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Maryland Family Law Update is a review of events as they affect the practice of domestic relations in law in the state of Maryland published by The Daily Record, 200 St. Paul Place, Suite 2480, Baltimore, Maryland 21202.
The laws of every jurisdiction may differ, and the facts are capable of many interpretations. The contents of this publication are not to be construed as legal advice and should not be acted upon without consulting an attorney. Letters selected for publication are subject to editing. Letters from litigants in pending cases or their representatives will not be accepted for publication until after their cases have been finally decided. Address letters and comments to Editor, Maryland Family Law Update, 200 St. Paul Place, Suite 2480, Baltimore, Maryland 21202. Maryland Family Law Update and The Daily Record Company are owned by Bridgetower Media.
3 Child Advocacy: The disparate treatment of Black children in foster care
During Black History Month, we celebrated the many current and historic accomplishments and contributions of African Americans, but it is important to acknowledge the injustices and inequalities that still exist in February 2025.
4 4 Cover Story: Attorneys: Irreconcilable differences now the go-to grounds
Most divorcing couples in Maryland are now filing on the grounds of irreconcilable differences, using an option made possible by the “no-fault” statute that took effect in October 2023, attorneys say. But here’s why the statute hasn’t changed the core way that attorneys practice.
6 In the News: Md. Appellate Court says de facto parent owes child support
In a case of first impression, the Maryland Appellate Court held that a de facto parent who asserts his or her rights to custody or visitation owes a corresponding duty to pay child support, subject to a best interest of the child analysis.
7 Morgan E. Foster: Is ‘amicable divorce’ really possible?
We have all heard the term “amicable divorce,” but few people ever describe their own divorce that way. There is always pain, grief, loss, fear, anger and shame –whether you are the one who chose to leave or whether it was thrust upon you. Divorce is never easy. But perhaps amicable doesn’t require easy.
8 Monthly Memo
A northern Virginia judge determined embryos are not property that can be divided up, rejecting a previous analysis by the court saying such fertilized eggs could be considered divisible “goods or chattel” based on 19th-century slave law. ... Carlos Reyes-Couvertier spent the past quarter century trying to find his missing daughter. There were multiple trips to Mexico, where police believed she was living after having been abducted by her mother. Years later, his prayers have been answered. … The North Dakota Senate earlier this month rejected a measure that would have asked the U.S. Supreme Court to overturn its landmark 2015 ruling that legalized same-sex marriage nationwide. … A Japanese high court on Friday ruled that Japan’s refusal to legally recognize same-sex marriage is unconstitutional, the latest victory for same-sex couples and their supporters seeking equal rights. … The acting head of the Social Security Administration has rescinded and apologized for an order that would have required Maine parents to register their newborns for Social Security numbers at a federal office rather than the hospital. 9
Family Law Digest
Child Advocacy
The disparate treatment of Black children in foster care
During Black History Month, we celebrated the many current and historic accomplishments and contributions of African Americans, but it is important to acknowledge the injustices and inequalities that still exist in February 2025.
Evidence of this continued disparate treatment can be found in the overrepresentation of African-American children in our foster care system, and their outcomes, as compared to white children in foster care.
With the enactment of the Adoption and Safe Families Act in 1997, child welfare agencies are required to submit data regarding children in foster care to the Adoption and Foster Care Analysis and Reporting System, including the number of children who enter and exit foster care each year, as well as basic demographic information, including race for each child.
“In 2000, African American/Black children represented 38% of the foster care population while they comprised only 16% of the general child population (i.e., ages 0 through 17), indicating a disproportionality index of 2.5…” i.e., these children were disproportionately represented in the United States’ foster care population at a rate of 2.5 times their rates in the general population, according to the National Council of Juvenile and Family Court Judges.
In Maryland, the disproportionality index of Black children in foster care in 2000 was 2.4, only slightly better than the national rate.
By 2015, the disproportionality index of Black children in foster care dropped to 1.9 in Maryland and 1.7, nationally.
Still, Black children populated the foster care system at a rate almost twice that of their rate in the general population, as compared to white children who populated the foster care system at disproportionality rates
SHANNON M.
WEAVER
Child Advocacy
of 0.6 in Maryland and 0.8 nationally in 2015 – i.e., white children were underrepresented in foster care as compared to their rates in the general population.
In 2021, Black children represented 14% of the total U.S. child population but 22% of all children in foster care, whereas white children represented 49% of the total child population, but 43% of those is foster care.
Despite the decline in the share of Black children in foster care over the last two decades, “Black children are still overrepresented among youth in foster care relative to the general child population.”
The statistics in Maryland are starker.
In 2022, Black children comprised almost 53% of the foster care population in Maryland, while representing only 30.6% of the general child population in the state.
However, white children, who comprised 39.4% of Maryland’s general child population in 2022, comprised only 27.3% of the state’s foster care population.
Further, once in foster care, Black children face “unequal outcomes at every stage of the child welfare system,” an American Bar Association report says. They are moved more often between placements and less likely to be reunified with their families than white foster children.
“Black youth also experience worse outcomes once they leave foster care — for example, 23 percent of Black youth who age out of foster care experience homelessness and 29 percent experience incarceration, far higher rates than for non-Black youth,” according to the ABA report.
In Maryland, Black foster children who are unable to reunify with their parents also achieve permanency through guardianship and adoption at a much lower rate their white counterparts.
In 2022, less than 15% of Black foster children in Maryland exited foster care and attained permanency through guardianship or adoption, despite accounting for 52.8% of the total foster care population.
In contrast, during the same year, 29.5% of white foster children achieved permanency through guardianship or adoption, despite comprising only 27.3% of Maryland’s foster care population.
The purpose of the child welfare system is to protect every child from abuse and harmful neglect. The laws pertaining to child welfare and their implementation must be applied equally, regardless of race or socioeconomic status.
Children should be removed from their parents only when necessary for their safety and welfare.
Timely and tailored reunification services must be provided to all families to enable equal opportunities for safe reunification.
When reunification is not possible, timely permanency through guardianship or adoption should be sought for all foster children.
Finally, for children who remain in long-term foster care, all additional appropriate services should be provided to prepare them for a successful transition out of foster care.
All those involved in the child welfare system must zealously advocate strict compliance with the applicable laws to ensure each foster child is provided with the protections to which she is entitled and the services to achieve a successful outcome.
Shannon M. Weaver is a supervising attorney at Maryland Legal Aid.
“What
Irreconcilable differences now the go-to grounds
By Hope Keller
Special to The Daily Record
Most divorcing couples in Maryland are now filing on the grounds of irreconcilable differences, using an option made possible by the “no-fault” statute that took effect in October 2023, attorneys say.
Before the statute took effect, divorcing couples had to live apart for a year or assert fault, such as adultery, desertion or cruelty of treatment. Under no-fault, the primary new grounds are a six-month separation and irreconcilable differences.
Mutual consent, a ground under
the previous statute, remains an option for couples, who create a written settlement agreement that resolves alimony, property distribution, custody and child support.
“I would say that with the 100 complaints that I’ve seen since the rules are in place, 100% of them have irreconcilable differences in the grounds,” said Mary Roby Sanders, a partner at Turnbull, Nicholson & Sanders in Towson. “It’s being used very frequently, and I think it is helping keep the temperature down on the complaints. You don’t get as much in the text of the complaint that is so upsetting to the other party.”
Continued Sanders: “I was not all hot to trot for the no-fault or the shortening of the waiting period because I find that people need an adjustment period from the time they decide to divorce to the time they actually go through the process. I found a year is generally a good time.”
In fact, Sanders said, it still takes eight to 12 months to get into court for a contested divorce.
“Even with no-fault grounds, it’s still going to take a year to get into court if it is going to be a contested divorce,” she said.
Monica Scherer, a senior partner at Silverman Thompson in Baltimore,
SUBMITTED PHOTO
I have found is the grounds for divorce have not necessarily changed,” said Monica Scherer, a senior partner with Silverman Thompson. “All of those emotional pieces” – such as adultery and abuse – “are still part of the divorce, it’s just that you can file for a divorce without having to put that in the complaint.”
said she considers the irreconcilable differences ground a “catch-all” that encompasses what were formerly considered faults.
“What I have found is the grounds for divorce have not necessarily changed,” Scherer said. “All of those emotional pieces” – such as adultery and abuse – “are still part of the divorce, it’s just that you can file for a divorce without having to put that in the complaint. The irreconcilable differences ground I find to be the catchall for what we would have formerly deemed a fault ground.”
Continued Scherer: “(The new statute) has not really changed the way we practice and the reason is that the things that were important or relevant for those fault grounds are still relevant and important factors that we have to contend with for alimony and a monetary award and things like that.”
Irreconcilable differences are cited by couples who don’t want to wait six months before filing for divorce, Scherer said.
“Those people are just filing on the irreconcilable ground because they don’t need to wait at all,” she said.
Plus, she added, “most people are probably able to come up with some irreconcilable differences.”
In a nod to economic realities, the new divorce statute allows couples who choose the six-month option to remain in the same dwelling, as long as they live separately – in separate bedrooms, with separate mealtimes and with separate bank accounts.
Scherer said the arrangement suits some couples.
“I’ve seen it work both ways,” she said. “Emotions rise, so going through a divorce and living in the same home when it is a highly contested situation. I’ve seen more protective orders. (But) if it’s a more amicable situation it’s fine because a lot of times they’re able to work through and we can oftentimes reach agreement.”
Another view
Christopher Castellano, a principal with Joseph Greenwald & Laake in
SUBMITTED PHOTO
“I don’t understand why it was necessary to have irreconcilable differences when you still need to state what those differences are” to determine alimony, monetary awards and child custody, said Christopher Castellano, a principal with Joseph Greenwald & Laake in Rockville. “The idea that it’s no-fault is somewhat illusory.”
Rockville, said that while he has yet to determine a pattern to filings, he rarely sees couples use the six-month separation ground.
“I see it to the extent that it’s included in addition to irreconcilable differences,” he said.
Castellano is not a fan of the nofault statute, saying it has resulted in a compressed time frame that can create additional friction between the parties and between their attorneys.
Before, he said, attorneys could engage in informal discovery that was less expensive for clients and less stressful for everyone. Now, he said, the situation is fraught right out of the gate.
“All of a sudden that willingness to
cooperate from both the attorney and the client kind of erodes really fast,” he said. “When the timetable is truncated, all of a sudden (you say), ‘Listen, I’ve got to issue this discovery now and so here’s my 110 documents requests and 30 interrogatories and by the way I want to schedule your client’s deposition.’”
Castellano takes particular issue with the irreconcilable differences ground.
“I don’t understand why it was necessary to have irreconcilable differences when you still need to state what those differences are” to determine alimony, monetary awards and child custody, he said. “The idea that it’s no-fault is somewhat illusory.”
In the News
Md. Appellate Court says de facto parent owes child support
Daily Record staff
In a case of first impression, the Maryland Appellate Court held that a de facto parent who asserts his or her rights to custody or visitation owes a corresponding duty to pay child support, subject to a best interest of the child analysis.
The opinion for the unanimous three-judge panel in McMorrow v. King was written by retired Justice Michele D. Hotten, sitting as a senior judge.
FACTS: Vernon King III and his now-deceased wife sued Katelyn McMorrow in 2018 for custody of, or in the alternative, for visitation with mother’s minor child, asserting de facto parent status. The circuit court found that they were de facto parents of the grandchild and awarded them liberal visitation.
In 2022, McMorrow sued in the circuit court to terminate their de facto parent rights. That court dismissed this complaint. Then, in 2023, mother filed another complaint against grandfather in the circuit court, seeking to terminate his de facto parent rights, or alternatively, for modification of custody and for child support. The court dismissed mother’s request to terminate de facto parent rights on res judicata grounds, ordered a slight modification of custody and denied mother’s request for child support.
LAW: De facto parent child support is an issue of first impression for this court. This court and the Supreme Court of Maryland have answered other important questions stemming from the court’s decision in Conover For example, in E.N. v. T.R., 474 Md. 346 (2021), the court clarified that under the first factor of the H.S.H.-K. test, both legal parents, if there are more than one, must consent to and foster a parent-like relationship with a third party to satisfy the test. 474 Md. at 394-95. And in Kpetigo v. Kpetigo,
THE DAILY RECORD/FILE PHOTO
“Grandfather claims that because he is a de facto parent, he can enjoy those same rights of custody and visitation, while simultaneously owing no corresponding duties of support. Such an outcome would be both illogical and inequitable,” wrote Justice Michele D. Hotten.
238 Md. App. 561 (2018), this court explained that de facto parent status is not limited to divorcing same-sex spouses. 238 Md. App. at 574.
This case presents an opportunity for this court to address another important question stemming from Conover: whether de facto parents owe their “de facto children” a legal, statutory obligation of support.
Few states have considered whether de facto parents may be obligated to pay child support, but one state has specifically addressed the question. In Pitts v. Moore, 90 A.3d 1169 (Me. 2014), the Supreme Judicial Court of Maine held that “once the court finds that a party is a de facto parent, that party is a parent for all purposes, and the court must then go on to consider the appropriate award of parental rights and responsibilities—including child support[.]” 90 A.3d at 1182.
The court arrived at this conclusion because in Maine, “[a] determination that a person is a de facto parent
means that he or she is a parent on equal footing with a biological or adoptive parent, that is to say, with the same opportunity for parental rights and responsibilities.” Id. at 1181 (emphasis added). Importantly, the Supreme Judicial Court of Maine made this decision despite the fact that, as in Maryland, Maine’s “Legislature has yet to speak about de facto parenthood[.]” Id.
De facto parents in Maryland enjoy similar custody and visitation rights as de facto parents in Maine. For example, this court has held that “[d]e facto parent status effectively elevates a third party to equal footing with biological parents for the purpose of determinations of custody and visitation[.]” David A., 242 Md. App. at 27 (emphasis added). Additionally, because a de facto parent has equal rights to custody and visitation as a legal parent, a de facto parent also has equal rights to attorney’s fees and costs in such proceedings. Id. at 28. Thus, de facto parents have the same powers in relation to children as legal parents.
Here, grandfather attempts to reap the benefits of his de facto parent status without incurring any of the costs. It is clear that in Maryland, biological and adoptive parents have rights to custody and visitation with their children, but also owe their children corresponding duties of support. Grandfather claims that because he is a de facto parent, he can enjoy those same rights of custody and visitation, while simultaneously owing no corresponding duties of support. Such an outcome would be both illogical and inequitable. Therefore, we hold that a de facto parent who asserts his or her rights to custody or visitation owes a corresponding duty to pay child support, subject to a best interest of the child analysis.
Judgment of the Circuit Court for Washington County affirmed in part and reversed in part.
Is ‘amicable divorce’ really possible?
We have all heard the term “amicable divorce,” but few people ever describe their own divorce that way. There is always pain, grief, loss, fear, anger and shame – whether you are the one who chose to leave or whether it was thrust upon you. Divorce is never easy. But perhaps amicable doesn’t require easy.
The dictionary defines “amicable” as “characterized by friendliness and absence of discord.” Even the lowestconflict divorces are never truly “amicable” – there is always some amount of discord and perhaps “civil” is a better way of describing behavior during low-conflict divorces (rather than “friendly”).
So what does a good divorce look like? And how can someone increase the odds of having one?
The first key characteristic of a “good divorce” is efficiency. Divorce requires an immense –often overwhelming – amount of energy. The mental and emotional “processing” alone feels like a fulltime job, not to mention the logistical challenges of dividing a household –and managing the emotions of others (children, friends, family members).
Often these cumbersome tasks are undertaken while still working full time and raising children. There is no maternity or bereavement leave for divorce. Life just keeps going. It’s exhausting – even in the best of circumstances.
So, a key component of a “good divorce” is one that allows the parties to focus their energy on building their next chapter and addressing the necessary challenges of divorce. A good divorce is one where there is minimal extra energy wasted on vitriol and conflict.
The second hallmark of a “good divorce” is one where the parties are willing to share responsibility and work together to bring about the changes necessary to divide their lives
and end their romantic relationship. Fault or causation for divorce is never one-sided. Even if one person is leaving their spouse for a new partner, there were always relationship “issues” that predated the affair – ones that often went neglected or overlooked by both members of the couple.
There is always plenty of blame to go around.
It is not necessary to agree on who or precisely what was responsible for ending the marriage in order to have a good and productive relationship through and after divorce (and often it takes months or years of reflection to identify the true origins of why the relationship ended). However, divorce negotiations are always more productive if each party is willing to take responsibility for – if not how they got here – at least what happens next.
The third hallmark of a “good divorce” is one where conversations are future-focused (looking forward not back). Many couples want to relitigate the issues that plagued their marriage. They want to prove once and for all that they were “right” or
to get that long-awaited apology. That probably won’t ever happen.
Divorce happens when the two parties’ perspectives are so misaligned that they cannot continue as a couple. Divorce is not a time to seek alignment on past events – it is a time to accept that you may never be aligned on the past. Keeping negotiations future-focused provides maximum opportunity to reach agreement.
For example, instead of focusing on why Spouse A traveled so much for work during the marriage (missing sports games and other childrelated events), a more productive conversation is focused on how Spouse A can show up for the children during their custodial time going forward. The first problem is unfixable (it’s in the past) – the second problem IS fixable, especially if Spouse B is willing to help support Spouse A in being the best parent he/she can be.
Finally, in order for divorce (and later co-parenting) to be “good,” both sides need to understand and appreciate the cost of conflict (the mental, emotional and physical toll it takes on individuals and families) –and to place real value on peace. The greatest skill one can possess through this process is a willingness to “let go” – a willingness to place a healthy co-parenting relationship above being “right” – to accept that you can still love someone even if you don’t agree.
A “good” divorce is one where the scars heal and leave us stronger, where we are able to find the forgiveness and acceptance that ultimately allows for growth.
This article is dedicated to my best friend and ex-husband Tom, who reminds me daily that divorce can be a beginning as well as an end.
Morgan E. Foster is a veteran family law practitioner and the founder of The Pivot Process. She can be reached at morgan@pivotprocess.com.
Morgan E. Foster
Monthly Memo
Judge: Frozen embryos not divisible property in case against ex-husband
A northern Virginia judge determined embryos are not property that can be divided up, rejecting a previous analysis by the court saying such fertilized eggs could be considered divisible “goods or chattel” based on 19th-century slave law.
Nearly 10 months after closing arguments, Fairfax Circuit Court Judge Dontaè L. Bugg wrote in an opinion letter earlier this month that he would dismiss a cancer survivor’s partition lawsuit against her ex-husband — a legal action that one property owner can take against another. The former wife, Honeyhline Heidemann, sued Jason Heidemann over access to two embryos they froze during a 2015 cycle of in vitro fertilization but agreed to leave in storage during their divorce three years later.
In the bench trial, Honeyhline Heidemann testified the embryos were her last chance to conceive another biological child after a cancer treatment. Jason Heidemann’s attorney argued he did not want to become a biological father to a child by force, even if he wasn’t required to be a parent.
The dispute attracted national attention in 2023 when Judge Richard E. Gardiner — who is no longer assigned to the case for unrelated reasons — referenced slavery-era law when overruling Jason Heidemann’s pleading that the state’s partition statute did not include the embryos. Bugg wrote in his March 7 letter that he took issue with Gardiner’s reliance on state law predating the passage of the 13th Amendment of the U.S. Constitution abolishing slavery.
Associated Press
Child illegally taken by mother to Mexico in 1999 is found
Carlos Reyes-Couvertier spent the past quarter century trying to find his missing daughter. There were multiple trips to Mexico, where police believed she was living after having been abducted by her mother. Local and federal authorities worked the case, while national missing person groups helped with publicity pleading for information.
Andrea Reyes was nearing her second birthday in 1999 when her mother, Rosa Tenorio, who did not have custody rights,
illegally fled with the girl from a scheduled visitation in New Haven, Connecticut, police said.
The search for Reyes went cold, but Reyes-Couvertier never gave up hope. Years later, news finally came: A detective who had renewed the investigation in 2023 discovered that Reyes, now 27, was living in Mexico, and DNA testing would confirm they were father and daughter.
Now the two are hoping to meet in-person soon after talking on the phone and messaging.
Associated Press
N.D. Senate rejects resolution seeking to overturn same-sex marriage ruling
The North Dakota Senate earlier this month rejected a measure that would have asked the U.S. Supreme Court to overturn its landmark 2015 ruling that legalized same-sex marriage nationwide.
A vote to approve would have made North Dakota the first state to make such an overture to the high court, after the state House passed the measure last month.
The resolution failed in a 16-31 Senate vote after about 10 minutes of debate.
Several people in the gallery applauded when the measure’s defeat was announced.
Massachusetts-based MassResistance pushed the measure and ones in other states. The group called itself an “international pro-family group.” But it has been labeled an “anti-LGBTQ hate group” by the LGBTQ+ advocacy organization GLAAD.
Associated Press
Japan’s refusal to recognize same-sex marriage is unconstitutional, court finds
A Japanese high court on Friday ruled that Japan’s refusal to legally recognize same-sex marriage is unconstitutional, the latest victory for same-sex couples and their supporters seeking equal rights.
The decision by the Nagoya High Court, in central Japan, marks the ninth victory out of 10 rulings since the first group of plaintiffs filed lawsuits in 2019.
The decision was also the fourth high court ruling in a row to find the current government policy unconstitutional, after similar decisions in Tokyo, Fukuoka and Sapporo.
After a fifth court ruling expected later in Osaka, the Supreme Court is expected to handle all five appeals and make a decision.
The Nagoya court said Friday that not allowing same-sex couples the legal right to marry violates a constitutional guarantee of equality. The court also upheld the right to individual dignity and the essential equality of both sexes.
Associated Press
Maine babies back to getting Social Security numbers in hospital
The acting head of the Social Security Administration has rescinded and apologized for an order that would have required Maine parents to register their newborns for Social Security numbers at a federal office rather than the hospital.
The order drew widespread condemnation from medical organizations and public officials who described it as unnecessary and punitive. The practice of allowing parents to register a newborn for a Social Security number at a hospital or other birthing site, called the Enumeration at Birth program, has been common for decades.
Acting Commissioner Leland Dudek said he recently directed Social Security employees to end an Enumeration at Birth contract for Maine. He said he will “admit my mistakes and make them right” by reinstating the contract.
“In retrospect, I realize that ending these contracts created an undue burden on the people of Maine, which was not the intent,” Dudek said in a statement.
The confusion over Social Security in Maine is the latest example of a bumpy cutback rollout amid President Donald Trump’s bid to shrink the size of government.
The confusion came as Trump’s Department of Government Efficiency is targeting federal agencies for layoffs and cutbacks. Some of those cutbacks have affected the Enumeration at Birth program.
The DOGE website shows the cancellation of contracts related to Enumeration at Birth in five states and the Northern Mariana Islands. The five states listed are Arizona, Maryland, Michigan, New Mexico and Rhode Island. Maine is not listed.
Associated Press
Family Law Digest
Use the topic and case indexes at the back of this issue to find the full-text opinions that are of most interest to you.
IN THE COURT OF SPECIAL APPEALS: FULL TEXT UNREPORTED OPINIONS
The Appellate Court vacated the Montgomery County Circuit Court’s termination of father’s use and possession of the family home. Under FL § 8-210, when a provision concerning use and possession of a family home terminates, a court is required to adjust the equities and rights of the parties, which the court here failed to do.
The Appellate Court affirmed the Montgomery County Circuit Court’s change in permanency plan from mother to adoption by grandparents. The court properly considered the best interests of the minor child and each of the statutory factors in deciding to modify the child’s permanency plan.
The Appellate Court vacated the Calvert County Circuit Court’s award of 21 overnight days of the two minor children to father, after finding mother unjustifiably denied father access with children under the terms of the marital separation agreement. Though the court found, generally, that it was in the best interests of the children to spend time with both their parents, it made no findings that the grant of three weeks of make-up overnight access to father was in their best interests.
The Appellate Court vacated the Montgomery County Circuit Court’s monetary award analysis. And because the court’s determinations as to alimony, child support, monetary awards and counsel fees involve overlapping evaluations of the parties’ financial circumstances, it vacated the remainder of the judgment.
The Appellate Court vacated the Baltimore County Circuit Court’s termination of mother’s parental rights of two minor children. Although the court, in its oral ruling, considered the factors outlined in Md. Code Ann., Family Law Article, Section 5-323 and explained its reasoning for those findings, it failed to address those findings, or any other considerations that led to its conclusion regarding exceptional circumstances. The court’s ruling also did not expressly state how any exceptional circumstances would make a continuation of the parent-child relationship detrimental to the best interests of the child.
Family Law Digest
PHYSICAL AND LEGAL CUSTODY; REQUISITE FACTORS; BEST INTERESTS
Shane A. Shorter v. Sara R. Gibbons
No. 975, September Term 2024
Argued before: Graeff, Berger, Zic, JJ.
Opinion by: Graeff, J.
Filed: Jan. 21, 2025
The Appellate Court affirmed the Anne Arundel County Circuit Court’s award of sole legal and primary physical custody of the minor child to mother. The court thoughtfully and thoroughly analyzed all the requisite factors in determining that an award of primary physical custody to mother was in the best interest of the minor child.
The Appellate Court affirmed the Allegheny County Circuit Court’s monetary award of $38,521.72 to wife, along with a 20 percent interest in husband’s retirement account. Wife’s informal brief did not explain why the trial court erred or made a mistake in deciding the case.
The Appellate Court affirmed the Worcester County Circuit Court's termination of mother's parental rights as to her then two-year-old daughter. The Worcester County Department of Social Services presented evidence of mother's substance abuse, unstable mental health condition and history of child neglect.
The Appellate Court affirmed the Baltimore City Circuit Court’s termination of mother’s parental rights. The court’s fact-findings were not erroneous, and it appropriately concluded that exceptional circumstances exist in this case that made continuing the parental relationship detrimental to the child.
The Appellate Court affirmed the Prince George’s County Circuit Court’s order that mother refrain from using corporal punishment as a disciplinary method against her child. The circuit court properly considered the totality of the circumstances surrounding mother’s use of corporal punishment when assessing whether it was reasonable.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Montgomery County Circuit Court’s termination of father’s use and possession of the family home. Under FL § 8-210, when a provision concerning use and possession of a family home terminates, a court is required to adjust the equities and rights of the parties, which the court here failed to do.
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..
would receive “[the] Family Home located at 5924 Avon Drive, Bethesda, MD, 20814 . . . from date of divorce.” Under the terms of the parenting plan, the parties agreed to “jointly make major decisions about the [C]hild” and to “jointly agree on the parenting schedule depending on circumstances at the time in [the Child’s] best interest.” In addition, the parties agreed that, in the event of a dispute related to the parenting plan, they would “attend at least 5 mediation session(s) before asking the court to intervene.”
This is an appeal from a judgment, entered in the Circuit Court for Montgomery County, modifying a custody arrangement between Reginald Taylor (“Father”) and Renee Taylor (“Mother”) and terminating Father’s use and possession of the family home. Father, appellant, presents two questions for our review. For clarity, we have rephrased those questions as:
1. Did the circuit court err or abuse its discretion in denying Father’s request for mediation?
2. Did the circuit court err or abuse its discretion in terminating Father’s use and possession of the family home?
As to question 1, we hold that the circuit court did not err or abuse its discretion in denying Father’s request for mediation. As to question 2, we hold that the court erred in terminating Father’s use and possession of the family home. Accordingly, we affirm in part and reverse in part the court’s judgment, and we remand the case for further proceedings consistent with this opinion.
BACKGROUND
Mother and Father were previously married. One child (the “Child”) was born during the marriage.
In October 2022, Father filed for absolute divorce. Around that same time, the parties executed two documents: a marital settlement agreement (“MSA”) and a parenting plan. Under the terms of the MSA, Father would receive “[u]se and possession of the family home and family personal property at no cost for up to six (6) years from the date of divorce[,]” while Mother
On January 19, 2023, the circuit court entered a judgment of absolute divorce. In that judgment, the court incorporated, but did not merge, the MSA and the parenting plan. In October 2023, Mother filed a “Complaint for Modification of Custody, Dissolution of Use and Possession Provision, and Other Relief.” The following month, Mother filed an amended complaint. In that amended complaint, Mother alleged that, in executing the MSA, the parties had agreed to continue to reside together in the family home following the divorce for the benefit of the Child. Mother alleged that, in October 2023, Father remarried, at which point Father’s new wife and eight-year-old step-daughter had moved into the family home with Father, Mother, and the Child. Mother alleged that, around that same time, Father had demanded that Mother vacate the family home, which was now titled solely in Mother’s name, per the terms of the MSA. Mother asked that the court terminate or dissolve the use and possession provision of the MSA. Mother also asked that she be awarded primary physical custody and sole legal custody of the Child. Mother stated that she and Father had been unable to jointly agree on a parenting schedule.
Shortly after the filing of Mother’s amended complaint, Father filed a “Motion for Mediation and Dismissal of Complaint.” Regarding Mother’s request for custody, Father noted that the parties had agreed to attend at least five mediation sessions before asking the court to intervene in a dispute as to custody of the Child. Father requested, therefore, that the court order the parties to attend mediation. As to Mother’s claims regarding the family home, Father asserted that those claims should be dismissed because he vacated the home on November 13, 2023.
Mother thereafter filed a response to Father’s motion, arguing that, although Father had vacated the family home, Mother was still seeking termination or dissolution of the use and possession provision in the MSA “so that Father cannot return to the family home.” As to Father’s request for mediation, Mother proffered that she had, on multiple occasions, attempted to coordinate a mediation schedule with Father but that Father had rebuffed those efforts. Mother also included, as an attachment, an email sent from Father to Mother in September 2023 in which
Father stated that he was not interested in attending mediation sessions with Mother.
In December 2023, the court entered an order denying Father’s “Motion for Mediation and Dismissal of Complaint.”
The following month, Father filed a “Counter-Petition to Modify Custody.” Father asserted that the purpose of the use and possession provision was to afford him “a residence for a period of 6 years without cost” and that he “forewent his claim to the sizeable share of the equity in the home in exchange for this bargained period of use and possession[.]” Father stated that, since he remarried, Mother had refused to allow him use and possession of the family home, which violated the MSA, and that he had been forced to move to a different location. Father asserted that he and Mother could no longer agree on custody decisions and that a more concrete custody arrangement was necessary. Father noted that he “now lives with his new spouse at another location” and that he was in the process of purchasing a new home in Virginia, where he planned to move with his new spouse and step-daughter. Father asked that he be awarded primary physical custody and tie-breaking authority as to all legal custody decisions.
In May 2024, the circuit court held a hearing, at which the parties presented evidence and argument with respect to their various claims. As to the use and possession issue, Father argued that, in executing the MSA, he had bargained for exclusive use and possession of the family home for six years in exchange for relinquishing his share of the marital portion of the home. Father argued that the court did not have the authority to modify that provision. Mother countered that a use and possession provision automatically terminates when the party remarries, which Father did in October 2023. Mother also noted that the court could modify the use and possession provision if doing so would be in the best interest of the Child. Mother insisted that allowing Father to have use and possession for the entire six-year term would create a hostile environment for the Child.
In the end, the circuit court granted Mother’s request to terminate Father’s use and possession of the family home. The court found that, although Father had characterized the use and possession provision as a contractual bargain, “[t]he plain language of the agreement is use and possession.” The court explained that the primary purpose of a use and possession provision was to permit a child to live in a familiar environment following a divorce. The court concluded that “it is clear from the action and words of the parties that they understood the concept” and that “they intended that the [C]hild’s life would not be disrupted, even though their marriage had gone through dissolution.” The court found that the parties’ initial plan of living together in the family home for six years became untenable once Father remarried. The court found that it was no longer in the Child’s best interest that Father be allowed to have continued use and possession of the family home.
As to the custody issue, the court considered the requisite factors and found that it was in the Child’s best interest that Mother be given primary physical custody, with Father having visitation pursuant to an access schedule. The court ordered that the parties were to share legal custody.
This timely appeal followed. Additional facts will be supplied as needed below.
STANDARD OF REVIEW
Appellate review of a trial court’s decision regarding child custody involves three interrelated standards. J.A.B. v. J.E.D.B., 250 Md. App. 234, 246 (2021). First, any factual findings are reviewed for clear error. Id. Second, any legal conclusions 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 J.J., 231 Md. App. 304, 345 (2016) (citation and quotation marks omitted). “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.” Id. (citations and quotation marks omitted).
DISCUSSION I. Parties’ contentions
Father first argues that the circuit court erred in denying his request to enforce the provision of the parenting plan in which the parties agreed that they would “attend at least 5 mediation sessions before asking the court to intervene.” Father notes that, under Maryland Rule 9-205, a court is required to order mediation if the court concludes that mediation is appropriate and likely to be beneficial to the parties or the child. Father asserts that, by incorporating the parenting plan into the judgment of absolute divorce, the court had already determined that mediation was appropriate. Father contends that the court was therefore required to order mediation. Father also contends that the court’s refusal to enforce the parenting plan’s mediation provision had “the same effect of rewriting the contract,” which was improper.
Mother asserts that the court’s decision was not erroneous. Mother argues that ordering mediation would have been a waste of judicial resources given Father’s documented reluctance to schedule mediation and the parties’ clear inability to resolve custody disputes absent court involvement.
Analysis
Maryland Rule 9-205 is applicable “to any action or proceeding under this Chapter in which the custody of or visitation with a minor child is an issue, including . . . an action to modify an existing order or judgment as to custody or visitation[.]” Md. Rule 9- 205(a)(1)(B). Under that rule, “[p]romptly after an action subject to this Rule is at issue, the court shall determine whether . . . mediation of the dispute as to custody or visitation is appropriate and likely would be beneficial to the parties or the child[.]” Md. Rule 9- 205(b)(1)(A). “If the court concludes that mediation is appropriate and likely to be beneficial to the parties or the child and that a qualified mediator is available, it shall enter an order requiring the parties to mediate the custody or visitation dispute.” Md. Rule 9- 205(b)(3).
We hold that the circuit court did not err or abuse its discretion in refusing Father’s request for mediation. The court’s decision to deny Father’s request came “promptly” after Mother
filed her complaint for modification of custody and Father filed his motion for mediation. When that decision was made, it was clear from the parties’ pleadings that mediation was unlikely to be beneficial to the parties or the Child. Thus, the court was under no obligation to order mediation pursuant to Maryland Rule 9-205.
Moreover, the court’s obligation pursuant to Maryland Rule 9-205 was not triggered simply because the court may have tacitly acknowledged the appropriateness of mediation when it entered the judgment of absolute divorce nearly one year prior. Although mediation may have been appropriate at that time, the parties’ circumstances had changed drastically between when the parenting plan was accepted by the court and when the court denied Father’s request for mediation. Father’s suggestion that the court was somehow bound by its prior determination is without merit. See Caldwell v. Sutton, 256 Md. App. 230, 270 (2022) (“[R]econsideration of custody orders generally should focus on changes in circumstances which have occurred subsequent to the last court hearing.” (citation and quotation marks omitted)).
We likewise find no merit to Father’s suggestion that the court lacked the authority to “rewrite” the mediation provision of the parties’ parenting plan. Section 8-103 of the Family Law Article of the Maryland Code (“FL”) states, in pertinent part, that a court “may modify any provision of a deed, agreement, or settlement with respect to the care, custody, education, or support of any minor child of the spouses, if the modification would be in the best interests of the child.” FL § 8-103(a). Because the provision at issue here related to the care and custody of the Child, the court was empowered to modify that provision if doing so would be in the best interests of the Child. Under the circumstances, we cannot say that the court abused its discretion in refusing to enforce the mediation provision of the parties’ parenting plan.
II.
Parties’ contentions
Father next claims that the circuit court erred in terminating his use and possession of the family home. Father notes that, under FL § 8-210, when a provision concerning use and possession of a family home terminates, a court is required to adjust the equities and rights of the parties. Father asserts that the court failed to comply with that statute.
Mother contends that Father’s use and possession of the family home automatically terminated upon his remarriage. Mother notes that Father deeded the property to her following dissolution of the marriage and that, since that time, she has taken care of all necessary expenses related to the home. Mother asserts, therefore, that any issues concerning the family home have been resolved.
Analysis
When a divorce is granted, “the court may determine which property is the family home and family use personal property[.]” FL § 8-207(a). In so doing, “the court may: (i) decide that one of the parties shall have the sole possession and use of that property; or (ii) divide the possession and use of the property between the parties.” FL § 8-208(a)(1). The purpose behind those powers is to enable a child to continue living in a familiar environment following a divorce and to provide continued occupancy of the home to a parent who has custody of the child and has a need to live in that home. FL § 8-206. When a use and possession provision is made part of a final order or decree, that provision is subject to modification or dissolution by the court. FL § 8-209. In addition, a court has the power to modify any provision of a marital settlement agreement “with respect to the care, custody, education, or support of any minor child of the spouses, if the modification would be in the best interests of the child.” FL § 8-103(a). Finally, [w]hen a provision that concerns the family home or family use personal property terminates, the court shall treat the property as marital property if the property qualifies as marital property, and adjust the equities and rights of the parties concerning the property as set out in § 8-205 of this subtitle.
FL § 8-210(c).
Here, the record makes plain that the provision in the MSA granting Father use and possession of the family home was considered, accepted, and enforced by the court as a “use and possession” provision pursuant to the statutory authority outlined above. As such, when that provision was terminated, the court was required to “treat the property as marital property if the property qualifies as marital property, and adjust the equities and rights of the parties concerning the property as set out in § 8-205 of this subtitle.” FL § 8-210(c). The court failed to do so, and that failure constituted an abuse of discretion. See Mitchell v. Hous. Auth. of Balt. City, 200 Md. App. 176, 205 (2011) (“The failure to exercise discretion when its exercise is called for is an abuse of discretion.” (citation and quotation marks omitted)). We therefore must reverse that portion of the court’s judgment and remand the case so that the court can exercise its discretion pursuant to FL § 8-210(c). In so doing, we note that Father, in executing the MSA, agreed to relinquish to Mother his marital share of the family home in exchange for use of possession of the family home for six years. That bargainedfor exchange was curtailed when the court terminated the use and possession provision before the end of the agreed-upon term. The court should be mindful of that when adjusting the equities and rights of the parties pursuant to FL § 8- 210(c).
JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED IN PART AND REVERSED IN PART; CASE REMANDED FOR FURTHER PROCEEDINGS
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Montgomery County Circuit Court’s change in permanency plan from mother to adoption by grandparents. The court properly considered the best interests of the minor child and each of the statutory factors in deciding to modify the child’s permanency plan.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
unresponsive[.]” G.B. was found to have an intracerebral hemorrhage which, because apparently there was no history of trauma and because G.B. and Mother had tested positive for Herpes Simplex Virus antibodies, was determined to be “most likely due to Herpes Sim[]plex Virus encephalitis.” Despite “intensive antibacterial and antiviral therapy[,]” G.B. died at six weeks of age. Although G.B.’s autopsy indicated “several healing rib fractures” noted as “concerning for non-accidental traumatic injury[,]” his cause of death was determined as “natural” from “[m]ulticystic encephalopathy, consistent with the clinical impression of herpes simplex virus infection.”
Ms. B. (“Mother”) appeals the Circuit Court for Montgomery County’s order awarding a change in permanency plan for her daughter, A.B., to A.B.’s maternal grandfather (“Grandfather”) and step-grandmother (“Grandmother”). On appeal, Mother presents three questions for our review, which we rephrase and reorder as follows:1
I. Did the court err in modifying A.B.’s permanency plan?
II. Did the court err in failing to grant Mother unsupervised visitation with A.B.?
III. Did the court err in finding that the Department of Social Services had made reasonable efforts towards reunification?
For the reasons set forth herein, we answer each question in the negative, and shall affirm the judgment of the circuit court.
BACKGROUND
A.B. was born in Hawaii to Mother and husband Mr. H. (“Father”), two active- duty Air Force members, on July 3, 2017. When A.B. was nine days old, she was brought to the hospital due to seizures, where she was discovered to have a fractured skull, intracranial hemorrhages, rib fractures, and facial bruising. Father explained that two days prior, he was holding A.B., lost his balance, and “over corrected[,]” causing A.B.’s face to hit his shoulder. A.B. was found critically ill and at “imminent risk for death” and was intubated and sedated. Her injuries were noted as “highly concerning for non-accidental trauma.” The Hawaii Department of Human Services (“DHS”) assumed temporary custody of A.B.
A.B.’s injuries initiated an investigation into the death of her infant brother, G.B., who had died one year earlier with similar injuries. Prior to his death, Mother and Father brought G.B. to the hospital claiming that he had become “limp and
Re-examination of G.B.’s death following A.B.’s injuries resulted in several findings, including that “testing for herpes simplex virus DNA were all negative[,]” that “examination of the eyes revealed numerous retinal hemorrhages” and that there were additional rib fractures “not identified at autopsy.”
On December 8, 2017, G.B.’s manner of death was amended to homicide from “blunt force injuries of the head[.]” Mother and Father were charged with the death of G.B. and for injuries to A.B. pursuant to the Uniform Code of Military Justice. In February 2020, Father was convicted of child endangerment and aggravated assault of A.B. by a military court martial, dishonorably discharged from the military, and sentenced to three years’ confinement. In October 2020, Mother was acquitted on all charges.
Meanwhile, A.B. remained in DHS custody. On July 25, 2017, A.B. was released from the hospital to resource caregivers who were, at the time, friends of Mother and Father. Although Mother and Father initially maintained daily contact with A.B., their relationship with A.B.’s caregivers became “strained[,]” and in June 2018, A.B. was relocated to a second foster home. Finally, in November 2018, when A.B. was 16 months old, she was placed with Grandfather and Grandmother (collectively, “Grandparents”) in Montgomery County, Maryland.
Thereafter, Mother’s visits with A.B. primarily occurred virtually, however, from October 2020 to February 2021, for reasons unclear from the record, Mother had no contact with A.B. or Grandparents. In February 2021, the Hawaii DHS initiated virtual contact between A.B. and Mother. Although visits between A.B. and Mother were to be held weekly, the visits were described as “sporadic” due, in part, to Mother cancellingvisits. In August 2021, Mother moved to Maryland, and virtual visits between Mother and A.B. continued.
In March of 2022, A.B.’s case was transferred from Hawaii to the Circuit Court for Montgomery County. The Circuit Court for Montgomery County held permanency planning hearings in June 2022, November 2022, April 2023, October 2023, and December
2023, where A.B.’s permanency plan remained reunification.2
In May 2024, however, the Department of Social Services (the “Department”) filed a report recommending that A.B.’s permanency plan be changed to adoption by Grandparents. Within the report, the Department noted continued concerns regarding “bonding and attachment issues” between Mother and A.B. and Mother’s “judgment and the level of involvement” with Father. The Department also asserted that since the last permanency planning hearing, Mother had shown A.B. a picture of Father since the last permanency planning hearing, causing A.B. to “appear[] traumatized.” The Department added that A.B. usually asks to leave visits with Mother early.
On May 24, June 5, and July 15, 2024, the court held a hearing on the Department’s request to change A.B.’s permanency plan. The court heard from A.B.’s therapist, a Department social worker, a psychologist from the Lourie Center for Children’s Social & Emotional Wellness, Julie Wessel,3 as well as Mother’s therapist and Mother. The Department social worker testified that “there is no attachment” and “no bond” between Mother and A.B. A.B.’s therapist similarly testified that A.B. “doesn’t have an attachment relationship with [Mother.]”
Ms. Wessel with the Lourie Center testified that A.B. had a “warm, organized, secure relationship with her grandparents.”
A.B.’s therapist described Grandmother as A.B.’s “safe haven” and testified that A.B. “looks to [Grandmother] for support,” “runs to [Grandmother] to show her things,” and has “expressed that she feels safe expressing all kinds of emotions” with Grandmother. A.B.’s therapist testified that A.B.’s “world would crumble” if removed from Grandparents’ care.
Regarding A.B.’s early trauma, Mother testified that she didn’t “know what happened to [A.B.]” and that she believed that “there could have been many things that are possible[.]” She testified that she was “still on good terms” with Father. When asked about A.B. becoming upset after mentioning and showing a photo of Father, Mother asserted that “[i]t was just a comment” and “[t]here was not a lot of thought behind it.” Mother acknowledged that “visits have only been getting worse” and A.B. “wants to seem to have a relationship with [Mother] less and less as we move on[.]” She sought “more flexibility” with the visits.
On July 26, 2024, the court changed A.B.’s permanency plan to adoption by Grandparents. Mother noted this appeal. Additional facts will be supplied as necessary.
STANDARD OF REVIEW
We simultaneously apply three different levels of review when reviewing cases involving the custody of children. In re A.N., 226 Md. App. 283, 305-06 (2015). First, we review the court’s factual findings for clear error. Id. at 306. Next, “‘[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.’” In re Adoption/Guardianship of Victor A., 386 Md. 288, 297 (2005) (quoting In re Yve S., 373 Md. 551, 586 (2003)). Finally, the trial court’s ultimate conclusion “‘should be disturbed only if there has been a clear abuse of discretion.’” In re Yve S., 373 Md. at 586 (quoting Davis v. Davis, 280 Md. 119, 126 (1977)).
DISCUSSION
I. THE COURT DID NOT ERR IN CHANGING A.B.’S PERMANENCY PLAN TO ADOPTION BY GRANDPARENTS.
A. Parties’ Contentions
Mother asserts that in changing A.B.’s permanency plan, the court erroneously “relied almost exclusively on speculation and the Department’s allegations concerning the [s]helter [p]etition, as opposed to [her] progress during the review period[.]” She maintains that “the testimony and evidence presented contradicts the [c]ircuit [c]ourt’s finding that Mother had been unable and unwilling to address [A.B.’s] trauma, or that no progress had been made.” In support, she points to testimony that A.B. has a “secure relationship” with Mother and adds that the Department “unabashedly refused to work with Mother[.]” In response, the Department asserts that the court properly modified A.B.’s permanency plan after finding that Mother had failed to establish a bond with A.B., and Grandparents had provided safety and stability for several years.
B. Legal Framework
The broad purpose of the Child in Need of Assistance (CINA) statute, set forth at Maryland Annotated Code, Courts and Judicial Proceedings (“CJP”) §§ 3-801 – 830, is “to protect and advance a child’s best interests when court intervention is required.” In re Najasha B., 409 Md. 20, 33 (2009). To that end, the statute provides that once “a child is declared a CINA, the [d]epartment must develop a ‘permanency plan’ that is ‘consistent with the best interests of the child.’” In re D.M., 250 Md. App. 541, 560 (2021) (quoting CJP § 3-823(e)(1)(i)). “The permanency plan is an integral part of the statutory scheme designed to expedite the movement of Maryland’s children from foster care to a permanent living, and hopefully, family arrangement.” In re Yve S., 373 Md. at 581. “Once set initially, the goal of the permanency plan is re-visited periodically at hearings to determine progress and whether, due to historical and contemporary circumstances, that goal should be changed.” Id. at 582; see also CJP § 3-823(h)(1).
As this Court recently explained, “[a]lthough [permanency] planning begins with the presumption that reunification with parents is in a child’s best interests, that presumption may be rebutted [if] the court determines, after considering the statutory factors in F[amily ]L[aw] § 5-525(f)(1), that ‘weighty circumstances’ dictate that a different plan is in the child’s best interests.” In re M., 251 Md. App. 86, 123 n.10 (2021) (internal citations omitted); see also In re Adoption of Cadence B., 417 Md. 146, 157 (2010). When a permanency plan involves an out-of-home placement, the court must “give primary consideration to the best interests of the child[.]” Md. Code Ann., Family Law (“FL”) § 5-525(f)(1). The following factors shall be considered:
(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) .
Finally, “when reviewing a juvenile court’s decision to modify the permanency plan for the children, this Court ‘must determine whether the court abused its discretion.’” In re A.N., 226 Md. App. at 306 (quoting In re Shirley B., 419 Md. 1, 19 (2011)). In accordance therewith, our role “is not to determine whether, on the evidence, we might have reached a different conclusion.” In re Adoption No. 09598 in the Cir. Ct. for Prince George's Cnty., 77 Md. App. 511, 518 (1989). Instead, the decision will be reversed only for an abuse of discretion, or 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.” North v. North, 102 Md. App. 1, 14 (1994).
C. Analysis
The record indicates that the court properly considered the best interests of A.B. and each of the factors set forth in FL § 5-525(f)(1) in deciding to modify A.B.’s permanency plan. First, the court found that A.B. “cannot be safe and healthy” in Mother’s home. Specifically, the court noted that “[A.B.’s] physical, emotional, and mental health are fragile as a result of an aggravated assault committed by her father that has left her with permanent neonatal traumatic brain injury, anxiety, PTSD, speech and developmental delays” and that Mother “is unable to address the root cause of [A.B.’s] horrific injuries and prefers to ignore the issue” and “has shown an inability to protect her emotionally and has caused her pain and emotional dysregulation without remorse[.]”
Second, as to A.B.’s attachment and emotional ties to her natural parents and siblings, A.B. has no relationship with Father, no living siblings, and no attachment or emotional ties to Mother “[d]espite more than several years of consistent weekly in- person visitation and dyadic therapy[.]” Instead, A.B. “expresses a strong desire not to see her mother.”
As to the third and fourth FL § 5-525(f)(1) factors, the court found that A.B. has been in her Grandparents’ custody since November 2018, and she “has a strong, healthy, and genuine emotional attachment to [them] and their two children.” Further, the court observed that A.B. “seeks [Grandmother] out for comfort, when needed[,]” that she calls Grandfather and Grandmother, “daddy and mommy[,]” and that Grandfather and Grandmother “have been and continue to be a safe haven for [A.B.].”
As to the fifth FL § 5-525(f)(1) factor, the court found the potential harm in removing A.B. from Grandparents’ care significant, noting that:
All are in agreement that the potential emotional, developmental, and educational harm would be devastating to [A.B.] if she [were] removed from her current caregivers.
They have provided her stability, they have nurtured her, and provided a safe environment which is essential for her psychological well-being and development. The harm of removal is not potential. In this case it would be catastrophic for [A.B.]; as noted by the experts, and therapists for mother, as well as the department.
Finally, as to the potential harm of remaining in State custody, the court noted that “[A.B.] has been in State custody for seven years, her entire life” and “[r]emaining in custody for an excessive period of time deprives her of permanency which she deserves in an environment in which she can thrive.”
Mother does not specifically challenge the court’s factual findings. Instead, she points to testimony that A.B. has a “secure relationship” with Mother, contends that the court failed to consider her progress during the review period and the Department refused to work with her, and asserts that the court’s decision did not meet the “requirements necessary to overcome the presumption that reunification is in [A.B.]’s best interests[.]”
Although Mother is correct that Ms. Wessel of the Lourie Center noted that A.B. had a secure relationship with Mother, Ms. Wessel also testified that removing A.B. from her current placement, “a placement that she has been in since age 16 months, and I believe she is now 7 or almost 7 years old, has significant risk[.]” Further, we disagree with Mother’s contention that the court relied “almost exclusively” on allegations regarding the shelter petition. Instead, the transcript indicates that the court reviewed an extensive amount of material in reaching its decision, including: seven years of the history of this case, court orders, and reports from Hawaii, medical reports, family service plans, safe family home reports, multidisciplinary team conference reports, child placement consultation team evaluations, legal memorandum, letters from experts, psychological evaluations, department reports, court records, exhibits, and trial testimony.
In so doing, the court noted that reports from “[s]ocial workers and court orders in Hawaii, from six years ago, mirror the current social worker reports and court orders in this [c] ourt today.”
Moreover, the court found Mother’s assertions regarding the Department “misplaced,” noting that:
It is not the department that has been directed for six years to focus on bonding, and attachment, and protection. It is not the department that went periods of time, in [A.B.]’s life, with no contact. It is not the department that had to be told to build a bridge and collaborate with [A.B.]’s treasured caregivers for her best interest, and was still reluctant, and waited until it was too late. The location of the visits; whether it’s the department, the visitation house, the park, McDonald’s, or the library, is not the reason mother and [A.B.] have no bond. It is clear at this point that visits could be in Disneyland and it would make no difference. And it certainly was not the department that derailed a plan to introduce father into [A.B.]’s life. And it was not the department that caused her emotional dysregulation.
Finally, we disagree with Mother’s assertion that the court erred in determining that the presumption in favor of
reunification had been overcome. A.B., now seven years old, has been in state custody less than two weeks short of her entire life. She’s been in Grandparents’ care – an undisputed “safe haven” for her – since she was 16 months old. The court found that, despite several years of supervised visitation, there had been “no progress toward establishing a bond and attachment between mother and daughter[,]” which was supported not only by testimony from A.B.’s therapist, but from Mother, who acknowledged that A.B. remained “not very interested in playing with [her] or talking to [her].”
Indeed, the court noted that there was “a disconnect” between A.B. and Mother, that Mother “appears indifferent,” and “at times callous and unconcerned,” and that there was “no indication that more time for mother will fill that crater and create a bond that does not exist after seven years.” “A key purpose of the CINA law is to ‘achieve a timely, permanent placement for the child consistent with the child’s best interests[.]’” In re Ashley S., 431 Md. 678, 712 (2013) (quoting CJP § 3-802(a)(7)). We cannot say that the court’s decision to modify A.B.’s permanency plan to adoption by Grandparents, ending a “prolonged custodial limbo” for A.B., was well removed from any center mark imagined by this Court. Id.
II. THE COURT DID NOT ERR IN ORDERING CONTINUED SUPERVISED VISITATION.
A. Parties’ Contentions
Mother asserts that in ordering continued supervised visitation, the court “committed a clear legal error by failing to include a finding that there was sufficient evidence that further abuse or neglect was likely[,]” citing to FL § 9-101. The Department responds that Mother failed to preserve her assertion regarding supervised visitation and, in any event, that “[b]y keeping the status quo of supervised visitation in place [], the court was not required to make such a finding [under FL § 9-101].”
B. Legal Framework
In child custody cases involving neglect or abuse, FL § 9-101(a) provides that “if the court has reasonable grounds to believe that a child has been abused or neglected by a party to the proceeding, the court shall determine whether abuse or neglect is likely to occur if custody or visitation rights are granted to the party.” Subsection (b) provides that “[u]nless the court specifically finds that there is no likelihood of further child abuse or neglect by the party, the court shall deny custody or visitation rights to that party, except that the court may approve a supervised visitation arrangement that assures the safety and the physiological, psychological, and emotional well-being of the child.” FL § 9-101(b).
C. Analysis
As an initial matter, we note Mother does not appear to have requested unsupervised visitation with A.B. from the court. Accordingly, her contention that the court erred in failing to provide her with unsupervised visitation has not been preserved for our review. See Md. Rule 8-131(a). Even if Mother properly raised the issue, we disagree that FL § 9-101 indicates any abuse
of discretion in the facts before us. Had the court found the evidence indicated that Mother abused or neglected A.B., the court would have been required to deny custody or visitation, with the exception of supervised visitation assuring A.B.’s safety and well-being, unless it found “that there is no likelihood of further [] abuse or neglect[.]” FL § 9-101(b). Here, however, the court made no finding that Mother abused or neglected A.B., thus FL § 9-101(b) was inapplicable to the facts before us.
III. THE COURT DID NOT ERR IN FINDING THAT THE DEPARTMENT MADE REASONABLE EFFORTS TOWARDS REUNIFICATION.
A. Parties’ Contentions
Mother maintains the court erred in finding that the Department had made reasonable efforts towards the goal of reunification, noting that the Department “repeatedly attempted to change [A.B.]’s Permanency Plan to Adoption,” “routinely and unilaterally cancelled visits[,]” and exhibited “undeniable bias” against Mother. The Department responds that Mother has failed to demonstrate any reversible error on behalf of the circuit court, and Mother’s contention regarding routinely cancelled visits is unsupported by the record.
B. Legal Framework
FL § 5-525(e)(1) provides that the Department shall make “reasonable efforts” to “preserve and reunify families[,]” including “to make it possible for a child to safely return to the child’s home.” Reasonable efforts are “efforts that are reasonably likely to achieve the objectives” of preventing the child’s placement in the Department’s custody. CJP § 3-801(x). The “reasonable efforts” definition has been described by the Supreme Court of Maryland as “‘amorphous[,]’ without any ‘bright line rule to apply to the ‘reasonable efforts’ determination[, meaning that] each case must be decided based on its unique circumstances.’”
In re Shirley B., 419 Md. at 25 (quoting In re Shirley B., 191 Md. App. 678, 710-11 (2010)). In determining the reasonable efforts that should be made, however, “the child’s safety and health shall be the primary concern.” FL § 5- 525(e)(2).
Finally, we apply “the clearly erroneous standard when reviewing the juvenile court’s factual finding that the Department made reasonable efforts to preserve and reunify the family.” In re Shirley B., 419 Md. at 18. “Under the clearly erroneous standard, we look at the record in the light most favorable to the prevailing party, and if there is any competent, material evidence to support the circuit court’s findings of fact, we cannot hold that those findings are clearly erroneous.” Fitzzaland v. Zahn, 218 Md. App. 312, 322 (2014).
C. Analysis
The court determined that reasonable efforts towards reunification had been made, noting that the Department had:
1) Maintained at least bi-weekly face to face contact with [A.B.] and her caretakers to ensure that [A.B.]’s needs are being met;
2) Communicated frequently with [Grandmother] as it relates to [A.B.];
3) On May 1, 2024, the Department held an administrative
review to discuss changing the permanency plan;
4) Maintained at least monthly contact with Ms. Margaret Braun;
5) Maintained at least monthly contact with Dr. Melinda Carlson;
6) Communicated with [Mother] as needed;
7) Facilitated and supervised twice a week visits between [A.B.] and [Mother];
8) Provided [A.B.]’s provider information to [Father];
9) Sent [Father] updates and photos of [A.B.] monthly;
10) Referred [A.B.] for neuropsychological evaluation;
11) Attempted to engage [Mother] and [Grandmother] during visits[.]
Mother does not specifically challenge any of these findings, including that the Department facilitated and supervised visitation between A.B. and Mother twice weekly for nearly two
years. Instead, Mother alleges generally that the Department cancelled visits, exhibited bias against her, and repeatedly attempted to change the permanency plan to adoption. The record indicates, however, that only two visits were cancelled by the Department, and as previously noted, the court found that Mother’s contentions regarding the Department were misplaced.
Finally, we are unpersuaded that the Department’s attempts to modify the permanency plan to adoption by Grandparents, after years of A.B. being in their custody, and determining that there was “no attachment” between A.B. and Mother following years of supervised visitation, indicates reversible error by the court. The court found that the Department had made reasonable efforts towards reunification and under the facts before us, we cannot say that there was no competent, material evidence to support that determination.
JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY IS AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Mother’s questions, as presented in her brief, are:
1. Did the Circuit Court of Montgomery County commit clear legal error and abuse its discretion by denying Mother unsupervised visitation without an express finding that there was further likelihood of abuse or neglect in Mother’s care?
2. Did the Circuit Court of Montgomery County commit clear error and abuse its discretion by allowing the Department of Social Services to re-litigate the Shelter Petition as a basis for altering the Respondent’s Permanency Plan?
3. Did the Circuit Court of Montgomery County commit clear legal error and abuse its discretion by finding reasonable efforts on behalf of the Department
of Social Services, despite the Department’s case manager testifying and reporting that she would not work towards the court-ordered permanency plan of reunification?
2 In Hawaii, A.B.’s permanency plan had primarily been reunification with her parents, apart from a motion to terminate Mother and Father’s parental rights filed by DHS in April 2020. That motion was later withdrawn.
3 The Lourie Center is “a private, non-profit agency that uses scientific research and clinical experience to foster parent-child relationships and study infant and child mental health.” In re Faith H., 409 Md. 625, 632 n.8 (2009). A.B. was referred to the Lourie Center for a “Child Placement Consultation Team Evaluation” in June 2021.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Calvert County Circuit Court’s award of 21 overnight days of the two minor children to father, after finding mother unjustifiably denied father access with children under the terms of the marital separation agreement. Though the court found, generally, that it was in the best interests of the children to spend time with both their parents, it made no findings that the grant of three weeks of make-up overnight access to father was in their best interests.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
on December 6, 2019, and the MSA was incorporated, but not merged, in that judgment.
Upon executing the MSA and by agreement, Mother relocated to Mount Pleasant, South Carolina and Father remained in Chesapeake Beach, Maryland. Though Father continues to maintain a residence and his dental practice in Maryland, he also purchased a second home near Mother’s home in South Carolina at the end of 2020.
A. The MSA
Section 5 of the MSA sets out the child custody provisions. Mother and Father agreed to share joint legal custody of the children and for Mother to have primary physical custody of the children in South Carolina. Father’s access with the children is spelled out in three sections: § 5.3.7, § 5.3.9, and § 5.3.10. We review them in reverse order. Under § 5.3.10, Father has custodial access with the children for their entire summer vacation, beginning with their last day of school and ending the night before they return to school.
Section 5.3.9 sets out a detailed holiday schedule which, except for Mother’s Day from 9 a.m. until 5 p.m., granted Father access with the children for every three-day holiday weekend and their entire Thanksgiving, Christmas, and spring/Easter breaks.
Ellen Paulisick Wolf (“Mother”), appellant, and Christopher Wolf (“Father”), appellee, were divorced in the Circuit Court for Calvert County. Their marital settlement agreement (“MSA”) was incorporated, but not merged, in the divorce judgment. Five years later, Mother appeals from the grant of a motion entered in that court under section 9-105 of the Family Law Article (“FL”) of the Maryland Code ruling that she unjustifiably denied Father access with the parties’ two children under the terms of the MSA and awarding him twenty-one overnights as make-up time. She presents four questions,1 which we combine and rephrase as two:
I. Was Father’s motion under FL § 9-105 barred by res judicata or collateral estoppel?
II. Did circuit court err or abuse its discretion by ruling that Mother unjustifiably denied Father access under a provision of the MSA and/or by the award of make-up time to Father?
For the following reasons, we hold that Father’s motion was not barred by res judicata or collateral estoppel and that the circuit court did not err by ruling that Mother unjustifiably denied Father access under the terms of the parties’ MSA, but that it did abuse its discretion by granting Father twenty-one days of make-up visitation. We thus reverse the award of make-up time and otherwise affirm the order.
BACKGROUND
Mother and Father, who are both practicing dentists, were married in July 2013. They have two children: F, now age nine, and R, now age seven. They executed the MSA on August 20, 2019. They were divorced
Section 5.3.7, entitled “Physical Custody,” states that Mother will have primary physical custody of the children in South Carolina and that Father “shall have access with the minor children” as set out in three sub-sections. First, the children would remain in Father’s custody in Maryland until August 31, 2019, eleven days after the execution of the MSA. Second, if the children have any four-day weekends based upon their school schedule, Father may have the children with him for the duration of the extended weekend in Maryland. Third, and of significance to this appeal, the parties agreed to the following:
Any time that [Father] travels to the State of South Carolina, where [Mother] will be living with the minor children, and if [Father] provides [Mother] at least seven (7) days advance, written notice, [Father] shall be permitted to designate additional time with the minor children. [Father] shall be responsible for transporting the minor children to all previously scheduled, mutually agreed upon activities. [Father] shall arrange for himself and for the minor children, at his sole cost and expense, lodging during any such visit(s) as arranged herein.
We refer to this as the “seven-day provision.”
Multiple provisions of the MSA reflect the parties’ intent that the agreement be dynamic, flexible, and accommodate the children’s changing needs. As pertinent here, a “Special Events” clause at § 5.3.13 required the parties to make a good faith effort to permit the children to attend “special events with each parent” “[r]egardless of [the] custody and/or visitation schedule[.]” Similarly, a “Best Efforts” clause directs them to be flexible about scheduling for holiday and vacation visits. The
parties also recognized that the terms of the MSA would be subject to change in the future and agreed that such changes be made by a written amendment. If the parties could not agree upon modifications, they would first mediate their differences. If mediation was unsuccessful, however, the parties could move to modify custody, visitation, or child support in the circuit court.
The MSA specified two changes of circumstance that would obligate the parties to renegotiate the custody and visitation provisions of the agreement: 1) if either party moved more than thirty miles from their current residence (which was designated as Father’s home in Chesapeake Beach and Mother’s home in Mount Pleasant, South Carolina), and 2) if either party relocated to “within a sixty (60) minute driving distance” of the other party’s residence. In the latter scenario, the parties were required to renegotiate the custody and visitation terms “with the express intention of modifying the current custody and access schedule to achieve a shared physical custody schedule with each party having as close as possible to 50% of the overnights, but with each party having at least 35% of the overnights, with the minor children.”
B. Mother’s Modification Motion
Just over a year after the parties divorced, Mother moved to modify child custody, access, and child support in the circuit court.2 As pertinent to the issue on appeal, Mother alleged that Father was abusing the seven-day provision in a manner that was disruptive to Mother’s time with the children. Father filed a countermotion to modify custody and access. The court appointed a best interest attorney (“BIA”) to represent the children’s interests.
A merits hearing went forward over three days in December 2021 and one day in February 2022. By order entered March 30, 2022, the circuit court ruled that there had not been a material change of circumstances affecting the welfare of the children and denied the motion and countermotion to modify custody and visitation. Mother’s motion to alter or amend that order was denied, and she did not note an appeal.
C. Father’s First FL § 9-105 Motion and Petition for Contempt
Less than six months later, Father filed his first motion for make-up time due to an unjustified denial of access under FL § 9-105.3 Father alleged that Mother denied him three access days with the children under the seven-day provision in September 2022. He asked the court to grant him make-up time and to modify the MSA to “provide that [Father]’s designations take precedence over [Mother]’s” and, if Mother does not comply, Father is entitled to enforce the order with the assistance of law enforcement.4 Father later filed a motion for contempt premised upon the same alleged violations. Mother opposed both motions and asked the court to reappoint the BIA to represent the children’s interests. Father opposed the reappointment motion, and the court denied it. The court held a hearing on Father’s motions on February 10, 2023. On February 23, 2023, the court issued an order finding that the “disagreement at the heart” of the outstanding motions concerned the interpretation of the MSA relative to the “designation of access with the minor children[.]” Specifically, Mother and Father “cross-designated weekends for access with the minor children based on each party’s interpretation of provisions in the [MSA.]” It found that Mother was not “willfully noncompliant with a sufficiently definite” custody order and denied Father’s petition for contempt and his FL § 9-105 motion for
make-up time.
Father noted an appeal from that order, but voluntarily dismissed it prior to briefing.
D. Mother’s Petition for Contempt and Father’s Second FL § 9-105 Motion
Meanwhile, in August 2023, while Father’s appeal remained pending, Mother filed a petition for contempt asserting that Father was willfully violating the MSA by refusing to cooperate to choose a new therapist for the children, by interfering with Mother’s planned special events with the children due to abuse of the seven-day provision, and by taking the children outside the country on a cruise without Mother’s prior written consent.5 In November 2023, after dismissing his appeal, Father filed a second motion for make-up time under FL § 9-105. He alleged that he recently provided notice to Mother of the dates in winter and spring 2024 that he planned to designate for access under the seven- day provision. He designated four five-day periods (from Friday after school through school drop off on Wednesday morning): one at the end of January, one at the end of February, and two in March. He also designated a twelve-day period from the end of April to the middle of the second week in May, which included the weekend in May when he was getting married. This was in addition to Father’s access under § 5.3.9 of the MSA for the Martin Luther King, Jr. holiday weekend in January, President’s Day weekend in February, and the children’s ten-day spring break. Mother responded that she already had advised Father that she had plans with the children for most of those weekends but could let him know closer to the weekends if she could accommodate some overnights. She agreed to his request to have the children with him the weekend of his wedding, but not the remaining time around the wedding, though she later agreed to allow him additional time in advance of the wedding.
Father asked the court to award him make-up time for the missed overnights that Mother refused to accommodate and to “modify the terms of the parties’ MSA to provide that [Father]’s designations take precedence over [Mother’s.]” In a footnote, he clarified that he was “not seeking an absurd result with this request (i.e., that he could designate all but 2 overnights each year)” but asserted that he could claim “up to an equal number of overnights [as Mother has] each year (i.e., no more than 50/50 custody for either party).”
Mother opposed Father’s motion and asserted as a defense that the motion was barred by res judicata because the February 2023 Order determined that the seven-day provision was not sufficiently definite to be enforced by the court. On the merits, she alleged that she always offered alternative dates to Father if his designations under the sevenday provision conflicted with her plans with the children, but that he continued to attempt to “claim and co-opt” her pre-designated time with the children.
On January 31, 2024, the court held a hearing on Mother’s motion for contempt and Father’s FL § 9-105 motion at which both Mother and Father appeared, represented by counsel, and testified. Mother testified that she gave Father notice of her “planned travel, family events, [and] special events with the children” as much as six months in advance, but that he would “book time” under the seven-day provision that conflicted with her dates.
She explained that since the parties executed the MSA, Father had begun spending increasing time in South Carolina at the house he owned there, located six miles from Mother’s house. In her view, this change had upended the parties’ agreement and caused significant
disruption in the children’s lives because their plans with Mother were subject to being superseded by Father under the seven-day provision.
In his testimony, Father acknowledged in his testimony that when Mother had requested to take the children on trips during their school holidays – which is Father’s custodial time under the MSA – he had denied those requests. When Mother pre-designated time to take trips with the children during the academic year, however, Father took the position that that also was time he could claim under the seven-day provision if he planned to be in South Carolina at the same time. When he was asked if this meant he had an “unfettered seven-day right of access” that took priority over any plan Mother may have made in advance, he responded, “Yes, that’s what we agreed upon and . . . that was the reason why she was allowed to relocate to South Carolina.”
By reference to a chart his counsel prepared summarizing the days he requested under the seven-day provision from February 2023 through January 2024, Father testified that Mother agreed to 47% of the dates he requested and denied the remaining 53%. Father agreed that it would be unreasonable for him to use the seven-day provision to usurp all of Mother’s time with the children and clarified that he would be amenable to capping his total overnight access at 182 nights.
E. The Circuit Court’s Ruling
The circuit court announced its ruling from the bench during a remote proceeding on February 26, 2024. It denied Mother’s petition for contempt, a ruling that is not challenged in this appeal. Turning to Father’s motion under FL § 9-105, the court found that Mother’s practice of blocking out time for trips or other events with the children in advance was in conflict with Father’s rights under the seven-day provision. The court reasoned that there was “absolutely no language in the [MSA] that indicates [Mother] may provide to [Father] dates of her plans with the children which then alleviates [Father]’s ability to have access with the children on the dates provided by her.” The court noted that the parties had agreed when they entered into the MSA that the seven-day provision was in their children’s best interests. It found that it was in the best interest of the children “to spend time with both parents.” The court emphasized that the MSA included language encouraging the parties to negotiate in good faith to ensure that the children could spend time with each parent for special events.
The court ruled:
[T]he withholding of dates by [Mother] is not consistent with the MSA, nor is it in the best interest of the children. Therefore, the Court finds it’s in the best interest of the children to grant [Father] 21 overnights as makeup days. The overnights shall not include Mother’s Day weekend. He shall – [Father] shall provide at least seven days’ notice in writing to [Mother] of the nights he elects. Pursuant to the MSA, [Father] shall ensure [that the children] attend all previously scheduled activities that the parties mutually agree to. Further, [Father] shall provide at least seven days’ written notice to [Mother] of any additional access time that he intends to have with the children in South Carolina beyond the holiday access schedule outlined in 5.3.9 of the [MSA] and the summer access/ vacation days outlined in 5.3.10 of the [MSA].
The court permitted counsel to ask questions about the ruling. Mother’s counsel asked the court how it could award Father makeup time if, under the court’s reasoning, Father already had authority to “take any days he wants.” The court agreed with counsel that, “technically,” Father could “take as much time as he wants” under the seven-day provision. The court noted that Father testified that he
never had exceeded 50% of the overnights in a year, however. The court added that the parties should be mindful of the special events clause and make a good faith effort to accommodate special events for each parent with the children.
Mother’s counsel asked if, under the court’s ruling, Mother could be prevented from ever scheduling a vacation with the children. The court responded that it understood why counsel asked that question but did not believe that was its ruling given the special events clause. In any event, that was “a bridge to cross on a different day[.]”
Likewise, the court declined to rule that Father taking more than 50% of overnights with the children would not be in the best interest of the children, emphasizing that that issue was not before it. The court reiterated that the evidence before it showed that Father had not taken more than 50% of the overnights in the past.
The court issued an order encompassing these rulings on February 28, 2024, and this timely appeal followed.
STANDARD OF REVIEW
We review child custody and visitation determinations utilizing three interrelated standards of review. In re Yve S., 373 Md. 551, 586 (2003). The Supreme Court of Maryland has described these standards as follows:
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.
Id. (cleaned up).
A trial court abuses its discretion if “‘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) (cleaned up) (quoting In re Adoption/Guardianship No. 3598, 347 Md. 295, 312 (1997)). “This standard of review accounts for the trial court’s unique ‘opportunity to observe the demeanor and the credibility of the parties and the witnesses.’” Id. at 625 (quoting Petrini v. Petrini, 336 Md. 453, 470 (1994)).
DISCUSSION
I.
Mother argues as a threshold matter that the circuit court erred in ruling upon Father’s second FL § 9-105 motion under the doctrines of res judicata and/or collateral estoppel because the February 2024 Order represented a “complete and dramatic turnaround” from the February 2023 Order denying Father’s first FL § 9-105 motion and his related contempt petition.6 She emphasizes that in the earlier order, the court found that the seven-day provision was not a “sufficiently definite” court order to warrant a finding that Mother willfully violated it.
Father responds that because the February 2023 Order did not construe the seven- day provision and because the court could not have made any findings about Mother’s conduct in the nearly one-year period after the hearing on the prior motion, it did not preclude the court from considering that evidence and making new findings under FL § 9- 105.
‘“[A]s a general principle, one judge of a trial court ruling on a matter is not bound by the prior ruling in the same case by another judge of the court[.]”’ Gertz v. Anne Arundel Cnty., 339 Md. 261, 273 (1995) (quoting State v. Frazier, 298 Md. 422, 449 (1984)). The same would, of course, be true with respect to the same judge ruling on a matter it previously ruled upon in the same case, prior to the judgment becoming final. See Md. Rule 2-602(a)(3) (providing that an interlocutory order “is subject to revision at any time before the entry of a judgment that adjudicates all of the claims by and against all of the parties”). Because a custody order “always remains subject to revision,” Velasquez v. Fuentes, 262 Md. App. 215, 237 (2024), it bears some attributes of an interlocutory order even after the time to appeal from the order has expired. Nevertheless, because the best interest of the child is paramount in all custody determinations and stability in the child’s life is recognized as a crucial factor in that analysis, we have explained that “[a] litigious or disappointed parent must not be permitted to relitigate questions of custody endlessly upon the same facts, hoping to find a chancellor sympathetic to his or her claim.” McCready v. McCready, 323 Md. 476, 481 (1991). Thus, the “principle[] by which a material change in circumstances is required in order to modify a custody order . . . ‘has its roots in principles of claim and issue preclusion.”’ Augustine v. Wolf, Md. App. , , No. 2322, Sept. Term, 2023, slip op. at 13 (filed Nov. 22, 2024) (quoting McMahon v. Piazze, 162 Md. App. 588, 594 (2005)).
In this case, the two orders at issue were not final custody orders, as that term is used in our decisional law, because they did not determine the physical and legal custody of the children for the first time or modify that determination based upon a change in circumstances. Rather, the February 2023 Order and the February 2024 Order each arose from Father’s attempt to enforce rights accorded to him by the final custody order, which was the judgment of divorce incorporating the MSA. The first order denied Father relief and the second order, raising similar arguments based upon new facts, granted it. We are satisfied that the trial court was permitted to revisit the same underlying issue without running afoul of the principles of claim preclusion applicable to final custody orders.
