Maryland Family Law Update, Periodical Postage Paid USPS permit (014- 143) is mailed out monthly at Baltimore MD.
Postmaster, send address changes to:
Subscription Services PO BOX 1051 Williamsport, PA 17703-9940
To order a subscription go to: https:/thedailyrecord.com/ maryland-family-law/subscribe/ or call 877-615-9536 or by email: service@bridgetowermedia.com.
To renew. change your address or to temporarily stop service. go to: https:/thedailyrecord.com/maryland-family-law/ manage-account-fc/ or call 877-615-9536 or by email support@bridgetowermedia.com.
Maryland Family Law Update is a review of events as they a ect the practice of domestic relations in law in the state of Maryland published by e Daily Record, 200 St. Paul Place, Suite 2480, Baltimore, Maryland 21202.
Child Advocacy: The transcendent importance of a child’s welfare
When considering child custody issues in a Child In Need of Assistance (“CINA”) matters, the child’s welfare is “a consideration that is of ‘transcendent importance.’” But does the inconsistent provision of services allow the court to decide in a parent’s favor, thereby overriding the child’s best interests?
Two judicial decisions, one in Alabama and one in Maryland, have focused Maryland family law practitioners’ attention on matters related to in vitro fertilization, or IVF.
6 In the News: Court upholds order of shared possession of Pomeranian
Though her choice of words — “shared custody” — may not have been the best, a motion judge acted within her discretion when she granted specific performance of an estranged unmarried couple’s agreement to share possession of a dog equally, the Massachusetts Appeals Court has ruled.
7
Guest column: The implications of Alabama’s embryo ruling
By now you’ve heard of the landmark Alabama Supreme Court decision which held that frozen embryos may legally be considered children. Many remain wondering about the future implications of this holding and how did we get here in the first place. The story behind this case is almost as interesting as the holding itself, writes columnist Elizabeth J. McInturff.
8 Monthly Memo
U.S. marriages have rebounded to pre-pandemic levels with nearly 2.1 million in 2022. That’s a 4% increase from the year before, according to The Centers for Disease Control and Prevention, which released the data. ... After civil and divorce trials in six New Jersey counties were suspended last year amid an ongoing shortage of judges, proceedings have resumed. … A U.S. District Court judge who denied a petition under the Hague Convention on the Civil Aspects of International Child Abduction did not commit clear error by relying on evidence of events that occurred after the filing of the petition, the 1st U.S. Circuit Court of Appeals has ruled. … Michigan is ending its ban on paid surrogacy contracts — the only state with such a law — a move that will make it easier for couples to be deemed the legal parents of their children born through surrogates. … Where the record supported the U.S. Citizen and Immigration Services’ conclusion that a man’s first marriage was fraudulent, and this finding doomed his second application for lawful permanent residence because of the “marriage fraud bar,” USCIS’ denial of the man’s application was affirmed, the U.S. Court of Appeals for the 4th Circuit ruled.
The transcendent importance of a child’s welfare
When considering child custody issues in a Child In Need of Assistance (“CINA”) matters, the child’s welfare is “a consideration that is of ‘transcendent importance.’” In re Adoption/ Guardianship of C.E. (“C.E.”), 464 Md. 26, 56 (2019) (citing In re Adoption/ Guardianship No. A91–71A, 334 Md. 538, 561 (1994)).
Numerous cases involve a child removed from a parent’s care as an infant.
For example, a 6-month-old female infant whose father was unavailable, was removed from her mother due to neglect issues, and then placed in foster care which extends for many years, in some cases more than five.
During the many years that the child has been in foster care, she has been in one foster family who wishes to adopt her.
At the outset of a case, the local department of social services is mandated to offer services provided to facilitate reunification, such as a referral for housing or for parenting classes therapy, and visitation.
For various reasons, gaps may occur over the years in the provision of such services.
As a result, while the child has been in foster care for many years, the child’s parent may not have stable housing, or income, and may not have engaged in the services offered by the local department.
Does the inconsistent provision of services allow the court to decide in a parent’s favor, thereby overriding the child’s best interests?
“[T]he Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 66, (2000).
In Maryland, a parent’s interest in raising a child is so fundamental that it
JOAN F.
LITTLE
Child Advocacy
“cannot be taken away unless clearly justified.” Boswell v. Boswell, 352 Md. 204, 218 (1998) (citing In re Adoption No. 10941, 335 Md. 99, 112 (1994)).
“However, this [parental] right is not absolute.” In re Adoption/Guardianship of C.E., 464 Md. 26, 48 (2019).
In CINA cases, where the state has intervened to protect a child who has allegedly been neglected or abused, the best interest standard is incorporated in the statutory scheme and applied to every hearing. CJP §3-810 et seq.
In determining a permanency plan for the child, “‘the best interests of the child may take precedence over the parent’s liberty interest in the course of a custody, visitation, or adoption dispute.’” In re Karl H., 394 Md. 402, 416 (2006).
When it is determined that a parent cannot adequately care for a child, and efforts at reunification have failed, the state may intercede and petition for guardianship of the child pursuant to its parens patriae authority. In re Najasha B., 409 Md. 20, 33 (2009).
“The State of Maryland has a parens patriae ‘interest in caring for those, such as minors, who cannot care for themselves’ and ‘the child’s welfare is a consideration that is of transcendent importance when the child might ... be in jeopardy.’” In re Mark M., 365 Md. 687, 705–06 (2001).
Further, in guardianship cases decided pursuant to FL § 5-323, “the child’s best interest standard trumps all other considerations.” In re Adoption of Ta’Niya C.(“Ta’Niya”), 417 Md. 90, 111 (2010).
In Ta’Niya’s case, the trial court improperly elevated the mother’s circumstances over the child’s best
interests finding that there were no exceptional circumstances that warranted freeing Ta’Niya for adoption. Ta’Niya at 114.
Similarly, in C.E.’s case, the trial court gave greater weight to the father’s attachment to C.E. than to the evidence concerning C.E.’s circumstances.
In both cases, the trial court’s decision was based on its assessment as to whether exceptional circumstances existed that would make the continued relationship detrimental to the child’s best interest. In re Adoption/ Guardianship of Rashawn H., 402 Md. 477, 501 (2007).
Maryland’s Supreme Court remanded each case for the trial court to apply the correct standard to its exceptional circumstances analysis.
The significance of the child’s best interest standard cannot be overstated in CINA and guardianship cases. It requires the trial court to assess the evidence presented through the lens of the child.
In making this assessment, the court should consider facts pertaining to the child’s circumstances - how long the child lived with a parent, the child’s special needs and the parent’s ability to address those needs as well as the parent’s own needs, the length of time the child has been in foster care, and the foster family’s level of commitment to the child.
If the parent does not receive the necessary services, the parent has multiple opportunities to address such issues with the local department and the court at the many required court hearings that occur prior to a guardianship proceeding.
In cases where the parent fails to receive those services, for whatever reason, the child’s right to a stable and supportive permanent home should prevail.
Joan F. Little is a chief attorney at Maryland Legal Aid.
“I see cross-state boundary issues as something family law practitioners need to keep their eye on,” says Eva Juncker, a partner at Cipriani & Werner’s Washington-area office and co-chair of its DMV Family Law practice group.
Alabama, Maryland decisions focus practitioners’ attention on IVF
B y H ope K eller
Special to The Daily Record
Two judicial decisions, one in Alabama and one in Maryland, have focused Maryland family law practitioners’ attention on matters related to in vitro fertilization, or IVF.
The Alabama Supreme Court last month ruled that frozen embryos are children with legal rights. In Maryland, the Appellate Court in September elevated an unreported opinion to a reported opinion in a
case involving a dispute over the disposition of a stored embryo.
While attorneys say they do not foresee Maryland going the way of Alabama, they do see potential issues arising from so-called “personhood” laws in other states.
“I don’t see any of us in family law in Maryland preparing for a change in the definition of ‘minor child’ or a chilling effect on IVF in Maryland,” said Eva Juncker,
a partner at Cipriani & Werner’s Washington-area office and cochair of its DMV Family Law practice group. “The issue is more: What do we do if somebody has a custody order dealing with cryopreserved embryos? I see cross-state boundary issues as something family law practitioners need to keep their eye on.”
In Maryland, laws dealing with custody, visitation and child sup -
SUBMITTED PHOTO
port come into effect only once a child is born.
Continued Juncker: “We’ve got the full faith and credit provisions, where sister states are to honor the orders from another jurisdiction,” Juncker said. “But what happens if it’s an order from another jurisdiction that is against the public policy of the state that somebody’s coming into?”
Unless all 50 states pass laws allowing IVF to proceed without interference, Juncker said disputes between states are likely.
“Family law so rarely goes in a federal context, but one of the ways it goes into a federal context is when you have states that aren’t honoring one another’s orders,” she said.
Juncker outlined a hypothetical scenario in which a Maryland couple goes to an Alabama fertility clinic – because a specialist there deals with their particular fertility issue – and a dispute arises over which state’s laws apply to their frozen embryos.
“If that can’t be decided, does that then jump to a federal court?” she asked. “And obviously once you jump to a federal court, things have the potential to go to the (U.S.) Supreme Court.”
Joanne Rosen, a practice professor at Johns Hopkins University’s Bloomberg School of Public Health and co-director of the school’s Center for Law and the Public’s Health, worried about such a course.
“I think it would be risky to try to find a path that would allow you to have the question addressed by the Supreme Court, at least as the court is currently constituted,” Rosen said.
Family law practitioners say they have been hearing from clients who are worried about personhood laws elsewhere in the nation. Nineteen states consider fetuses to be people at some point during pregnancy.
“Clients who are about to freeze
SUBMITTED PHOTO
Family law practitioner David Diggs says a recent Maryland Appellate Court decision provides attorneys with “pretty firm guidelines” about how to handle cases involving embryos.
their embryos (are asking), ‘Tell us, do you think in light of what happened in Alabama should we be concerned?’” said Sogand Zamani, of Zamani & Associates in Washington, D.C.
Zamani said she asks these clients whether they anticipate moving – and, if so, where.
“I can only advise you as to Maryland and D.C. law, and if you store your embryos somewhere else, our choice of law can only go so far,” said Zamani, who added that people often store frozen embryos in western states, where many centers for cryopreserved genetic material are located.
Zamani said clients also have been asking her about a Maryland case, Jocelyn P. v. Joshua P., which involved a dispute between a former husband and wife who had created a frozen embryo. The former husband wanted the embryo destroyed, while his ex-wife wanted to use it to try to have a baby.
The Maryland Appellate Court in June overturned the trial court’s decision and awarded the embryo to the former wife, finding that a previous oral agreement between
SUBMITTED PHOTO
Maryland’s Jocelyn P. v. Joshua P. ruling allows parties facing the same or a similar situation to rely on the opinion, says Shannon Boisseau, of Levin Gann in Towson, co-counsel for one of the parties in that case.
the progenitors to give any frozen embryo a chance at life “no matter what” was binding. The Maryland Supreme Court in September declined to hear an appeal by the former husband. That month the court also elevated the previously unreported opinion to a reported opinion.
In so doing, the court allowed parties facing the same or a similar situation to rely on the opinion, said Shannon Boisseau, of Levin Gann in Towson, co-counsel for the former wife.
“They can use the principles of contract interpretation and how they were referenced in this opinion to support their position going forward,” Boisseau said.
David Diggs, of The Law Office of David V. Diggs in Millersville, said the Jocelyn P. v. Joshua P. case provided attorneys with “pretty firm guidelines” about how to handle cases involving embryos but noted that the issue remained complicated: “It’s quite a can of worms.”
In
Court upholds order of shared possession of Pomeranian
By Kris olson BridgeTower Media
Though her choice of words — “shared custody” — may not have been the best, a motion judge acted within her discretion when she granted specific performance of an estranged unmarried couple’s agreement to share possession of a dog equally, the Massachusetts Appeals Court has ruled.
The March 7 decision in Lyman v. Lanser advances the law’s recognition of pets as unique forms of property, says the plaintiff’s attorney, Jeremy M. Cohen of Swampscott, Massachusetts.
“What’s being accepted is that lost time with a pet is irreparable harm,” says Cohen, who in 2016 founded his firm, Boston Dog Lawyers, to specialize in representing owners of dogs and other companion animals. “When I first started, there was a lot of doubt in judges’ minds. Now, that’s sort of an automatic.”
When the plaintiff and defendant in Lyman met in 2016, the plaintiff was sharing possession of a Pomeranian that he had co-owned with a previous romantic partner. Finding it hard to have that dog only part time, the plaintiff and defendant decided to buy and share their own Pomeranian, whom they named Teddy Bear Lanser-Lyman.
The plaintiff, Brett Lyman, and defendant, Sasha Lanser, agreed that if they ever split up, they would share the dog equally.
After three years, the couple broke up. When Lanser moved out of their home, she and Lyman texted each other to establish a “predictable routine” for Teddy Bear. Through the end of 2021, they shared Teddy Bear amicably, exchanging possession of him approximately every week.
In January 2022, Lanser moved to a new apartment, and the parties agreed to temporarily suspend the sharing arrangement to allow Teddy Bear to acclimate to his new environment.
But then in March, Lanser cut off all communication with him, according to Lyman.
The plaintiff filed suit in Middlesex Superior Court, asserting claims for
conversion and breach of contract. He said he didn’t want any damages, just enforcement of his ex-girlfriend’s promise to share possession of Teddy Bear.
The two judges who reviewed it — Superior Court Judge Shannon Frison and Appeals Court Judge Marguerite T. Grant, sitting as a single justice — took diametrically opposed views of the request.
Frison granted a preliminary injunction, ordering that the plaintiff and defendant should each be allowed to have Teddy Bear for alternating two-week periods.
But Grant concluded that Frison had abused her discretion by “effectively treat[ing] the dog… as if it were the parties’ child.”
The Appeals Court has now sided with Frison, noting that tenants in common are free to make binding agreements governing their respective rights in personal property, including “their rights vis-a-vis each other to possess and use their property.”
“The argument is, just because your relationship with each other takes a different form doesn’t mean that your relationship with the pet should,” Cohen says.
Agreements regarding personal property ownership may be specifically enforced, even if not in writing and even if lacking in detail, Judge Peter W. Sacks notes on
behalf of the Appeals Court panel.
Since the agreement could be performed within a year, the Statute of Frauds also did not apply, Sacks adds.
One of the propositions for which the Appeals Court’s 2014 decision in Irwin v. Degtiarov stands is that “although a domestic animal is property, its market value does not always fairly measure its value to its owner.”
In a footnote, the court adds that the state legislature has also “recognized the special place that domestic animals may occupy in a household,” accounting for the possession, care and control of pets with language in §11(a) of G.L.c. 209A, the statute authorizing abuse prevention orders.
Cohen says that as this issue has arisen in his cases, he has strived to find a better word than “custody,” settling on “possessory rights.”
“It was important that [Sacks] pointed out that this idea of child custody in the single justice’s order didn’t come from us,” Cohen says. “We never once equated a pet to a child.”
Its decision does not alter the status of pets in divorce proceedings, the panel stressed.
Kris Olson is a reporter for Massachusetts Lawyers Weekly.
Teddy Bear, the Pomeranian at the center of ‘Lyman v. Lanser.’
The implications of Alabama’s embryo ruling
By now you’ve heard of the landmark Alabama Supreme Court decision which held that frozen embryos may legally be considered children. But many remain wondering about the future implications of this holding and how did we get here in the first place.
The story behind this case is almost as interesting as the holding itself, involving possibly lax security measures and an unsupervised patient wandering hospital hallways during the height of the pandemic.
The plaintiffs in this matter are three different couples each of whom underwent in vitro fertilization at an Alabama fertility clinic. Through the use of IVF, all of the couples had multiple embryos created to facilitate pregnancy. Each couple then had some of their embryos implanted and all of the couples successfully became pregnant and had children.
Each of the plaintiffs then contracted with the fertility center to keep the remaining embryos maintained in the center’s “cryogenic nursery,” located in a hospital. The cryogenic nursery is designed to keep the embryos viable by preserving them in low temperatures so that the couples, if they so desired, could implant the embryos later without having to go through the IVF cycles again.
In December 2020, an unattended patient at the hospital was able to wander the hallways. The patient discovered an unsecure door into the cryogenic nursery and the tanks in which the embryos were kept.
The patient opened the tanks and removed several embryos. However, as the tanks were maintained at subfreezing temperatures, the patient burned his hand and dropped the embryos. The embryos hit the ground and were destroyed.
The plaintiffs each sued the fertility clinic and the hospital under similar and differing theories, although these cases were later combined. Each case, however, contained a claim under Alabama’s “Wrongful Death of a Minor Act.”
The act permits a parent or the minor’s
personal representative to institute an action against a party who caused the death of the minor by a “wrongful act, omission, or negligence.”
The act itself dates to the 1800s, before IVF existed. Later Alabama case law extended the act to a fetus developing in utero, thereby permitting a party to bring a claim on behalf of a developing fetus in utero if that fetus dies because of a wrongful act, omission, or negligent action.
The fertility clinic and the hospital filed joint dispositive motions in each of the cases. The motions sought to dismiss the cases on the argument that in vitro embryos did not meet the definitive standard of a person or a child.
The trial court agreed and dismissed those claims brought under Alabama’s Wrongful Death of a Minor Act, holding that the embryos do not fit the definition of either a person or child. It also dismissed plaintiff’s claims of negligence and wantonness. The only remaining claims were predicated on theories of breach of contract and bailment.
On appeal, the Alabama Supreme Court overturned the trial court’s dismissals, holding that it was “black-letter law” that “the Wrongful Death of a Minor Act applies to all unborn children,” including “extrauterine children – that is, unburn children who are located outside of a biological uterus at the time they are killed.”
Notwithstanding that IVF was not in existence at the time that Alabama’s Wrongful Death of a Minor Act was created, the court found that at the time children were considered to be any “immediate progeny of parents” and that unborn children were described as “infants” and “children.”
This ruling and its implications were immediately felt even far outside Alabama’s borders. Almost immediately, some of Alabama’s largest IVF clinics announced that they were shuttering because of the ruling. This effectively halted IVF in Alabama.
Facing increasing pressure, Alabama’s governor signed in stop gap legislation to protect IVF clinics and doctors from certain legal liability. While the legislation has restarted IVF treatment in Alabama, it does not, however address the legal status of embryos and whether an embryo can and should be treated as a child under the eyes of the law.
This ruling has also raised legal and practical questions in family law cases. Typically, embryos were treated as property and/or their status was determined under contract law.
Now, if embryos are treated as children, are courts required to undergo a best interest analysis in determining whether and to which party they should be awarded? Should a best interest attorney be appointed to represent the embryos? Do parental obligations, including a duty to support, attach to the embryos at their creation?
It’s a foregone conclusion, particularly in light of the Dobbs ruling overturning abortion rights, that similar cases will be brought or challenged in other jurisdictions. The implications of these cases will undoubtedly shape the trajectory of family law and how within that arena we treat IVF.
Elizabeth J. McInturff, Esq., a partner at JDKatz, PC, represents clients throughout Maryland and Washington D.C. in complex family, civil and commercial disputes.For more information, visit www.jdkatz.com.
Elizabeth J. McInturff
Monthly Memo
Marriages in the US are back to pre-pandemic levels, CDC says
U.S. marriages have rebounded to pre-pandemic levels with nearly 2.1 million in 2022.
That’s a 4% increase from the year before. The Centers for Disease Control and Prevention released the data earlier this month but has not released marriage data for last year.
In 2020, the first year of the COVID19 pandemic, there were 1.7 million U.S. weddings — the lowest number recorded since 1963. The pandemic threw many marriage plans into disarray, with communities ordering people to stay at home and banning large gatherings to limit the spread of COVID-19.
Marriages then rose in 2021, but not to pre-pandemic levels. They ticked up again in 2022 and surpassed 2019 marriage statistics by a small margin.
New York, the District of Columbia and Hawaii saw the largest increases in marriages from 2021 to 2022. Nevada — home to Las Vegas’ famous wedding chapels — continued to have the highest marriage rate in the nation, though it slightly decreased from 2021.
Acording to data that goes back to 1900, weddings hit their height in 1946, when the marriage rate was 16.4 per 1,000 people. The rate was above 10 in the early 1980s before beginning a decades-long decline. In 2022, the marriage rate was 6.2 per 1,000 population.
Associated Press
Civil, matrimonial trials resume in 3 NJ counties
After civil and divorce trials in six New Jersey counties were suspended last year amid an ongoing shortage of judges, proceedings have resumed. In both impacted vicinages, progress has since been made to restore the bench.
According to New Jersey Supreme Court Chief Justice Stuart Rabner, recent judicial appointments allowed him to lift the moratorium in Vicinage 13 (Hunterdon, Somerset and Warren counties), as of March 4.
The order comes nearly nine months after Rabner removed the trial suspension in Vicinage 15 (Cumberland, Gloucester and Salem counties) following a reduction in the number of
vacant trial court judgeships.
After spending over three years with an average of more than 60 judicial vacancies, the state reduced the number of empty seats down to 47.
Rabner has said he believes the judiciary can operate sustainably if vacancies are between 25 and 30. Otherwise, the state could see more trial suspensions and further delays to existing criminal and civil proceedings.
BridgeTower Media
Post-petition evidence deemed relevant in custody dispute
A U.S. District Court judge who denied a petition under the Hague Convention on the Civil Aspects of International Child Abduction did not commit clear error by relying on evidence of events that occurred after the filing of the petition, the 1st U.S. Circuit Court of Appeals has ruled.
Following a 2019 divorce in Brazil, the respondent mother, Jessica Camila Albefaro de Lima, moved to Martha’s Vineyard with her child. The child’s father, Heitor Ferreira da Costa, later filed a Hague Convention petition for the return of the child.
Judge Allison D. Burroughs denied the petition, finding that the mother had shown that the “now settled” defense applied.
“At the outset, da Costa asserts that relying solely on evidence that postdates the petition’s filing — as the district court purportedly did here — does not align with the reasoning behind the now settled defense,” Judge Bruce M. Selya wrote for a 1st Circuit panel.
The 21-page decision is Da Costa v. De Lima.
BridgeTower Media
Michigan will become the last state to decriminalize surrogacy contracts
Michigan is ending its ban on paid surrogacy contracts — the only state with such a law — a move that will make it easier for couples to be deemed the legal parents of their children born through surrogates.
State lawmakers voted earlier this month to make the change, and Gov. Gretchen Whitmer says she will sign the bill into law.
Michigan is currently the only state in
the nation where surrogacy contracts are criminally banned, according to the governor’s office. A 1988 law passed by Republicans makes it a misdemeanor or felony charge to take part in a compensated surrogacy contract.
An agreement reached between a woman who acts as a surrogate and then hands over parental rights to the child is “void and unenforceable,” under the current law. That means the intended parents must go through a judge or the adoption process to gain custody.
Parents who testified in favor of changing that law say they spent months — sometimes years — trying to adopt their child born through a surrogate.
Where the record supported the U.S. Citizen and Immigration Services’ conclusion that a man’s first marriage was fraudulent, and this finding doomed his second application for lawful permanent residence because of the “marriage fraud bar,” USCIS’ denial of the man’s application was affirmed, the U.S. Court of Appeals for the 4th Circuit ruled.
The appeal concerned the second of two Form I-130 petitions filed on behalf of Robert Mestanek, a native and citizen of the Czech Republic. Both petitions sought to establish that he was the bona fide spouse of a U.S. citizen and thus eligible for lawful permanent residence in the United States.
The first petition was filed by Robert’s then-wife Angel Simmons in August 2013, and the second by Robert’s current wife, Mary Mestanek, in December 2015. UCIS denied both petitions—the first because it found that Robert’s marriage to Angel was fraudulent, and the second based on the “marriage fraud bar,” which prohibits the approval of Form I-130 petitions on behalf of any noncitizen who has previously been found to have entered into a fraudulent marriage in order to circumvent immigration laws.
Robert and Mary filed suit in federal district court seeking judicial review of USCIS’s denial of Mary’s Form I-130 petition. The district court granted summary judgment in favor of USCIS. The case is Mestanek v. Jaddou, Case No. 22-2285. BridgeTower Media
Family Law Digest
Use the topic and case indexes at the back of this issue to find the full-text opinions that are of most interest to you.
IN THE COURT OF SPECIAL APPEALS: FULL TEXT UNREPORTED OPINIONS
The Appellate Court vacated the Anne Arundel County Circuit Court’s refusal to consider a motion to alter/amend a judgment on the basis that it was untimely. Because the deadline fell on a weekend, and the following Monday was a court holiday, when the motion was filed the next day (Tuesday), it was timely.
The Appellate Court vacated the Montgomery County Circuit Court’s award of $168,000 in retroactive child support and $54,411.80 in attorney’s fees and costs. The child support calculation contained mathematical errors and utilized an improper methodology.
The Appellate Court affirmed the Washington County Circuit Court’s modification of an earlier order that registered a South Carolina custody order. On the date the modification proceeding was commenced, both parents and the minor child had lived in Maryland for more than six months, which gave the circuit court jurisdiction to modify the foreign custody order under the Maryland Uniform Child Custody Jurisdiction and Enforcement Act.
CINA; TERMINATION; PARENTAL RIGHTS
In re: S.B., P.B., C.B., B.B
No. 131, September Term 2023; No. 1171, September Term 2022
The Appellate Court affirmed the Howard County Circuit Court’s judgment, sitting as a juvenile court, granting the petitions of the Howard County Department of Social Services to terminate father’s parental rights in relation to his natural children, who had previously been adjudicated as children in need of assistance.
The Appellate Court affirmed the Howard County Circuit Court’s finding that grandmother failed to establish that she had standing as de facto parent to request sole physical and legal custody of the minor grandchild.
The Appellate Court affirmed the Calvert County Circuit Court’s County constructive civil contempt finding against the mother, for denying father visitation with their three children unjustifiably. The purge provision was specific and achievable.
The Appellate Court vacated the Anne Arundel County Circuit Court’s adoption of the father’s proposed order following the parents’ agreement at a pretrial settlement conference. Several provisions of the father’s proposed order failed to accurately reflect the agreement of the parties on the record.
The Appellate Court affirmed the Howard County Circuit Court’s judgment, sitting as the juvenile court, altering the permanency plans of three children, all of whom had been previously declared children in need of assistance, from reunification with the parents to adoption by a relative. There was ample evidence presented at the various exceptions hearings to support the juvenile court’s decision.
The Appellate Court vacated the Baltimore City Circuit Court’s termination of the mother’s parental rights of her youngest child. The juvenile court failed to make adequate factual findings, made erroneous factual findings and failed to sufficiently explain how it weighed the evidence to conclude that unfitness or exceptional circumstances exist sufficient to rebut the presumption favoring the parental relationship..
The Appellate Court vacated the Montgomery County Circuit Court’s award of a survivor’s annuity to wife, and its order that husband remain responsible for a $45,000 home improvement loan. The trial court did not make sufficient findings of fact.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Anne Arundel County Circuit Court’s refusal to consider a motion to alter/amend a judgment on the basis that it was untimely. Because the deadline fell on a weekend, and the following Monday was a court holiday, when the motion was filed the next day (Tuesday), it was timely.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
On August 9, 2021, the circuit court entered a custody order, incorporating the parties “Parental Agreement” (the “Agreement”). The Agreement provided that Mother would have primary physical and sole legal custody. Father was to have visitation in Mother’s home every Saturday from 8:30 a.m. to 2:00 p.m., and every other Friday and Sunday from 8:30 a.m. to 2:00 p.m., plus certain seasonal holidays. The Agreement further provided for overnight stays after six months, if Father acquired his own apartment and he provided Mother the opportunity to view the apartment, and the names of and the opportunity to meet his roommates. The Agreement also required Father to pay $1,000 a month in child support and an additional $200 a month toward arrearages until $3,000 has been paid.
The circuit court for Anne Arundel County entered a judgment granting Amaka Ndubueze (“Mother”) and Johnbosco Alaenyi (“Father”) an absolute divorce. The court further granted Mother primary physical custody of the parties’ minor child, with the parties to have joint legal custody of the child with tie-breaking authority to Mother and set forth the terms of Father’s visitation with child. Mother presents the following three issues on appeal, which we have rephrased for clarity:1
I. Whether the circuit court erred when it denied Mother’s motion to alter/amend the judgment because it was untimely filed.
II. Whether the circuit court erred in granting Father visitation with child without allowing Mother to know the location of the visits.
III. Whether the circuit court erred in denying Mother’s request for attorney fees because of discovery violations by Father.
For the reasons that follow, we shall reverse and remand for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father married in 2018, and a daughter was born to them the following year. On November 12, 2020, Mother filed a complaint seeking primary physical and sole legal custody of their daughter and child support. Father responded by filing an answer and a counterclaim for joint, physical and legal custody.
Mother subsequently filed a petition for contempt, alleging Father failed to comply with the visitation order as he is “[a]lways late or no show,” and he failed to disclose his military service and military income before and during trial. Father filed a petition for contempt, alleging Mother denied him visitation. The court denied both contempt petitions.2
Father filed a complaint for absolute divorce and sought modification of the Agreement. Mother subsequently filed a motion to modify visitation and child support. During litigation, the parties entered into a consent order to waive the division of marital property and alimony. Both parties filed motions to compel discovery.
A hearing was held on May 2, 2023, at which both parties, who were represented by counsel, testified. On May 17, 2023, the circuit court entered a written judgment of absolute divorce. The court awarded Mother primary physical custody and joint legal custody, with tie-breaking authority to Mother. Father was granted visitation every other weekend from Friday afternoon to Monday morning, and during stated seasonal breaks and holidays. Father was to pay Mother $1,188 in child support. The court denied Mother’s request for attorney fees.
On the same day the court entered its judgment, Mother filed a notice of appeal. Mother subsequently filed a motion to alter/amend the judgment, which the trial court denied as untimely filed, which is the subject of this appeal.
DISCUSSION I.
Mother argues that the circuit court erred in denying her motion to alter/amend the judgment because, contrary to the circuit court’s ruling, it was timely. Father responds that the circuit court properly denied Mother’s motion to alter/ amend the judgment because she filed her notice of appeal
before she filed her motion to alter/amend, and therefore, the circuit court no longer had jurisdiction to hear her motion. We agree with Mother. We, therefore, reverse the court’s ruling and remand for consideration of her motion to alter/amend. We explain.
The circuit court entered a final divorce judgment on May 17, 2023. Mother filed a motion to alter/amend on May 28, 2023. Pursuant to Md. Rule 2-534, “on motion of any party filed within ten days after entry of judgment,” the court may amend its findings and judgment. Here, the tenth calendar day -- May 27 -- was a Saturday and the next weekday was Monday, May 29, which was Memorial Day, a Court holiday. Therefore, the ten-day deadline fell on the next business day, which was May 30, 2023. Accordingly, the motion to alter/amend was timely filed. See Md. Rule 1-203(a)(1) (if the period of time prescribed is more than seven days, weekends and holidays are counted, except where the last day falls on a weekend or holiday, and then the last day is the next business day). The circuit court, however, denied her motion as untimely, stating that it was “docketed 26 days after judgment was entered[.]” The court erred in finding that the motion was untimely.
Father’s argument is without merit. The fact that Mother filed her notice of appeal before her motion to alter/amend judgment does not affect the jurisdiction of the circuit court. Indeed, this is because of the “savings clause” contained in Md. Rule 8-202(c), which provides that: “If a notice of appeal is filed and thereafter a party files a timely motion pursuant to Rule . . . 2-534 . . . , the notice of appeal shall be treated as filed on the same day as, but after, the entry of a notice withdrawing the motion or an order disposing of it.” As a result, the circuit court had jurisdiction to decide Mother’s motion to alter/amend the judgment.3
Accordingly, we shall reverse the circuit court’s order denying Mother’s motion to alter/amend judgment and remand for the circuit court to consider her motion. Following its decision on Mother’s motion to alter/amend, the circuit court shall transmit its decision to this Court. We shall retain jurisdiction to decide the remainder of the issues presented in this appeal following the circuit court’s decision on remand. Accordingly, we stay this appeal pending the circuit court’s decision. We hold the assessment of costs in abeyance until after our opinion following the circuit court’s decision on remand.
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY DENYING MOTION TO ALTER/AMEND JUDGMENT REVERSED. CASE REMANDED TO THE CIRCUIT COURT TO CONSIDER APPELLANT’S MOTION TO ALTER/AMEND JUDGMENT. APPEAL STAYED. ASSESSMENT OF COSTS HELD IN ABEYANCE.
FOOTNOTES
1 In her informal brief, Mother phrased her issues on appeal as:
Issue 1. Denial of motion to amend or alter judg[]ment and new trial request based on new evidences and other reliefs stated in the motion filed 5/28/2023. Or denials of motions with impactful evidence.
Issue 2. Courts denial of the parental rights and requests.Issue 3. The denial of attorney fees for discovery and other related causes.
2 Mother later filed a motion for contempt, which the court declined to hear, and an amended petition for contempt, which she voluntarily dismissed.
3 Although it does not affect our decision, for clarity we shall point out that Father incorrectly states in his appellate brief that Mother also filed a motion to alter/amend on July 28, 2023. On that date, Mother filed a motion asking the court to respond to her earlier motion to alter/amend. She did not file a motion to alter/amend.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Montgomery County Circuit Court’s award of $168,000 in retroactive child support and $54,411.80 in attorney’s fees and costs. The child support calculation contained mathematical errors and utilized an improper methodology.
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.
methodology, we shall vacate both the child support and attorney’s fees awards and remand to the circuit court for further proceedings.
BACKGROUND
In 2010, the parties reached a custody agreement granting Mother physical custody of C.C. In 2014, the circuit court modified the custody order, granting Father primary physical custody of the child.2
Appellant Alan Cornfield (“Father”) and appellee Elizabeth Feria (“Mother”) are the parents of C.C., born in August 2002. The Circuit Court for Montgomery County granted Father primary physical custody of C.C. in September 2014. In May 2019, C.C. began living with Mother, and in June 2019 the parties agreed that Mother would have pendente lite primary custody of C.C. A multi-day trial was held in January and February 2020 concerning custody, child support, and attorney’s fees. The final day of trial was scheduled to be held in March 2020, but was postponed until September 2020 due to COVID-19. Because C.C. turned 18 in August 2020, the only remaining issues at that time were retroactive child support and attorney’s fees. The court issued an order on January 12, 2022, awarding Mother retroactive child support and attorney’s fees. Father appealed that order, and a panel of this Court vacated and remanded the judgment for reconsideration because the circuit court based its award on a document that was not admitted into evidence. Cornfield v. Feria, No. 1958, Sept. Term 2021 (filed Sept. 15, 2022).
On remand, the court issued an amended order, awarding Mother a total of $168,000 in retroactive child support and $54,411.80 in attorney’s fees and costs.1 Father again appeals and presents the following questions for our consideration:
I. Did the [c]ircuit [c]ourt abuse its discretion in making its child support award?
II. Did the [c]ircuit [c]ourt abuse its discretion in making its award of attorneys’ fees?
Because we hold that the circuit court’s child support calculation contained mathematical errors and an improper
In May 2019, C.C. ran away from Father’s house and moved in with Mother. Father filed emergency motions to enforce the 2014 custody order and to have Mother found in contempt. Mother opposed Father’s motions and filed her own motion to modify the custody order, in which she also requested child support. On May 31, 2019, the circuit court granted Father’s emergency motions and ordered that C.C. be returned to Father’s custody. On June 28, 2019, the parties entered into a consent agreement providing that C.C. would reside with Mother pending a merits hearing on Mother’s motion to modify.
On September 17, 2019, Mother filed an emergency motion requesting child support dating back to May 2019. She attached to this motion a financial statement dated September 16, 2019. That financial statement indicated that Mother had a monthly income of $4,855, and total monthly expenses of $11,869, including $8,841.50 in expenses for
C.C. Mother’s net worth according to her financial statement was $277,137.75, with real estate comprising the majority of her assets.
Father filed a financial statement on January 8, 2020, reflecting a monthly income of $45,280 and total monthly expenses of $12,276. The financial statement indicated that Father had a net worth of $10,864,000, primarily in “Stocks/ Investments.”
Trial commenced on January 13, 2020. The first two days of trial consisted of evidence relating to custody, a matter not relevant to this appeal. On January 15, 2020, Mother filed an amended financial statement, reflecting a monthly income of $5,108 and total monthly expenses of $15,772. Because the amended financial statement was filed after trial began, the court granted Father’s motion to exclude it, leaving the September 2019 financial statement as the only one in evidence for Mother.
On the third day of trial, Father testified concerning his finances. He stated that his financial statement was “close to being accurate,” but was “based on old information.” His financial statement reflected that he was spending $4,848 per
month on expenses for C.C., but he admitted on cross examination that he did not have any expenses related to C.C. at the time of trial, aside from health insurance.
Mother testified that her financial statement was accurate as of September 2019, but that she had incurred additional expenses since that time. Specifically, Mother testified that she spent “around $2,000” on new hockey gear for C.C. after Father refused to return C.C.’s old hockey gear.3 She also spent $3,200 on security for C.C. during his hockey games and wrestling matches to ensure that Father complied with C.C.’s wishes regarding communication with Father.4 Additionally, Mother testified that she had spent large sums of money since September 2019 on various services to help C.C. get into college. These expenses included $6,500 for tutoring, $8,290 for ACT courses, and $4,500 for “college prep.” Mother stated that she hoped to send C.C. to a $7,000 summer camp that would help “prepare him for life at college.” During the fourth day of trial on February 24, 2020, Mother testified that she was considering buying C.C. a car, “depending on where he’s [going to] college,” and that she anticipated a car payment of $250 per month.
As mentioned above, the final day of trial was postponed until September 2020 due to COVID-19. In the interim, C.C. turned 18 and began attending college. Thus, as of September 2020, custody and ongoing child support were no longer at issue. The only remaining issues relevant to this appeal were Father’s obligation for retroactive child support from June 2019 to August 2020 and Mother’s attorney’s fees. Mother’s attorney filed multiple affidavits throughout the course of the trial, indicating the total amount for legal services and costs. The final affidavit reflected a total of “$50,586.45 for services and $3,825.35 for costs.”
The court entered an order on January 12, 2022, finding that Mother’s monthly income was $5,108 and her monthly expenses were $15,772. The court stated that these findings were based on Mother’s January 2020 financial statement, a document that was not admitted into evidence. Father appealed that order, and a panel of this Court vacated and remanded for further findings because of the court’s reliance on Mother’s unadmitted January 2020 financial statement. Cornfield v. Feria, No. 1958, Sept. Term 2021 (filed Sept. 15, 2022).
The circuit court entered its amended order on February 10, 2023. In that order, the court made the following findings relevant to this appeal:
[Mother’s] financial statement dated September 6, 2019, [sic] reflects her monthly net income from wages as $4,258 and other income as $597 for a total of $4,855. Her monthly expenses are listed as $11,869. She gave sworn testimony which this court credits that she also has spent $2,000 ($166/mo.) on hockey gear, $3,200 ($266/mo.) for security for the minor child, $6,500 ($541/mo.) for college preparation, and will need $250 per month to provide a car for the minor child to drive. The [c]ourt finds the total of her reasonable and necessary monthly expenses to be $13,292. In contrast, [Father’s] financial statement . . . reflects that his monthly net income is $45,280.00, and his total expenses amount to $12,276.00. Given the
long history in this case of [Father] refusing [to] pay child support until ordered by the [c]ourt to do so, this [c]ourt finds ample justification and in fact necessity for bringing this action for the enforcement of the prior child support Order. Given the history of high conflict in this case, this [c]ourt also finds justification for the need of a Court Appointed Child Advocate (CACA). The [c]ourt also finds as fair, reasonable and necessary the attorney fees requested by [Mother’s] counsel and the CACA. It is evident that [Mother] is unable to pay for these necessary legal fees and that [Father] is more than capable of paying the just amount for child support and attorney’s fees. The court awarded Mother $168,000 in retroactive child support, representing $12,000 per month for 14 months. The court also awarded Mother’s counsel “attorney’s fees in the amount of $50,586.45 for services and $3,825.35 for costs[.]” Additionally, the court ordered Father to pay 90% and Mother to pay 10% of the Court Appointed Child Advocate’s fees. Father filed this timely appeal from the amended order.
DISCUSSION
I. CHILD SUPPORT CALCULATION
Father first argues that the court erred in its calculation of child support. He avers that the court erred in two ways: (1) the court included Mother’s personal expenses in its determination of C.C.’s needs; and (2) the court’s determination of C.C.’s needs erroneously included the duplication of certain expenses and the inclusion of the $250 per month car expense for the entire 14 months of retroactive support.
Mother does not directly respond to Father’s arguments, but instead argues that Father failed to disclose financial information in discovery, and that, because this is an “above-guidelines” case, we should defer to the trial court’s discretion in establishing a child support award.
In cases where the sum of the parties’ monthly income exceeds $30,000, the circuit court is given great discretion in determining an appropriate child support award. Ruiz v. Kinoshita, 239 Md. App. 395, 425 (2018); Md. Code (1984, Repl. Vol. 2019), § 12-204(d) of the Family Law Article (“FL”). In an above-guidelines case, “‘[t]he trial court need not use a strict extrapolation method to determine support[,]’ but ‘may employ any rational method that promotes the general objectives of the child support Guidelines and considers the particular facts of the case before it.’” Id. (second alteration in original) (quoting Malin v. Mininberg, 153 Md. App. 358, 410 (2003)). “The conceptual underpinning of [the Income Shares] model is that a child should receive the same proportion of parental income, and thereby enjoy the standard of living, he or she would have experienced had the child’s parents remained together.” Kaplan v. Kaplan, 248 Md. App. 358, 386–87 (2020) (emphasis removed) (quoting Voishan v. Palma, 327 Md. 318, 322 (1992)). “[W]e will not disturb a ‘trial court’s discretionary determination as to an appropriate award of child support absent legal error or abuse of discretion.’” Id. at 385 (quoting Ruiz, 239 Md. App. at 425). “As long as the trial court’s findings of fact are not clearly erroneous and the ultimate decision is not arbitrary, we will affirm it,
even if we may have reached a different result.” Id. (quoting Malin, 153 Md. App. at 415).
Although not addressed by either party, we initially note that the court’s child support calculation contains an internal mathematical error. The court found that Mother’s total monthly expenses were $13,292. The court arrived at this number by adding several expenses Mother discussed in her testimony ($166 per month for hockey gear, $266 per month for security, $541 per month for college preparation, and $250 per month for car payments) to the monthly expenses listed in her September 2019 financial statement ($11,869). However, the sum of these amounts is $13,092, exactly $200 less than the court’s actual finding. Whether the error was mathematical or typographical, this additional $200 is not accounted for in the court’s written findings. The court then ordered Father to pay $12,000 per month in child support, which is 90.3% of $13,292. Because the court ordered that Father pay 90% of the child advocate’s fees as well, it appears that the court may have used the 90:10 income ratio to determine child support, and then rounded to the nearest multiple of 100. However, while 90% of $13,292 is $11,962.80, 90% of $13,092 is only $11,782.80. Had the court used $13,092 instead of $13,292, we surmise that the court may have rounded up to $11,800 rather than the $12,000 amount it landed upon. The court will have the opportunity to correct any mathematical errors on remand.
We turn to Father’s specific arguments concerning the court’s child support calculation. Each of these arguments relies on the assumption we have made already— that the court arrived at its monthly child support award simply by assessing 90% of the monthly expenses to Father and rounding to the nearest multiple of 100. First, Father argues that the court erred by failing to exclude Mother’s personal expenses from its findings concerning C.C.’s needs. Second, Father argues that the court incorporated certain fixed expenses, such as the $2,000 Mother paid for new hockey gear, by dividing the total by twelve to determine the monthly expense, and then multiplying the monthly expense by fourteen to determine the total amount of child support Father owed for the months C.C. was living with Mother. Father argues that this methodology required him to pay Mother more than the original cost of the fixed expenses. Third, he argues that the court erred by including the $250 monthly car payments in its calculation of Mother’s monthly expenses for all fourteen months because Mother did not purchase a car for C.C. until March 2020 at the earliest. Finally, Father argues that the court erred by adding the cost of the college preparation services to Mother’s monthly expenses when that expense was already included in her September 2019 financial statement, thus effectively counting the expense twice. We shall address each of these arguments in turn.
We first consider Father’s argument that the court improperly included Mother’s personal expenses in its child support calculation. The circuit court found that “the total of [Mother’s] reasonable and necessary monthly expenses [was] $13,292.” Without explaining how it arrived at the child support payment, the court ordered Father to pay $12,000 per month for the fourteen months C.C. lived with Mother.
As we discussed above, it appears that the court intended that Father pay 90% of the child’s living expenses. However, $12,000 is approximately 90% of what the court found to be Mother and C.C.’s combined monthly expenses, which included her own personal expenses. The financial statement the court referenced and relied on indicated that Mother incurred monthly expenses for C.C. in the amount of $8,841.50. Thus, the court erred in basing its calculation, in part, on the $11,869 figure reflected in Mother’s financial statement, which included her monthly personal expenses of $3,027.50. Notably, the total of C.C.’s monthly expenses, if we include both the $8,841.50 from Mother’s financial statement and the additional amounts the court credited from Mother’s testimony, would be only $10,064.50, and 90% of that amount ($9,058) is approximately $3,000 less than the $12,000 per month the court ordered.
As this Court stated in Kaplan, “in exercising its significant discretion in an above- Guidelines case, the trial court may employ any rational method in balancing ‘the best interests and needs of the child with the parents’ financial ability to meet those needs.’” 248 Md. App. at 388 (quoting Ruiz, 239 Md. App. at 425). Factors relevant to setting child support in an above-guidelines case include “the parties’ financial circumstances, the ‘reasonable expenses of the child,’ . . . and the parties’ ‘station in life, their age and physical condition, and expenses in educating the child.’” Id. at 387 (alteration in original) (quoting Smith v. Freeman, 149 Md. App. 1, 20 (2002)). Under certain circumstances, a court may determine that it is in the best interests of the child to award child support in an amount higher than the custodial parent’s current child-related expenses. See, e.g., Jackson v. Proctor, 145 Md. App. 76, 89–92 (2002) (holding that child support award higher than custodial parent’s expenses for child was not an abuse of discretion where non-custodial parent had a significantly higher income and custodial parent’s expenses were consistent with her lower income).
