if that newborn: (1) displays a positive toxicology screen for a controlled drug as evidenced by any appropriate test after birth; (2) displays the effects of controlled drug use or symptoms of withdrawal resulting from prenatal controlled drug exposure as determined by medical personnel; or (3) displays the effects of a fetal alcohol spectrum disorder.
Md. Code (1999, 2019 Repl. Vol.), § 5-704.2(b)(1)–(3) of the Family Law Article (“FL”).
4 There were varying dates provided for this eviction.
5 At the TPR hearing, Ms. Moment testified that this hotel was in Ellicott City, but all other sources from the Department state that it was in Baltimore City. The juvenile court also identified this hotel as located in Baltimore City.
6 Although not stated expressly, it appears that DSS ultimately permitted joint parental visits for a time.
7 Mother frames the Question Presented as a twofold inquiry:
1. Did the court commit error in terminating Ms. B’s parental rights when she was improving with services and when
it was against the best interests of the children to do so?
2. Did the court err in terminating Ms. B’s parental relationship with her children when the department failed to make reasonable efforts towards reunification?
Father frames it as a single question:
Did the juvenile court abuse its discretion in finding that the termination of Mr. D.’s parental rights and the severing of the parent-child relationship was in the children’s best interests
where he was making significant progress towards reunification and where the Department failed to provide reasonable efforts towards reunification?
The Department states the question as:
Did the juvenile court act within its broad discretion when it found that Father and Mother were unfit to remain in a parental relationship with Kl.D., Kt.D., F.D., and T.D. and that continuing the parental relationship would be detrimental to the children’s best interests?
Kl., Kt., and T.D. ask:
Did the juvenile court properly award guardianship of Kl.D., Kt.D. and T.D. to the department after it determined that Mother and Father were unfit to parent the children considering Mother’s ongoing substance abuse, both parents’ failure to utilize mental health and substance abuse resources, their persistence in maintaining an abusive relationship with each other, and their inability to safely care of the children in the foreseeable future?
And F. phrases the question as:
Did the juvenile court correctly grant the Guardianship Petitions and terminate parental rights of both parents where the parents, despite the Department’s reasonable efforts, did not remedy the issues that led to F.D.’s neglect as an infant, including unaddressed mental health and substance abuse issues, repeated incarcerations, and housing instability?