The doctrines of res judicata and collateral estoppel also did not apply to bar Father’s second FL § 9-105 motion.
[R]es judicata extends only to the facts and conditions as they existed at the time of the first judgment and does not bar the fresh litigation of an issue which is appropriately subject to periodic redetermination, as subsequent facts and changed conditions may alter the status of the thing being evaluated.
Scott v. Prince George’s Cnty. Dep’t of Soc. Servs., 76 Md. App. 357, 376 (1988) (cleaned up). The related, but distinct, doctrine of collateral estoppel bars the same parties from relitigating ‘“an issue of ultimate fact’” that has been ‘“determined by a valid and final judgment[.]’” Colandrea v. Wilde Lake Cmty. Ass’n, Inc., 361 Md. 371, 387 (2000) (quoting Ashe v. Swenson, 397 U.S. 436, 443 (1970)).
In the February 2023 Order, which denied Father’s petition for contempt and his first FL § 9-105 motion, the court found that, because Mother and Father interpreted provisions of the MSA differently, Mother was not “willfully noncompliant with a sufficiently definite Order of this Court such that [Mother] should be found in constructive civil contempt[.]” Though the order also denied Father’s request for make-up time under FL § 9-105, the court did not construe the seven-day provision, did not determine whether Mother or Father’s interpretation was correct, and did not conclude that the seven-day provision, or the
MSA as a whole, was ambiguous or unenforceable.
The February 2023 Order also did not decide any facts conclusively against Father. It did not determine that Mother was not violating the seven-day provision by blocking out dates in advance or denying Father access. It simply concluded that Father had not met his burden to show a willful violation of the order. Though the claims being litigated in the first and second FL § 9-105 motions are similar, this was a matter appropriately subject to redetermination based upon changing facts and circumstances.
II.
On the merits, Mother contends that the court erred by construing the seven-day provision in such an overbroad fashion that it essentially modified the MSA without making a finding of a material change in circumstances and without undertaking a weighing of the best interest factors. Relatedly, she argues that the court abused its discretion by granting Father twenty-one overnights with the children as “make up time” because, under the court’s construction of the seven-day provision, he may claim any time he desires when he is in South Carolina with the sole exception of Mother’s Day, and, consequently, the remedy is illogical.
Father responds that the circuit court did not modify the MSA, but rather “correctly interpreted and enforced” it. He asserts, citing Hearn v. Hearn, 177 Md. App. 525, 534 (2007), that a custody agreement is interpreted like any other contract and that the seven- day provision clearly and unambiguously permits Father to designate any time with the children when he is in South Carolina. The circuit court did not err by determining that Mother had unjustifiably denied Father access under that provision and did not abuse its discretion by awarding Father make-up time, even though he concedes that he does “not necessarily need the make-up time.”
We begin with the premise that “[t]he parents of a minor child are generally free to enter into an agreement respecting the care, custody, education, and support of their child.” Ruppert v. Fish, 84 Md. App. 665, 674 (1990). Nevertheless, courts “cannot be handcuffed in the exercise of [their] duty to act in the best interests of a child by any understanding between parents.” Stancill v. Stancill, 286 Md. 530, 535 (1979) (citing Glading v. Furman, 282 Md. 200, 208 (1978)); see generally FL § 8-103(a) (“The court may modify any provision of a[n] . . . agreement, or settlement with respect to the care, custody, education, or support of any minor child of the spouses, if the modification would be in the best interests of the child.”). “That does not mean, however, that the agreement between the parents is meaningless or that it may be casually disregarded as the court searches elsewhere for what is in the best interest of the child.” Ruppert, 84 Md. App. at 674. Thus, [a]bsent some defect that would make the agreement invalid or unenforceable, it ordinarily should be given effect; the court should presume, in other words, at least in the absence of compelling evidence to the contrary, that the decision or resolution reached agreeably by the parents is in the best interest of their child. Id. at 674-75.
The issues before the circuit court were 1) whether Mother had “unjustifiably denied or interfered with visitation granted by a custody or visitation order,” and 2) if so, what remedy, if any, could be imposed in the best interest of the children. FL § 9-105. In granting Father’s motion under FL § 9-105, the court construed the seven-day provision to permit Father to have custodial access with the children anytime he is present in South Carolina so long as he gave the required notice and did not
infringe upon Mother’s Day weekend.7 The court urged the parties to be mindful of the hortatory clauses of the MSA in which they agreed to be flexible and to make good faith efforts to allow the children to attend special events with each parent. It also accepted Father’s stipulation, made in his motion, testimony, that he would not attempt to use the seven-day provision to claim more than 50% of the overnights in a year.8
We conclude that the court did not err by so ruling. We interpret the language of the MSA, which was incorporated in the divorce judgment, in similar fashion to interpretation of a contract. Jones v. Hubbard, 356 Md. 513, 533-34 (1999). That is, where the language is plain and unambiguous, we interpret that language according to what a reasonable person in the position of the parties would have thought it meant. Id. at 534. The plain language of the seven-day provision places two restrictions upon Father’s designation of time while he is in South Carolina. First, he must provide written notice of his plans at least seven days in advance. Second, he must transport the children to any previously scheduled, mutually agreed upon activities during his access period. Because the provision appears within the “Physical Custody” section of the agreement and specifies that Father must bear the cost of lodging for himself and the children, it is apparent that the parties agreed that the access includes overnights.
Because no other provisions of the MSA permit Mother to designate time that Father may not infringe upon, we cannot say that the circuit court modified the MSA by construing the seven-day provision to allow Father’s designations to supersede Mother’s. Though, as wexplain below, due to changed circumstances, Mother may not have anticipated the impact of this clause, it is not our role to rewrite their agreement.9
The court found that Mother unjustifiably denied Father access under the seven-day provision because, when he provided notice to her of his designations in advance, she denied him access more than 50% of the time based upon her preexisting plans with the children. This was a fact question for the circuit court, and it did not clearly err by so ruling. Turning to the remedy imposed, we hold that the circuit court abused its discretion by awarding Father twenty-one overnights as make-up time.10 As mentioned, FL § 9-105 permits the court to “order that . . . visitation be rescheduled” as a remedy for the unjustifiable denial of access. The purpose of an award of make-up time under FL § 9- 105 is not “to ‘make whole’ the party that is unjustifiably denied visitation[,]” and any award of make-up time must be consistent with the best interests of the children. Alexander v. Alexander, 252 Md. App. 1, 17-18 (2021).
Though the court found, generally, that it was in the best interests of
the children to spend time with both their parents, it made no findings that the grant of three weeks of make-up overnight access to Father was in their best interests. Further, under the seven- day provision, Father may have overnight access with the children whenever he is in South Carolina so long as he provides Mother with seven days advance written notice. It follows that his future regular access under the sevenday provision would be indistinguishable from his “make-up” access.11
See B.O. v. S.O., 252 Md. App. 486, 502 (2021) (“An abuse of discretion results when the trial court’s decision does not logically follow from the findings upon which it supposedly rests or has no reasonable relationship to its announced objective.” (cleaned up)). Because the grant of make-up time could lead to confusion, particularly if the custody and access provisions are modified in the future, and because the court did not assess whether the remedy was in the best interests of the children, we reverse the grant of make-up time to Father.
In otherwise affirming the order, we do not intend to diminish Mother’s legitimate concerns about the way the seven-day provision is being implemented. Father’s increasing use of his South Carolina property as a second home, coupled with his requests for extended, overnight access under the seven-day provision have resulted in Father’s overnight access time increasing, as Mother’s time decreases. Mother correctly points out that her plans with the children are subject to being superseded by Father at his discretion. The parties expressly agreed to renegotiate the terms of the MSA to reach a 50-50 split (or closer to it) should the parties relocate to within sixty minutes driving distance from each other. Such a renegotiation would necessarily include the holiday and vacation terms of the MSA, however, which are enjoyed only by Father under the current agreement. Though Father maintains his home in Maryland, his frequent travel to South Carolina likely amounts to a material change of circumstances affecting the welfare of the children, as does the significant increase in his overnight access with the children.
The appropriate forum for a court to determine whether custody and visitation should be modified to further the best interests of the children is not, however, a FL § 9- 105 hearing, as the circuit court recognized, but a modification hearing at which the issues can be fully fleshed out, preferably with the input of a BIA to advance the children’s interests. See, e.g., Augustine, Md. App. at , slip op. at 12 (“To effectuate a child’s unique interest in the outcome of a custody dispute, a BIA is frequently appointed to represent a child in contested custody proceedings, and in certain contexts, the failure to provide independent representation to a child in such proceedings can be reversible error.”).
ORDER ENTERED BY THE CIRCUIT COURT FOR CALVERT COUNTY ON FEBRUARY 28, 2024 AFFIRMED, IN PART, AND REVERSED, IN PART. COSTS TO BE PAID 75% BY APPELLANT AND 25% BY APPELLEE.
FOOTNOTES
1 The questions as posed by Mother are:
I. Whether, where the Court previously denied a motion for make-up time based on unjustified denial of access finding the specific child access provision in question to be an insufficiently definite Order of Court and subject to competing interpretation, the Court committed reversible error in interpreting the provision and awarding make-up time in a subsequent hearing?
II. Whether the Court abused its discretion interpreting a provision of the parties’ agreement to afford Appellee with unfettered and unlimited child access, rendering all of Appellant’s time with the minor children subject to Appellee’s approval or potential interference?
III. Whether the Court erred in effectively modifying a single child custody provision of the parties’ agreement without finding a required material change of circumstances and without consideration of the impact of the Court’s ruling upon the entirety of the parties’ custodial arrangement, and with only superficial consideration of the best interests of the minor children?
IV. Whether the Court abused its discretion in awarding Appellee twenty- one (21) make up days of child access where such relief was illogical under the Court’s own ruling and Order nor required in the best interests of the minor children?
2 Though Mother filed her motion in Calvert County, she simultaneously moved to stay the motion and transfer jurisdiction to a South Carolina court under the Maryland Uniform Child Custody Jurisdiction and Enforcement Act. FL § 9.5-101 et seq. That motion was denied following a hearing and Mother does not raise any jurisdictional issues on appeal.
3 That statute provides:
In any custody or visitation proceeding, if the court determines that a party to a custody or visitation order has unjustifiably denied or interfered with visitation granted by a custody or visitation order, the court may, in addition to any other remedy available to the court and in a manner consistent with the best interests of the child, take any or all of the following actions:
(1) order that the visitation be rescheduled;
(2) modify the custody or visitation order to require additional terms or conditions designed to ensure future compliance with the order; or
(3) assess costs or counsel fees against the party who has unjustifiably denied or interfered with visitation rights.
FL § 9-105.
4 The court initially denied Father’s motion, but subsequently issued a show cause order to Mother in response to Father’s motion to reconsider, which alleged additional instances of violations of the seven-day provision.
5 The MSA requires each party to obtain written consent from the other party prior to traveling internationally with the children.
6 During argument at the motions hearing, Mother’s counsel also referenced the “law of the case” doctrine. That doctrine does not apply here because there was no appellate review of the February 2023 Order. See Tu v. State, 336 Md. 406, 416 (1994) (explaining that “[w]hen a case is appealed and remanded, the decision of the appellate court establishes the law of the case, which must be followed by the trial court on remand” (cleaned up)).
7 The MSA does not grant Mother unfettered access to Mother’s Day “weekend,” specifying only that she can have the children in her care from 9 a.m. to 5 p.m. that day.
8 We emphasize that the MSA does not reflect that it was the intent of the parties to share physical custody on a 50-50 basis. To the contrary, the MSA envisioned renegotiating the terms of the agreement to reach a 50-50 split (or closer to it) should the parties relocate to within sixty minutes driving distance from each other. Such a renegotiation would necessarily include the holiday and vacation terms of the MSA, however, which are enjoyed only by Father under the current agreement.
9 Mother’s contention that the MSA is unconscionable because it infringes upon her fundamental rights as a parent was not raised below and is not before this Court. In any event, Mother did not demonstrate procedural and substantive unconscionability. See, e.g., Lloyd v. Niceta, 255 Md. App. 663, 685-86 (2022).
10 The order does not specify whether the make-up time must be exercised in South Carolina or may be exercised elsewhere.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Montgomery County Circuit Court’s monetary award analysis. And because the court’s determinations as to alimony, child support, monetary awards and counsel fees involve overlapping evaluations of the parties’ financial circumstances, it vacated the remainder of the judgment.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
in 2023, Wife was 55 years old, and Husband was 57 years old.
Four children were born as a result of the marriage. At the time of the trial, the oldest child (born in 2003) was a college student. The second child was born in 2005, the third in 2007, and the fourth in 2009.
The parties separated on January 20, 2022. On February 18, 2022, Wife filed for divorce. On April 19, 2022, Husband filed a counterclaim for divorce.
In their respective pleadings, each party asked the court to determine custody, classify and value marital property, enter a monetary award, and grant attorney’s fees. Wife requested alimony and the use and possession of the family home.
On November 22, 2022, the parties entered into a consent custody order, which resolved the issues of legal custody and parenting time with the parties’ minor children. Under that consent order, Wife has about 71 percent of the parenting time.
The trial took place over three days. The court heard testimony from the parties.
The court also heard testimony from Wife’s father.
The Circuit Court for Montgomery County granted a judgment of absolute divorce to Eileen Bridget Mood (“Wife”) and Shawn Alan Mood (“Husband”). The court granted Wife alimony, child support, a monetary award, and attorney’s fees.
In this appeal, Husband presents five issues by way of an informal brief. For clarity, we have rephrased those issues as the following questions presented:
1. Did the court err in ruling that Wife was not voluntarily impoverished?
2. Did the court err in awarding alimony to Wife?
3. Did the court err in awarding child support to Wife?
4. Did the court err in its determinations about whether and to what extent certain property is marital property?
5. Did the court err in granting a monetary award to Wife?
6. Did the court err in awarding attorney’s fees to Wife?1
For the reasons to follow, we hold that the court erred in its valuation of real property in Fenwick, Delaware, and in its monetary award analysis. Because the erroneous computation formed the basis for a monetary award, and further because the court erred in its monetary award analysis, we must vacate the monetary award. And because the court’s determinations as to alimony, child support, monetary awards, and counsel fees involve overlapping evaluations of the parties’ financial circumstances, we choose to vacate the remainder of the judgment as well.
BACKGROUND Overview
The parties were married on August 18, 2001. At the time of the trial
At trial, Husband disputed Wife’s claim for alimony. Both parties disputed the classification and division of marital property as it related to Wife’s request for a monetary award.
Based on the evidence, which we discuss in greater detail below, the court issued an oral opinion on August 22, 2023. After receiving counsel’s memoranda on additional issues, the court entered the judgment of absolute divorce on November 14, 2023.
In the judgment, the court classified, valued, and distributed marital property, and awarded child support to Wife. In addition, the court granted Wife’s request for alimony of $2,500.00 per month for seven years, when she will become eligible for social security benefits; a monetary award in the amount of $161,299.22, equaling half of what the court found to be the equity in one item of marital property; and $30,000.00 in attorneys’ fees, payable in three installments of $10,000.00, over three years.
Evidence at Trial
Wife testified that she holds a Bachelor of Science degree in Nursing, a Bachelor of Science degree in Political Science, and a master’s degree as a Pediatric Nurse Practitioner. At the time of the trial, Wife was employed as a pediatric nurse practitioner, working three days per week and one weekend a month. Wife treats about 25 to 30 patients per day.
Wife testified that she was the primary caretaker for the children and that she bore the following responsibilities: bringing the children to their doctors’ appointments, school appointments, tutoring appointments, and orthodontics appointments, and assisting the parties’ third child with college applications and visits.
In addition to her role as the children’s primary caretaker, Wife
supported Husband’s career.
Husband testified that, “for most of the first 15 years” of the marriage, he traveled overseas for work multiple times per year and that “[m]ost of those trips” lasted “anywhere between a week and 10 days.” During two years of the marriage, Husband worked for a company with offices in Washington, D.C., and Connecticut, and traveled “back and forth each week[.]” In the last six to seven years before the trial, Husband traveled less frequently, going to board meetings outside of the Washington, D.C., area for only two or three days and only “about three times a year[.]”
In addition to his work responsibilities, Husband taught evening classes at a university for a couple of years.
Husband’s career caused the parties to relocate twice. The parties moved to Florida after they were married in 2001. The parties relocated to the District of Columbia metropolitan area so that Husband could start a new job in 2004.
At the time of the trial, Husband earned $302,784.00 per year, working in human resources at an international nonprofit company based in the District of Columbia. Wife earned $103,000.00 per year. The parties’ children attended private schools, and the family vacationed internationally. Wife testified that Husband’s income had allowed her to perform childcare and maintain part-time employment.
Husband’s counsel introduced photographs that showed Wife and her brother-in- law visiting a hot spring together in Colorado. Although the court declined to rule that Wife had had a sexual affair with the brother-in-law, the court found that Wife had an “emotional affair” with him. The court also found that “this marriage was in trouble long before that.”
At trial, the parties disputed the classification and distribution of real property acquired during the marriage. The parties had the following pieces of real property: the marital home in Bethesda; a rental property in Lewes, Delaware; and a rental property in Fenwick Island, Delaware.
The court ruled that the fair market value of the Bethesda property was $1,800,000.00, the mortgage balance was $630,447.22, and the balance on the home equity line of credit was $99,664.49. Husband agreed that Wife should have use and possession of the Bethesda property “[f]or a limited period of time.” The court ruled that Wife would have use and possession of the Bethesda property for two years, i.e., until September 2025, and that the house would then be sold.
The trial court ordered that Husband pay 70 percent of the mortgage, interest, taxes, insurance, and upkeep on the Bethesda property until it is sold, and that Wife pay the rest. Upon the sale of the Bethesda property, the parties will evenly divide the proceeds that remain after the mortgage, line of credit, and costs of sale have been paid.
Wife and Husband purchased the Lewes property in January 2018. Wife’s father gave Wife $100,000.00, and Wife testified that she used $76,767.00 of that gift as a down payment on the property. The court found that the Lewes property is marital property, but that the down payment was non-marital. The court ordered that the Lewes property be sold, that the down payment be returned to Wife upon the sale, and that the remaining proceeds be divided equally.
The parties disputed whether the Fenwick property was marital property. Husband had made a down payment of $65,000.00 to purchase the property in July 2021. He testified that the down payment stemmed from “the LatPro proceeds” in his personal bank account. After the second day of trial, the court directed the parties to submit written argument about whether the “LatPro proceeds” were marital property.
It appears that Husband had worked for LatPro, Inc., before the parties were married. On June 19, 2000, LatPro granted Husband stock options that would have vested annually over the next three years, on June 19, 2001, June 19, 2002, and June 19, 2003. Under the stock option agreement, 217,500 shares were subject to the option at
$.50 per share. The agreement stated that, upon the termination of Husband’s employment “for any reason,” “any Options which ha[d] not been exercised as of the effective date of the termination” would “immediately be forfeited” and would “no longer be exercisable[.]”
Husband’s employment with LatPro ended in September 2001, about a month after the parties’ marriage began. At that time, Husband had a vested option to purchase 69,166 shares. He had not exercised the option.
In January 2002, after the parties were married, Husband signed a share subscription agreement, in which he agreed to purchase 247,471 shares of LatPro’s stock for the price of $1,979.77 ($.008 per share). The agreement recites that he accepted the shares “in lieu of” the stock option agreement, that the option agreement was “terminated effective immediately,” and that he had no further right to purchase shares under the option agreement.
In 2021, a company bought all of LatPro’s outstanding shares, including Husband’s. Husband received approximately $290,000.00 for his shares.
Husband testified that the $65,000.00 down payment on the Fenwick property stemmed directly from the LatPro proceeds. Husband further testified that “[a]bout $215,000 of the [remaining] $219,000 was eventually moved to” a jointly titled account.
Husband claimed that he also used a $120,000.00 gift from his brother and a $40,000.00 gift from his father to purchase the Fenwick property. To substantiate his claim, Husband produced gift letters from his father and brother. Because Husband produced no other evidence to trace the Fenwick property to those alleged, the court was unpersuaded that he had used the gifts to purchase that property.
The court found that the LatPro proceeds were marital because they stemmed, not from the option agreement, but from “a different agreement,” i.e., the share subscription agreement, which “came to fruition after the marriage.” In addition, the court found that the Fenwick property was marital property titled in Husband’s sole name, that its market value was at $868,000.00, and that it had a mortgage balance of $545,401.55.
The court determined that it could not order the sale of the Fenwick property, because it was titled solely in Husband’s name. Consequently, the court granted Wife a monetary award of $161,299.22, which equals half of what the court found to be the equity in the property as of the trial date. The court ordered that the monetary award be paid from Husband’s share of the proceeds from the sale of the Lewes property. If Husband’s share of the proceeds was less than the amount of the monetary award, the court ordered that the balance should be transferred to Wife from one of his retirement accounts.2
Lastly, the court ordered Husband to pay $30,000.00 in attorney’s fees to Wife’s counsel.
We shall add additional facts as they become pertinent.
DISCUSSION
I.
The court determined that it could not order the sale of the Fenwick property, because it is located in Delaware and is titled in Husband’s
name alone. Consequently, the court granted Wife a monetary award of $161,299.22, which equals half of what the court found to be the equity in the property as of the trial date. Husband challenges the monetary award because, he argues, the court incorrectly valued the Fenwick property.
We review the decision to grant a monetary award, and the decision about the amount thereof, for abuse of discretion. See, e.g., Wasyluszko v. Wasyluszko, 250 Md. App. 263, 269 (2021); Innerbichler v. Innerbichler, 132 Md. App. 207, 230 (2000); accord Malin v. Mininberg, 153 Md. App. 358, 430 (2003). An appellate court will not overturn a monetary award unless the decision is clearly erroneous. See Malin v. Mininberg, 153 Md. App. at 430.
The parties did not make it easy for the court to value the Fenwick property.
Wife’s counsel argued that Husband did not get an appraisal because he contended that it was his separate property and, thus, that the court did not need to know its value. Wife, however, did not obtain an appraisal either, even though she initiated the divorce proceedings and asked the court to classify and value marital property and enter a monetary award.
Owners of property are “‘presumed to be familiar with its value so that [their] opinion of its value is admissible as evidence.’” Brown v. Brown, 195 Md. App. 72, 119 (2010) (quoting Hale v. Hale, 74 Md. App. 555, 567 (1988)). Husband testified that the Fenwick property “would probably sell for about $750,000.” Wife gave the property a higher valuation—“about” $860,000.00—but her opinion is presumably entitled to no weight because she is not the record owner. In any event, the court did not rely on Wife’s opinion in determining the value of the Fenwick property.
Instead, in legal argument on the last day of trial, Wife’s attorney submitted what she called a “market study.” The “market study,” which was never authenticated, appears to be nothing more than a two-page printout from the real estate website Redfin.com.
The “market study” contains a real estate listing for a property in Selbyville, Delaware. According to Wife’s attorney, the property featured in the “market study” is not the Fenwick property itself, but one that, the attorney asserted, is comparable to the Fenwick property. She argued:
[W]hen you look at what we did was we went and we looked at what’s a comp, and this is the closest comp that we could find, which is pretty much the same house as he has. Although actually, his house—the house that he has has more bedrooms. It has four bedrooms. But that’s as close as we could get. And so we’d as[k] the Court to use that as the value of the house and subtract the mortgage.
The “market study” reported that the allegedly comparable property had been listed for sale at the price of $868,000.00. The court used that value in calculating the amount of Wife’s equity in the Fenwick property.
There are any number of reasons why the court should not have used the “market study” to determine the value of the Fenwick property. The “market study” was not admitted into evidence—in fact, it was not even mentioned until the evidentiary portion of the proceedings had ended. The sole basis for concluding that the “market study” concerns a property comparable to the Fenwick property is the argument of counsel, which is not evidence. And even if the property is comparable, which there is no evidentiary basis to find, a listing price is by no means the same as the value of a property—the listing price is often higher than the value of the property, but in some cases it may actually be
lower.
For these reasons, the court erred in its determination of the value of the Fenwick property. Because that determination was integral to the monetary award, we must vacate the monetary award.3
“[A] court’s determinations as to alimony, child support, monetary awards, and counsel fees involve overlapping evaluations of the parties’ financial circumstances.” St. Cyr v. St. Cyr, 228 Md. App. 163, 198 (2016). “The factors underlying such awards ‘are so interrelated that, when a trial court considers a claim for any one of them, it must weigh the award of any other.’” Id. (quoting Turner v. Turner, 147 Md. App. 350, 400 (2002)). “‘Therefore, when this Court vacates one such award, we often vacate the remaining awards for reevaluation.’” Id. (quoting Turner v. Turner, 147 Md. App. at 400).
In this case, we opt to vacate the remaining awards for reevaluation. “Until the circuit court completes the proceedings required by this opinion, the existing orders for alimony and child support will continue to have ‘the force and effect of a pendente lite award.’” Id. (quoting Simonds v. Simonds, 165 Md. App. 591, 613 (2005)).
For guidance on remand, we shall address the other issues that Husband has raised in his brief.4 no need to consider the cost of selling the Fenwick property in setting the monetary award.
II.
Husband contends that the court erred in determining that Wife had not voluntarily impoverished herself. According to Husband, Wife’s part-time schedule warranted the imputation of income to her.
“When an action has been tried without a jury,” 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(c). “We review the court’s findings as to a party’s earning capacity under the clearly erroneous standard.” St. Cyr v. St. Cyr, 228 Md. App. at 180. “Under that standard, ‘[i]f there is any competent evidence to support the factual findings [of the trial court], those findings cannot be held to be clearly erroneous.’” Id. (quoting Solomon v. Solomon, 383 Md. 176, 202 (2004)) (citation and quotation marks omitted).
Voluntary impoverishment occurs when “a parent has made the free and conscious choice, not compelled by factors beyond the parent’s control, to render the parent without adequate resources.” Maryland Code (1984, 2019 Repl. Vol., 2023 Supp.), § 12-201(q) of the Family Law (“FL”) Article.
“[C]hild support may be calculated based on a determination of potential income” if a parent is voluntarily impoverished. FL § 12204(b)(1)(i). “If there is a dispute as to whether a parent is voluntarily impoverished,” the court must “make a finding as to whether, based on the totality of the circumstances, the parent is voluntarily impoverished[.]” FL § 12-204(b)(2)(i).
Here, Husband did not argue that Wife could find a better-paying job. Instead, he argued that she should work more hours. The court disagreed. It observed that she is the primary caregiver of three teenagers and thus that it is “highly reasonable for [Wife] to be working three days [per week.]” The court emphasized that Wife had maintained the same employment for over a decade, and that she neither changed her employment nor reduced her hours because of the divorce proceedings.
Husband claims that the court placed improper emphasis on the consistency of Wife’s work schedule during the divorce proceedings. According to Husband, “while [Wife’s] work schedule was three days
a week at the time of separation, throughout the marriage it had also included periods of no work to full-time work depending on changing circumstances of the parties’ marriage and financial situation.” Wife testified, however, that she had maintained the same work schedule for “about six years,” since the parties’ oldest son started attending high school. Before then, Wife testified, she worked two days per week. Because the court had the right to credit Wife’s testimony, we reject Husband’s contention that the court placed inappropriate emphasis on Wife’s consistent work schedule in concluding that she had not voluntarily impoverished herself.
Husband relies on Petitto v. Petitto, 147 Md. App. 280 (2002), to support his argument about voluntary impoverishment. Petitto does not aid his case. In Petitto, this Court upheld a finding of voluntary impoverishment of a highly educated parent who worked only “six weeks a year” as an Air Force reservist (id. at 292), “did not specify any reason that she was unable to work” additional time (id. at 312), and appeared to have made no effort to find additional employment. Id. at 316.
The evidence in this case is a little different. Here, Wife worked three days per week and one weekend day per month. Wife testified that her childcare obligations prevented her from working additional hours. As the trial court noted, Husband did not have a “vocational expert saying what other hours [Wife] would be working” or what additional pay she could obtain. Nor was there any “evidence that she could get extra hours” at her current job.
For these reasons, the court was not clearly erroneous in rejecting Husband’s claim that Wife was voluntarily impoverished.
III.
Husband challenges the award of alimony. He argues that the court ignored some of the factors in FL § 11-106(b), which governs the amount and duration of alimony.
“When reviewing a trial court’s award of alimony, an appellate court will not reverse the judgment unless it concludes that ‘the trial court abused its discretion or rendered a judgment that was clearly wrong.’” Digges v. Digges, 126 Md. App. 361, 386 (1999) (quoting Crabill v. Crabill, 119 Md. App. 249, 260 (1998)); accord Brewer v. Brewer, 156 Md. App. 77, 98 (2004). “[W]e review the trial court’s factual findings for clear error” and review the “ultimate award” “for abuse[] of discretion.” Reynolds v. Reynolds, 216 Md. App. 205, 218-19 (2014) (cleaned up).
When deciding whether and how to award alimony, the court must consider 12 statutory factors enumerated in FL § 11-106(b).5 “‘[A]lthough the court is not required to use a formal checklist, the court must demonstrate [its] consideration of all necessary factors.’” Simonds v. Simonds, 165 Md. App. 591, 604-05 (2005) (citing Roginsky v. Blake-Roginsky, 129 Md. App. 132, 143 (1999)).
Husband argues that the court’s ruling ignored four factors under FL § 11-106(b): 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; the contributions, monetary and nonmonetary, of each party to the well-being of the family; the circumstances that contributed to the estrangement of the parties; and the financial needs and financial resources of each party. We address the court’s consideration of each factor.
First, the court reviewed the parties’ financial statements and ruled that Husband “can meet his needs” while paying alimony. Thus, Husband is incorrect in asserting that the court did not address 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.
Second, the court found that Husband made “the lion’s share of the financial contributions” to the family and that Wife made “the lion’s share of the nonmonetary contributions.” Thus, Husband is incorrect in asserting that the court did not consider the contributions, monetary and nonmonetary, of each party to the well-being of the family.
Third, the court found that Wife had an “emotional affair” with Husband’s brother-in-law, but that the “marriage was in trouble long before” that “affair.” Noting that Husband had left the family for periods of time, the court specifically stated that it could not define the extent to which each of the parties was responsible for their estrangement, but that “they both could have done better.” Thus, Husband is incorrect in asserting that the court did not consider the circumstances that contributed to the estrangement of the parties.
Finally, the court analyzed the parties’ financial statements, observed that Husband’s salary is nearly three times greater than Wife’s salary, and recognized that Wife is the primary caretaker for the three school-age children. Thus, Husband is incorrect in asserting that the court did not consider the financial needs and financial resources of each party.
In summary, the court considered all of the factors in FL § 11-106(b) in its ruling. Simonds v. Simonds, 165 Md. App. at 604-05. Although we discern no error in the court’s alimony analysis, the court will be required to reevaluate alimony on remand.
IV.
Husband raises two challenges to the trial court’s child support order. First, he argues that the order “should be recalculated using an imputed income for [Wife] working full time.” Second, he argues that the court erred in requiring him to pay 70 percent of the children’s tuition and extraordinary medical expenses and 70 percent of the cost of their extracurricular activities.
Because the parties’ “combined adjusted actual income” exceeds $30,000.00 per month, this is an above-guidelines case, in which the statutory schedule of basic child support obligations does not apply. See FL § 12-204(d). In an above-guidelines case “the court may use its discretion in setting the amount of child support.” Id.; see Malin v. Mininberg, 153 Md. App. at 410. In using its discretion, “the court may employ any ‘rational method that promotes the general objectives of the child support Guidelines and considers the particular facts of the case before it.’” Walker v. Grow, 170 Md. App. 255, 290 (2006) (quoting Malin v. Mininberg, 153 Md. App. at 410). In the exercise of its discretion in this case, the court used a software application, SASI-CALC, to extrapolate from the guidelines and to compute a child support award of $3,829.00 per month.
Husband challenges the computation on the ground that the court should have imputed additional income to Wife. His argument is essentially the same as his argument that the court erred in finding that Wife was not voluntarily impoverished. We reject Husband’s argument for the same reasons that we concluded that the court was not clearly erroneous in rejecting his contentions about voluntary impoverishment.
We also reject Husband’s arguments in support of his contention that the court erred in requiring him to pay 70 percent of the children’s tuition and extraordinary medical expenses and 70 percent of the cost of their extracurricular activities.
In an above-guidelines case, the court, in its discretion, can order the parents to contribute to their children’s tuition payments in proportion to the parents’ income. See Frankel v. Frankel, 165 Md. App. 553, 577,
581-82 (2005). Thus, the court did not abuse its discretion in ordering Husband to contribute to his children’s tuition payments in an amount proportional to his share of the parents’ overall income.
“[D]iscretionary activities such as camp, music lessons, tutoring, and gifted and talented programs” are not added to the child support obligation in cases that are subject to the guidelines. Horsley v. Radisi, 132 Md. App. 1, 26 (2000). “In an above guidelines case, however, the court may consider such activities in determining the proper amount of child support.” Walker v. Grow, 170 Md. App. at 288. Thus, the court was authorized to fashion a child support order that apportioned expenses for the children’s extracurricular activities.
In cases that are subject to the guidelines, FL § 12-204(h)(2) requires that “extraordinary medical expenses” be “added to the basic child support obligation” and be “divided between the parents in proportion to their adjusted actual incomes.” In an above-guidelines case, such as this, a court may extrapolate from the guidelines in fashioning its award of child support. Thus, the court did not abuse its discretion in dividing the cost of “extraordinary medical expenses” in proportion to the parents’ adjusted actual incomes.
In summary, the court did not abuse its discretion in computing Husband’s child support obligation or in requiring him to pay a proportionate share of the children’s tuition, their extraordinary medical expenses, and the cost of their extracurricular activities.6
IV.
Husband challenges the court’s treatment of the gifts that the parties claim to have used to purchase the Lewes property and the Fenwick property. In particular, he challenges the court’s finding that a portion of the Lewes property is not marital property (because the court was persuaded that the down payment came from a gift to Wife from her father). He also challenges the court’s finding that the Fenwick property is marital property (because the court was unpersuaded that the purchase was funded with gifts to Husband from his father and brother). Finally, he challenges the finding that the LatPro proceeds, which he used to fund the purchase of the Fenwick property, were marital property.
“‘Marital property’ means the property, however titled, acquired by 1 or both parties during the marriage.” FL § 8-201(e)(1). In general, “marital property” does not include property “acquired before the marriage” (FL § 8-201(e)(3)(i)), property acquired by “gift from a third party” (FL § 8-201(e)(3)(ii)), or property “directly traceable to any of these sources.” FL § 8-201(e)(3)(iv).
“Ordinarily, it is a question of fact as to whether all or a portion of an asset is marital or non-marital property.” Innerbichler v. Innerbichler, 132 Md. App. 207, 229 (2000). We review a court’s factual findings for clear error. See Richards v. Richards, 166 Md. App. 263, 271-72 (2005). “Factual findings that are supported by substantial evidence are not clearly erroneous.” Id. at 272.
As to the Lewes property, Husband objects to the court’s finding that Wife made a down payment of $76,767.00, which she obtained from a gift that she received from her elderly father. The court found that Wife made the down payment with non-marital assets. Consequently, it ordered that, upon the sale of the Lewes property, Wife should receive the first $76,767.00.
In assailing that finding, Husband argues that Wife’s elderly father, who testified by telephone from his home in South Carolina, initially denied that he had given her money to buy a house. Husband adds that, once Wife’s father had amended his testimony and said that he had
indeed given her the money, he said that the house was in Maryland, not in Delaware. Husband acknowledges that Wife received a check from her father in August of 2017, but asserts that there is no documentation to trace those funds to the purchase of the Lewes property in January of 2018.
On the basis of the evidence before it, the court certainly could have concluded that the down payment on the Lewes property did not derive from non-marital funds that
Wife had obtained from her father. Similarly, the court could have said that it was unpersuaded that the down payment derived from nonmarital funds. The court, however, was not obligated to reach either conclusion. The court heard, and evidently credited, Wife’s testimony that she had used the proceeds from her father’s check to make the down payment on the Lewes property. Wife’s attorney introduced a copy of that check into evidence, as Husband acknowledges. Wife testified that her elderly father was “confused” about the location of the property, because “[h]e doesn’t understand the geography here.” And when asked if the down payment should be returned to Wife, Husband testified that “it was a true gift” and that “at least the portion that was used to buy the house, which is a little bit less than $100,000[,]” should be returned to her.
In short, the court had a factual basis for its conclusion that the down payment on the Lewes property derived from non-marital funds and should be returned to Wife upon the sale of the property. The court did not commit clear error in reaching that conclusion.7
As for the Fenwick property, Husband objects to the court’s rejection of his testimony that he funded the purchase using $160,000.00 in gifts from his father and brother. He argues that the court was inconsistent in crediting Wife’s account about her use of the gift from her father in purchasing the Lewes property, but not crediting his account about the use of the gifts from his family members to purchase the Fenwick property. He notes, in particular, that the court found that he had not adequately traced the gifts to the funds used to purchase the Fenwick property.
On the evidence before it, the court certainly could have found that Husband used non-marital gifts to fund the purchase of the Fenwick property and, thus, that some or all of the property is non-marital. Again, however, the court was not required to make that finding. Here, Husband had evidence of the gifts, but no evidence—other than his own testimony, which the court evidently declined to credit—that he had used the gifts to purchase that particular property. In those circumstances, the court was simply unpersuaded that he had used the gifts as he claimed to have done. It is almost impossible for judges to be clearly erroneous when they are simply not persuaded of something. Bricker v. Warch, 152 Md. App. 119, 137 (2003). The court was not clearly erroneous in finding Husband’s proof to be insufficient.
In his reply brief, Husband challenges the court’s finding that the LatPro proceeds, which he used to fund the purchase of the Fenwick property, were marital property. “[A]ppellate courts ordinarily do not consider issues that are raised for the first time in a party’s reply brief.” Gazunis v. Foster, 400 Md. 541, 554 (2007). We exercise our discretion to consider the issue because Husband is self-represented.
The court did not err in ruling that the LatPro proceeds were marital property. The proceeds derived not from the option agreement, which predated the marriage, but from the share subscription agreement, which “came to fruition after the marriage.”