Here, however, the court did not explain its methodology for determining the child support award. It appears that the trial court was attempting to use a method similar to that approved by the Supreme Court in Voishan, 327 Md. at 325, where the trial court determined child support by apportioning the “reasonable expenses of the child” between the parents according to the parents’ respective incomes. The circuit court did not make a finding concerning C.C.’s needs, and it appears to have based its award on the combined expenses for Mother and C.C. in Mother’s household. Although Father undoubtedly has the financial ability to pay $12,000 in monthly child support, the court’s apparent methodology of requiring Father to pay 90% of Mother and C.C.’s combined expenses requires that we vacate the judgment and remand for further proceedings. We shall discuss Father’s other arguments for purposes of guidance on remand.
Father next argues that the court’s methodology for converting fixed expenses to monthly expenses resulted in over-compensation for those expenses. There were three expenses that the court incorporated into Mother’s monthly expenses: $2,000 for hockey gear, $3,200 for security, and $6,500 for college preparation. The court converted these
fixed expenses into monthly expenses by dividing them by twelve, resulting in amounts of $166 per month for hockey gear, $266 per month for security, and $541 per month for college preparation. The potential problem with this methodology is that the court applied these monthly expenses to a fourteen-month timeframe in arriving at the total child support award. On remand, the court may clarify whether the claimed expenses are one-time expenses that may be apportioned over a period of 14 (or fewer) months, or whether the expense is a recurring expense that may appropriately be apportioned monthly. For example, if the $2,000 expense for hockey gear was a one-time expense until C.C. turned 18, the expense could properly be allocated over 14 months ($142.85 per month). On the other hand, if the security expense of $3,200 is a recurring annual expense, the proper allocation would be $266.66 per month for each of the 14 months.
Father further argues that the court included $250 per month for car payments even though Mother had not yet incurred that expense. Mother testified that she was planning to buy a car for C.C., and stated: “[I]f we buy a car it would be like $250 a month probably.” It was clear from Mother’s testimony that, as of February 24, 2020, she had not yet purchased a car for C.C. and was not certain that she would do so in the future. Rather, she testified that whether she purchased a car for C.C. “depend[ed] on where he’s [going to] college.” Indeed, at the time of Mother’s testimony, C.C. did not yet have his driver’s license. At the September 2020 hearing, it was established that C.C. was attending a college in Pennsylvania, but there was no evidence (or even a reference) about whether
Mother had purchased a car. The circuit court, however, included the $250 car payment in its child support calculation for the entire time C.C. was in Mother’s care, beginning in July 2019. At a minimum, the court ordered Father to pay $1,800 (90% of the $250 car payment for eight months) for an expense that Mother was indisputably not incurring during that eight-month period. This constitutes clear error. On remand, the court may in its discretion receive additional evidence to determine whether Mother incurred any “car payment” expense for C.C. during the relevant 14-month period.
Father’s final argument concerning the child support award is that the court duplicated the amount claimed for college preparation. The circuit court included in its calculation of Mother’s monthly expenses both the full amount provided in her financial statement plus $541 per month ($6,500 divided by twelve) as derived from Mother’s testimony.
On her September 2019 financial statement, Mother indicated that she was spending $2,050 per month on “tutoring/college consultant/preparation.” In a footnote, Mother stated: “The most critical need is for a contribution to these
JUDGMENT OF
CIRCUIT
expenses so as to bring [C.C.] up to the very best chance he can have to succeed in school and with his college preparation and choices. I have retained consultants for these issues.” Mother further testified: “Applerouth, the preparation for ACT has been $8,290, Applerouth. College, college prep 4,500. The tutors at VarsityTutors I have paid somewhere around 6,500. And all of these have been since September through now.”5 On cross examination, Mother explained that these expenses are not divided into monthly payments, but rather that she pays upfront, “[a]nd if he needs more hours, I have to pay again.” Thus, the court could reasonably have concluded that the amounts that Mother testified to were in addition to the expenses for college preparation in her September 2019 financial statement. It is unclear why the court only included the $6,500 for tutoring and not the $8,290 for ACT prep and $4,500 for college preparation. One potential explanation is that, because Mother testified that C.C. had completed ACT prep prior to trial, the court may have determined that only the $6,500 was a legitimate additional expense. Once again, our concerns about “tutoring/college consultant/preparation” and related “additional expenses” should be clarified on remand.
II. ATTORNEY’S FEES
In most cases, before a court may award attorney’s fees and costs in a child support case, the court must consider the following factors:
(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). Although a trial court has a high degree of discretion in making an attorney’s fees award, consideration of the statutory factors is mandatory. Best v. Fraser, 252 Md. App. 427, 438 (2021) (quoting Frankel v. Frankel, 165 Md. App. 553, 589 (2005)). Alternatively, if the court determines that “there was an absence of substantial justification of a party for prosecuting or defending the proceeding,” the court, absent a finding of good cause, “shall award” costs and counsel fees. FL § 12-103(c).
Because child support and attorney’s fees awards are closely interrelated, we shall vacate and remand the attorney’s fees award for further findings. St. Cyr v. St. Cyr, 228 Md. App. 163, 198 (2016). We remind the court that, on remand, it may consider all aspects of the parties’ finances, including assets, debts, and income. See Davis v. Petito, 425 Md. 191, 206 (2012) (FL § 12-103 “contemplates a systematic review of economic indicators in the assessment of financial status and needs of the parties[.]”). In addition, in the event the court awards costs and counsel fees, it should articulate whether it is awarding the fees pursuant to FL § 12-103(b) or (c).6
FOOTNOTES
1 The court also ordered Father to pay 90% of the Court Appointed Child Advocate’s fees.
2 The parties were granted joint legal custody of the child.
3 However, on cross examination Mother testified that the $1,155 per month listed on her September 2019 financial statement as “sports” expenses included the cost of equipment. It is unclear whether the $2,000 she spent on hockey equipment was in addition to the equipment cost already included in the financial statement.
4 The June 28, 2019 consent agreement provided that: “[C.C.] decides . . . when and how to communicate with and see his father. At this point in time the communication between his father and [C.C.] will be by text only.”
5 Notably, when converted to monthly expenses, these three expenses equal $1,607.50—less than the $2,050 per month Mother included on her September 2019 financial statement.
6 The circuit court may also consider any counsel fees incurred since the entry of the last award.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Washington County Circuit Court’s modification of an earlier order that registered a South Carolina custody order. On the date the modification proceeding was commenced, both parents and the minor child had lived in Maryland for more than six months, which gave the circuit court jurisdiction to modify the foreign custody order under the Maryland Uniform Child Custody Jurisdiction and Enforcement Act.
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.
to alter or amend the judgment. The court held a hearing on those motions on 7 July 2023. The court denied the motions, but scheduled a “supplementary best interest [of the child] hearing” for 5 December 2023.
QUESTIONS PRESENTED
Appellant presents the following questions for our consideration:
I. Did the circuit court have subject matter jurisdiction to modify a South Carolina custody order?
II. Did the circuit court abuse its discretion by refusing to vacate the order of default and imposing default sanctions on appellant to prevent him from discovering and presenting evidence in support of discovering what is in the best interests of the minor child?
For the reasons set forth below answering “Yes” and “No,” respectively to the questions, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This case arises from a custody dispute between Matthew Paul Edwards (“Father”), appellant, and Taylor Lynn Denner (“Mother”), appellee, over their minor child, S.E. On 27 February 2020, Father filed in the Circuit Court for Washington County (“the circuit court”) a request for registration of a foreign child custody determination, specifically a custody order entered on 14 November 2019 by the Family Court of the Fifteenth Judicial District of South Carolina, Horry County (“the Horry County Family Court”). On 26 March 2020, the circuit court entered an order confirming the registration of the South Carolina custody order.
On 23 May 2022, Mother filed in the circuit court a petition to modify the custody order. After Father failed to respond to her petition, the circuit court entered an order of default. After a hearing, at which Father did not appear, the circuit court entered an order granting Mother’s petition to modify custody. The order granted the parties joint legal custody of S.E. and gave Mother primary physical custody of the child. It set forth also a visitation schedule. The order provided that it supersedes the 14 November 2019 order of the Horry County Family Court.
Twelve days after the court’s judgment was entered, Father filed, in proper person, a motion to vacate the default judgment and a request for a stay. The motion to vacate was denied. Thereafter, counsel entered an appearance to represent Father. On 25 May 2023, Father filed a timely notice of appeal. He filed also an amended motion to stay and a motion
The parties, who were never married, are the parents of a minor child, S.E., who was born on 14 January 2016.1 Custody of S.E. was governed initially by a consent order issued by the Horry County Family Court in case number 2016-DR-26872. Mother and S.E.’s paternal grandparents shared custody under the terms of that order. At some point, Father enlisted in the military. In November 2019, the parties reached a mediated agreement modifying the pre-existing custody order. That agreement was incorporated in a final order by the Horry County Family Court that was filed on 14 November 2019 in case number 2019-DR-26-191.
By that order, the parties were granted joint custody of S.E. Father was designated the “primary custodian,” Mother was designated the “secondary custodian,” the parties were to consult with one another with regard to all major decisions affecting S.E., and, in case of a disagreement between the parents, Father was given the right to make the decision. The order included a visitation schedule, certain conditions relating to custodial time, and a “no adverse [conduct] order” (“NACO”) that prohibited the parents “from engaging, directly or indirectly, in any adverse conduct towards one another.” Child support was held in abeyance, Father was to provide health insurance for S.E., and each party was to be responsible for his or her own attorney’s fees. Provisions were made for the payment of guardian ad litem fees.
At some point, Father, who was, as noted earlier, in the military, moved to Washington County, Maryland. Later, Mother moved to Maryland, but she did not live with Father. On 27
February 2020, Father, proceeding in proper person, filed in the Circuit Court for Washington County, Maryland, a request for registration of a foreign child custody determination pursuant to § 9.5-305 of the Family Law (“FL”) Article of the Maryland Code. On 26 March 2020, the circuit court entered a notice of registration of a foreign child custody determination, specifically, the 14 November 2019 order of the Horry County Family Court.
On 14 September 2020, Mother, acting in proper person, filed in the circuit court a petition for contempt against Father. In it, she claimed, among other things, that Father failed willfully to enroll S.E. in court-ordered therapy, denied her time with the child, exposed the child to an immoral environment, and violated the NACO order. Mother requested that she be granted primary custody. On 14 October 2020, Father filed a petition for contempt against Mother. He responded to some of the assertions set forth in Mother’s petition for contempt and averred that Mother failed to provide him with health-related information pertaining to S.E.
Both parties appeared at a contempt hearing that was held via Zoom. Father proceeded in proper person and Mother was represented by counsel. The circuit court granted Mother’s petition and found Father in contempt of the March 2020 order of registration and the 14 November 2019 Horry County Family Court order by failing to provide Mother visitation access to S.E. during various time periods in 2020. The circuit court ordered Father to arrange with Mother a time for daily telephone or FaceTime access to S.E., to arrange for counseling for S.E. within ten days, to arrange and provide Mother access to a shared calendar, and to arrange “make-up” time for visits between Mother and S.E.
On 23 May 2022, Mother filed in the circuit court a petition for modification of custody and other relief in which she requested sole legal and primary physical custody of S.E., an order enjoining Father from removing S.E. from Maryland, modification of the existing child support order, and attorney’s fees. Mother asserted that she, Father, and S.E. resided in Maryland.2 She alleged a material change in circumstances resulting from Father’s plan to relocate to South Carolina with S.E. Mother asserted also that Father failed to comply with the court’s order to enroll S.E. in therapy and failed to provide Mother with school-related information for the child. It is undisputed that Father was served with a copy of the petition for modification of custody on 14 July 2022 at his new residence in South Carolina where he had moved with S.E.
Father failed to file a response to the petition for modification of custody. On 24 October 2022, Mother filed a motion for order of default. Mother’s motion was accompanied by an affidavit of non-active duty military service and a certificate of service indicating that a copy was mailed to Father.
Four days later, the circuit court entered an order of default against Father. The notice of the default order was addressed to Father. It indicated that he could “move to vacate the Order of Default within (30) days of the entry of” the order. The court set a hearing before a magistrate. On 28 March 2023, Mother appeared at the hearing represented by counsel. Father did not appear. After the hearing, the magistrate issued proposed findings and recommendations. The
magistrate found, among other things, that Father moved to South Carolina in late May 2022 “with little or no information or notice to” Mother. Mother lived in Maryland with her older child, Z., and her own mother. She was not employed, but “receive[d] some type of disability income.” The magistrate concluded:
A geographical move by a parent is a material change of circumstances. The issue then becomes a determination of the child’s best interest. In this case, [Father’s] unilateral move to South Carolina and limiting and/or interfering with [Mother’s] access with her daughter is material. [Mother] testified that she would work to ensure that [Father] would have access with his daughter on a consistent and meaningful basis. [Mother’s] testimony establishes that [Father] has unilaterally moved to South Carolina without notice, has limited or failed to provide visitation as required under the Court Order, has limited contact via telephone or social media, and has failed to provide [Mother] information regarding the child’s education and health. [Father] was previously found to be in contempt and make-up visitation was provided to [Mother]. All of these issues are sufficient for the Magistrate to find the child’s best interests are served by placing the child in the [Mother’s] primary custody. [Father] did not file an answer to the Petition to Modify (default order entered October 26, 2022) and did not appear for this hearing. It is recommended that [Mother’s] Motion to Modify be granted. It is recommended that [Mother] be granted primary physical custody, visitation to [Father], and the parties exercise joint legal custody.
Father did not file exceptions to the magistrate’s proposed findings and recommendations. On 26 April 2023, the circuit court entered an order granting the parties joint legal custody of S.E. and granting Mother primary physical custody of the child. It set forth also a visitation schedule. The order provided that it superseded the 14 November 2019 order of the Horry County Family Court in case number 2019-DR-26-191.
Twelve days later, on 8 May 2023, Father filed, in proper person, a motion to vacate the default judgment and a request for a stay. In support of his motion to vacate the default judgment, Father wrote:
I, Matthew Edwards, am filing this motion to vacate the default judgement [sic] due to receiving no court paperwork except for the initial Writ of Summons on June 21, 2022. I responded by fax on 09/16/2022, but the attorneys later said it was not received by them. After receiving nothing else from the courts, I had come to the assumption that nothing else had transpired. On Tuesday, 05/04/2023, my father had received a text by Taylor Denner stating that she was now primary custodian and was planning to receive [S.E.] (child in common) the following day, which she did not follow up on. This is how I discovered that there had been numerous court proceedings that I had never received notification of. I had contacted multiple Hagerstown attorneys and they had confirmed that there have been various court proceedings and a hearing. I did not know any of this until now and I am requesting that the Default Judgement be dismissed.
Father stated further, in support of his request for a stay: I also request that there be a movement for Stay of Judgement as [Mother] is planning to bring [S.E.] back to Maryland. I believe this would would [sic] negatively effect [S.E.] as we have been living in Horry County, SC for the last 11 months since I had been (honorably) discharged from the Army. This is her first year of Public School and I am worried that such a sudden change for her would be a very negative thing for her development.
Father attached to his motion a statement in which he asserted, among other things, that on 1 June 2022, he moved with S.E. to his parents’ home at 9677 Sullivan Drive, Murrells Inlet, in Horry County, South Carolina. The only reason he lived in Washington County, Maryland, was because he was in the Army and had been stationed at Fort Detrick. Father explained various circumstances that prevented him from enrolling S.E. in therapy within ten days of the circuit court’s contempt order. He claimed also Mother had been provided S.E.’s school information “through email, from the minor child’s school itself.” Father’s statement concluded: [T]he minor child does not have any significant connections to the State of Maryland and had been opinionated towards wanting to move to South Carolina, as she has a strong connection to her grandparents on my side, whom we now reside with, as well as friends from her school, as she was homeschooled during our time living in Maryland. I do not believe [Mother] has any evidence for anything and that this is nothing more than her attempt to grab for the wind because we have moved and [Mother] has to now be “inconvenienced” by a longer commute in order to spend time with the minor child.
Father also filed a motion for emergency stay of enforcement of the court’s default custody order. In support of that motion, Father stated that Mother was attempting to remove our daughter from her school in South Carolina where she has been attending since September. It is against the best interest of the child to pull her out of school before it ends but too late in the year for her to start up again at any practical level in a new place. I would thus ask the court to stay any enforcement of this matter until I am able to participate (see previously filed Motion to Vacate Default Judgment filed this same day). There is no reason the child’s life should be uprooted when no emergency has been alleged and I was never given notice of any of the court hearings subsequently missed.
On 5 June 2023, the court entered an ambiguous order with respect to the request to stay enforcement of the custody order and the motion for emergency stay. The court filed what appeared to be a proposed order with the word “GRANTED” and some other portions of the order crossed out. The order did not state explicitly that either the request for a stay or the motion for an emergency stay was denied. Subsequently, an attorney entered his appearance on behalf of Father. On 25 May 2023, counsel filed on behalf of Father a notice of appeal,3 an amended motion for stay of enforcement of the custody order, and a motion to alter or
amend the judgment pursuant to Maryland Rule 2-535. In his amended motion to stay enforcement of the custody order, Father argued that Mother had attempted to remove S.E. from her residence and school in South Carolina, and that a stay of enforcement was “necessary to preserve the welfare and best interests of the minor child, as well as the rights of” Father. He argued further that the circuit court did not have subject matter jurisdiction, that allowing the court’s order to “go into effect” would deprive him “of the benefit of the interstate compact regarding foreign custody determinations and remove a minor child from her home without legal justification.”
In his motion to alter or amend the judgment, Father asserted that when his “duty station attendance requirement” with the Army ended “at the end of May 2022[,]” he moved with S.E. to South Carolina “to serve out the remainder of his service obligation with the South Carolina National Guard.” He acknowledged that he “was personally served with the writ of summons and complaint for modification of the South Carolina custody order on July 14, 2022, at his residence in South Carolina.” He claimed that he attempted to answer the petition for modification of custody, but his filing was rejected “because it was sent by facsimile and not filed through MDEC.”4 He asserted that he “did not learn of the failure . . . until after the final modification order was entered.”
Father took issue with the affidavit pertaining to his military service that Mother filed in support of her motion for order of default. He argued that her assertion that he was not in service to the United States military was “incorrect, and had she secured the requisite SCRA Affidavit of Military Service, the [circuit court] may have taken different action.” Father denied being served with notice of entry of the default order, the order itself, or notice of the hearing. Father argued that, although the circuit court was permitted to enforce the 2019 order of the Horry County Family Court, it was not permitted to modify it because it lacked subject matter jurisdiction to do so. He asked the circuit court to “reopen the matter to receive evidence relating to subject matter jurisdiction.”
On 5 June 2023, the circuit court denied Father’s motion to alter or amend the custody order and set a motions hearing for 7 July 2023. At the hearing, the court considered Father’s motion to stay enforcement of the custody order and motion to vacate the default judgment. During the course of that hearing, counsel for Father confirmed Father’s proffer that after he moved to South Carolina, he was served with Mother’s petition to modify custody. He attempted to file an answer via fax and it “was rejected.” Father denied receiving notice of the order of default and notice of the hearing. The judge asked the clerk to review the record to determine if either the notice of entry of the order of default or the hearing notice had been returned to the court and the clerk responded that neither had been returned. Counsel for Father also acknowledged that Father had not alleged that his service in the South Carolina National Guard constituted active duty military service and there was no allegation of fraud by Mother with respect to the affidavit of non-active duty military service filed with her motion for order of default. The court determined, as a matter of fact, that Father was aware of the petition to modify custo-
dy, that he “was properly sent a notice of order of default and notice of default hearing,” and that he failed to respond with a motion to vacate the order of default and failed to attend the hearing.
The court determined further that there was “no reason to disturb the default judgment” with respect to the finding of a material change in circumstances sufficient to justify a modification of custody, but the child was entitled to “a final modification hearing[.]” The court denied the motion to vacate, but set a hearing to determine the best interests of the child. Counsel for Mother argued that the hearing ordered by the court was, in effect, the same as granting Father’s motion to vacate the default judgment. The court responded that the “true difference is that if I vacate the order then [Father] benefits from his delay.” The court stated that Mother would not have to put on again evidence that had been presented at the prior hearing and that there would be a presumption that the prior ruling was correct.
With respect to the hearing to determine the best interests of the child, the court ruled that Father would not have the right to participate in discovery. Counsel for Father questioned the court as to how he would be able to rebut Mother’s evidence without discovery and the following occurred:
THE COURT: . . . I’ll get you a written order. Sorry it’s so confusing, but it’s, it’s simply, you know, giving the, giving the, the – [S.E.] the chance for the other party to put forth its evidence.
[Counsel for Mother]: To present evidence verbally under oath at a hearing.
THE COURT: Right.
[Counsel for Father]: Will the Court be so kind as to make sure that the, that the limit is that he is only permitted testimony under oath?
THE COURT: No, he could, no, he could, he could – whatever his, whatever his case is he can bring.
[Counsel for Father]: But no ability to rebut any evidence presented by [Mother]?
THE COURT: Well, sure he can, sure he can rebut that evidence. [Counsel for Father]: How without discovery?
THE COURT: But what he can’t, but what he can’t do is obligate, he can’t put a burden on the folks that have already fulfilled their whole burden to the Court and to [S.E.]
[Counsel for Father]: Well, the only thing is, Your Honor, is that I don’t believe, I mean was child support addressed in the underlying issue? Because there’s a complete modification of custody wherein no financial aspect was addressed. So, is there no financial aspect to this?
THE COURT: I don’t know that there is.
[Counsel for Father]: Also certain, I mean the Court in order to make a determination as to what’s best, in the best interest of the minor child I find it difficult to understand how that can be if he is not allowed to inquire of any information of [Mother].
THE COURT: Well, the point is that he’s waived it. That’s the, you know, I don’t see how he can assert it. He’s waived it by his failure to participate. I’m just, you know –[Counsel for Mother]: So, essentially what you’re doing is you’re sort of going back in time and saying, you know, you’re giving him the right to have had that hearing on that date that it initially should have been and he wouldn’t – had he done that he wouldn’t have done discovery anyway. He would have just showed up at the hearing and the Court would have allowed him to present evidence.
THE COURT: Well, lots of things. [Counsel for Mother]: Okay.
THE COURT: I don’t want to, I don’t want to go that far. But I’m going to make a written order that’s very specific
In a written order filed on 10 July 2023, the circuit court found that it had both personal and subject matter jurisdiction over the modification of custody proceeding, that Father had been “duly served” with the petition to modify custody, that he failed to file an answer, that he was sent a notice of order of default and a notice of a hearing on the default, and that he “willfully and knowingly failed to participate in the modification matter[.]” The court made also the following findings and issued the following orders:
FOUND that [Father’s] willful and knowing failure to participate in a timely fashion before the final judgment constitutes a waiver of his right to file any counterclaims, and a waiver of his right to propound discovery, and a waiver of his right to challenge [Mother’s] default proof, and a waiver of cross examination of [Mother’s] witnesses – all consistent with him being in default and subject to the final order of this Court; and it is further
FOUND that notwithstanding that [Father’s] contumacious disregard for this Court’s proceedings has forfeited his rights in regard to participation in the modification matter, this Court still owes a duty to review [S.E.’s] “indefeasible” rights in light of Flynn v. May, 157 Md. App. 389, 410 (2004), and Wells v. Wells, 168 Md. App. 382 (2006); and it is further
FOUND that the instant case is distinguishable from the facts of Flynn and Wells as the defaulting parents in Flynn and Wells lacked the level of disregard for this Court’s process exhibited by [Father] in this matter; and it is further
FOUND that were the Court to have granted the relief requested by [Father] (vacation and stay of the final judge-
ment [sic] in this matter) that the Court would invite an absurd result: that no matter how long a parent waits to participate in a proceeding, that that defaulting parent is relieved of his or her procedural obligations and is entitled to assert his or her litigation rights at a whim; and it is further
FOUND that this Court has continuing jurisdiction and responsibility to assure the best interests of [S.E.]; and it is therefore
ORDERED that the final judgment of this Court of April 26, 2023 is deemed prima facie correct, and that the Court has found that [Mother] has met her burden of demonstrating [S.E.’s] best interest being met by the current order; and it is further
ORDERED that since the default has not been vacated, [Father] need not file an answer in this matter, and may not file a counterclaim; and it is further
ORDERED that this Court hold a supplementary best interest hearing on December 5, 2023 at 9:30 AM and that the sole reason for that hearing is for [Father], or counsel on [S.E.’s] behalf as best interest attorney, to put on additional evidence of [S.E.’s] best interest in regard to legal custody, physical custody, and parental access as the circumstances exist as of December 5, 2023; and it is further ORDERED that [Mother] may propound discovery upon [Father], but [Father] is precluded from propounding discovery upon [Mother] as he has waived that privilege; and it is further
FOUND and therefore ORDERED that the jurisdiction for the contemplated hearing does not sound in the power of the Court to revise its prior order under Md. Rule 2-535, but instead in the responsibility of this Court to recognize the paramount rights of [S.E.] and
The absolute obligation on the trial judge to undertake a thorough examination of all possible factors before determining child custody . . .
Flynn, 157 Md. App. at 407.
The court denied the motion to vacate the default judgment and the motion to stay enforcement of the custody order.5
DISCUSSION I.
Father contends that the circuit court did not have subject matter jurisdiction to modify the 2019 Horry County Family Court order that was registered by the circuit court on 26 March 2020. He maintains that the circuit court failed to comply with the procedures required by Title 9.5 of the Family Law Article of the Maryland Code. Specifically, he argues that at “the time of service of process” and “at the time of the trial” he and S.E. were residents of South Carolina. We disagree.
Standard of Review
“When reviewing an action tried without a jury, we review the judgment of the trial court ‘on both the law and evidence.’” Baltimore Police Dep’t v. Brooks, 247 Md. App. 193, 205 (2020) (quoting Banks v. Pusey, 393 Md. 688, 697 (2006)). We “will
not set aside the judgment of the trial court on the evidence unless clearly erroneous, and [we] will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Md. Rule 8-131(c). Issues of law, however, are reviewed de novo. Brooks, 247 Md. App. at 205. The question of subject matter jurisdiction is a legal one that we review de novo. Rowe v. Maryland Comm’n on C.R., 483 Md. 329, 340-41 (2023); Beckwitt v. State, 477 Md. 398, 420, reconsideration denied (25 March 2022), cert. denied, 143 S. Ct. 216 (2022), reh’g denied, 143 S. Ct. 475 (2022). We review such issues “without deference to . . . the circuit court[.]” Wheeling v. Selene Fin. LP, 473 Md. 356, 373 (2021). The issue of subject matter jurisdiction need not be raised by a party, but may be raised by a court, sua sponte, at any time. Derry v. State, 358 Md. 325, 334 (2000); Lewis v. Murshid, 147 Md. App. 199, 20203 (2002).
The UCCJEA
The court’s jurisdiction to make a child custody determination is set forth in Title 9.5 of the Family Law Article of the Maryland Code, which is known as the Maryland Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). The UCCJEA establishes “systematic and harmonized approaches to urgent family issues in a world in which parents and guardians, who choose to live apart, increasingly live in different states and nations.” Cabrera v. Mercado, 230 Md. App. 37, 73 (2016) (quotation marks and citation omitted). Two of the primary functions of the UCCJEA are to “deter[] parents from removing their children from a jurisdiction without consent” and to “[f]acilitate the enforcement of custody decrees of other States.” Pilkington v. Pilkington, 230 Md. App. 561, 577 (2016) (quotation marks, citation, and emphasis omitted). Thus, we must apply the UCCJEA “with an eye toward disincentivizing the unlawful movement of children across state borders[.]” Id. at 578.
Because we are called upon to construe the UCCJEA, we shall set forth the rules of statutory construction. “The paramount object of statutory construction is the ascertainment and effectuation of the real intention of the Legislature.” Andrews & Lawrence Pro. Servs., LLC v. Mills, 467 Md. 126, 149 (2020) (quotation marks and citation omitted). “The starting point of any statutory analysis is the plain language of the statute, viewed in the context of the statutory scheme to which it belongs.” Kranz v. State, 459 Md. 456, 474 (2018) (quotation marks and citations omitted). ‘“If the language of the statute is unambiguous and clearly consistent with the statute’s apparent purpose, our inquiry as to legislative intent ends ordinarily and we apply the statute as written, without resort to other rules of construction.”’ Noble v. State, 238 Md. App. 153, 161 (2018) (quoting Espina v. Jackson, 442 Md. 311, 322 (2015)). If, on the other hand, words of a statute are ambiguous, “a court must resolve the ambiguity by searching for legislative intent in other indicia, including the history of the legislation or other relevant sources intrinsic and extrinsic to the legislative process.” Id. at 162 (quotation marks and citation omitted).
The UCCJEA defines a “[c]hild custody determination” as “a judgment, decree, or other order of a court providing for
the legal custody, physical custody, or visitation with respect to a child[,]” and “includes a permanent, temporary, initial, and modification order.” FL § 9.5-101(d)(1)-(2). We have recognized that the UCCJEA prohibits concurrent jurisdiction between two states to limit the occurrence of different states creating competing custody awards. Harris v. Melnick, 314 Md. 539, 550 (1989). The authority to make an initial custody determination6 is exclusive to a single state and, similarly, only a single state may possess authority to modify an existing custody determination. Pilkington, 230 Md. App. at 579.
The instant case involves the modification of a child custody order initially entered by the Horry County Family Court and later enrolled in the circuit court in Maryland. The word “[m]odification” “means a child custody determination that changes, replaces, supersedes, or is otherwise made after a previous determination concerning the same child, whether or not it is made by the court that made the previous determination.” FL § 9.5- 101(l).
As we have stated, the instant case involves the modification of a registered child custody determination of a court of South Carolina. Such modifications are addressed in FL § 9.5306, which provides:
(a)Granting relief. – A court of this State may grant any relief normally available under the law of this State to enforce a registered child custody determination made by a court of another state.
(b) Modification. – A court of this State shall recognize and enforce, but may not modify, except in accordance with Subtitle 2 of this title, a registered child custody determination of a court of another state.
Subtitle 2 of the UCCJEA addresses jurisdiction.7 FL § 9.5-203 allows a court of this State to modify a child custody determination made by a court of another state when: a court of this State has jurisdiction to make an initial determination under § 9.5-201(a)(1) or (2) of this subtitle and:
(1) the court of the other state determines it no longer has exclusive, continuing jurisdiction under § 9.5-202 of this subtitle or that a court of this State would be a more convenient forum under § 9.5-207 of this subtitle; or
(2) a court of this State or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.
Section 9.5-201(a)(1) and (2), which generally govern jurisdiction to make an initial determination, provide:
(a) Grounds for jurisdiction. – Except as otherwise provided in § 9.5-204 of this subtitle, a court of this State has jurisdiction to make an initial child custody determination only if:
(1) this State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State;
(2) a court of another state does not have jurisdiction under item (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under § 9.5-207 or § 9.5-208 of this subtitle, and:
(i) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this State other than mere physical presence; and
(ii) substantial evidence is available in this State concerning the child’s care, protection, training, and personal relationships[.]
A child’s home state is defined in FL § 9.5-101(h) as:
(1) the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months, including any temporary absence, immediately before the commencement of a child custody proceeding; and
(2) in the case of a child less than 6 months of age, the state in which the child lived from birth with any of the persons mentioned, including any temporary absence.
“Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.” FL § 9.5-201(c).
Analysis
Father argues that the circuit court did not have jurisdiction under FL § 9.5- 201(a)(1) or (2) because, at the time of service of process and at the time of trial, he and S.E. were residents of South Carolina. He maintains that the time for determining residency was not at the time the modification proceeding was commenced. He does not suggest, however, another time at which residency should be determined. In support of his argument, Father points to the use of the word “presently” in FL § 9.5-203(2) and notes that the statute does not include the phrase “at the commencement of the proceeding.” Father’s arguments are not persuasive.
The circuit court had subject matter jurisdiction to modify the custody determination initially made by the Horry County Family Court and later registered in the circuit court. Mother’s motion for modification of custody was filed on 23 May 2022. There is no dispute that at that time, neither party nor S.E. resided in South Carolina.8 Father had resided in Maryland since at least 27 February 2020, the date on which he filed his request to register the South Carolina child custody order in the circuit court. Mother had resided in Maryland since at least 14 September 2020, when she filed her petition for contempt in the circuit court. Father admitted that he moved with S.E. to Murrells Inlet in Horry County, South Carolina, on 1 June 2022. The date of commencement of the action is the starting point in determining the child’s home state. There is no dispute that, on the date of the commencement of the modification proceeding, S.E. and both parties had lived in Maryland for more than six months. Accordingly, Maryland was S.E.’s home state under the UCCJEA. FL § 9.5-201(a)(1). The court in South Carolina was not S.E.’s home state and it did not have jurisdiction under FL § 9.5-201(a)(1).
We interpret the word “presently” as used in FL § 9.5203(2) to refer to the date the modification proceeding was commenced. To interpret the word “presently” as Father suggests, would undermine the general purpose of the UCCJEA. We cannot sanction Father’s interpretation of the statutory scheme which would permit one parent to deprive subject matter jurisdiction to a court in the minor child’s home state
by moving the child to another state in response to, or in anticipation of, a petition for modification by the other parent. We must interpret the UCCJEA so as not to sanction the tactical movement of children to another state. Moreover, we take note of FL § 9.5-201(c), which provides specifically that “[p] hysical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.” Father’s mere presence in South Carolina with S.E. is not the determining factor under the statutory scheme. Because both parents and the child left South Carolina and resided in Maryland for about two years prior to the filing of Mother’s petition for modification, the court in South Carolina lost exclusive, continuing jurisdiction. Maryland was the child’s home state and the proper state to exercise jurisdiction over Mother’s petition for modification. II.
Father next contends that the circuit court abused its discretion by refusing to vacate the order of default, refusing to stay enforcement of the order of default until an evidentiary hearing could be held, and limiting his ability to present evidence with regards to the best interests of the child. Specifically, he maintains that the court abused its discretion in refusing to permit him to engage in discovery and to consider “any adverse evidence that might be solely in possession of [Mother]” including “current information like [S.E.’s] report cards, correspondence from teachers, CPS reports, criminal charges, stability issues, substance or alcohol abuse, or any of the other myriad facts faulty parents might try to hide from the scrutiny of the court.” Father asserts that “[d]efaults in child custody cases only hurt children[,]” and that the circuit court’s decision not to allow him to challenge Mother’s evidence simply because he was in default was an abuse of discretion and not in S.E.’s best interests. We disagree.
Standard of Review
When reviewing child custody cases, we utilize three interrelated standards when evaluating a court’s holdings:
“When the appellate court scrutinizes factual findings, the clearly erroneous standard of [Rule 8-131(c)] applies. [Second], if it appears that the [court] erred as to matters of law, further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless. Finally, when the appellate court views the ultimate conclusion of the [court] founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the [court’s] decision should be disturbed only if there has been a clear abuse of discretion.”
Kadish v. Kadish, 254 Md. App. 467, 502 (2022) (quoting In re Yve S., 373 Md. 551, 586 (2003)). An abuse of discretion occurs when no reasonable person would take the view adopted by the trial court or when the court acts without reference to any guiding rules or principles. Santo v. Santo, 448 Md. 620, 625-26 (2016).
In considering a motion to modify custody, the circuit court must engage in a two- step process. Gillespie v. Gillespie, 206 Md. App. 146, 170 (2012). First, the court must determine whether there has been a material change in circumstances, which is a change that affects the welfare of the child.
Id. If such a change is found, “the court then proceeds to consider the best interests of the child as if the proceeding were one for original custody.” Id. (quotation marks and citation omitted). In determining the best interests of the child, the court is guided by the factors set forth in Montgomery County Department of Social Services v. Sanders,9 38 Md. App. 406, 420 (1978), and Taylor v. Taylor, 306 Md. 290, 304-11 (1986).10
“The light that guides the trial court in its determination, and in our review, is the best interest of the child standard, which is always determinative in child custody disputes.” Santo, 448 Md. at 626 (quotation marks and citation omitted).
Default Judgments
A review of Maryland’s default judgment procedure is helpful to understanding the procedural posture of this case. Pursuant to Maryland Rule 2-613, a plaintiff may seek a default judgment against a defendant who fails to plead. This Court has explained that obtaining a default judgment involves a two-step process. Peay v. Barnett, 236 Md. App. 306, 317-18 (2018). The first step involves an order of default. Once the time for a defendant to plead has expired, a plaintiff may request in writing that the court enter an order of default. Md. Rule 2-613(b). After the court enters an order of default, the clerk must issue notice to the defendant that the order of default has been entered and that the defendant may move to vacate the order within thirty days of its entry. Md. Rule 2-613(c). The notice must be mailed to the defendant at the address stated in the request and to the defendant’s attorney, if any. Id. The court may also provide for additional notice to the defendant. Id.
Rule 2-613(d) provides:
[t]he defendant may move to vacate the order of default within 30 days after its entry. The motion shall state the reasons for the failure to plead and the legal and factual basis for the defense to the claim.
“If the court finds that there is a substantial and sufficient basis for an actual controversy as to the merits of the action and that it is equitable to excuse the failure to plead, the court shall vacate the order.” Md. Rule 2-613(e).
The second step of the process involves a default judgment. If the defendant does not file a motion to vacate within thirty days, or if a motion to vacate is filed, but the court denies it, upon request the court “may enter a judgment by default that includes a determination as to the liability and all relief sought, if it is satisfied (1) that it has jurisdiction to enter the judgment and (2) that the notice required by section (c) of [Rule 2- 613] was mailed.” Md. Rule 2-613(f). Subsection (f) further provides:
If, in order to enable the court to enter judgment, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any matter, the court, may rely on affidavits, conduct hearings, or order references as appropriate, and, if requested, shall preserve to the plaintiff the right to trial by jury.
Md. Rule 2-613(f).
An order of default is a prerequisite for a default judgment. Pomroy v. Indian Acres Club of Chesapeake Bay, Inc., 254 Md. App. 109, 121 (2022) (“[A] court cannot issue a default judgment . . . without first issuing an order of default and giving the defaulting party an opportunity to vacate that order.”). An order of default is interlocutory in nature and may be revised by the court at any time up until a final judgment is entered. Md. Rule 2- 613(g). See also Holly Hall Publ’ns, Inc. v. Cnty. Banking & Tr. Co., 147 Md. App. 251, 261 (2002) (noting that an order of default is an interlocutory order subject to the broad general discretion of the court); Michaels v. Nemethvargo, 82 Md. App. 294, 298-300 (1990) (stating same). The entry of a default judgment in compliance with Rule 2-613 “is not subject to the revisory power under Rule 2-535(a) except as to the relief granted.”11 Md. Rule 2-613(g).
A defaulting party who does not file a motion to vacate that is denied subsequently, cannot file a motion to alter or amend a judgment pursuant to Md. Rule 2-534 for the purpose of contesting liability and cannot appeal that judgment in order to contest liability. Franklin Credit Mgmt. Corp. v. Nefflen, 436 Md. 300, 325-26 (2013) (“Permitting a defaulting party to lie in wait, after having failed to timely respond to a complaint and also to move to vacate a default order would permit the default procedure under Rule 2-613 to be nullified.”). See also Att’y Grievance Comm’n v. Thomas, 440 Md. 523, 549 (2014) (“[A]n order of default determines liability conclusively, and such a determination may be set aside only if the defendant moves successfully to vacate the order.”).
Default judgments are not meant to be a punitive sanction for noncompliance with procedural regulations. Holly Hall, 147 Md. App. at 262 (citing Royal Ins. Co. of Am. v. Miles & Stockbridge, P.C., 133 F. Supp. 2d 747, 768 (D. Md. 2001)). Rather, they function as a party’s admission of liability where the party fails, without excuse, to respond to the allegations in a properly served complaint. Att’y Grievance Comm’n v. Ward, 394 Md. 1, 19 (2006) (citing Holly Hall, 147 Md. App. at 261-62). That said, “the Maryland Rules and caselaw contain a preference for a determination of claims on their merits; they do not favor imposition of the ultimate sanction absent clear support.” Holly Hall, 147 Md. App. at 267. As a result, courts usually should ‘“exercise their discretion in favor of a defaulting party”’ and allow a case to proceed on the merits if the party shows that it has a meritorious defense and excusable error. Id. at 263 (quoting Royal Ins. Co., 133 F. Supp. 2d at 768).
We review a court’s denial of a motion to vacate an order of default for abuse of discretion. Id. at 267. As we have already noted, an abuse of discretion occurs when no reasonable person would take the view adopted by the trial court or the trial court acts without any guiding rules or principles. Santo, 448 Md. at 625-26.
Default Judgments in Child Custody Cases
Default judgments in child custody cases are treated differently because the best interest of the child is of paramount importance and the child has an “indefeasible right” to have the custody determination made only after a full evidentiary hearing involving both parents. Flynn v. May, 157 Md. App. 389, 408-10 (2004). In Flynn, we considered whether the award of a
change of custody by default, without a hearing on the merits, constituted an abuse of discretion. In that case, the father filed a petition seeking primary custody of the parties’ six-year-old child and child support. Id. at 391-92. The mother was served with a copy of the father’s petition. Id. at 392. Proceeding in proper person, the mother filed a responsive pleading, but failed to include a certificate of service. The clerk of the court provided a poorly-worded notice advising the mother of the need to file a certificate of service, but mother never did. Id. The father requested an order of default, which the court granted. Id. at 393. The order of default notified the mother that she had thirty days in which to move to vacate the order. It also directed that “‘testimony to support the allegations of the Complaint be taken before one of the Standing Masters of this Court.’” Id. at 394-95.
A hearing was scheduled “on the ‘issues of custody, visitation and child support (Default).’” Id. at 395. The mother appeared at the hearing with five witnesses who were prepared to testify on her behalf. Id. The court determined that neither the mother nor any of her witnesses would be permitted to testify and that the mother would not be permitted to offer evidence of any kind. Id. No information was offered with respect to the fitness of either parent. Id. at 397. “The sum total of the information about [the child] consisted of 1) his age and 2) his gender.” Id. The court awarded custody to the father and ordered the mother to pay child support. Id. at 397-98. The mother subsequently obtained counsel and filed a motion to alter or amend the judgment, which was denied. Id. at 399.
We held that the circuit court abused its discretion in ordering a change in custody. In reaching that conclusion, we examined the broad discretion set forth in Rule 2-613(f) and noted that it “is a sweeping grant of discretionary authority[.]” Id. at 404. We also stated that “child custody is quintessentially a ground on which technicality and justice may be in stark collision.” Id. After examining the development of the default judgment concept, which arose out of tort cases, we concluded that where there is “a single unbifurcatable issue, an analogy to how default judgment is handled in the context of tort cases is impossible [D]efault judgment cannot substitute for a full evidentiary hearing when a court, in order to determine custody, must first determine the best interest of the child.” Id. at 407. We stated:
As sorely tempted as we are to hold flatly that the default judgment procedure of Maryland Rule 2-613 is not applicable to child custody disputes, it is not necessary to go so far. We are content to hold that, at the hearing on August 1, 2003, the trial court, in the circumstances of this case, abused its discretion when it ordered a change in the primary physical custody of [the child] without permitting witnesses to testify or other evidence to be offered. We nevertheless note that it is impossible for us to conjure up a hypothetical in which a judgment by default might ever be properly entered in a case of disputed child custody. We are not hereby transforming our dicta into a holding. We are, however, unabashedly adding deliberate weight to the dicta. Our comments are not random, passing, or inadvertent.
Id. at 411-12.
In Wells v. Wells, 168 Md. App. 382 (2006), we considered again the default judgment process and a child’s indefeasible right to have his or her best interests considered at a full evidentiary hearing. Wells arose out of a divorce and child custody action filed by the father. At the time the case was initiated, the parties lived together in the marital home, which had been purchased prior to the marriage by the father. 168 Md. App. at 386. The mother failed to file an answer. Id. The father filed a motion for order of default, but the mother did not file a response. Id. The court issued a notice of default order that was mailed to the mother at the marital home. Id. The mother did not file a motion to set aside the default order. Id. A hearing before a master was scheduled and notice was mailed to each party at the marital home, but the mother did not appear at the hearing. Id. The father appeared with counsel and several witnesses. Id. The master issued findings and recommendations including that the mother had committed adultery, that an absolute divorce be granted on that ground, that the father was a fit and proper person to have custody of the parties’ minor child, that the mother should pay child support in a specified amount, and that the father should be granted use and possession of the home. Id. at 387- 88. A copy of the master’s findings and recommendations was mailed to the mother at the marital home. Id. at 388. Thereafter, the court entered a judgment of absolute divorce that adopted the master’s findings and recommendations. Id.
Eight days later, the mother, through counsel, filed a motion to vacate the order of default and a motion for a new trial or to alter or amend the judgment of absolute divorce. Id. She alleged that she had been served with the complaint and summons, but that the father told her it was a settlement agreement. Id. The parties decided to stay together and not to separate. Id. The father told the mother to “‘tear up the papers[]’ because he wanted to work on their marriage[,]” and the parties resumed their marital relations. Id. at 388-89. Other than the complaint and summons, the mother did not receive any documents from the court. Id. at 389. According to the mother, three days after the judgment of absolute divorce was entered, a deputy sheriff arrived at the marital home, told her that she and her husband were no longer married, and that she would have to vacate the premises. Id. At that time, the father told her that there was mail awaiting her on the dining room table. That mail included correspondence from the court. Id.
The following day, the mother returned to the marital home with some friends to pack up her belongings. Id. They found a box that contained other pieces of unopened mail addressed to the mother. Id. The mother asserted that the father had been ‘“usurping”’ her mail. Id. The mother maintained that the father had procured the judgment of divorce by fraud and that she had a meritorious defense to both the grounds for divorce and the claim for custody. Id. at 38990. In support of her motion to alter or amend, the mother argued that justice mandated opening the judgment to receive additional evidence about the child’s best interests and other issues. Ultimately, the circuit court denied the mother’s motions without a hearing. Id. at 391.
On appeal, the mother argued that the trial court abused its discretion in denying her motion for new trial and to vacate the default judgment. We held that the trial court abused its discretion in denying the mother’s “motion to vacate the default judgment as to all issues except the decision to grant a divorce.” Id. at 396. “With respect to the issue of divorce, the [trial] court abused its discretion by denying the motion without holding an evidentiary hearing and making a factual finding on the issue of fraud.” Id. We explained our holding as follows:
To the extent that the “liability and damages” dichotomy that derives from actions at law and underlies the default judgment concept and procedure has an analogy in domestic litigation, which is in all respects equitable, the issues of divorce and annulment fall on the “liability” side and the issues that flow from divorce or annulment fall on the “damages,” or in equitable terms, “remedy” side. It is only after the court has granted an absolute or limited divorce, or an annulment, so that the parties no longer will be functioning as a marital unit, that it may grant relief to address the consequences that come from that change in status.