As conceded in Husband’s memorandum to the circuit court, “[w] eeks after the marriage began, [Husband] terminated his employment
at LatPro, [and] in consideration thereof, [Husband] subscribed to the shares of the LatPro common stock.” (Emphasis added.) In the share subscription agreement, Husband “accept[ed] the Shares in lieu of that certain Stock Option Agreement dated June 19, 2000 between [LatPro] and [Husband].” The share subscription agreement provided that “the Option Agreement be and is hereby terminated effective immediately and that [Husband] shall not have any right to purchase any Company securities pursuant to the Option Agreement or the Plan after the date hereof, regardless of whether any such rights were vested under the Option Agreement.”
In advocating that the LatPro proceeds are not marital property, Husband relies on Dave v. Steinmuller, 157 Md. App. 653 (2004). In that case, this Court explained that “[a] spouse who owns nonmarital property is permitted to preserve its nonmarital status even if it changes in character or form during the marriage, as long as the spouse can trace the asset acquired during marriage directly to a nonmarital source.” Id. at 664 (emphasis added).
Unlike the non-marital stock portfolio that increased in value in Dave, Husband’s stock options did not “change[] in character or form during the marriage” into the share subscription. Id. Instead, the stock options were “forfeited” upon Husband’s termination from LatPro, and the share subscription agreement “terminated” the stock option agreement. Moreover, Husband paid, after the marriage, $1,979.77 for the 217,500 shares. There is no evidence that the $1,979.77 was Husband’s non-marital property.
The court was clearly correct, not clearly erroneous, in finding that the LatPro proceeds—used to purchase the Fenwick property—are marital property. FL § 8- 201(e)(1).
In summary, the court did not commit clear error in its findings concerning these discrete findings of marital and non-marital property.
VI.
The court awarded $30,000.00 in attorneys’ fees to Wife, payable over three years in three installments of $10,000.00 each. Husband challenges the award.
“We review an award of attorney’s fees in family law cases under an abuse of discretion standard.” Sang Ho Na v. Gillespie, 234 Md. App. 742, 756 (2017) (citing Steinhoff v. Sommerfelt, 144 Md. App. 463, 487 (2002)). We will not reverse an award of attorney’s fees unless the court exercised its discretion arbitrarily “or the judgment was clearly wrong.” Petrini v. Petrini, 336 Md. 453, 468 (1994).
A court may award attorney’s fees to a party in a divorce action or in an action for alimony after considering “(1) the financial resources and financial needs of both parties” and “(2) whether there was substantial justification for prosecuting or defending the proceeding.” FL § 7-107(c); FL § 11-110(c).
When a parent applies for a decree concerning the custody, support, or visitation of a child, a court may award to either party “the costs and counsel fees that are just and proper under all the circumstances[.]” FL § 12-103(a). But before awarding fees in such cases, the court must consider: “(1) the financial status of each party; (2) the needs of each party; and (3) whether there was substantial justification for bringing, maintaining, or defending the proceeding.” FL § 12-103(b).
The court here expressly considered the statutory criteria when awarding attorney’s fees to Wife. On the subject of the parties’ financial status, the court found that Husband’s present earnings, and likely future earnings, are “far superior” to Wife’s. On the subject of the parties’ needs, the court found that “[t]hey both have needs,” but that Wife’s “are far greater” than Husband’s. Lastly, the court found that Wife had spent
$129,000.00 on attorney’s fees and that Husband did not have substantial justification to litigate the case through trial.
The court’s findings are not clearly erroneous. In particular, the court was not clearly wrong in finding that Husband lacked substantial justification in pursuing certain aspects of the case. Husband, for example, was demonstrably incorrect in asserting that the LatPro proceeds were anything other than marital property. Although we are vacating the award of fees because of its integral relationship with the monetary award, we conclude that the court did not err in requiring Husband to pay a fraction of Wife’s attorneys’ fees.8
JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED IN PART AND VACATED IN
PART. JUDGMENT WITH RESPECT TO MONETARY AWARD, ALIMONY, CHILD SUPPORT, AND ATTORNEY'S FEES VACATED; ALIMONY AND CHILD SUPPORT PROVISIONS TO REMAIN IN FORCE AND EFFECT AS PENDENTE LITE ORDERS PENDING FURTHER ORDERS OF THE CIRCUIT COURT; JUDGMENT OTHERWISE AFFIRMED. COSTS TO BE EVENLY DIVIDED.
FOOTNOTES
1 Husband listed the issues as follows:
Issue 1: Bias Regarding Child Support and Alimony.
Issue 2: Bias on Voluntary Impoverishment/Imputed Income.
Issue 3: Bias on Division of Real Estate.
Issue 4: Bias in Legal Fees.
Issue 5: Determination of Non-Marital Assets.
2 It is unclear how this transfer could occur—or how it could occur while preserving the tax-deferred status of the retirement account—unless the transfer were facilitated by a qualified domestic relations order.
4 Because this case must return to the circuit court, we note, for guidance on remand, that the court appears not to have followed the required procedure for making a monetary award. “When a party requests a monetary award, a trial court must complete a threestep process before determining whether to grant such an award.” Wasyluszko v. Wasyluszko, 250 Md. App. at 279. “First, the court must categorize each disputed item of property as marital or non-marital.”
Id. “‘Second, the court must determine the value of all marital property.’” Id. (quoting Abdullahi v. Zanini, 241 Md. App. 372, 405 (2019)). “Finally, the court ‘must decide if the division of marital property according to title would be unfair,’ and if so, it ‘may make a monetary award to rectify any inequality created by the way in which property acquired during marriage happened to be titled.’”
Id. at 279-80 (quoting Abdullahi v. Zanini, 241 Md. App. at 405-06). “As part of this final step, the court must consider the eleven factors enumerated in FL § 8-205(b)[.]” Id. at 280.
Instead of determining the value of “all” marital property as a predicate to the decision whether to grant a monetary award to rectify any inequality created by the way in which the property is titled, the court appears to have focused on three discrete pieces of real property and treated each of them separately. In addition, the parties appear to have had other items of marital property (e.g., retirement accounts, cars, and bank accounts), but we cannot tell from the materials before us how or whether the court accounted for them.
5 Those factors are:
(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.
FL § 11-106(b).
6 In his brief, Husband argues that his alimony and child support obligations, together with obligations to pay most of the debt service, taxes, and insurance for the Bethesda property, exceed his monthly income (by which he appears to mean his net income from employment after the payment of State and federal taxes). By his calculations, his alimony and child support obligations total over $175,000.00 a year. On remand, the court should consider Husband’s contention that he is unable to meet his own needs while discharging his court-ordered obligations. See Walter v. Walter, 181 Md.
App. 273, 284-85 (2008). In this regard, however, we note that the child support obligations will decline to zero as the children age— and they may already have ended as to one child (the child born in 2005) and will end shortly as to another (the child born in 2007). In addition, the obligation to service the debt and pay the taxes and insurance on the Bethesda property will end when the property is sold, which should occur sometime after the property is placed on the market in September of this year.
7 Because this case must return to the circuit court for further proceedings, we note, for guidance on remand, that the value of Wife’s non-marital contribution to the purchase of the Lewes property is to be determined in accordance with the formula set forth in Grant v. Zich, 300 Md. 256, 276 n.9 (1984). We also note that the value of Wife’s non-marital contribution to the purchase of the Lewes property should be considered in the court’s overall monetary award analysis.
8 Throughout his briefs, Husband contends that the trial judge exhibited bias against him. We have carefully reviewed the record for any evidence that the trial judge’s determinations were motivated by bias. No such evidence exists. We understand that Husband is dissatisfied with the outcome of the trial. Dissatisfaction is inherent in litigation. The record shows that the trial judge performed his duties impartially and fairly without any bias or prejudice.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Baltimore County Circuit Court’s termination of mother’s parental rights of two minor children. Although the court, in its oral ruling, considered the factors outlined in Md. Code Ann., Family Law Article, Section 5-323 and explained its reasoning for those findings, it failed to address those findings, or any other considerations that led to its conclusion regarding exceptional circumstances. The court’s ruling also did not expressly state how any exceptional circumstances would make a continuation of the parent-child relationship detrimental to the best interests of the child.
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..
best interests of J.T. and R.T.?
3. Did the trial court issue a deficient opinion in that there was no explanation of how it weighed the statutory findings it how the findings constituted exceptional circumstances?
For reasons that follow, we vacate and remand this case in order to allow the circuit court to articulate its basis for finding that exceptional circumstances existed. We decline to examine the remaining questions as the parties may request further evidentiary proceedings.
BACKGROUND
This is an appeal from a judgment of the Circuit Court for Baltimore City terminating the parent-child relationship between Appellant, K.T. (“Mother”), and her two children, J.T. and R.T. On November 26, 2019, the Baltimore City Department of Social Services (“Department”) removed J.T. and R.T, and Mother’s seven other children from her custody due to deplorable home conditions and bruises found on the children. The children were immediately placed in shelter care. The juvenile court later held a hearing where it found them to be Children in Need of Assistance (“CINA”) and committed them to the Department for care and custody with a permanency plan of reunification. Mother entered into a service agreement with the Department which required her to complete certain conditions in order to reunite with her children. In September of 2021, after the children had been committed to the Department for twenty-two months, the Department filed a motion requesting that the children’s permanency plans be changed from reunification to adoption. The Department then filed petitions for guardianship with the right to consent to adoption for J.T. and R.T. On March 21, 2023, at the conclusion of a hearing, the circuit court found that exceptional circumstances existed to terminate Mother’s parental relationship and the court granted the Department’s petitions. Mother timely appealed and presents the following questions:
1. Did the trial court make clearly erroneous factual findings?
2. Did insufficient evidence support the trial court’s decision that exceptional circumstances existed and as a result, did the court err as a matter of law when concluding that TPR was in the
Mother has ten children, including J.T. and R.T. J.T. was born in December of 2016, and R.T. was born in January of 2018. Prior to the birth of J.T. and R.T., several of Mother’s other children had been committed to the Department in both 2015 and 2016, resulting in an Order of Protective Supervision. The court, later, rescinded the order, granted Mother custody, and terminated its jurisdiction. In 2019, the Department again became involved with the family due to safety concerns reported by the children’s school. On November 26, 2019, the Department visited Mother’s home and observed indecent conditions in the home. There was human waste throughout the home; the toilets were inoperable; the children’s hygiene was poor and they were unkempt. The Department removed the children from the home, and the following day, the juvenile court ordered shelter care and granted the Department the authority to place them in foster care. The court also ordered the Department to transport the children to Johns Hopkins Hospital for a physical evaluation.
The children were examined and J.T.’s and one other sibling’s findings were “suspicious for abuse.” J.T. had multiple abrasions to the face, chest, and back. The hospital staff could not diagnose or exclude abuse for R.T. but found that there was evidence of “old injuries.”
Following the examination, the Department placed the children in foster homes and granted Mother weekly supervised visitation. Between December 2019 and March 2020, Mother was scheduled for ten visits with the children and attended more than seven of those visits. Jonathan Williams was Mother’s assigned caseworker. On January 16, 2020, the Department held a meeting with Mother to discuss the next steps for reunification with the children. Mr. Williams informed Mother that she needed to continue visiting the children, maintain her employment and housing, take parenting classes, and enroll in mental health services. Mr. Williams referred Mother to Cherry Hill Families for mental health services. Several months later, the COVID-19 pandemic began, and in-person visitation with the children was suspended. Mr. Williams, however, arranged for Mother and the children to have virtual visits.
At an adjudication hearing held on October 20, 2020, Mother stipulated that the children had been living in an unclean home, and that the children’s medical examinations were unable to rule out physical
abuse. A disposition hearing was set for December 2020; however, the hearing did not occur until March 4, 2021. At the uncontested hearing, Mother agreed to a disposition order finding her children to be CINA,1 and granting limited guardianship to the Department. The court’s order stated that Mother continued to express interest in reunification. Mother’s service agreement required her to complete a full mental health assessment and follow its recommendations, complete parenting classes, and continue visitation with the children.
Following the hearing, Mother requested to continue engaging in supervised visitations virtually due to the threat of COVID-19 to the children, particularly her infant child, C.T. On July 1, 2021, the parties appeared before the court to review the CINA status of J.T. and R.T. The court determined that the children remained CINA, and that the Department and Mother had been working together to mitigate the problems leading to the children’s commitment. As a result, the court found that it remained in the best interests of the children to maintain a permanency plan of reunification. The court scheduled another sixmonth CINA review hearing for October 2021.
In September 2021, prior to the review hearing, the Department sought to change the permanency plans for the children from reunification to custody and guardianship. The Department notified Mother. At the review hearing in October, the court ordered a continuation of the reunification permanency plan and set a date for a hearing on the issue. The hearing to review the permanency plan was held in December of 2021, and at the hearing, the parties contested the efforts made by Mother toward achieving the permanency plan. The Department argued that Mother had not completed parenting classes, obtained adequate housing, passed a home health inspection, or followed through with mental health treatment in the twenty-two months since J.T. and R.T. had been removed from the home. Due to Mother’s “little to no progress” with the reunification plan, the Department indicated that it planned to prepare for adoption because “both [J.T. and R.T’s] foster parents said they were willing to adopt and we’re past the 15-22 month period.” At the conclusion of the hearing, the court ordered that the permanency plans for the children be changed to reunification concurrent with placement with a non-relative for custody and guardianship.
Another hearing to review the children’s CINA status was held on March 30, 2022. The parties again contested the issue of visitation, Mother’s efforts, and the permanency plan. The Department sought to remove reunification from the plan, and to begin a process of seeking adoption for the children. The juvenile court determined that the concurrent plan would remain, and it scheduled a hearing for May of 2022. The hearing on the permanency plans was not held until May 24, 2024. At that hearing, the court ordered that the permanency plan would remain reunification with concurrent custody and guardianship to non-relatives.
On March 2, 2023, the Department filed petitions to terminate Mother’s parental relationship (“TPR”) with J.T. and R.T. The TPR proceedings were held on July 24, 2024, and at the close of all evidence, the court granted the Department’s petition for guardianship. The court found that exceptional circumstances existed to terminate Mother’s relationship with J.T. and R.T. Mother filed this timely appeal.
STANDARD OF REVIEW
An appellate court reviews a juvenile court’s factual findings with regard to termination of parental rights, under a clearly erroneous standard. In re Adoption of Ta’Niya C., 417 Md. 90, 100 (2010) (quoting
In re Yve S., 373 Md. 551, 586 (2003)). A juvenile court’s application of the law is reviewed without deference. Id. Ultimate decisions of the juvenile court that are rooted in “sound legal principles” and based on factual findings not found to be in clear error, will be upheld on appeal absent an abuse of discretion. In re T.K., 480 Md. 122, 143 (2022) (quoting Yve S., 373 Md. at 586).
DISCUSSION
I. The court failed to articulate a basis for its determination that exceptional circumstances existed to terminate Mother’s parent-child relationship with J.T. and R.T.
Biological parents have a fundamental right to raise their children. Troxel v. Granville, 530 U.S. 57, 66 (2000). However, the right of parents is not absolute and it must be balanced against the fundamental right and responsibility of the State to protect children, who cannot protect themselves, from abuse and neglect. See In re Adoption/Guardianship of Rashawn, 402 Md. 477, 497 (2007) (citing In re Mark M., 365 Md. 705-06 (2001)). A natural parent’s relationship can be terminated if the court finds by clear and convincing evidence that the parent is unfit or that exceptional circumstances exist such that custody with the parent would be detrimental to the child’s best interest. Id. at 499.
Under Maryland law, the Department of Social Services may petition a court for guardianship of a Child In Need of Assistance. In re Adoption/Guardianship of Jayden G., 433 Md. 50, 56 (2013); see also Md. Code Ann., Family Law Article, Section 5-313 (“FL”). Upon obtaining guardianship, the existing parental relationship with the child is terminated and those “parental rights that emanate from that relationship” are transferred to the Department. Rashawn H., 402 Md. at 496. FL § 5-323(d) provides:
[I]n ruling on a petition for guardianship of a child, a juvenile court shall give primary consideration to the health and safety of the child and consideration to all other factors needed to determine whether terminating a parent’s rights is in the child’s best interests, including: (1)(i) all services offered to the parent before the child’s placement, whether offered by a local department, another agency, or a professional;
(ii) the extent, nature, and timeliness of services offered by a local department to facilitate reunion of the child and parent; and (iii) the extent to which a local department and parent have fulfilled their obligations under a social services agreement, if any (2) the results of the parent’s effort to adjust the parent’s circumstances, condition, or conduct to make it in the child’s best interests for the child to be returned to the parent’s home, including:
(i) the extent to which the parent has maintained regular contact with:
1. the child;
2. the local department to which the child is committed; and
3. if feasible, the child’s caregiver;
(ii) the parent’s contribution to a reasonable part of the child’s care and support, if the parent is financially able to do so;
(iii) the existence of a parental disability that makes the parent consistently unable to care for the child’s immediate and ongoing physical or psychological needs for long periods of time; and
(iv) whether additional services would be likely to bring about a lasting parental adjustment so that the child could be returned to the parent within an ascertainable time not to exceed 18 months from the date of placement unless the juvenile court makes a
specific finding that it is in the child’s best interests to extend the time for a specified period;
(3) whether:
(i) the parent has abused or neglected the child or a minor and the seriousness of the abuse or neglect;
(ii) 1.A. on admission to a hospital for the child’s delivery, the mother tested positive for a drug as evidenced by a positive toxicology test; or
B. upon the birth of the child, the child tested positive for a drug as evidenced by a positive toxicology test; and
2. the mother refused the level of drug treatment recommended by a qualified addictions specialist . . . .
(iii) the parent subjected the child to:
1. chronic abuse;
2. chronic and life-threatening neglect;
3. sexual abuse; or
4. torture;
(iv) the parent has been convicted, in any state or any court of the United States, of:
1. a crime of violence against:
A. a minor offspring of the parent;
B. the child; or
C. another parent of the child; or
2. aiding or abetting, conspiring, or soliciting to commit a crime described in item 1 of this item; and
(v) the parent has involuntarily lost parental rights to a sibling of the child; and
(4)(i) the child’s emotional ties with and feelings toward the child’s parents, the child’s siblings, and others who may affect the child’s best interests significantly;
(ii) the child’s adjustment to:
1. community;
2. home;
3. placement; and
4. school;
(iii) the child’s feelings about severance of the parent-child relationship; and
(iv) the likely impact of terminating parental rights on the child’s well- being.
The juvenile court is required to make findings of fact as to each factor. See In re Adoption/Guardianship No. 95195062/CAD in Cir. Ct. for Balt. City, 116 Md. App. 443, 457 (1997). However, the court’s consideration of other factors, not outlined, is not limited. In re Adoption/Guardianship of H.W., 460 Md. 201, 220 (2018) (citing Rashawn H., 402 Md. at 499). Courts may consider “such parental characteristics as age, stability, and the capacity and interest of a parent to provide for the emotional, social, moral, material, and educational needs of the child.” Ta’Niya C., 417 Md. at 104 n.11 (quoting Pastore v. Sharp, 81 Md. App. 314, 320 (1989)).
In a TPR case, a finding of exceptional circumstances is proper if the facts indicate that “a continued parental relationship [would be] detrimental to the best interest of the child.” Rashawn H., 402 Md. at 499. A parent’s action or failure to act can bear on a finding of exceptional circumstances. Id. at 307 (citing Jayden G., 433 Md. at 101–02) (holding that a mother’s lack of progress to reunify with the child coupled with the child’s positive care with the foster family constituted exceptional circumstances). A court can find that exceptional circumstances exist when a parent’s behavior may not be extreme enough to warrant a
finding of unfitness but is of a nature that justifies termination. In re Adoption of K’Amora K., 218 Md. App. 287, 306 (2014) (citing In re Adoption/ Guardianship No. A91-71A, 334 Md. 538, 563 (1994)).
In In re Adoption of K’Amora K., this Court examined a juvenile court’s finding of exceptional circumstances based on facts similar to the present case. There, the child was removed by the Department of Social Services from her mother’s care at the hospital following her birth due to concerns about the child’s safety. Id. at 289–90. Six days later, the child was placed in foster care, and her mother was granted weekly supervised visitation. Id. at 290–91. The Department ultimately petitioned the court for guardianship and in a TPR hearing, the juvenile court found there were exceptional circumstances to terminate the mother’s relationship. The court found that (1) the mother’s efforts to reunify with the child were inconsistent; (2) the mother failed to complete or attend services offered by the Department of Social Services; (3) the mother demonstrated an inability to care for her other children in the past; and (4) the child “appear[ed] to be on paths of success” with her foster family. Id. At 298–99. On appeal, the mother argued that the court erred in terminating her parental rights. Id. at 301. We disagreed and stated:
We hold that the circuit court neither overreacted nor abused its discretion in terminating Mother’s parental rights. The court faced the reality that sending K’Amora to live with Mother would have uprooted her from the safe and stable . . . family environment she had known. The exceptional circumstances alternative is meant to cover situations, such as this, in which a child’s transcendant best interests are not served by continuing a relationship with a parent who might not be clearly and convincingly unfit. And the court performed precisely the sort of child-specific analysis that FL 5-323(b) requires.
Id. at 310. We explained that a 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 its conclusion. Id. at 304. We held that the juvenile court did provide such detail in its explanation, and thus, the court did not err.
The Maryland Supreme Court in the case of In re Adoption/ Guardianship of Rashawn H., also examined the issue of exceptional circumstances in a TPR case. 402 Md. 477. There, the juvenile court had terminated the parental relationship of a mother with her child after weighing the statutory factors, but the court did not express how those findings led to a conclusion of either unfitness or exceptional circumstances. Id. at 502–
03. The Supreme Court held that in order to terminate the parentchild relationship, a juvenile court must “relate the findings it made with respect to the statutory factors to . . . any exceptional circumstance that would suffice to rebut that presumption.” Id. at 504–05. The Court remanded the case, instructing the juvenile court to make specific findings. Id.
In the present case, the court, in its oral ruling, considered the factors outlined in Section 5-323 and explained its reasoning for those findings. However, the court failed to address those findings, or any other considerations that led to its conclusion regarding exceptional circumstances. The judge stated:
There are exceptional circumstances due to the reasons stated as it applies to 5-323. The Court is not making a determination that the parents are unfit, the Court is making a determination that are – that these – these are exceptional circumstances given all the circumstances and all the evidence that was presented in this case.
The court’s ruling also did not expressly state how any exceptional circumstances would make a continuation of the parent-child relationship detrimental to the best interests of the child.
As in Rashawn, we remand this case for the court to “make clear 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 exceptional circumstances exist sufficient to rebut the presumption favoring the parental relationship, explain clearly how and why that is so.” Id. at 505.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY VACATED; CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS IN CONFORMANCE WITH THIS OPINION. COSTS TO BE PAID BY BALTIMORE CITY.
FOOTNOTES
1 CINA stands for “child in need of assistance.” Under Maryland Code, Courts and Judicial Proceedings Article, Section 3-801(f), 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.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 06 MFLU Supp. 36 (2024)
Physical and legal custody; requisite factors; best interests
Shane A. Shorter v. Sara R. Gibbons
No. 975, September Term 2024
Argued before: Graeff, Berger, Zic, JJ.
Opinion by: Graeff, J.
Filed: Jan. 21, 2025
The Appellate Court affirmed the Anne Arundel County Circuit Court’s award of sole legal and primary physical custody of the minor child to mother. The court thoughtfully and thoroughly analyzed all the requisite factors in determining that an award of primary physical custody to mother was in the best interest of the minor child.
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..
employment, and the parties agreed to split child care costs. Pursuant to the Custody Agreement, neither party paid any child support.
At the time the parties signed the Custody Agreement, Father lived with his parents, Tina and Glenn Shorter. P. lived in the home of Father’s parents during Father’s custodial weeks “for the first six years of her life.” In July 2021, Father purchased and moved into a home two to three miles from his parents’ home. P. did not immediately start living in Father’s new house, however, because it needed renovations that took a couple of months to complete. In late November 2021, Mother emailed Father expressing concern that P. was not staying in Father’s house and was spending most of Father’s custodial time at her paternal grandparents’ home. Mother stated that it seemed like she had “split custody with gammy and pop, not dad,” and she “would love more time with [P.].”
This appeal arises from an order issued by the Circuit Court for Anne Arundel County on motions to modify custody filed by appellant, Shane A. Shorter (“Father”), and appellee, Sara R. Gibbons (“Mother”). The court granted Mother’s motion and awarded her sole legal and primary physical custody of their minor child. It also ordered Father to pay Mother monthly child support in the amount of $2,519.00.
On appeal, appellant presents several questions for this Court’s review,1 which we have consolidated and rephrased slightly, as follows:
1. Did the circuit court clearly err or abuse its discretion in awarding primary physical custody to Mother?
2. Did the circuit court err or abuse its discretion in awarding child support to Mother?
For the reasons set forth below, we shall affirm the judgments of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Custody Agreement and Petition to Modify
Father and Mother are the parents of P., a minor child born in June 2015.2 Mother and Father were never married.
On July 2, 2018, the parties entered into a custody agreement (“Custody Agreement”), which was incorporated into a court order on July 9, 2018. The Custody Agreement provided for joint legal, and shared physical, custody of P. Physical custody was split evenly between the parties on an alternating, “[one] week on, [one] week off,” schedule. The Custody Agreement also provided a schedule for holidays, vacations, and other special occasions. Father agreed to provide medical and dental insurance benefits for P. through his
On October 26, 2022, Mother filed, as an unrepresented litigant, a form Petition to Modify Custody. She alleged that Father “has had multiple Domestic Violence charges as well as a 4th degree sexual assault charge,” and “it appears that [P.] is residing more with the Grandparents than at [Father’s] own residence.” Mother requested full legal and physical custody of P., with Father having weekend visitation every other week. Mother did not check the box on the court’s form document to indicate a request to change the current child support order. The form, however, stated that she was requesting the court to change custody and “order any other appropriate relief.”
On November 30, 2022, Father filed an Answer to Motion to Modify Custody and a Counter-Motion to Modify Custody. He requested sole legal and physical custody, alleging that he “ha[d] serious concerns” regarding Mother’s parenting abilities, including her inability to arrange medical appointments, provide a stable residence, and oversee P.’s homework. He also alleged that Mother forced P. to parent P.’s younger siblings, had untreated mental health issues that affected P.’s behavior and Mother’s parenting abilities, and continuously attempted to “unilaterally control situations” pertaining to P. Father requested that Mother be ordered to undergo a psychological evaluation and that she have only supervised visitation with P. On December 16, 2022, Mother, now represented by counsel, filed an answer to Father’s counter-motion, requesting dismissal, attorney’s fees, and “such other and further relief as the nature of the cause may require.”
On January 26, 2023, the parties attended a scheduling conference. Following the conference, the court issued an order directing the parties to bring financial documents to the next hearing, including documents supporting expenditures set forth in the child support guidelines worksheet. It also ordered Father to file a Child Support Financial Statement by February 9, 2023.3
On February 21, 2023, Mother filed, in a separate matter, a petition for a protective order, requesting relief for herself and P. from threats of violence made by Father. Mother alleged that she received a video recording on February 20, 2023, in which Father discussed a plan to have Mother killed and stated that “he hates children and doesn’t care about anything.” The court issued a temporary protective order that same day and scheduled a hearing on a final protective order for March 7, 2023. On March 14, 2023, after the hearing, the court entered a final protective order against Father, finding by a preponderance of evidence that Father placed Mother “in fear of imminent serious bodily harm.” The final protective order provided, among other things, that Father shall not attempt to contact, harass, or abuse Mother, and shall stay away from Mother’s residence and place of employment, as well as P.’s school and child care provider. The court awarded primary physical custody to Mother for the duration of the protective order and supervised visitation to Father every other weekend.
On April 17, 2023, the court held a pendente lite hearing on the issue of “visitation and access” in the custody case, together with a hearing on the court’s own motion to modify the final protective order in the domestic violence matter. The court modified the “custody and visitation aspect of the Final Protective Order” to provide that the parties would have joint custody of P. pursuant to the July 2, 2018 Custody Agreement, but all transportation would be provided by Father’s parents and all communication would occur through Our Family Wizard.
On May 11, 2023, Father filed a motion to dismiss the final protective order, alleging that, since the issuance of the order, two independent witnesses had come forward with firsthand knowledge that Mother viewed the video at issue in the petition seven months prior to filing the March 2023 petition, not in February 2023 as she alleged. Father also alleged that Mother’s counsel advised her “to file the protective order as a way to ‘win’ the on-going custody case.” Mother moved to strike the motion to dismiss on the grounds that it was procedurally improper and based on “unfounded and baseless accusations.” She also noted that Father could have subpoenaed the two witnesses at the time of the hearing on the final protective order and subjected them to cross examination, but he chose not to do that. On May 30, 2023, the court denied Father’s motion to dismiss the final protective order.4
III.
Pre Trial Hearing
The parties subsequently attended several pre-trial conferences. After the conferences, the court issued pre-trial orders indicating that, at a March 2024 hearing, the issues would include modification of custody, visitation, and child support. On January 30, 2023, a best interest attorney was appointed for P.
IV.
Hearing on Petition to Modify
On March 5, 6, and 7, 2024, the court held a three-day hearing on the petition to modify. At the beginning of the hearing, Mother’s counsel made a preliminary motion in limine to exclude the testimony of the two witnesses who made credibility allegations against Mother in Father’s motion to dismiss the final protective order. Counsel argued that Father was attempting to improperly “re-litigate and retry the
protective order,” which was already “fully litigated.” Father responded that “the fact that [Mother] would lie and deprive [Father] of substantial visitation with [P.] [wa]s a relevant part of this case” and had not been heard “in the context of custody.”
The court reserved the motion, stating that it would make a determination at the time the witnesses were called. It noted that it would not re-litigate the protective order, but it would entertain testimony regarding Mother’s veracity. The court ultimately disallowed the testimony, and Father did not appeal this ruling.
A.
Mother’s Testimony
Mother testified that she lived in Pasadena, Maryland, with P., who was almost nine years old, and her other two daughters, who were turning one and three in a few weeks. She also lived with her fiancé, Samuel Summers, who was the father of her two younger daughters.5 Mother was employed as an assistant estimator for a general contractor. She worked 40 hours per week and earned an annual salary of $60,000. At the time of the hearing, she had worked at her current job for seven or eight months, and she had accepted the position because it offered a higher salary and more flexibility than her previous position.
At the time Mother entered into the Custody Agreement, Father was residing with his parents, Tina and Glenn Shorter. P. spent her custodial weeks with Father at the Shorter’s home. Father moved out of his parent’s home in July 2021. Mother testified that, after Father moved, she “tried to talk to him about getting [P.] acclimated to living with him rather than his parents,” but he always responded with “negative remarks toward [her].” Mother stated that P. had a fantastic relationship with Father’s parents, and she viewed that relationship as important. Prior to filing for a modification of custody, she and Mrs. Shorter had a good relationship, and they spoke nearly every day. They spent holidays together, as well as P.’s birthday. Since filing for the modification, however, Mother and Mrs. Shorter did not speak at all.
Mother testified that, from July 2021 until November 2021, P. was residing solely with her grandparents during Father’s custodial time. She stated that Father would tell her that P. was staying the night with him, but “that was not the case.” Mother testified that P. told her that she spent most of her custodial time with her grandparents, and Mother stated that P.’s grandparents did “the majority of raising her.” Mother believed that P. was “being raised by the grandparents rather than [Father],” and P.’s grandparents “are not meant to discipline and do that kind of stuff that a parent would do.” Mother testified that P. was “spoiled completely” by her grandparents. In response to questioning from Father’s counsel regarding the amount of time P. spent with her grandparents, Mother stated:
A I strongly believe that it’s more than a couple nights a week that she is spending with the grandparents. I believe that they have a majority of the time with the grandparents rather than Mr. Shorter, himself.
Q When you say you believe that, what is the basis of that belief? A [P.] has relayed that to me.
Q I see. So [P.] tells you what?
A I ask her if she got to spend any time at daddy’s house and she will bluntly say, Oh, I had a sleep over, or, No, I was at Grammy’s house this week.
Before Mother obtained the protective order, Father rarely picked up P. from the bus stop. “It was always the grandparents that picked her up [Father] didn’t really do any of thetransportation besides maybe a
time or two.”
Prior to starting therapy, P. had difficulty getting along with her siblings and Mother’s fiancé when she came from her grandparents’ house. P. was mean to Mother’s fiancé, and it “would take a couple of days for her to wind down and get a little bit better but not much better.” Mother scheduled a “therapy in-take” appointment with her younger daughter’s pediatrician because she “thought [P.] might benefit from therapy.” Mother informed Father of the appointment after it occurred because she was concerned that he would use it against her, and she “didn’t think he was going to be for it.” After this appointment, Father stated in a message to Mother: “I haven’t given my opinion on therapy to [P.] as [P.] shouldn’t know how I truly feel about it and she will only receive my support . . . . I will tell you though that she said she doesn’t want to go to therapy and says [she] won’t talk to them.” Based on that message, Mother believed Father was supportive of therapy, so Mother continued it.6
At the time of the hearing, P. was attending therapy weekly. Mother had not yet told Father the name of the therapist, but she did not object to sharing that information. Mother had noticed “an improvement in [P.’s] behavior and general well-being since she started going to therapy.” She believed it was in P.’s best interest to continue with therapy. Mother had concerns about sexual assault and assault charges filed against Father, as well as his aggressive communication style. Father would constantly belittle Mother, and it was impossible to communicate with him. When Mother arranged for Mrs. Shorter to pick up P. at daycare so Mother could attend a medical appointment, Father sent Mother the following text message: “Sorry you are a poor piece of shit that keeps getting pregnant. Maybe worry about not letting your newborn eat dogshit and not letting [P.] get molested by your neighbors.” When Mother sent Father a friendly message reminding him about a change in pick up due to snow, Father responded: “My daughter, my week, I know when I have to get her.” P. has attended daycare at Cuddly Bear Daycare, operated by Johnna Croghan, since 2015. P. attends daycare after school and on weekdays when school is closed. On a typical day, Mother takes P. to the bus stop in the morning, and Ms. Croghan picks her up from the bus stop after school. P. obtained a school transfer so she could be dropped off at her daycare after school. During Mother’s custodial weeks, P. is at daycare for “about an hour and a half” after school. order and scheduled a contempt hearing for March 5, 2024, the same day as the merits hearing. We could not find in the record any ruling on the petition for contempt.
Mother proposed changing the child-care arrangement with Ms. Croghan after she found a nanny who would watch her two younger daughters at her home, and P. after school, until her fiancé came home at 4:00 p.m. Father opposed the arrangement because
P. would potentially be home alone for 15 minutes while the nanny picked up her own daughter from school. When Mother then arranged for a neighbor to cover that 15-minute period, Father filed a request for an emergency hearing. Ultimately, Mother respected Father’s concerns about the proposed child-care arrangement, and they agreed that P. would continue aftercare with Ms. Croghan, and Father would bear the cost.
There were further child-care issues in the summer of 2023. Mother wanted P. to stay home with the nanny so P. could spend time with her sisters. Father opposed the idea, stating that he did not know the nanny’s qualifications and had not met her. Mother attempted to set up a Zoom call for Father to speak with the nanny, but “nothing ever came [of] that.” She also sent him documentation regarding the nanny’s
qualifications, training, and background. On President’s Day 2023, Father objected to the nanny watching P. during Mother’s custodial week. He refused to allow Mother to have custody of P. when Mother arrived to pick her up for the week.
Mother testified that, after the protective order issued in February 2023, the parties sent all communications through Our Family Wizard. Mother sent a message to Father on P.’s birthday to give him “the opportunity to reach out to [her fiancé] and talk to [P.]” without violating the protective order. Father coordinated with Mother’s fiancé to speak with P. later that day. In June 2023, Mother messaged Father and attached a photo to inform him that P. had an injury at home. Father responded, stating that he had taken P. to get medical attention, and CPS would be contacting her. CPS never contacted Mother.
P. started participating in dance in 2022. At first, during Father’s custodial weeks, Mrs. Shorter brought P. to her dance lessons. When Mother stated that she would attend P.’s dance lessons even when it was not her custodial week, Father responded: “[S]top playing this wonder mom role. The Court’s already see[ing the] show you are putting on .
. . The clown emoji.” In the summer of 2023, Mrs. Shorter brought P. to one dance class. After that, P. never returned to dance during Father’s custodial weeks.
Father’s parents also took P. on vacation, which Mother believed was a great experience for P., and she never objected to P.’s grandparents taking P. on a trip. Over Thanksgiving 2023, however, Father informed her that his parents had taken P. to Florida after they had already landed there. When Mother asked Father why he did not inform her of the trip prior to P.’s departure, he stated: “It was a surprise and I couldn’t trust you not to ruin it for [P.].” When Mother asked to speak to P., he told her that he was “uncomfortable having P. speak to [her] outside [Mother’s] allotted time.” Mother testified that she would not have objected to the trip, but she believed she should have been informed that her “child was traveling out of state on an airplane.”
Mother testified about several other communications with Father that she believed were abusive. Mother stated that Father “called [her] every name in the book,” including “[s]lut, whore, bitch, the C word. A poor piece of shit. A clown.” Father also called P.’s siblings the disparaging term “fetus.” Mother introduced text messages from Father prior to P.’s birth in which he states: “Nope. Not mine. I won’t be having a child . . . I could care less if it passes at birth.” When P.’s violin could not be located, Mother messaged Father requesting that he ask P. where she last had the instrument. He responded:
I did. She doesn’t know. Please have it [at] Johnna’s tomorrow so she can practice. As her mother, you should be aware of where her things are. Especially that involves her learning in school. Violin is part of that and she was unable to practice today because of your negligence. You are her mother. You should have her prepared for her school day and sending her with her violin is part of that.
Mother testified that P. had left the instrument at school, and Father never apologized for his accusatory message to her.