The extra imprimatur of finality for default judgments, under Rule 2- 613(g), does not apply to decisions about relief. In a divorce case, “relief” encompasses child custody, visitation, support, alimony, distribution of marital property, use and possession, and counsel fees. A judgment by default that decides any such issue is subject to the court’s broad revisory powers, under Rules 2-535(a) and 2-534, on the issue or issues so decided. Id. at 396-97.
We concluded that the denial of the mother’s “motion to vacate the default judgment on the issues of child custody, support, visitation, use and possession, equitable distribution, and alimony was a clear abuse of discretion.” Id. at 397. Relying on Flynn, we noted that the child “had an indefeasible right to have his best interests considered in a full evidentiary hearing” and that a “‘default judgment cannot substitute’” for such a hearing “‘when a court, in order to determine custody, must first determine the best interest of the child.’” Id. (quoting Flynn, 157 Md. App. at 407).
Analysis
In the case before us, the circuit court found that Father had been “duly served” with the petition to modify custody, that he failed to file an answer, that he was sent a notice of the order of default and a notice of a hearing on the default, and that he “willfully and knowingly failed to participate in the modification matter[.]” Although the circuit court denied Father’s motion to vacate the default judgment and other motions,12 it recognized also our holdings in Flynn and Wells and the need for an evidentiary hearing to determine the best interests of S.E. The court, however, subjected that evidentiary hearing to certain limitations resulting from Father’s “contumacious disregard for [the] Court’s proceedings” and
his willful and knowing failure to participate in the case prior to the entry of judgment.
The court expressed its concern that vacating the default judgment and granting a stay of the final judgment would relieve Father of his procedural obligations and allow him to assert his litigation rights at a whim. The limitations imposed by the court included that
Mother would not have to present again evidence that had been presented at the prior hearing and that there would be a presumption that the prior ruling was correct. In addition, Father had waived his right to file a counterclaim and was prohibited from doing so because the default judgment had not been vacated. Further, Father could rebut Mother’s evidence, but was prohibited from conducting discovery because he had waived that right by his willful and knowing failure to participate in a timely fashion. Mother, however, was permitted to propound discovery upon Father.
Father maintains that the court punished him for his procedural deficiencies and was “either unaware or unconcerned with what evidence it might be refusing to consider.” He argues that the default judgment procedure, and the limitations imposed on him, impacted adversely the court’s ability to determine the best interests of S.E. He urges us to hold, as a matter of law, that the default judgment procedure has no applicability in child custody cases. The specific facts of this case do not require us to go so far. The circuit court did not abuse its discretion in fashioning a remedy to Father’s willful and knowing failure to participate in the underlying proceedings in a timely fashion that included a hearing to determine the best interests of S.E.
The requirement that the best interest of the child remains paramount in custody cases extends to procedural issues and discovery violations. Rolley v. Sanford, 126 Md. App. 124, 131 (1999). See also Flynn, 157 Md. App. at 391 (noting that the scope of court’s discretion to address discovery violations is limited in a child custody case because in such cases “the very object of the suit is [the child] whose best interest transcends that of either formal litigant”). The instant case does not involve a discovery violation, but a complete failure by Father to participate in the case in a timely fashion. Nevertheless, cases addressing discovery sanctions in child custody cases offer some guidance.
In Kadish v. Kadish, we explained recently that “[i]n a child custody case, the discretion of the trial court to exclude evidence is not only measured by the potential prejudice to the parties, but is constrained by a court’s ‘absolute and overriding obligation to conduct a thorough examination of all possible factors that impact the best interests of the child.’” 254 Md. App. at 495 (quoting A.A. v. Ab.D., 246 Md. App. 418, 444, cert. denied, 471 Md. 75 (2020)). Accordingly, our standard of review concerning discovery sanctions is altered slightly in a child custody case: Normally, we evaluate a trial court[’s] discovery sanction in a civil case through a well-defined lens – abuse of discretion. Rodriguez v. Clarke, 400 Md. 39, 57 (2007); see also Das v. Das, 133 Md. App. 1, 15 (2000) (“Abuse of discretion occurs ‘where no reasonable person would take the view adopted by the [trial] court,’ or when the court acts ‘with-
out reference to any guiding rules or principles.’” (quoting North v. North, 102 Md. App. 1, 13-14 (1994))). However, before we look through that lens in a child custody case, we must be satisfied that the court has applied the best interests of the child standard in its determination. When the custody of children is the question, “the best interest[s] of the children is the paramount fact. Rights of father and mother sink into insignificance before that.” Kartman v. Kartman, 163 Md. 19, 22 (1932).
A.A., 246 Md. App. at 441.
In A.A. v. Ab.D, the father propounded discovery requests to the mother in connection with his motion to modify custody. Id. at 426. The father argued that the mother’s responses were deficient and moved to compel further responses. Id. at 427. At the hearing on the request for modification, the father asked the court to exclude the testimony of the mother’s witnesses for whom she had failed to provide contact information and certain documentary evidence. Id. The court granted that request. Id. at 429. On appeal, we held that the trial court erred in failing to inquire as to the content of the testimony and evidence that the mother intended to offer so that it could determine its significance and potential impact on the best interests of the children. Id. at 448.
We held that the “supreme obligation [to consider the best interest of the child] may restrain the court’s broad authority to exclude evidence as a discovery sanction.” Id. at 444. As such, “procedural defects should not be corrected in a manner that adversely impacts the court’s determination regarding the child’s best interests.” Id. at 446. Trial courts may not exclude evidence as a discovery sanction unless the court ascertains what evidence would be excluded and then decides that the evidence would not assist the court in applying the required factors set forth in Sanders and Taylor in determining the best interest of the child. Id. at 448-49. “[A] child’s best interests are best attained when the court’s decision is as well-informed as possible.” Id. at 447. Any sanction imposed after such consideration is reviewed for abuse of discretion. Id. at 449.
We also stated in A.A., that “[w]e do not condone the behavior of discovery violators and do not intend that protecting minor children have the collateral effect of giving discovery offenders a pass.” Id. at 448. We wrote:
We encourage trial courts to be creative in finding sanctions other than precluding evidence, but recognize that, even where a court exhausts other remedial steps to enforce discovery, sometimes the failure by obstinate parties and their counsel to follow the rules make more extreme sanctions necessary. When this occurs in a child custody case, the court’s independent obligation to the child[ren] requires that, before ordering the exclusion of evidence as a sanction, the court should take a proffer or otherwise ascertain what the evidence is that will be excluded, and then assess whether that evidence could assist the court in applying the Sanders-Taylor factors in its determination of the best interests of the child[ren].
Id. at 448-49.
A.A. does not expand the universe of evidence that is admissible in a child custody case. Nor does it stand for the proposition that parties can violate discovery and scheduling
order deadlines with impunity in custody cases. It certainly does not require that a party who refuses willfully and knowingly to participate in a modification proceeding be permitted to control the court and the timing of proceedings by demanding a new start to a case that has proceeded already to judgment.
In the instant case, the circuit court crafted the type of creative resolution suggested in A.A. when it barred Father from engaging in discovery, but also set a hearing to determine the best interests of S.E. Father was permitted to participate in that hearing and present witnesses and other evidence. If he
felt there was some specific evidence that could be ascertained solely through discovery propounded to Mother, he could have raised that issue at the hearing and proffered the evidence’s significance. The process established by the circuit court provided a balance between protecting the court from litigants, like Father, who refuse willfully and knowingly to participate in a modification proceeding in a timely fashion, and the need to ascertain and consider the best interests of S.E.13 We find no abuse of discretion by the circuit court and reversal is not required.
JUDGMENT OF THE CIRCUIT COURT FOR WASHINGTON COUNTY AFFIRMED; COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Mother has an older child, Z., who resides with her. That child is not a subject of this appeal.
2 Mother resided in Charles County and Father resided in Washington County.
3 Section 12-303(3)(x) of the Courts and Judicial Proceedings Article (“CJP”) of the Maryland Code provides that a party may appeal from an interlocutory order “[d] epriving a parent, grandparent, or natural guardian of the care and custody of his child, or changing the terms of such an order[.]”
4 MDEC is an acronym for Maryland Electronic Courts, a judiciary-wide integrated case management system.
5 We view the court’s denial of the motion to stay to resolve both the request for a stay and the motion for an emergency stay initially filed by Father, in proper person, and the amended motion to stay filed by his attorney.
6 “Initial determination” is defined as “the first child custody determination concerning a particular child.” FL § 9.5-101(i).
7 The UCCJEA’s key provisions controlling when a state presented with a custody action may exercise jurisdiction are set forth in FL §§ 9.5-201 through -204. Section 9.5-201 governs initial jurisdiction, § 9.5-202 governs exclusive, continuing jurisdiction, § 9.5-203 governs jurisdiction to modify an existing custody order, and § 9.5-204 governs temporary emergency jurisdiction.
8 The Comment to Section 203 of the Uniform Child Custody Jurisdiction and Enforcement Act (1997) provides:
This section complements Section 202 and is addressed to the court that is confronted with a proceeding to modify a custody determination of another State. It prohibits a court from modifying a custody determination made consistently with this Act by a court in another State unless a court of that State determines that it no longer has exclusive, continuing jurisdiction under Section 202 or that this State would be a more convenient forum under Section 207. The modification State is not authorized to determine that the original decree State has lost its jurisdiction. The only exception is when the child, the child’s parents, and
any person acting as a parent do not presently reside in the other State. In other words, a court of the modification State can determine that all parties have moved away from the original State. The court of the modification State must have jurisdiction under the standards of Section 201.
Comment 2 to Section 202 of the Uniform Child Custody Jurisdiction and Enforcement Act (1997) provides that “[c] ontinuing jurisdiction is lost when the child, the child’s parents, and any person acting as a parent no longer reside in the original decree State.” It further provides:
Thus, unless a modification proceeding has been commenced, when the child, the parents, and all persons acting as parents physically leave the State to live elsewhere, the exclusive, continuing jurisdiction ceases.
The phrase “do not presently reside” is not used in the sense of a technical domicile. The fact that the original determination State still considers one parent a domiciliary does not prevent it from losing exclusive, continuing jurisdiction after the child, the parents, and all persons acting as parents have moved from the State.
If the child, the parents, and all persons acting as parents have all left the State which made the custody determination prior to the commencement of the modification proceeding, considerations of waste of resources dictate that a court in State B, as well as a court in State A, can decide that State A has lost exclusive, continuing jurisdiction.
***
Jurisdiction attaches at the commencement of a proceeding. If State A had jurisdiction under this section at the time a modification proceeding was commenced there, it would not be lost by all parties moving out of the State prior to the conclusion of proceeding. State B would not have jurisdiction to hear a modification unless State A decided that State B was more appropriate under Section 207.
Exclusive, continuing jurisdiction is not reestablished if, after the child, the parents, and all persons acting as
parents leave the State, the non- custodial parent returns. As subsection (b) provides, once a State has lost exclusive, continuing jurisdiction, it can modify its own determination only if it has jurisdiction under the standards of Section 201. If another State acquires exclusive continuing jurisdiction under this section, then its orders cannot be modified even if this State has once again become the home State of the child.
9 In Sanders, we identified ten non-exclusive factors to be considered in determining the best interests of a child: (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. at 420.
10 In Taylor, the Supreme Court of Maryland set forth thirteen non-exclusive factors, including some that overlap with the factors set forth in Sanders. 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; and (13) benefit to parents. 306 Md. at 304-11.
11 Maryland Rule 2-535(a) addresses a trial court’s revisory power and provides:
On motion of any party filed within 30 days after entry of judgment, the court may exercise revisory power and control over the judgment and, if the action was tried before the court, may take any action that it could have taken under Rule 2-534. A motion filed after the announcement or signing by the trial court of a judgment or the return of a verdict but before entry of the judgment on the docket shall be treated as filed on the same day as, but after, the entry on the docket.
Rule 2-534 provides:
In an action decided by the court, on motion of any party filed within ten days after entry of judgment, the court may open the judgment to receive additional evidence, may amend its findings or its statement of reasons for the decision, may set forth additional findings or reasons, may enter new findings or new reasons, may amend the judgment, or may enter a new judgment. A motion to alter or amend a judgment may be joined with a motion for new trial. A motion to alter or amend a judgment filed after the announcement or signing by the trial court of a judgment but before entry of the judgment on the docket shall be treated as filed on the same day as, but after, the entry on the docket.
12 As Mother recognizes properly, Father sought to vacate, stay, and alter or amend the default judgment. He did not file a motion to vacate the interlocutory order of default.
13 Even if there was some error in the restrictions placed on Father, he would fare no better. It is not the policy of Maryland’s appellate courts to reverse for harmless error. Brown v. Daniel Realty Co., 409 Md. 565, 601 (2009) (holding that even when a trial court is found to have abused its discretion, Maryland’s appellate courts will not reverse for harmless error). Although “there is no precise standard, a reversible error must be one that affects the outcome of the case, the error must be ‘substantially injurious,’ and ‘[i] t is not the possibility, but the probability, of prejudice’ that is the focus.” In re Adoption/Guardianship of T.A., Jr., 234 Md. App. 1, 13 (2017) (quoting In re Yve S., 373 Md. at 618). The circuit court granted Father a hearing at which he had an opportunity to present evidence pertaining to the best interests of S.E. Father failed to show at that time that his ability to present his case was so substantially injured that it affected the outcome. We conclude, therefore, that even assuming there was some error, it was harmless.
Oral argument in the present case occurred on 10 January 2024. Although counsel confirmed to us that the best interest hearing on 5 December 2023 occurred, there was no record before us fleshing-out what happened. If Father introduced evidence or presented arguments specifically as to how he was impacted adversely by the lack of discovery and how it bore on the best interests of S.E. (relative to what additional evidence Mother may have introduced), that is left for perhaps another day.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Howard County Circuit Court’s judgment, sitting as a juvenile court, granting the petitions of the Howard County Department of Social Services to terminate father’s parental rights in relation to his natural children, who had previously been adjudicated as children in need of assistance.
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
Father and S.S. (“Mother”) are the parents of C.B., born in 2015; B.B., born in 2016; P.B., born in 2017; and S.B., born in 2018. On July 1, 2016, while under the supervision of Mother, a pit bull attacked C.B., who was 17 months old, requiring him to be airlifted to Johns Hopkins Hospital. Eight days later, while C.B. remained hospitalized, Mother gave birth to B.B. Johns Hopkins Hospital contacted the Department to report that B.B. was a substance exposed newborn after Mother tested positive for marijuana.
Appellant, L.B. (“Father”), appeals from an order of the Circuit Court for Howard County, sitting as a juvenile court, granting the petitions of the Howard County Department of Social Services (“DSS” or “the Department”) to terminate Father’s parental rights in relation to his natural children, C.B., B.B., P.B., and S.B. (collectively, “Respondents” or “the Children”), who had previously been adjudicated as children in need of assistance (“CINA”). Father also appeals from an order of the juvenile court changing the Children’s permanency plans from reunification to adoption by a nonrelative.
In this consolidated appeal, Father presents two questions for our review:
1. Did the court err in terminating the parental rights of [Father]?
2. Did the court err when it changed the permanency plans away from reunification and to adoption by a nonrelative?
For the following reasons, we affirm the judgments of the circuit court terminating Father’s parental rights.
Along with its brief, the Department filed a motion to dismiss Father’s appeal of the change in the Children’s permanency plans on the grounds that an affirmance of the judgments terminating Father’s parental rights makes Father’s appeal moot. As we shall explain, in light of our determination that the juvenile court did not err in terminating Father’s parental rights in the Children, we hold that Father’s appeal of the change in the Children’s permanency plans from reunification to adoption by a nonrelative is moot. Accordingly, we will grant the Department’s motion to dismiss.
On May 23, 2017, Mother tested positive for marijuana after giving birth to P.B., and Father refused to be tested. At this time, the family was living in a trailer owned by Mother’s grandfather. Michelle Harman, a DSS family preservation worker, began working with the family. On September 8, 2017, P.B. was brought to Johns Hopkins Hospital after she had persistent vomiting and tested positive for Oxycodone. It was not known how P.B. ingested the substance. A Child Protective Services (“CPS”) investigation made a finding of neglect and physical abuse with an unnamed maltreator.
After the CPS investigation, Mother and the Children moved out of Mother’s grandfather’s home and ended up moving into the Grassroots Crisis Intervention Center (“Grassroots”) in February 2018. Father moved in with them in May 2018. In May 2018, Father left C.B., B.B., and P.B. alone in a room together, during which time three-year-old C.B. played with a lighter and set the bed on fire. Another CPS investigation was initiated, and a finding of neglect was made against Father. Grassroots told Father that he could no longer stay there, and the family moved into a trailer belonging to one of Mother’s friends.
On July 27, 2018, Ms. Harman met with Mother, and Mother stated that she had a falling out with Father. C.B. had a bruise on his forehead from Father throwing a cup at him. Mother told Ms. Harman that a couple days earlier she had asked Father to watch the Children while she went to the bathroom. Instead of watching the Children, Father made the Children, who were all under four years old, walk to a trailer in a neighboring trailer park and cross multiple streets without supervision.
On September 19, 2018, Father and Mother were involved in a car accident with the Children in the car. Father, who had a suspended license, was driving the car, and the police officer who responded to the scene observed that Father had difficulty with his balance and had constricted pupils. The officer found straws with white powder in the front seat of the car, and Mother said that the straws were used by her to take Percocet earlier that day. Father was charged with driving under the influence and driving on a suspended license, and Mother was charged with posses-
sion of paraphernalia. The Children were taken to the hospital because none of them had socks or shoes and they all appeared to be dirty. Following the removal of the Children, Hadassah Freed, a Department social worker, was assigned as the primary social worker for the family.
On September 20, 2018, the Department filed a CINA Petition and Request for Shelter Care Authorization for the Children with the juvenile court in Howard County, Maryland. On September 28, 2018, the juvenile court ordered the Children removed from the care of Mother and Father and placed in foster care. While the Children were initially placed in separate foster homes, on October 11, 2018, all four Children were placed in the care of Ms. T., who had been C.B. and P.B.’s foster parent for the previous month. On January 24, 2019, the court entered an order finding that the Children were Children in Need of Assistance and committed them to the care of DSS.
When the Children first came into the care of the Department on September 19, 2018, S.B. had a significant diaper rash and a large mark on her left thigh. C.B. had an injury on one of his toes that was bleeding. P.B. also had an injury on one of her toes. B.B. had a nickel-sized bruise on her arm, a scar on her right ankle, and a problem with her left big toe. After the Children were placed in foster care with Ms. T., they were evaluated to determine if services were warranted. P.B. was diagnosed with a speech delay and began receiving speech services twice a month. C.B. was found to have a possible eating disorder due to trauma because he was eating food out of the trash and off the floor. B.B. was found to have anger problems and was hitting other children at day care. S.B., who was two months old at the time she entered the Department’s care, was found to be well-adjusted. All four Children were found to be thriving in the foster home.
The first in-person visit between Father and the Children occurred on September 28, 2018, supervised by the Department. On October 4, 2018, Father completed a mental health assessment but did not complete the substance abuse part of the evaluation. At this time, Father was working at IHOP. On January 24, 2019, the court ordered visitation between the parents and the Children at least twice a week, with one visit during the week supervised by the Department or Mother’s aunt, and one visit on the weekend supervised by Mother’s aunt. The Department would schedule a cab to drive the parents to and from the visit at the Department, and also made cabs available to the parents to travel to the weekend visits. During the visits supervised by the Department, Father would disappear for lengths of time.
When the visits took place at the Rosedale Library, the parents often had difficulty keeping track of the Children or would not pay attention to the Children. When the visits took place at the Columbia Mall, the parents often spent most of the visit talking to their friends that were at the mall instead of focusing on the Children. When questioned by the Department, Father would not respond or would say that he could do what he wanted.
On January 29, 2019 and February 6, 2019, Father underwent random substance testing and tested positive for marijuana. On February 15, 2019, Father completed a clinical assessment for substance-related disorders and met the criteria for a substance use disorder. Father was still regularly meeting with the Children twice per week. On March 6, 2019, the juvenile court ordered Father to complete a substance abuse evaluation, participate in
individual therapy, participate in parenting classes, participate in a 12-hour early intervention substance abuse education program, complete twenty substance abuse treatment groups, engage in individual mental health counseling or anger management counseling, and submit to random substance abuse testing when requested by their treatment program(s) or by the Department.
On March 18, 2019, DSS met with Father to sign a Service Agreement containing the same tasks that the court ordered Father to complete on March 6, 2019, and Father refused to sign the agreement. On August 7, 2019, the juvenile court issued an initial permanency plan order wherein it set the permanency plans as reunification and ordered Father to complete the previously requested services. The court found that both parents only began to address the required services in June of 2019, which was nine months after the Children were placed in foster care.
On August 24, 2019, Mother and Father were two hours late to a weekend visit and appeared to be under the influence when they arrived. Weekend visits were suspended until Ms. Freed could meet with Mother and Father to discuss the incident. Ms. Freed spoke with Father over the phone on August 28, 2019 to talk about his behavior during recent visits, and Father sounded groggy and slurred his speech. Father informed Ms. Freed that he was residing in a hotel. On September 20, 2019, Ms. Freed had an in-person meeting with Mother and Father where both parents arrived 40 minutes late and appeared disheveled with constricted pupils. Both parents refused to undergo drug testing. Both parents also were failing to attend drug education classes that the Department had arranged for them.
On November 15, 2019, in-person visits between Father, Mother and the Children resumed once a week. The Department stopped allowing four-hour weekend visits supervised by Mother’s aunt because Mother’s aunt allowed the parents to visit the Children while intoxicated. The visits continued regularly, including visits on November 19, 2019 and November 25, 2019. Both parents were working at this time, but Father stopped working sometime in December. As of mid-January 2020, the parents had one supervised visit a week with the Children at DSS.
On January 22, 2020, the juvenile court held a permanency plan review hearing. The Department recommended that the permanency plans be changed to adoption by a nonrelative, while the parents requested an additional 90 days to complete the tasks required of them by the court. In the court’s January 22, 2020 permanency plan review order, the court found:
Both parents have shown lack of follow-through with services. They still need to participate in a 12-hour early intervention substance abuse education program, complete twenty substance-abuse treatment groups, engage in weekly individual mental health counseling and parenting classes. They have not complied with random drug screening nor taken advantage of the agency’s services. Despite the social worker’s encouragement, the parents are not scheduling the referral appointments provided by the Department.
Although the court stated that “[i]t appears to the Court that the parents will not be able to timely be in a position to reunify with the [C]hildren[,]” the court ordered that the permanency plans remain reunification.
In-person visits supervised by the Department continued once a week until March 17, 2020, when that visit and the March
24, 2020 visit were canceled because the Children were sick. Virtual visits between the parents and the Children began on April 2, 2020, twice a week for one-hour.
On June 24, 2020, the juvenile court held a permanency plan review hearing, during which the Department again requested that the permanency plans change from reunification to adoption by a nonrelative. The parents requested a hearing on the issue so that they could present evidence. The hearing began on September 9, 2020 and continued for nine days during the next one and a half years: September 30, 2020, October 15, 2020, December 2, 2020, January 6, 2021, October 20, 2021, October 27, 2021, November 17, 2021, February 22, 2022, and February 23, 2022.
The Department changed its policy to begin allowing in-person visitation starting on July 1, 2020. At several times during the course of the hearing, Father requested that he be allowed in-person visitation with the Children. Each time, however, in-person visitation was denied by the juvenile court. During the virtual visits, Father often was not engaged.
In the April 9, 2020 visit, Father was observed to be smoking marijuana and disappeared for approximately 40 minutes. During some visits, Father would say hello to the Children and not participate in the visit or engage with the Children.
In September 2021, visits were changed to one one-hour visit a week for Mother and one one-hour visit a week for Father because of a protective order that Mother had obtained against Father. Around this time, Father’s attendance at visits became more inconsistent. Between September of 2021 and the termination of parental rights (“TPR”) hearing in March of 2023, Father only attended fourteen virtual visits with the Children. Although Ms. Freed spoke to Father about the importance of consistency in his visits with the Children, Father’s consistency did not improve.
On August 9, 2022, the juvenile court issued a Permanency Plan Review Order in which the court changed the permanency plans to adoption by a nonrelative and ordered the Children to remain in the care of the Department. In its order, the court stated:
The permanency plan has been reunification. The [D]epartment recommends that the plan be changed to adoption by non[]relative. This is due to the [C]hildren being in care for almost 3 years, the parent’s lack of follow through with court ordered tasks, and the continued concern of drug use and lack of stability. The parents recommend a plan of reunification. The parents are now separated, and [Mother] lives in the basement of her aunt and uncle and continues to be overwhelmed. [Father] is believed to be employed however he has not provided proof of employment, uses marijuana on a daily basis and has mental health issues. He is in need of services and refuses to work with DSS since he doesn’t trust them. Neither parent is able to provide proper care for the [C] hildren.
The [C]hildren are in a stable home and are doing well in the care of the foster parent, who is a pre-adoptive resource. The [C]hildren have bonded with the foster parent and their daily needs are being met. It is in the [C]hildren’s best interest to continue to be in a stable environment with the foster parent and for the permanency plan to be changed to adoption by non[]relative.
On September 15, 2022, Father filed a notice of appeal of the juvenile court’s change of the permanency plans from reunification to adoption by a nonrelative.1 On September 23, 2022, the Department filed Petitions for Guardianship with the Right to Consent to Adoption or Long-Term Care Short of Adoption of a Minor for the Children.
On October 4, 2022, Ms. Freed informed Father that the Department had filed the Petitions for Guardianship for the Children. Father made threats to harm Ms. Freed and her family, which led Ms. Freed to pursue and obtain a peace order against Father. That same day, Father went to his mother’s house and refused to leave despite his mother’s requests, and the police were called. When the police arrived, Father was damaging his vehicle with a knife and was arrested.
Later that day, after Father had been released, Father returned to his mother’s house and demanded to be let inside while swinging a crowbar and a baseball bat. Father’s mother came outside to tell Father that he could not come in, and when she turned to go back inside Father pushed past her and knocked her to the ground. Father’s mother believed that she fractured some ribs and broke her thumb, although she did not seek medical care. Once inside his mother’s house, Father crushed Xanax pills and snorted them before returning outside and attacking his own vehicle again. The police were called again, and when they arrived, Father removed a machete from his car and beheaded a pink teddy bear. Father was again arrested. After waking up in jail, Father stated that he had no recollection of any of the above events. Father was convicted of disorderly conduct and disobeying a lawful order and spent fifty-seven days in jail. Father was released on November 30, 2022. Father was placed on supervised probation that required him to refrain from drug usage and criminal activity and participate in therapy.
The juvenile court held a hearing on the Department’s Petition on March 6-10, 2023. On the first day of the hearing, Mother consented to the Petition and thus voluntarily relinquished her parental rights in the Children. On March 10, 2023, the court granted the Department’s order and terminated Father’s parental rights in the Children. On March 22, 2023, Father filed a notice of appeal of the juvenile court’s order terminating Father’s parental rights. Both appeals were consolidated by this Court. We shall provide additional facts as necessary to the resolution of the questions presented in this appeal.
DISCUSSION
I. Did The Court Err In Terminating The Parental Rights Of Father?
A. Facts
From March 6 through March 10, 2023, the juvenile court held a hearing on the termination of Father’s parental rights in the Children. On March 10, 2023, the court issued an order terminating Father’s parental rights in the Children and appointing DSS as guardian of the Children. The court’s findings of fact and conclusions of law are reproduced in their entirety below:
In ruling on the four petitions with the Department requesting guardianship with the right to consent to
adoption for the [Children], the Court has focused as it’s [sic] primary consideration on the health and safety of the [C]hildren and has considered all of the statutory considerations in Section 5-323 of the Family Law Article in making a determination of whether terminating [F]ather’s parental rights is in the [C]hildren’s best interest.
The Court notes that after opening statements but before the evidentiary portion of the trial started, [Mother] signed consents in each of the cases and a Post-Adoption Contact Agreement. She also put her consent on the record orally and was voir dired by her attorney. The Court accepted her conditional consent on the record and received the documents that [Mother] had signed as evidence in the cases and the cases went forward as to [Father] only.
The Court finds that DSS offered services to the family prior to placement. That the family came to the attention of Howard County DSS in May 2016 when [P.B.] was an infant and had been hospitalized as an unresponsive infant. After testing, it was determined [P.B.] had been exposed to, I believe, OxyContin, I don’t know, maybe Oxycodone, an oxy drug, an opioid. And she was hospitalized for a number of days. The parents reported that [P.B.] had been in the care of her maternal grandmother, uncle and great- grandfather in the trailer in which she and her sister and brother and parents lived.
In 2017, Department again had a report on the family when [M]other tested positive for THC at the birth of one of her children. DSS assigned a family preservation worker, Michelle Harman to work with the family. Ms. Harman had home visits with the family every two weeks. Ms. Harman testified about numerous locations that the family had stayed including a trailer belonging to [M]other’s grandfather, [Father’s] mother’s house, some motels, a neighbor of [Mother’s] grandfather’s house and [F]ather’s -- I don’t know if I mentioned but [F] ather’s mother also.
When the family was having difficulty with housing, Ms. Harman referred them to Grassroots so that they could be connected to the Bridges for Housing Program. She also offered that the Department would provide a security deposit on an apartment to assist the family if they were able to locate an apartment. The family did stay in cold-weather shelters for about three to four months, according to [Father] and then were at Grassroots for a few months until the fire that [C.B.] had started when he was left unattended. The family was asked to leave Grassroots after that, and Ms. Harman continued to coordinate communication with Bridges to Housing and the family and also referred the family to other shelter programs in other jurisdictions.
After the fire at Grassroots that was set by [C.B], Ms. Harman worked with the family to create a safety plan so that the [C] hildren could stay in the family’s care. And that plan was that the [C]hildren were not to be left alone in [F]ather’s sole care, that there always had to be another caregiver present.
Ms. Harman testified that she became aware the [C]hildren had some missed medical appointments and arranged for the family to have access to taxi services so that they’d have transportation so they could keep the appointments. She assisted [Mother] with applications for Food Stamps, Medical Assistance, and Temporary Cash Assistance. She referred the family to Infants and Toddlers and to Parents as Teachers a number of times, but the parents apparently did not complete either program. Ms. Harman offered drug screening to the family and the family had indicated they were not interested in treatment for their marijuana use. Ms. Harman testified she provided the family with referral to the Work Force Program to assist them in filling out resumes and employment applications. And I believe she had also referred them to an expungement service when [F]ather indicated that he felt that his record from the past was a barrier to him getting employment.
I will note that the family was homeless, and the marijuana was on the Departments radar at this time. That was not the reason that the [C]hildren were sheltered. And that the DSS had worked with them with regard to those issues.
After the [C]hildren were sheltered in September of 201[8], in making findings of the extent, nature and timeliness of the services offered to facilitate reunification, Hadassah Freed was assigned by Department as the Foster Care Social Worker for the family. At first Ms. Freed and Ms. Harman were both involved until the adjudication of the [C]hildren at CINA in January. They met together so that Ms. Freed could get up to speed on the family’s needs. She also met with the family to discuss what her role would be going forward.
DSS continued to provide support for the parents to access Bridges for Housing Program. They continued to offer the security deposit if the family was able to find housing. DSS provided [F]ather with information about a job fair, told him about openings at the Wegmans grocery store. DSS provided the family with service plans that were six months long and monitored their progress. There were bi-weekly visits. The parents were referred to three different parenting classes. They were referred to the Healthy Families Program. DSS supervised twice weekly visits for the family immediately after the [C]hildren were sheltered, one during the week and a longer one on the weekend. The weekly visits were supervised by Department of Social Services. The weekend visits were supervised by other people in the community, family members and so forth.
After one of the supervisors for the weekend visits reported that the parents had arrived at her house extremely late and appeared to be impaired for the weekend visit, the weekend visits at her home were discontinued. Ms. Freed and her supervisor met with the parents to discuss the incident. In
March 2020 when the Covid shutdown happened, the in-person visits obviously had to end. DSS was able to institute
virtual visits after a few weeks. There were challenges with the virtual visits because, of course, the [C]hildren were very young at the time. DSS provided the parents with suggestions and tips on how to connect with small children on Zoom.
In August of 2021, [F]ather requested separate visits due to a Protective Order and at that point, the visits went to one -- two visits a week, one with each parent. The family was given drug screening. They were referred to substance abuse facilities for treatment and -- for evaluation and recommendations for treatment. DSS referred [Father] for mental health treatment, referred the parents to couple’s counseling. Father was referred to anger management. The four [C]hildren were placed with a foster parent in a therapeutic foster home. And after about one month, all four [C]hildren were able to be in the same home where they had -- the older two had been with the existing foster mother, the younger two were moved in with her a month later.
DSS has monitored the [C]hildren to assure they are receiving proper medical and dental care and that their educational needs are being addressed. The three older children all have particular needs, [C.B.] probably having the most profound needs. He has learning disabilities. He’s a slow processor. He has behavioral issues at school and has trouble self-regulating. He’s been evaluated and there are IEPs in place for him. [B.B.] has had – [B.B.] and [C.B.] have both had issues with unusual eating patterns. [C.B.] eating food out of the trash and off of the floor. [B.B.] stuffing her face with so much food that she can’t chew it all. And those situations have been addressed and the foster mother reports that they’ve all but disappeared. They are very rare now.
DSS, at placement of the [C]hildren, did explore relative resources. When [F]ather’s mother offered herself as a resource, she was initially disqualified because of a prior [finding] of indicated child abuse. But she was offered an opportunity to be reconsidered if she would complete a parenting class and that didn’t happen according to [Father’s] mother. It didn’t happen because [F]ather asked her not to get involved and she acceded to his wishes. But in any event, she did not accept the offer and did not later come forward and offer herself again as a relative resource until very recently. I believe that the findings at the -- at one of the hearings with Judge Tucker on the exceptions, she had testified that she wanted to be a resource. Although that was testimony in court, I don’t -- her testimony was she had not reached out to the Department again.
With respect to the extent to which the Department and the parents have fulfilled their obligations under the Service Agreement. When there was a Safety Agreement in place with the Department of Social Services, and this was before the [C]hildren were sheltered, both parents had signed that agreement. It was following the fire at Grassroots. I did not get any evidence or testimony as to whether the parties complied with the terms of that agreement. Father did not participate in the Service Agreements. After the [C]hildren were
sheltered, by his own testimony, he avoided contact with the social worker. Ms. Freed testified he was not present for the bi-weekly appointments and if he was there, he would simply leave the room.
Mother signed the Service Agreements and I know that the Service Agreements really had tasks for her to complete. I’m not sure I recall seeing any tasks for [Father] to complete. And DSS met its obligation to provide oversight, transportation, and referrals to assist at least [M]other in being successful in completing the tasks that she had agreed to in the Service Agreement.
With respect to the results of the parents’ efforts to adjust their circumstance, condition or conduct to make it in the best interest to return home. First of all, the extent to which this parent has maintained contact with the child, [F]ather was initially consistent with attending in-person visits. There were reports that at the mall visits, that there were almost always adult friends of the parents present and that they would spend time visiting with their friends rather than focusing exclusively on [the Children]. It was reported at the library, [F]ather would take smoke breaks and bathroom breaks. He seemed to have difficulty connecting with the [C]hildren. When the visits became virtual, [F] ather became extremely inconsistent in attending the visits. And it is of note to the Court that there’s been no effort to have contact with the [C]hildren since February 1st, 2023. It’s reported that he had attended only fourteen visits since September of 2021.
The extent to which the parent has maintained contact with the Department. I think this is one point on which [Father] and the Department agree that he does not communicate or share information. He says that he does not trust them. He has routinely not made himself available to the social worker for visits. And if he’s in the home, he leaves the room. And sometime in 2022, he actually made threats to the social worker and her family to Ms. Freed prompting her to get a Peace Order, further complicating his ability to maintain contact with the Department. But he clearly had no interest in cooperating with the Department, taking their recommendations and working with them.
The extent to which the parent has maintained contact with the caregiver to the extent feasible. The foster mother testified that she would sometimes see the parents for visitation exchanges. That during virtual visits, she was available to answer questions but that hasn’t been possible because [Father] has rarely attended the virtual visits. She also expressed concerns about the impact on the [C]hildren of his lack of consistency with attending those visits.
With respect to the parents’ contribution to a reasonable part of the [C]hildren’s support and care to the extent that the parent is financially able to do so. Father testified he’s had numerous jobs. Apparently, he has many skills including
construction, cooking, serving, tattooing, although I never -- it’s my understanding that you need a license to perform tattooing and I don’t think he’s ever worked in a tattoo parlor so I’m not sure that that’s a legitimate or feasible regular form of support. He says he’s working in a warehouse now. So, he certainly has the ability to work and in this job market -- I just heard on the news this morning, there’s two jobs for every unemployed person. I know the restaurants have had a lot of difficulty since the Covid shutdown. It seems like finding a job would not be difficult, I think, based on what I’ve heard about that [F]ather often has jobs but does not keep them for long periods of time. And that was his testimony as well. When he would testify about how long he had worked at jobs, it was normally a month or three or four months. And the Court would -- I would surmise that he was contributing to the [C]hildren’s expenses while they were in his care as he was able to but there’s no indication he’s made any effort to do so while the [C]hildren have been in the care of the Department of Social Services. Father also has notably not provided the Department of Social Services with any documentation of any of his employment or his income.
The existence of a parental disability that makes parent consistently unable to care for the child’s immediate and ongoing physical and psychological needs for long periods of time. This one is, I think, a little more difficult for the Court because [F]ather testified that he has PTSD, ADHD, bipolar disorder. That he’s been in treatment throughout his life. That he’s had numerous caregivers. No one consistent caregiver. That he’s had numerous therapists, numerous psychologists. He’s been on a number of medications for those things. Those conditions properly treated would not make a parent consistently unable to care for a child’s immediate and ongoing physical and psychological needs for long periods of time.
A greater concern to the Court is the substance abuse. And as I said before, and I think I said yesterday, marijuana is not the substance that it appears to the Court that DSS was concerned about. It’s not the substance that the Court is concerned about. The [C]hildren were sheltered after an automobile accident that apparently was not the fault of the driver of the minivan in which the [C]hildren were but in which there were cut straws with white, powdery residue in them, where [F]ather was showing signs of impairment. He had constricted pupils, which certainly are not consistent with marijuana use but are not inconsistent with other substance abuse, severely slurred speech. The other driver told the trooper that [Father] appeared to have impaired coordination. He was offered a drug test and declined it.
The Court has always taken the position that declining a drug test is -- raises a suspicion that the person would not have passed the drug test. And also, the fact that [Mother] had told the trooper, and why would she say this if this was untrue, that she had snorted Percocet, an opioid drug, through one of those straws.
Father has refused to submit to substance abuse testing through DSS since the Covid shutdown. Father declined the last drug test offered by DSS in August 2022. Father’s mother told the Department that the family couldn’t live with her because the parents were stealing her prescription oxycodone. Father was placed on suboxone when he was released from jail November 30th, 2022, just about four months ago. Suboxone is a drug that’s used to treat opioid addiction. It’s not for treating addiction to Xanax. In fact, you can’t take oxycodone with Xanax. It’s a deadly combination. And that was the testimony from Doctor Frye.
In October of 2022, [Father] admitted to snorting Xanax through a straw and claims he had a blackout and doesn’t recall anything from that moment until he awakened in jail. After being released from jail, he was in a thirty-day substance abuse treatment center, also consistent with detoxing from opioid use. Father claims he’s been in treatment since he was released from jail but did not bring documentation to court or to the Department of Social Services of his compliance with treatment or his drug test results. And I bring that up now because the Court believes that this problem is an underpinning of the reason the [C] hildren are still in care, the reason that reunification has not been possible. And I don’t make findings with regard to [Mother] because she’s no longer a part of this case. But there are ample indications that [Father] has unmet substance abuse problems. Maybe he’s meeting them now. We have no evidence to support or contradict that. But it’s also of significant concern that when [F]ather did the substance abuse intake evaluation, he did not disclose any use of opioid drugs or other off-label use of prescription drugs.
Whether additional services would be likely to bring about a lasting parental adjustment so that the [C]hildren could be returned to the parent in a reasonable time not to exceed eighteen months from placement unless the Court makes specific findings it’s in the [C]hildren’s best interest to extend the time for a specified period.
Father testified he had undergone the thirty-day in-patient drug program and then the intensive outpatient program. He’s currently in substance abuse and mental health treatment across the street from his mental health program -from his substance abuse program. We have no documentation of either of those things. There’s no evidence of either of those things. The Court notes that he is on probation in Baltimore County arising out of the incident with his mother back on October 4th, 2022, about six months ago, when -- maybe seven months ago, when he engaged in extremely bizarre behavior and used Xanax by sniffing it through a straw into his nose, which is not a prescription use of Xanax, and when he assaulted his mother by pushing her, causing her to fall, breaking a rib and fracturing her thumb.
Father’s current situation is potentially the most stable he’s been in since the [C]hildren were placed four and a half years ago. He’s living with his mother and his daughter, [Z.B.], and his son, [A.B.], in the home that his mother has owned for nine years. So, it is a stable home. He states that he’s been employed for three weeks.
It causes significant concern that while his mother testified that her home was a resource for him and all six of the children, she was willing to make renovations to the home so that there would be room for all of the children to have a bedroom. Not an individual bedroom. Nobody could make that much room. But so that it would be more accommodating to the [C]hildren’s needs. And his testimony was that it was temporary. He does not plan to stay there.
The Court finds, in light of history of the case, so [F] ather’s history of maintaining employment only for brief periods of time, his history of housing and stability, his refusal to work with DSS or provide them with information, it’s unlikely that the current situation is going to lead to a lasting parental adjustment that would allow the [C]hildren to be placed in his care in a reasonable period of time. This case has been argued as if this Court today would have the opportunity to just send the [C]hildren home with [F]ather and his mother. And that is not what would happen if this request for guardianship was not granted. If this was not granted, the [C]hildren would remain in foster care and would be under the guardianship -- care and custody, excuse me, of Department of Social Services, not automatically returned. We would be going back to, I suppose, a plan of reunification. There’s been no cooperation, no sharing of information. There’s no reason to believe that’s going to change in the future. Father’s made it completely clear he does not trust the Court; he does not trust the Department and he’s not going to work with them.
Whether the parent has abused or neglected the [C]hildren. [Father] has left the [C]hildren unattended when he was at that homeless shelter. His testimony was he was washing laundry and it was as far away as the next courtroom, which may sound like a very short distance, but this is a very big courthouse. And leaving the [C] hildren alone in a room and going down the hall to do laundry when you have an infant, a one-year-old and three-year-old is not a great idea. And the fact that they tore up the bedroom while he was gone is not surprising to anyone who has ever had small children. That’s what they do. You have to -- especially toddlers -- you have to watch them 24/7, every moment of the day. Many parents take them in the bathroom with them. You have to keep an eye on the children. And then he got frustrated and went outside to talk to [Mother] and to smoke a cigarette and [C.B.] lit a fire in their room because he was left unattended with two younger children. He was three at the time. I believe he was three. And there was a lighter that didn’t have a child guard on it. And there was some testimony that there
was also spilled hand sanitizer, which doesn’t seem like a safe situation either.
There’s testimony that when the parents live together at one point, [F]ather threw a sippy cup at [C.B.] and hit him in the head. I have never heard of a parent throwing a sippy cup to a child. And I believe that the statement from [M]other was that it was done in anger. Father sent [C.B.] and his sister out to walk alone through the trailer park from [Mother’s] grandfather’s trailer to another trailer, Poppy’s trailer. Or maybe they were in the neighbor’s trailer, and they were walking to grandfather’s trailer. I don’t know. The older of the two was maybe three years old. And apparently there was a street they had to cross. This is neglect. This is an unsafe thing to do with children of that age. They need to be attended at all times.
At the time of the accident leading to the [C]hildren being sheltered, I’ve discussed that there was ample evidence to conclude that [F]ather was under the influence of a drug , that there was no sober parent available, as [M]other had admitted she had snorted Percocet through one of those straws.
Father has failed to maintain stable housing or employment causing the [C]hildren to have to stay in shelters, motels, and at one point, on an unenclosed front porch. I do not find that the abuse allegation is particularly serious. It does cause concerns that a person in anger would do something to injure a child, but it was not a serious injury. The neglect allegations, the Court takes very seriously. These are just the ones that we know about. And the [C]hildren were placed in very dangerous situations, walking alone across the street, walking alone through a neighborhood or a trailer park at very, very young ages, being left alone in a situation where a fire was started.
I have to go to my cheat sheet. I have to state on the record that I do not find that the parent has subjected the child to chronic abuse, chronic and life-threatening neglect, sexual abuse, or torture. I do not find that the parent has been convicted of a crime of violence against any of the minor [C]hildren, any of his offspring or another parent of the child or aiding or abetting, conspiring, or soliciting to commit a crime described above. This parent has never involuntarily lost parental rights to a sibling of the child, although I understand that [A.B.] is in the legal care -- well, it’s either custody or guardianship. I think his mother had said both. But she has legal custody but that’s not a finding for this. So, having not made a finding under [d(3)(iii), (iv) or (v)], I find that section F is not applicable.
With respect to the emotional ties and feeling toward the child’s parents, the child’s siblings, and others who may affect the child’s interests significantly. The Court finds the [C]
hildren have integrated into their foster home. They enjoy family nights. They’re close with the foster parent’s extended family who they visit in New York and consider her parents to be their grandparents, consider her siblings to be their aunts and uncles. They do many family activities together. [S.B.], the youngest was only a few months old when she came into care and seems to be the most closely attached to the foster parent. [S.B.] and [P.B.] both call the foster mother Mommy. [C.B.] calls her [Ms. T.] and [B.B] alternates between Mommy and [Ms. T.]. But they do consider their foster brother their brother. The [C]hildren are very close with each other. Their attorney described them running together, I think she called it a stampede, when they want to go outside and play. They enjoy playing together in the foster parent’s backyard.
The [C]hildren have been in care for about four and a half years, which is significant because the oldest child just turned eight. So, for [C.B.], that’s been half of his life. For the other children, it’s an even greater percentage. They are six, five, and four years old.
[C.B.] and [B.B.] seem to have more attachment to the birth parents. The younger two, perhaps, less attachment. And for the younger two, the greater attachment is definitely with the foster mother. The [C]hildren’s attorney indicated that she felt for [C.B.] and for [B.B.]. It would be hurtful if they weren’t able to see their dad or their mom. And while it’s certainly true that virtual visits are a poor replacement for in-person visits, [F]ather has fallen down on the job by failing to take advantage of the visits that he can have as a way to stay present in the [C]hildren’s lives. And he’s been inconsistent which is unquestionably difficult for the [C]hildren who were likely looking forward to seeing him and hoping to hear from him. It’s extremely disappointing that even with this case coming up, that the visits did not increase. In fact, I think they may have fallen off even more with the last visit being a telephone call on [C.B.’s] birthday on February 1st.
The [C]hildren are now in school because it’s time for them to be in school. When they were in care, they were too young. I mean, before they went into care, they were too young. They go to the YMCA with -- well, now it’s called the Y -- with their foster mother every weekend. They swim. They do family nights, movie nights, open gym. They’ve been in the same foster home for over four years. They’ve adjusted to her home and community. The [C]hildren do sporting activities through the Y and the two older girls have been in Girl Scouts. Although the older three children are having challenges at school, they’re receiving appropriate intervention and are making progress.
Father’s counsel pointed out that, you know, the doctor specifically recommended team sports. And the Court does not find it unreasonable that a single foster parent with five children, four foster children and her own child, would find it difficult to get four children into team sports. And they are very young for team sports. I mean, the eight-year-old is probably
old enough but for six-, five- and four-year olds, it’s normally just play groups type sports like they’re receiving at the Y.
The [C]hildren’s feeling about severance, the parent/child relationship. The Court has had no direct evidence on the point. The foster mother testified that the [C]hildren have never asked about their parents, although she has put a picture of the pictures in the [C]hildren’s bedroom, and she does tell them that Mommy and Daddy miss them and love them. The [C]hildren’s attorney indicated that she felt the older two would be sad not to see [Father] and she’s hoping something can be worked out in the future so that that can continue in some way, shape or form.
The likely impact of terminating the parental rights on the [C]hildren’s well-being. Father has a plan, but I don’t find that it’s a realistic plan. He’s working only parttime and he plans to move away from his mother’s stable home presumably with five children from ages two to eight or perhaps a little older by the time they do that. Less than six months ago, he engaged in violent, bizarre behavior in front of his mother’s house causing her to move his belongings out of the house and into his vehicle which does not indicate a stable housing situation. She ended up being injured in this very difficult situation in which [F]ather was arrested not once but twice. The first time being told, released on his own recognizance, just stay away from her house, and he went directly there, engaged in extremely odd behavior involving destroying or damaging his car with a bat and a crowbar and also using a machete to behead a teddy bear. I assume that was his daughter [Z.B.’s] teddy bear. It was pink. Which I suppose -- it just causes great concern. And that was October 4th of 2022, which was not very long ago.
Father’s account of how he obtained temporary custody of [Z.B.] also raises concerns. He testified he picked her up from daycare and now he has temporary custody. What I didn’t hear was we had a court case, or her mother and I agreed or we discussed it. And then he picked her up from daycare. And to the extent that this was unplanned, it was very likely disruptive to [Z.B.] who had been used to a different way of life. He also testified while he was incarcerated and presumably during his in-patient treatment that he left [Z.B.] with a babysitter, not his mother. And I don’t know how that was arranged since he was incarcerated from the time of the incident until his ultimate release after his court date when he got a time-served disposition. Also, extremely disruptive for a two-year-old child to be taken from her caregiver. And I don’t know who this babysitter was, but it was not -- according to Mr. B., it was not his mother.
The Court is extremely concerned with [F]ather’s lack of candor, both with the Court and with DSS regarding his substance abuse problem and also with his initial substance abuse evaluation. His mother testified that he’s been on suboxone since he was released from jail,
which is a substance used to treat opioid addiction, the thirty-day detox. It’s also consistent with opioid use. Never once has DSS been made aware, I suppose other than whatever conclusions that they could reasonably draw at the time the [C]hildren were sheltered, that there was opioid use going on. The two straws with the white powder, [F]ather’s physical condition at the time of the shelter or immediately before, the report from [F]ather’s mother to DSS, the observation[]s [that Father] would fall asleep during virtual visit[s], the lack of ability to maintain employment and housing, all completely consistent with that.
The Court is also concerned with [F]ather’s mother’s lack of candor. On direct examination, she’s testifying that the [C]hildren were always clean and well-fed, and everything was perfect, and her son has always had stable housing and her house has always been open to him. And on cross, she admitted that the [C]hildren were often dirty, or she had told DSS in the past the [C]hildren were often dirty, hadn’t had changed diapers, and were always hungry. She had told DSS that the parents were stealing her prescription drugs. She testified that [F]ather and [Z.B.] had lived with her for six months and [F]ather said that he’d left [Z.B.] with a babysitter for two to three months while he was in jail and presumably detox.
For the last four years, the [C]hildren have had stable housing, consistent parenting, ability to participate in school and activities, contact with the foster mother’s extended family. The foster mother has been able to provide a home for all four of the very young children, some of whom have significant behavioral problems and educational needs. But she provides them with a safe and stable home where, most importantly, they can all be together. They’re doing well in her care. And the Court does find that termination [of] this parent’s rights would be in the [C]hildren’s best interest to allow them an opportunity to have permanency after this very long case.
So, having considered all of the factors enumerated in 5-323 of the Family Law Article and the factual determinations, the Court finds by clear and convincing evidence that the facts demonstrate the unfitness of [Father] to remain in a parental relationship with [the Children] by virtue of his very recent history of substance abuse, out of control anger management issues, mental health issues, that he’s received inconsistent or inappropriate treatment -- he’s avoided appropriate treatment, history of neglect of the [C]hildren, employment instability, housing instability, and failure or refusal to cooperate in the efforts of Department to reconcile the family.
Accordingly, the Court will issue an order to the local Department of Social Services with the right to consent to adoption or other planned permanent living arrangement terminating the rights, duties and obligations and interests of [Father], the natural and legal father of the minor [C]hildren.
(Emphasis added.)
B. Standard of Review
“Maryland appellate courts apply three different but interrelated standards of review when reviewing a juvenile court’s decisions at the conclusion of a termination of parental rights proceeding.” In re Adoption/Guardianship of C.E., 464 Md. 26, 47 (2019) (quotation marks and citation omitted). First, any factual findings made by the court are reviewed for clear error. Id. Second, any legal conclusions made by the court are reviewed de novo. Id. Finally, if the court’s ultimate conclusion is “founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the [court’s] decision should be disturbed only if there has been a clear abuse of discretion.” In re Adoption/Guardianship of Ta’Niya C., 417 Md. 90, 100 (2010) (quotation marks and citations omitted) (alteration in original). “A decision will be reversed for an abuse of discretion only if it is well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.” In re J.J., 231 Md. App. 304, 345 (2016), aff’d, 456 Md. 428 (2017) (quotation marks and citations omitted).
Under Maryland Rule 8-131(c), in a case tried without a jury, the appellate court “will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” This Court has stated that “[a] trial court’s findings are ‘not clearly erroneous if there is competent or material evidence in the record to support the court’s conclusion.’” Azizova v. Suleymanov, 243 Md. App. 340, 372 (2019) (quoting Lemley v. Lemley, 109 Md. App. 620, 628 (1996)). Further, under Rule 8-131(c), “the evidence and all inferences drawn therefrom must be viewed in the light most favorable to . . . the prevailing party[.]” Gertz v. Maryland Dep’t of Env’t, 199 Md. App. 413, 430 (2011). Finally, it is well established that the weight of the evidence is a question for the trial court, as the fact finder. See Thomas v. Cap. Med. Mgmt. Assocs., LLC, 189 Md. App. 439, 453 (2009).
C. The Law
“Parents have a fundamental right under the Fourteenth Amendment of the United States Constitution to ‘make decisions concerning the care, custody, and control of their children.”’ In re C.E., 464 Md. at 48 (quoting Troxel v. Granville, 530 U.S. 57, 66 (2000)). In In re C.E., the Maryland Supreme Court summarized the law governing the termination of parental rights:
In acknowledgment of the important rights at stake, we have previously described three elements of heightened protection provided to parents in a TPR proceeding. See In re Adoption/ Guardianship of Rashawn H., 402 Md. 477, 498, 937 A.2d 177 (2007). First, we have recognized that there is the “presumption that the interest of the child is best served by maintaining the parental relationship, a presumption that may be rebutted only by a showing that the parent is either unfit or that exceptional circumstances exist that would make the continued relationship detrimental to the child’s best interest.” Id. at 498, 937 A.2d 177. Second, this presumption can only be overcome if the State establishes by clear and convincing evidence of unfitness or exceptional circumstances to justify a TPR. Id. at 499, 937 A.2d 177. This is a heavier burden than the preponderance of evidence standard utilized in a standard child
custody case. Id. Third, the General Assembly provided factors that the juvenile court must expressly consider in determining whether termination is in the child’s best interest. Id. While a juvenile court is permitted to consider additional factors, the statutory factors are intended to provide the basis for any termination of parental rights.
The requisite factors are codified in FL § 5-323(d). FL § 5-323(d) is divided into four subparagraphs of factors that the court must use to assess both unfitness and exceptional circumstances. Maryland’s guardianship statute does not define parental unfitness or exceptional circumstances. However, the existing statutory scheme is the appropriate mechanism for the evaluation of parental fitness or the kinds of exceptional circumstances that would suffice to rebut the presumption for continuing the parental relationship and justify the termination of that relationship. In re Adoption/ Guardianship of Amber R., 417 Md. 701, 715, 12 A.3d 130, (2011); In re Adoption/Guardianship of Ta’Niya C., 417 Md. 90, 104, 8 A.3d 745 (2010) (“[T]he same factors that a court uses to determine whether termination of parental rights is in the child’s best interest under the TPR statute equally serve to determine whether exceptional circumstances exist.”); Rashawn H., 402 Md. at 499, 937 A.2d 177.
The four subparagraphs of FL § 5-323(d) are divided by topic and include consideration of: (1) the services that the Department has offered to assist in achieving reunification of the child with the parents; (2) the results of the parent’s effort to adjust their behaviors so that the child can return home; (3) the existence and severity of aggravating circumstances; (4) the child’s emotional ties, feelings, and adjustment to community and placement and the child’s general well-being. [] Ultimately, these factors seek to assist the juvenile court in determining “whether the parent is, or within a reasonable time will be, able to care for the child in a way that does not endanger the child’s welfare.” Rashawn H., 402 Md. at 500, 937 A.2d 177. This is the appropriate inquiry because courts are required to afford priority to the health and safety of the child. FL § 5-323. As such, the best interest of the child is the overarching standard in TPR proceedings. In re Adoption/ Guardianship of Cadence B., 417 Md. 146, 157, 9 A.3d 14 (2010) (citing Ta’Niya C., 417 Md. at 90, 8 A.3d 745) (“[T]he child’s best interest remains the ‘transcendent standard in adoption, third-party custody cases, and TPR proceedings.’ ”). Id. at 50-53.
Under Maryland law, the Department “must make good faith efforts to provide services to achieve reunification,” In re Shirley B., 191 Md. App. 678, 716 (2010), aff’d, 419 Md. 1 (2011), and “the obligation to render ‘reasonable efforts’ [toward reunification] rests on the Department, not the parent[.]” In re James G., 178 Md. App. 543, 601 (2008). The “reasonableness” of the Department’s efforts to achieve reunification is determined by a consideration of the particular circumstances of each case. See In re Shirley B., 191 Md. App. at 710-11 (“[T]here is no bright line rule to apply to the ‘reasonable efforts’ determination; each case must be decided based on its unique circumstances.”). Such determi-
nation by the juvenile court is a factual finding that is reviewed for clear error. Id. at 708-09.
D. Analysis
i. The Juvenile Court’s Order
In its thorough and comprehensive oral opinion, the juvenile court properly considered all of the statutory factors under FL § 5-323 and in its consideration emphasized a number of circumstances that led to its decision to terminate Father’s parental rights. The court cited Father’s neglect of the Children when they were in his care, such as when Father left the Children alone at Grassroots and C.B. started a fire, and when Father made the Children walk alone through the trailer park when they were under four years old. The court was concerned about Father’s substance abuse and his consistent refusal to undergo substance abuse treatment or testing. Although Father testified that he had been in treatment since his release from jail in November of 2022, the court noted that Father had failed to provide any documentation regarding his compliance with any treatment or the results of any drug tests.
The court pointed to Father’s employment instability, specifically Father’s testimony that he had trouble keeping a job for a long period of time, often only lasting a few months. The court noted that Father had not provided the Department with any documentation regarding his employment or income. The court also was concerned about Father’s housing instability, which led to the Children often residing in shelters or motels when they were in his care. Although the court acknowledged that Father’s situation at the time of the TPR hearing was stable and that he was living with his mother, the court noted that Father testified that he did not plan to stay there long term. Finally, the court considered Father’s bizarre behavior in October of 2022 that involved Father snorting Xanax through a straw, assaulting his mother, and using a machete to behead a pink teddy bear. We will now review each of Father’s arguments in turn.
ii. Appellant’s First Argument
Father argues that the juvenile court erred in terminating his parental rights because Father was prevented from maintaining a relationship with the Children due to the court’s denial of in-person visitation. Specifically, Father contends that, because the court must consider the emotional ties and the level of contact between a parent and child in a TPR case and virtual visits have “a well-known number of limitations compared to face-to-face family interactions[,]” it was especially important for Father to have in-person visits with the Children. Father also argues that the court should not have found that Father was lacking in contact with the Children because Father constantly requested in-person visits and in-person visits were available to other families, but not to him. According to Father, because visits are a required element of the reunification process, “the court’s refusal to reinstate in-person visits . . . was against the purpose of the CINA statute.”
Under FL § 5-323(d)(2)(i)(1), a juvenile court must consider 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 . . . the extent to which the parent has maintained regular contact with . . . the child[.]” Under FL § 5-323(d)(4)(i), a juvenile
court must consider “the child’s emotional ties with and feelings toward the child’s parents[.]” We hold that the juvenile court’s denial of in-person visits was not the cause of Father’s inability to maintain a relationship with the Children. We shall explain. Although virtual visits may have made it harder for Father to engage with the Children than in-person visits, Father often failed to pay attention to the Children or attend visits at all. During some visits, Father would say hello to the Children and not participate in the visit or engage with the Children. Father was also seen disappearing from visits for long stretches of time. Father testified that between March of 2020 and March of 2023, he attended only 40 virtual visits with the Children, meaning that he missed approximately 75% of them. Once Father began visiting the Children separately from Mother between September of 2021 and March of 2023, a period of a year and a half, Ms. Freed testified that Father attended only fourteen weekly visits with the Children, meaning that Father missed approximately 80% of all visits.
Although Ms. Freed spoke to Father about the importance of consistency in his visits with the Children, Father’s attendance at the visits did not improve. Even when the visits were in-person before the Covid-19 pandemic, Father would not pay attention to the Children and was more focused on talking with his friends than engaging with the Children.
Based on Father’s failure to participate in and take advantage of the virtual visits given to him, we conclude the juvenile court did not err in finding that Father failed to maintain regular contact and emotional ties with the Children.
iii. Appellant’s Second Argument
Second, Father argues that the juvenile court improperly focused on older evidence when it found Father to be unfit. According to Father, the court overlooked the fact that he “worked, lived with [his mother], had treated his mental health, was in a substance use program, and enjoyed a good working relationship with his current [D]epartment worker.” The court, Father argues, “cannot ignore that progress in favor of past or speculative concerns, especially when termination is the result[,]” and that Father’s “current circumstances demonstrate an upward trajectory of progress[.]” In the alternative, Father argues that, even if he is currently unfit, “his substance use, mental health, and housing issues have been addressed,” and “the court did not know whether [Father] would be able to parent effectively in the future.”
In its initial CINA disposition order, filed on January 16, 2019, the juvenile court found that Father had neglected the Children and ordered Father to undergo a substance abuse evaluation and participate in parenting classes. In the court’s August 9, 2022 permanency plan review order, the court found that Father’s situation remained unchanged: [Father] has not cooperated with DSS and is resistant to receiving services through DSS. He does not trust DSS and refuses to communicate with them. He wants any communication to be through his attorney. He contends that the DSS worker “talks at him instead of to him.” [Father] has had various employment over the past few years. He has worked in construction, landscaping and has training as tattoo artist. He uses marijuana daily and testified that he uses marijuana for ADD, ADHD, anxiety, depression and for suicidal thoughts.
He has been on multiple medications since the first grade and has been hospitalized three times. Since using marijuana he no longer has suicidal thoughts and is less stressed. Marijuana helps [Father] escape reality and slows his mind and helps him focus. [Father] also testified that DSS keeps adding conditions and there is no light at the end of the tunnel. [Father] denies physically assaulting [Mother] and states that his relationship with her is good. He acknowledges having loud arguments with her but denies any physical assaults. [Father] is easily frustrated and cursed out at the Court after he finished testifying and stated that he did not realize he was still on video when he made the comment.
As Father notes, the juvenile court is required to consider current parental fitness when deciding whether to terminate a parent’s parental rights. The court specifically found that “Father’s current situation is potentially the most stable he’s been in since the [C]hildren were placed four and a half years ago.” The court, however, is not required to ignore the previous four and a half years of instability, especially given Father’s inconsistent housing and employment and his failure to complete the services required by the court.
Contrary to Father’s argument, Father did not show that his fitness as a parent changed since the Children were sheltered in September 2018. Despite being court ordered to submit to random drug testing, Father has refused to submit to a drug test since before the Covid-19 pandemic began, with the last refusal occurring in August 2022. Although Father testified that he was undergoing substance abuse treatment, he did not provide any documentation regarding the treatment or the results of any drug tests to the Department. Father also testified that his current housing situation with his mother was temporary and did not provide documentation of his income to the Department or the court at any point since the Children were sheltered. Finally, Father’s bizarre behavior in October of 2022 that resulted in him being arrested twice was only five months before the TPR hearing.
Even if he is currently unfit as a parent, Father argues that the court must consider whether his deficiencies are “temporary and correctible[.]” Rashawn H., 402 Md. at 499. However, the issues that Father was dealing with at the time of the TPR hearing – substance abuse, lack of employment and housing, anger management – were the same issues Father had since the Department first intervened and sheltered the Children in 2018. Therefore, the juvenile court did not err when it found that Father’s situation has remained unchanged, and the court did not only rely on older evidence in coming to its conclusion.
iv. Appellant’s Third Argument
Third, Father argues that the juvenile court erred “by failing to consider that the [D]epartment’s plan was not in the [C]hildren’s best interests,” especially when compared to Father’s plan to reunify the Children with Father’s mother. Father contends that it was “in the best interest of the [C]hildren to be cared for by their available family members.” According to Father, the court viewed evidence from the Children’s foster parent, Ms. T., that the Children were happy and close with Ms. T. positively, even though she testified that she wanted to adopt the Children and was therefore not neutral. Furthermore, Father argues, the court was “unwilling to consider the aspects of the [D]epartment’s plan
for adoption with [Ms. T.] that were not in the best interests of the [C]hildren[,]” such as the fact thatit was unclear whether Ms. T. had participated in a home adoption study and that C.B. had made abuse allegations against Ms. T. In sum, Father argues that the court’s “refusal to consider the many difficult aspects of the [D]epartment’s plan was error because such consideration was in the [C]hildren’s best interest.”
Although Father claims that the juvenile court failed to “consider that the [D]epartment’s plan was not in the [C]hildren’s best interests,” the court clearly considered the fact that the Children had spent the majority of their lives under the care of Ms. T., and that it would be in their best interest to continue under her care. The court also specifically found that the testimony of Father’s mother was not trustworthy and pointed out inconsistencies in her testimony.
Regarding Father’s complaint that the juvenile court failed to consider whether Ms. T. would actually be able to adopt the Children before terminating his parental rights, the Department properly notes that a child’s prospects for adoption must be a consideration independent from the termination of parental rights . . . in that “[t] he facts should first be considered as if the State were taking the child from the parent for some indefinite placement and upon that determination open the question of the suitability of the proposed adoption and its relation to the child’s welfare.”
In re Adoption/Guardianship of Victor A., 386 Md. 288, 317 (2005) (quoting Cecil Cty. Dept of Soc. Servs. v. Goodyear, 263 Md. 611, 615 (1971)) (alteration in original). The evidence presented to the juvenile court showed that the Children were fully adjusted to the foster home, were fully integrated into Ms. T.’s family, had made significant improvements with their behavioral and developmental issues, and did no longer feel significant attachment to Father’s home. Therefore, the juvenile court did not err when it found that the Department’s plan was in best interest of the Children.
v. Appellant’s Fourth Argument
Finally, Father argues that the juvenile court erred when it found that the Department made reasonable efforts toward reunification between Father and the Children. Specifically, Father contends that the Department failed to provide visitation with any consistency and “made no provisions for [Father’s] difficulty in participating meaningfully in the visits from just a phone.” Further, Father argues that the involvement of Ms. Freed, the DSS case worker assigned to Father and the Children, was harmful to Father’s reunification efforts because she had obtained a peace order against him. Father contends that he had shown an ability to work with other case workers, and removing Ms. Freed in favor of another case worker would have been “a simple, reasonable effort to promote reunification.” Father concludes that this Court “should vacate the termination of parental rights decree and remand for the trial court to reopen the CINA case with identification and delivery of appropriate services, including frequent and meaningful in-person visitation.”
In our view, the juvenile court did not err when it found the reunification efforts of the Department to be reasonable. Before the pandemic, the Department provided the parents with referrals to programs to assist them with housing stability. The
Department also assisted Father in his attempt to find consistent employment and get his record expunged. The Department offered the parents two visits a week with the Children: a twohour visit during the week supervised by the Department, and a four-hour visit on the weekend supervised by Mother’s aunt. In order to assist the parents in getting to each visit, the Department would schedule a cab to drive the parents to and from the visit at the Department, and also made cabs available to the parents to travel to the weekend visits.
Although the visits may not have always been scheduled at the most convenient times for Father, the only time that some visits stopped was when Father and Mother arrived to the August 24, 2019 visit two hours late and apparently under the influence.
Once the pandemic began, the Department began offering Father virtual visits with the Children twice a week. When the juvenile court denied the resumption of in-person visits, the Department continued to provide virtual visits twice a week. The Department also provided visits to the parents after they separated and referred the parents to parenting classes to help with engaging with the Children during virtual visits. Therefore, we conclude that the juvenile court did not err when it found that the Department made reasonable efforts to reunify Father and the Children.
Regarding Father’s claim that Ms. Freed’s involvement in the case was harmful to Father’s reunification efforts, we note that Ms. Freed did not request a peace order until October 2022 after Father made threats of harm to Ms. Freed and her family. Although Father claims that he was able to work with other Department employees, he testified that he “didn’t cooperate with [the Department’s workers] at all[]” and was “[c]onfrontational, argumentative, [and] non-compliant[]” with Ms. Freed. In addition, Father testified that he had refused to work with the family’s previous social worker, Ms. Harman, for the entire time that she was assigned to work with Father and the Children. For the above reasons, this Court concludes that the juvenile court was not clearly erroneous when it found that the Department made reasonable efforts to facilitate the reunion of the Children and Father, as required by FL § 5-323(d)(1)(ii).
vi. Conclusion
In sum, the juvenile court considered the required factors under FL § 5-323(d) and made specific findings of fact as to each factor, which we have determined are not clearly erroneous. From these findings, all of which favored a termination of Father’s parental rights, the court concluded by clear and convincing evidence that under FL § 5-323(b) Father was unfit to remain in a parental relationship with the Children and that severing Father’s parental rights was in the Children’s best interests. Based on the court’s stated reasons, and our review of the entire record, this Court holds that the juvenile court did not err or abuse its discretion in terminating Father’s parental rights in the Children.
II. Did the juvenile court err when it changed the permanency plans away from reunification and to adoption by a nonrelative?
Appellate courts generally do not decide moot questions. In re Karl H., 394 Md. 402, 410 (2006). “‘A question is moot if, at the time it is before the court, there is no longer an existing controversy between the parties, so that there is no longer any effective
remedy which the court can provide.’” Falik v. Hornage, 413 Md. 163, 186 (2010) (quoting Attorney Gen. v. Anne Arundel County School Bus Contractors Ass’n, Inc., 286 Md. 324, 327 (1979)). However, there are several exceptions to the mootness doctrine that will allow a court to hear a particular case. The first exception is that “mootness will not preclude appellate review in situations where a party can demonstrate that collateral consequences flow from the lower court’s disposition.” D.L. v. Sheppard Pratt Health Sys., Inc., 465 Md. 339, 352 (2019). The second exception is that a court will review a moot issue if the issue may perpetually evade review. See Karl H., 394 Md. at 411. Finally, under the public interest exception, a court may review a moot issue if “‘the urgency of establishing a rule of future conduct in matters of important public concern is imperative and manifest[.]’” Hamot v. Telos Corp., 185 Md. App. 352, 366 (2009) (quoting Lloyd v. Bd. of Supervisors of Elections, 206 Md. 36, 43 (1954)).
Under FL § 5-325(a)(4), an order for guardianship of an individual terminates the individual’s CINA case. In light of our affirmance of the juvenile court’s order terminating Father’s parental rights in the Children, Father’s appeal of the court’s change in the permanency plans for the Children from reunification to adoption by a nonrelative is moot. We also conclude that none of the exceptions to the mootness doctrine apply to the circumstances of the instant case. Accordingly, we will grant the Department’s motion to dismiss.
III. Did the juvenile court err by inserting itself into the proceedings and failing to remain a neutral arbiter without the appearance of bias?
A. Arguments of the Parties
Although not presented as an issue on appeal, Father, nevertheless, argues that the juvenile court improperly inserted itself into both proceedings and failed to remain neutral and without bias. In particular, Father contends that the court overstepped its judicial boundaries when it “argued against [Father’s] counsel, when it stepped in to question witnesses, and when it gave indication that it had prejudged the cases.” Father concludes that, by failing to treat both parties with fairness and respect, “the court
undermined the public confidence in its ability to both be fair and appear fair in such important proceedings.”
The Department responds that “the record demonstrates numerous occasions where the court accommodated Father and his attorney.” According to the Department, “[a]ny frustration expressed against Father’s attorney was the result of the attorney’s conduct, including his (1) demanding explanations from the court about its rulings[,]” “(2) continuing to argue after the court’s rulings[,]” “(3) repeatedly interrupting the judges[,]” “and (4) engaging in behavior that could be perceived as disrespectful toward the court.”
B. Analysis
“It is well settled in Maryland that fundamental to a defendant’s right to a fair trial is an impartial and disinterested judge.” Jefferson–El v. State, 330 Md. 99, 105 (1993). “The accused has a right to a trial in which the judge is not only impartial and disinterested, but who also has the appearance of being impartial and disinterested.” Chapman v. State, 115 Md. App. 626, 631 (1997). “[T]here is a strong presumption . . . that judges are impartial participants in the legal process, whose duty to preside when qualified is as strong as their duty to refrain from presiding when not qualified.” Conner v. State, 472 Md. 722, 738 (2021) (quoting Jefferson-El, 330 Md. at 107). This presumption “carries with it the presumption that a judge will discard from his or her mind personal biases, inadmissible evidence, and other irrelevant matters in deciding a case.” Id. at 749. To overcome this presumption, a party must prove that “the trial judge has ‘a personal bias or prejudice’ concerning him or ‘personal knowledge of disputed evidentiary facts concerning the proceedings.’” Jefferson-El, 330 Md. at 107 (quoting Boyd v. State, 321 Md. 69, 80 (1990)).
In the instant case, Father has not overcome the strong presumption that the juvenile court in this case was acting impartially. The many instances cited by Father of supposed bias or prejudice from the court do not show that the court had any personal biases against Father or his counsel or personal knowledge about the facts of this case. The fact that the court disagreed with Father’s counsel does not mean that the court was personally prejudiced against Father or his counsel.
APPELLEE’S MOTION TO DISMISS NO. 1171, SEPTEMBER TERM, 2022, GRANTED. JUDGMENTS OF THE CIRCUIT COURT FOR HOWARD COUNTY IN NO. 131, SEPTEMBER TERM, 2023, AFFIRMED. APPELLANT TO PAY COSTS.
FOOTNOTES
1 The Department does not raise any issue about Father’s apparent untimely appeal of the change in the permanency plans. Because we conclude that such appeal is moot, we need not address this issue.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Howard County Circuit Court’s finding that grandmother failed to establish that she had standing as de facto parent to request sole physical and legal custody of the minor grandchild.
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
H. was born in October 2013, after Father and Mother ended their romantic relationship. Mother cared for H. from his birth until her unexpected death on September 19, 2019. From December 2013 until December 2018, H. lived in Mother’s household.1 At the close of 2018, Mother moved with H. into Grandmother’s household where H.’s maternal half-sister, A., also lived. Mother shared joint legal and physical custody of H. with Father whereby H. stayed with Father every other weekend from Friday through Monday. Grandmother testified, and the court found credible, that after Mother passed away, she continued to care for H. in her home and Father continued visitation on the same schedule. Grandmother had been paying for H.’s private school education and served in the role as H.’s primary caretaker during the months following Mother’s death.
Appellant, Carolyn G. Brown (“Grandmother”), filed the underlying complaint for sole physical and legal custody of her grandchild, “H.,” on grounds that: 1) she was H.’s de facto parent because, among other things, she had “consented to and fostered a parent/child relationship” between H. and herself; 2) exceptional circumstances exist; and 3) H.’s father, Markas A. Brown (“Father”) was an unfit parent. Grandmother filed the complaint in the Circuit Court for Howard County on August 31, 2020—just under two years after the passing of her daughter and mother of H., Rahema Delisser (“Mother”).
The case came before the circuit court for a hearing on April 17 and 18, 2023. At the close of Grandmother’s case, Father moved for a directed verdict. The court granted the motion after finding that Grandmother failed to establish that she was a de facto parent for several reasons, including that Father had neither relinquished his parental role nor consented to Grandmother becoming the de facto parent of H. The court also found that Father was not unfit, and that there were no exceptional circumstances that would support the grant of sole custody to a third party. Grandmother appealed and now presents this Court with one question challenging only the first of the trial court’s three-pronged decision: “Did the trial court abuse its discretion in finding that the Appellant was not a de facto parent?
We hold that the circuit court correctly applied Maryland’s four-factor de facto parentage test in determining that Grandmother failed to establish that she had standing as de facto parent to request sole physical and legal custody of H. Accordingly, we affirm the judgment of the circuit court.
On August 31, 2020, Grandmother filed the underlying complaint for sole physical and legal custody in the posture of a de facto parent, asserting that “[s]he wanted to be able to do what she needed to” do to care for H., “since he was primarily with her.” The complaint averred that Grandmother, “acting as a De Facto Parent,” had, among other things, prepared all meals for H., washed his clothes, assisted H. with his homework, and scheduled his medical and dental appointments. Grandmother averred that she had “consented to and fostered a parent/child relationship” between H. and herself.
The complaint also averred that “exceptional circumstances exist, and [Father] is unfit, for the following reasons,” including that Father: “disciplines [H.] with physical violence”; “has refused to return [H.] to [Grandmother] when he is supposed to”; and “lives in a three[-]bedroom apartment with his two brothers,” so that H. has to share a bedroom with his Father. The complaint also stated that when H. “returns from visitation with [Father], he reeks of smoke[,]” and that Grandmother had “smelled marijuana on [Father] on at least two separate occasions” when he picked up H.
On September 29, Grandmother filed a “Request For Emergency Relief” after Father failed to return H. to Grandmother on Sunday, September 27. Grandmother’s request for an emergency hearing was denied on September 30.
On October 15, Father filed a verified answer to the complaint, in which he denied that Grandmother “is a fit and proper parent of his son” and requested that her complaint for custody and related relief be denied.2
Pendente Lite Custody Hearings
On November 18, 2020, Grandmother filed a second “Request For Emergency Relief,” based on her concerns about H.’s education, and asked for sole physical custody, pendente
lite and permanently. A remote hearing on temporary custody and access was held before a magistrate on December 4, and the magistrate issued her report and recommendations on December 7, 2020. The magistrate found, among other things, that Father’s testimony that H. “lived primarily with him [was] not credible and [was] not supported by evidence.” However, she did find that H. had “significant, meaningful and regular access with the [F]ather throughout his life.” The magistrate determined that Father “will not allow [G]randmother to see [H.] because he is afraid of what she will do,” but concluded that Grandmother had been a “regular, steady, important support” in H.’s life and that losing contact with Grandmother would cause “irreversible consequences on [H.’s] social, emotional and educational well-being.” The magistrate noted that Father “should have access to all school books, records and information[,]” and recommended that the circuit court order that H.’s “school books and passcode information should travel with [H.] from the respective houses.” The recommendations also included that Grandmother have access with H. every Tuesday through Friday, and that Father have access “at all other times.” On December 9, 2020, the circuit court held a hearing and issued an immediate order for temporary access on the same day, granting access in accordance with the magistrate’s recommendations.
The parties appeared before a different magistrate for another remote pendente lite hearing on January 14, 2021. That magistrate heard testimony from Father, Grandmother, Mr. Michael Gall, Head of School of Christian Academy, and several teachers from the Christian Academy. She found that H. had been “doing well” in school, earning A’s and B’s, while “he was residing primarily with Grandmother[.]” However, in recent months H.’s grades had dropped significantly, and “[h]e failed all but two classes.” Ms. Lynette Riddle, a substitute teacher at Christian Academy testified that in September, “[t]he quality of [H.’s] school work was excellent[,]” but in October, H. became a “changed student.” H. hardly turned in any schoolwork, and his behavior became “listless and inattentive.” Previously, H. would turn on his computer camera during lunchtime and “have fun with his friends[,]” but in October 2020, “[h]e would turn his video off at lunch.”3
In her report and recommendations issued on January 20, 2021, the magistrate noted many factors supporting Father’s retention of his full parental rights. The magistrate found that: Both [Father and Grandmother] are of good character and reputation. Both are sincere in their desire to have significant time with the child. Grandmother is the party better able to maintain natural family relations. There was no evidence regarding the preference of the child. Both parties are able to provide for the material needs of the child. The child is a healthy seven year old little boy. The parties live close enough together for a shared access schedule to be manageable. There has been no lengthy separation, voluntary abandonment or surrender of the child.
The magistrate also determined that Grandmother has standing as a de facto parent, declaring:
The Court finds Grandmother to be a de facto parent. She has a parent-like relationship with the child. She and the child lived in the same household. Grandmother assumed
obligations of parenthood by taking significant responsibility for the child’s care, education, and development, including contributing to the child’s support without expectation of financial compensation. Grandmother has been in a parental role since at least 2018 and has established a bonded parental relationship with the child. The Court finds that Father con[s]ented to and fostered Grandmother’s formation and establishment of a parent-[l]ike relationship with the child. If not before, he did so when he chose to leave the child with Grandmother except on alternating weekends even after the [Mother’s] death. Even if that was not the case, [the Appellate Court of Maryland] has held that a de facto parent relationship can be created by only one legal parent consenting to and fostering the relationship. This was done by Mother prior to her death.
(Emphasis added). The magistrate based her decision on E.N. v. T.R., 247 Md. App. 234 (2020), rev’d, 474 Md. 346 (2021), which held that the consent of only one legal parent is required to foster a parent-like relationship with the would-be de facto parent, even when there are two extant legal parents. Id. at 247.4 In addition, the magistrate found that “[e]ven if Grandmother was not a de facto parent, exceptional circumstances exist for Grandmother to have custodial rights[,]” because H. “has suffered educationally and emotionally from being removed from Grandmother’s care.” The magistrate recommended the parties have joint legal and shared physical custody of H., with Father having visitation on the weekends, and every other week during the summer.
On February 1, Father filed exceptions to the magistrate’s report and recommendations, contesting the magistrate’s finding that Grandmother was a de facto parent when H. “had not been in her exclusive care for one-year, and the surviving parent did not give his consent.” Father further asserted error in the magistrate’s findings that either he or Mother had “consented to and fostered” a parent-like relationship between H. and Grandmother. He denied the magistrate’s finding of exceptional circumstances because H. had suffered educationally and emotionally from being removed from Grandmother’s care; he alleged, instead, that Grandmother had H.’s schoolbooks5 and passwords for remote work and refused to provide them to Father. Finally, Father challenged the magistrate’s right to convene the January 14 hearing when the December 9, 2020 order was already in place, and argued that the resulting order was void ab initio.
On April 2, the circuit court denied Father’s exceptions and issued a pendente lite order providing for the joint legal and shared physical custody of H. in accordance with the magistrate’s recommendations.
The Custody Hearing
The parties appeared before a circuit court judge for the custody hearing on April 17 and 18, 2023. The first witness to testify was Ms. Riddle, then retired from substitute teaching at Christian Academy. She explained that she taught H. when he was in the second grade, and related that H. was “bubbly,” “fun,” and “[a] lot of just joy.” She observed a difference in H.’s demeanor starting the end of September 2020, when H. was no longer living with Grandmother. According to Ms. Riddle, H.
was “sullen” and “very unfocused” and “not the same boy that he had been in September.” Ms. Riddle observed that H. did not have school supplies, such as “paper, pencils or any equipment[,]” after he had relocated to his Father’s residence. She stated that she sent copies of homework “[a]lmost everyday” but “didn’t get responses” from Father. However, Ms. Riddle observed that after the new year, “[f]rom Tuesday to Friday, all homework was turned in” and H. would “associate with [his classmates] during the snack time and lunchtime again[.]”
Ms. Jennifer Rowell, H.’s third-grade teacher, testified next. Ms. Rowell testified that she had “consistent communication” with Grandmother but did not know Father “until today.” Ms. Rowell described H.’s demeanor as “pleasant” and “bright[,]” “consistently put[ting] effort towards doing his best work[.]”
Ms. Rowell stated that during the first quarter of H.’s third-grade year, his grades were “average[,]” but she “saw him improve[.]” H. consistently turned in high-quality assignments, which showed “oversight in his work[,]” but H. would inconsistently return assignments if they were “due on a Monday.” When asked if she had ever interacted with Father, Ms. Rowell stated “[n]ot at all.”
The court also heard testimony from Mr. Michael Gall, Head of School, who reported that H. was an “Honor Roll student” with good grades until the Fall of his second- grade year, when academic performance declined and was “not consistent[.]” He confirmed H.’s enrollment at the Christian Academy since kindergarten, with Grandmother paying the annual tuition.
Grandmother testified on her own behalf. She stated that she was sixty-nine-years old and had been a school bus driver for Prince George’s County Public Schools for thirty- four years. Grandmother recounted that when her daughter was pregnant, she moved in with Grandmother, bringing H. “home from the hospital” to her house after he was born. H. and Mother moved out when H. was about a year old, returning to Grandmother’s home in December 2018, where H. stayed until September 25, 2020. Grandmother claimed that she had “been taking care of [H.] from the time he was born[,]” providing essential care such as when she “gave him his first bath” and “name[d] him.” Grandmother also testified that H. was “crazy about” A., who is seven years his elder, that “she helps him with his homework,” and that “they play around a lot.”
Grandmother described her parent-like role, such as providing health insurance through her employer for both H. and A., driving H. to school and medical appointments, and covering expenses like tuition, before- and after-school care, books, uniforms, and school supplies. She clarified that she did all this without expecting reimbursement from Father and never sought it, as she “didn’t think he could afford it.”
According to Grandmother, prior to September 25, 2020, Father visited H. every other weekend. Father “told [her] that he wanted [H.] to come live with him[,]” but Grandmother dissuaded him, citing his unemployment at the time and the lack of a separate bedroom for H. Grandmother expressed her opinion that Father seemed to want H. “so he could get benefits.”
Grandmother testified that on September 25, 2020, H.’s paternal grandmother picked up H. and did not return the child to Grandmother’s care. Then, she observed, from September 2020 to the end of November 2020, when H. was not in her
custody, H.’s grades went from passing to failing. Grandmother observed that H. “seemed very depressed when [she] talked to him.” Following the December 2020 pendente lite hearing, Grandmother regained shared custody of H., and then she was able to help H. catch up on his schoolwork. Grandmother checked on his schoolwork “[e]veryday” and sat with H. downstairs while completed his homework.
On April 18, 2023, at the conclusion of Grandmother’s case, counsel for Father moved for a directed verdict. Father’s counsel, after reviewing Maryland decisional law governing third-party custody cases, reminded the court that the law “presume[s] that it is in the best interests of the child to be placed in the custody of the parent.” Counsel urged that most of the allegations in the complaint were based on hearsay, and that Grandmother failed in her case-in-chief to make any showing that Father was an unfit parent or that exceptional circumstances existed to award custody to a third party. Counsel reiterated that Father had remained a consistent parent in his son’s life and had expressed to Grandmother that he wanted to have H. in his care. Counsel asserted that there was never explicit or implied consent for Grandmother to form a de facto parent relationship with H. Father “absolutely’ consented to Grandmother’s relationship with H. as a grandparent, but not as a parent. Counsel also pointed out that Grandmother didn’t have “anything in writing saying that her daughter had consented to ger being the de facto parent.” Counsel expounded: [Grandmother] cannot say, well, since [H.] was living with me, he and his mother, that I then have parental—I am then the parent. His parent was alive at that time. So, that would just mean that anytime a child, for whatever reason, moves out of the house and moves back in the house with their parents with their child, that they somehow lose their parental rights. There’s no showing of that. And that doesn’t make any sense.
***
And in the complaint, [Grandmother] states that after the mother died, the father would not bring back the child when he was supposed to and would keep the child. That, to me, in and of itself, should be a glaring example of the fact that [Father] didn’t think that [Grandmother had custody of [H.]. If there was some specific access schedule . . . and, again, [Grandmother] would have been the one that would have had to present that But clearly, there was an open-ended arrangement. Again, my client was transitioning [H.] away from the [Christian Academy] and into his care. He even expressed to [Grandmother], which she testified to, that he wanted to have [H.] in his care.
In response, Grandmother’s counsel reviewed the testimony presented covering all of the parental responsibilities that Grandmother had assumed, and how H. had thrived under her care. Counsel stated that Father’s “unfitness goes beyond merely a derelict of his duty to educate his child. There’s nothing at all to establish that he has the means to provide.” Counsel pressed that, among the extraordinary circumstances present were that H.’s grades have suffered greatly, and that when H. is with Father, “he comes back depressed. His schoolwork suffers. His friendships suffer.” Counsel argued that Father did consent to Grandmother becoming H.’s de facto parent
because he “knew that [Grandmother] was providing a parent/ child relationship to the minor child, he knew [Grandmother] was providing [H.] with all the necessities to live a happy and sustainable life and that he was more than willing to let [Grandmother] do it until the benefits went away.”
The Custody Ruling
Following a recess, the circuit court judge delivered his ruling. The judge first addressed Grandmother’s contention that she was a de facto parent to H. He quoted and then applied each factor in Maryland’s de facto parentage test as recited in E.N. v. T.R., 474 Md. 346 (2021):
(1) that the biological or adoptive parent consented to, and fostered, the petitioner's formation and establishment of a parent-like relationship with the child;
(2) that the petitioner and the child lived together in the same household;
(3) that the petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation; and
(4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.
E.N., 487 Md. at 352 (quoting Conover v. Conover, 450 Md. 51, 74 (2016)).
Concerning the first factor, the judge found “no testimony or evidence to suggest that [Father] expressly consented to or encouraged a parent-like relationship between [Grandmother] and the child.” Although Grandmother testified that she “engaged in certain parent-like responsibilities[,]” she also acknowledged that “she never asked for defendant’s consent or permission to do so.” Thus, the judge continued, because Grandmother “never asked for these things” and “without knowledge of these, the Court finds that there could be no express consent by [Father].” (Emphasis added). The judge also determined that there was no evidence of implied consent because Father “continued to exercise his weekend access with the child, and he continued to visit school officials to obtain [H.’s] schoolwork and the likes.” He found that Father “continued to act in a parental role and did not relinquish that role[,]” and, as such, “there was no implied consent on [Father]’s behalf.”6
Turning to the second factor, the judge determined that it was “undisputed” that Grandmother and H. “resided [together] for a period of time, which included from 2018 until September of 2020.” However, the judge noted that “[o]f this time, only nine months passed between the mother’s death and when [Father] requested [H.]’s return.” In fact, Father spoke to Grandmother about returning H. to live with him “at the end of the schoolyear as not to disrupt [H.’s] schooling” but “[Grandmother] responded by conditioning the return of [H.] on [Father] obtaining employment and other things.”
With regard to the third factor addressing the assumption of parental responsibility, the judge acknowledged the “extensive testimony regarding [Grandmother]’s assuming the responsibility for [H.]’s care, education and development without the
expectation of reimbursement.” However, in analyzing the fourth factor for a bonded, dependent, parent- like relationship between Grandmother and H., he observed that while Grandmother had been in H.’s life since he was born, H. had only been “in [Grandmother]’s exclusive control” for “a period of approximately nine months[,]”7 and that during this time, “[Father] continued to exercise his weekend visitation.” The judge found that this was “not enough time to establish a parental role with the child given the fact that [H.] has known [Grandmother] . . . as his grandmother his entire life.”
Next, the judge addressed Grandmother’s claims to custody as a third-party, examining the alleged unfitness of Father to have custody of H., or whether there existed “extraordinary circumstances” that are “significantly detrimental to the child remaining in the custody of the parent[.]” McDermott v. Dougherty, 385 Md. 320, 325 (2005). The judge said he found “no credible testimony demonstrating [Father’s] unfitness.” He noted that while Grandmother alleged that she “smelled marijuana on [H.] and [Father],” she acknowledged that she “never observed [Father] smoking marijuana[,]” and there was “no first-hand testimony of [Father] drinking alcohol in front of [H.]” The judge observed that while Grandmother testified “that she was afraid to go into [Father]’s home[,]” she could not “articulate a basis outside of suggestion [sic] that [Father]’s home was dangerous and unfit.” Regarding the alleged exceptional circumstances, the judge noted that H.’s school grades declined while he was in Father’s care, but also “that those grades improved over time.” He did not find that the “alleged academic decline rises to the level of an exceptional circumstance[,]” and that “[n]othing further was introduced at trial.”
The judge summarized his findings:
[O]ne, [Father] never consented, either expressly or . . . implicitly to [Grandmother] becoming the de facto parent. Two, not enough time passed for [Grandmother] to establish the parental role with [H.]. Three, [Grandmother] failed to establish that [Father] is an unfit parent. And four, no exceptional circumstances. For those reasons, [Grandmother]’s complaint for custody is hereby denied.