Father also was very degrading to his own mother. When Father and Mrs. Shorter would have a disagreement involving P., Father would use P. as a punishment, threatening to keep his parents from seeing P. if Father did not get his way. There were times when Mother would keep P. “for a week during [Father’s] time because of a disagreement between him and his parents.” Other times Mother would “try to mediate between him and his mother to come to an agreement . . . before [giving] up [his] time with [P.]” Mother expressed concern about Father’s inability to control his anger and how he might treat P. as she
got older.
Mother stated that it was nearly impossible to make shared decisions with Father about P. given the parties’ communication difficulties, which caused “quite a bit” of stress. In her experience, Father did not provide input with regard to decisions concerning P.; “[i] t was always just argument.” Mother testified that Father did not show her any respect for her parenting or decision-making and refused to consider switching weekends with her so P. could attend her uncle’s funeral.7 Mother did believe, however, that is was important for Father to have input regarding decisions involving P. She stated that if she were awarded tie-breaking authority she would continue to keep Father informed and would consider his input. She also believed it was important for P. “to maintain a close relationship with her grandparents,” and Father should have frequent, unsupervised visits with P.
B.
Father’s Testimony
Father resided with his parents in Pasadena, Maryland, until 2021. When he moved out, P. did not immediately live with him because the house needed renovations, and Father believed that his parents’ house was a better environment for P. until the remodeling was finished. Once the work was completed, P. began to stay with Father, but she continued to spend several nights per week at her grandparents’ house up until the time of the hearing. In the beginning of 2022, P. stayed four nights at her grandparents’ house, and toward the end of the year, she stayed three nights. After Mother filed the petition for modification, P. stayed only two night per week at her grandparents.
On a typical weekday, Father picked up P. from the bus stop or child-care provider, and they would go to his home, where P. played, did homework, and had a snack. At approximately 6:30, Father would get dinner, P. bathed, and then P. went to bed at 8:30 p.m. P. had her own room and a large playroom in Father’s four-bedroom house. Father and P. played out back on the rope swing, did puzzles and arts and crafts, and played checkers and videogames together. P. had two friends in the neighborhood.
When P. spent the night at her grandparents, she still had dinner and bathed at Father’s house. She then went to her grandparents to go to sleep. P. loves her grandparents. Father denied ever calling his mother terrible names. Either he or his mother took P. to school in the morning, but it “kind of was a tradition” for Mrs. Shorter to bring her. Mrs. Shorter also picked up P. from the bus stop and from the daycare provider.
Father testified that his communications with Mother were not always respectful, and he and Mother could not effectively coparent. He stated that Mother was 90% at fault for their inability to co-parent, but they were equally at fault with regard to the inability to communicate respectfully. When asked if he had taken any action to improve his communication skills, Father said: “I don’t see much of an issue [in] the way I communicate.” Father did not believe that Mother was a good mother, but he believed that he was a good father. He stated that he was very upfront about issues concerning P., but he often he did not hear back from Mother, which hindered his ability to communicate. At the time of the hearing, Mother had not told Father where she was employed.
Father testified that he had two final protective orders entered against him and two final peace orders entered against him since 2021. Three of the four orders involved women that Father had been dating; the other involved a woman who had accused Father of texting too
much after he had contacted her through an on-line dating site. Father testified that the final protective order obtained by Mother against him was “bogus” and based on lies.
Father’s understanding of the protective order was that he could not call P. or have P. call him while she was with Mother. He mistakenly believed that P. was not permitted to communicate with Mother while P. was staying with Mrs. Shorter. The protective order obtained by Mother against him prevented him from attending P.’s doctor’s appointments, dance classes, and school events. Mother, however, arranged for Father to speak with P. on her birthday by having P. call Father on Mother’s fiancé’s phone. When Mother asked to speak to P. while she was in Florida with Father, however, Father would not allow it because he did not want to risk violating the protective order, even using Our Family Wizard or his parents’ phone.
Father testified that, once the protective order expired, it would be in P.’s best interest to have the ability to contact either parent while in the custody of the other. Father did not agree to switch weekends with Mother so P. could attend her uncle’s funeral because P. had no relationship with Mother’s brother, who died of a drug overdose, and he did not believe it was appropriate for P. to attend a viewing with “active drug users and recovering addicts.”
At the time of the hearing, Father was employed as a retirement wholesaler for a company in California. He earned $60,000 annually as base pay and received bonus compensation. The financial statement he filed almost a year prior to the hearing indicated that he earned $18,000 a month, but Father testified that his income had “significantly dropped” since then. Father did not know how much he earned in 2023, but his most recent paystubs were entered into evidence. Father testified that he earned a biweekly gross income of $8,124, as well as a $15,000 bonus in February 2024. He also earned variable compensation based on commissions throughout the year. Father’s counsel objected to the questioning on income on the ground that Mother did not request child support in “any of the complaints.” The court stated that, “whenever there is a modification of custody, there is also going to be a review of what the child support is . . . [b]ased on the administrative directives [of the court].”
Father testified that, when Mother was looking into having a nanny watch P. after school, Mother provided him with a name only, “[n]o phone number, no background check, no awards, no certifications.” He did not recall any efforts to set up a Zoom call with the best interest attorney to meet the nanny. When Father was shown messages to refresh his recollection, he stated that he was expecting information about the nanny from Mother, not by setting up a Zoom call with the best interest attorney. The messages indicated that Father opposed setting up a call with the best interest attorney. Father testified that he would have done “due diligence” to vet the nanny for the safety of P. Although Mother arranged for an adult to stay with P. while the nanny picked up her own child, Father stated that this adult’s minor son had molested P.8
Father did not trust Mother to select appropriate childcare because she “overlooks some of the critical necessities someone would need to properly take care of [P.],” and she sometimes made ignorant choices. He acknowledged, however, that both parents were involved in choosing Johnna Croghan, who was “a good selection.” On President’s Day 2023, Father kept P. on Mother’s custodial day after Mother told him the nanny would be watching P. When Mother then informed Father that she decided not to work that day, Father still kept P. because he was unsure whether Mother was being truthful, and he was exercising
his “right of first refusal.” Father conceded that the Custody Agreement in place did not contain a right of first refusal provision, and since 2022, he had never offered for Mother to exercise any right of first refusal when he was unable to have P. in the evenings due to work events.
Father testified that he did not object to P. attending therapy, but he was never consulted, and he would “need to do my due diligence to see if they are even a credible therapist.” He stated that Mother refused to disclose the name of the therapist and that co- parenting required that she discuss P.’s participation in therapy with him. If there was factual evidence that therapy was in P.’s best interest, Father would have no problem with P. continuing, but Father could not trust Mother’s assessment because she left him out of the decision-making process and had “actively lied to [him].”
Father testified that Mother changed P.’s pediatrician without notifying him in advance, and as a result, he filed a petition for relief from the court. On cross-examination, Father could not remember the name of P.’s pediatrician. He acknowledged that he took P. to urgent care and the “CVS minute clinic” instead of her pediatrician on several occasions because it was easier to get an appointment and “just as good.”9
Father did not believe that P. benefitted from her relationship with her siblings because P. was responsible for a lot of their caretaking, including waking them up, feeding them, and “walking . . . a newborn down two flights of stairs.” Father considered Mother’s other children to be “illegitimate.” Father believed that P. was “essentially [a] full time babysitter to her siblings” and “[v]ery rarely . . . [had] sister play time.” When P. transitioned from Mother’s house to Father’s, she was “always exhausted, always [had] some sort of respiratory issue . . . [and was] always hungry.”10 P. sometimes was in “rugged” clothes and looked “discombobulated.”
Father stated that P. did not always complete her homework while at Mother’s house, and Mother packed P. lunches with expired food that lacked nutritional value. Mother introduced an email, however, showing that P. also missed homework assignments while at Father’s house, even though he had equal access to P.’s schoolwork portal. Mother stated that Father’s testimony regarding P’s incomplete homework was not accurate, and “there was [only] one week that [they] slipped up” due to a miscommunication.
Father testified that, since 2022, P. had less overnight stays and “less visitation time with Gammy.” Mrs. Shorter visited P. at Father’s house “three or more times a week” and sometimes stayed over. She stayed the night more frequently as a “comfort tool” when Father was transitioning P. to her new home. P. still spent the night at Mrs. Shorter’s house once or twice per week when Father traveled or had a networking event. P. usually stayed at her grandparents’ house on Monday evenings because she was coming back from Mother’s. Other than that, it varied depending on the weather, homework, friends, and her grandparents’ plans.
With regard to his travel schedule, Father stated:
Q Okay. You testified that your job does involve travel, is that correct? A Yes.
Q How often does [your job] require travel?
A It is -- it varies. I make my own schedule. So really I kind of plan it around [P.]. If there is a networking event that I can’t kind of move around then I -- That is where Gammy comes in. But I really kind of make my travel schedule.
Q And so how long would your travel be? Would it ever impact your time with [P.]?
A No. No. When I travel, I mean, like maybe for lunch meetings or something like that.
Q So you are not traveling across the country -- A Oh no, no. No.
Father stated that the most he was away for travel was three to four hours for “a networking event, a lunch or breakfast, a happy hour” when P. was in school or at daycare, and it was never overnights. Father could make his schedule around P., and he lived only seven minutes from P.’s school. Despite this flexibility, Father’s parents were available to pick P. up from school if necessary. Father acknowledged, on crossexamination, that he was unable to accommodate Mother’s request to change the scheduled date of the parent/teacher conference due to work.
Father requested full legal and physical custody of P., with Mother having unsupervised visitation every other weekend. He testified that he would be willing to discuss the selection of health care providers and other issues with Mother if he were awarded sole legal custody.11
C.
Testimony of Johnna Croghan
Ms. Croghan had provided after school and summer child care for P. for eight years. She sometimes noticed that P. was tired during Mother’s custodial weeks, but she only had her for approximately 45 minutes in the afternoon. Sometimes P. was “a hot mess” when she arrived at her house, but “it’s after school,” and “[w]hen you go to school, your clothes get[ ] messed up and stuff like that.”
Ms. Croghan testified that P. had “a wonderful relationship with her grandmother,” and they did a lot together. P.’s grandmother picked her up from child care at least three days per week, and sometimes all five days. Croghan stated that P.’s grandmother picked up P. 15 out of 20 days per month.
D.
Testimony of Sam Summers
Sam Summers, Mother’s fiancé, testified that he and Mother had two children together. Mr. Summers was employed by Conai Elevators, and he worked from 7:00 a.m. to approximately 3:30 p.m. He picked up P. from after-school child care at approximately 4:30 p.m. during Mother’s custodial weeks. When P. got home, she got a snack, and when Mother got home, they “talk[ed] about their day,” P. did homework, and then she got ready for bed. P. enjoyed spending time with her siblings, but “[e]very once in a while” they would have conflict with sharing.
E.
Testimony of Christina Shorter
Mrs. Shorter, P.’s grandmother, testified that she had a very special relationship with P., and P. lived with her and her husband for “the first six years of her life.” Father’s new house was three minutes from his parents’ home. Mrs. Shorter described P. as full of energy, “[s] uper-smart,” funny, loving, and kind. Father and P. had a very good relationship, and she and her husband were proud of how Father had embraced being a dad. With regard to her relationship with P., Mrs. Shorter testified that “grandparents add a different element to a child’s life. They have a different perspective I think there’s a lot of value grandparents can add, just from the history and family perspectives.”
Mrs. Shorter denied that her son called her horrible names. Mrs. Shorter previously had a very good relationship with Mother, but Mother “just stopped talking to [her]” about 18 months prior to the hearing. After the protective order was issued, Mrs. Shorter declined Mother’s offers for her to have extra time with P. because she did not want to take the risk of violating the order, and Mother showed “a different side of her that [Mrs. Shorter] had not seen.” Father’s attorney advised Mrs. Shorter that she was not permitted to accept any visits with P. outside of Father’s custodial week. Mrs. Shorter stated that Mother “got that protective order on a lie,” and she was “very disappointed that [Mother] would go to this length and disrupt [P.] the way she did.”
Mrs. Shorter testified that Mother once dropped off P. at her home when no one was there. Mrs. Shorter was at the grocery store when Father called to inform her that Mother was en route to drop off P. Mrs. Shorter hurried to get home and “had just missed [Mother],” who she “had passed . . . on the road going into the neighborhood.” Prior to Father calling her, Mrs. Shorter “knew [P.] may be coming to the house” because “[i]t was the switch day,” and there was discussion of her picking up P. from Mother’s work. Mrs. Shorter testified that she did not have any direct communications with Mother about the exchange. Mother, however, introduced evidence of several text messages sent by her to Mrs. Shorter that day asking when she was going to pick up P. and providing her work address. Mrs. Shorter stated that she never received them. P. was alone at Mrs. Shorter’s home for less than five minutes.12
Since Father’s move, P. still spent the night at her grandparents’ home two nights a week. P. would come over after dinner and homework, at approximately 7:00 p.m. P. had been spending two nights per custodial week at her grandparents’ house for longer than six months. From July 2021 through November 2021, P. stayed with her grandparents full- time while Father’s house was being renovated. After November 2021, Father transitioned P. to his house and decreased the amount of time that P. was with her grandparents. Mrs. Shorter often picked up P. from after-school care.
F. Closing Argument
At the conclusion of the testimony, counsel for Mother and Father, as well as the best interest attorney (“BIA”), gave their closing arguments. The BIA stated that both parents took care of P. while she was in their custody, and there was no evidence of “any abuse, neglect, [or] mistreatment.” The BIA believed, however, that it was in P.’s best interest for Mother to have primary physical and sole legal custody based on Father’s disdainful attitude toward Mother and her family. The BIA expressed concern that Father’s contempt for Mother and her family would affect “the wellbeing of [P.] because, in order to co-parent, you have to believe you are on the same level.” She also questioned what Father was “saying behind closed doors to [P.],” given his public testimony about Mother and her other children. She noted her concern that Father’s “disdain will trickle down to [P.] and . . . will harm her relationship with her siblings, with her step-father, with her mother at some point.” She stated that this was not in P.’s best interest.
The BIA further noted that the ability of the parents to make joint decisions was “non-existent” because Father responded to Mother’s attempts to communicate with insults, and their communication challenges harmed P. by delaying decision-making. The BIA also stated that, based on her conversations with P., she believed P. was with her grandmother more than Father.13
Mother’s counsel began her closing by noting that, when Mother testified regarding the loss of her brother, Father laughed at her. She stated that his actions reflected his poor character and illustrated the “hate and disregard he ha[d] for [Mother],” which he displayed throughout the hearing. Counsel stated that it was uncontested that P. had a great relationship with her grandmother, which Mother encouraged, and would continue to encourage if she were awarded primary custody.
Counsel further argued that there had been a material change in circumstances because Father had moved to a new home, but P. continued to spend the majority of
Father’s custodial time at his parents’ home. She asserted that the evidence was clear that, when P. was in Father’s custody, P.’s grandmother did most of the parenting; Father had relinquished his parenting responsibilities to his parents. Counsel argued that Father lied multiple times during his testimony, and Father’s disdain and disrespect toward Mother prevented the parties from communicating effectively. She requested that the court award Mother primary physical and sole legal custody, as well as child support, and that Father continue to pay for P.’s childcare expenses and health insurance.
Father’s counsel argued in closing that Mother had not “lived up to” the terms of the Custody Agreement because she refused to consult with Father about decisions affecting P., including P.’s participation in therapy. He alleged that Mother welcomed the involvement of P.’s grandparents in their life until she became engaged and was now hostile to Mrs. Shorter and did not want Father involved in raising P. Father’s counsel also asserted that Mother was not truthful in her testimony. Counsel argued that the parties could not co-parent.
V. Court’s Ruling
On July 9, 2024, the court read its opinion into the record. The court first found that there was a material change in circumstances since the Custody Agreement issued in 2018. Father had moved from his parents’ home into his own home and had started a new job requiring travel. The court found that, on multiple occasions while traveling, Father had left P. with his parents overnight. Moreover, Mother was currently residing with her fiancé and her two additional children, one three years old and one ten months old, and she had obtained a final protective order against Father based on a finding of abuse.
The court next addressed the best interest of the child, discussing the requisite factors for custody determinations. It started with the fitness of the parents. The court stated that it had concerns with Father’s fitness, noting that another judge had found him abusive and issued a protective order against him. It found it “very concerning that [Mother] had to go through such lengths to feel a level of security.”
The court then found that both parents had stable homes, loved P., and seemed to want the best for her. It found that, “[f]or the most part,” they each had been caring for P. since birth.
The court next evaluated the character and reputation of each parent. It had significant concerns with Father’s character, noting that he was found to have committed abuse against Mother, and he continued “to be verbally abusive through text message and [Our Family Wizard].” The court found that Father was “disrespectful and demeaning to [Mother],” observing such character in court. Father’s contempt for Mother gave the court “great concern.” Nevertheless, it found Father “to be a good father [who] loves his daughter.” It also found that Mother was a “good mother.”
With regard to the desire of the parents and agreements between the parties, the court noted that, although each party now wanted primary physical and sole legal custody of P., the parties initially agreed to joint legal and physical custody in the Custody Agreement. Mother still wanted Father in P.’s life.
In analyzing the potential for maintaining natural family relations, the court stated that Mother recognized the importance of having Father and his parents in P.’s life, but the “malfeasance” that Father had for Mother “interfered with the relationship that [Mother] and [Father’s] mother enjoyed.” Father did not value the relationship that P. had with Mother or P.’s siblings, and he had “spoken very derogatorily about them,” both in testimony and in writing. The court stated that it did not have faith that Father would “nurture or even support the relationship that [P.] has with her mother or other siblings,” and it was concerned Father’s “actions would affect the love that [P.] ha[d] for [her] younger siblings.”
There was no evidence regarding P.’s preference, and the court found that both parents could financially provide for P. The court found that P. was a healthy and active girl, and she had learned to manage her emotions by attending therapy. Regarding the residences of the parents and opportunities for visitation, the court found that both parents “maintained a stable and appropriate home” for P., “with [the] exception of [Father’s] perception of [Mother],” and each parent had an opportunity for visitation. The court further found that Father had the support of his parents when he was not in town, and they also had provided a stable residence for P. The court found that the factors involving length of separation from the parents and prior voluntary abandonment were not applicable.
Next, the court considered the relevant factors for determining legal custody, beginning with the capacity of the parents to communicate and reach shared decisions affecting P.’s welfare. The court found, based on its review of text messages and communication from Our Family Wizard, that the parents were “not able to effectively communicate.” It found that Father’s belittling and degrading language was “totally unacceptable,” and his “utter disregard and disdain for [Mother] was very apparent throughout the trial and supported by the evidence.” The court noted that Father laughed when Mother cried during her testimony about the loss of her brother, and he “found nothing wrong with allowing” P. to travel to Florida with his parents without notifying Mother. The court found that Father had a clear double standard with regard to communication about medical decisions, becoming angry when Mother placed P. in therapy, but not notifying her when he took P. to get medical care.
Turning to the willingness of the parents to share custody, the court noted that Father was not willing to share custody of P. and wanted sole legal and primary physical custody. It found this concerning because Father was “not always available for overnights” and traveled a lot for work, during which time P. stayed with his parents. The court noted that the testimony of the child-care provider, who the court found credible, was contrary to Father’s testimony about how often he had P. Mother, on the other hand, testified that she wanted P. to spend time with Father as well as Father’s family.
The court determined that the custody determination would not result in disruption to P’s social and school life because the parents lived in the same area, and P. would still have access to her friends. Regarding the demands of parental employment, however, the court found that Father’s job required frequent travel out of town. The court expressed concern that the demands of his employment affected “his
ability to spend time with [P.],” stating that Father “shifts his parental responsibilities to his parents when he travels out of town, allowing [P.] to stay with his parents multiple nights during his custodial time and not notifying [Mother] when he is leaving town or the custodial arrangement that he has made for [P.].” The court found that Mother’s employment was not demanding. She worked a day job when P. was in daycare.
Geographic proximity of the parents’ homes presented no issue because both parties lived in Pasadena, Maryland. The court found that P. had “established a great relationship with both of her parents.” Addressing the sincerity of the parents’ request for custody, the court noted that both parties seemed sincere, but Father believed that he was “superior to [Mother], which diminishes the sincerity of his request.” Father contended that “he was a better parent and that [Mother] was not a good mother,” but the court found that the evidence did not support this contention. Instead, the evidence showed that Mother attempted a collaborative parenting approach with Father, but this was “met every time with deprecating, disparaging, and just downright offensive and demeaning responses.” The court noted that Mother had arranged for therapy for P. to address changes that P. was experiencing.
With regard to financial status of the parents, the court stated that Father earned “significantly more than” Mother. Father’s pay stubs showed that he earned approximately $24,729 the first two months of the year, as opposed to Mother’s $60,000 annual salary. The court found that the custody determination would not impact state or federal assistance and that both parents would benefit from the interaction they have with P.
Finally, the court noted its concern with how Father’s “constant deprecating and degrading behavior” toward Mother would affect P. in the future. Accordingly, the court found that it was in the best interest of P. for Mother to have sole legal and primary physical custody, stating: This Court has not seen in almost four years on the bench such disdain for one parent to the other. As pointed out by the best interest attorney, that the concern is how long before [Father’s] attitude toward [Mother] affects [P.] . . . . This Court does not find it in the best interest of [P.] to wait and see.
The court ordered that Father have visitation every other weekend, and two non- consecutive weekends during the summer, and that Mother have the first right of refusal to have access to P. when Father is out of town.14 The court further ordered that Father contact Mother to inform her when he is going to be out of town, and Father’s “parents may have visitation with [P.] but [Father] does not get to relinquish his access to his parents.” The court noted that civility clauses would be in the final order and that all communications were to continue through Our Family Wizard.
The court next addressed child support, finding that the Child Support Guidelines applied. Pursuant to the guidelines, the court ordered Father to pay Mother $2,519 per month in child support.15 This appeal followed.
DISCUSSION
I.
Custody Modification
Father contends that the court erred or abused its discretion in awarding Mother primary physical custody for several reasons.16 First, he argues that the court’s factual findings regarding Father’s overnight travel and the demands of Father’s employment were clearly erroneous.
Second, he argues that the court impermissibly relied on hearsay statements of P. to find that P. “was spending a significant amount of time with [her] paternal grandparents.” Finally, he argues that, based on the evidence presented and speculation regarding how Father’s behavior might affect P. in the future, the court abused its discretion in awarding Mother primary physical custody and “substantially reducing” his overnight custodial time with P.
Mother contends that the court properly exercised its discretion in awarding her primary physical custody. She argues that its decision was not based on speculation, and the court’s findings regarding Father’s employment and availability to care for P. were not clearly erroneous, asserting that the overwhelming evidence supported the court’s findings regarding P’s overnight visits with her grandparents. Mother contends that the court did not err in relying on P.’s alleged hearsay statements because Father admitted the same evidence, and therefore, any objection was waived.
This Court engages in “a limited review of a trial court’s decision concerning a custody award.” Wagner v. Wagner, 109 Md. App. 1, 39, cert. denied, 343 Md. 334 (1996). We apply three interrelated standards of review. In re Yve S., 373 Md. 551, 586 (2003). First, we review factual findings for clear error. In re R.S., 470 Md. 380, 397 (2020). Second, we review whether the court erred as a matter of law, without deference, under a de novo standard of review. Id. Finally, ultimate conclusions of the court, “when based upon ‘sound legal principles’ and factual findings that are not clearly erroneous, will stand, unless there has been a clear abuse of discretion.” Id. With that standard of review in mind, we address Father’s contentions.
A. Factual Findings
As indicated, one of the court’s findings leading to its custody determination was that Father traveled a lot for work, during which time P. stayed with his parents. Father contends that the court’s factual findings with regard to his travel obligations were clearly erroneous. Mother contends that the court’s finding in this regard was not clearly erroneous, noting there was overwhelming evidence that Father was often not available to care for P., who “spent many of the overnights on [Father’s] weeks with the grandparents.” She further states that, even if the court’s finding in this regard was clearly erroneous, the court did not abuse its discretion in the ultimate custody decision given the totality of the evidence.
In general, “[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.” J.A.B. v. J.E.D.B., 250 Md. App. 234, 247 (2021) (quoting Azizova v. Suleymanov, 243 Md. App. 340, 372 (2019)). To determine whether findings are clearly erroneous, we give “due regard” to the court’s “opportunity to ‘judge the credibility of the witnesses’” as part of “a highly deferential evidentiary review.” MAS Assocs., LLC v. Korotki, 465 Md. 457, 474 (2019) (quoting Md. Rule 8-131(c)). We must accept the circuit court’s findings unless they are “so contrary to unexplained, unimpeached, unambiguous documentary evidence as to be inherently incredible and unreliable.” Kusi v. State, 438 Md. 362, 384 (2014) (quoting Att’y Grievance Comm’n v. Maignan, 390 Md. 287, 295 (2005)).
Here, the court’s findings regarding Father’s unavailability to watch P. were not clearly erroneous. Father testified that, during his custodial weeks, P. spent the night at her grandparents’ house twice a week. He stated that the dates she stayed at her grandparents’ house depended on
“if I have a networking event in the evening.” Father testified that his job involved travel. He subsequently testified that his travel for networking events did not involve overnight travel. There was clear evidence, from Father himself, that he travelled for work. Although Father testified that his travel was primarily for three- to four-hour networking events that occurred while P. was in school or daycare, this testimony contradicted Father’s earlier testimony that he had networking events in the evenings, which resulted in P. staying overnight at her grandparents. The court was free to determine what testimony to credit. See J.A.B., 250 Md. App. at 250 (“Weighing the credibility of witnesses and resolving any conflicts in the evidence are tasks proper for the fact finder.”) (quoting State v. Smith, 374 Md. 527, 533-34 (2003)). In any event, the testimony was uncontested that P. stayed at her grandparents’ house at least two nights per week during Father’s custodial time. The court’s finding that Father travelled for work and left P. in the care of his parents overnight on multiple occasions was not clearly erroneous.
B.
Hearsay
Father next contends that the court improperly relied on hearsay testimony in making its factual findings regarding the overnight time P. spent with her grandparents. Specifically, he points to the following exchange during Mother’s testimony:
A He would tell me that I can’t tell him what to do. He would say that [P.] was over there staying the night. However that was not the case.
Q And how did you know – how did you know that [P.] was spending a significant amount of time [at her grandparents]?
A. [P.] had told me.
[COUNSEL]: Objection. Move to strike.
THE COURT: Overruled.
Mother contends that this contention is not preserved for review because Father subsequently elicited the same testimony. She further asserts that the statement was not hearsay. Finally, she argues that, to the extent that there was error, it was harmless because there was significant other evidence that P. spent a significant amount of Father’s custodial time with her grandparents.
We address first the preservation issue. This Court had made clear that, “if the same or similar evidence is admitted without objection at another point in the trial, [any earlier] object[ion] is waived.” Francois v. State, 259 Md. App. 513, 523, cert. denied, 486 Md. 243 (2023). Accord Benton v. State, 224 Md. App. 612, 627 (2015) (“[O]bjections are waived if, at another point during the trial, evidence on the same point is admitted without objection.”) (quoting DeLeon v. State, 407 Md. 16, 31 (2008)).
Here, after objecting to Mother’s testimony about P.’s statements regarding the time P. spent at her grandparents’ house, Father probed the same issue during his own direct examination of Mother:
Q So you heard [Father’s] testimony, during his week he picks [P.] up, dinner, homework, of course, she has to play outside with the children. And then the only thing that happens is that he goes – she goes to the grandmother’s to sleep a couple nights a week. How is he not making use of the time he has?
A I strongly believe that it’s more than a couple nights a week that she is spending with the grandparents. I believe that [P. has] a majority of the time with the grandparents rather than Mr. Shorter, himself.
Q When you say you believe that, what is the basis of that belief? A [P.] has relayed that to me.
Q I see. So [P.] tells you what?
A I ask her if she got to spend any time at [Father’s] house and she will bluntly say, Oh, I had a sleep over, or, No, I was at Grammy’s house this week.
Because this testimony was elicited by Father’s counsel and admitted without objection, Father has waived any objection to Mother’s earlier testimony. This issue is not preserved for review, and we will not consider it on the merits.
C. Custody Award
Father contends that the court’s award of physical custody was an abuse of discretion. He asserts that the decision was “far outside the range that this Court should consider acceptable.” He further argues that the court improperly relied on speculation regarding potential further harm to P.
Trial courts employ a two-step process when considering a request to modify child custody. Gillespie v. Gillespie, 206 Md. App. 146, 170 (2012). They first determine the threshold question whether “there has been a ‘material’ change in circumstance.” McMahon v. Piazze, 162 Md. App. 588, 594 (2005). A change is material if it affects the “welfare of the child.” McCready v. McCready, 323 Md. 476, 481 (1991). “[I]f the court determines there has been a material change in circumstance, then it proceeds to consider the best interests of the child” in deciding whether the material change necessitates a modification in custody. Jose v. Jose, 237 Md. App. 588, 599 (2018). Accord McCready, 323 Md. at 482.
Father does not dispute that there was a material change of circumstances. Rather, he challenges the court’s determination of the best interests of P. and the ultimate award of physical custody.
In reviewing a trial court’s ultimate custody decision, “an appellate court does not make its own determination as to a child’s best interest.”
Gordon v. Gordon, 174 Md. App. 583, 637 (2007). The circuit court has broad discretion because it sees the witnesses and hears the testimony, and therefore, it “is in a far better position than is an appellate court, which has only a cold record before it, to weigh the evidence and determine what disposition will best promote the welfare of the minor.” In re Yve S., 373 Md. at 586.
“There is an abuse of discretion where no reasonable person would take the view adopted by the [circuit] court, or when the court acts without reference to any guiding rules or principles.” Bord v. Balt. Cnty., 220 Md. App. 529, 566 (2014) (quoting In re Adoption/ Guardianship No. 3598, 347 Md. 295, 312 (1997)). “To constitute an abuse of discretion, the decision ‘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.’” Cousins v. State, 231 Md. App. 417, 438, cert. denied, 453 Md. 13 (2017).
The Maryland appellate courts have addressed factors to guide a court’s custody decision. In Montgomery Cnty. Dep’t of Soc. Servs. v. Sanders, 38 Md. App. 406, 420 (1977), this Court established the following factors to be weighed in its analysis:
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.
(Internal citations omitted). In Taylor v. Taylor, 306 Md. 290, 30411 (1986), the Supreme Court of Maryland expanded on these factors to include: (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’ requests; (11) financial status of the parents; (12) impact on state or federal assistance; (13) benefit to parents; and (14) any other factors as appropriate.
Although the factors set out in Sanders and Taylor instruct a trial court’s custody determination, “no one factor serves as a prerequisite to a custody award.” Santo v. Santo, 448 Md. 620, 629 (2016). Indeed, this Court has emphasized that “the test with respect to custody determinations begins and ends with what is in the best interest of the child.” Azizova, 243 Md. App. at 347.
Based on our review of the evidence, we conclude that there was extensive evidence in the record to support the court’s exercise of discretion in making its custody determination. The court had serious concerns about Father’s fitness as a parent and his character based on his abusive behavior toward Mother, which resulted in the issuance of a protective order. The court found that Father was, and continued to be, verbally abusive to Mother over text messages and Our Family Wizard, and it observed that Father was “disrespectful and demeaning” to Mother throughout the trial. Father’s behavior gave the court “great concern.”
With regard to the potential for maintaining family relationships, the court noted that Mother recognized the importance of having Father in P.’s life, but Father did not “share the same belief” and spoke “very derogatorily about [Mother and P.’s siblings],” both in written evidence and on the stand. The court found that Father’s behavior “interfered with” the positive relationship Mother and Mrs. Shorter had once shared.
There was ample evidence in the record that the parties could not effectively communicate. Father made belittling remarks to Mother, and he failed to tell Mother that
P. was traveling to Florida with his parents. The court noted that Mother’s attempts to co- parent with Father were met with “deprecating, disparaging, and just downright offensive and demeaning responses.”
On the issue of willingness to share custody, the court found that Father did not wish to share custody, but he was not always available to have P. during his custodial time. The court found that P. stayed with Father’s parents on “multiple nights during his custodial time,” resulting in Father shifting his responsibility to his parents. Although Father cites to his testimony that his work did not interfere with his custodial time, the court was within its discretion to discredit this testimony. See Westley v. State, 251 Md. App. 365, 419 (2021) (factfinder can accept all, some, or none of a particular witness’ testimony); Nouri v. Dadger, 245 Md. App. 324, 342 (2020) (credibility determinations are for the fact finder). Moreover, other evidence indicated that P. spent a significant amount of Father’s custodial time with her grandparents.
Finally, Father’s contention that the court improperly speculated during its ruling that Father’s degrading behavior toward Mother would negatively affect P. in the future is without merit. Father relies on Boswell v. Boswell, 352 Md. 204, 235-38 (1998), to argue that the
court failed to “establish a nexus between [Father’s] behavior and any adverse impact on [P.’s] overall wellbeing.” Father further contends that any finding of harm must be “evidence-based” and not grounded in “stereotypical presumptions of future harm.”
As noted by Mother, Boswell addresses requests for limitations or restrictions to custody and visitation based on allegations of harm to a child. Id. at 236 (court must find adverse impact on child before restricting visitation based on presence of non-marital partner in home). Boswell does not stand for the proposition, however, that there must be a finding of actual harm to a child when a court determines that one parent should have primary physical custody in an ordinary modification proceeding.
Here, there was evidence that Father’s behavior was already having a negative effect on P. Mother testified that, when P. returned from Father’s custody, P. “had a very hard time getting along with her siblings” and was mean to Mother’s fiancé. P. called Mother’s fiancé “names like fat, and ugly, and stupid,” and she did not wish to engage with her siblings. It took P. “a couple of days for her to wind down and get a little bit better.” Under these circumstances, the court was appropriately concerned that Father’s conduct would continue to affect P., finding that it was not in P.’s best interest “to wait and see” whether it would also impact P.’s relationship with Mother. As the Supreme Court of Maryland has noted, a court is not required to sit idly by and wait until a child is actually harmed by . . . visitation. If there is sound evidence demonstrating that a child is likely to be harmed down the road, but there is no present concrete finding of harm, a court may still consider a child’s future best interests and restrict visitation.
Boswell, 352 Md. at 237.
The court thoughtfully and thoroughly analyzed all the requisite factors in determining that an award of primary physical custody to Mother was in the best interest of P. The court did not abuse its discretion in granting Mother’s motion for a custody modification.
II.
Child Support
Father’s final contention is that the court erred and abused its discretion in modifying child support because Mother did not request this relief in her motion to modify custody. He asserts that the court erred in overruling his objection to consideration of child support when it stated that “whenever there is a modification of custody, there is also going to be a review of what the child support is.”
Mother contends that the court did not err in awarding her child support. In support, she notes that she requested “any other appropriate relief” in her modification pleadings, and it was within the range of reasonable possibilities that child support would change if there was a change in custody. She further notes that Father was on notice that child support was at issue based on various pre-trial orders.
The “court may modify a child support award subsequent to the filing of a motion for modification and upon a showing of a material change of circumstance.” Md. Code Ann., Fam. Law (“FL”) § 12104(a) (Repl. Vol. 2019). “The term ‘material’ limits a court’s authority to situations where a change is of sufficient magnitude to justify judicial modification of the support order.” Payne v. Payne, 132 Md. App. 432, 442 (2000) (quoting Wagner v. Wagner, 109 Md. App 1, 43
(1996)). A court’s decision to modify child support is reviewed for an abuse of discretion and “will not be disturbed[] unless that discretion was arbitrarily used or the court’s judgment was clearly wrong.” Id. Accord Jocelyn P. v. Joshua P., 259 Md. App. 129, 177 (2023) (decisions regarding child support are always within the sound discretion of the court).
To be sure, as Father notes, on the court-generated form document requesting a custody modification, Mother did not check off the box stating: “I/We also request a change in the current child support order.” “The central point” of looking to the “pleadings in framing the issues,” however, is to put the parties “on notice of the matters in dispute.”
Lasko v. Lasko, 245 Md. App. 70, 82 (2020). We have held that a court has authority to grant any relief authorized by law based on a party’s general request for appropriate relief. Id. at 82-83.
In Payne, we held that the circuit court did not err or abuse its discretion in addressing a request for modification of child support based on written correspondence from counsel “in lieu of a formal motion.” 132 Md. App. at 439. We noted that opposing counsel did not object to the form of the request until the actual hearing on the issue and that the correspondence “contained sufficient facts to give notice and inform the opposing side of the matter in controversy, including the relief appellee sought to obtain.” Id. at 440. The parties were also fully heard on the issue prior to the modification. Id.
Here, Mother requested that the court order “any appropriate relief” in her form petition to modify custody. She also asked the court to “grant such other and further relief as the nature of the cause may require” in her answer to Father’s complaint to modify custody. It is well established that the court may modify a child support payment in a custody modification proceeding when there is a showing of a material change in circumstance, such as transition to or from shared custody. Payne, 132 Md. App at 442-
43. Thus, a change in child support was within the range of reasonable possibilities, particularly where, as here, there was clear notice to Father by the court that it was an issue that the court would hear in the case.
There were several orders that put Father on notice that child support was an issue in the litigation. The court’s December 8, 2022 Order for Remote Scheduling Conference ordered both parties to complete financial statements pursuant to Md. Rule 9-202(f). That rule provides that, if “modification of child support is claimed by a party, each party shall file a current financial statement under affidavit.” Rule 9-202(f). After the scheduling conference, the court issued a Scheduling Order requiring Father to file a short form Child Support Financial Statement by February 9, 2023. Mother’s May 5, 2023 pre-trial statement provides, under the relief sought heading, that she sought “child support and child support arrears.” On May 5, 2023, Mother filed a child support guidelines worksheet, and the court’s July 31, 2023 and January 26, 2024 pre-trial orders both clearly indicated that modification of child support was an issue for the merits hearing. Counsel for both parties signed the January 26, 2024 pre-trial order.