Addressing Father, the judge described Grandmother as “an excellent resource” and asked “please, for [H.]’s best interests, please foster a relationship, . . . and keep her in [H.]’s life.”
Addressing Grandmother, the judge encouraged her to remain engaged in H.’s life, because “[H.] deserves the best. And with you all working together, he will have the best.” Father stated, “on the record, I’m going to still continue to let my son always see his grandmother.”
The court’s ruling, memorialized in a written order entered on April 26, 2023, granted Father’s motion for a directed verdict, and dismissed Grandmother’s complaint. Grandmother noted an appeal on May 4, 2023.
DISCUSSION
A. Parties’ Contentions
At the outset, Grandmother contends that the trial court abused its discretion in finding that she was not a de facto parent because the court made “erroneous factual findings.”
First, she challenges the court’s statement that she had testified that Father requested H. to be returned to him at the end of the school year so as not to disturb his schooling. In fact, she notes, when she was asked on cross-examination if she “recall[ed] Father saying to [her] that he wanted [H.] to finish out the school year and then after that he wanted [H.] in his custody[,]” Grandmother responded, “No.” Second, Grandmother asserts the court’s statement that H. “had been in the exclusive control of [Grandmother] for a period of nine months[,]” following Mother’s death was “not correct.” Grandmother refers to her testimony that H. resided exclusively with her from the time H.’s mother passed away on September 19, 2020, until September 25, 2020, when H.’s paternal grandmother took him away, constituting a period just over one year.
Turning to the de facto parenthood test established in Conover v. Conover, 450 Md. 51, 74 (2016), although Grandmother concedes that “there was not express consent,” Grandmother invokes E.N. v. T.R., 474 Md. 346 (2021), for the principle that implied consent for de facto parentage can be “inferred from one’s conduct[.]” Grandmother urges that in this case, “there were ample facts from which the trial court should have found implied consent by [Father].”
Grandmother argues that Father “knew that he had the primary rights as H.’s only living parent[,]” but “did not file for custody” after Mother died, and only did so “after being served with [Grandmother]’s custody complaint.” Grandmother contends Father “knowingly and voluntarily chose to leave [H.] in the primary care and custody of the child’s grandmother for nearly one year.” She alleges that Father “consented to this arrangement by his own inaction[,]” while “knowing full well that she was acting as [H.]’s primary parent[.]” Furthermore, she says, Father did not “exercise any other parental responsibilities[,]” such as “participate in [H.]’s schooling,” “take [H.] to medical or dental appointments[,]” or “provide any financial support beyond some nominal effort[.]”
Grandmother asserts that “there is no question” that she has satisfied the second factor,8 as “[t]here was ample testimony that [Grandmother] and [H.] resided together”; and the third factor,9 as there was “significant testimony that [Grandmother] had assumed obligations of parenthood by taking significant responsibility for [H.]’s care and support.” Grandmother asserts that the trial court also abused its discretion in its analysis of the fourth factor,10 by concluding that Grandmother had not formed a parent-like relationship with H. She acknowledges that “[f]actor four requires that Petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.” However, she disputes the court’s assessment of an insufficient length of time, asserting that there is no “Maryland case law that defines what the length of time is that is sufficient to establish a bonded relationship.” Grandmother maintains that she “had provided parental care long enough to have established a bonded relationship with her grandson.”
Father, in return, emphasizes the “high bar for establishing de facto parent status” and asserts the centrality of “knowing participation by the biological parent” to prevent third parties from using the device to “interfere with the relationship between legal parents and their children[.]” Father asserts that
neither Mother nor he ever consented to Grandmother forming a parent-like relationship with H., but only that of a grandparent. Father acknowledges that H. has ties to Grandmother but argues that H. recognizes only Father as a parent.
Father claims that the court cannot credit the time H. lived with both Mother and Grandmother toward Grandmother’s opportunity to forge the parent-like relationship. He further contends that from Mother’s death “up until the filing of the complaint, H. was with [Grandmother] but also was going back and forth with [Father]. H. never actually ever lived with [Grandmother] for any extended time without either one of his parents being present or involved.”
Father asserts that he has “never been away from H.” or “relinquished his care” and had remained in his life continuously after their family separated. He posits that he has demonstrated the “intensity and genuineness” of his desire “to not only have custody [of H.] but also to affirm his constitutional right to parent his son[,]” as evidenced by his active involvement in this case over three years.
Father urges that there is a constitutional presumption that it is in the best interests of the child to be placed in the custody of the parent. (Citing McDermott v. Dougherty, 385 Md. 320, 417 (2005)).11 “Consequently,” Father states that a non-parent who seeks to replace “the parent as custodian bears the burden of overcoming the parent’s presumptively superior right to custody.” (Quoting McDermott, 385 Md. at 417 (quotation omitted)).
Father chides Grandmother for addressing a “best interests” analysis in her briefing because under McDermott and its progeny, the trial court does not reach a “best interests” analysis before “a parent has been shown to be unfit or exceptional circumstances” exist. Father contends that Grandmother’s evidence to demonstrate exceptional circumstances “did not come close to fulfilling this weighty task.”
B. Standard of Review
Grandmother appeals from the trial court’s grant of Father’s “motion for directed verdict,” which, in a case tried to the court and not a jury, is governed by Maryland Rule 2-519(b), and is more appropriately referred to as a “motion for judgment.” The rule provides:
(b) Disposition. When a defendant moves for judgment at the close of the evidence offered by the plaintiff in an action tried by the court, the court may proceed, as the trier of fact, to determine the facts and to render judgment against the plaintiff or may decline to render judgment until the close of all the evidence. When a motion for judgment is made under any other circumstances, the court shall consider all evidence and inferences in the light most favorable to the party against whom the motion is made.
Md. Rule 2-519(b). In Cattail Associates, Inc. v. Sass, we explained that “[w]hen a defendant moves for judgment at the close of the evidence offered by the plaintiff in an action tried by the court,” under Rule 2-519(b), “we review the circuit court’s judgment in accordance with Maryland Rule 8–131(c).” 170 Md. App. 474, 486 (2006); see also Boyd v. Bowen, 145 Md. App. 635, 650 (2002) (stating that “we review the trial court’s decision to grant a defendant's motion for judgment at the close of the plaintiff's case in a court trial under Md.
Rule 8–131(c)”). Accordingly, “when an action has been tried without a jury, [we] will review the case on both the law and the evidence. [We] will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Md. Rule 8-131.
We “apply the clearly erroneous standard of review to the trial court’s factual findings and review the court’s decision for legal error.” Basciano v. Foster, 256 Md. App. 107, 128 (2022) (citing Md. Rule 8-131(c)). Our Supreme Court has further distilled “three distinct aspects of review in child custody disputes” as follows:
When the appellate court scrutinizes factual findings, the clearly erroneous standard of [Rule 8-131(c)] applies. [Secondly,] [i]f it appears that the [court] erred as to matters of law, further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless. Finally, when the appellate court views the ultimate conclusion of the [court] founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the [court’s] decision should be disturbed only if there has been a clear abuse of discretion.
In re Yve S., 373 Md. 551, 586 (2003) (first, fourth, fifth, and sixth alterations added) (emphasis removed). 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.” Azizova v. Suleymanov, 243 Md. App. 340, 372 (2019) (quotation omitted). An abuse of discretion occurs: when no reasonable person would take the view adopted by the [trial] court, when the court acts without reference to any guiding rules or principles, when the court's ruling is clearly against the logic and effect of facts and inferences before the court, when the ruling is violative of fact and logic, or when its decision is well removed from any center mark imagined by the reviewing court.
Jose v. Jose, 237 Md. App. 588, 598-99 (2018) (alteration in original; quotation marks and citations omitted).
C. Legal Framework
Fundamental Constitutional Rights of Parents
The United States Supreme Court has consistently recognized a parent’s fundamental liberty interest “in the care, custody, and control of their children[.]” Troxel v. Granville, 530 U.S. 57, 65 (2000); see Stanley v. Illinois, 405 U.S. 645, 652 (1972) (establishing that parents have a “cognizable and substantial” interest in retaining custody of their children); see also Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (holding that the substantive Due Process clause of the Fourteenth Amendment protects the right to “establish a home and bring up children”).
Maryland appellate decisions embrace these holdings, and maintain that “[t]he proper starting point for legal analysis when the State involves itself in family relations is the fundamental constitutional rights of a parent[,]” while also noting that “rights of a parent in the raising of his or her children, however, are not absolute.” In re Yve S., 373 Md. at 565, 568. Indeed, “[w]hen the custody of children is the question, ‘the best interest[s] of the children is the paramount fact. Rights of father and mother sink into insignificance before that.’” A.A. v. Ab.D., 246
Respecting the foregoing rights, our caselaw instructs that “[i]n the area of child custody, the law recognizes a rebuttable presumption that the child’s best interests will best be served by custody in a biological parent, over a third party; and a third party bears the burden of showing the contrary.” Karen P. v. Christopher J.B., 163 Md. App. 250, 265 (2005) (citing Ross v. Hoffman, 280 Md. 172, 178 (1977)). The burden of proof rests with the third party seeking custody, who must rebut the presumption of a natural parent’s rights by a preponderance of the evidence. Shurupoff v. Vockroth, 372 Md. 639, 662 (2003). The Maryland Supreme Court has held, Where the dispute is between a fit parent and a private third party, [ ] both parties do not begin on equal footing in respect to rights to “care, custody, and control” of the children. The parent is asserting a fundamental constitutional right. The third party is not. A private third party has no fundamental constitutional right to raise the children of others. E.N., 474 Md. at 371 (emphasis added) (quoting McDermott, 385 Md. at 353). Historically in Maryland, a third-party seeking custody of a child from her natural parents had to demonstrate parental unfitness or exceptional circumstances. McDermott, 385 Md. at 325. More recently, however, “courts across the country have recognized as de facto parents a narrow class of third parties who have a special relationship with a child.” Kpetigo v. Kpetigo, 238 Md. App. 561, 570 (2018).
De Facto Parenthood
The Supreme Court of Maryland first recognized de facto parenthood in the landmark custody case, Conover v. Conover, 450 Md. 51 (2016).12 Conover centered around Michelle13 and Brittany Conover, a same-sex married couple who shared custody of their child, J., conceived through artificial insemination. Conover, 450 Md. at 55. While J.’s birth certificate listed Brittany as the mother, it did not identify a father. Id. Following their legal separation in 2011, Brittany prevented Michelle from visiting J. Id. Brittany filed a Complaint for Absolute Divorce and Michelle sought visitation rights in respect to J. Id.
The circuit court held an evidentiary hearing and concluded that Michelle lacked parental standing. Id. at 55-57. The court reasoned that Michelle, as a third-party, needed to establish “that Brittany was unfit or that exceptional circumstances existed to overcome the biological mother’s constitutionally protected interest in the care and control of her child.” Id. at 58. The court found that Brittany was a fit parent, identified no exceptional circumstances, and subsequently denied Michelle’s request for custody or visitation due to her lack of parental standing. Conover, 450 Md. at 58. Michelle appealed, and the Appellate Court of Maryland affirmed, stating that even if Michelle qualified as a “father” under Maryland Code (1974, 2011 Repl. Vol.), Estates & Trusts (“ET”), § 1-208(b), she would not hold the legal status of a parent under Janice M. because she could not establish that Brittany was an unfit parent, nor could she show exceptional circumstances. Conover, 450 Md. at 59.
On certiorari, the Supreme Court of Maryland reversed in a 4-3 decision, thereby overruling the controlling case, Janice
M., as “clearly wrong” and “obsolete” due to “the passage of time and evolving events.”14 Id. at 77, 85 (citing Janice M. v. Margaret K., 404 Md. 661 (2008); other citations omitted). The Court distinguished between “pure third parties” and de facto parents, holding “de facto parents have standing to contest custody or visitation and need not show parental unfitness or exceptional circumstances before a trial court can apply a best interests of the child analysis.” Id. at 85. The Conover Court adopted the test used by Wisconsin courts (hereinafter, the “Conover test”), establishing criteria for determining de facto parenthood:
(1) that the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child;
(2) that the petitioner and the child lived together in the same household;
(3) that the petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation; and
(4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.
Id. at 74 (quoting In Re Custody of H.S.H.-K., 533 N.W.2d 419, 435-36 (Wis. 1995), but with altered formatting and omitting footnotes). The Court emphasized that this test was “narrowly tailored to avoid infringing upon the parental autonomy of a legal parent.” Id. at 74. The Court explained:
[T]he first factor [in the hereby adopted test] is critical because it makes the biological or adoptive parent a participant in the creation of the psychological parent’s relationship with the child. This factor recognizes that when a legal parent invites a third party into a child’s life, and that invitation alters a child’s life by essentially providing him with another parent, the legal parent’s rights to unilaterally sever that relationship are necessarily reduced.
Id. at 75 (first alteration supplied by Conover) (quoting Marquez v. Caudill, 656 S.E.2d 737, 744 (S.C. 2008)). The Court emphasized, however, that de facto parenthood status “cannot be achieved without knowing participation by the biological parent” and the test would “preclude such potential third-party parents as mere neighbors, caretakers, babysitters, nannies, au pairs, nonparental relatives, and family friends from satisfying these standards.” Conover, 450 Md. at 74-75 (emphasis added) (citation and quotation omitted).
In E.N. v. T.R., 474 Md. 346 (2021), our Supreme Court followed Conover and applied its holding to a situation where the child had two legal parents, only one of whom had consented to the development of a de facto parental relationship between the child and a third party. E.N., 474 Md. at 354. There, two children lived with their father and his fiancée, in the home they jointly owned, with their mother’s consent. Id. at 354. The mother sought to recover the children after the father was incarcerated in a federal prison out of state, and the father’s fiancée sought custody. Id. The circuit court found that the mother “did not consent to or foster the children’s relationship with [father’s fiancée] or even know [her],” but determined that
father’s fiancée was a de facto parent under the Conover test based on the father’s consent to the relationship; thus, the court awarded custody to the fiancée. Id. at 354-55. Our opinion, affirming the decision of the trial court, was reversed. Id. at 413.
The Maryland Supreme Court examined the fiancée’s rights relative to those of the mother and held that a de facto parent relationship between the children and father’s fiancée had not been established in the absence of mother’s knowledge and consent. Id. at 355. The Court held that, to satisfy the first factor of the Conover test: where there are two legal parents, both parents must knowingly participate in consenting to and fostering the third party’s formation of a parent-like relationship with a child. Otherwise, we create the incomprehensible situation in which a de facto parentship may be created by the knowing participation of only one legal parent while an equally fit legal parent is denied the same knowing participation in the process and denied the meaningful input that we deemed so critical for a parent to have in creating de facto parent status for a third party.
E.N., 474 Md. at 401. Elsewhere in the opinion, the Court qualified its statement that “where there are two legal (biological or adoptive) parents, a prospective de facto parent must demonstrate that both legal parents consented to and fostered such a relationship or that a non-consenting legal parent is unfit or exceptional circumstances exist.” Id. at 394- 95, 398 (bold emphasis added). This alternative path—of showing a second non- consenting parent is unfit or exceptional circumstances exist—is only available once the petitioner has already demonstrated that one legal parent did consent to and foster the parent-like relationship.15
The Supreme Court further instructed that the requirement of “a legal parent’s actual knowledge of and participation in the formation of a third party’s parent-like relationship with a child” could be satisfied “either through the parent’s express or implied consent[.]” Id. at 401. The Court noted that while implied consent “may be inferred by a party’s conduct,” when it “would be understood by a reasonable person as indicating consent[,]” id. at 402 (citations omitted), a court must make “a fact-specific inquiry to be determined on a case-by-case basis” to establish its existence. Id. at 403.
Returning to the case of E.N., the Court explained that mother’s “permission for the children to live with [father], the other legal parent, . . . which is not an uncommon occurrence among parents who live separately[,]” did not equate to “leav[ing] her children for a long period of time in the care of a third party[.]” Id. at 406. The Court expounded, “[mother] did not object to the children moving in with [father], but that lack of objection did not extend to a lack of objection to the children forming a parental relationship with [father’s fiancée], a person whom [mother] lacked knowledge of and her role in the children’s lives.” E.N., 474 Md. at 406. The Court noted that after father was incarcerated, mother “did not abdicate all parental responsibility for her children” but rather, she “sought to have her children returned to her after they were no longer able to live with their father[.]” Id. Ultimately, the Court reversed the trial court’s finding that father’s fiancée was a de facto parent to the children, because “[n]othing in the record supports a deter-
mination that [the mother], through knowing and voluntary action or inaction, impliedly consented to and fostered [father’s fiancée]’s formation of a parent-like relationship with the children.” Id. at 407.
In Basciano v. Foster, 256 Md. App. 107, 143-46 (2022), a case factually closer to the present case, we emphasized the priority of parental consent to the formation of a de facto parent relationship and distinguished the de facto parentage analysis from the analysis for third-party custody on account of parental unfitness or exceptional circumstances. We clarified that “where a child’s existing legal parents both do not consent to the formation of a parent-like relationship between the child and a third party, the third party has failed, under the first factor of the H.S.H.-K. test, to establish a de facto parent relationship.” Basciano, 256 Md. App. at 143. We determined that the circuit court misapplied Conover to find “exceptional circumstances” to justify de facto parenthood status for the maternal grandparents (“the Fosters”). Id. at 146. Ultimately, however, we did affirm the court’s award of third-party custody to the Fosters under the exceptional circumstances factors as articulated in our leading third-party standing cases: Ross v. Hoffman, 280 Md. 172 (1977), and Burak v. Burak, 455 Md. 564 (2017). Id. at 115.
Basciano concerned a father’s appeal from a circuit court order establishing the Fosters as the de facto parents of his only child.16 Id. at 114-15. The child, C., was six- months old and in Father’s and Mother’s care when they overdosed on heroin, leading the Department of Social Services to place C. in the Fosters’ home. Id. at 116. The Fosters filed a complaint for custody and moved for emergency and ex parte relief, and a magistrate found that extraordinary circumstances existed and granted them temporary custody. Id. at 116-17. After a one-day merits trial in circuit court, the judge delivered a bench ruling and found that:
[De facto] parenthood of [C.] was established by the Fosters through exceptional circumstances, therefore they werable to meet the first prong . Having found that the first prong has been met, I will make my findings regarding the remaining prongs, although I will note that they were largely uncontested.
Basciano, 256 Md. App. at 125 (second alteration in original) (emphasis added). Father appealed the decision to grant the Fosters de facto parenthood status. Id. at 115.
We held that “the circuit court conflated the third-party ‘exceptional circumstances’ analysis with the first factor of the de facto parentage test, when they are, in fact, separate constructs.” Id. at 144. We parsed the distinction between de facto parenthood and third- party custody complaints. Id. The requirements of de facto parentage concern “the relationship between a third party ‘with a non-biological, non-adopted child’ which the parent consents to and nurtures.” Id. (quoting Conover, 450 Md. at 62). By contrast, a third-party seeking custody on the grounds of unfitness or exceptional circumstances relies “on the parents’ inability to continue to have custody of their child because the continuation of custody is against the child’s best interests.” Id. (quoting McDermott, 385 Md. at 325). See also Caldwell v. Sutton, 256 Md. App. 230, 265-67 (2022). We emphasized that these paths are “not the same,” because de
facto parents are “presumptive equals” of biological or adoptive parents, holding the same constitutional rights, whereas third parties do not have equal standing with fit parents. Basciano, 256 Md. App. at 144 (citation omitted). We held that, under the circumstances of the case, the Fosters had not formed a de facto parent relationship with C. because they never had the father’s consent,17 id. at 146-47, and we affirmed the award of custody to the Fosters under a third-party posture. Id. at 154.
Similarly, in B. O. v. S. O., we affirmed the trial court’s determination that the child’s aunt failed to gain standing as a de facto parent because mother did not “consent[ ] to ... the [aunt]’s formation and establishment of a parent-like relationship with the child.” 252 Md. App. 486, 509 (2021) (alteration in original) (quoting Conover, 450 Md. at 74). The child in that case had lived with his Aunt since he was a few months old after he was removed from mother’s custody due to neglect and domestic violence. Id. at 498, 503. After two years, the child began spending overnights with mother, and mother demanded more time with her child. Id. at 498-99. After mother and the child’s aunt filed a series of protective orders against each other, the aunt filed for emergency custody in the Circuit Court for Montgomery County. Id. at 499. Following an evidentiary hearing, the trial court found that the aunt did not meet her burden of proving she was a de facto parent or that mother was unfit, and the court determined mother should have custody of her child. Id. at 501.
On appeal, mother asserted, among other things, that in denying mother’s motion for judgment at the conclusion of aunt’s case, the trial court found that the first factor of Conover had been met, but then the court “totally changed its mind” in its final ruling. Id. at 506. We observed that the court specifically noted that it only “found that at this point[,]” and that, upon considering all of the evidence, the court reached a different conclusion. Id. at 506-08. We observed that Mother testified to the “numerous instances where she attempted to see [the child] or regain custody and Aunt refused” and that the court found credible Mother’s testimony regarding her attempts to gain access to her child. Id. at 509. We concluded that the trial court’s decision was based on “sound legal principles” and its factual findings were “not clearly erroneous.” Id. (citations omitted).
D. Analysis
On the single issue before this Court, we hold that the circuit court correctly applied Maryland’s four-factor de facto parentage test in determining that Grandmother failed to establish that she had standing as de facto parent to request sole physical and legal custody of H.
The Supreme Court and this Court have repeatedly emphasized that the first prong of the de facto parentage test, as articulated in Conover and its progeny, is “critical because it makes the biological or adoptive parent a participant in the creation of the psychological parent’s relationship with the child.” Conover v. Conover, 450 Md. 51, 75 (2016) (quotation omitted); see also E.N. v. T.R., 474 Md. 346, 401 (2021); Caldwell v. Sutton, 256 Md. App. 230, 277 (2022); Basciano v. Foster, 256 Md. App. 107, 13536 (2022); B. O. v. S. O., 252 Md. App. 486, 505 (2021); accord Kpetigo v. Kpetigo, 238 Md. App. 561, 574 (2018) (“Conover’s de facto parenthood test measures the relationship between the
putative de facto parent and the child—a relationship formed with the biological parent’s knowledge and consent—without reference to the parent’s characteristics or the relationship's origins.”). Under the first factor of the test, a third party cannot establish standing as a de facto parent where there is no evidence that Mother or Father expressly or implicitly consented to the formation of the parent-like relationship. See Conover, 450 Md. at 74, 146; Basciano, 256 Md. App. at 143.
It is undisputed in the instant case that Grandmother did not present any evidence that Father or Mother ever expressly consented to the formation of a parent-like relationship between her and H. Grandmother argues that the circuit court erred in failing to find that Father had impliedly consented to a parent-like relationship because he: 1) “knowingly and voluntarily chose to leave [H.] in the primary care and custody of the child’s grandmother for nearly one year”; 2) “knew that he had the primary rights as H.’s only living parent[,]” but “did not file for custody” after Mother died; and 3) only filed for custody “after being served with [Grandmother]’s custody complaint.” She alleges, in sum, that Father “consented to this arrangement by his own inaction[,]” while “knowing full well that she was acting as [H.]’s primary parent.”18
Grandmother’s contentions are unavailing. Addressing her contentions in reverse order, we start with the basic principle that natural parents have a constitutional right to the custody of their children. Troxel v. Granville, 530 U.S. 57, 65 (2000) (stating that under the Due Process Clause of the Fourteenth Amendment, “the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court”). Father in this case was under no duty to file for custody after Mother died, but he did fully and appropriately contest her complaint for custody.
As in E.N. v. T.R., Father’s “lack of objection” to H. living with Mother and Grandmother “did not extend to a lack of objection to [H.] forming a parental relationship with” Grandmother. 474 Md. at 406. In Basciano, we held that the grandparents failed to establish standing as de facto parents, even though they held temporary primary physical custody of the child, because neither Father nor Mother consented to the development of a parent-like relationship. Basciano, 256 Md. App. at 146-47. We specified that we were “unpersuaded by the [grandparents’] alternative argument that Father provided implied consent to the [grandparents] while he was recovering from heroin addiction.” Id. at 147. Here, as in E.N. and in Basciano, Father consented to H. living with Mother and Grandmother. And while the facts also demonstrate that Father con-
JUDGMENT
sented to H. having a relationship with Grandmother, as Father urges, the trial court found that those facts did not establish that he consented to anything more than a child/grandparent relationship. We fail to see how the trial court was clearly erroneous in its determination. B. O. v. S. O., 252 Md. App. at 509.
In sum, the trial court correctly found first, that “there is no testimony or evidence to suggest that [Father] expressly consented or encouraged a parent-like relationship between [Grandmother] and [H.]”; and second, that Father had not impliedly consented to a parent-like relationship because he had “continued to act in a parental role and did not relinquish that role” during the time that H. lived primarily with Grandmother. We find no error in these second-level conclusions of fact and hold that Grandmother failed to satisfy the first factor of the Conover test.
Given that Grandmother does not challenge the trial court’s findings with regard to exceptional circumstances and Father’s fitness as a parent, and that our cases direct that under the four-factor de facto parentage test, the issue of consent is dispositive—we need not reach the remaining factors to sustain the trial court’s decision. However, we believe it is worth noting that the trial court’s determinations under the remaining factors was also based on sound legal principles and factual findings that were not clearly erroneous.
We observe that there is no magic number or amount of time required to satisfy the fourth factor of the test requiring that “the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.” Conover, 450 Md. at 74 (quotation omitted). Application of this factor is fact dependent and case specific. See, e.g., Caldwell, 256 Md. App. at 280 & n.17 (holding that grandmother took on parental responsibilities for a sufficient period of time during the seven years that Mother was incarcerated to establish a parent-like relationship). But we note that in the cases discussed in our analysis above, the periods of time that the children resided with the third parties exceeded two years or more. Consequently, we hold that the trial court in the underlying case was not clearly erroneous in finding that “not enough time passed for [Grandmother] to establish the parental role with the minor child.” Significantly also, the trial court found that Father had continued to be a parental presence in H.’s life, during and after Mother’s lifetime. Accordingly, we affirm the circuit court’s determination, on motion for directed verdict, that Grandmother failed to establish that she had standing as de facto parent to request sole physical and legal custody of H.
FOOTNOTES
1 Grandmother states that from December 2013 until October 2016, H. lived alone with Mother. From October 2016 until June 2018, H. lived with Mother and Mother’s boyfriend Ian. From June 2018 until December 2018, H. lived with Mother and Mother’s boyfriend Luis.
2 Later, and prior to the hearing in this case, Father filed verified responses to Grandmother’s requests for admission of facts, in which he denied numerous averments, including that: he did not purchase clothing for H.; he did not contribute towards childcare expenses for H.; he did not attend any medical appointments for H.; he lives in a three- bedroom apartment with two other roommates; H. does not have his own bedroom at his house; he disciplined H. with physical violence; he allows smoking of marijuana in his apartment while H. is present; and, since September 2020, he does not assist H. with his homework.
3 Due to the COVID-19 pandemic, school was virtual in the year 2020. The children’s lunch and recess time was online.
4 The magistrate’s report and recommendations were issued on January 20, 2021. On July 12, 2021, the Supreme Court of Maryland reversed the Appellate Court’s decision in E.N. v. T.R., 247 Md. App. 234 (2020), and held that where there are two existing legal parents, both parents must be shown to have consented to a third party’s formation of a de facto parent relationship. E.N. v. T.R., 474 Md. 346, 394-95, 413 (2021).
5 At the April 2023 custody hearing, Grandmother acknowledged that she kept H.’s schoolbooks “in [her] possession[,]” although Father attempted to retrieve them, because “he was taken without no type of agreement. So, I didn’t see any reason for me to be sending books.”
6 Grandmother, when asked on cross-examination if Mother consented to her having custody of H., testified that Mother allowed her to take H. to doctor appointments; however, Grandmother clarified that Mother never granted Grandmother custody of H.
Q: [D]id she ever say that she was giving you, [Grandmother], custody of [H.]?
A. No. She just let me see about him.
Q. Okay.
A. And enroll him in school.
Q. She let you take care of him?
A. Yes.
7 The record reflects, as the judge himself stated earlier in his ruling, that Grandmother and H. resided together “until September of 2020,” which, as Grandmother points out, was actually twelve months after Mother’s passing rather than nine. However, we view this factual error as harmless in the context of the facts of the case and evidence before the court. The time discrepancy does not disturb, in our view, the court’s finding that it was “not enough time to establish a parental role with the child given the fact that [H.] has known [Grandmother] . . . as his grandmother his entire life.”
8 The second factor requires “that the petitioner and the child lived together in the same household[.]” E.N.., 474 Md. at 352 (quoting Conover, 450 Md. at 74).
9 The third factor requires “that the petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation[.]” E.N., 474 Md. at 352 (quoting Conover, 450 Md. at 74).
10 The fourth factor requires “that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.” E.N., 474 Md. at 352 (quoting Conover, 450 Md. at 74)
11 Although Grandmother does not challenge the trial court’s determinations in regard to Father’s fitness as a parent or the existence of exceptional circumstances, Father devotes several pages of his brief supporting the court’s decisions. Father highlights the Maryland Supreme Court’s holding in McDermott v. Dougherty, 385 Md. 320 (2005) that “absent extraordinary (i.e., exceptional) circumstances, the constitutional right [of legal parents] is the ultimate determinative factor and only if the parents are unfit or extraordinary circumstances exist is the best interest of the child test to be considered.” McDermott, 385 Md. at 418. Father points out that in McDermott, the Supreme Court held that a fit father’s “being away for months at a time” as a merchant marine did not constitute exceptional circumstances warranting the transfer of custody to the maternal grandparents. McDermott, 385 Md. at 435. Comparing his actions to those identified by McDermott as demonstrating unfitness, Father argues that Grandmother “did not meet her burden.”
He further asserts that Grandmother did not meet her burden of demonstrating that he was unfit: “There was no evidence presented of neglect . . . abandonment for an appreciable among of time . . . immorality . . . failure to provide essential care when based on reasons other than poverty along . . . gross misconduct . . . [or] that a strong mutual bond did not exist between [Father] and H.”
12 Maryland courts hesitated to recognize de facto parent status because it could “short-circuit[] the requirement to show unfitness or exceptional circumstances[.]” Janice M. v. Margaret K., 404 Md. 661, 685 (2008), overruled by Conover v. Conover, 450 Md. 51 (2016). However, in her prescient dissent in Janice M., Judge Irma Raker argued that “the de facto parent test is not inconsistent with Troxel v. Granville, 530 U.S. 57 (2000)” and highlighted decisions of sister states that rejected parental unfitness as a necessary predicate for interference with a biological parent’s fundamental right to raise his children. Janice M., 404 Md. at 703 (Raker, J. dissenting).
13 We note that the appellant in Conover v. Conover is a transgender man, “Michael Conover,” formerly “Michelle.” Mr. Conover transitioned after the merits hearing. Appellant stated in his brief that he would refer to himself using feminine pronouns for consistency with the record.
14 The Court noted the passage of Maryland’s Civil Marriage Protection Act, which recognized same-sex marriage and “undermine[d] the precedential value of Janice M.” Conover, 450 Md. at 77.
15 In E.N., the Court explained that, where there are two existing parents and only one has consented to and fostered the establishment of a parent-like relationship between their child and a third party, then de facto parentage may obtain where “a non-consenting legal parent is unfit or exceptional circumstances exist.” E.N. 474 Md. at 395. In a footnote, Judge Watts, writing for the majority, explained that where a parent’s actions evince a settled purpose to relinquish all parental claims, “such abandonment may demonstrate an
exceptional circumstance sufficient to permit a trial court to determine de facto parentship.” Id. at 403 n.22.
16 At the time of the decision, both parents were still alive; however, Mother was unable to be located.
17 There was also no evidence that Mother consented to the formation of the de facto parent relationship. Basciano, 256 Md. App. at 147, 154.
18 On appeal, Grandmother does not reassert the contention on which she based her complaint; namely, that she consented to parent-like relationship between herself and H.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Calvert County Circuit Court’s County constructive civil contempt finding against the mother, for denying father visitation with their three children unjustifiably. The purge provision was specific and achievable.
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.
temporary order granting Father weekly parenting time with the two older children and “reasonable visitation” with the youngest child. About two weeks later, Father filed a second contempt petition, asserting that Mother had not complied with the temporary order and that she was “interfering with and depriving [Father] of parenting time ”
On October 13, 2022, the court denied Father’s contempt petition, but again granted Father weekly parenting time with the two older children. The court reserved decision on the issue of visitation with the youngest child. In addition, the court advised Mother that “if she failed to see to it that her daughters have visitation with Father pursuant to the court order, starting on October 27, 2022, she might be held in contempt of court.”
Jennifer Bancroft (“Mother”) appeals the order of the Circuit Court of Calvert County holding her in constructive civil contempt for denying her now-ex-husband, Christopher Parker (“Father”), visitation with their three children unjustifiably. She contends that the court erred by setting a purge provision without finding that she had the ability to perform the purge or finding that the purge would be in the best interest of the children. She also argues that the court erred by awarding attorneys’ fees to Father without making findings about her financial resources or the reasonableness of the fees. We find no error and affirm.
I. BACKGROUND
Mother and Father were married in Maryland in 2007 and have three children, born in 2008, 2010, and 2012, respectively. In 2014, Mother and Father separated. They were granted a judgment of absolute divorce on January 17, 2017. Before their divorce, Mother and Father signed a settlement agreement governing the custody of the children that was incorporated into the divorce judgment. The agreement specified that they would share physical custody of the children and it set forth a weekly visitation schedule.
The settlement agreement governed custody of the children until January 2022, when Mother alleged that Father strangled the youngest child. From that time on, Father has been denied visitation with the children. Mother alleges that she has not engaged in any action to prevent the children from visiting Father but contends that the children became fearful and refused to have any contact with him.
Father has filed a total of seven contempt petitions against Mother. After the first contempt petition, the court issued a
The children did not have visitation with Father after the October 13, 2022 order and Father filed his third contempt petition against Mother. The court found Mother to be in constructive civil contempt of the October 13 order, and stated that “the refusal of the children to have contact with Father and the failure of Mother to see to it that Father’s visitation rights are honored[] is entirely unjustified.” The court found that “Father never choked [the youngest child] or otherwise physically abused him” and that “the children’s fear is due to intentional parental alienation on the part of Mother.” As a sanction, the court ordered Mother to pay $7,500.00 into the court’s registry. The court advised Mother that she could purge herself of the contempt order “if, on December 9, 2022, at 6:00 p.m., she [met with] Father at the Sheriff’s Department of Calvert County in Prince Frederick, MD and transfer[ed] to Father his three children ”
On December 29, 2022, Father filed a fourth contempt petition against Mother. He alleged that although Mother and the children arrived at the Sheriff’s Department on December 9, 2022, Mother left without transferring the children. He asserted that he heard Mother’s car doors lock after Mother stepped out of the vehicle to talk to Father upon arriving. Mother responded that she attempted to transfer the children to Father, but they “refused to get out of the car even when told to by [Mother] and police officers.”
The denial of visitation continued for the following several weekends, and Father filed his fifth and sixth contempt petitions against Mother on February 5, 2023 and March 1, 2023, respectively. The petitions alleged that on December 23, 2022, January 6, 2023, January 27, 2023, February 10, 2023, and February 24, 2023, Mother and the children arrived at the Sheriff’s Department but Mother did not transfer the children to Father. The court granted Father’s fourth, fifth, and sixth contempt petitions on June 14, 2023, finding that Mother “ha[d] unjustifiably
denied [Father] his court-ordered visitation.” The court found that Mother “d[id] not believe that her children should go with their father, so she engage[d] in the biweekly theater of arriving with her children at the Calvert County Sheriff’s Office in an attempt to demonstrate compliance,” and that “Mother [wa]s not compliant with the Custody Order.”
The court imposed a sanction of forty-eight hours of incarceration on Mother. It also set forth a purge provision specifying that Mother could avoid the sanction “if she [met Father] at the Calvert County Sheriff’s Office on Thursday, June 15, 2023, at 5:00 p.m. and transfer[red] to [Father] the three minor children.” The court found that Mother had the ability to satisfy the purge provision because she was a “fit and proper parent” and was “more than reasonably capable of ensuring that her minor children act in their own best interest, even if those children [did] not believe that a given action [wa]s in their best interest.” Moreover, the court determined that “it [was] necessary, and in the best interest of the minor children, to assess [Father]’s counsel fees against [Mother] for her unjustified denial of visitation.”
Mother arrived with the children at the Sheriff’s Office on June 15, 2023 but did not transfer the children to Father. The next day, on June 16, 2023, Mother filed a Motion for Reconsideration of the court’s contempt order. The court held a hearing on Mother’s motion one week later, on June 22, 2023. At the hearing, the court reviewed police body camera footage of the failed transfers scheduled for June 9, 2023 and June 15, 2023. Moreover, Mother asked the court to observe her size compared to the oldest child to show “how she could not physically pick the child up,” and the court allowed a side-by-side comparison.
At the end of the hearing, the court denied Mother’s Motion to Reconsider. The court found that the body camera footage revealed that Mother did “nothing other than open[] the door and try[] to get one child out,” which was not sufficient to satisfy the purge provision. Although the court noted that the child “pushed at” Mother, it concluded that Mother’s attempt to remove the child was “brief.” The court also emphasized that Mother had directed her efforts toward finding fault with Father rather than toward transferring the children: [T]he effort of [Mother] was focused on [Father]. She was blaming him for putting her in jail, and that it was his fault as opposed to . . . go[ing] to the other side of the vehicle and try[ing] to get [the oldest child] out of the vehicle or . . . try[ing] to get [the youngest child], who was in the back, out of the vehicle. There was nothing other than opening the door and trying to get one child out.
Based on that, . . . the reconsideration, again, is denied.
Mother filed a notice of appeal on June 23, 2023. One month later, on July 27, 2023, Father filed his seventh contempt petition against Mother, asserting that Mother continued to deny him visitation with the children. Given the close overlap between the issues on appeal and those raised in the most recent contempt petition, Mother and Father submitted a consent order agreeing to stay the proceedings relating to Father’s seventh contempt petition. The court signed the consent order. Additional facts will be provided below as needed.
II. DISCUSSION
This appeal, which brings before us the June 14, 2023 order granting Father’s fourth, fifth, and sixth contempt petitions and the June 22, 2023 order denying Mother’s motion to reconsider, presents two issues: first, whether the circuit court erred in setting a purge provision that required Mother to transfer the children to Father without, as Mother claims, finding that Mother had the ability to perform the purge or finding that the purge would be in the best interest of the children; and second, whether the circuit court erred in awarding attorneys’ fees to Father.1 We hold that the circuit court did not err in setting the purge provision because it found that Mother had the ability to transfer the children to Father and that visitation with Father was in the best interest of the children. Further, we hold that the court did not err by awarding attorneys’ fees to Father because it found that Mother had unjustifiably denied Father of his court-ordered visitation.
“The decision of whether to hold a party in contempt is vested in the trial court.” Droney v. Droney, 102 Md. App. 672, 683 (1995). “‘[T]his Court will not disturb a contempt order absent an abuse of discretion or a clearly erroneous finding of fact upon which the contempt was imposed.’” Breona C. v. Rodney D., 253 Md. App. 67, 73 (2021) (quoting Kowalczyk v. Bresler, 231 Md. App. 203, 209 (2016)).
A. The Circuit Court Did Not Err In Setting A Purge Provision That Required Mother To Transfer The Children To Father.
Mother contends first that the court’s order holding her in contempt must be reversed because she did not have the ability to meet the purge provision. The contempt order at issue here is an order of constructive civil contempt. Constructive contempt occurs outside the presence of the court and beyond a place where the contempt would directly interfere with the proper functioning of the court. Breona C., 253 Md. App. at 73. Civil contempt proceedings are meant to “‘coerce present or future compliance with a court order ’” Id. (quoting Dodson v. Dodson, 380 Md. 438, 448 (2004)).
An order for constructive civil contempt must: “(1) impose[] a sanction; (2) include[] a purge provision that gives the contemnor the opportunity to avoid the sanction by taking a definite, 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 ” Id. at 74. For the purge provision to be coercive rather than punitive, it must “‘permit[] the defendant to avoid the penalty by some specific conduct that is within the defendant’s ability to perform.’” Id. at 75 (quoting Kowalczyk, 231 Md. App. at 209).
Mother contends that the contempt order failed to include a valid purge provision because “the [court] expressly found that [Mother] was physically unable to comply” with the purge. (Emphasis in original). She quotes two statements that the court made during the Motion for Reconsideration hearing to support her argument. First, she points to a statement by the court paraphrasing her attorney’s argument that she lacked the ability to complete the transfer:
The Court finds that—and [Mother’s counsel] indicated that she, [Mother], has done everything that she reasonably can to be able to put the kids in [Father]’s car, specifically that
she is unable to physically place them in the vehicle. However, she’s done everything reasonably possible.
Based on this statement, Mother contends that the court’s order holding her in constructive civil contempt must be reversed because the court found that she did not have the ability to meet the purge provision. We disagree.
Mother’s argument overlooks the context of the court’s statement. A complete review of the record reveals that the court was not making a finding that Mother lacked the ability to transfer the children to Father. Instead, the court paraphrased what Mother’s attorney contended during her closing argument. The statement at issue followed immediately after the court summarized the evidence and testimony presented during the hearing, and the court continued by summarizing rather than endorsing the argument presented by Mother’s attorney. After making the statement, the court described Mother’s attempt at transferring the children as “brief” and emphasized that Mother had chosen not to try to get the oldest and youngest children out of the car. Contrary to Mother’s argument that the court’s statement was a finding that “she’[d] done everything reasonably possible” but was unable to transfer the children, the court found explicitly that Mother could have done more to complete the transfer.
Mother points second to the court’s statement that she failed to transfer the children as proof that the court found that she lacked the ability to transfer them: [T]he review of the case was set really to see if [Mother] was able to purge and put the kids in the vehicle, which, again, she was unable to do.
She contends that this statement makes it “clear” that the court did not know whether Mother had the ability to transfer the children when the court imposed the purge provision. But again, Mother’s argument takes the court’s statement out of context. The court was not finding there that Mother lacked the ability to transfer the children—it was finding that Mother didn’t transfer the children. The court made this statement after highlighting that Mother did “nothing other than opening the door and trying to get one child out” and after emphasizing that Mother’s focus was on blaming Father rather than transferring the children.
We note as well that when the court set the purge provision, it found expressly that Mother had the ability to complete the transfer. In particular, the court stated that Mother was a “fit and proper parent” and that she was “more than reasonably capable of ensuring that her minor children act[ed] in their own best interest, even if those children [did] not believe that a given action [wa]s in their best interest.” Indeed, the court found that Mother’s counteractive behavior was what was delaying the transfer of the children. The court found explicitly that “[Mother] empower[ed] and embolden[ed] the children to make their own decisions without consequence” and “consistently qualifie[d] any encouragement of the children to go with [Father] with statements about the rights of the children to feel safe, which the children consistently repeat[ed].” As a result, the court “[wa]s not convinced that it [wa]s outside [Mother]’s power as an adult parent to get her minor children to go with their father.” In light of the context, the court’s statement hardly
suggests a finding that Mother lacked the ability to transfer the children.
I. The purge provision does not fail for lack of specificity. Mother argues also that the purge provision should be reversed because the court did not “adequately specify the conduct that [Mother] was required to engage in should the children refuse to go willingly [with Father] ” She cites Maryland Rule 15-207(d) for the proposition that a contempt order must “specif[y] how the contempt may be purged.” She asserts that this purge provision failed to satisfy the Rule because the court did not specify “[h]ow far [Mother should] have gone with her use of force and coercion against the minor children” and “when ‘enough’ [would] have turned into ‘too much[.]’” And she contends that her “actions might [have been] construed in another context as abusive behavior ”
We are not persuaded. The court advised Mother that she could purge the contempt if she met with Father at the Calvert County’s Sheriff’s Office and transferred the children to Father. Although the court did not specify the exact methods Mother could or must use in transferring the children, the court’s instruction was definite and specific enough to meet the requirements of a valid purge provision. See Droney, 102 Md. App. at 680 (court did not err by setting a purge provision that allowed the defendant to “purge the contempt by executing the necessary documents to effectuate transfer of title of [a] home”). Our analysis is not changed by Mother’s argument that performing the purge could be construed as abusive behavior. The purge provision did not call for Mother to abuse the children—it instructed her to transfer the children to their father.
2. The purge provision does not fail for lack of a best interest analysis.
Next, Mother argues that the court erred by failing to engage in a best interest analysis before imposing the purge provision and sanction against her. She argues that the purge provision “put the minor children in the middle of the conflict between the two parents” and that the “sanction of incarceration mean[t] that the minor children [would] be deprived of their primary custodial parent for two days . . . .” She argues that these circumstances required the court to conduct an additional best interest analysis rather than “simply endors[ing] the prior finding that the children’s best interest was served by having the same court-ordered access with their father.”
We disagree. The court already had conducted a best interest analysis when it ordered initially that Father should have visitation with the children. When Mother failed to comply with the court-ordered visitation, the court sought to enforce the visitation by holding Mother in contempt. The imposition of the purge provision and the sanction were designed to carry out what the court already determined was in the best interest of the children. There was no occasion to revisit the children’s best interests in this regard—and to the extent that Mother argues now that the process of transferring the children or Mother’s incarceration would have rendered the visitation no longer in the best interest of the children, the court found otherwise. After specifying that Mother would be incarcerated if she failed to purge the contempt by completing the transfer, the court stated that “it remains in the children’s best interest for [Father] to have access with his children.” We see no error in the court’s
decision to enforce its existing best interest analysis rather than revisiting it in the context of contempt proceedings.
B. The Circuit Court Did Not Err In Awarding Attorneys’ Fees to Father.
Finally, Mother argues that the court erred in awarding attorneys’ fees to Father under Maryland Code (1984, 2019 Repl. Vol.), § 9-105 of the Family Law Article (“FL”). She contends that the award “is both unfounded and excessive” and that the “[c] ourt made no finding as to [Mother]’s financial resources or her ability to pay the fee.” She argues as well that the court abused its discretion in awarding attorneys’ fees to Father because it “made no finding as to whether the amount of fees incurred by [Father] were reasonabl[e] or necessary in order to litigate this proceeding.”