There is ample evidence in the record that Father was on notice of Mother’s request for a modification of child support well before the March 2024 hearing. The court did not err or abuse its discretion in ordering Father to pay Mother monthly child support.17
FOOTNOTES
1 Appellant raised the following questions for review:
I. Was the trial court clearly erroneous in the trial court’s factual findings regarding the demands of the Appellant’s employment and Appellant’s travel?
II. Was the trial court clearly erroneous in admitting hearsay statements of the minor child over the proper objection of trial counsel for the Appellant?
III. Did the trial court abuse its discretion in awarding Appellee primary physical custody and substantially reducing Appellant’s overnights with the minor child when relying on clearly erroneous fact finding and hearsay statements of the minor child?
IV. Did the trial court abuse its discretion in awarding Appellee primary physical custody and substantially reducing Appellant’s overnights with the minor child on the testimony and evidence presented?
V. Did the trial court err and abuse its discretion in awarding Appellee primary physical custody and substantially reducing Appellant’s overnights with the minor child based on speculation?
VI. Did the trial court err and abuse its discretion in awarding child support when neither the Appellant nor the Appellee pleaded for a modification of the existing child support arrangement?
2 We use initials for the minor child to protect the child’s privacy.
3 Mother filed her financial statement prior to the conference.
4 Father filed a flurry of other motions prior to the merits hearing on the petition to modify, including: a motion for an emergency hearing based on Mother’s attendance at a family function with her brother, who is a registered sex offender; a petition for emergency hearing based on a proposed change to childcare arrangements; motions to compel discovery; a motion for pendente lite relief based on P.’s missing schoolwork; and a petition for contempt based on Mother’s efforts to schedule therapy for P. Father also filed a separate lawsuit against Mother alleging invasion of privacy and defamation, which was dismissed for failure to state a claim.
5 At the time of the hearing, Mother was actively looking for a new rental place because the owners of her current residence were selling the house and did not renew her lease. She was looking for a new rental in
the same area and school district as her current residence.
6 On December 19, 2023, Father filed a Petition for Expedited Contempt, alleging that Mother violated the Custody Agreement by unilaterally changing P.’s doctor and scheduling therapy without first consulting Father. He requested that the court issue an order preventing Mother from continuing with therapy. The court issued a show cause
7 Father laughed as Mother began to cry while testifying about her deceased brother.
8 Father stated that he reported the incident to the police, but he decided not to pursue it after speaking to the child’s parents.
9 Mother stated in her testimony that she had not changed P.’s pediatrician. She also noted that Father did not inform or provide any information to her before seeking medical care for P.
10 Mother testified that P.’s grandparents had, on a “couple instances,” asked that Mother not feed P. because they planned on providing P. dinner.
11 Olivia Reynolds, Father’s brother’s girlfriend, testified that she and her 11-year- old daughter spent time and went on outings with Father and P. She stated that Father was a “very good, hands on father” and it “would be beneficial for [P.] to have time with and a relationship with [Father].”
12 Mother’s testimony regarding this incident conflicted with Mrs. Shorter’s. Mother stated that when she dropped off P., Mrs. Shorter’s car was in the driveway, and the door was unlocked, so P. went inside. After hearing Mrs. Shorter call out to P., Mother left and returned to work.
13 On June 14, 2024, before the court issued its decision, Mother filed a motion for expedited hearing, requesting the court to allow additional evidence in support of her motion to modify custody. She alleged that Father was attempting to “sabotage” their child care arrangement and disrupt P.’s stability after Mother moved to a new school district. The court denied the motion.
14 Although the court’s statement in court and in its final order grants Father “two non-consecutive weekends during the summer,” in context, it appears that the court ordered two weeks in the summer, which is what Mother states in her brief.
15 After the court issued its ruling, the following occurred:
[FATHER]: Okay. You’re out of your mind. THE COURT: Sir, I suggest that you monitor your language. [FATHER]: I did. I said, you’re out of your mind. I’m freedom of speech. That’s all I said. I will leave now.
16 Father does not appeal the court’s ruling on legal custody.
17 Father does not contest the amount of child support awarded or that there was a material change justifying a modification.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Allegheny County Circuit Court’s monetary award of $38,521.72 to wife, along with a 20 percent interest in husband’s retirement account. Wife’s informal brief did not explain why the trial court erred or made a mistake in deciding the case.
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..
Issue 9: Furniture in [Mr. and Ms. Twigg’s] home[s]
Issue 10: Timeshare
Issue 11: Bullet camper
Issue 12: Crawford credits
Issue 13: Mazda 2014 car
Issue 14: Additional information
For the following reasons, we shall affirm the judgment of the circuit court.
BACKGROUND
On November 26, 1988, Allan Twigg married Linda Twigg. The parties began living separately on February 21, 2020. On September 21, 2020, Ms. Twigg filed a Complaint for Absolute Divorce in the Circuit Court for Allegany County. According to the complaint, three daughters were born of the marriage of the parties, all of whom were emancipated at the time of the divorce proceedings. On May 4, 2021, the court entered a Judgment of Divorce, reserving on the issues of property.
On May 4, 2021, the Circuit Court for Allegany County entered a Judgment of Divorce ending the marriage of Linda Twigg, appellant, and Allan Twigg, appellee, but reserving jurisdiction “on the issues of marital property and marital award.” The trial for the determination of the property issues took place over three days in 2022. On January 26, 2023, the circuit court issued a Memorandum of the Court (“Memorandum”) that resolved the parties’ property issues. On the same day, the court signed an Order of Court that, among other things, granted to Ms. Twigg (1) a monetary award of $38,521.72, and (2) a Qualified Domestic Relations Order for a twenty percent (20%) interest in Mr. Twigg’s Maryland State Retirement and Pension System (“MSRPS”) account.
On appeal, Ms. Twigg, proceeding pro se, presents fourteen issues for our review. Unfortunately, Ms. Twigg fails to “identify issues that explain why the trial court erred or made a mistake in deciding the case,” as is required by the Guidelines for Informal Briefs. See Guidelines for Informal Briefs ¶ (b)(2). Instead, Ms. Twigg simply lists subject matter titles as “issues,” such as “Issue 1. Marital Property –Appraisal.” Nevertheless, because we believe that we can glean from her argument the legal error or abuse of discretion asserted by Ms. Twigg, we will address her appellate issues. As stated in her brief, Ms. Twigg sets forth the following issues:
Issue 3: [Ms. Twigg’s] oldest son Issue 4: CMG retirement
Issue 5: [Mr. Twigg] paid mor[t]gage payments through BB&T not Chessie Credit Union
Issue 6: [Ms. Twigg] took $2,000 from [Mr. Twigg’s] checking acct
Issue 7: Cattle
Issue 8: Kubota Tractor
The trial for the determination of the property issues took place on February 28, March 22, and May 9, 2022. On the first day of the trial, the parties advised the court of several amendments to the Joint Statement of Parties concerning Marital and Non-Marital Property (“9207 Statement”). On the second day of the trial, the parties entered into evidence Joint Exhibit 2, which incorporated the oral amendments to the 9-207 Statement. In Joint Exhibit 2, the parties stipulated, among other things, to the values of 508 Sampson Rock Road in Frostburg, MD (the “Home”) and three additional parcels of undeveloped land on Sampson Rock Road.
The trial court’s Memorandum, issued after the trial on January 26, 2023, is set forth below in its entirety:
MEMORANDUM OF THE COURT
This action was initiated on September 21st, 2020 when Plaintiff, Linda Twigg, filed a Complaint for Absolute Divorce naming Allen Twigg as the Defendant. This matter came before the Court for a hearing on the merits on May 3rd, 2021; Plaintiff and Defendant were both present with counsel. The primary issue between the parties is the division of marital property pursuant to their divorce. The Court entered an Order granting an Absolute Divorce on the grounds of mutual consent on May 4th, 2021, reserving on the issue of property.
1. Factual Background
Plaintiff and Defendant were married on November 26th, 1988. At issue between the parties primarily revolves around real property located on Sampson Rock Road along with various items of personal property. Plaintiff is requesting that this Court order all the marital property of the parties be sold and that the proceed
from that sale be divided equally among the parties. Conversely, Defendant is asking the Court for a division of the marital property that would not include the sale of the real property at stake. As noted, the parties were married in, 1988 and purchased property on Sampson Rock Road in 1990 and built on that location. Both parties resided there until the Plaintiff moved out of the home in February of 2020. During the course of the marriage, the properties on Sampson Rock Road were deeded in the name of both parties. The marriage itself quickly deteriorated to the point of grant animosity between husband and wife. Through testimony it was offered that the Defendant was an excessive drinker and was verbally abusive towards her. Defendant offered evidence regarding the Plaintiffs infidelity and argumentative behavior during the marriage. Regardless, it is clear to the Court that the marriage had been failing for many years with each of the parties harboring disdain for the other. Furthermore, it appears that the Plaintiff’s oldest son was the product of previously mentioned infidelity. The Defendant was employed by the Board of Education for the majority of the marriage while the Plaintiff maintained employment with Children’s Medical Group (CMG) during a portion of the union. Plaintiff ultimately left CMG in 2012 and subsequently transferred her retirement account to LPL Financial and withdrew the funds to pay for bills and schooling before closing the account. Parties maintained separate bank accounts during the course of the marriage although there were instances where the accounts were listed to both parties. Defendant paid for mortgage and upkeep of the residence on Sampson Rock Road and other living expenses. The residence was also refinanced on two occasions to help reduce indebtedness. Cattle were maintained at the farm that would provide food for the parties during the marriage. A Kubota tractor was also purchased during the marriage by the defendant for shared use with his daughter and son-in-law and was paid for on a 50/50 basis. After the parties separated the Plaintiff took $2000 from Defendant’s checking account and a $1400 Stimulus Check in his name. Defendant paid $23,495 in property mortgage, taxes, and insurance between separation, in February 2020, and divorce, in May 2021, and $21,293.56 subsequent to the divorce.
The parties submitted as a Joint Statement of Marital and NonMarital Property in accordance with Maryland Rule 9-207. They agreed on record that property acquired after separation is to be excluded from consideration as nonmarital, except for the value Defendant received for the trade-in of an older truck when he purchased a new truck. Furthermore, the parties stipulated as to the value of 508 Sampson Rock Road in the amount of $253,500. During trial, the parties agreed that the property at 497 Sampson Rock Road would be deemed marital, that the canner would be returned, and that the propane fire pit and the air conditioner were Plaintiffs. Defendant conceded that the dog was Plaintiffs. The parties agreed on the record that the value of Defendant’s American Funds account would be as of the date of divorce. Defendant indicated in his memorandum that the assets’ values were “somewhat unimportant,” except for the principal residence comprised of the four parcels of real estate, the American Funds account, the retirement accounts, the cattle, the Mazda, and the interest in the Kubota. The parties dispute the value and the marital/ nonmarital status of the cattle and the Kubota. Defendant solely purchased the cattle, butchered a cow each year for its meat, and at the time of separation it consisted of two cows and two calves, the
value of which he testified to be $2400. The Kubota was financed in Defendant’s name, but he acquired it in conjunction with his daughter (and her husband) and the loan payments were divided equally between them. The parties agreed the mountain bike and one kayak, were nonmarital, being directly traceable to non-marital sources.
II. Issue
The question before the Court is what monetary award is proper, under the circumstances of this case, where the parties are not in agreement as to whether some of the property was marital, as to its value, and as to the equities and rights of each party.
III. Discussion
In resolving marital property disputes, the Court must follow threestep process, Marital Property Act, Md. Code Arm, Fam Law § 8-201 et. seq.
Step 1 – Determination of which property is marital property. Id. § 8- 203.
Step 2 – Determination of the value of marital property, Id. § 8-204(a).
Step 3 – The Court may grant monetary award, Id. § 8-205[.]
1. Determination of Marital Property
Parties agree that the properties on Sampson Rock Road are marital. Defendant identifies disputes over marital property involving the (1) cattle, the (2) Kubota tractor and (3) the family Dog.
(1) The Cattle
Defendant asserts that the cattle in question should not be considered marital property due to his assertion that all of the expenses associated with the cattle were paid directly from him (from purchase to upkeep). The Court is not persuaded on the defendant’s reliance on Pleasant v. Pleasant, 97 Md. App. 71, to support this argument. The cattle in question were clearly purchased during the course of the marriage and, accordingly, will be considered marital property.
(2) The Kubota Tractor
The Court is not persuaded that the tractor should not be deemed marital property based on testimony that the Plaintiff never used the machine nor paid any of the loan. As with the cattle, the Court is satisfied that the tractor was purchased during the course of the marriage with the Defendant owning 50% interest. The Defendants interested shall, therefore, be considered marital property.
(3) Household Dog
Defendant has stipulated the dog was property of the Plaintiff. In addition to the items referenced by the Defendant, the Court also finds the following constitute marital property.
(1) Plaintiff’s CMG/LMP retirement accounts
(2) $1800 auto insurance overpay
(3) $2000 removed from the checking account by the Plaintiff
(4) $1400 stimulus check cashed by the Plaintiff
(5) 2021 Ram Truck
(6) Zero Turn Mower
(7) Furniture/goods in the Plaintiff’s house.
Since the LPL account and Plaintiff’s retirement accounts were acquired before separation, they are considered marital. However, those accounts and the $1800 auto insurance overpay will not factor into the award because they were exhausted before separation. The
Court finds the $2,000 in Defendant’s bank account and the $1,400 Stimulus Check to be marital. The trade-in value for the truck and the 2021 Ram Truck will not be considered because no evidence was introduced as to the trade-in value, and the acquisition of the 2021 Ram Truck was post-separation. The Court will not take into consideration the value of the Zero Turn lawnmower due to limited evidence of value compared to incumbrance value. Furniture in Plaintiff house is marital because there is no indication of postseparation acquisition.
2. Determination of the Value of Marital Property
The value of the Kubota tractor is in dispute between the parties with Plaintiff asserting and value of $20,000 and Defendant’s valuation of $10,000. (Joint Exhibit #2) While the Defendant is correct in his observation that little evidence was provided at trial regarding the value of the tractor, the Court is permitted to ascertain value based on the Joint Statement of Marital and Non-Marital Property in accordance with Maryland Rule 9-207. Accordingly, the Court values the tractor at $10,000. Parties stipulated that the American Funds account value is $36,032. The Court excludes the furniture at Defendant’s and at Plaintiffs homes from consideration as they appear to be of similar value for award purposes. The value of the timeshare is unknown and will be determined upon its sale. All interest in the Bullet Camper is to be assigned to Defendant, because of the de minimis equity interest resulting from the difference between its liens and its fair market value. The Court finds the value of the Mazda to be $3,000 based on the testimony and the parties’ submitted memoranda. The Court adopts $2,400 as the value of the cattle. The equity in the four parcels of land is worth $ 84,800 ($253,000 - $188,000 + $3,000 + $15,200 + $1,600).
3. Monetary Award
Under Md. Code Ann, Fam. Law § 8-205(b), in considering Monetary Award to adjust the equities and rights of the parties concerning the balance of marital property, the Court makes the following findings with regards to each factor:
a. Both Parties contributed monetarily and non-monetarily to the well- being of the family. Both maintained employment and cared for the children.
b. Values of the nonmarital property interest of both parties are similar.
c. The economic circumstances of each party at the time the award is to be made are such that each is able to find employment and have maintained steady employment.
d. Both parties contributed to the deterioration of the marriage.
e. The parties were married in 1988, and the divorce decree was entered in 2021, for total of 33 years.
f. Parties are of comparable ages.
g. Plaintiff and Defendant are of average health and appear to be mentally fit.
h. Both parties expended efforts in accumulating the interest in the marital property. The Court notices that with regards to the MSRPS retirement accounts, that both parties were employed and maintained separate accounts, contributing from these accounts to the family expenses.
i. Not Applicable.
j. No awards of alimony.
k. Both parties contributed to the property jointly owned. Each
party contributed separately from employment to its own retirement account and MSRPS, which the court considers in order to arrive at fair monetary award or transfer of interest in property described in (a)(2) of this section.
The $1,200 stimulus check will not be considered in the award, because of lack of evidence regarding its disposition. The Court awards the Zero Turn lawnmower to Defendant. The timeshare is ordered sold, and each party shall be awarded an equal share from the sale proceeds. After careful consideration of the factors, especially § 8-205(b) (h) and (k), the Court will enter Qualified Domestic Relations Order (“QDRO”) to award to Plaintiff twenty per centum (20%) of Defendant’s MSRPS account provided that the Defendant waives any interest in the Plaintiff’s retirement account. Equally divisible is the following property interests:
1- Interests of which title the Court awards to Defendant, and of which half value the Court awards to Plaintiff:
The four parcels of land, $84,800, The Cattle, $2,400, Defendant’s interest in the Kubota, $5,000, The American Funds, $36,032.
2- Interests of which title the Court awards to Plaintiff, and of which half value the Court awards to Defendant:
The Mazda, $3,000; Half of which value is $1,500.
3- Crawford Credit
Defendant is entitled to $22,394.28, one half of the $44,788.56 Crawford credit. The presumption of gift between separated spouses was abolished, and spouse can seek contribution in those instances when married parties were not residing together and one of them, or the other, had paid disproportionate amount of the carrying costs of property. Crawford v. Crawford, 293 Md. 307 (1982). Crawford derives from the principle of contribution, that “one co-tenant who pays the mortgage, taxes, and other carrying charges of jointly owned property is entitled to contribution from the other.” Flanagan v. Flanagan, 181 Md. App. 492 (2008); 293 Md. 307. Defendant paid the sum of $23,495 in mortgage, taxes and insurance on the property between separation and divorce and paid the amount of $21,293.56 subsequent to divorce. Thus, the Court finds Defendant owed contribution in the amount of half the $44,788.56 Crawford credit.
Money awarded to Plaintiff is $64,116 - $1,500 - $22,394.28 = $40,221.72
The above-calculated sum is lowered by $1,700, half the sum of the $2000 and the $1400 Stimulus Check taken by Plaintiff.
Total Money awarded to Plaintiff is $40,221.72 - $1,700 = $38,521.72
A separate order shall be entered.
IV. Conclusion
For the reasons contained herein, the Court hereby determines that in order to equitably divide the parties’ marital property, the timeshare is ordered sold, and each party is awarded an equal share from the sale proceeds. QDRO will be entered to award Plaintiff twenty per centum of Defendant’s MSRPS account. Plaintiff is granted monetary award in the amount of $38,521.72 to be paid by Defendant within 60 days of the date of this memorandum.
The trial court incorporated the provisions of the Memorandum’s Conclusion in the Order of Court issued on January 26, 2023.
STANDARD OF REVIEW
Our Court has “appellate jurisdiction over any reviewable judgment, decree, order or other action of a circuit court[.]” Md. Code Ann., Cts. & Jud. Proc. § 12-308. Thus we review only claims of error or abuse of discretion by the trial court.
“Ordinarily, it is a question of fact as to whether all or a portion of an asset is marital or non-marital property.” Innerbichler v. Innerbichler, 132 Md. App. 207, 229 (2000). “The value of each item of marital property is also a question of fact.” Flanagan v. Flanagan, 181 Md. App. 492, 521 (2008). This Court will not disturb a factual finding unless it is clearly erroneous. Innerbichler, 132 Md. App. at 229-30. A decision to grant a monetary award and the amount of such award is reviewed for abuse of discretion. Richards v. Richards, 166 Md. App. 263, 272 (2005). Any determination of a question of law made by the trial court is reviewed under a de novo standard of review. Flanagan, 181 Md. App. at 521.
Regarding the admission of evidence, “[t]he decision whether to allow or preclude the admission of evidence is generally committed to the sound discretion of the trial court.” CR-RSC Tower I, LLC v. RSC Tower I, LLC, 429 Md. 387, 406 (2012). “We will only find an abuse of such discretion ‘where no reasonable person would share the view taken by the trial judge.’” Id. (quoting Consol. Waste Indus. v. Standard Equip. Co., 421 Md. 210, 219 (2011)).
A trial judge, however, “has no discretion to admit hearsay in the absence of a provision providing for its admissibility.” Bernadyn v. State, 390 Md. 1, 8 (2005). Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Md. Rule 5-801. Hearsay is reviewed de novo. Bernadyn, 390 Md. at 8.
DISCUSSION
I. Issue 1. Marital Property – Appraisal A. Background
In Joint Exhibit 2, which was admitted into evidence on the second day of trial, March 22, 2022, both parties valued the Home at $253,500. As to the three undeveloped parcels of land on Sampson Rock Road, both parties agreed in Joint Exhibit 2 that they were collectively worth $19,800 (6.02 acres at $3,000; 1.55 acres at $15,200; and 497 Sampson Rock Road at $1,600). Nevertheless, on May 1, 2022, Ms. Twigg obtained appraisals of the Home and the three undeveloped parcels of land (the “Appraisals”). The Appraisals valued the Home at $280,000 and the three undeveloped parcels collectively at $114,000.
On the third day of trial, May 9, 2022, Ms. Twigg testified that she attempted to get the Appraisals during the divorce proceedings, but that she “got a criminal charge and a protective order every time I went to the [Home].” Ms. Twigg then stated that she was ultimately able to obtain the Appraisals, and the following exchange occurred:
[MS. TWIGG’S COUNSEL]: Did you ultimately get an appraisal of the properties?
[MS. TWIGG]: Yes.
[MS. TWIGG’S COUNSEL]: Your Honor, may we approach?
[BY THE COURT]: Yes.
(BEGIN BENCH CONFERENCE)
[MS. TWIGG’S COUNSEL]: I just thought I would bring this to the Court’s attention directly, Your Honor. I have appraisals that were completed of the four properties, for the properties, the main property and then some, three adjoining properties that my client retained an appraiser to do last week and she provided me with
these today. They are dated May 1st. It would be our position that it was, that the Plaintiff, she is the Plaintiff, was actively prevented from getting appraisals by the Defendant, who would not allow her to come on the property, and so I realized these were not produced in discovery, but we would be offering them for evidence.
[MR. TWIGG’S COUNSEL]: This matter has been pending since the parties separated in February of 2020. Questions were asked with respect to experts. She has been represented by counsel up until the time of the divorce, after the divorce. At any time during that period had there been issues, first of all, testimony regarding the value of the house is all heard. Leaving that aside, if there were issues, requests for entry onto the property could have been filed. There are a multitude of ways that she could have gotten on the property, not that I buy anything that she is saying, but if the appraisal was to have been done, it could have been achieved under the rules. This trial started in February. We are now two months plus after the trial started. To come up with appraisals from a week ago, whatever, is subject to objection. I would object. This individual is not designated as an expert, two, is not produced in response to discovery, three, comes after the trial has started. I have had no opportunity to look at these, I have no opportunity to do anything and I don’t know what they say. I think it is totally inappropriate, and moreover, hearsay.
[BY THE COURT]: Response?
[MS. TWIGG’S COUNSEL]: Just very briefly, Your Honor. In terms of her testimony as to why she couldn’t go on the property, I think Mr., I think Mr. Twigg testified to the same thing, that he filed criminal charges against her, that he filed a protective order against her, so I don’t know that that testimony is unbelievable. You will just have to review the transcript for that.
We simply believe that in the interest of fairness concerning her access to the property, that it was limited and that the Court should consider these documents.
[BY THE COURT]: Okay. I think it is a little late in the game for them. I am not going to permit those to be entered.
[MS. TWIGG’S COUNSEL]: For the record, Your Honor, I would like to mark these as exhibits.
[BY THE COURT]: Okay.
[MS. TWIGG’S COUNSEL]: To go in the file, understanding they are not admitted.
[BY THE COURT]: Understood.
[MS. TWIGG’S COUNSEL]: Thank you, Your Honor.
[MR. TWIGG’S COUNSEL]: And my objection goes to the discovery aspect, and also with that, hearsay.
[BY THE COURT]: Okay. Sustained. [MR. TWIGG’S COUNSEL]: Thank you.
B. Restatement of Ms. Twigg’s Issue
From a consideration of Ms. Twigg’s argument, we believe that Ms. Twigg’s issue is: “Whether the trial court erred when it denied the admission of Ms. Twigg’s Appraisals into evidence.”
C. Arguments of the Parties
In her opening brief, Ms. Twigg’s argument on this issue is, in its entirety, as follows:
Appellee Mr. Allan Twigg only submitted a tax assessment on the home of $162,800.00 as well as the additional property valued @ [sic]
$18,200.00 (property already [] for, a total of $191,000.00 owed on the marital home, at the time of this so called divorce on 5-3-21. After being told by previous attorney Robert Alderson that “I DID NOT HAVE A SETTLEMENT” leading to the investigating grievance (see pages 64-100)[.] I located an appraisal from 10-3-19 for $253,500.00 just for the marital home. After investigating & attempting to get several appraisals after this so called divorce hearing on 5-3-21 (see page 1)[.] I noticed another piece of property deeded in my name also. Finally, after several attempts to obtain an appraisal since both attorneys (Wilkinson & Rozas) told me not to go on the property (See page 13)[.] I finally obtained an appraisal through GTA – Gary Kroll (pd [sic] $1,800.00 for appraisal) (See pages 38-42) on 5-3-22, marital home appraised for $280,000.00 & the 4 parcels of property valued at $114,000.00 – for a total of $394,000.00 – $191,000.00 in debtness [sic] with a difference of $203,000.00. However the court –Judge Michael Twigg would not allow the appraisal to be submitted into court on our last hearing – stating it was inappropriate & moreover hearsay (See pages 12) & that we were already divorced on 5-3-21 and no further documents were able to be submitted at this property hearing – not even an appraisal for this [] hearing on property we purchased together because Mr. Twigg stated he made all payment out of BB&T account for property and not from our Chessie Credit Union Acct [sic] (See pages 310-311-314-316-319)[.] [1]
Ms. Twigg appears to argue that the trial court erred by not allowing her to introduce the Appraisals into evidence. As a result, according to Ms. Twigg, the court undervalued the Home by $26,500 ($280,000$253,500) and the undeveloped parcels by $94,200 ($114,000 - $19,800). Mr. Twigg responds that the parties stipulated, in Joint Exhibit 2, that the value of the Home was $253,500 and the value of the undeveloped parcels was $19,800. Furthermore, Mr. Twigg contends that the court did not err by excluding the Appraisals because they were not produced during discovery and were hearsay.
D. Analysis
As stated by Mr. Twigg in his brief, and confirmed by our review of the transcript, the parties stipulated to the value of the Home and undeveloped parcels in Joint Exhibit 2. Such stipulation was entered into evidence on March 22, 2022, without objection from Ms. Twigg. Moreover, the Appraisals were hearsay because they were offered into evidence without the testimony of the authoring expert. See Bernadyn, 390 Md. at 9. Thus the trial judge had no discretion to admit the Appraisals into evidence. Id. at 8. Accordingly, the trial court did not err by excluding Ms. Twigg’s Appraisals.
II. Issue 2: Infidelity and Issue 3: [Ms. Twigg’s] oldest son A. Background
Regarding the issues of infidelity and the parties’ oldest “son,” the trial court stated in its Memorandum: “[Mr. Twigg] offered evidence regarding [Ms. Twigg’s] infidelity and argumentative behavior during the marriage. . . Furthermore, it appears that [Ms. Twigg’s] oldest son was the product of previously mentioned infidelity.”
B. Restatement of Ms. Twigg’s Issues
From a consideration of Ms. Twigg’s argument, we believe that Ms. Twigg’s issues can be expressed as one issue: “Whether the trial judge erred by stating that (1) Mr. Twigg offered evidence of Ms. Twigg’s infidelity, and (2) it appears that Ms. Twigg’s oldest ‘son’ was the product
of such infidelity.”
C. Arguments of the Parties
Ms. Twigg first argues that there was no evidence of her infidelity and that Mr. Twigg’s testimony about her infidelity was never documented. Ms. Twigg then claims that the trial judge erred when he wrote that her eldest “son” was the product of her infidelity.2 Mr. Twigg counters that there was evidence of Ms. Twigg’s infidelity in his own testimony and a text message, entered into evidence as Defendant’s Exhibit 9, from Ms. Twigg admitting to the infidelity.
D. Analysis
The trial court’s statement that the parties’ eldest child is a “son” was clearly erroneous, because the evidence shows that the couple’s oldest child is a daughter. Although such statement was error, this Court will not reverse a lower court for harmless error. Harris v. David S. Harris, P.A., 310 Md. 310, 319 (1987). “‘To justify reversal two things are essential. There must be error and there must be injury; and unless it is perceived that the error causes the injury there can be no reversal merely because there is error.’” Id. (quoting Joseph Bros. Co. v. Schonthal, 99 Md. 382, 400, (1904)). An injury occurs when the error “influenced the outcome of the case.” Id. In this case, the court’s statement that the oldest child was a son did not affect the outcome of this case. Therefore, it was harmless error.
The trial court found that Mr. Twigg offered evidence of Ms. Twigg’s infidelity. Such finding was not clearly erroneous. Mr. Twigg testified that Ms. Twigg “told [him] on numerous occasions that [], that our daughter essentially was not my child.” He also introduced Defendant’s Exhibit 9, which was a text message from Ms. Twigg stating that she had been having an affair with “Brian” “for 32 years.” In addition, the court did not find that the parties’ eldest “son” was the product of such infidelity. The court wrote that “it appear[ed]” that such infidelity produced the eldest child. In light of Mr. Twigg’s testimony and the text message, the court’s statement was not clearly erroneous.
III. Issue 4: CMG retirement
A. Background
In its Memorandum, the trial court stated:
[Mr. Twigg] was employed by the Board of Education for the majority of the marriage while [Ms. Twigg] maintained employment with Children’s Medical Group (CMG) during a portion of the union. [Ms. Twigg] ultimately left CMG in 2012 and subsequently transferred her retirement account to LPL Financial and withdrew the funds to pay for bills and schooling before closing the account.
B. Restatement of Ms. Twigg’s Issue
From a consideration of Ms. Twigg’s argument, we believe that Ms. Twigg’s issue is: “Whether the trial court erred by failing to find that Mr. Twigg knew that Ms. Twigg removed the CMG retirement money from LPL Financial.”
C. Argument
In her opening brief, Ms. Twigg’s argument on this issue, in its entirety, is as follows:
Page 2 of court order – Mr. Twigg denied knowing of me removing
the CMG retirement from LPL financial (Mike Davis – the father of Mr. Twiggs best friend) See proof of retirement money spent on pages 176-219. I was unable to show in court because that court stated we are already divorced – even though I never signed for a divorce and Allan Twigg’s name is spelled incorrectly in my divorce decree.
In her reply brief, Ms. Twigg states in relevant part: Courts [sic] finding was clearly accurate that I removed the CMG retirement funds but Mr. Twigg was 100% aware. We went to our accountant Michael Davis (his best friend Brian Davis father) and made a marital decision as to how we were going to survive while I got through college. Again[,] Allan controlled the finances for 32 yrs [sic]. . . .
D. Analysis
Ms. Twigg admits that the trial court was correct in finding that she removed the CMG retirement funds and used them for “bills and schooling.” The trial court did not make a finding as to whether Mr. Twigg knew that Ms. Twigg withdrew the CMG funds, and Ms. Twigg makes no argument that the court should have done so. Ms. Twigg has failed to assert an error by the trial court, and thus we have nothing to review.
IV. Issue 5: [Mr. Twigg] paid mor[t]gage payments through BB&T not Chessie Credit Union
A. Background
In its Memorandum, the trial court found: “Parties maintained separate bank accounts during the course of the marriage although there were instances where the accounts were listed to both parties. [Mr. Twigg] paid for mortgage and upkeep of the residence on Sampson Rock Road and other living expenses.”
B. Restatement of Ms. Twigg’s Issue
From a consideration of Ms. Twigg’s argument, we believe that Ms. Twigg’s issue is: “Whether the trial court erred by finding that Mr. Twigg made all of the mortgage payments.”
C. Argument
In her opening brief, Ms. Twigg sets forth the following argument on this issue, in its entirety:
Page 2 of court order – the discussion of morgage [sic] payments & how they were paid became an issue throughout this case. Mr. Twigg stated all morgage [sic] payments were made by him out of the BB&T account when there were multiple times the morgage [sic] payment was paid out of the joint Chessie Credit Union Account – unable to produce these records in court because we were/are already divorced. However, Mr. Twigg was able to produce bank statements of how much he spent during our separation on morgage [sic], taxes ect. After our so called divorced (see pages 232 to 259)[.]
In her reply brief, Ms. Twigg states in relevant part: Mr. Twigg stated all morgage [sic] payments were made by him out of the BB&T account when there were many, many, many times the morgage [sic] payment was made out of the Chessie Acct [sic] (pages 220-259) (pages 310- 311-314-316-319).[3] Unable to produce pages of “evidence” because we were already divorced(?). . . .
D. Analysis
Ms. Twigg appears to argue that the trial court erred by finding that Mr. Twigg made all of the mortgage payments. Specifically, Ms. Twigg complains about Mr. Twigg’s testimony that he made all of the mortgage payments from the BB&T account when, according to her, many mortgage payments were made out of the joint Chessie Credit Union Account. At the trial, Mr. Twigg testified that all mortgage payments were made with his own funds and that Ms. Twigg did not make any such payments. Ms. Twigg testified that some mortgage payments were made from the Chessie account. Under Maryland Rule 8-131(c) an appellate court “will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” The trial court as the factfinder is “entitled to accept—or reject—all, part, or none of the testimony of any witness, whether that testimony was or was not contradicted or corroborated by any other evidence.” Omayaka v. Omayaka, 417 Md. 643, 659 (2011). The trial court’s acceptance of Mr. Twigg’s testimony was not clearly erroneous.
V. Issue 6: [Ms. Twigg] took $2,000 from [Mr. Twigg’s] checking acct
A. Background
In its Memorandum, the trial court found that (1) Ms. Twigg removed $2,000 from Mr. Twigg’s checking account after the parties had separated, and (2) the $2,000 was marital property. In determining the monetary award for Ms. Twigg, the court lowered the amount of the award by one-half of the $2,000 taken by her.
B. Restatement of Ms. Twigg’s Issue
From a consideration of Ms. Twigg’s argument, we believe that Ms. Twigg’s issue is: “Whether the trial court erred when awarding Mr. Twigg half of the $2,000 that Ms. Twigg removed from his bank account.”
C. Argument
Ms. Twigg’s argument on this issue in her opening brief is, in its entirety, as follows: Page 2 of court order – see evidence of both names on checking account on 7-1-2020 and we were still married – And was told by Attorney Rebecca Leichlieter to remove the funds because it was marital property (See pages 264 & 268)[.]
D. Analysis
Ms. Twigg does not deny that she took $2,000 from Mr. Twigg’s checking account after the separation. Nor does she assert that those funds were not marital property. “The determination of what property is marital and what is nonmartial is important only in the context of the court’s ability to grant monetary award ‘as an adjustment of the equities and rights of the parties concerning marital property.’” Noffsinger v. Noffsinger, 95 Md. App. 265, 282 (1993) (quoting Melrod v. Melrod, 83 Md. App. 180, 185(1990)). In this case, the court found that the funds taken by Ms. Twigg were marital property and adjusted Ms. Twigg’s monetary award to reflect Mr. Twigg’s fifty percent interest in the funds. We have difficulty ascertaining what error, if any, Ms. Twigg claims was made by the trial court. Consequently, there is nothing for us to review.
VI. Issue 7: Cattle
A. Background
In its Memorandum, the trial court rejected Mr. Twigg’s argument that the cattle were nonmartial property, finding that “[t]he cattle in
question were clearly purchased during the course of the marriage and, accordingly, will be considered marital property.” The court also found that Mr. Twigg “solely purchased the cattle. . . the value of which he testified to be $2,400.” The court then accepted the figure of $2,400 as the value of the cattle.
B. Restatement of Ms. Twigg’s Issue
From a consideration of Ms. Twigg’s argument, we believe that Ms. Twigg’s issue is: “Whether the trial court erred in determining the value of the cattle.”
C. Argument
Ms. Twigg’s argument on this issue in her opening brief is, in its entirety, as follows:
Page 3 of court order – Defendant SOLELY purchased cattle throughout our marriage – where is the evidence of what the cows are even worth? See pages of bank statements where I had purchased cow feed over the years – was unable to produce because the court stated we were already divorced & no more documents could be produced (See pages 281 to 292)[.]
In her reply brief, Ms. Twigg states:
Per [Mr. Twigg’s counsel] “Appelle[e] confirmed (“HEARSAY”) that appellant had no involvement with the purchase of the cattle or farming.[”] The final analysis is that I went to the stockyard with Mr. Twigg to purchase/sell cattle, I bought corn feed (see pages 281-292)[,] I pulled 50lb bags of feed out of my car[,] & tossed it over my shoulder & carried them to the shed, I watered the cows several times a day, I prepared meals with the cow meat, I went to EJ’s taxidermy & meat processing, LLC with Mr. Twigg when we took the cows to slaughter and to pick out meat cuts – the court accepted the opinion of the Appellee “HEARSAY” where is the evidence I did not take care of the farming – where is the evidence of what the cattle were even worth? I am sure all of us know that cattle is not cheap – In all honesty the cattle was probably closer to $10,500.00 because we actually had more than 4 cows when I left in Feb 2020 (see attached – page[] 62)[.][4]
D. Analysis
Ms. Twigg claims that she took care of the cattle, but the trial court made no finding as to who cared for the cattle. The court found that the cattle were marital property. Ms. Twigg does not dispute that finding. As for the value of the cattle, Mr. Twigg testified that the cattle were worth $2,400, whereas Ms. Twigg’s testimony valued the cattle at $10,500. The court based its valuation of the cattle on Mr. Twigg’s testimony. “It is neither our duty nor our role to assess the credibility of the witnesses who testified nor to weigh the evidence presented.” State v. Albrecht, 336 Md. 475, 487 (1994). The trial court thus was entitled to accept the testimony of Mr. Twigg as to the value of the cattle and reject Ms. Twigg’s testimony regarding the same.
Nevertheless, Ms. Twigg argues that Mr. Twigg’s testimony about the value of the cattle was hearsay. Assuming such issue was preserved at the trial, Mr. Twigg’s testimony was not hearsay, because “[a]n owner of property is presumed to be qualified to testify as to his [or her] opinion of the value of the property he [or she] owns.” Colonial Pipeline Co. v.