We see no error in the court’s award of attorneys’ fees. As Mother acknowledges, the court made the award under FL § 9-105. Section 9-105 specifies that courts may assess attorneys’ fees against parties who have interfered with visitation rights, and it does not require courts to make a finding as to the parties’ financial resources or the reasonableness of the fees incurred:
FOOTNOTES
In any custody or visitation proceeding, if the court determines that a party to a custody or visitation order has unjustifiably denied or interfered with visitation granted by a custody or visitation order, the court may, in addition to any other remedy available to the court and in a manner consistent with the best interests of the child, take any or all of the following actions:
(1) order that the visitation be rescheduled;
(2) modify the custody or visitation order to require additional terms or conditions designed to ensure future compliance with the order; or
(30 assess costs or counsel fees against the party who has unjustifiably denied or interfered with visitation rights.
Here, the court found that Mother had “unjustifiably denied [Father] his court-ordered visitation” and that “the assessment of counsel fees[] [was] consistent with the best interest of the minor children.” Those findings were all that was needed to award attorneys’ fees under FL § 9-105.
JUDGMENT OF THE CIRCUIT COURT FOR CALVERT COUNTY AFFIRMED. APPELLANT TO PAY COSTS.
1 Mother phrased her Questions Presented as follows:
I. Did the Trial Curt err as a matter of law in setting a purge provision that Ms. Bancroft could not perform without the compliance and participation of third parties?
II. Did the Trial Court err in failing to conduct a best interest analysis before it set a purge provision that had a likelihood of exposing the minor children to mental and physical HARM?
III. Did the Trial Court err in making an award of attorney’s fees when it made no finding as to Ms. Bancroft’s ability to pay or the reasonableness or necessity of Mr. Parker’s Fees?
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Anne Arundel County Circuit Court’s adoption of the father’s proposed order following the parents’ agreement at a pretrial settlement conference. Several provisions of the father’s proposed order failed to accurately reflect the agreement of the parties on the record.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
The divorce judgment incorporated, but did not merge, a consent order granting Mother and Father joint legal and shared physical custody. It also set forth Father’s child support obltions.
The 2019 Judgment governed the parties’ relationship through July 2022 when Mother petitioned the circuit court for modification of custody and child support. As part of her petition, Mother also sought permission to relocate to Florida with the children. Father filed a counter-petition for modification two months later. Although mandated mediation was ultimately unsuccessful, Mother and Father reached an agreement concerning custody and support at a pre-trial settlement conference on March 13, 2023.
This appeal stems from a consent order modifying the parties’ custody and child support obligations. After unsuccessful attempts at court-ordered mediation on these subjects, Appellant Samantha Saavedra1 (“Mother”) and Appellee Luis Samayoa (“Father”) reached an agreement at a pretrial settlement conference in the Circuit Court for Anne Arundel County. Mother’s counsel read the terms of the agreement into the record, and the court directed them to submit a consent order embodying those terms by the end of the week.
Mother filed a proposed consent order she contends accurately reflected the terms placed on the record, but Father had refused to sign it. Instead, Father filed a Motion to Enforce Settlement Agreement, claiming that Mother’s proposed order misrepresented the parties’ agreement. Father included his own proposed order containing several terms not discussed at the hearing, which also incorporated, but did not merge, a separate Parenting and Custody Agreement with more terms. The circuit court granted Father’s motion and entered his proposed order. Mother appealed.
Mother presents two questions for our review,2 but we need address only one, which we have rephrased here: Did the trial court abuse its discretion in entering Father’s proposed consent order?
For the reasons below, we vacate the circuit court’s judgment and remand for further proceedings consistent with this opinion.
BACKGROUND
Mother and Father divorced in December 2019. They had four children during their marriage, all of whom are still minors.
Mother’s counsel read the terms of the agreement into the record. When he finished, Mother’s counsel checked with Father’s counsel “to make sure there w[ere] no additions or corrections from his side.” Father’s counsel responded that there were “just small things in the written agreement that [they] had,” which he stated he would send to Mother’s counsel following the hearing “[j]ust [to] flesh[] out things.” He confirmed, however, that Mother’s counsel’s recitation “hit the major points.”
The court then directed the parties to “submit a consent order . . . with these terms in it.” Father’s counsel suggested that he had instead already drafted “a parenting agreement with a potential consent order to say that it’s incorporating but not merging because it fleshe[d] out a little bit of the details in terms of things like luggage[.]” Mother’s counsel conveyed that he would “certainly look at that. And if [Mother] agree[d] to it then [they would] do it that way. But . . . the default w[ould] be just submit a consent order.” Mother’s counsel then re-confirmed that his on-the-record recitation “hit all the other salient points[.]” Father’s counsel responded: “Yes.”
Next, both parties were qualified about their acceptance of the agreement on the record. Mother confirmed that nobody promised her “anything outside of the terms that were stated” to coerce her to enter into the agreement. She also confirmed that she understood “that even though [they were discussing] the submission of a document in writing that [the oral recitation of] the agreement [was] enforceable against her and [Father.]” Finally, she affirmed that nothing “was left out of this agreement with regards to the terms that [she] would have agreed to.”
Father’s voir dire went less smoothly. When asked whether the terms read into the record “reflect[ed] [his] understanding and agreement to the entry of an order respecting those terms[,]” Father replied, through an interpreter: “Not accepted but [Mother’s Counsel] mentioned a lot of . . . Correct.” Father’s counsel then asked whether he had “any changes, modifications, or ques-
tions regarding the information that [Mother’s Counsel] stated.”
Father replied:
[Mother’s Counsel] did mention a lot [of] big points. Okay. But there was a lot of language and a lot of legal details in the parenting and custody agreement. So I don’t know if I should say yes or not but there’s a lot of things that were left out that was in the agreement.
At that point, the court interjected and directed Father’s counsel to “just ask him if he . . . agree[d] to all the terms in the parenting plan.” Father confirmed that he “accepted the terms in the parenting plan as modified by [Mother’s counsel’s] statements.” He also agreed “that this parenting agreement, as modified, would be incorporated but not merged into an order modifying custody and child support.” The court then found that the parties were entering into the agreement “voluntarily and with a complete understanding of all of the elements of the agreement.” It directed the parties to submit an order by the end of the week.
The parties continued discussions but were unable to reach a subsequent agreement on the “small things” Father’s counsel mentioned at the settlement conference. So, keeping with the court’s March 17 deadline, Mother filed a proposed consent order containing terms that tracked those placed on the record at the settlement conference. Despite her efforts, Father did not sign this proposed order. Instead, just two hours later, he filed a Motion to Enforce Settlement Agreement along with his own proposed order. The terms of Father’s proposed order differed from those in Mother’s in several ways. Father’s proposed order also incorporated, but did not merge, an attached parenting agreement containing additional terms. However, the parenting agreement, which appears to be a working draft from the mediation session, was not signed by either party. Mother opposed this motion and attached emails between the parties’ counsel suggesting that “there was not a meeting of the minds” with respect to the extra terms contained in Father’s order. The circuit court granted Father’s motion and entered his proposed order on March 28. This appeal timely followed.
We will include additional facts below as necessary for our discussion of the issues.
STANDARD OF REVIEW
“In reviewing [a ruling on] a motion to enforce a settlement agreement, we review the circuit court’s factual findings for clear error and its legal conclusions de novo.” Na v. Gillespie, 234 Md. App. 742, 749 (2017). That said, when, as here, “the parties entered into an agreement in open court, which under Maryland law is binding upon [them],” intending that the court will later reduce the agreement to a written order, the legal principles regarding consent orders are “equally applicable” to the resulting order. Smith v. Luber, 165 Md. App. 458, 170–71 (2005). We review the entry of such an order for an abuse of discretion. See id. at 468–70. In this context, “a court abuses its discretion if it enters an order containing terms that vary from, or otherwise fail to reflect, those to which the parties have agreed.” 4900 Park Heights Ave. LLC v. Cromwell Retail 1, LLC, 246 Md. App. 1, 18 (2020) (citing Smith, 165 Md. App. at 467).
DISCUSSION
Ordinarily, a party may not appeal from a consent judgment. Barnes v. Barnes, 181 Md. App. 390, 411 (2008). There is, however, a narrow, relevant exception: We will entertain an appeal from a consent judgment where the appealing party contends “that the ‘consent judgment’ was not in fact a consent judgment because [it] exceeded the scope of consent, or for other reasons there was never any valid consent.” Id. (quoting Chernick v. Chernick, 327 Md. 470, 477 n.1 (1992)). In attacking such a judgment, “[t]he only question that can be raised . . . is whether in fact the decree was entered by consent.” Id. (quoting Dorsey v. Wroten, 35 Md. App. 359, 361 (1977)). Put differently, we must examine the record to determine whether Mother consented to the terms of the Order. See id.
Consent judgments are, at their core, a fusion of contracts and judicial decrees. Smith, 165 Md. App. at 470. Maryland follows the objective law of contracts when interpreting contractual language. Id. at 471. “[W]hen the language is clear and unambiguous we must presume that the parties meant what they expressed, leaving no room for construction.” Id. (cleaned up). The language in the court’s written order need not be identical to what the parties stated in open court. Id. But because that order “will govern the rights of the parties should there be any dispute[,]” it must still accurately reflect the terms of the parties’ agreement placed on the record. See id.
In her brief, Mother identifies five issues that were settled by the parties on the record but were later either modified by the court’s Order or added without her agreement. One of these, the children’s relocation to Florida, is now moot. We will examine only the four issues that remain viable to determine whether, in fact, the court’s Order reflects the parties’ agreement on the record.
I. Incorporation of the Parenting and Custody Agreement
Mother first argues that the parties never agreed to incorporate the separate Parenting and Custody Agreement into the Order. We do not find any indication in the record that Mother agreed to any of the provisions in Father’s proposed order, which the court ultimately entered. At the hearing, Father’s counsel mentioned that the parties had agreed on additional “small things” that were not read into the record, “like luggage[.]” But the Agreement goes far beyond luggage and includes additional provisions ranging from designating permissible airports into which Father may fly the children, to granting Father additional “reasonable access with the [children] for all other special events or special circumstances[.]” We can find no reference to these extra provisions anywhere in the record.
Still, Father contends that the parties referenced the Agreement on the record and had been working from the document throughout the settlement process, so Mother and the court were both aware of it at the time of the hearing. But the only clear references to the Agreement came after Mother’s counsel’s recitation of agreed upon terms. To be sure, based on his answers to counsel’s qualifying questions, it seems Father was aware of the other terms in the Agreement. But when Father’s counsel mentioned incorporating the Agreement to Mother’s counsel, Mother’s counsel responded:
[Mother’s counsel]: [S]o I will certainly look at that. And if my client agrees to it then we’ll do it that way. But I think the default will be just submit a consent order. But, yeah, I mean, I’ll take a look at it with [Mother] right after this. And if it’s acceptable, I’ll let you know and we’ll do it that way. (Emphasis added).
It is unclear what agreement is being referenced, especially because no such draft agreement had been entered into the record. Regardless, it is clear that Mother had not accepted it. Likewise, it is unclear from the record what the court knew: the prior mediations were handled by other judges, the Agreement was not entered into evidence at the hearing, and nothing suggests that the court was aware of its terms. Although we have no reason to doubt the truth of Father’s counsel’s statements on this issue at oral argument, our review is confined to the record before us. See Md. Rule 8-131(a). See also Maddox v. Maddox, 174 Md. 470, 477 (1938) (“Whatever information may have been laid before the [circuit court] in reports and proceedings which do not appear on the record at bar, the appellate Court must confine its review within the limits of the record.”). Based on our review of the record, Mother did not consent to the incorporation of the Agreement into the order.
II. Legal Custody
Mother next contends that the court’s Order modified the parties’ agreement concerning legal custody. The record shows that the parties agreed to joint legal custody of the children: [Mother’s Counsel]: With respect to legal custody, the parties have agreed to continue to do joint legal custody. [Father] has agreed to respond within the deadlines provided by [Mother] in discussions concerning the children’s welfare. And if he does not, he therefore waives his right to provide input.
In contrast, the court’s Order stated:
[T]he Parties shall have joint legal custody of their four (4) minor children. . . ; provided however, that, if a party fails to timely respond to a written request for input or position regarding a legal custody decision regarding the health, welfare, or education of the Minor Children within any reasonable deadline set to make the decision, then such party waives the right to provide input as to said decision[.]
(Emphasis in original).
Thus, under the term placed on the record, only Father was obligated to timely respond to discussions concerning the children’s welfare. Father did not object to this at the hearing. However, the court’s Order expanded this obligation to cover both parties. But the language on the record is clear and unambiguous, and so “we must presume that the parties meant what they expressed [with] no room for construction.” Smith, 165 Md. App. at 471. The expansion of this obligation was therefore improper.
III. Children’s Relocation to Florida
While this appeal was pending, the parties continued settlement discussions through this Court’s Alternative Dispute Resolution Division, and, as a result, the children relocated to Florida with Mother as scheduled. Thus, the issue is moot.
IV. Visitation Periods
Mother next contends that the court’s Order improperly expands Father’s visitation and access schedule beyond what
was agreed to on the record. The agreement was recited into the record:
[Mother’s Counsel]: [Father’s] visitation and access schedule shall provide him with time during the children’s summer break which shall be defined as a period commencing the Monday after the school year ends in June and ending . . . at least eight days before the next year starts.
He shall also have time during the Thanksgiving break as defined by the school calendars where the children are matriculated.
He’ll also have time during the winter break as defined by the school calendar where the children attend.
He’ll also have time at his election for spring break as defined by the school calendar where the children attend.
And then we also set out President’s Day weekend and Easter weekend as potential dates that [Father] could see or have time with the children.
The court’s Order laid out Father’s visitation schedule as follows:
[Father] shall have physical custody of, visitation with, and access to the Minor Children, during the following periods:
a. Summer Break – defined as the period commencing on the Monday after the school year ends in June of each year and ending on the eighth (8th) day before the next school year starts;
b. Thanksgiving Break – defined as the period of time commencing on the Saturday before Thanksgiving to the Sunday after Thanksgiving;
c. Christmas/New Year’s Break – as defined by the Lee County school calendar, inclusive of the preceding and/ or following Saturday and Sunday;
d. President’s Day Weekend – defined as the period commencing on the Saturday prior to President’s Day through President’s Day Monday;
e. Spring Break – as defined by the Lee County school calendar, inclusive of the preceding and/or following Saturday and Sunday;
f. Easter Weekend – defined as the period of time commencing on Good Friday through to include Easter Monday; and
g. Additional Visitation as agreed pursuant to the Parenting and Custody Agreement[.]
Put simply, the terms on the record define Father’s access periods by the children’s school calendars. The court’s Order does the same, but also specifies that those periods include surrounding weekend days and further adds the Additional Visitation provision contained in the Parenting and Custody Agreement. As discussed above, including the Additional Visitation provision was improper because Mother did not agree to it. We do not, however, believe that the court’s specified inclusion of surrounding weekend days was improper.
Under Maryland’s objective approach to contract interpretation, “the court’s inquiry is initially bounded by the ‘four corners’ of the agreement.” Impac Mortg. Holdings, Inc. v. Timm, 474 Md. 495, 506 (2021). If, however, a contract provision is ambiguous, “the narrow bounds of the objective approach give way[.]”
Credible Behav. Health, Inc. v. Johnson, 466 Md. 380, 394 (2019).
“Ambiguity arises when a term of a contract, as viewed in the context of the entire contract and from the perspective of a reasonable person in the position of the parties, is susceptible of more than one meaning.” Impac Mort. Holdings, 474 Md. at 507 (citing Ocean Petroleum, Co. Inc. v. Yanek, 416 Md. 74, 87 (2010)).
Here, the provision defining Father’s access periods could be understood one of two ways. On the one hand, a reasonable person could interpret the provision as including only the days on which the children would ordinarily be in school but, because of the break, are not—i.e., Thanksgiving Break is Wednesday through Friday, but not the following Saturday and Sunday; Spring Break is Monday through Friday, but not the preceding or following weekend; etc. On the other hand, an equally reasonable person could interpret the provision as including all of the days the children are consecutively out of school—i.e., Thanksgiving Break is Wednesday through Sunday; Spring Break is Saturday through Sunday; etc. Thus, the provision, as read into the record, was ambiguous.
If a contract provision is ambiguous, “the court may consider extrinsic evidence to ascertain the mutual intent of the parties.”
Id. In doing so, “the court is to consider admissible evidence that illuminates the intentions of the parties at the time the contract was formed.” Id. (citations omitted). To that end, “[c]ommunications between the parties about a contract subsequent to the execution of that contract may be admissible as evidence of an interpretation by both parties.” Id. at 508 (cleaned up).
In her opposition to Father’s Motion to Enforce Settlement Agreement, Mother attached email communications between the parties’ attorneys discussing provisions of Father’s proposed Parenting and Custody Agreement. Within these emails was a draft of the Agreement redlined by Mother’s counsel.Although the portion of the provision concerning Additional Visitation was heavily edited, the portion defining Father’s access periods during school holidays—which uses language identical to the court’s Order— showed no edits. Because the term placed on the record was ambiguous, the court was permitted to consider this extrinsic evidence as an interpretation by both parties. See id. It did not err in using clearer language in the Order.
V. Suspension of Father’s Child Support Obligation
Mother’s final contention concerns a provision in the Order that suspends Father’s child support obligation at times. The record reflects that the parties agreed a downward deviation
from the child support guidelines was in the best interests of the children. They agreed Father would pay $1,000 per month—a $590 downward deviation from the guidelines. The court’s Order accurately reflected this, but it also added the following: [P]rovided, however, that to the extent that the Minor Children are with [Father] for thirty (30) consecutive days or more, [] Father shall not be required to pay the child support obligation for the corresponding month.
(Emphasis omitted).
We can find no such language in the agreement on the record. The language does appear in Father’s proposed Parenting and Custody Agreement, but as discussed above, Mother never accepted the Agreement. It was therefore error to include this added language in the Order.
CONCLUSION
A consent decree implies that the parties have consented to the agreement. Upon our examination of the Order and the record, we have concluded that several provisions of the court’s Order fail to accurately reflect the agreement of the parties on the record. Thus, the court’s Order, as entered, improperly modified the parties’ agreement and altered the rights of the parties under the agreement. Therefore, we hold it was an abuse of discretion for the circuit court to enter the Order, and we remand the case.
Unlike Smith v. Luber, however, we cannot simply direct the court to enter a revised order tracking the terms and language as they appear in the record. There, “[t]he parties entered into a valid consent settlement agreement on the record in open court[.]” Smith, 165 Md. App. at 479. Here, despite the circuit court’s finding that the parties had “a complete understanding of all of the elements of the agreement,” Father expressed cocerns about “a lot of things that were left out[.]” He appears to have accepted the terms placed on the record only as far as they modify the proposed Parenting and Custody Agreement, and only after the court directed his counsel on what to ask. If Father’s acceptance was in any way qualified or conditional, it was no acceptance at all—it was a rejection and counteroffer. See Post v. Gillespie, 219 Md. 378, 385–86 (1959). Accordingly, on remand, the circuit court should first make additional factual findings on whether the parties understand the precise scope and terms of the agreement on the record and whether they accept those terms without condition. If the court finds that they do, only then should it enter an appropriate consent order reflecting their agreement.
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY VACATED.CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY APPELLEE.
FOOTNOTES
1 As part of its Judgment of Absolute Divorce, the court restored Ms. Samayoa to her former name, Samantha Saavedra. We shall therefore refer to Appellant as “Ms. Saavedra” or “Mother” in this opinion.
2 Mother’s questions are:
I. Did the trial court abuse its discretion by entering the Order granting Father’s Motion to Enforce Settlement Agree-
ment, when the Order failed to accurately reflect the terms of the oral agreement that had been placed on the record and incorporated but did not merge an unsigned written agreement, in violation of Smith v. Luber, 165 Md. App. 458 (2005)?
2. Did the trial court err when it entered an Order that suspends Father’s child support obligation in months when he has the children, in violation of Lorincz v. Lorincz, 183 Md. App. 312 (2008)?
Our resolution of the first question moots the second.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Howard County Circuit Court’s judgment, sitting as the juvenile court, altering the permanency plans of three children, all of whom had been previously declared children in need of assistance, from reunification with the parents to adoption by a relative. There was ample evidence presented at the various exceptions hearings to support the juvenile court’s decision.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
child “doesn’t sleep well at night.” On January 16, 2019, CPS responded to the home and found Su.N. “bound and tied in an elaborate knot work on the bed.” The child “was on her stomach and had a blanket over her head.” Sa.N. was also found bound and in bed. It was noted that the home “was very cluttered” and had “no smoke detectors”; that Mother had occasion to leave the children alone and unattended in the home; and that Mother had been feeding the children unscreened breastmilk that had been given to her. It was also noted that Mother and Father had a history of domestic violence and that Mother had obtained a protective order against Father, which caused Father to become homeless.
This appeal arises from a judgment, entered in the Circuit Court for Howard County, sitting as the juvenile court, altering the permanency plans of three children, all of whom had been previously declared children in need of assistance (“CINA”), from reunification with the parents (referred to individually as “Mother” and “Father”) to adoption by a relative. Mother noted an appeal from that judgment, presenting several questions for our review.1 For clarity, we have rephrased and consolidated those questions into a single question:2
Whether the juvenile court erred in changing the children’s permanency plan from reunification to adoption. Finding no error, we affirm.
BACKGROUND
Mother and Father are the parents of three children: Su.N., born in June 2016; Sa.N., born in December 2017; and So.N., born in January 2020. In June 2018, the police and Child Protective Services (“CPS”) responded to Mother’s home after receiving a report that Su.N. and Sa.N. were being tied to their beds. A safety plan was put into place, and Mother was informed that she could not tie the children to their beds. The family received follow-up services until November 2018.
February 2019 – Su.N. and Sa.N. declared CINA
On January 15, 2019, the Howard County Department of Social Services (the “Department”) received a report that Su.N. had been “tied tightly to the bed, her arms behind her back, with a cloth around her arms and torso.” Mother later stated that she “was swaddling the child” because the
Shortly thereafter, the Department filed petitions in the juvenile court requesting that Su.N. and Sa.N. be declared CINA based on the above allegations.3 In February 2019, the court sustained the Department’s allegations and found the children to be CINA. The children were subsequently placed in foster care. The parents thereafter began visiting with the children for supervised visits two times per week.
In or around May 2019, Mother was charged criminally with child abuse and neglect based on the allegations that she had tied the children in their beds. As a result of those charges, Mother was prohibited from having in-person contact with the children. Mother was also prohibited from leaving the State except for employment purposes.
June 2019 – Review hearing
In June 2019, the parties returned to court for a review hearing. The court found that the parents had made some progress in eliminating the need for Departmental involvement. The court ordered that the children’s permanency plan be one of reunification with the parents. The court found that the Department had made reasonable efforts to eliminate the need for removal of the children.
July 2019 – Su.N.
and Sa.N.
move to California
In July 2019, the children relocated to California to live with their maternal aunt, Ms. B., and her husband, Mr. B. Mother and Father agreed with the relocation. A social worker in California was assigned to the case and was responsible for sending monthly reports to the Department. Due to the no-contact order in her criminal case, Mother’s contact with the children was thereafter limited to video calls, and the children were made available for those calls every weekday.
November 2019 – Review hearing
In November 2019, the parties returned to court for a review hearing. The court noted that, although the children had moved to California, all parties agreed that the perma-
nency plan should remain one of reunification with the parents. The court found that the Department had made reasonable efforts to finalize the children’s permanency plan. The court also found that the children were doing well in Mr. and Ms. B’s care.
January and February 2020 – So.N. born and declared CINA
In January 2020, the Department received a report that Mother had given birth to a child. The Department contacted Mother and Father about the report, but neither parent was willing to cooperate with the Department. A subsequent investigation revealed that Mother had in fact given birth to a child, So.N. The Department learned that Mother had left the State of Maryland, despite her pending criminal charges, and given birth to So.N. in Louisiana in an attempt to have the child not be under the authority of the Department.
Upon learning of So.N.’s birth, the Department filed a petition requesting that the child be declared a CINA and that the parents be ordered to produce the child. At the hearing that followed, the parents refused to disclose the child’s location. Under threat of contempt, the parents ultimately revealed that the child had been placed with relatives in California (not Mr. and Ms. B). So.N. was eventually located, and a CINA hearing was held. In February 2020, So.N. was declared CINA and placed with Mr. and Ms. B.
June and September 2020 – Review hearings
In June and September 2020, the parties returned to court for review hearings. Following those hearings, the court ordered that the permanency plan remain one of reunification. The court found that the Department had made reasonable efforts to finalize the children’s permanency plan.
Up to that point, the parents had been engaging in video calls with the children, but the frequency of those calls had diminished. In or around September 2020, the parents stopped contacting the children for video calls.
March 2021 – Review hearing
In March 2021, the Department requested that all three children’s permanency plans be changed from reunification to adoption by a relative. A hearing was held before a Magistrate, and, following that hearing, the Magistrate recommended granting the Department’s request. Mother and Father filed exceptions to the Magistrate’s recommendation regarding a change in the children’s permanency plan.
In May 2021, Mother was acquitted of all criminal charges related to her binding Su.N. and Sa.N. in their beds. In August 2021, the parents traveled to California to visit with the children, but the visits did not occur. The parents went to California again in November 2021 and had several visits with the children. Around the same time, the parents resumed having regular video calls with the children.
December 2021 – Exceptions hearing
In December 2021, the juvenile court held the first of several evidentiary hearings on Mother’s and Father’s exceptions to the Magistrate’s recommendation that the children’s permanency plan be changed from reunification to adoption. At that hearing, Markeita Matthews, a social worker for the
Department, testified that she had been working with the family since July 2019. Ms. Matthews stated that, when she took over the case, the record contained several service agreements, but none of those had been signed by either parent. Ms. Matthews testified that she subsequently drafted and provided to the parents a service agreement in September 2019, September 2020, November 2020, January 2021, and May 2021. Ms. Matthews stated that neither parent signed any of those service agreements. Ms. Matthew testified that, despite the lack of an executed service plan, the Department provided, and planned to continue to provide, various services to the parents, including travel assistance for the parents’ visits to California.
According to Ms. Matthews, the most recent service plan included the following items/tasks: that all visits between the parents and the children be supervised; that Mother complete a parenting evaluation and take parenting classes; that Mother complete a psychiatric evaluation and participate in mental health therapy; and that the parents engage in couples therapy to address incidents of domestic violence. Ms. Matthews confirmed that, as of the date of the hearing, Mother had completed some of those items/tasks, including engaging in therapy, taking parenting classes, and taking domestic violence classes. Ms. Matthews testified that the Department was nevertheless still concerned about Mother’s parenting capabilities. Ms. Matthews stated that the Department’s concerns were due in large part to the fact that Mother “did not see anything wrong with the way she was caring for the children – the tying them down and the events that led up to their removal from the home.”
As to the children’s relationship with Mr. and Ms. B., Ms. Matthews testified that the interactions were “very good,” that the children “love them and adore them,” and that the children were “very bonded with [them].” Ms. Matthews noted that the two elder children had been diagnosed with some developmental disabilities and had been receiving therapy and other services to address them. Ms. Matthews stated that Mr. and Ms. B. were “involved” in those programs and that the children’s providers had no concerns about either child’s well-being. Ms. Matthews testified that there were no concerns about the youngest child’s development, either.
Ms. Matthews testified that, over the previous two years, the contact between the parents and the Department had been “off and on.” Ms. Matthews stated that, at times, the parents were “willing to talk” and that, at other times, they would refuse to communicate directly with the Department, insisting instead that all communications “go through their counsel.”
January 2022 – Exceptions hearing
In January 2022, the parties returned to court for a continuation of the exceptions hearing. At that hearing, Ms. B., the children’s caregiver, testified that, when Su.N. and Sa.N. first came into her care in 2019, the “hope” was that the children would eventually return to their parents’ care. Ms. B. stated that, at some point thereafter, she and Mother stopped communicating because Mother had become “emotionally abusive.” Ms. B. testified that she and Mother did not communicate for “maybe a year.” Ms. B. added that she and Mother
eventually reconciled and began communicating again in August 2021. Ms. B. explained that Mother and Father had driven to California in August 2021 and had contacted her to arrange a visit with the children. Ms. B. stated that she tried to coordinate a visitation schedule, but the visits never occurred, in part due to issues related to COVID- 19 and the parents’ vaccination statuses. Ms. B. testified that the parents returned to California in November 2021 and visited with the children at a local CPS facility.
Ms. B. testified that Su.N. and Sa.N. were both receiving trauma therapy. Ms. B. stated that she had recently tried to get Su.N. vaccinated for COVID-19 but that the parents had refused to give permission. Ms. B. testified that both Su.N. and Sa.N. had recently been diagnosed with autism and that, for a time, both children had “sleep issues” which caused them to “wake up in the middle of the night multiple times, screaming just bloody murder.” Ms. B. stated that the children’s sleep issues had since improved “quite a bit.”
June 2022 – Exceptions hearing
In June 2022, the parties returned to court for a continuation of the exceptions hearing. At that hearing, Mother testified that she initially agreed to the children living with Mr. and Ms. B. because she had concerns about the children being in foster care and believed that her family would take better care of the children. Mother stated that her ability to see the children was severely limited until May 2021, which is when her criminal case was resolved. During that time, Mother’s contact with the children was restricted to video calls. Mother admitted that she was reluctant to engage in those calls because she and the children “didn’t watch T.V.” and she did not “want to be so hypocritical to just pop up on a screen.” Mother also claimed that, for a time, she felt “uncomfortable” engaging in video calls because of “emotional issues” stemming from her relationship with Mr. and Ms. B. Mother testified that she resumed visiting and having video calls with the children following the resolution of her criminal case. Mother stated that she travelled to California in August 2021 but did not see the children. Mother testified that she went back to California in November 2021 and visited with the children several times.
Mother testified that she believed she had done everything the Department wanted her to do for reunification. Mother noted that she had received a psychiatric evaluation, engaged in therapy, completed parenting classes, and obtained marital and domestic violence counseling.
On cross-examination, Mother admitted that she did not have a permanent address and was living in her car. When asked about the circumstances that led to Su.N. and Sa.N.’s removal from her care, Mother stated that they had been removed “because the Department does not agree that I can swaddle my kids at the ages that I did.” Mother insisted that she never did anything to jeopardize the children’s safety. Mother added that she did not believe that her practice of swaddling the children was dangerous or harmful. Mother was then asked if she had engaged in any services since 2019, which is when Mother had purportedly engaged in parenting classes and various therapies. Mother could not confirm
that she had engaged in any additional services since 2019. Mother did confirm that she had stopped receiving counseling because her counselor had told her that she no longer needed it.
October 2022 – Exceptions hearing
In October 2022, the parties returned to court for a continuation of the exceptions hearing. At that hearing, the attorney for the children asked the juvenile court to instruct the parents to “not harass” Mr. and Ms. B. during video calls with the children. Counsel also reported that the parents had allegedly filed several CPS reports against Mr. and Ms. B. Following that proffer, the court heard from Mr. B., who proffered that the parents had made multiple allegations against him and Ms. B. Mr. B. also proffered that the parents had, on at least one occasion, shown up unannounced at the children’s school. Based on those proffers, the court ordered that the parents’ in-person visitation rights be suspended until the next review hearing, which was to be held in January 2023.
The parents thereafter noted a timely appeal of the court’s order to this Court. On May 16, 2023, this Court issued an unreported opinion reversing the court’s order to limit the parents’ access. We held that the court could not suspend visitation without holding an evidentiary hearing, which Mother had requested. We also reversed the court’s order “to the extent that it purports to make factual findings based on the statements made by Mr. B.”
January 2023 – Exceptions hearing
Meanwhile, in January 2023, the parties returned to court for another exceptions hearing. At that hearing, Mother testified that she and Father were expecting to receive a large settlement and that they had recently purchased a car. When asked about her current living arrangements, Mother stated that she and Father were “staying with someone [who] was not interested in sharing their address.”
The juvenile court also received into evidence a “Psychological Evaluation Report” that had been compiled by a licensed psychologist in April 2022 concerning Mother. The report included a psychological assessment, social history, education and employment history, parental assessment, and interview notes. Per that report, Mother and Father had a history of transience and domestic violence. After Su.N.’s birth in 2016, the parents “moved frequently,” at times living “in their car, in a hotel, or in a shelter.” In 2019, Mother obtained a protective order against Father following an incident of domestic violence. Mother stated that, although there was no subsequent history of physical abuse, Father had been verbally aggressive and had ongoing anger problems. As of the date of the report, Mother had no stable housing and no permanent address. Mother recognized that the Department required her to obtain adequate housing before the children could be returned to her care, yet Mother remained “unwilling to do so” unless the children are returned to her care. Mother did not report having consistent employment.
The report revealed that the parents had travelled to California three times to visit with the children. Mother stated that her entire family lived in California and that she would stay with one of her brothers when visiting the state. Mother
stated that her brother had offered to allow her to move in with him “in order to achieve stability.” Mother declined the offer, stating that she planned to remain in Maryland “in order to sue CPS and the Police Department for entering her home illegally.”
The report also discussed the circumstances surrounding Su.N. and Sa.N.’s removal from the parents’ care in 2019. When asked about those circumstances, Mother responded that Father had shared “some private information with their pastor,” who, along with the family’s babysitter, “conspired to make up something that was not true, so the kids would be removed.” Mother ultimately admitted that she had been “swaddling the children in a way that was deemed to be inappropriate by the Department.” Although Mother agreed not to engage in such behavior in the future, she did not believe that the behavior was dangerous or harmful to the children. Mother also insisted that Ms. B. was “the only barrier to her reunification with the children.” Mother did not identify her housing or income as barriers, and she did not see the value in addressing either issue until after she is reunified with the children.
As to Mother’s interactions with the children, the report indicated that, during visits, Mother was responsive and interactive. The report noted “some evidence of a bond” between Mother and the children. There were, however, “some concerns regarding the dynamic between the parents during visits.” The report stated that Father was “easily frustrated and irritated” and that Mother made “efforts to appease or pacify him.” The report also noted that the parents arrived on time for visits “about half the time” and that, on multiple occasions, they had canceled or tried to reschedule visits.
The report concluded with some opinions and recommendations from the authoring psychologist. The psychologist believed that, while Mother had “a number of strengths,” she also had “some areas of vulnerability that are likely to impact her ability to safely and effectively parent her children.” First, the parents’ “chronic homelessness and lack of stability” represented a major barrier, and Mother’s failure to show “any initiative, plan, or progress” in achieving greater stability exacerbated the problem. Second, Mother’s “lack of insight into her own limitations, behavior, and her role in the current situation” constituted a “significant barrier,” as Mother’s “firm adherence to her current belief system” put her “at greater risk for similar parenting practices in the future.” Mother was also “reluctant to acknowledge her shortcomings or to accept responsibility for her actions that have resulted in negative consequences for her.” Lastly, “the marital dynamic” and Father’s unaddressed anger issues suggested “an increased risk of domestic abuse.” The psychologist concluded that, until Mother “is able to make sufficient progress toward greater stability, and to acknowledge and accept responsibility for the concerns that brought her children into care, her ability to provide a safe and appropriate environment for her children is diminished.” The psychologist explained that, while Mother should continue to enjoy visits with the children, the Department should “continue to explore alternatives to reunification in support of permanency for the children.”
At the conclusion of the hearing, after the court had received all evidence, counsel for the Department informed the court that the eldest child, Su.N., had been receiving educational support services through her school in California but that those services had recently been stopped because the parents had refused to provide the necessary consent. Counsel asked the court to appoint a parent surrogate for the children so that the services could resume. The court deferred ruling on the matter.
The following week, the parties returned to court for closing arguments. At the conclusion of the hearing, the court stated that it would issue a written decision at a later date.
May 2023 – Juvenile Court’s ruling
In May 2023, the juvenile court entered an order changing the children’s permanency plan from reunification to adoption and making various findings based on the evidence and testimony presented at the previous exceptions hearings. In that order, the court noted that, while Mother and Father had completed some of the tasks recommended by the Department, neither parent had signed a service agreement, despite the fact that at least five service agreements had been sent to the parents and their counsel in 2020 and 2021. The court also noted that, according to Ms. Matthews, the Department had “a history of difficult communications and cooperation by the parents.”4
The court found the parents’ history of visitation to be “problematic.” The court noted that, while Mother’s in-person contact was limited by her criminal case, she had the opportunity for nightly virtual visits, yet she failed to avail herself of those visits. The court noted that Father did not visit with the children at all, even though he was not restricted from seeing them. The court found that both parents had “willingly gone long periods of time without contacting the children” and had “not taken advantage of opportunities to stay near the children.” The court noted that, on multiple occasions, the Department had provided financial assistance to the parents so they could travel to California to exercise visitation and that, on at least one occasion, the parents had traveled to California but failed to visit with the children.
The court found that the parents still posed a risk to the children and that “the lack of insight by the parents is a barrier to reunification and to providing a safe and stable environment for the children.” The court noted that neither parent had recognized any wrongdoing regarding the children’s care and treatment. The court found that Mother blamed everyone but herself for the children being removed from her care, and the court concluded that Mother’s “lack of acknowledgment of inappropriate care toward the children demonstrates that the children are still at risk if they are returned to her care.” The court noted that both parents were homeless even though Mother had an opportunity for housing in California with her brother. The court also noted that Mother had refused to provide the name and address of the person with whom she was currently staying. The court found that neither parent had obtained stable employment or a consistent source of income. The court noted that both parents had refused to consent to Su.N. receiving educational support services. The court found that Father had been consistently
uncooperative with the Department, that he was “clearly hostile,” and that he exhibited “aggressiveness” and a “propensity for lashing out.”
The court found that Mr. and Ms. B., on the other hand, had remained committed to caring for the children and had provided a safe and stable home. The court noted that the children were doing well in their current placement and that their needs were being met. The court noted that the two eldest children had been in Mr. and Ms. B’s care for approximately four years, while the youngest child had been in their care for approximately three years. The court found that the children had developed a strong bond with Mr. and Ms. B. and each other.
The court concluded that it was in the children’s best interest that their permanency plan be changed to adoption. In reaching that conclusion, the court cited “the totality of [the] case,” the “incident that caused the children to come into care,” the “lack of consistent visitation,” the “failure to acknowledge inappropriate conduct,” and the “lack of insight by the parents.”
This timely appeal followed. Additional facts will be supplied as needed below.
DISCUSSION
Parties’ contentions
Mother contends that the juvenile court erred in changing the children’s permanency plan from reunification to adoption. In support of that contention, Mother raises several claims. First, Mother argues that the “unfair and/or unlawful denial of [her] in-person visitation warranted extension of the reunification period.” Second, Mother argues that the Department failed to provide updated evidence regarding its efforts to reunify the family and that the court failed to make the requisite findings as to, among other things, the Department’s reunification efforts. Third, Mother contends that the court made “numerous erroneous factual findings.” Lastly, Mother contends that, “[a]ccounting for the court’s erroneous factual findings and other issues discussed above, the totality of the case circumstances warranted reunification remaining the permanency goals.”
The Department insists that the juvenile court did not err in changing the children’s permanency plan from reunification to adoption. The Department contends that the court appropriately determined that the children could not be safe and healthy in their parents’ care. The Department contends that the court also properly considered the children’s attachments and emotional ties, the length of time the children had resided with their current caregivers, and the potential impact on the children if they were to remain in State custody or removed from their current care.
Standard of Review
Appellate review of a juvenile court’s decision regarding child custody involves three interrelated standards. First, any factual findings made by the juvenile court are reviewed for clear error. In re Yve S., 373 Md. 551, 586 (2003). Second, any legal conclusions made by the juvenile court are reviewed de novo. Id. Finally, if the court’s factual findings and legal
conclusions are not erroneous, the court’s ultimate conclusion will be disturbed only if there is an abuse of discretion. In re J.J., 231 Md. App. 304, 345 (2016). “A court abuses its discretion when ‘no reasonable person would take the view adopted by the trial court or when the court acts without reference to any guiding rules or principles.’” In re K.L., 252 Md. App. 148, 185 (2021) (quoting Santo v. Santo, 448 Md. 620, 325-26 (2016)).
Analysis
When a child is declared CINA and removed from the care of a parent, the juvenile court is required to hold a hearing to determine a permanency plan for the child. CJP § 3- 823(b) (1). “The permanency plan is intended to ‘set the tone for the parties and the court’ by providing ‘the goal toward which they are committed to work’” In re D.M., 250 Md. App. 541, 561 (2021) (quoting In re Damon M., 362 Md. 429, 436 (2001)).
Ordinarily, a permanency plan prioritizes reunification with the parent or guardian, but the plan could include placement with relatives, custody or adoption by an approved family, or other appropriate living arrangement. CJP § 3-823(e)(1)(i); see also In re Ashley S., 431 Md. 678, 686 (2013).
In determining a permanency plan, the court must give primary consideration to the best interest of the child. Id.; see also Maryland Code, Family Law Article (“FL”) § 5- 525(e)(1). In addition, the court must consider the factors outlined in FL § 5-525(f)(1). CJP § 3-823(e)(2). Those 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 siblings.
(iii) the child’s emotional attachment to the child’s current caregiver and the caregiver’s family;
(iv) the length of time the child has resided with the current caregiver;
(v) the potential emotional, developmental, and educational harm to the child if moved from the child’s current placement; and
(vi) the potential harm to the child by remaining in State custody for an excessive period of time.
FL § 5-525(f)(1).
Following its implementation of a permanency plan, the juvenile court is required to conduct a review hearing “every 6 months until commitment is rescinded or a voluntary placement is terminated.”5 CJP § 3-823(h)(1)(i). At each review hearing, the juvenile court is required to:
(i) Determine the continuing necessity for and appropriateness of the commitment;
(ii) Determine and document in its order whether reasonable efforts have been made to finalize the permanency plan that is in effect;
(iii) Determine the appropriateness of and the extent of compliance with the case plan for the child;
(iv) Determine the extent of progress that has been made toward alleviating or mitigating the causes necessitating commitment;
(v) Project a reasonable date by which a child in placement may be returned home, placed in a preadoptive home, or placed under a legal guardianship;
(vi) Evaluate the safety of the child and taken necessary measures to protect the child;
(vii)Change the permanency plan if a change in the permanency plan would be in the child’s best interest; and
(viii) For a child with a developmental disability, direct the provision of services to obtain ongoing care, if any, needed after the court’s jurisdiction ends.
CJP § 3-823(h)(2).
As the above statute mandates, a juvenile court must change a permanency plan if doing so would be in the child’s best interest. As with an initial permanency plan determination, a juvenile court must consider the factors set forth in FL § 5-525(f)(1) when changing a permanency plan. In re Ashley S., 431 Md. at 714-19. If, upon considering those factors, the court finds that “there are weighty circumstances indicating that reunification with the parent is not in the child’s best interest, the court should modify the permanency plan to a more appropriate arrangement.” In re Adoption of Cadence B., 417 Md. 146, 157 (2010). In all cases, “[e]very reasonable effort shall be made to effectuate a permanent placement for the child within 24 months after the date of initial placement.”
CJP § 3-823(h)(5).
Against that backdrop, we hold that the juvenile court did not abuse its discretion in changing the children’s’ permanency plan from reunification with the parents to adoption. Going through each of the factors set forth in FL § 5-525(f)(1), we are convinced that there was ample evidence presented at the various exceptions hearings to support the juvenile court’s decision.
A. The children’s ability to be safe and healthy in the parents’ home
As to this factor, the record makes plain that neither parent showed even the slightest ability or willingness to provide acceptable shelter or support for the children. Both parents had a history of transience and homelessness, and neither parent was able to obtain stable housing or income in the years leading up to the final exceptions hearing. In fact, Mother affirmatively refused to secure appropriate housing unless the children were returned to her care. Instead, Mother chose to live in her car or with undisclosed individuals, despite repeated offers from her brother to stay with him in California. Although the parents’ lack of housing was not, by itself, sufficient to justify changing the children’s’ permanency plan, it was, under the circumstances, a significant factor. See In re Ashley S., 431 Md. at 716 (noting that a “key consideration” in determining whether a change in permanency plan is justified is “whether the parent exhibits an ability or willingness to provide minimally acceptable shelter, sustenance, and support”) (quotations omitted).
In addition, and perhaps most importantly, neither parent appeared willing to accept responsibility or admit wrongdoing for the circumstances that led to Su.N. and Sa.N. being declared CINA. It is beyond cavil that Mother’s act of binding Su.N. and Sa.N. in their beds was detrimental to their health and safety. Mother was informed of this in 2018, and yet she
continued the practice until January 2019, at which point the children were removed from her care. In the years that followed, Mother was asked repeatedly about the practice, and at no point did Mother admit that the practice was harmful. To the contrary, Mother insisted that she never did anything to jeopardize the children’s safety and that her practice of “swaddling” the children was not dangerous.
To be sure, Mother claimed that she would not bind the children if they were returned to her care. But, her willingness to continue the behavior after being warned and her inability to recognize the dangerousness of the practice after all this time suggests a lack of sincerity on Mother’s part. At the very least, it indicates that the children were at risk of future harm. See In re Nathaniel A., 160 Md. App. 581, 596-97 (2005) (noting that a court, in determining whether a child is at risk of future harm, may look at a parent’s past behavior and “need not wait until [the child] is actually harmed”).
B. The children’s attachment and emotional ties to their natural parents, siblings, current caregivers, and the caregivers’ family
As to these factors, there was some evidence of a bond between Mother and the children, and there was some evidence that the parents’ visits with the children were positive. There was, however, other evidence suggesting a lack of a bond. Su.N. and Sa.N. were two years old and one year old, respectively, when they were removed from their parents’ care in 2019, and So.N. was less than a month old when he was removed in 2020. Subsequent to those removals, the parents went a significant period of time – approximately two years – without having any in-person contact with any of the children. Although the parents engaged in regular video calls with the Su.N. and Sa.N. in the months following their removal, those calls ceased completely in September 2020 and did not resume until November 2021. Given that lack of contact and communication, and given the children’s ages when they were removed, the court could have easily concluded that the children’s bond with their parents was, at best, tenuous.
The evidence of the children’s bond with each other and with Mr. and Ms. B., on the other hand, was clear and largely unrefuted. That evidence established that the children loved Mr. and Ms. B. and had a strong relationship with them. The children were doing well in Mr. and Ms. B’s care, and Mr. and Ms. B. were committed to being a long-term resource for the children.
C. The length of time the child has resided with the current caregiver
When the court entered its order in May 2023, all three children had been in Mr. and Ms. B.’s care for a significant amount of time. Su.N. and Sa.N. had been in their care for approximately four years, while So.N. had been in their care for over three years.
D. The potential emotional, developmental, and educational harm to the child if moved from the child’s current placement, and the potential harm to the child by remaining in State custody for an excessive period of time
As the court found, Mr. and Ms. B. had remained committed to caring for the children and had provided a safe and sta-
ble home for several years. The children were doing well in their current placement, their needs were being met, and they had developed a strong bond with Mr. and Ms. B. and each other. The two eldest children had been recently diagnosed with autism and were receiving therapy. Given those facts, a reasonable inference could be made that moving the children from their current placement would cause severe emotional, developmental, and educational harm.
Likewise, a reasonable inference could be drawn that keeping the children in State custody any longer could cause severe harm. As noted, the statutory scheme governing permanency plans states that “[e]very reasonable effort shall be made to effectuate a permanent placement for the child within 24 months after the date of initial placement.” CJP § 3-823(h)(5). All three children had been in their current placement for much longer.
Summary
In sum, the evidence was more than sufficient to support the juvenile court’s decision to change the children’s permanency plan. That is, the juvenile court had before it “weighty circumstances” indicating that reunification with the parents was not in the children’s best interest. In re Adoption of Cadence B., 417 Md. at 157. As such, we cannot say that the court abused its discretion in reaching that decision.
Mother’s contentions
As discussed, Mother raises several contentions in support of her claim that the juvenile court erred in reaching its decision. We will discuss each contention below.
A.
Mother first contends that her in-person visits were “unfairly frustrated” for years by the no-contact order in her criminal case, the COVID-19 pandemic, and the court’s improper suspension of her in-person visitation in October 2022. Mother argues that the court should have extended the reunification period to account for those hinderances to her meaningful interactions with the children.
We are not persuaded by Mother’s arguments. Although we do not agree with Mother’s claim that the various hindrances to her in-person visits were categorically “unfair,” we need not belabor the point because the fact remains that, while Mother was faced with some obstacles to visitation and reunification that were beyond her control, she failed to address, in any significant way, the primary obstacles to reunification that were in her control, none of which had anything to do with in-person visitation. As discussed above, those obstacles included Mother’s failure to acknowledge inappropriate conduct, i.e., binding the children, and her refusal to secure appropriate housing and means for supporting the children.
Even if we agreed that Mother should be given some credit for the restrictions on her in-person visitations, we fail to see how the children’s best interests would be served by extending the reunification period. Regardless of the reasons, the reality is that Mother did not have in-person contact with the children for years, which likely weakened her bond with the children, which in turn favored changing the children’s permanency plan. The court was under no obligation
to extend the reunification period simply because Mother’s in-person contact with the children had been restricted, unfairly or otherwise. Rather, the court was required to consider that factor in conjunction with all the other factors and with an eye toward the best interest of the children. See In re Ashley S., 431 Md. at 712 (“[T]he task of the juvenile court is not to remedy unfairness to the mother, but to weigh any unfairness in light of the best interests of her children.”). That is precisely what the court did here.
B.
Mother next claims that the juvenile court did not actually consider the relevant statutory factors or make specific findings based on the evidence with respect to each factor. Mother asserts that the court’s error was exacerbated by the fact that the Department “presented no new evidence to the juvenile court after January 2022,” particularly as it related to the Department’s efforts toward reunification. Finally, Mother claims that the court failed to make an express “reasonable efforts” finding in its May 2023 order, as required by CJP § 3-816.1.
We disagree with Mother’s contentions. Aside from a “reasonable efforts” finding, which we will discuss in greater detail below, the court was not required to make any express findings regarding any of the statutory factors. Rather, the court merely needed to consider those factors, and the court’s May 2023 order clearly demonstrates that the court considered all relevant factors in light of the evidence presented.
The court’s May 2023 order also demonstrates that the court did receive updated evidence regarding the Department’s efforts toward reunification. In that order, the court noted that the parents visited with the children several times between November 2021 and October 2022 and that the Department had provided financial assistance to the parents so they could exercise that visitation. Mother does not dispute that finding.
Nevertheless, the lack of evidence regarding the Department’s “reasonable efforts” after January 2022 is understandable given the status of the case at that time. By January 2022, the Department had already attempted to provide services via a service agreement on at least five separate occasions, and each time both parents refused to sign the agreement. Moreover, Mother insisted that she had already completed all required tasks and that nothing more was required of her in order to effectuate reunification. Given those facts, and given Mother’s consistent refusal to obtain stable housing or admit wrongdoing for binding the children, which represented two of the biggest obstacles to reunification, additional efforts by the Department would have almost certainly been futile. See In re James G., 178 Md. App. 543, 601 (2008) (noting that the Department “need not expend futile efforts on plainly recalcitrant parents”).
As to the court’s duty to make an express “reasonable efforts” finding, we agree that the lack of such a finding is problematic. CJP § 3-816.1 provides, in relevant part, that, when conducting a permanency plan review hearing for a child under the age of 18, “the court shall make a finding whether a local department made reasonable efforts to … finalize the permanency plan in effect for the child [and] meet
the needs of the child, including the child’s health, education, safety, and preparation for independence[.]” CJP § 3- 816.1(b) (2). It does not appear that the juvenile court made any such finding.
Nevertheless, reversal is unwarranted because any error the court may have made in omitting that finding was harmless. See In re Yve S., 373 Md. at 586 (“[I]f it appears that the [juvenile court] erred as to matters of law, further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless.”) (quoting Davis v. Davis, 280 Md. 119, 126 (1977)). In a civil case, a complaining party has the burden of showing error and prejudice. Id. at 616. An error that does not prejudice a party is harmless error. Id. An error is prejudicial if it significantly affects the complaining party’s interests. Id. at 617. “It is not the possibility, but the probability, of prejudice which is the object of the appellate inquiry.” Id. (quoting Md. Deposit Ins. Fund Corp. v. Billman, 321 Md. 3, 17 (1990)).
Here, we are not convinced that the lack of a “reasonable efforts” finding was prejudicial. As we have held, the Department’s efforts were reasonable under the circumstances, and it was clear that the court considered those efforts in reaching its decision. That the court did not expressly state as much was, under the circumstances, inconsequential, and Mother has presented no compelling argument to suggest otherwise.
C.
Mother next claims that the juvenile court made “numerous erroneous factual findings” in its May 2023 order. Moth-
FOOTNOTES
er highlights at least ten different factual findings that she claims were erroneous.
We have reviewed the record and have found no support for Mother’s claims. For each of the claimed errors, Mother has either mischaracterized the court’s finding or ignored competent, material evidence in support of that finding. See Velicky v. Copycat Bldg. LLC, 476 Md. 435, 445 (2021) (“A trial court’s findings are not clearly erroneous ‘if any competent material evidence exists to support the trial court’s factual findings.’”) (quoting Webb v. Nowak, 433 Md. 666, 678 (2013)). Mother has therefore failed to carry her burden of showing error. See Christian v. Maternal-Fetal Medicine Assocs. of Md., LLC, 459 Md. 1, 21 (2018) (“The burden of demonstrating that a court committed clear error falls upon the appealing party.”)
D.
Mother’s final claim is that, “[a]ccounting for the court’s erroneous factual findings and other issues discussed above, the totality of the circumstances warranted reunification remaining the permanency goals.” Mother goes on to highlight various items of evidence that support her claim.
We remain unpersuaded. We have already addressed Mother’s claims of error and have found virtually no merit to any of those claims. The fact that the court was not persuaded by Mother’s cherry-picked evidence is of no moment. In sum, the record overwhelmingly supports the court’s decision to change the children’s permanency plan from reunification to adoption.
JUDGMENT OF THE CIRCUIT COURT
1 Father is not a party to the instant appeal.
2 Mother phrased the questions as:
1. Did the juvenile court err when it changed the children’s permanency plans to adoption?
a. Did the unfair and/or unlawful restrictions on mother’s in-person visitation warrant extension of the reunification period?
b. Did DSS fail to present adequate updated evidence to the court and did the court fail to make all necessary findings?
c. Were many of the court’s factual findings erroneous?
d. Did the totality of the circumstances merit keeping reunification the plans?
FOR HOWARD COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
3 Section 3-801(f) of the Courts and Judicial Proceedings Article (“CJP”) of the Maryland Code defines “child in need of assistance” as “a child who requires court intervention because: (1) [t]he child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and (2) [t]he child’s parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and the child’s needs.”
4 Mother contends that this finding was clearly erroneous. We disagree. Ms. Matthews testified that, on numerous occasions, the parents refused to speak directly with the Department. Ms. Matthews also testified that both parents had consistently refused to sign a service agreement.
5 The statute contains some exceptions to this rule. Notably, however, these exceptions are not applicable in the instant case. CJP § 3-823(h)(1)(i).
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Baltimore City Circuit Court’s termination of the mother’s parental rights of her youngest child. The juvenile court failed to make adequate factual findings, made erroneous factual findings and failed to sufficiently explain how it weighed the evidence to conclude that unfitness or exceptional circumstances exist sufficient to rebut the presumption favoring the parental relationship.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
Ms. D. tested positive for cannabis at D.O.’s birth and admitted that she had not received prenatal care during her pregnancy. D.O., however, did not test positive for cannabis at birth. D.O. was placed in foster care eight days after his birth, although he remained in the NICU for a period of time after placement. The decision to remove him from Ms. D.’s care was based on his medical fragility, exposure to cannabis, and lack of prenatal care, as well as Ms. D.’s unstable housing and history of domestic violence with D.O.’s father, Mr. O.2 After being discharged from the hospital, D.O. was placed in the care of foster parents Mr. and Mrs. M., and continues to reside with them to this day. The parties stipulated that D.O. “has done well” in the foster home.
On April 25, 2023, the Circuit Court for Baltimore City terminated the parental rights of Ms. D. in relation to her youngest child, D.O. Ms. D. appeals from that decision, and presents three questions for our review, which we have consolidated to a single question1:
Did the court err in terminating Ms. D.’s parental rights?
For the reasons set forth below, we hold that the court erred. We therefore vacate and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
D.O. was born in May 2016, with numerous medical problems, most notably: congenital heart disease, dextrocardia (his heart points to the right instead of the left), situs inversus totalis (his abdominal organs are on the opposite sides of his body), spleen malfunction, and primary ciliary dyskinesia (the small hair-like structures in his respiratory tract do not function, causing a build-up of mucus). These medical issues cause him to have breathing problems, heart problems, be more prone to illnesses, and less able to fight infections. D.O. has needed to use a gastrostomy tube (“g-tube”) for feeding and medications, and was oxygen-dependent at one point. While he still has a g-tube and a prescription for oxygen, both are rarely used. For the first three years of his life, he was frequently hospitalized and required close monitoring for breathing problems. D.O. has had three heart surgeries and was awaiting a fourth, and final, heart surgery at the time of the TPR hearing. It is anticipated that the g-tube will be removed after that surgery.
Because D.O. has been in foster care for seven years, we shall provide a brief overview of the more notable court orders during his time in care. D.O. was determined to be a child in need of assistance (“CINA”) 3 on February 13, 2017. The initial permanency plan for D.O. was reunification with Ms. D. She was granted unsupervised visitation with D.O. on February 13, 2017, but an order on March 10, 2017, imposed a condition that “unsupervised visitation is subject to medical clearance.”4 Although Ms. D. completed medical training in 2017 and 2019, she was never provided unsupervised visitation, and in March of 2019, the court ordered that her visitation “shall remain supervised.” Her visitation has remained supervised since that time. On May 28, 2019, the court ordered that Ms. D. “shall be given advance notice of all medical appointments and may attend.” On December 17, 2019, the court ordered that a bonding assessment be performed, and it supplemented that order on February 5 and 11, 2020, requiring that a “therapeutic assessment” be conducted concerning D.O.’s separation anxiety, and that the doctor performing the bonding assessment be made aware that Mrs. M. had been “sitting in with mother’s visits for the last 3 years.” On September 16, 2020, the court again ordered that a bonding assessment be performed. For reasons we shall discuss later in this opinion, no bonding assessment was ever performed for Ms. D., although a bonding assessment was performed for the foster parents.
On February 5, 2020, the permanency plan changed from reunification to a concurrent plan of reunification with Ms. D. and adoption by a third party. The permanency plan changed again on December 22, 2020, to adoption by a third party. On March 29, 2021, the court struck the December 22, 2020 order, effectively returning the permanency plan to a concurrent plan of reunification and adoption. On July 26, 2021,
the court again changed the permanency plan to adoption by a third party. The Department of Social Services (“DSS” or the “Department”) filed a petition for TPR on March 9, 2022.
A TPR hearing was held over seven days between February 28, 2023, and April 25, 2023. Numerous witnesses, including two experts, testified, and over eighty documents were admitted into evidence. Among the documents were court orders from the CINA case, three service agreements, parental fitness and bonding evaluations for the foster parents, a parental fitness evaluation for Ms. D., and contact notes authored by DSS workers.
Ms. D.’s Testimony
Ms. D. has a total of eight children, six of whom live with her. Some of her children are adults, but she has two young children close to D.O.’s age who have lived with her since April 2019. Three of her children (one now an adult) were removed from her care at the same time as D.O. Those children were returned to her care in April 2019. She testified that she frequently brings her two young children with her to visit D.O.
Ms. D. testified that her visits with D.O. have been supervised for the entirety of the time that he has been in foster care. Prior to her other children being returned to her care, Ms. D. asked for unsupervised visitation with D.O., which was rejected without explanation. She testified that, when the court granted her unsupervised visitation with D.O. in 2017, DSS did not allow her to have unsupervised visits. When the court changed the order to unsupervised visitation “subject to medical clearance,” DSS did not do anything to help her get medical clearance. However, Ms. D. also admitted that she did not talk to the caseworker or any medical professionals about medical clearance.
Visitation with D.O. started in September 2016, supervised by DSS, and Mentor Maryland5 took over supervising the visits in January 2017. When Ms. D. asked DSS if some visits could occur at places other than the Mentor Maryland office, she was told “because of [her] visitation situation with [D.O.], it wasn’t allowed.” Initially, according to Ms. D., the visits were scheduled every two weeks for one hour. For approximately a year before the TPR hearing, the visits had been occurring monthly. Ms. D. asserted that she has no input in selecting the time of the visitation, although she does have input on what day visitation occurs.
D.O.’s foster mother, Mrs. M., transported D.O. to visits with Ms. D. Ms. D. testified that, although she is scheduled to have one-hour visits, Mrs. M. was a half hour late bringing D.O. to the October 2022 visit, had been late “the last four, five visits,” and Ms. D. was not given any additional time with D.O. Prior to June 2022, Mrs. M. brought D.O. on time. Ms. D. informed the caseworker about Mrs. M.’s tardiness, and the caseworker told Ms. D. “she would speak to the foster mom and rectify it.” Mrs. M. was on time for the March 2023 visit.
Between April 2020 and “[s]ometime in 2022,” her visits with D.O. were over Zoom. Ms. D. testified that the quality of the Zoom visits was “not good” because the visits would sometimes take place while Mrs. M. was driving or shop-
ping with D.O. At other times, D.O. would be distracted during visits because there were other people around. Ms. D. did not schedule any visits with D.O. for the months of November 2022 through January 2023 because she had seasonal employment with UPS that “didn’t allow [her] the time off to be able to do the visit.” She testified that she was placed “on call” at UPS, meaning she “pretty much [had] to wait for a text message telling [her] where and what time [she] had to be there,” and her hours usually started after 1:00 p.m. and ended after 6:00 p.m. Visits at that time could not start before 5:00 p.m. because DSS would not allow D.O. to be picked up from school early for the visits.6 She raised the issue with DSS, and “was trying to make it work, but the schedule just wasn’t going to be able to do it.” She informed the caseworker that as soon as her “on call” status ended, she would be able to restart visits. Although a visit was scheduled for February 2023, Ms. D. asked to reschedule that visit because she was sick. Thus, her last visit with D.O. before the start of the hearing was four months prior, in October 2022.
Shortly after D.O.’s birth, Ms. D. was referred to a drug treatment program. She testified that she attended the program, but was determined not to be in need of services because she did not meet “the qualifications of an addict.” DSS did not ask Ms. D. to submit to drug testing. Although DSS did not require Ms. D. to engage in mental health treatment, Ms. D. began therapy on her own in 2016 after someone at the drug treatment program suggested it. The parties stipulated that Ms. D. is currently in therapy. Ms. D. received medical training in 2017 and 2019 concerning D.O.’s medications and use of the g-tube and oxygen. She was told by a caseworker that those two trainings were “the only medical training [she] would receive,” and she has not been asked to update her training. She believes that she would be able to recognize when D.O. is getting sick. Ms. D. was referred to and completed parenting classes in September 2016; DSS has not asked her to complete further parenting classes. She obtained housing through a DSS program in April 2019 and has remained in the same house since that time. When Ms. D. asked the caseworker what more she needed to do to have D.O. returned to her care, the caseworker told her, “There was nothing [Ms. D.] had to complete. Everything had been completed.”
Ms. D. provided testimony concerning a bonding evaluation scheduled for her and D.O. in February 2020. That bonding study did not occur because D.O. “was very agitated” and Ms. D. believed it was best not to risk increasing his stress levels because of his health conditions. The decision not to do the bonding evaluation was a joint decision between Ms. D. and the assigned evaluator, Dr. Ruth Zajdel. Ms. D. testified, “we came to an understanding that we would just try and come back and do it another time[,]” but the evaluation could not be rescheduled due to Covid-19.
Ms. D. testified that, although Mrs. M. was supposed to provide Ms. D. with information about D.O.’s medical appointments, Mrs. M. consistently gave her the incorrect time for appointments. Ms. D. received no response from DSS when she raised the issue. Consequently, Ms. D. has
not attended any of D.O.’s medical appointments. However, Ms. D. was informed each time D.O. was hospitalized. Ms. D. would visit him at the hospital “[a]s much as [she] possibly could,” usually staying three or four hours, and once staying at the hospital overnight. She admitted that she did not obtain contact information from any of D.O.’s doctors at the hospital, and did not ask them about follow- up appointments.
Ms. D. confirmed that D.O. did not test positive for cannabis when he was born, and that she did not test positive for any substances other than cannabis.
Mrs. M’s Testimony
Mrs. M. testified concerning D.O.’s health that “the last couple of years he’s been doing very well.” In the past, when D.O. would get a cold, his breathing problems sometimes required him to be hospitalized, but recently he has only gotten “minor” colds that last three days. Some of the signs Mrs. M. looks for when D.O. gets sick include behavior changes such as being “a little cranky” or “sleep[ing] a lot.” D.O. is no longer being fed using the g-tube, but his doctors “plan on keeping that until he ha[s] his last heart surgery,” which she anticipated being scheduled in the summer of 2023. Mrs. M. testified that D.O. has had three prior heart surgeries, and has “been in and out of the hospital at least 17 times,” although he has not been hospitalized for an illness since 2017. Ms. D. visited D.O. several times for three or four hours each time he was in the hospital. Mrs. M. confirmed that D.O. had not used oxygen “in a long time” and has “been doing well with his breathing.”
D.O. routinely has appointments with a cardiologist every six months, a pulmonologist and geneticist once per year, and a gastroenterologist periodically to monitor his g-tube. Mrs. M. testified that Ms. D. has rarely attended D.O.’s appointments, but when asked if Ms. D. was informed of the appointments, Mrs. M. responded: “No. I don’t think so. I’m not for sure.” She testified that she was never asked to keep Ms. D. informed about D.O.’s appointments.
According to Mrs. M., D.O. is doing well in school, and has “a whole bunch of friends” both at school and in her neighborhood. He spends over an hour on most days “running around playing” outside. Mrs. M. testified that, when D.O. first started going to school, he tried to use his foster parents’ last name.
Concerning D.O.’s visitation with Ms. D., Mrs. M. testified that the visits had been weekly, but were changed to monthly because the weekly visits “didn’t happen.” Visitation with Ms. D. was “frequent at one time and then she just dropped off.” Mrs. M. testified that she is sometimes five or ten minutes late getting D.O. to the visits because of traffic. When she is late, visit times are not extended, but she does not know why. Mrs. M. testified that, in 2021, Ms. D. attended visits with D.O. “frequently,” or “half the time,” but “some months she came every week.” At one point, D.O. would routinely cry during visits with Ms. D. when Mrs. M. left the room, but “now he’s used to going to do his visit because he said he’s going to see his brother[] and sister.” Mrs. M. sat in on visits when D.O. “was real small” because “[t]hat’s how
they had it set up,” but “it’s been a long time” since she last sat in on a visit. She estimated that she stopped sitting in on the visits when D.O. was three years old. It took D.O. “a couple months or more” to stop crying during visits when Mrs. M. was not present. When D.O. does not get a chance to visit with Ms. D., “he doesn’t mention it.” Additionally, Mrs. M. reported being unaware of D.O. having any attachment to his siblings.
Dr. Ruth Zajdel’s Testimony
The Department called Dr. Ruth Zajdel as an expert in bonding and parental fitness. As a psychologist for the Circuit Court for Baltimore City, Dr. Zajdel was tasked with conducting parental fitness and bonding evaluations for the foster parents and Ms. D. She testified that the foster parents are “parentally fit,” and that D.O. is “securely bonded to both” foster parents.
Although a bonding evaluation with Ms. D. and D.O. was scheduled in February 2020, Dr. Zajdel did not conduct the evaluation because D.O. refused to go to the room where the evaluation was to be conducted. Dr. Zajdel described the incident:
When it was time for the bonding evaluation to begin, [D.O.] was initially very excited to see his Mom and happy to see her, went to her, spoke to her. When it was time to go . . . from the waiting area to the toy room with myself, [D.O.], and his biological mom, he refused to go. And he got very, very upset to the point where we decided . . . we were not going to be able to do the bonding evaluation.
[Ms. D.] was not interested in participating. She was fairly argumentative. She did not help comfort [D.O.] when he became upset. I asked her to try to encourage him to come back for the bonding evaluation. She declined my offer.
The bonding evaluation was rescheduled, but cancelled when the courts closed due to Covid-19. Dr. Zajdel testified that, by the time her office began conducting bonding evaluations again, the deadline set in the order for the bonding evaluation had passed. Consequently, a bonding evaluation was never completed for Ms. D. and D.O.
Ms. D.’s parental fitness evaluation was scheduled to be conducted in March 2020, but was also postponed due to Covid-19. Dr. Zajdel was able to interview Ms. D. for the evaluation through teleconferencing in August 2020. During that evaluation, Dr. Zajdel “noted a complete change in [Ms. D.’s] demeanor. She was much more willing to engage with me. She was cooperative with the process.” Ms. D. reported in the interview that, between February and August 2020, she had gotten out of an abusive relationship and started therapy. Dr. Zajdel testified that Ms. D. raised several concerns with her during the August 2020 interview, including Mrs. M. being present during visitation, and Ms. D. not being informed of D.O.’s medical appointments.
Dr. Zajdel testified concerning the need for children to form secure attachments to their caregivers, and that a caregiver may foster such an attachment by being “reliably and consistently available to the child’s needs,” understand-
ing the child’s “cues” regarding their physical and emotional needs, and knowing how to fill those needs. When asked whether a foster parent’s presence during visitation could impact bonding between the parent and child, Dr. Zajdel could not say whether it might have a positive or negative impact. She opined that visitation more frequent than every two weeks might not be needed to form a parent-child bond because “[e]very individual child is different in this process.” Rather, the important thing is that visitation is “consistent and reliably occurring.”
Dr. Zajdel’s written reports for both parental fitness evaluations and the foster parents’ bonding evaluation were admitted into evidence. These documents reflect that D.O. is securely bonded to his foster parents. Mrs. M. reported to Dr. Zajdel that Ms. D. “did not attempt to contact [D.O.] for almost two years after the child was born and only requested visitation after the termination process began.” In her September 2, 2020 report on Ms. D.’s parental fitness, Dr. Zajdel stated that Ms. D. was “more emotionally stable, cooperative to the evaluation process, and less argumentative” than when she met Dr. Zajdel in February 2020. Ms. D. “shared that she has been actively engaged in weekly individual therapy sessions” which have been helpful, and she ended contact with Mr. O., who was physically and verbally abusive toward her. Dr. Zajdel noted that Ms. D. “appeared to have a fairly accurate understanding of all of [D.O.’s] medical issues and special needs.” She believed that D.O. could form a secure attachment to Ms. D. “given the right circumstances.” She provided the following suggestions: With support, [D.O.] can be encouraged to spend meaningful time with [Ms. D.], who now appears to be more capable of appropriately caring for her son than she has in the past. [D.O.’s] exposure to [Ms. D.] and separation from [Mrs. M.] should happen gradually. For example, [D.O.] should practice being apart from [Mrs. M.] in his home or other familiar locations for short periods of time and that time should gradually increase. Likewise, [D.O.] should be exposed to time spent with [Ms. D.] without [Mrs. M.] present for only short periods of time, at first, and should then gradually increase as he feels more comfortable. There are other behavioral techniques that can also be utilized to help decrease [D.O.’s] separation anxiety, such as creating reliable routines surrounding visits so the child knows what to expect and offering the child transitional objects that help comfort him.
Given [D.O.’s] complex medical needs, it is recommended that his doctors be consulted to help establish clear guidelines about when to pause visits with [Ms. D.] so that the child’s distress does not have any negative impacts on his health. In addition, given the extent of [D.O.’s] separation anxiety, it is recommended that [the foster parents] and [Ms. D.] work with a trained professional who can help ease the transition into [D.O.] having independent visits with his biological mother. A referral to Kennedy Krieger Institute is likely appropriate in this case, as they are a well-known and trusted
agency in this area who offer behavioral treatments that are targeted at decreasing childhood anxiety.
Visitation Supervisor’s Testimony
Michael Black, a Family Support Worker at Mentor Maryland, testified that he had been supervising Ms. D.’s visits with D.O. since 2018. Mr. Black testified that, in 2018, the visits took place weekly in Mentor Maryland’s office and Ms. D. “didn’t seem very involved at that point,” and was “on her phone and things like that.” However, he indicated that Ms. D. has been more involved recently, and became “much more involved in trying to interact with” D.O. when the visits changed to monthly. Mr. Black believed that the visits did not go well when Ms. D. did not bring her other young children. His testimony indicated that the change to monthly visitation occurred at the same time Ms. D. started bringing her other children to visits, which he estimated to be in 2020 or 2021. However, when shown his notes from 2019 that indicated the visits were occurring every two weeks and Ms. D. was sometimes bringing her other young children to visits, he admitted that he “could be” mistaken about some of the details.
The Department submitted into evidence contact notes authored by Mr. Black after each of the visits he supervised between April 8, 2019, and November 4, 2019. These notes indicate that, during that time period, DSS was only scheduling visits every two weeks on average despite a provision in a contemporaneous service agreement which required Ms. D. to attend “weekly” visits. Mr. Black’s contact notes reflect that Ms. D. attended approximately two-thirds of the scheduled visits, and often failed to attend without notice, requiring Mr. Black to call her ten or fifteen minutes after the visit was scheduled to begin. Ms. D. explained that she simply forgot about three of the visitations that she failed to attend. Mr. Black noted that Ms. D. sometimes failed to meaningfully engage with D.O. and during one visit, Mr. Black “did not witness [Ms. D.] engage or interact with [D.O.] at all during this visit. She did not appear interested in anything he was doing or seemed like she really wanted to be at this visit.”
Also notable is that these contact notes contradict certain parts of Mr. Black’s testimony. Mr. Black testified that Ms. D. did not bring her other children to visits until sometime after 2020 when the visits switched to monthly. He also recalled that she did not bring the other children until after the foster mother stopped sitting in on visits. Instead, the notes for all visits indicate that Mrs. M. was present in the room during the 2019 visits, and on most days anywhere from one to three of Ms. D.’s other children were also present.
Mr. Black testified that it “did not work out well” when Mrs. M. stopped sitting in on visits. D.O. “would be crying and trying to get out of our visit room and go back to his foster mother. He would be crying and just screaming and saying he wants to leave.” During one visit when D.O. was upset and crying, Ms. D. said, “Let’s just stop the visit because [D.O.] is too upset.” Ms. D. “tried settling him down, but he was just inconsolable and just kept trying to leave[.]” Mr. Black testified that he did not believe it was
ever planned that Mrs. M. would sit in on visits, recalling that “[i]t just seemed to be that’s the way it happened.”
According to Mr. Black, “The visits did not get better until they went to monthly and Ms. D. started bringing her younger children.”
In 2021, D.O. was “much more interactive” when the other children were present. Ms. D. “would attempt to interact with him. Sometimes he would be open to it and sometimes he would not.” Mr. Black did not recall any times that D.O. initiated interactions with Ms. D. He also testified that, in 2021 and 2022, Ms. D. was consistently on time for visits, interacted appropriately with the children, “and if she ha[d] to cancel for any reason, she always [gave him] a notice,” although she did not cancel often.
Because the visits were exclusively scheduled by DSS, all communication about scheduling went through DSS. He explained that the recent visits were scheduled for 5:00 p.m. to 6:00 p.m. The office typically closes at 5:00 p.m., but Mr. Black “made exceptions for this case.” However, because he cannot keep the office open past 6:00 p.m., the visits were not extended if Mrs. M. arrived late for visitation. He testified that Ms. D. routinely arrives early for visits, and Mrs. M. is sometimes late. He noted that, even when Mrs. M. “arrives at 5:30, usually at 6:00 Ms. D. starts getting the kids read[y] to go,” and she has not asked him to extend the time. However, he conceded that he told Ms. D. that he cannot keep the office open past 6:00 p.m.
Pediatrician’s Testimony
Dr. Nakiya Showell, D.O.’s pediatrician from the time he was two months old, testified as his treating doctor and as an expert in pediatrics. She began her testimony by describing D.O.’s numerous medical problems, recounted above. In summary, she testified that his heart’s ability to circulate oxygen-rich blood around his body is compromised, he is less able to fight infections, and more prone to respiratory infections than the average child. During pediatric appointments, Dr. Showell pays “special attention to his illness history,” behavior, and symptoms because “just a small cold can really make him very sick.” She testified that “in the first two years of [D.O.’s] life, he was hospitalized several time[s].” D.O. was last hospitalized for acute illness in December 2018. He regularly has appointments with a cardiologist and a pulmonologist, but “has not seen a gastroenterologist in several years” despite still having a g-tube. Although a typical healthy child D.O.’s age would normally be seen by a pediatrician once per year, D.O. is seen every six months.
In order to prevent serious illness, Dr. Showell stressed the importance of ensuring that D.O.’s caregivers are able to recognize when D.O. is sick. “[T]he things that need to be in place are . . . just being able to monitor him and be able to recognize that he’s changing, his behavior, if he has any symptoms, respiratory symptoms and being very prompt and being very responsive to that.” A caregiver does not need special training to recognize D.O.’s symptoms, but rather [j]ust experience. I mean, you don’t need to be a doctor to see that he’s sick, especially if you’ve been around
him and you recognize even those subtle sign[s]. So just knowing him and having experience when he’s not acting like his normal self and being able to promptly recognize when he’s ill is what’s needed. You just have to have experience with being around him.
She also testified that, to ensure D.O.’s health and well-being, a caregiver needs experience “being with him, caring for him, recognizing the signs of him getting sick . . . [a]nd also, being in the spaces where the information is being shared,” including regular appointments and during hospital discharge.
She stated that part of a routine pediatric visit is to observe interactions between the child and the caregiver, to determine socio-emotional development of the child. Dr. Showell observed that D.O. and Mrs. M. “seem to have a very loving relationship.” She confirmed that no one at her clinic had reached out to Ms. D. about D.O.’s appointments, and that Ms. D. had not attended any of his pediatric appointments.
DSS Caseworker’s Testimony
The Department assigned Cleona Garfield as D.O.’s caseworker in May 2021. She testified that D.O. is “very active,” and “doesn’t stay seated too long.” She observed D.O. to be “very attached to his foster mother and father,” and that he is “doing very well” in school and has “no behavior problems.”
Ms. Garfield noted that D.O. does not currently require oxygen and has not been hospitalized for illness since 2017. She also testified that the foster parents keep DSS apprised of all of D.O.’s medical appointments.
Ms. Garfield’s contacts with Ms. D. have primarily involved scheduling visitation, which is done by phone or email. Ms. Garfield initiates contact with Ms. D., Mrs. M., and Mr. Black to schedule the visits. She testified that she typically contacts Ms. D. first to confirm the day and time she is available for visitation. She would then contact Mrs. M. and Mr. Black to “make them aware of the time that Ms. D. was available for these visits.” Ms. D. and Mrs. M. would contact Ms. Garfield if they needed to cancel a visit. Ms. Garfield confirmed that Ms. D.’s visits with D.O. have never been unsupervised.
Ms. D. informed Ms. Garfield that although Mrs. M. frequently arrived late for visitation, the visits were not extended. Ms. Garfield testified that she is not able to extend the visits past 6:00 p.m., and “[t]here’s been no makeup” offered to Ms. D. However, she also noted that Ms. D. did not request that Ms. Garfield do anything about Mrs. M.’s tardiness.
Ms. Garfield could not remember if Ms. D. visited D.O. in November 2022, but testified that there were no visits in December 2022 or January 2023 because “Mother was not available due to her work schedule.” According to Ms. Garfield, she spoke with Ms. D. in November or December 2022, at which time Ms. D. told her she got a temporary job and was not available for visits, but that Ms. D. would contact Ms. Garfield when she was available. Ms. Garfield recalled that Ms. D. advised her that Ms. D. worked “in the evenings from 6:00 to something.” Ms. Garfield did not
suggest an alternate arrangement, stating, “[t]here were no other options to suggest because she was not available.” Ms. Garfield did not make any adjustments to the visitation time. According to Ms. Garfield, the visits could not start earlier than 5:00 p.m. because of D.O.’s school schedule. Because Ms. D. had not called, Ms. Garfield reached out to Ms. D. in February 2023 to schedule a visit. Ms. Garfield did not contact Ms. D. before February “because [Ms. D.] made [Ms. Garfield] aware she wasn’t going to be available.”
Some of the contact notes kept by Ms. Garfield and her predecessor caseworker were admitted into evidence. Additional details provided by these notes include the following:
• D.O. underwent heart surgery in early May 2021. Ms. D. was present in the hospital during that surgery.
• In June and July 2021, Ms. D.’s visits with D.O. were held weekly from 4:00 p.m. to 6:00 p.m.
• By September 2021, Ms. D.’s visits with D.O. had changed to monthly.
• Ms. D. began work at UPS on November 7, 2022, and reported to Ms. Garfield that her hours are 5:00 p.m. to 10:00 p.m. Ms. Garfield believed that Ms. D. would contact her in January after her seasonal employment ended. When Ms. Garfield contacted Ms. D. to schedule a visit in February 2023, Ms. D. did not provide a reason as to why she did not contact Ms. Garfield the previous month. Ms. D. reported that she had started a new job on February 9, 2023, at Family Dollar.
• Ms. D. contacted Ms. Garfield seven hours before the scheduled February 2023 visit asking to reschedule the visit because she had a stomach virus.
Court’s Findings
On April 25, 2023, the court presented its findings and conclusions from the bench:
As to [FL § 5-323(d)(1)(i),] the services offered to the parent before the child’s placement, were they offered by a local department or another agency or professional. And at the time of [D.O.’s] birth, . . . he was in a truly fragile state. He was born with a series of congenital heart defects, including ventricular septal defect, pulmonic valves stenosis and dextraposition of the aorta. [D.O.] was born with his liver on the left side, spleen on the right side and stomach on the right side. At the time of [D.O.’s] birth, his mother admitted a history of abusing elicit drugs, including marijuana. [D.O.] was born drug exposed to marijuana and his Mother tested positive for the same.
During the pregnancy, Ms. D. received no prenatal care and that she admitted to suffering from depression. It appears that no services were offered to Ms. D. prior to [D.O.’s] placement as he was placed from the hospital. At the time of a shelter, Ms. D. was not gainfully employed and her living situation was unstable.
Additionally, Ms. D. and Mr. O. had a history of domestic violence. Furthermore, Ms. D., Child Protective Services’ history dates back to 2003. History includes allegations of neglect and substance abuse issues.
[D.O.] came into care on or about June 1st, 2016. He was found to be a child in need of assistance and committed to the Department on or about February 2nd, 2017. With respect to [FL § 5-323(d)(1)(ii)], “Extent, nature and timeliness of services offered by the local Department to facilitate reunion of the child and parent,” since [D.O.’s] placement, DSS has offered various services to Ms. D. to facilitate reunification. DSS referred Ms. D. to Partners in Recovery and an FIM meeting provided in-person and video visitation opportunities, assisted in locating proper housing and monitored the Respondent’s care. And DSS also referred Ms. D. to the Family Tree where she completed the parenting program on or about February 14th, 2016 [sic]. Additionally, DSS, is generally being the moving party in the effort to maintain communications with Ms. D.
[FL § 5-323(d)(1)(iii),] “The extent to which a local department and parent have fulfilled their obligations under the Social Services Agreement.” And the Baltimore City . . . Department of Social Services . . . has offered and provided services as indicated a moment ago. DSS has made referrals so that [D.O.] would consistently receive appropriate medical care. [D.O.] has been oxygen dependent, he requires significant medical attention from Johns Hopkins Hospital, and DSS has addressed those means by ensuring that he was at his appointments.
However, this [c]ourt is concerned that DSS failed to comply with the requirement to provide makeup visits for any time missed by the foster mother’s failure and to arrive at the visit in a timely manner.
Further, this [c]ourt is also concerned about Mentor Maryland’s inflexibility in extending visitation time to accommodate the foster parents lateness. DSS had a responsibility to provide for visitation as directed, unless it was the parent who was late. Ms. D. has made some efforts to comply with some of her requirements. She obtained suitable housing in 2019, completed parenting classes. However, her visitation left much to be desired.
During the holiday season from November 2022 through January 2023, Ms. D. failed to comply with the visitation schedule because she obtained a seasonal job with UPS. There’s no evidence that Ms. D. requested some adjustment to the visitation schedule.
[FL § 5-323(d)(2)] “The results of the parents efforts to adjust to parents circumstances, conditions or conduct to make it in the child’s best interest for the child to be returned to the current home.” [FL § 5- 323(d)(2)(i)(1)], “The extent to which the parent has maintained regular contact with the child.” Ms. D. has made some efforts to
maintain regular contact with [D.O.]. She visited with [D.O.] by phone and in person. However, when the foster mother was late bringing [D.O.] into the visit, neither Ment[or] Maryland nor DSS made any efforts to make up for lost time. However, the Zoom log visits did show that from August 5th, 2020 through April 14, 2021 Ms. D. made all of the visits. The agency missed a couple of visits and it is unclear who was a no show as to other visits. That was Exhibit No. 182.
On the other hand, [Ms. D.] missed visiting [D.O.] during the holiday season from November 27th, 2022 through January 2023, as the [c]ourt previously mentioned.
[FL § 5-323(d)(2)(i)(2),] “The local department of which the child is committed.” Ms. D. made no efforts to maintain contact with DSS except when DSS contacted her.
[FL § 5-323(d)(2)(i)(3),] The child’s caregiver, the foster mother, . . . has had [D.O.] in her care since 2016. It appears that the visits were scheduled through Mentor Maryland.
[FL § 5-323(d)(2)(ii),] “The parents contribution to a reasonable part of the child’s care and support if the parent is financially able to do so.” According to the evidence, [Ms. D.] did not provide support for [D.O.’s] care and within the last few months, and she has reportedly had two jobs.
[FL § 5-323(d)(2)(iii),] “The existence of a parental disability that makes the parent consistently unable to care for the child’s immediate and ongoing physical and psychological needs for long periods of time.” There’s no evidence that Ms. D. suffers from any parental disability that would consistently render her unable to care for [D.O.].
[FL § 5-323(d)(2)(iv),] “Whether additional services would be likely to bring about a lasting parental adjustment so that the child could be returned to the parent 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 interest to extend the time for a specified period.” [D.O.] has been in the care of [Mrs. M.] since he was released from the hospital. He’s almost seven years old at this point. Although Ms. D. does not require drug treatment, [she] has completed at least one round of parenting classes, and she has a stable home, this [c]ourt has concerns about whether extending the time would be in [D.O.’s] best interest.
[FL § 5-323(d)(3)(i)], “Whether the parent has abused or neglected the child or a minor, and the seriousness of the abuse or neglect.” DSS presented no evidence of abuse or neglect of the Respondent or the other children, with the exception that [D.O.] was born marijuana exposed.
[FL § 5-323(d)(3)(ii)(i)(A)], “On admission to a hospital for the child’s delivery, the mother tested positive for a
drug as evidenced by a positive toxicology.[”] On admission for [D.O.’s] delivery, [Ms. D.] tested positive for marijuana. [FL § 5-323(d)(3)(ii)(1)(B),] Upon the birth of the child, the child tested positive for the drug, as evidenced by a positive toxicology. When [D.O.] was born, he tested positive for marijuana.
[FL § 5-323(d)(3)(ii)(2)], “The mother refused any level of drug treatment.” According to the evidence, Ms. D. tested positive for marijuana, was evaluated and was determined to not be in need of additional services.
[FL § 5-323(d)(3)(iii)(1)], the parent subjected the child to chronic abuse[”] other than using marijuana while pregnant, failing to submit to prenatal care.[] There’s no evidence of chronic abuse, [FL § 5-323(d)(3)(iii) (2),] chronic and life threatening neglect. [D.O.] has not been in his mother’s care since birth, therefore, there’s no evidence of any life threatening neglect.
[FL § 5-323(d)(3)(iii)(3) and (4),] “Sexual abuse,” there’s no evidence of sexual abuse and there’s no evidence of torture.
[FL § 5-323(d)(3)(iv)(1)(A), (B), and (C),] “The parent has been . . . convicted in any state of any court in the United States of the crime of violence against the minor offspring of the parent.” The answer is no; the child, no; another parent of the child, the answer is no, as well.
[FL § 5-323(d)(3)(iv)(2),] “Aiding or abetting, conspiring or soliciting to commit the crimes described in Item 1,” the answer is no.
[FL § 5-323(d)(3)(v),] “The parent has voluntarily lost parental rights to a sibling of the child,” and at this point the answer is no.
[FL § 5-323(d)(4)(i),] “The Child’s emotional ties with or feelings toward the child’s parents, the child’s siblings and others who may affect the child’s best interest significantly.” Certainly [D.O.] knows his biological mother. However, it appears from the evidence that he has no significant ties to Ms. D.
[FL § 5-323(d)(4)(ii)(1), (2), and (3)], “The child’s adjustment to the community.[”] [D.O.] has never lived with his biological mother, so his home in his community has been with [the foster family]. [D.O.] has thrived in the foster home and community. And the [c]ourt will say the same for the question as to home. As far as placement, [D.O.’s] placement is where he’s lived for most of his life.
[FL § 5-323(d)(4)(ii)(4),] School, [D.O.] has thrived in school as placed by his foster parents.
[FL § 5-323(d)(4)(iii),] “The child’s feelings about severance [of the] parent/child relationship.” [D.O.’s] feelings about the severance of the [parent] child relationship appears inconsequential to -- that is due in part to the fact that [D.O.] has lived with his foster family for nearly seven years. When he is sick, he goes to his foster father and or mother. When he has concerns, he relies on them for his comfort. On the other hand, per Dr. Z[aj]del, addi-
tional visitations would have been warranted. However, Dr. Z[aj]del noted that at the August [sic] 2020 bonding evaluation, [D.O.] was happy to see his biological mother or appeared happy to see her. However, when it came time for [D.O.] to go back into the room to be evaluated with his mother, [D.O.] refused to go back into the room and Ms. D. refused to console him.
[FL § 5-323(d)(4)(iv),] “The likely impact of terminating parental rights and the child’s well-being.” Given the lack of energy DSS expended in facilitating parent/child relation visitation, the length of time [D.O.] has spent with his foster parents which is most of his life and [D.O.’s] significant pending surgery and other medical needs, this [c]ourt is concerned that the failure to terminate Ms. D.’s parental rights would have a devastating impact on [D.O.’s] well-being.
One of the concerns is that Ms. D. admittedly recognized that she does not know [D.O.’s] routines, his manners, and that raises concerns as one of the doctors testified about was subtle symptoms of him being sick. Without knowing that given the significant medical conditions that he has, that is a grave concern this [c]ourt, [D.O. has] already attempted to change his name in school and had to be redirected in this regard. Under the circumstances, this [c]ourt considers these things in part as a missed opportunity.
DSS has proven by clear and convincing evidence that it is in [D.O.’s] best interest to terminate Ms. D. parental rights and Ms. D. is unfit to remain in a parental relationship with [D.O.]. The exceptional circumstances exist that the continuation of Ms. D.’s relationship is detrimental to [D.O.] and that he has significant medical concerns and a possible pending surgery. He has needs that other children that are in her care do not.
Also, given the length of time he has been away from her and in foster care, I want to speak to his best interest needs to remain where he is, and so the court grants the . . . Petition, . . . grants limited guardianship to the Department and to address his medical care, mental health, educational decisions, and out-of-state travel.
Ms. D. is not entitled to future notice of guardianship.
Mr. O. is entitled to notice of guardianship. Despite the [c]ourt’s concerns about the visitation, the [c]ourt finds that the Department did make reasonable efforts to comply with the permanency plan.
The court entered a written opinion the same day. Ms. D. noted this timely appeal.
DISCUSSION
It is well-established that parents have a fundamental right to raise their children. In re Adoption/Guardianship of C.A. and D.A., 234 Md. App. 30, 47 (2017); see also Santosky v. Kramer, 455 U.S. 745, 758–59 (1982). Furthermore, children have “a constitutionally protected liberty interest in the preservation of parental rights” and “‘an interest in maintaining a close familial relationship with siblings.’” In
re Adoption/Guardianship No. T00032005, 141 Md. App. 570, 580 (2001) (quoting In re Adoption/Guardianship No. T97036005, 358 Md. 1, 16 (2000)). These rights are not absolute and parental rights can be terminated when it is in the best interest of the child. C.A. and D.A., 234 Md. App. at 47. There is a strong presumption, however, that it is in a child’s best interest to maintain the parent-child relationship. Id. at 48. This presumption can only be overcome where the parent is unfit to continue the parent-child relationship or where exceptional circumstances exist such that continuation of the parent-child relationship is detrimental to the child’s best interests. Id.; see also Md. Code (1984, 2019 Repl. Vol.), § 5-323(b) of the Family Law Article (“FL”).