Gimbel, 52 Md. App. 32, 44 (1983). Based on the record, we conclude that the trial court’s valuation of the cattle was not clearly erroneous.
VII. Issue 8: Kubota Tractor A. Background
In its Memorandum, the trial court found that the Kubota tractor was purchased during the course of the marriage with Mr. Twigg owning a fifty percent martial interest. As to the valuation of the tractor, the court stated:
The value of the Kubota tractor is in dispute between the parties with [Ms. Twigg] asserting [a] value of $20,000 and [Mr. Twigg’s] valuation of $10,000. (Joint Exhibit #2) While [Mr. Twigg] is correct in his observation that little evidence was provided at trial regarding the value of the tractor, the Court is permitted to ascertain value based on the Joint Statement of Marital and Non-Marital Property in accordance with Maryland Rule 9-207. Accordingly, the Court values the tractor at $10,000.
B. Restatement of Ms. Twigg’s Issue
From a consideration of Ms. Twigg’s argument, we believe that Ms. Twigg’s issue is: “Whether the trial court erred when determining the value of the Kubota tractor.”
C. Argument
Ms. Twigg’s argument on this issue in her opening brief is, in its entirety, as follows: See pages 3 & 4 of court order – tractor was financed in Mr. Twiggs name –
WE WERE MARRIED! See tractor value as of 2-14-23 – Stated loan payments were divided equally between Mr. Twigg & daughter (the daughter he now says IS NOT HIS)[.]
In her reply brief, Ms. Twigg’s entire argument is as follows: The tractor was acquired jointly with Appellee and Appellants daughter (marital property)(we spilt the cost to share the Kubota – now with the daughter he states “is no longer his”) our half was spent with marital funds! Appellee testified the value of the tractor was $10,000.00[.] “HEARSAY” See evidence pages 293 to 298 from Cumberland Outdoor power estimate of $17,000.00 (see page 63) “EVIDENCE” was unable to produce!![5]
D. Analysis
The parties disagreed over the value of the Kubota, with Ms. Twigg valuing the tractor at $20,000 and Mr. Twigg valuing it at $10,000. Again, Ms. Twigg argues that Mr. Twigg’s testimony was hearsay, but as stated above, an owner of property can testify to its value. See Colonial Pipeline Co., 52 Md. App. at 44. The parties agreed that they had only a fifty percent martial interest in the Kubota because their daughter and son-in-law owned the other fifty percent. The trial court accepted Mr. Twigg’s valuation of the Kubota at $10,000, and thus the marital interest was $5,000. Because the court was entitled to accept Mr. Twigg’s valuation, there is no basis for error.
VIII. Issue 9: Furniture in [Mr. and
Ms. Twigg’s] home[s]
A. Background
In its Memorandum, the trial court stated: “The Court excludes the furniture at [Mr. Twigg]’s and [Ms. Twigg]’s homes from consideration
as they appear to be of similar value for award purposes.”
B. Restatement of Ms. Twigg’s Issue
From a consideration of Ms. Twigg’s argument, we believe that Ms. Twigg’s issue is: “Whether the trial court erred when determining that the furniture in the parties’ respective homes was of similar value.”
C. Argument
In her opening brief, Ms. Twigg’s argument, in its entirety, is as follows:
See page 5 of court order – The court excludes the furniture at defendant[’]s and at plantiffs [sic] homes from consideration as they appear to be similar in value – Defendant is living in a 4 bedroom – 3 bath home. Plantiff [sic] lives in a 2 bedroom apartment and other than the few items given to me by my mother that I took – the rest of the furniture was used & given to me by my landlord & Mr. Twigg has never stepped foot in my apartment – so how would anyone even know what’s similar[.]
In her reply brief, Ms. Twigg’s entire argument is as follows: The judge excluded the furniture at defdants [sic] (our home) and at plantiffs [sic] 2 bedroom apartment (see pages 64-65) from consideration as they appear to be similar in value – Defendant is living in our 4 bedroom – 3 bath homes & plantiff [sic] is living in a 2 bedroom apartment and other than the few items given to me by my mother as gifts that I brought with my daughter & I when we moved out, the rest of the furniture was used & given to me by our landlord and Mr. Twigg has never stepped foot in my apartment – so where is the “[e]vidence of similar in value[.]” “HEARSAY”
D.
Analysis
Ms. Twigg appears to argue that the trial court did not have evidence to support its finding that the marital property furniture in the parties’ respective homes was of similar value. In Joint Exhibit 2, Mr. Twigg listed marital property furniture with a total value of $2,600 while Ms. Twigg listed such property with a total value of $3,025. It was not clearly erroneous for the court to rely on Joint Exhibit 2 when determining that the furniture in the parties’ respective homes was marital property and similar in value.
IX. Issue 10: Timeshare
A. Background
In Joint Exhibit 2, the parties agreed that the timeshare was marital property. In its Memorandum, the trial court found that “[t]he value of the timeshare is unknown and will be determined upon its sale.” In its Order of Court, the court ordered “that the timeshare is [sic] sold, and that each party is awarded an equal share of the sale proceeds[.]”
B. Restatement of Ms. Twigg’s Issue
From a consideration of Ms. Twigg’s argument, we believe that Ms. Twigg’s issue is: “Whether the trial court erred by failing to determine the value of the timeshare.”
C. Argument
Ms. Twigg’s argument on this issue in her opening brief is, in its entirety, as follows: See page 5 of court order – unknown & will be determined upon its sale – see page 307 for proof of sale. In her reply brief, Ms. Twigg’s entire argument is as follows:
We did not agree that there was “No EVIDENCE” because there was and is “EVIDENCE” as to what they [sic] timeshare [is] valued at. Unable to submit – stated we were already divorced (see pages 307)[.]
D. Analysis
Although Ms. Twigg states that there is evidence regarding the value of the timeshare, she fails to point to the existence of such evidence in the record as required under Maryland Rule 8-501(c). Ms. Twigg will receive half of the value of the timeshare once it is sold. Accordingly, we hold that the trial court did not err when it found that the value of the timeshare was unknown prior to its sale.
X. Issue 11: Bullet Camper
A.
Background
In its Memorandum, the trial court stated: “All interest in the Bullet Camper is to be assigned to [Mr. Twigg], because of the de minimis equity interest resulting from the difference between its liens and its fair market value.”
B. Restatement of
Ms. Twigg’s Issue
From a consideration of Ms. Twigg’s argument, we believe that Ms. Twigg’s issue is: “Whether the trial court erred when determining the value of the Bullet Camper.”
C. Argument
Ms. Twigg’s argument on this issue in her opening brief is, in its entirety, as follows: See page 5 of court order & given to defendant because of de minimus [sic] equity – see bill of sale on pages 308-309[.]
In her reply brief, Ms. Twigg states, in relevant part: Per [Mr. Twigg’s counsel] “she had placed no value on exhibit 2 for a value[.]” [A]gain I had and have “evidence” (see page[] 66) of the value of the camper – but again unable to submit due to already being divorced & no further documents able to be offered. . .
D. Analysis
In Joint Exhibit 2, Ms. Twigg asserted that the camper had encumbrances of $22,000. Ms. Twigg, however, did not provide a value for the camper, while Mr. Twigg asserted that the value of the camper was $19,000. In her testimony, Ms. Twigg stated as to the value of the camper: “I’m thinking about $28,000, but. . .” In her brief, Ms. Twigg references a bill of sale for the camper as evidence of its value, but such bill of sale was not admitted into evidence at trial. The court was entitled to rely on Joint Exhibit 2 to determine the value of the camper. See Beck v. Beck, 112 Md. App. 197, 205, 207-08 (1996). Thus the court’s valuation was not clearly erroneous.
XI. Issue 12: Crawford Credits A. Background
In its Memorandum, the trial court wrote: [Mr. Twigg] is entitled to $22,394.28, one half of the $44,788.56 Crawford credit Crawford derives from the principle of contribution, that “one co- tenant who pays the mortgage, taxes, and other carrying charges of jointly owned property is entitled to contribution from the other.” Flanagan v. Flanagan, 181 Md.
App. 492 (2008); 293 Md. 307. [Mr. Twigg] paid the sum of $23,495 in mortgage, taxes and insurance on the property between separation and divorce and paid the amount of $21,293.56 subsequent to divorce. Thus, the Court finds [Mr. Twigg] [is] owed a contribution in the amount of half the $44,788.56 Crawford credit. (Emphasis in original).
B. Restatement of Ms. Twigg’s Issue
From a consideration of Ms. Twigg’s argument, we believe that Ms. Twigg’s issue is: “Whether the trial court erred when it awarded Mr. Twigg Crawford Credits.”
C. Arguments of the Parties
Ms. Twigg’s argument on this issue in her opening brief is, in its entirety, as follows:
See page 7 of court order – defendant is “ENTITLED to $22,394.28.”
One half of the $44,788.56 for morgage [sic] payments, taxes etc. I was not even able to go onto the property – I was locked out of the home/camper. I was presented with protective orders and criminal charges when I went on the property for the past 3 ½ yrs [sic] and now expected to pay him. How was I to pay my rent, utilities etc[.] if I was excepted to pay for a home that I had been locked out of.
In her reply brief, Ms. Twigg writes, in relevant part:
Defendant “ENTITLED” to $22,394.28 one half of the $44,788 for morgage [sic] payments, taxes etc. when I was locked out of the home/camper forbidden to go on the property per [counsel] – I did voluntarily leave Mr. Twigg b/c [sic] I was living with an abusive alcoholic, narcissist that was controlling & manipulating me for 32 yrs [sic]. . . . When I went on the property I ended up with protective & criminal charges which were all dropped in Garrett County.
Ms. Twigg appears to argue that the trial court erred when granting Mr. Twigg Crawford Credits because she was locked out of the Home. Mr. Twigg responds that Ms. Twigg was not ousted from the Home because she left voluntarily in February 2020 and returned to the Home at least three times to remove property. According to Mr. Twigg, Ms. Twigg damaged the Home when she returned by breaking widows, kicking in doors, and removing property belonging to Mr. Twigg. Mr. Twigg admits that he did “secure” the Home after it was damaged by Ms. Twigg, but did not deny Ms. Twigg access to the Home when requested.
D. Analysis
Under Maryland law, there is a presumption of gift doctrine stating “‘that advancements and payments by one spouse toward the purchase-or, as here, the improvement-of property owned as tenants by the entireties are presumed to be a gift to the other spouse to the extent of the latter’s interest in the property.’” Crawford v. Crawford, 293 Md. 307, 311 (1982) (quoting Klavans v. Klavans, 275 Md. 423, 431 (1975)). In Crawford v. Crawford, our Supreme Court held that the presumption of gift doctrine only applies when the married couple is still living together. 293 Md. at 314. Therefore, Crawford “permitted a spouse to seek contribution in those instances when married parties were not residing together and one of them, or the other, had paid a disproportionate amount of the carrying costs of property.” Baran v. Jaskulski, 114 Md. App. 322, 328 (1997). The paying spouse, however, is not entitled to Crawford Credits if they “oust” the non-paying spouse. See Spessard v. Spessard, 64 Md. App. 83, 88 (1985). Ousting is defined as “‘[a] notorious and unequivocal act by which one cotenant deprives another of the right to the common and equal possession and
enjoyment of the property.’” Id. at 89 (quoting Young v. Young, 37 Md. App. 211 (1977)).
The trial court did not err when granting Mr. Twigg Crawford Credits. There was ample evidence to support a finding that Ms. Twigg was not ousted from the Home. Mr. Twigg’s actions to secure the Home were in response to Ms. Twigg’s damage to the Home and was not to deprive Ms. Twigg of the “right to the common and equal possession and enjoyment of the property.” See id.
XII. Issue 13: Mazda 2014 Car
A. Background
In Joint Exhibit 2, the parties stipulated that the 2014 Mazda car was marital property titled in Ms. Twigg’s name alone. Mr. Twigg asserted that the value of the Mazda was $4,000, while Ms. Twigg placed the value at $2,000. At trial, however, Ms. Twigg testified that the value of the Mazda was $3,000. In its Memorandum, the trial court found the value of the Mazda to be $3,000, and then credited one-half of such value ($1,500) to Mr. Twigg in the calculation of the monetary award for Ms. Twigg.
B. Restatement of Ms. Twigg’s Issue
From a consideration of Ms. Twigg’s argument, we believe that Ms. Twigg’s issue is: “Whether the trial court erred by finding that the 2014 Mazda was marital property with a value of $3,000, and awarding Mr. Twigg one-half of such value.”
C. Argument
Ms. Twigg’s argument on this issue in her opening brief is, in its entirety, as follows:
See page 7 of court order – court awards half value to defendant – This car is the only thing I have left over a 32 year marriage & Judge Twigg awards him half value of a car that wasn’t even in commission at the time of the judgment order. While he is on his 2nd BRAND NEW TRUCK SINCE I LEFT ON 2-21-2020. The car is TITLED IN MY NAME – see page 325[.]
In her reply brief, Ms. Twigg states, in relevant part: The parties “DID NOT” agree the Mazda was marital property. This car is titled in my name only and the 9 year old car has been inoperable for months and Judge Twigg awards ½ of the $3,000.00 that its not even worth now to Mr. Twigg – yet Mr. Twigg is on his 2nd brand new truck since I left in 2020.
D. Analysis
Ms. Twigg contends that the parties did not agree that the Mazda was marital property, that the Mazda was not worth $3,000 because it was inoperable, and that the award of $1,500 to Mr. Twigg was unfair because he was on his second brand new truck. We disagree.
Under the Md. Code Ann., Fam. Law § 8-201(e)(1), “[m]arital property is defined as ‘property, however titled, acquired by 1 or both parties during the marriage.’” Flanagan, 181 Md. App. at 518. Although the Mazda was titled in Ms. Twigg’s name alone, it was bought during the marriage. “When attempting to demonstrate that property acquired during the marriage is nonmartial, the party with this burden must directly trace the property to a nonmarital source.” Noffsinger, 95 Md. App. at 282. Not only does Ms. Twigg fail to point to any evidence in the
record to show that the Mazda was purchased with nonmarital funds, she affirmatively agreed in Joint Exhibit 2 that the Mazda was marital property. Therefore, the court did not err when it found that the Mazda was marital property.
The trial court valued the Mazda at $3,000 and awarded one-half of the value,
$1,500, to Mr. Twigg. Although Ms. Twigg argues that the court erred in its valuation, she actually testified that the value of the Mazda was $3,000. Thus the court did not err when it relied on the testimony of Ms. Twigg to determine the value of the Mazda. Finally, a trial court may grant a monetary award “as an adjustment of the equities and rights of the parties concerning marital property.” Md. Code Ann., Fam. Law § 8-205(a)(1). Here, the court adjusted the rights of the parties in the Mazda by awarding Mr. Twigg onehalf of its value. We see no abuse of discretion in that decision.
XIII. Issue 14: In addition to the judg[]ment order I will also present additional information that wasn’t questioned
A. Restatement of Ms. Twigg’s Issue
From a consideration of Ms. Twigg’s argument, we believe that Ms. Twigg’s issue is: “Whether the additional information provided by Ms. Twigg will affect the trial court’s judgment.”
B. Argument
In her opening brief, Ms. Twigg sets forth, as her last issue, the following:
In addition to the judg[]ment order I will also present additional information that wasn’t questioned[:]
• Mr. Twigg worked for multiple companies over the past 32 years including work for the family of JC Duncan/Shaw (Mr. Aldersons previous partner) with only one receipt shown for tax purposes
• Documents that were produced after divorce & admitted in court – pages 334 to 345
• Court date 8-23-21 – See notes from court hearing pages 350 & 351 with orphan judge Ed Crossland (mediator)
• Attorney bills/fees 359 to 382
• Attorneys contacted after I filed a grievance with Mr. Alderson (pages 383 to 396)
• Proof of carpet cleaning in our home – pages 397 to 405
• Court notes from Allan’s testimony on 5-9-22 that weren’t in transcriptions (pages 406-413)
• Day care pages 441 to 444 – expenses – Allan stated his grandmother watched our 3 daughters @ [sic] no expense
• Retirement – Mr. Alderson was working on prior to the grievance – see pages 445 to 465
• Judge Twigg denied my request for continuance because I had no conusel [sic] due to my grievance against Mr. Robert Alderson –see pages 352 to 350
• Dishonorable Discharge – pages 414 to 420
• Forged taxes – pages 421 to 429
• Business A & L paint works – failure – repayment page 430-438
C. Analysis
Ms. Twigg does not assert any error by the trial court. Therefore, there is no issue for this court to address.
A FINAL NOTE
In many of Ms. Twigg’s claims, she complains about the inaccuracy or untruthfulness of Mr. Twigg’s testimony and the statements or actions of nonparties. She also cites to hundreds of pages of “evidence” that are not part of the record before the trial court. An appeal is not a continuation of the trial, nor is it a new trial. We review only the rulings of the trial judge, not statements or actions of individuals that are independent of such rulings. See Md. Code Ann., Cts. & Jud. Proc. § 12-308. Our review is confined to the record before the trial court; in other words, we cannot consider any matter that has not been first presented to the trial judge as a part of the trial court proceeding. See Colao, 100 Md. App. at 469.
JUDGMENT OF THE CIRCUIT COURT FOR ALLEGANY COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 The pages referenced in Ms. Twigg’s opening brief appear to refer to the attachments to an earlier brief filed on June 27, 2023. On August 29, 2023, this Court struck that brief and its attachments.
2 In her reply brief, Ms. Twigg claims that the trial court’s statements about her alleged infidelity constitute “slander” and “defamation of character.” She is wrong. Central to a claim of defamation is the publication of a false statement about another person. See MPJI – Cv12:1. Because we determine infra that the trial court’s statements about Ms. Twigg’s alleged infidelity were not clearly erroneous, there can be no defamation. More importantly, there is an absolute privilege for statements made in the context of judicial proceedings. Norman v. Borison, 418 Md. 630, 650 (2011).
3 Ms. Twigg again appears to be citing to the attachments to her June 27, 2023 brief. See footnote 1, supra.
4 Ms. Twigg attaches to her reply brief a photo from 2019 showing more than four cows on their property as evidence that Mr. Twigg owned more cows than the court considered.
“[A] party may not supplement the record with documents that are not part of the record.” Colao v. Cnty. Council of Prince George’s Cnty., 109 Md. App. 431, 469 (1996), aff’d, 346 Md. 342 (1997). This photo was not admitted into evidence, and therefore, we cannot consider it in our analysis.
5 Ms. Twigg attaches to her reply brief an email, included in her appendix, regarding the value of the Kubota. In this email an individual offers to buy the Kubota for $17,000. However, this email was not admitted into evidence at trial and thus was not part of the record. As stated earlier, a party cannot supplement the record with evidence that was not admitted at trial. See Colao, 109 Md. App. at 469. Therefore, we cannot consider this email in our analysis.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Worcester County Circuit Court’s termination of mother’s parental rights as to her then two-year-old daughter. The Worcester County Department of Social Services presented evidence of mother’s substance abuse, unstable mental health condition and history of child neglect.
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 Circuit Court for Worcester County, sitting as a juvenile court, terminated the parental rights of the appellant, S.T.1 (“Mother”), as to her then two-year-old daughter, M.R.2 The court determined that termination of parental rights (“TPR”) was appropriate because Mother was unfit to parent M.R. The court based its decision on “ample evidence of [Mother’s] ongoing, severe issues with addiction and with mental health problems.” The court ruled that it was unsafe to return M.R. to Mother within a reasonable time and that it was in M.R.’s best interests to terminate Mother’s parental rights. Thus, the court granted the petition for guardianship filed by the appellee, the Worcester County Department of Social Services (“Department”).
Mother presents the following two questions for our review:
I. “Did insufficient evidence support the juvenile court’s decision to terminate the relationship between Mother and her daughter, and as a result, did the court err as a matter of law and abuse its discretion when concluding that TPR was in M.R.’s best interests?”
II. “Did the court improperly focus on custodial considerations and shift the burden of proof to Mother when it granted the TPR petition?”
We hold, first, that there was sufficient evidence to support the juvenile court’s decision, as the Department presented evidence of Mother’s substance abuse, unstable mental health condition, and history of child neglect. Second, we hold that the court correctly focused on the guiding factors contained in Maryland Code (1984, 2019 Repl. Vol., 2023 Supp.), Family Law Article (“FL”), section 5-323(d), and properly determined that the Department met its burden of persuasion through the presentation of clear and convincing evidence that it was in M.R.’s best interests to terminate Mother’s parental rights. Accordingly, we affirm the judgment of the circuit court.
BACKGROUND
A. The Circumstances Surrounding M.R.’s Birth
Before M.R.’s birth, Mother had two children who were each adjudicated as a child in need of assistance (“CINA”) and removed from Mother’s care by the Department.3 Mother’s older son, A.B. (born in 2002) was adopted after Mother’s parental rights to A.B. had been terminated. Mother’s younger son, T.T. (born in 2011), was determined to be a CINA four times. Those CINA determinations involved findings of neglect based on Mother’s substance abuse and mental health issues. T.T.’s maternal grandparents have custody of T.T., and Mother was granted limited unsupervised visitation of him.
M.R. was born in November 2021. At birth, M.R. tested positive for cocaine and marijuana. As a result, the Department opened a substance-exposed newborn case,4 met with Mother and M.R., and referred Mother to substance abuse treatment. After the Department concluded that Mother had been compliant with substance abuse treatment services, it closed the case. Mother, however, then refused in-home services.
B. M.R.’s CINA Adjudication
In March 2022, the Department received notifications that M.R. had missed several medical appointments, including scheduled vaccinations. Thereafter, the Department was alerted that Mother had been involved in domestic violence while M.R was present. Mother revoked her consent for the Department to access records from her treatment providers.
The court issued a shelter care5 order in May 2022. The next month, M.R. was adjudicated as a CINA based on Mother’s neglect. M.R. was placed with her foster caregiver, S.H.
C. Procedural History Post-CINA Adjudication
At the December 12, 2022 permanency plan review hearing, the juvenile court found that the Department had made referrals for Mother for mental health and substance abuse, and referred Mother to Dr. Samantha Scott for a psychiatric evaluation. The court ordered Mother undertake substance abuse testing and treatment, psychological and psychiatric evaluations, parenting classes, and individual counseling. Under the permanency plan for reunification with a parent or guardian, the court ordered supervised visitation “at least weekly.”
At the subsequent permanency plan review hearing held on May 8, 2023, the juvenile court found that the Department continued to make reasonable efforts to finalize the permanency plan of reunification, including facilitating visits between M.R. and Mother and T.T., and providing transportation for medical appointments.
The court noted the “[Department’s] recommendation for adoption if permanency plan not achieved by next hearing.”
At the conclusion of the next permanency plan hearing on October 27, 2023, the juvenile court changed the permanency plan from reunification to adoption by a non- relative. On November 8, 2024, the Department filed a Petition for Guardianship.
D. TPR Hearing
Mother and M.R. were each represented by separate counsel at the contested hearing held on April 22, 2024, on the Department’s petition requesting guardianship and termination of Mother’s parental rights to M.R. Counsel for M.R. stated that she supported the Department’s petition.
The Department called Dr. Samantha Scott as its first witness. The parties stipulated to her qualification as an expert in psychology. Dr. Scott completed a psychological and Fit2Parent evaluation of Mother, and her corresponding 30-page report was admitted into evidence without objection. The evaluation started in April 2023. Mother then failed to show up for four appointments with Dr. Scott, and thus delayed the completion of the evaluation. Dr. Scott wrote in the report that Mother “never returned for the remain[d] er of her psychiatric intake, nor did she complete the discipline interview or Thematic Apperception Test.” In addition, Mother “did not provide any references to contact.” Without this information, Dr. Scott was unable to make a formal diagnosis. Instead, Dr. Scott described “clinical syndromes suggested” in her report, including suggested disorders such as delusional disorder, bipolar 1 disorder, and adjustment disorder with anxiety. The report also noted the possibility of several additional personality disorders.
At trial, Dr. Scott described Mother as “fairly complex with mental health issues and substance abuse issues that have been just going on over 20 years, self-reported.” In the report, Dr. Scott explained that Mother’s “pattern of responding reflects a severe mental disorder characterized by a constricted and defended mindset, pronounced distrust of others, and self-defeating circles of inflexible interpersonal exchanges.” Together with Mother’s “long history of homelessness, [], substance abuse, and interpersonal violence[,]” Dr. Scott also concluded that there was “significant evidence that [Mother] has and may be currently experiencing some form of psychosis including delusional and paranoid thinking patterns and behaviors.” Dr. Scott noted in her report that it appeared that visits with Mother were causing M.R. stress. On cross examination at trial, Dr. Scott testified that she observed this when she was present during a meeting between Mother and M.R.
Dr. Scott stated in her report that, based on her assessment of Mother, “[s]ignificant concern is raised regarding [Mother’s] psychological functioning, particularly as it pertains to her ability to offer [M.R.] a safe environment in which to return.” Her recommendation was, “[a]t this time, it is not advised that [M.R.] return to [Mother’s] care.” Dr. Scott also recommended that Mother enter residential treatment, as she “would benefit greatly from a co-occur[r]ing mental health and substance abuse treatment facility where she can detox (if necessary) and be afforded 24-hour psychiatric care and substance abuse counseling.”
The Department’s case manager and social worker, Connie Bonsall, testified next and related that she had been working on M.R.’s case since M.R. was first sheltered in May, 2022. She explained that Mother’s history with the Department dates back
to 2005, and that her parental rights to two of her other children had been terminated. The Department introduced, and the juvenile court accepted into evidence, the CINA records for M.R.’s siblings. Ms. Bonsall explained that in M.R.’s case, the Department made referrals for Mother to obtain substance abuse and mental health treatment and to participate in parenting classes. The Department also provided transportation to those services. However, Ms. Bonsall explained that, in contravention to her service plan with the Department, Mother canceled or missed appointments with mental health treatment providers. She also refused to sign various consents for the release of treatment records, failed to submit to random urinalysis testing, and failed to complete parenting classes.
Ms. Bonsall testified that the Department provided supervised visitation between Mother and M.R. (and the Department provided Mother’s transportation to those visits). At first, Mother “was very difficult to get ahold of” and was inconsistent with visiting M.R. In the year leading up to the TPR hearing, however, Mother’s visitation was more consistent. Ms. Bonsall, who supervised most of the visits between Mother and M.R., described the visits as going “very well,” and added that Mother “is very attentive to [M.R.], she does her hair, she puts lotion, she does her nails, she brings food, they go very well.” Ms. Bonsall testified, however, that Mother had made no efforts to adjust her substance abuse and mental health during the two years preceding the TPR hearing. She explained that because of Mother’s substance abuse, mental health, and domestic violence issues, the Department had the same safety concerns for M.R. that it had at the start of the case. Thus, the Department recommended against granting Mother unsupervised visitation with M.R.
Ms. Bonsall explained that since the Department received custody of M.R., she has lived with her foster caregiver, S.H. According to Ms. Bonsall, M.R. is bonded with S.H. and the other members of S.H.’s household, including another adopted daughter around the same age as M.R. Ms. Bonsall described how S.H. took M.R. to doctor’s appointments and dealt with M.R.’s behavior at school.
S.H. testified next. She said that she has been M.R.’s foster mother for about two years, and that she loves M.R. and she would like to adopt her. S.H. described the other members of her household, including her biological ten-year-old son and four-yearold adopted daughter. She testified that she would be willing to continue supervised visits between M.R. and Mother, “[a]s long as it’s good interactions and doing well.”
The final witness was Mother, who testified that she currently has a regular visitation arrangement with her younger son, T.T, that includes unsupervised overnight visits. Mother explained that she takes T.T. to visits with M.R. once per month. She said that M.R. sticks to her during visits and does not frequently interact with strangers, but M.R. plays with T.T. and lets him hold her occasionally.
Mother testified that Dr. Scott was not physically present for most of her evaluation, and she only saw Dr. Scott briefly at the intake and again at the final one-on-one session. Mother explained that she skipped portions of the evaluation because they were traumatic, and she was under the impression that she would be able to redo those portions in the future. She claimed that she provided Dr. Scott the names and addresses of her siblings, as well as some close friends. Mother related that she had been undergoing mental health and substance abuse treatment since June 2022. She said that she had a heart condition that required her to be hospitalized
several times, causing her to miss multiple appointments for substance abuse treatment.
Mother attended parenting classes, “was doing them constantly,” and “only had like two classes left.” She explained that she had already taken multiple other parenting courses and has certificates from them, and she was not aware that she needed to complete the classes. Mother testified that she had regular contact with the Department, and has been in contact with S.H.
On cross-examination, Mother admitted that she had revoked her permission for the release of her mental health records to the Department in May 2022. However, she claimed that she had signed multiple releases since then. She clarified that she did not sign an open release, but signed a checklist-style release and provided Ms. Bonsall with the providers the Department could contact.
E. The Juvenile Court’s Decision
In May 2024, the court issued its opinion and order, which granted the Department guardianship of M.R. and terminated Mother’s parental rights. In its findings of fact, the court made note of Dr. Scott’s report, which states that Mother presents with “a severe mental disorder,” and may suffer from alcoholism and drug addiction. The court stated that although the Department attempted to introduce various police reports involving Mother, it only admitted “any police records involving Mother during a time frame when a minor child was in her home.” Still, the court noted “that Mother’s other cases, and her reported history given to Dr. Scott, indicate an ongoing involvement with domestic violence, and evidence of volatile and sometimes violent interpersonal relationships.” Regarding M.R., the court found: [M.R.], by all accounts, appears to be developmentally on target in her milestones, her temperament and her growth. She is undeniably bonded with her foster parent, with whom she was placed immediately upon her removal, and refers to her as, “Mom” or “Mama”. As well, she has bond with Mother, and without dispute, the visits between the two of them go well.
Mother is appropriate, caring, attentive.
In its discussion, the court thoroughly addressed the factors in FL § 5-323(d). Discussing the first factor, “All services offered to the parent before the child’s placement,” the court took judicial notice of mother’s prior CINA cases, stating:
Mother objected to the Court taking judicial notice of [T.T]’s case and the case of [A.B.], Mother’s two sons. The Court overruled that objection, pointing to case law which directs courts to consider parent’s past abuse or neglect when making determination of whether the child at issue is at risk, and noting, as well, the statute in the Family Law Article of the Annotated Code of Maryland, section 9-101.
The court noted that, based on cases such as In re Priscilla B., 214 Md. App. 601 (2013), courts should consider a parent’s prior history of neglect when considering whether the child at issue will be neglected in the future. The court found that the Department made reasonable efforts to reunify Mother and M.R., including InHome Services, Safety Plans, and making referrals for substance abuse treatment. The Court also found that the Department made reasonable efforts to locate and serve M.R.’s biological father, who remains unidentified.
Regarding the next two factors under FL § 5-323(d), related to the services offered by the Department and Mother’s use of those
services,6 the court found that the Department repeatedly referred Mother to mental health services and substance abuse treatment, but Mother refused to submit to a drug screen and failed to treat her mental health issues. The court noted that this was a pattern, based on her actions in previous CINA cases. Therefore, the court found, “by clear and convincing evidence, that Mother was unable to adjust her circumstances and her situation then, such that it was safe for the two older boys to return home, due to her engagement with law enforcement, with addiction, and with untreated mental health issues.”
The court next considered the fourth factor, related to Mother’s efforts to adjust her circumstances:7
There is no dispute that Mother cares deeply for this child. As well, this Court is persuaded that Mother suffers from significant, severe mental health issues which may preclude her from selfcare, much less from caring for small child and that, perhaps, these issues create barrier so significant that Mother simply cannot overcome it. Nevertheless, there was credible evidence that Mother has not been consistent with her mental health treatment; Dr. Scott testified that when the named provider was contacted, Mother’s involvement with him was several years old and she was not current with treatment. Mother denied this, but Dr Scott’s testimony was credible, and because Mother had revoked her consent, the Department was unable to track any compliance which might have favored Mother’s consistent attendance at treatment.
The court noted that Mother has continued to be involved with law enforcement, and that there have been repeated incidents of domestic violence stemming from Mother inviting unknown men into her home. The court summarized its findings on this point: In re: Adoption No. 12612, 353 Md. 209, 725 A.2d 1037 (1999) reminded courts that the Family Law article, section 9-101 requires that, if a party to proceeding has neglected a child –not just the child at issue but any child – then the court must determine if it is likely or probable that the party will abuse or neglect the child at issue. If the court cannot specifically find that that there is no likelihood or probability of future neglect, then the court must deny custody or visitation rights to that party unless it can impose an arrangement which ensures the safety and well-being of the child.
Because of the long standing issues Mother has had with the courts, both in the criminal justice system and with findings of neglect of her children, because of her long-term and significant mental health issues and addiction, and because she was unable to document compliance with consistent and targeted treatment, the Court cannot specifically find that Mother has adjusted her circumstances such as to create and to sustain safe and stable home for small child.
The court then considered all remaining factors, including “[t] he likely impact of terminating parental rights on the child’s wellbeing.” The court found that “[i]t is simply unsafe to return [M.R.] to her Mother within a reasonable period of time[,]” and concluded that Mother was unfit to parent M.R., as Mother’s “chaotic environment, within which [she] has existed for many years, will also likely continue.” The court thus found by clear and convincing evidence that was is in M.R.’s best interests to terminate Mother’s parental rights, and entered an order for guardianship. Mother then noted her timely appeal to this Court.
DISCUSSION
I.
A. Parties’ Contentions
Appellant
Mother argues that the court abused its discretion when it terminated the parent- child relationship because there was an insufficient legal basis to do so. According to Mother, the court applied the wrong standard for a TPR determination when the court ruled that she was unable to imminently resume custody of M.R. Mother also asserts that the Department failed to ensure a necessary reunification service until almost one year after
M.R. was removed from Mother’s custody. In Mother’s view, her efforts weighed against termination of her parental rights, no aggravating circumstances existed to rebut the presumption of continuation of the parental relationship, and M.R.’s emotional ties to her contradict the TPR ruling.
Appellee
The Department responds that the court applied the correct standard to determine whether termination of parental rights was appropriate under these circumstances. The Department contends that it diligently offered services to facilitate reunion between Mother and M.R. The Department argues that aggravating circumstances, such as Mother’s neglect of her older sons, supported the TPR ruling. Moreover, the Department claims that the court properly considered M.R.’s emotional ties to Mother, her foster caregiver, S.H, and her foster siblings.
B. Legal Framework
“Termination of parental rights decisions are reviewed under three interrelated standards: clear error review for factual findings, de novo review for legal conclusions, and abuse of discretion for the juvenile court’s ultimate decision.” In re K.H., 253 Md. App. 134, 156 (2021). “[U]nfitness and exceptional circumstances are two separate inquiries[,]” and either one may serve as a basis to terminate parental rights. In re Adoption/Guardianship of C.E., 464 Md. 26, 54 (2019). “Legal conclusions of unfitness and exceptional circumstances are reviewed without deference.” Id. at 47.8
“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.’” Id. at 48 (quoting Troxel v. Granville, 530 U.S. 57, 66 (2000)). “When it is determined that a parent cannot adequately care for a child, and efforts to reunify the parent and child have failed, the State may intercede and petition for guardianship of the child pursuant to its parens patriae authority.” Id. Under those circumstances, FL § 5-323 governs the court’s TPR determination:
If, after consideration of factors as required in this section, a juvenile court finds by clear and convincing evidence that a parent is unfit to remain in a parental relationship with the child or that exceptional circumstances exist that would make a continuation of the parental relationship detrimental to the best interests of the child such that terminating the rights of the parent is in a child’s best interests, the juvenile court may grant guardianship of the child without consent otherwise required under this subtitle and over the child’s objection. FL § 5-323(b).
The statute lists factors that a juvenile court must consider before
determining a parent is unfit or that exceptional circumstances exist. Nevertheless, the statute states that the juvenile court “shall give primary consideration to the health and safety of the child” when considering whether terminating a parent’s rights is in the child’s best interests. FL § 5-323(d). The statutory factors a court must consider include:
(1)(i) all services offered to the parent before the child’s placement, whether offered by a local department, another agency, or a professional; (ii) the extent, nature, and timeliness of services offered by a local department to facilitate reunion of the child and parent; and (iii) the extent to which a local department and parent have fulfilled their obligations under a social services agreement, if any;
(2) the results of the parent’s effort to adjust the parent’s circumstances, condition, or conduct to make it in the child’s best interests for the child to be returned to the parent’s home, including:
(i) the extent to which the parent has maintained regular contact with: 1. the child; 2. the local department to which the child is committed; and 3. if feasible, the child’s caregiver;
(ii) the parent’s contribution to a reasonable part of the child’s care and support, if the parent is financially able to do so;
(iii) the existence of a parental disability that makes the parent consistently unable to care for the child’s immediate and ongoing physical or psychological needs for long periods of time; and
(iv) whether additional services would be likely to bring about a lasting parental adjustment so that the child could be returned to the parent within an ascertainable time not to exceed 18 months from the date of placement unless the juvenile court makes a specific finding that it is in the child’s best interests to extend the time for a specified period;
(3) whether:
(i) the parent has abused or neglected the child or a minor and the seriousness of the abuse or neglect;
(ii) 1. A. on admission to a hospital for the child’s delivery, the mother tested positive for a drug as evidenced by a positive toxicology test; or B. upon the birth of the child, the child tested positive for a drug as evidenced by a positive toxicology test; and 2. the mother refused the level of drug treatment recommended by a qualified addictions specialist, as defined in § 5-1201 of this title, or by a physician or psychologist, as defined in the Health Occupations Article;
(iii) the parent subjected the child to: 1. chronic abuse; 2. chronic and life- threatening neglect; 3. sexual abuse; or 4. torture;
(iv) the parent has been convicted, in any state or any court of the United States, of: 1. a crime of violence against: A. a minor offspring of the parent;
B. the child; or C. another parent of the child; or 2. aiding or abetting, conspiring, or soliciting to commit a crime described in item 1 of this item; and
(v) the parent has involuntarily lost parental rights to a sibling of the child; and
(4)(i) the child’s emotional ties with and feelings toward the child’s parents, the child’s siblings, and others who may affect the child’s best interests significantly;
(ii) the child’s adjustment to: 1. community; 2. home; 3. placement; and 4. school;
(iii) the child’s feelings about severance of the parent-child relationship; and
(iv) the likely impact of terminating parental rights on the child’s well- being.