The Maryland General Assembly created a list of factors that a court must consider in determining whether a parent is unfit, whether exceptional circumstances exist, and whether it is in the best interest of a child to terminate the relationship. FL § 5-323(d); In re Adoption/Guardianship of Rashawn H., 402 Md. 477, 501 (2007).
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. Rashawn H., 402 Md. at 501.
Our review of a decision to terminate parental rights “involves three interrelated standards: (1) a clearly erroneous standard, applicable to the juvenile court’s factual findings; (2) a de novo standard, applicable to the juvenile court’s legal conclusions; and (3) an abuse of discretion standard, applicable to the juvenile court’s ultimate decision.” C.A. and D.A., 234 Md. App. at 45 (citing In re Yve S., 373 Md. 551, 586 (2003)). Our role is not to determine whether “we might have reached a different conclusion. Rather, it is to decide only whether there was sufficient evidence—by a clear and convincing standard—to support [the court’s] determination that it would be in the best interest of [the child] to terminate the parental rights of [the parent].” Id. at 46 (alterations in original) (citation omitted) (quoting In re Adoption No. 09598 in Cir. Ct. for Prince George’s Cnty., 77 Md. App. 511, 518 (1989)).
Section 5-323(d) of the Family Law Article sets forth the factors a court must consider:
Except as provided in subsection (c) of this section, in ruling on a petition for guardianship of a child, a juvenile court shall give primary consideration to the health and safety of the child and consideration to all other factors needed to determine whether terminating a parent’s rights is in the child’s best interests, including:
(1)(i) all services offered to the parent before the child’s placement, whether offered by a local department, another agency, or a professional;
(ii) the extent, nature, and timeliness of services offered by a local department to facilitate reunion of the child and parent; and
(iii) the extent to which a local department and parent have fulfilled their obligations under a social services agreement, if any;
(2) the results of the parent’s effort to adjust the parent’s circumstances, condition, or conduct to make it in the child’s best interests for the child to be returned to the parent’s home, including:
(i) the extent to which the parent has maintained regular contact with:
1. the child;
2. the local department to which the child is committed; and
3. if feasible, the child’s caregiver;
(ii) the parent’s contribution to a reasonable part of the child’s care and support, if the parent is financially able to do so;
(iii) the existence of a parental disability that makes the parent consistently unable to care for the child’s immediate and ongoing physical or psychological needs for long periods of time; and
(iv) whether additional services would be likely to bring about a lasting parental adjustment so that the child could be returned to the parent within an ascertainable time not to exceed 18 months from the date of 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[7] 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:
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.
Numerous cases have emphasized the importance of the court’s careful consideration of these factors. “[I]n cases where parental rights are terminated, it is important that each factor be addressed specifically not only to demonstrate that all factors were considered but also to provide a record for review of this drastic measure.” C.A. and D.A., 234 Md. App. at 48–49 (quoting In re Adoption/ Guardianship No. 87A262, 323 Md. 12, 19–20 (1991)). “[T] he court must work through the statutory factors in detail . . . and explain with particularity how the evidence satisfied them and how the court weighed them[.]” In re Adoption of K’Amora K., 218 Md. App. 287, 304 (2014). The court must further “determine expressly whether those findings suffice either to show an unfitness . . . or to constitute an exceptional circumstance that would make a continuation of the parental relationship detrimental to the best interest of the child[.]” In re Adoption of Ta’Niya C., 417 Md. 90, 102 (2010) (quoting Rashawn H., 402 Md. at 501). “So important are these statutory considerations that, on review, we cannot be left to speculate as to whether the trial court has fulfilled its obligations. . . . Indeed, in considering each factor under [FL § 5-323], the court must even make findings of ‘the non-existence of facts where appropriate.’” In re Adoption/ Guardianship No. 95195062/CAD in Cir. Ct. for Balt. City, 116 Md. App. 443, 457 (1997) (quoting In re Adoption No. 2428 in Cir. Ct. for Wash. Cnty., 81 Md. App. 133, 139 n.1 (1989)).
As in Rashawn H., we shall vacate the juvenile court’s judgment and remand for further proceedings for two principal reasons. First, we shall articulate our concerns about some of the court’s statutorily-required fact findings. Second, we shall require the court to explain how it weighed the evidence to conclude that unfitness or exceptional circumstances exist sufficient to rebut the presumption favoring the parental relationship. We shall separately explain our rationale on both counts.
I. The Juvenile Court’s Statutorily-Required Findings
We begin with the court’s failure to make adequate findings under the FL § 5-323(d) (1)(iii), (2)(i)(3), and (4)(i) factors—“the extent to which a local department and parent have fulfilled their obligations under a social services agreement,” “the extent to which the parent has maintained
regular contact with . . . if feasible, the child’s caregiver,” and “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.”
For factor (d)(1)(iii), the court found that DSS provided numerous services, but failed to provide Ms. D. with makeup visits when Mrs. M. arrived late. The court’s only finding as to Ms. D.’s compliance with the service agreements was that she “made some efforts to comply with some of her requirements,” specifically obtaining suitable housing and completing parenting classes, and that she missed three months of visitation from November 2022 to January 2023. Additionally, the court seems to have found that Ms. D.’s failure to attend visitation in late 2022 and early 2023 was a failure to fulfill an obligation under a service agreement, despite there being no service agreement in evidence applicable to that period of time. The last of the three service agreements admitted into evidence was dated December 9, 2019, and had an end date of June 9, 2020. Therefore, while it is true that Ms. D. did not visit with D.O. from November 2022 to January 2023, that was not a failure to fulfill an obligation under a service agreement. Equally important, the court failed to address Ms. D.’s compliance with many aspects of the service agreements. There is no dispute that, in addition to obtaining adequate housing and completing parenting classes, she secured employment and participated in required medical training. The court also failed to mention DSS’s admitted failure to comply with its obligation under the December 9, 2019 service agreement to “remind mom of all appointments.”8 Furthermore, as previously noted, DSS only scheduled visitation every two weeks during a time when it was requiring Ms. D. to “attend weekly visit[s].” Ms. D.’s efforts to comply with the service agreements were central to her case opposing termination of her parental rights, yet the court did not substantially address them.
With regard to Ms. D.’s contact with Mrs. M., the court stated only that “The child’s caregiver, the foster mother, . . . has had [D.O.] in her care since 2016. It appears that the visits were scheduled through Mentor Maryland.” It is not clear whether the court found that Ms. D. was not required to maintain contact with Mrs. M. or whether it found that Ms.
D. failed to maintain contact with Mrs. M. The record contains minimal evidence about communications between Ms. D. and Mrs. M. However, Ms. D. testified that DSS asked Mrs. M. to inform Ms. D. about D.O.’s medical appointments, indicating that communication between them may have been feasible to some extent. We are unable to discern on this record whether the court viewed this factor favorably or unfavorably to Ms. D.
As to D.O.’s emotional ties with his biological family, the court found: “Certainly [D.O.] knows his biological mother. However, it appears from the evidence that he has no significant ties to Ms. D.” Notably, the court failed to make any mention of D.O.’s relationship with his siblings, despite extensive evidence on this point. Mr. Black’s contact notes and testimony indicate that two of D.O.’s siblings frequently
visited with him, and that D.O. visited with at least one of his other siblings. Mr. Black testified that visits were more productive when D.O.’s siblings were present. Indeed, there was evidence indicating that the primary focus of many of D.O.’s visits with his biological family was the opportunity to interact and play with his siblings. Mrs. M. testified that D.O. described visits with Ms. D. as “going to see his brother[] and sister.” We acknowledge that there was also testimony that, although D.O. enjoyed playing with his siblings, he may not have had strong emotional ties to them. Mrs. M. testified that she was not aware of D.O. having any attachment to his siblings, and that he does not appear to be upset when regular visits do not occur. Additionally, there was no evidence that D.O. had ever met most of his older siblings, including some currently living with Ms. D. Although the court did not clearly err in finding that D.O. “has no significant ties to Ms. D.,” the court did not make any findings (or address the conflicting evidence) concerning D.O.’s emotional ties to his siblings as expressly required by the statute.9
In addition, we note that the court’s findings contain several errors, specifically in its findings on the FL § 5-323(d) (2)(i)(1), (2)(ii), and (3)(ii) factors. These factors concern Ms. D.’s contact with D.O., her contribution to D.O.’s support, and Ms. D. and D.O. testing positive for cannabis at the time of D.O.’s birth.
In its findings on factor (2)(i)(1), “the extent to which the parent has maintained regular contact with the child,” the court referenced Exhibit 182, a document described as a log of Zoom visits between August 5, 2020, and April 14, 2021. The court noted that Exhibit 182 showed that “Ms. D. made all of the visits” during that time period and that “[t] he agency missed a couple of visits.” While Exhibit 182 was one of a large number of documents that DSS sent to the court prior to the TPR hearing, about half of which became part of the evidentiary record, Exhibit 182 was not admitted into evidence. Nor was there any testimony or other documentary evidence that would support the court’s findings on this point. Although this finding appears to weigh in Ms. D.’s favor, we are troubled that the court relied on a document not in evidence. Although we understand how mistakes can easily be made with such a voluminous record, we are concerned about the possibility that the court may have relied in part on other documents not in evidence in making findings that were less favorable to Ms. D.
As to factor (2)(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,” the court found that Ms. D. “did not provide support for [D.O.’s] care and within the last few months . . . she has reportedly had two jobs.” However, there was no evidence presented concerning whether Ms. D. contributed to D.O.’s support, or whether she was ever asked to do so. Moreover, the court’s reference to Ms. D. having “two jobs” leads us to believe that the court faulted Ms. D. for not contributing to D.O.’s support. There is substantial evidence suggesting that Ms. D. may not have been financially able to contribute to D.O.’s support despite being employed. Ms. D. has six of her children living with her, and
has been in Section 8 housing since April 2019. The uncontradicted testimony was that her job at UPS was temporary and part-time, and the scant evidence concerning the job she started after her employment at UPS ended indicated that she was making $13 per hour working at a retail store. Thus, the court’s findings on this factor are problematic.
As to factor (3)(ii), the court found that “On admission for [D.O.’s] delivery, [Ms. D.] tested positive for marijuana” and “When [D.O.] was born, he tested positive for marijuana.” Although the court is correct that Ms. D. tested positive for cannabis at D.O.’s delivery, all the documentary evidence and testimony indicated that D.O. did not test positive for cannabis. The court’s finding that “the child tested positive for the drug, as evidenced by a positive toxicology” is clearly erroneous.10 Furthermore, after referring to factor (3)(ii) (“on admission to a hospital for the child’s delivery, the mother tested positive for a drug”), the court apparently thought that the term “drug” included cannabis. But cannabis is not a “drug” as defined in FL § 5-323(a). That definition limits the word “drug” to “cocaine, heroin, methamphetamine, or a derivative of cocaine, heroin, or methamphetamine.”11 FL § 5-323(a). To the extent the court found that Ms. D. tested positive for a “drug,” it erred.
In summary, the court (1) did not make appropriate findings concerning the parties’ fulfillment of their obligations under service agreements; (2) failed to make clear findings concerning communication between Ms. D. and Mrs. M.; (3) did not make any findings concerning D.O.’s relationship with his siblings; (4) erred by relying on a document not admitted into evidence; (5) made insufficient findings related to Ms. D.’s contributions to D.O.’s support and whether Ms. D. was financially able to contribute to his support; and
(6) erred in finding that D.O. tested positive for cannabis at birth, and likewise erred to the extent it found that Ms. D. tested positive for a “drug” at the time of D.O.’s birth. We hold that, because of these errors, the court did not comply with its obligation to demonstrate that all statutory factors were adequately considered, as required by FL § 5-323(d).
II. The Court Failed to Explain How It Weighed the FL § 5-323(d) Factors
Terminating a parent’s rights is a “drastic measure” that may only be undertaken after a careful review of the facts. C.A. and D.A., 234 Md. App. at 48–49 (quoting No. 87A262, 323 Md. at 20). “A mistake in the process would irrevocably deprive the parent of a fundamental constitutional right. It is for this reason that every procedural safeguard must be carefully followed.” No. 95195062/CAD, 116 Md. App. at 460.
After concluding its fact-findings related to the statutory factors, the court provided the following explanation in support of its conclusion that Ms. D. is unfit and that exceptional circumstances exist, thereby making it in D.O.’s best interests to terminate parental rights:
• One of the concerns is that Ms. D. admittedly recognized that she does not know [D.O.’s] routines, his manners, and that raises concerns as one of the doctors testified about was subtle symptoms of him
being sick. Without knowing that given the significant medical conditions that he has, that is a grave concern this [c]ourt, [D.O. has] already attempted to change his name in school and had to be redirected in this regard. Under the circumstances, this [c]ourt considers these things in part as a missed opportunity.
. . . [D.O.] has significant medical concerns and a possible pending surgery. He has needs that other children that are in her care do not.
Also, given the length of time he has been away from her and in foster care, I want to speak to his best interest needs to remain where he is[.]
Notably absent in the court’s reasoning is any analysis to support its conclusion that Ms. D. is unfit to maintain a parental relationship with D.O. Instead, the court seems to have focused more on Ms. D.’s unfitness to have custody of D.O., an issue which is not an appropriate consideration in a TPR proceeding. See Rashawn H., 402 Md. at 495–499 (“To justify a TPR judgment, . . . the focus must be on the continued parental relationship, not custody.”).
As to the court’s exceptional circumstances finding, it failed to explain how the length of time D.O. has been separated from Ms. D. and D.O.’s medical problems outweigh the factors that it found in Ms. D.’s favor. The evidence concerning the pending surgery mentioned by the court indicated that it was the last surgery D.O. would need for his heart problems, and that his g-tube would be removed after he recovered from that surgery. There was no indication that this surgery might increase his medical needs beyond Ms. D.’s capabilities. Indeed, the court accepted that the only “skill” Ms. D. was lacking that would allow her to safely care for D.O. is familiarity with his mannerisms and routines, which the court stated was the result of a “missed opportunity.” But again, this consideration appears to be more significant in determining physical custody of D.O. The court’s final statement, that it is in D.O.’s best interest to “to remain where he is,” is further indicative of the court’s improper focus on physical custody of D.O. rather than the parent- child relationship. As with the court’s unfitness finding, the court failed to provide a clear explanation of how it weighed the factors to conclude that exceptional circumstances existed such that it was in D.O.’s best interests to not have a parent-child relationship with Ms. D.
Although it appears that the court sincerely believed that it was in D.O.’s best interest to terminate parental rights, the court’s errors and omissions in its findings cast doubt on the validity of the court’s ultimate conclusion to terminate parental rights, especially in light of the court’s repeated comments that it was “concerned” about DSS’s failure to afford Ms. D. proper visitation. Compounding the problem is the court’s failure to state how it weighed the factors and the court’s conclusion that Ms. D. is unfit without any explanation of its reasons for that finding. See K’Amora K., 218 Md. App. at 304 (“[T]he court must work through the statutory factors in detail . . . and explain with particularity how the evidence satisfied them and how the court weighed them.” (emphasis added)); Rashawn H., 402
Md. at 501 (A court must “determine expressly whether [its] findings suffice . . . to show an unfitness on the part of the parent to remain in a parental relationship with the child . . . , and, if so, how.” (emphasis added)). Such an explanation is especially important in a case where, as here, there was evidence and findings both detrimental and beneficial to the parent’s interests.
We therefore must vacate the court’s judgment and remand for further findings. We echo the language in Rashawn H. that,
[o]n remand, the court will have to make clear and specific findings with respect to each of the relevant statutory factors and, to the extent that any amalgam of those findings leads to a conclusion that [Ms. D. is unfit or] exceptional circumstances exist sufficient to rebut the presumption favoring the parental relationship, explain clearly how and why that is so.
402 Md. at 504–05. As in Rashawn H., the court, in its discretion, may receive additional evidence in light of the time that has elapsed between the TPR hearing and the filing of this opinion.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY VACATED. CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION. COSTS TO BE PAID BY APPELLEE, BALTIMORE CITY DEPARTMENT OF SOCIAL SERVICES.
FOOTNOTES
1 Ms. D. presented the following questions: Did the court erroneously find that DSS made adequate efforts to reunify D.O. and mother, warranting reversal of the TPR?
Did the court erroneously find, and was the evidence insufficient to support, that mother was unfit, exceptional circumstances applied, and TPR was in D.O.’s best interests? Did the court make inadequate clear and specific findings supporting TPR?
2 Mr. O. was deemed to have consented to TPR after failing to note an objection. He is not a party to this appeal.
3 A CINA is “a child who requires court intervention because: (1) The child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and (2) The child’s parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and the child’s needs.” Md. Code (1974, 2020 Repl. Vol.), § 3-801(f) of the Courts and Judicial Proceedings Article.
4 The record does not disclose what Ms. D. needed to do to obtain “medical clearance.”
5 Mentor Maryland is an organization that provides numerous services, including facilitating the placement and monitoring of medically fragile children in foster homes. Medically Fragile Foster Care, MENTOR MARYLAND, https:// www.md-mentor.com/ youth-and-families-services/medically-fragile-foster-care (last visited Jan. 9, 2024).
6 There was never any evidence concerning the possibility of weekend visitation.
7 “Drug” is defined in FL § 5-323(a): “In this section, ‘drug’ means cocaine, heroin, methamphetamine, or a derivative of cocaine, heroin, or methamphetamine.”
8 Although not directly relevant to any of the FL § 5-323(d) factors, DSS also admitted, without explanation, that it failed to ever provide Ms. D. with unsupervised visitation or inform her of D.O.’s medical appointments, even when it was ordered to do so. In light of the court’s ultimate conclusion that Ms. D. is unfit and/or exceptional circumstances exist in part because of D.O.’s medical issues and Ms. D.’s unfamiliarity with D.O.’s routines and mannerisms, the court should have considered DSS’s failure to comply with court orders.
9 We note that the court also failed to make any findings as to the final part of the (4)(i) factor, concerning ties to “others who may affect the child’s best interests significantly.” Although our review of the record does not reveal any persons other than Ms. D. and D.O.’s siblings who may significantly affect his best interests, on remand, “the court must even make findings of ‘the non-existence of facts where appropriate.’” See No. 95195062/CAD, 116 Md. App. at 457 (quoting No. 2428, 81 Md. App. at 139 n.1).
10 We see no evidence of a toxicology report in this record. Moreover, we note that Exhibit 183, a document authored by DSS that was not admitted into evidence, stated that
D.O. did test positive for cannabis. Again, this raises the possibility that the court may have relied on a document not admitted into evidence for its finding here, as it did for factor (2)(i)(1).
11 This definition has not changed since 2007.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Montgomery County Circuit Court’s award of a survivor’s annuity to wife, and its order that husband remain responsible for a $45,000 home improvement loan. The trial court did not make sufficient findings of fact.
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
A. History of the Marriage
The parties met when Wife was pursuing an undergraduate degree in business management and Husband was in medical school. They graduated from their respective programs in 1998 and married the same year. The parties are the parents of three adult children, all of whom graduated from college.
They began their married life in Maryland, where Husband completed his residency in emergency medicine at area hospitals. Wife worked for a bank and assumed primary responsibility for the care and supervision of the children and day-to-day maintenance of the family home.
This case arises from the entry of a divorce judgment by the Circuit Court for Montgomery County, which ended the marriage of Terrance L. Pyles (“Husband”) and Rhoshanda M. Pyles (“Wife”). Husband presents four questions on appeal, which we have reordered:
I. Did the [circuit] court abuse its discretion by awarding [Wife] a survivor’s annuity?
II. Did the [circuit] court abuse its discretion by not deducting the home improvement loan from the marital home value?
III. Did the [circuit] court abuse its discretion by awarding alimony?
IV. Did the [circuit] court abuse its discretion by awarding attorney’s fees?
Answering the first two questions, we conclude that the trial court did not make sufficient findings of fact with respect to the survivor’s annuity and the home improvement loan. We shall therefore vacate the monetary award and remand for further findings in accordance with this opinion. Because the monetary award must be vacated, we must also vacate the alimony award and the award of attorney’s fees. See Turner v. Turner, 147 Md. App. 350, 400-01 (2002) (footnote omitted) (“The factors underlying alimony, a monetary award, and counsel fees are so interrelated that, when a trial court considers a claim for any one of them, it must weigh the award of any other. Therefore, when this Court vacates one such award, we often vacate the remaining awards for re-evaluation.”). We shall address the remaining issues to the extent necessary to provide guidance on remand.
In January 2000, Husband began active duty service in the United States Navy as a physician, a position which he continued to hold throughout the marriage. His first duty station was Jacksonville, Florida. The parties moved to Jacksonville and built a home there.1 Husband traveled back and forth from Jacksonville to Pensacola to attend a six- month training program. He was then sent to California for a year and a half. They agreed that Wife would remain in Jacksonville with the children, so as not to “uproot” the family. While there, Wife began working as a teacher and athletics coach at a middle school.
The parties moved back to Maryland when Husband was stationed at Walter Reed National Military Medical Center (“Walter Reed”) from 2004 to 2009. Wife obtained a teaching certificate and began working as a teacher in the Montgomery County Public School system. She earned a master’s degree in educational leadership in 2007 and pursued a career in school administration.
From 2009 to 2011, Husband was stationed in Norfolk, Virginia. At trial, Husband explained that Wife did not relocate to Norfolk with him because it was an “operational assignment” and he would be deployed on a ship for almost a year.
When Husband returned home from Norfolk in 2011, he told Wife that he was no longer in love with her, and that they needed to get divorced. Wife persuaded Husband to stay in the marriage for the sake of their children.
From 2011 to 2013 Husband was again stationed in Florida and Wife and the children remained in Maryland. It was then that Husband began “moonlighting” for a privately-owned health care company to help pay for the children’s private school tuition and maintain the family home in Maryland. He continued to work as a contract physician, in addition to his position with the Navy, up to and including the time of trial.
From 2013 to 2016, Husband was stationed in Indian Head, Maryland. During that time, Husband spent every fourth to sixth weekend at the family home. Wife and the children also
visited him in Indian Head. In January 2016, he disclosed to Wife that he had fathered a son with another woman.
That same year, Husband was transferred from Indian Head to Groton, Connecticut. He asked Wife to relocate to Connecticut, but she chose to remain in Maryland with the children. Husband was stationed in Connecticut from 2016 to July 2019.
From August 2019 to the date of trial, Husband was again stationed at Walter Reed. Returning to Maryland in 2019, he again told Wife he wanted a divorce and moved into the basement of the family home. He moved out of the marital home in June 2021.
B. Divorce Actions and Interim Order
In February 2021, while living in the basement of the family home, Husband filed for a limited divorce. Wife filed a counterclaim for divorce based on adultery and constructive desertion. Her requested relief included a monetary award, pension and survivor benefits, alimony, and attorney’s fees.
On October 7, 2021, the parties consented to the entry of a pendente lite order. Under the terms of that order, Wife was granted temporary possession of the marital home. In lieu of direct alimony payments to Wife, Husband was to pay the mortgage and insurance for the marital home, as well as installments of a home equity loan secured by the marital home.
Husband amended his complaint in June 2022 to request an absolute divorce based on a one-year separation. Wife filed an amended counterclaim, alleging that Husband had dissipated marital funds.
C. Trial
A two-day merits hearing was held in August 2022 on issues of marital property, alimony, and attorney’s fees. At the time of trial, Husband was 49 years old and Wife was 47 years old.
Husband’s Testimony
Husband testified to “growing pains” in the beginning of the marriage. He said that he did not think he was ready for marriage at that time, but that he had “tried to make the best of it[.]”
He admitted to extramarital relationships. The first was in 2000, while on a “boys trip” to Las Vegas. In 2010, he reconnected with the same woman, and a child was conceived at that time. Husband learned of the child in 2011 but he did not tell Wife until 2016. He began paying child support in 2016, after a paternity test confirmed that he was the father.
Husband had another extramarital affair when he was stationed in Norfolk, from 2009 to 2011. When he returned from that deployment, Wife discovered photographs of his paramour on his phone. Husband stated, “[t]hat’s when it led to, you know, this isn’t going anywhere[.]” He told Wife that he was not in love with her and that they needed to get divorced. Although he agreed to stay in the marriage, for the sake of the children, he “didn’t see the point.” In his opinion, “[t]here was clearly no trust and there was nothing that was going to be salvaged[.]” He said that continuing to work on the marriage was “okay for a while, but fundamentally what was driving [him and Wife] apart never got better.” When Husband was asked what he thought had driven them apart, he responded, “[d]ifferent directions, different focus on what was important. Material versus nonmaterial.”
When Husband returned to Maryland from Connecticut in August 2019, he decided that staying in the marriage was “pointless.” He moved into the basement of the marital home and “laid . . . out” a plan for the parties to “coexist” and “get [their] affairs together . . . so that everyone [would be] okay” when they divorced.
In June of 2021, Husband moved out of the marital home and into a one-bedroom apartment. That same month, he withdrew approximately $24,000 from an Ameritrade investment account in his name, leaving a balance of $2,085.67. He also withdrew approximately $19,000 from a Charles Schwab investment account in his name, leaving a balance of $25. Husband testified that he used those funds to pay off his credit cards and other “significant bills.” Except for a loan in her name that was used to purchase a car for their eldest daughter, he did not pay off Wife’s debts.
In the first seven months of 2022, Husband withdrew approximately $14,000 from his Ameritrade account, leaving it with a balance of $212.60. There was no evidence as to how those funds were used.
In May of 2022, Husband withdrew the balance of his Thrift Savings Plan retirement account. He split the proceeds with Wife, after deducting early withdrawal penalties from her share. She received approximately $12,000. Husband used half of his share to repair a daughter’s car.
When Husband’s lease expired, in June 2022, he moved in with his parents. He testified that he planned to move in with his girlfriend, whom we shall refer to as “N.”, who owned a house in Fredericksburg, Virginia. He would probably move in with N. in January 2023, when his posting at Walter Reed ended. Husband had started using N.’s address as his own on certain documents, including his Ameritrade account. N., who Husband said was “very self-sufficient[,]” had purchased the home in Fredericksburg in October 2021. Husband denied contributing funds toward the purchase of the Fredericksburg home and, as of the time of trial, he had no agreement to pay N. rent. Husband gave conflicting testimony regarding his future living arrangements on redirect examination, when his attorney asked him to update the expenses he had listed on the financial statement he had filed almost a year before trial. At the time of that filing, Husband claimed $1,851 per month in rent for his apartment. He testified that he “anticipated paying more” than that in the future, possibly as much as “[a] thousand dollars, maybe two, depending on the size of the domicile.”
According to Husband’s most recent Leave and Earnings Statement, his gross monthly income from the Navy was $18,473.82. Husband did not include any other income on his financial statement, but he testified that he had, since 2012, “moonlighted” at private health care facilities to supplement his Navy salary. On cross-examination, Wife introduced Husband’s bank statements showing that, in the seven-month period between November 2021 and June 2022, Husband had earned $60,347.20 in secondary income from DirectMDSource, and that, at the time of trial, he was still working for that company. She also introduced evidence showing that Husband had earned $100,203.00 in secondary income in 2017, and $73,722.62 in 2018.
Husband testified that he had decided “it was time” to retire from the Navy voluntarily because he was not advancing in rank. His retirement request was approved and he would retire effective January 1, 2023. Husband stated that he had not made any decisions about post-retirement employment, but he would continue to work for DirectMDSource after his retirement from the Navy, as long as shifts were available. He acknowledged that he was able work full-time in private practice.
Wife’s Testimony
Wife testified that Husband’s infidelity, which was “very hurtful[,]” was a “big piece” of what contributed to the estrangement of the parties. Wife stated that Husband’s increased use of alcohol also became an issue during the marriage. She said that alcohol had “altered who [Husband] is[,]” to the point where she “just do[es]n’t recognize” him.
Wife stated that she did not agree to Husband’s request for her to move to Connecticut in 2016 because she did not want to derail her career. She explained: “when you bounce around from place to place, you end up having to start all over.” In addition, she was concerned that the move would adversely affect the parties’ youngest child, who was in her last year of high school at that time and had struggled with mental health issues.
Wife viewed the marriage as “done” in 2020 or 2021. According to Wife, Husband had moved back into the marital home after returning from his post in Connecticut in 2019, but he “wasn’t willing to really settle into the relationship.” She was aware that he was seeing another woman.
At the time of trial, Wife was employed as a high school principal and earned approximately $162,000 per year. She testified to a personal student loan debt of approximately $24,000; and a credit card debt of approximately $27,000. She also had an outstanding car loan of $17,970 in her name that was used to purchase a car for the youngest child. Wife also owed $5,000 to her father, which she borrowed to pay attorney’s fees, and $3,400 in back taxes.2
According to Wife’s financial statement, which was filed three days before trial, her gross salary was $13,531 per month. She was at the top of her pay grade and would only receive cost-of-living increases in the future. Wife claimed expenses of $18,554.06 per month, which included the mortgage payment of $4,335.52 for the marital home, which Husband had been paying pursuant to the consent pendente lite order.
Evidence Regarding the Marital Home
In 2015, the parties built a 6,700 square foot home in Clarksburg, Maryland. In October 2020, Husband took out a $45,000 unsecured loan to pay off a higher-interest loan, the proceeds of which were used to complete the construction of a patio and walkway in the backyard of the marital home.
At the time of trial, the parties had entered into a contract for the sale of the marital home for the sum of $1.2 million dollars. There was an outstanding mortgage balance of approximately $770,000.
Closing Arguments
Husband requested that the court grant an absolute divorce based on a one-year separation. He asked the court to divide the proceeds from the sale of the marital home equally between the parties, and that Wife be ordered to contribute a “fair share” toward repayment of the $45,000 loan used for the patio and walkway.
Husband, arguing against an award of alimony, stated that Wife had the ability to meet her financial needs, and that her claimed expenses were unreasonable. He also claimed that, because of his imminent retirement from the Navy, he would not have the ability to pay alimony and meet his own needs. He argued that, in the absence of expert testimony regarding his earning capacity, the court should find that Husband’s income would drop to approximately $70,000, representing half of his Navy pension plus his year- to-date income from DirectMDSource. In his view, Wife had no need for assistance paying her attorney’s fees.
Wife argued that Husband had “depleted” investment accounts containing marital funds to pay down his debt, while she was left with a substantial amount of debt, which she was unable to pay off without assistance. She requested indefinite alimony or, in the alternative, a period of rehabilitative alimony so that she could “make . . . ends meet” during the transition from being married to being single. She further asserted that, although Husband testified that he had not decided whether he would seek additional employment to supplement his Navy pension, he was 50 years old, with 24 years of experience. Thus, “we certainly know what [Husband’s] capabilities are.”
Wife requested that Husband’s request for contribution toward repayment of the $45,000 loan be denied because the patio and walkway were Husband’s idea, and there was no evidence that they increased the value of the home. In addition, she requested an award of half of Husband’s Navy pension as well as a full survivor annuity.3 Wife’s counsel offered the court a proposed pension order prepared by an expert. Husband objected to the court’s receipt of the draft order because he had not reviewed it and the expert had not been called as a witness. The court overruled the objection, stating that Husband would be given time to consider the proposed order, and that the court would not sign an order that had not been approved by both parties. The court stated that, if the parties were unable to agree, it would hold a hearing for the parties to present expert testimony regarding the pension and survivor annuity.
D. Circuit Court’s Order and Opinion
After hearing closing arguments, the court took the matter under advisement. On November 16, 2022, the court issued a comprehensive memorandum opinion and order. In additionto granting Husband an absolute divorce, the order set forth findings and rulings regarding the division of marital property and Wife’s request for alimony and attorney’s fees.
Property Disposition
The court ordered that the proceeds from the sale of the marital home were to be split evenly between the parties. Husband would remain solely liable for the loan used to finance the patio project.
The parties’ joint bank account, which had a balance of $2,937.45, was split evenly between the parties. Husband retained ownership of banking and investment accounts in his name (or held jointly with N.) worth approximately $16,776.00. He also retained two vehicles with a combined value of $50,000. Wife retained bank accounts in her name worth $800. The court granted each party fifty percent of the marital share of the other party’s pension on an “if, as, and when basis.” In addition, Wife would be entitled to a survivor’s annuity based on Husband’s full retired pay.
Alimony
After weighing the statutory factors pertaining to an alimony award, the court awarded Wife rehabilitative alimony of $3,000 per month for a period of five years. The court based that award on the following findings: Wife is partly self-supporting. She is a principal of a high school . . . and earns $162,372 annually. She is at the top of the [Montgomery County Public School] pay scale and will only receive [cost of living] increases in the future. She is saddled with significant debt and has very limited liquid assets. . . . Wife’s financial statement indicates she has a deficit each month of at least $3,200.00 per month. After settlement on the sale of the marital home, Wife will incur a monthly housing expense of approximately $3,000.00. The [c]ourt is persuaded that at this time . . . there is a significant disparity in the parties’ incomes and ability to meet their needs.
As for Husband’s ability to pay alimony, the court found:
Husband earns approximately $221,686.00 per year as a Navy physician and anywhere between $50,000 and $113,000 moonlighting in private emergency care facilities. Further, he has access to several investment accounts. Husband asserted monthly expenses totaling $14,617.00 on his Financial Statement. Of his total monthly expenses, over $4,500.00 represented monthly costs for the marital home. He no longer bears this cost as the marital home sold. Further, he testified he is not paying rent and that he plans to move into his girlfriend’s house in the future. He offered no testimony as to what, if any, obligation he would have for a monthly housing expense when he does begin living with his girlfriend. The [c]ourt finds that Husband has sufficient income to support himself and pay alimony to Wife on a rehabilitative basis.
Attorney’s Fees
Finding that Husband was “well positioned” to do so, the court ordered Husband to contribute $20,000 to Wife’s attorney’s fees.
E. Pension/Annuity Order
On November 16, 2022, the same day that the judgment of divorce was entered, counsel for Wife emailed a proposed Constituted Pension Order to Husband’s attorney to review prior to submitting it to the court. On December 1, 2022, Wife filed the proposed order along with a line stating that the proposed order had been forwarded to Husband’s attorney and that
there had been no response. On December 12, 2022, Husband filed this appeal. On December 20, 2022, the court signed and entered a Constituted Pension Order, granting Wife, in addition to a survivor’s benefit based on Husband’s full retired pay, a percentage of Husband’s “disposable retired pay,” to be computed using the Bangs formula.4
F. Amended Judgment of Divorce
On December 2, 2022, based on a motion filed by Wife, the court issued an amended judgment of divorce that corrects the spelling of Wife’s first name in the caption, but is otherwise identical to the original judgment of divorce.
Additional facts pertaining to the presented issues will be added in our discussion of those issues.
STANDARD OF REVIEW
“When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence[,] . . . and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Md. Rule 8-131(c). On questions involving marital property and alimony, we do not set aside the trial court’s factual findings unless they are clearly erroneous. Solomon v. Solomon, 383 Md. 176, 196 (2004); Huntley v. Huntley, 229 Md. App. 484, 489 (2016). “‘If there is any competent evidence to support the factual findings [of the trial court], those findings cannot be held to be clearly erroneous.’” Solomon, 383 Md. at 202 (quoting Fuge v. Fuge, 146 Md. App. 142, 180 (2002)). “‘Competent evidence’ is simply evidence that is reliable and admissible.” Juliano v. State, 166 Md. App. 531, 540 (2006).
We review the ultimate decision to grant a monetary award or to award alimony for abuse of discretion. Reynolds v. Reynolds, 216 Md. App. 205, 222 (2014). “Under that lenient standard, the ruling ‘will not be reversed simply because the appellate court would not have made the same ruling.’” McAllister v. McAllister, 218 Md. App. 386, 400 (2014) (quoting North v. North, 102 Md. App. 1, 14 (1994)). “Instead, ‘[t]he decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.’” Id. (quoting North, 102 Md. App. at 14).
An award of attorney’s fees in family law cases is also reviewed 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)). To determine whether a court abused its discretion in awarding attorney’s fees, “we examine the court’s application of the statutory factors[5] to the unique facts of the case.” Id. (citing Petrini v. Petrini, 336 Md. 453, 468 (1994)). “We will not disturb a circuit court’s award of attorney’s fees ‘unless a court’s discretion was exercised arbitrarily or the judgment was clearly wrong.’” Id. (quoting Petrini, 336 Md. at 468).
DISCUSSION
I.
Monetary Award
“Under circumstances when the division of marital property by title is inequitable, the court may adjust the equities by
granting a monetary award.” Innerbichler v. Innerbichler, 132 Md. App. 207, 227 (2000). “Marital property” is defined as “property, however titled, acquired by 1 or both parties during the marriage.” FL § 8-201(e)(1).
Where a party in a divorce proceeding petitions for a monetary award, the court must engage in a three-step procedure. Reichert v. Hornbeck, 210 Md. App. 282, 361 (2013).
First, for each disputed item of property, the court must determine whether it is marital or non[-]marital. Second, the court must determine the value of all marital property.
Third, the court must decide if the division of marital property according to title will be unfair; if so, the court may make a monetary award to rectify any inequity[.]
Id. (quoting Innerbichler, 132 Md. App. at 228) (quotation marks and statutory citations omitted). “Failure to comply with the three-step process requires that any monetary award be vacated.” Quinn v. Quinn, 83 Md. App. 460, 464 (1990).
Husband contends that the court erred in determining the value of marital property. Specifically, he contends that the court erred by awarding a survivor’s annuity to Wife without evidence of the value and cost of the annuity. Husband further contends that the court erred by failing to adjust the value of the marital property to account for a home improvement loan in Husband’s name.
A. Survivor’s Annuity
“[T]he purpose of a survivor annuity benefit is to protect the named beneficiary financially in the event of the death of the employee.” Caldwell v. Caldwell, 103 Md. App. 452, 456 (1995). The right to a survivor annuity ‘“falls within the definition of marital property[,]”’ as it is ‘“incident to the marital relationship,”’ and ‘“analogous to the right to the pension benefits themselves[.]”’ Potts v. Potts, 142 Md. App. 448, 463 (2002) (quoting Pleasant v. Pleasant, 97 Md. App. 711, 725 (1993)).
“The decision to award survivor benefits is within the sound discretion of the trial court.” Id. at 462.
“[A] survivor annuity may be awarded ‘in conjunction with an “if, as and when” [pension] payment,’ although the court must determine how the ‘if, as and when’ award should be altered, if at all, to account for the costs of the survivor benefit.” Id. at 470 (quoting Pleasant, 97 Md. App. at 729). As this Court has explained:
The survivor benefit must be “purchased,” so when an employee makes that election, the monthly [pension] payments are generally lower than they would be if the employee elected to take payment over the course of his or her own life. This lowered monthly payment reflects the cost of the survivor benefit, and we have recognized that, in divorce cases, one of the parties must pay for this benefit. Thus, when the court orders the non-employee spouse to be named as “surviving spouse,” it must decide which party will pay for the benefit if the parties cannot otherwise agree.
Id. at 471 (internal citations omitted).
Because the court awarded Wife a survivor annuity without determining its value or who pays the costs, we must vacate the monetary award and remand to the circuit court for further proceedings.6 See Quinn, supra.
B. Home Improvement Loan
Husband contends that the court erred in ordering Husband to remain responsible for the $45,000 home improvement loan. He argues that the loan is marital debt, and that Wife should be responsible to repay half of it.
“[W]hen a court is required to determine the value of marital property, it must consider as marital debt an outstanding loan traceable to the acquisition of the property, even though the loan is not a lien on the property.” Zandford v. Wiens, 314 Md. 102, 104 (1988). In addition, marital debt includes “monies borrowed to make improvements to marital property—whether the borrowed funds that were utilized ultimately enhances the value of the marital property or not.” Lee v. Andochick, 182 Md. App. 268, 299 (2008). “[T]he value of th[e] marital property is adjusted downward by the amount of the marital debt” because “[t]hat part of marital property which is represented by an outstanding marital debt has not been ‘acquired’ for the purpose of an equitable distribution by way of a monetary award.” Niroo v. Niroo, 313 Md. 226, 239 (1988) (quotation marks and citations omitted).
Although the court found that the proceeds from the $45,000 loan in Husband’s name were used to finance improvements to the marital home, it did not account for the outstanding loan balance in determining the value of the marital property. On remand, the net value of the marital property should be reduced by the amount of the marital debt. Upon doing so, the court may make any equitable adjustment to the monetary award that it may believe necessary.
II. Alimony Award
Family Law Article, § 11-106(b) sets forth a non-exclusive list of twelve factors the court must consider in considering a party’s request for alimony.7 Husband contends that the trial court abused its discretion in awarding alimony because the award was based on clearly erroneous findings with respect to several of the statutory factors, which we shall address in turn.
A. Wife’s Ability to be Self-Supporting
(FL § 11-106(b)(1))
Husband claims that Wife has the ability to live “within her financial means” and that the court erred in finding that Wife was not self-supporting. He argues that the court should not have included “unreasonable” expenses claimed by Wife, including expenses for the soon-to-be-sold marital home; money spent on the parties’ adult children; car lease payments; and certain personal expenses.
As an initial matter, we note that the court expressly stated that it did not consider expenses claimed by Wife related to the marital home and the parties’ children. As for the remainder of the challenged expenses, we perceive no clear error in the court’s implicit finding of reasonableness.
B. Circumstances Contributing to the Parties’ Estrangement
(FL § 11-106(b)(6))
Husband contends that the trial court erred in “placing the cause of the parties’ estrangement” on his multiple extramarital affairs and use of alcohol. According to Husband, “it was [Wife]
who caused the parties to begin drifting apart” by refusing to “relocate with the children to reduce his financial and travel burden[,]” which “significantly contributed to the parties’ estrangement.” We perceive no clear error in the court’s finding that “Husband’s infidelity and use of alcohol are the primary reasons for the estrangement of the parties.”
C. Husband’s Ability to Meet His Needs While Meeting Wife’s Need for Alimony (FL § 11-106(b)(9)); and Financial Resources of the Parties (FL § 11 106(b)(11))
Husband claims that the court’s finding that he had the ability to pay alimony was erroneous. Specifically, he asserts that the court’s findings regarding his post-retirement income and future housing expenses were not supported by the record. In addition, he claims that the court erred in determining Wife’s salary, and in failing to account for Wife’s share of Husband’s pension.
Because the alimony award will be vacated and the case remanded for further findings, we need not address these contentions. To be sure, the parties’ respective financial situations will most likely have changed since the trial in August 2022. We note, for example, that Husband was scheduled to retire within a month and a half of the court’s November 16, 2022 memoran-
dum opinion and order. On remand, the trial court may receive evidence and make findings pertaining to the parties’ current financial situation. See Taylor v. Taylor, 306 Md. 290, 313 (1986) (observing that, on remand, the trial court “in the exercise of its discretion may receive additional evidence to supplement the existing record”); Long v. Long, 141 Md. App. 341, 353 (2001) (“On remand, the circuit court, in its discretion, may receive additional evidence.”). See also In re Homick, 256 Md. App. 297, 315-16 (2022) (holding that when this Court remands for “further proceedings,” the remand court does not exceed the scope of remand by hearing additional evidence, unless it is so limited by the remand mandate). The court may then make any adjustments in the alimony award that it deems fair and equitable.
III.
Attorney’s Fees
Husband contends that the trial court’s award of attorney’s fees is based on erroneous factual findings regarding the parties’ financial resources. The trial court, on remand, may reconsider the attorney’s fees award once decisions on the monetary award and alimony have been made.
MONETARY AWARD, ALIMONY AWARD, AND AWARD OF ATTORNEY’S FEES VACATED. CASE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. ALL OTHER PROVISIONS OF THE AMENDED JUDGMENT OF DIVORCE OTHERWISE AFFIRMED.
ALIMONY PROVISIONS AND CONSTITUTED PENSION ORDER TO REMAIN IN FORCE AND EFFECT AS A PENDENTE LITE ORDER PENDING FURTHER ORDERS OF THE CIRCUIT COURT. COSTS TO BE EVENLY DIVIDED BETWEEN THE PARTIES.
FOOTNOTES
1 According to Husband’s testimony at trial, the parties moved to Jacksonville in 2002. Wife testified that the move to Jacksonville took place in 2000.
2 Wife’s financial statement also included a liability for a “Dept. of Ed loan” in the amount of $23,189. It does not appear that there was any testimony explaining this entry.
3 Husband conceded that Wife was entitled to receive onehalf of his pension.
4 Bangs v. Bangs, 59 Md. App. 350, 368 (1984).
5 A court is authorized to award attorney’s fees to a party in a divorce action after considering (1) the financial resources and financial needs of both parties; and (2) whether there was substantial justification for prosecuting or defending the action. See FL §§ 7- 107 and 11-110.
6 Wife argues that Husband did not preserve his challenge to the award of a survivor annuity because he did not object to the proposed pension order that she submitted to the court. Husband responds that filing a notice of appeal was sufficient to preserve the issue for appellate review. We agree with Husband.
Husband objected at trial to Wife’s proposed pension order because he had not been given a chance to review it, and it was based on information that was not in evidence. The court stated that Husband would be given an opportunity to review the
proposed order, and that, if the parties did not agree, the court would hold an evidentiary hearing on the issue.
The proposed order was emailed to Husband’s attorney for review on November 16, 2022. On the same date, the court entered the original judgment of divorce, which included an award of survivor benefits. Husband noted a timely appeal from that judgment. Under these circumstances, Husband’s claim that the court failed to determine the value of the survivor annuity and apportion the costs of same was sufficiently preserved.
7 FL § 11-106(b) provides that, in determining the amount and duration of an award of alimony, the court “shall consider all the factors necessary for a fair and equitable award,” including:
(1) the ability of the party seeking alimony to be wholly or partly self-supporting;
(2) the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment;
(3) the standard of living that the parties established during their marriage;
(4) the duration of the marriage;
(5) the contributions, monetary and nonmonetary, of each party to the well-being of the family;
(6) the circumstances that contributed to the estrangement of the parties;
(7) the age of each party;
(8) the physical and mental condition of each party;
(9) the ability of the party from whom alimony is sought to meet that party’s needs while meeting the needs of the party seeking alimony;
(10) any agreement between the parties;
(11) the financial needs and financial resources of each party, including:
(i) all income and assets, including property that does not produce income;
(ii) any award made under §§ 8-205 and 8-208 of this article;
(iii) the nature and amount of the financial obligations of each party; and
(iv) the right of each party to receive retirement benefits; and
(12) whether the award would cause a spouse who is a resident of a related institution as defined in § 19-301 of the Health – General Article and from whom alimony is sought to become eligible for medical assistance earlier than would otherwise occur.