FL § 5-323(d). “[A]lthough the juvenile court must consider every factor in FL § 5-323(d), it is not necessary that every factor apply, or even be found, in every case.” In re Adoption/Guardianship of Jasmine D., 217 Md. App. 718, 737 (2014).
C. Analysis Standard for Parental Unfitness
We first address Mother’s claim that the court applied the wrong standard for a TPR determination when the court ruled that she was unable to imminently resume custody of M.R. To be sure, the court stated that it was “simply unsafe to return [M.R.] to her Mother within a reasonable period of time.” That analysis, however, relates to a factor which the court must consider under FL § 5-323(d)(2)(iv), i.e., “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[.]” The court properly analyzed that statutory factor and then ultimately concluded that it was in M.R.’s best interests to terminate Mother’s parental rights.
The Department’s Efforts to Reunify the Family
To properly analyze FL § 5-323(d)(1): [t]he court is required to consider the timeliness, nature, and extent of the services offered by [the Department] or other support agencies, the social service agreements between [the Department] and the parents, the extent to which both parties have fulfilled their obligations under those agreements, and whether additional services would be likely to bring about a sufficient and lasting parental adjustment that would allow the child to be returned to the parent.
In re Adoption/Guardianship of Rashawn H., 402 Md. 477, 500 (2007). Here, the court determined that the Department repeatedly offered services to Mother before and after M.R.’s removal from Mother’s custody. Indeed, the court correctly noted that, “[p]rior to removal, [the Department] implemented In-Home services, Safety Plans, and held a Family Team Decision Making meeting and as well, immediately after her birth, the Department made referrals for substance abuse treatment and followed up with services to ensure that [M.R.’s substance-exposed newborn] case could be successfully closed.” At least “10 or 11” times, Mother declined the Department’s requests for her to sign releases to verify that she was receiving services. Mother also did not complete required drug testing.9
9 The Department notes that “[b]y the time M.R. was placed into shelter care, Mother had been offered services over the course
of 17 years.” Mother responds in her reply brief: “Nowhere does the CINA subtitle say that a court can look at a parent’s prior, separate, and closed CINA cases as evidence of whether the department has made reasonable efforts in an altogether different case.” As outlined above, there was significant evidence that the Department repeatedly made reasonable efforts to reunify Mother and M.R., even without considering the services provided to Mother in prior CINA cases involving Mother’s other children.
Despite the evidence of Mother’s repeated obstinance when dealing with the Department, Mother argues that the Department failed to ensure that she received a timely psychological/parenting evaluation from Dr. Scott. The Department caseworker explained that Dr. Scott had “a very long waiting list” and that the Department’s practice is to refrain from “send[ing] the referral until Dr. Scott is ready – until she has time on her schedule to do the actual testing.” To be sure, that referral was sent in January 2023 and M.R. was removed from Mother’s custody in May 2022. Nevertheless, that delay was reasonable under the circumstances. The Department communicated with Dr. Scott, timely placed Mother on Dr. Scott’s waiting list, timely made a referral once Dr. Scott was available, and then provided Mother with transportation to Dr. Scott’s office.
The Department caseworker testified in detail about the services provided to Mother: “Referrals have been made to substance abuse, mental health, transportation has been provided to those services, parenting class referrals, mental health referrals, we did the psychological evaluation with Dr. Scott, transportation was provided for that, and Dr. Scott’s fees were paid by the Department.” Dr. Scott’s busy schedule of patients does not render the Department’s efforts unreasonable. The Department was not required to find another doctor to evaluate Mother. See COMAR 07.02.11.14A (“To the extent that funds and other resources are available, a range of services that will facilitate or maintain successful reunification of the child shall be: (1) Provided by the local department[,]” made available by referral to another agency, or purchased by the department upon written approval by the director or director’s designee) (emphasis added).
Mother’s Efforts to Adjust Her Circumstances
Next, we consider Mother’s argument that she sufficiently adjusted her “circumstances, condition, or conduct to make it in the child’s best interests for the child to be returned to [her] home[.]” FL § 5-323(d)(2). We recognize that Mother had regular supervised visits with M.R. The juvenile court also credited Mother’s efforts to maintain contact with M.R. “throughout most of the last nine to twelve months” preceding the TPR hearing. The court also noted that the Department’s caseworker “reported that, aside from being unavailable during much of the first year after [M.R.’s] removal, Mother is now in regular contact with the Department and is, overall, responsive to any questions and requests.”
Nevertheless, the record contains abundant evidence to support the court’s legal conclusion that Mother was unfit to remain in a parental relationship with M.R. Before M.R.’s birth, Mother had two children who were adjudicated as CINAs and removed from Mother’s care by the Department. At birth, M.R. tested positive for cocaine and marijuana. According to the Department’s caseworker, Mother made no efforts to adjust her substance abuse or improve her mental health circumstances after M.R.’s removal from her
custody. Dr. Scott also concluded that there was “significant evidence that [Mother] has and may be currently experiencing some form of psychosis including delusional and paranoid thinking patterns and behaviors.”10
Evidence of Aggravating Circumstances
Mother claims that the court improperly considered aggravating factors because “the ‘neglect’ that Mother was found to have committed against M.R. was speculative[.]” We disagree. Complying with FL § 5-323(d)(3)(i), the court considered whether Mother “ha[d] . . . neglected [M.R.] or a minor and the seriousness of the . . . neglect[.]” Indeed, the court found that “[t]he evidence sustained that Mother neglected [M.R.] and that removal of [M.R.] when she was about five months old was in her best interests.” In addition, the court noted that Mother’s two sons were removed from her custody “because of [her] neglect.” The court recognized the undisputed fact that M.R. was born substance exposed. FL § 5-323(d)(3)(ii)(1).
M.R.’s Emotional Ties to Mother and S.H.
In accordance with FL § 5-323(d)(4)(i), the court considered M.R.’s bond with Mother, S.H., and S.H.’s children. Moreover, the court ruled that M.R. “is developmentally on target, cheerfully attends her daycare, and presents as adjusted to her community and home.” In particular, S.H. testified that M.R. is “doing very well” in daycare and that she has a bond with S.H.’s other children. Examining the facts under FL § 5-323(d)(4)(iv), the court ruled that M.R. had “little chance” of harm when remaining in State custody, as “she will, in all likelihood, remain with her current resource parent, who has already committed to adopting her if and when that is possible.” By contrast, the record supports the court’s finding that “[t]he potential for harm to [M.R.] if returned to Mother is considerable, given Mother’s inability to document compliance with mental health and substance abuse treatment[.]”
For all these reasons, there was more than sufficient evidence to support the juvenile court’s decision to terminate the parental relationship between Mother and M.R. The court neither erred nor abused its discretion when concluding that the TPR ruling was in M.R.’s best interests.
II.
Mother’s counsel dedicates the last three pages of her opening brief to two claims. First, Mother argues that the court erroneously focused on custodial issues and improperly required her to prove sufficient parental fitness. Second, Mother claims that the court erred when it focused on statutory considerations related to custody, visitation, and permanency planning.
According to the Department, the court considered the appropriate statutory factors to determine whether Mother was fit to maintain parental rights. The Department asserts that Mother conflates the concepts of burden of persuasion and burden of production, as the court correctly recognized that Mother failed to meet the burden of production once the Department met its initial burden of persuasion.
The juvenile court provided a detailed analysis of the FL § 5-323(d) factors to examine “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.” In re Adoption/Guardianship of Rashawn H., 402 Md. at 500. To be sure, the court referenced FL § 9-101, which applies to custody and visitation proceedings, in the passage below:
In re: Adoption No. 12612, 353 Md. 209, 725 A.2d 1037 (1999) reminded courts that the Family Law article, section 9-101 requires that, if a party to a proceeding has neglected a child – not just the child at issue but any child – then the court must determine if it is likely or probable that the party will abuse or neglect the child at issue. If the court cannot specifically find that that there is no likelihood or probability of future neglect, then the court must deny custody or visitation rights to that party unless it can impose an arrangement which ensures the safety and well-being of the child.
Because of the long standing issues Mother has had with the courts, both in the criminal justice system and with findings of neglect of her children, because of her long-term and significant mental health issues and addiction, and because she was unable to document compliance with consistent and targeted treatment, the Court cannot specifically find that Mother has adjusted her circumstances such as to create and to sustain a safe and stable home for a small child.
The court was not discussing custodial issues here. Context shows that this reference to FL § 9-101 occurred within the court’s analysis of FL § 5-323(d)(2)(i) – “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” – which the court must consider in TPR proceedings. Indeed, in the same section of the court’s opinion, the court wrote: “The Court finds, by clear and convincing evidence, that Mother has not been able to adjust her circumstances and/ or her condition and conduct such that she has created a safe and stable environment for [M.R.]”
Mother also notes that the court referenced FL § 9-101 when the court judicially noticed the CINA cases involving Mother’s two sons, A.B. and T.T.11 This reference occurred within the court’s analysis of FL § 5-323(d)(1)(i), which the court must consider in TPR proceedings. That section of the court’s opinion was entitled: “(d)(1)(i) All services offered to the parent before the child’s placement, whether offered by a local department, another agency, or a professional.” In that section, the court only referenced Mother’s prior CINA cases to note her existing familiarity with the Department.
Similarly, Mother argues that the court’s opinion contains the following alleged error: “After consideration of those factors found in Family Law Section 5-525, this Court cannot find that a return to Mother’s care would be in [M.R.]’s best interests at this point.” According to Mother, the court erred by considering FL § 5-525 because that statute relates to permanency planning, not TPR determinations. The court’s reference to FL § 5-525, occurred within the context of the court’s consideration of FL § 5-323(d) (4)(iv), which the court must consider in TPR proceedings. That section of the court’s opinion was entitled: “(d)(4)(iv) The likely impact of terminating parental rights on the child’s well-being.” The court’s passing references to FL § 9-101 and FL § 5-525 do not affect our conclusion that the court properly focused on the FL § 5-323(d) factors.
Finally, we agree with the Department that Mother’s argument
conflates the burden of production and the burden of persuasion. Mother takes issue with two of the court’s statements. First, the court wrote that “[t]he potential for harm to [M.R.] if returned to Mother is considerable, given Mother’s inability to document compliance with mental health and substance abuse treatment, and her failure to persuade the Court that she, herself, is healthy and able to care for a toddler.” Second, the court wrote that “Mother has failed to convince this Court that she is strong, healthy, sober, and able to direct her attention and energies to the full-time care and protection of [M.R.]” Mother argues that “[i]n a TPR proceeding, it is the department, as the petitioning party, who has the burden to show that TRP is legally justified[.]”
The Supreme Court of Maryland has explained that the Department bears the “burden of persuading the juvenile court of [the parent’s] unfitness as a parent, through the presentation of clear and convincing evidence, and any component of that unfitness was subject to that same standard.” In re Adoption/
Guardianship of Amber R., 417 Md. 701, 720 (2011). “Once the Department had presented evidence on this issue to the juvenile court, however, the judge could decide that burden of producing relevant evidence shifted to [the parent].” Id. Like in Amber R., “the Department had the burden of producing evidence that [Mother] was addicted to illegal drugs” and experiencing mental health issues. Id. at 721. When the Department met that burden of production through ample evidence of Mother’s substance abuse and mental health condition, the burden of production shifted to Mother, “which meant that she risked ‘the liability to an adverse ruling (generally a finding or directed verdict) if evidence on the issue has not been produced.’” Id. (quoting Commodities Reserve Corp. v. Belt’s Wharf Warehouses, Inc., 310 Md. 365, 368 n.2 (1987)). Mother, however, introduced no evidence to meet her burden of production.
In sum, the court properly applied the factors in FL § 5-323(d), and the court did not err in terminating Mother’s parental rights.
JUDGMENT OF THE CIRCUIT COURT FOR WORCESTER COUNTY AFFIRMED; COSTS TO
BE PAID BY APPELLANT.
FOOTNOTES
1 The biological father of M.R. is unknown. The court noted that “service was effected by publication in a local newspaper and by posting on the Maryland Department of Human Services website, and a consent by the unknown father was deemed to have been effectuated by operation of law on January 15, 2024.”
2 To protect Mother’s children’s identities, we refer to them by their initials. 3 At the TPR hearing involving M.R., the court took judicial notice of the CINA and TPR cases involving Mother’s two other children. In an opinion and order issued on May 22, 2024, the court noted “the plethora of case law which directs a trial court to consider the parent’s treatment of a sibling or other minor child when determining whether there will be similar behavior and similar treatment of the child who is before the Court.”
4 Under FL § 5-704.2(c), healthcare practitioners involved in the delivery or care of a substance-exposed newborn are generally required to report to the local department of social services about the newborn’s condition and the mother’s ability to properly care for the newborn. The local department must then promptly conduct a risk assessment and, if further intervention is necessary, take additional actions to ensure the safety of the family. FL § 5-704.2(h).
5 “‘Shelter care’ means a temporary placement of a child outside of the home at any time before disposition.” Md. Code, CTS. & JUD. PROC. § 3-801(cc).
6 Those factors are:
(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;
FL § 5-323(d)(1)(ii)-(iii).
7 The fourth factor is:
(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[.] FL § 5-323(d)(2) (i).
8 In Mother’s reply brief, Mother claims that the Department inaccurately describes the standard of review applied to the court’s conclusion that Mother was unfit to parent M.R. We agree with Mother that we review de novo the court’s legal conclusion on parental unfitness. In re Adoption/Guardianship of C.E., 464 Md. at 47.
9 The Department notes that “[b]y the time M.R. was placed into shelter care, Mother had been offered services over the course of 17 years.” Mother responds in her reply brief: “Nowhere does the CINA subtitle say that a court can look at a parent’s prior, separate, and closed CINA cases as evidence of whether the department has made reasonable efforts in an altogether different case.” As outlined above, there was significant
evidence that the Department repeatedly made reasonable efforts to reunify Mother and M.R., even without considering the services provided to Mother in prior CINA cases involving Mother’s other children.
10 Mother argues that the court erred in ruling as follows: “There was credible testimony that, at one point, Mother had suffered from Traumatic Brain Injury.”
The court’s statement appears to stem from M.R.’s attorney’s cross-examination of Dr. Scott. The attorney asked Dr. Scott the following: “Do you think the fact that that traumatic brain injury that [Mother] did not disclose to you, the fact that it occurred could that have some impact on her ability to answer the questions in this Fit2Parent?” Dr. Scott replied: “Yes.” To the extent that this questioning suggested that Mother had suffered from an undisclosed traumatic brain injury, we cannot say that the court erred in relying on that suggestion. In any event, the court’s consideration of Mother’s possible traumatic brain injury
did not affect the court’s TPR determination, which was based on “Dr. Scott’s dire statements regarding Mother’s mental health, and the less than hopeful predictions of future mental health without extremely intensive treatment, coupled with Mother’s history of neglect of other children[.]”
Further, to the extent that Mother challenges the court’s reliance on Dr. Scott’s psychological evaluation, we note that Mother’s counsel stipulated to Dr. Scott’s qualifications as an expert witness in the field of psychology. Moreover, Mother’s counsel stated “[n] o objection” when the Department sought admission of copies of Dr. Scott’s psychological and Fit2Parent evaluation at the TPR hearing. As the factfinder, the court was entitled to rely on those reports and accept Dr. Scott’s opinions.
11 Mother does not appeal the circuit court’s decision to take judicial notice of these prior cases. A court may take judicial notice of prior CINA proceedings in a TPR case. See In re H.R., 238 Md. App. 374, 400-07 (2018).
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Baltimore City Circuit Court’s termination of mother’s parental rights. The court’s fact-findings were not erroneous, and it appropriately concluded that exceptional circumstances exist in this case that made continuing the parental relationship detrimental to the child.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
in 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.4 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.
Because D.O. has been in foster care for eight 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”) 5 on February 13, 2017. The initial permanency plan for D.O. was reunification with Ms. D. She was granted unsupervised visitation with
On April 25, 2023, the Circuit Court for Baltimore City, sitting as the juvenile court, terminated the parental rights of Ms. D. in relation to her youngest child, D.O. Ms. D. appealed that decision, and in an unreported opinion this Court vacated the judgment and remanded to the circuit court. After an additional hearing, the court again terminated Ms. D.’s parental rights on May 30, 2024. Ms. D. appeals from that decision, and presents two 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 affirm.
FACTUAL AND PROCEDURAL BACKGROUND2
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 buildup 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.3
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
D.O. on February 13, 2017, but an order on March 10, 2017, imposed a condition that “unsupervised visitation is subject to medical clearance.” 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. Those two young children were removed from her care at the same time as D.O., and 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 Maryland6 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 shopping 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.7 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,” understanding 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 AND FIRST APPEAL
On April 25, 2023, the court terminated Ms. D.’s parental rights. Ms. D. noted a timely appeal from that order. This Court vacated the circuit court’s order and remanded for further proceedings. In re D.O., No. 552, Sept. Term 2023 (filed Jan. 18, 2024). We did so because some fact-findings by the circuit court were clearly erroneous and the court failed to address all of the required statutory factors found in Md. Code (1984, 2019 Repl. Vol.), § 5-323(d) of the Family Law Article (“FL”).
PROCEEDINGS AFTER FIRST APPEAL
On remand, the court gave the parties the opportunity to present additional evidence, but they declined to do so. A hearing was held on April 29, 2024, during which the parties presented additional arguments. These arguments were primarily focused on whether DSS provided adequate services to facilitate reunification, and whether Ms. D. made sufficient efforts toward reunification. On May 30, 2024, the circuit court issued a written opinion discussing its findings in detail and again terminated Ms. D.’s parental rights. Ms. D. noted this timely appeal.
DISCUSSION
I. Termination of Parental Rights Principles
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 FL § 5-323(b).
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[8] as evidenced by a positive toxicology test; or
B. upon the birth of the child, the child tested positive for a drug as evidenced by a positive toxicology test; and
2. the mother refused the level of drug treatment recommended by a qualified addictions specialist, as defined in § 5-1201 of this title, or by a physician or psychologist, as defined in the Health Occupations Article;
(iii) the parent subjected the child to:
1. chronic abuse;
2. chronic and life-threatening neglect;
3. sexual abuse; or
4. torture;
(iv) the parent has been convicted, in any state or any court of the United States, of:
1. a crime of violence against:
A. a minor offspring of the parent;
B. the child; or
C. another parent of the child; or
2. aiding or abetting, conspiring, or soliciting to commit a crime described in item 1 of this item; and
(v) the parent has involuntarily lost parental rights to a sibling of the child; and
(4)(i) the child’s emotional ties with and feelings toward the child’s parents, the child’s siblings, and others who may affect the child’s best interests significantly;
(ii) the child’s adjustment to: 1. community; 2. home; 3. placement; and 4. school;
(iii) the child’s feelings about severance of the parent-child relationship; and
(iv) the likely impact of terminating parental rights on the child’s well- being.
II. The Juvenile Court’s Findings
We note that the juvenile court’s opinion on remand expressly addressed each of the FL § 5-323(d) factors.9 In its discussion of FL § 5-323(d)(1)(ii), the court found that DSS offered Ms. D. services such as a referral for parenting classes and providing Ms. D. transportation funds and in-person and video visitation. However, the court had “some concerns” with the services DSS provided. “While DSS informed [Ms. D.] about [D.O.’s] medical procedures, they failed to inform her about [D.O.’s] routine medical appointments.” Additionally, “DSS failed to monitor” Ms. D.’s visits with D.O., resulting in Mrs. M. sitting in on the visits until D.O. was three years old, and “there were times when [Ms. D.] was entitled to weekly visits but received bi-weekly visits.”10 Concerning the services provided by DSS to facilitate reunification, the court concluded:
Although . . . DSS provided or recommended a plethora of services, it could have done more for [Ms. D.]. DSS could have monitored the visits to ensure that they were conducted properly and timely. Regular service agreements would have possibly kept [Ms. D.] on schedule or more clearly demonstrated that [Ms. D.] was not invested in reunification. These failings amounted to missed opportunities which worked against a timely reunification process.
In discussing FL § 5-323(d)(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,” the court noted several failings on the part of Ms. D. The court concluded that Ms. D.’s efforts to maintain contact with D.O. weighed “both in favor and against” Ms. D. [Ms. D.] 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.] to the visits, [Ms. D.] failed to protest and demand her rights to a full visit. Further, [Ms. D.] did not complain when DSS or Mentor Maryland changed her weekly visits from weekly to bi- weekly. Further, [Ms. D.] missed visiting [D.O.] during her holiday seasonal employment from November 2022 through January 2023. Further, [Ms. D.] failed to contact DSS after her seasonal job ended. DSS had to contact [Ms. D.] to schedule a February 2023 visit. Only hours before that visit, [Ms. D.] contacted DSS to cancel that visit due to her illness. There is no evidence that she attempted to schedule any visits between November and February. In fact, the uncontroverted evidence is that [Ms. D.] simply announced that she would not be available while she had the seasonal job.
However, [Ms. D.] did adjust her schedule for many of the Mentor Maryland visits at 5:00 P.M. and for hospital visits while [D.O.] had seventeen surgeries and procedures.
The court found that Ms. D.’s contacts with DSS weighed in favor of TPR because, “[w]hile [Ms. D.] did contact DSS, that was the exception as opposed to the rule. Sometimes [Ms. D.] contacted DSS to cancel visits, and other times she did not contact DSS at all.” Concerning Ms. D.’s “contribution to a reasonable part of [D.O.’s] care and support,” FL § 5-323(d)(2)(ii), the court noted that it was not clear whether Ms. D. “had the means to offer regular support” to D.O. at any point, but also that Ms. D. failed to provide D.O. any gifts or occasional support even when she had employment. The court concluded that this factor “weighs somewhat against” Ms. D. In discussing 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,” the court noted that D.O. is eight years old and “has never been to [Ms. D.’s] home.” The court found:
During his lifetime, generally, [D.O.] has seen his mother on a weekly, bi- weekly, or monthly basis. Other times, [D.O.] has not seen his biological mother for extended periods. Certainly, [Ms. D.] has visited [D.O.] in the hospital during his hospital confinements; however, [Ms. D.] was not there for routine doctor visits. In essence, there is no mother/child bond between [Ms. D.] and [D.O.].
Further, since there is no bond between [D.O.] and his biological mother, based on the evidence, time would have to be extended to allow [D.O.] to adjust to unsupervised visits with his biological mother and be away from his foster family. Further, Dr. Zajdel noted that should we move to the next step of unsupervised visits, the [c]ourt should consult with the medical providers to ensure that [D.O.’s] fragile medical state is not damaged in the process.
Then, additional time would be required to give [Ms. D.] the opportunity to get to know [D.O.] so that [Ms. D.] would appreciate when [D.O.] is becoming sick or otherwise require medical attention. Presently, [Ms. D.] has little appreciation for [D.O.’s] medical needs.
Even if this [c]ourt extended the time, given [D.O.’s] resistance to being with his biological mother, there is no evidence that additional extensions would be fruitful.
The court also found that D.O. “has no emotional ties and feelings for his mother, siblings and others that would adversely impact [D.O.] if this Petition is granted[,]” and has no ties to Ms. D.’s home or community. “According to the evidence, [D.O.] neither recognize[s] nor understands a parent-child relationship with his biological mother.” The court discussed the attempted February 2020 bonding evaluation,11 concluding that
[i]n hindsight, this bonding study appointment was an opportunity for [Ms. D.] to try to cultivate a relationship with [D.O.], under the guiding and watchful eye of Dr. Zajdel, even if that initial effort to persuade [D.O.] to go to the interview room failed. However, [Ms. D.] failed to attempt to instill some level of trust in [D.O.].
The court found that “the likely impact of terminating parental rights on [D.O.’s] well-being” is “de minimus,” and expressed concerns that delaying the process could negatively impact D.O. If this [c]ourt denies this Petition, and extends this process
another eighteen months, [D.O.] will be nine years old, over halfway to his eighteenth birthday. After living with his foster family for . . . nine years, after the medical trauma he has been through, how would one expect him to react[?] His well-being may be damaged beyond repair.
Although this [c]ourt considers this case to be fraught with missed bonding opportunities, any attempt to correct these failings would be more damaging than the original shortcomings. Furthermore, [Ms. D.] has generally presented herself as uninvested in [D.O.’s] day-to-day life, except for his[] surgeries and in-patient medical procedures. Otherwise, [Ms. D.] proved to be less than energetic when she participated, especially when [D.O.] proved to be difficult.
Lastly, although Dr. Zajdel noted that there is a possibility for bonding to take place, she offered one caveat. S[h]e said that bonding could take place under the right circumstances. Those circumstances do not exist in this case.
The court concluded that exceptional circumstances exist which make termination of Ms. D.’s parental rights in D.O.’s best interests.
[T]he exceptional circumstances are based on a number of factors. First, [D.O.] was shelter[ed] shortly after his birth and he remained in care for all of his life. [D.O.’s] foster parents took him home from the hospital when he was approximately nine days old. He is now eight years old. [D.O.] has resisted identifying with his biological mother in name and title. [D.O.] refused to participate with his biological mother in the bonding evaluation. He was so emotionally distressed that his biological mother refused to try to attempt to persuade him to participate.
[D.O.] is still a medically fragile child. [D.O.’s] biological mother has not been a consistent presence in his life for . . . more than one-hour at a time, except when [D.O.] was undergoing medical procedures. Therefore, his mother understands that she would have to expend time learning [D.O.’s] manners and habits and using this intelligence to determine when [D.O.] is becoming sick. [D.O.] is still facing one more major surgery and the removal of his G-tube.
Through able counsel, [Ms. D.] has fought valiantly, however, she has not expended the same level of energy in standing up for her rights during this TPR process.
III. Analysis
Ms. D. argues that the court erred in its findings on some of these factors. Specifically, she argues that, concerning FL § 5-323(d)(1) (ii), the court should have found that DSS did not provide adequate services to facilitate reunification, based on its failure to provide frequent visitation and failure to obtain a bonding study between Ms. D. and D.O. She also argues that the court erred by not mentioning that there was a second order for a bonding study between Ms. D. and D.O. in September 2020 and that no evidence was presented that DSS attempted to schedule a bonding study as a result of that order. Concerning FL § 5-323(d)(2), Ms. D. argues that the court erred in finding that her visitation with D.O. was “inconsistent,” and in concluding that she “sat on her rights” and “didn’t work hard enough” to make changes necessary for reunification. Ms. D. additionally argues that DSS’s failure to provide adequate services should preclude TPR. Finally, Ms. D. argues that DSS failed to prove
exceptional circumstances.
The juvenile court’s findings are supported by the record. The court noted numerous instances where DSS failed to make reasonable efforts to reunify D.O. and Ms.
D. Its failure to mention certain details of the now eight-year history of this case, such as the existence of a second order for a bonding study in 2020, does not render its findings clearly erroneous. Moreover, as we discuss below, the court appropriately considered DSS’s less than ideal efforts as part of its comprehensive review of the statutory factors.
The court’s findings concerning Ms. D.’s efforts were also supported by the record. In discussing Ms. D.’s efforts to maintain regular contact with D.O., the court focused primarily on the most recent evidence: that Ms. D. failed to visit D.O. from November 2022 to January 2023 because of her seasonal employment; that she failed to contact DSS to arrange for visitation after the seasonal employment ended, resulting in an additional month without visitation; that she did not attempt to make any contact with D.O. during that period; and that Ms. D. failed to assert her right to the full period of visitation when Mrs. M. was late to visits in 2022. Thus, although there may not have been definitive evidence of the frequency of Ms. D.’s visits prior to November 2022, the court’s description of Ms. D. as not having been “a consistent presence in [D.O.’s] life” is supported by the more recent record. We are satisfied that the court considered the full record, and it made sufficient findings relevant to each of the FL § 5-323(d) factors.
The focus of a TPR inquiry is on the child’s best interests. In re Adoption/Guardianship of C.E., 464 Md. 26, 56 (2019). As discussed above, although there is a presumption that it is in a child’s best interests to maintain the parent-child relationship, this presumption may be rebutted where the FL § 5-323(d) factors show that exceptional circumstances exist such that it is in the child’s best interests to terminate the relationship.12 C.A. and D.A., 234 Md. App. at 47-48. Thus, the factors inform both whether exceptional circumstances exist and whether TPR is in the child’s best interests.
In re Ta’Niya C., 417 Md. 90, 104 (2010) (citing Rashawn H., 402 Md. at 499). Notably, the factors concerning the efforts DSS made to prevent placement, to reunify, and to fulfill its obligations under service agreements are not focused on how those efforts affect the interests of the parent, but on how those efforts affect the child’s best interests. In re Adoption of K’Amora K., 218 Md. App. 287, 302 (2014) (“[A] parent’s rights do not drive our decision. As the [Supreme Court] recently reaffirmed, ‘the child’s best interest has always been the transcendent standard in . . . TPR proceedings,’ and ‘trumps all other considerations,’ even the rights and interests of parents.” (last alteration in original) (quoting Ta’Niya C., 417 Md. at 111-12)).
Ms. D. argues that “[b]ecause the court found that DSS never adequately provided the family with core services needed for successful reunification, the TPR must be reversed.” Ms. D. cites four Maryland cases in support of this assertion: In re Adoption/ Guardianship Nos. CAA92-10852, 92-108053, 103 Md. App. 1 (1994); In re Adoption/Guardianship Nos. J9610436 & J9711031, 368 Md. 666 (2002); In re James G., 178 Md. App. 543 (2008); and In re Adoption/Guardianship of Victor A., 386 Md. 288 (2005).13 In both CAA92 and James G., DSS met with the parents only once and otherwise made virtually no effort to provide services toward reunification. 103 Md. App. at 13-16, 21; 178 Md. App. at
551. In CAA92, this Court held that, under the facts of that case, DSS’s failure to provide reunification services precluded TPR. 103 Md. App. at 28. In James G., we held that the failure to provide reunification services precluded a change in permanency plan. 178 Md. App. at 590. In J9610436, the Maryland Supreme Court held that, although DSS had provided the father with numerous services, those services were not adequate because they were not focused on the specific needs of the father. 368 Md. at 680-82. This failure precluded TPR because the evidence did not indicate “that proper additional services could not bring about an adjustment that would permit reunification.” Id. at 694. The father had “made extensive and extraordinary efforts to further reunification” and “maintained as regular a contact with his children as [DSS] would permit.” Id. These cases show that, where DSS fails to provide adequate services that are likely to lead to reunification, such failure can be a strong factor against TPR. However, none of these cases suggest that a failure to provide adequate reunification services precludes TPR. Instead, they show that, where parents have not been given an opportunity to demonstrate their parenting skills or to make the specific changes needed for reunification, TPR may not be in the child’s best interests. The exception to this is where the evidence indicates that additional services are not likely to lead to reunification. See J9610436, 368 Md. at 694.
Ms. D. asks this Court to hold that DSS’s failures, in and of themselves, preclude a TPR order in this case. However, a TPR determination must be based on all of the statutory factors as they inform the best interests of the child. In re Adoption/Guardianship of Jasmine D., 217 Md. App. 718, 736-37 (2014) (“[T]he court must weigh all of the statutory factors together, without presumptively giving one factor more weight than another.” (citing In re Adoption/ Guardianship No. 94339058/CAD, 120 Md. App. 88, 105 (1998))); FL § 5-323(d) (“[I]n ruling on a petition for guardianship of a child, a juvenile court shall give primary consideration to the health and safety of the child and consideration to all other factors needed to determine whether terminating a parent’s rights is in the child’s best interests[.]”). The juvenile court appropriately adopted this global view in concluding that exceptional circumstances exist which make it in D.O.’s best interest to terminate Ms. D.’s parental rights.
The court viewed the entire record, and concluded that there was a lack of familiarity between D.O. and Ms. D. Indeed, the court correctly noted that D.O. “has never been in his mother’s care.” This is not a case like J9610436, where the parent “made extensive and extraordinary efforts to further reunification” and “maintained as regular a contact with his children as [DSS] would permit.” 368 Md. at 694. Instead, Ms. D.’s past behavior demonstrated to the court that she would unlikely put in the time and effort to establish the level of familiarity required for reunification. The court was especially concerned with Ms. D.’s lack of proactivity with regard to D.O. and willingness to go months without any contact with him and without attempting to suggest an alternative solution. In reaching its conclusion, the court considered all of the FL § 5-323(d) factors, viewing the circumstances as whole rather than a single facet of the long, complex history of this case. As in In re Adoption/Guardianship No. 94339058/CAD in Circuit Court for Baltimore City, 120 Md. App. 88, 105 (1998), the court here found that DSS “could have done more.” Nevertheless, as we concluded in that case, we similarly affirm here because the evidence related to all of the statutory factors, considered together, is sufficient to uphold the finding that termination is in the child’s best interests. Id. “[A] critical factor in determining what is in the best interest of a child is the desire for permanency in the child’s life[.]” K’Amora K., 218 Md. App. at 306 (quoting In re Jayden G., 433 Md. 50, 82 (2013)). D.O. has been in foster care for over eight years, and the court’s conclusion that D.O. “has no emotional ties and feelings for his mother” is amply supported by the record. The court recognized that, although reunification was hindered by the actions of both DSS and Ms. D., the only way D.O. can now achieve the stability he needs is by terminating Ms. D.’s parental rights and allowing the only family D.O. has ever known to adopt him. The court’s fact-findings were not erroneous, and the court appropriately concluded that exceptional circumstances exist in this case that made continuing the parental relationship detrimental to the child. We discern no abuse of discretion in the ultimate decision that it was in D.O.’s best interests to terminate Ms. D.’s parental rights.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY, SITTING AS THE JUVENILE COURT, AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Ms. D. presented the following questions in her brief:
1. Did the court err and abuse its discretion when it terminated mother’s parental rights to D.O. because DSS failed to ever seriously attempt reunifying the family?
a. Was the court erroneous when it failed to acknowledge the full extent of DSS’s inadequate reunification services?
b. Was the court erroneous when it found that mother’s efforts were “problematic,” as a pretext for excusing DSS’s failures?
c. Is denial of the guardianship petition the proper remedy for DSS’s services failings?
2. Did DSS fail to prove, and did the court err in finding, that exceptional circumstances justified TPR?
a. Did the court make erroneous factual findings under Maryland Code, Family Law (FL) § 5-323(d)?
b. Can exceptional circumstances be established by the bond between a child and substitute caregiver, the length of the child’s placement, and the child’s medical needs where DSS has made inadequate efforts to reunify the child and fit parent?
2 Because no new evidence was presented on remand, we rely substantially on the facts recounted in our prior unreported opinion.
3 Because there was no subsequent evidentiary hearing, it is unclear whether D.O. had the final heart surgery in 2023 as anticipated or whether his g-tube was removed.
4 Mr. O. was deemed to have consented to TPR after failing to note an objection.
He is not a party to this appeal.
5 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.
6 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. 3, 2025).
7 There was never any evidence concerning the possibility of weekend visitation.
8 “Drug” is defined in FL § 5-323(a): “In this section, ‘drug’ means cocaine, heroin, methamphetamine, or a derivative of cocaine, heroin, or methamphetamine.”
9 As D.O. notes in his brief, the court specifically addressed the six concerns that we identified in our prior unreported opinion.
10 In its discussion of FL § 5-323(d)(1)(iii), “the extent to which the local department and parent have fulfilled their obligations under a social services agreement,” the court also noted the Department’s failure to monitor the video visits, resulting in “ineffective” visits during which “D.O. (then four years old) and his foster mother were in grocery stores and while the foster parent was focused on driving her vehicle.” The court additionally found that “DSS failed to offer make up visits when the foster mother was late for the parent- child visits at Mentor Maryland[,]” and failed to “encourage [Ms. D.] to consider an alternate schedule or revert to Zoom visitations” during the period when Ms. D. indicated she would not be available for visits due to her work schedule. The court concluded that “While DSS offered various services and some of these services bore fruit, DSS failed in the critical area of visitation and communications.”
11 As noted in Ms. D.’s brief, the court erred by stating that this attempted bonding evaluation occurred in August 2020. We fail to see how this slight error in the date could have made any difference to the circuit court’s conclusions.
12 Ms. D. argues that the court improperly focused on whether a change in custody would be in D.O.’s best interests, rather than focusing on termination of the parental relationship. We acknowledge that the court’s statement, “the removal of [D.O.] from [the foster] home could critically damage his emotional, physical, and mental health,” contemplates custody of D.O. However, the likelihood of the parent eventually having custody of the child is important in a TPR case. 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”); In re K.H., 253 Md. App. 134, 160 (2021) (“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.’” (quoting C.E., 464 Md. at 51-52)). A fair reading of the court’s opinion persuades us that its focus was on the lack of a bond between Ms. D. and D.O. rather than the potential effect resulting from a change in custody.
13 The only part of Victor A. that is relevant to this issue is a short comment that long-term placement may be appropriate where “DSS has not provided timely reunification services.” 386 Md. at 312.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Prince George’s County Circuit Court’s order that mother refrain from using corporal punishment as a disciplinary method against her child. The circuit court properly considered the totality of the circumstances surrounding mother’s use of corporal punishment when assessing whether it was reasonable.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
who testified to the following facts. As of the hearing, C.P. was a tenth grade honor roll student and a member of her high school’s drama club. C.P. often lied to Mother, including telling her that drama club rehearsals ended at 7:45 p.m., when they actually ended at 7:30 p.m. C.P. lied about the drama club schedule so that she could spend fifteen minutes socializing with friends before Mother picked her up from rehearsal. One evening, however, Mother arrived at C.P.’s school (where rehearsal was held) after her friends had left. Upon finding C.P. sitting alone, Mother asked her what time drama rehearsal had ended. Consistent with her prior representations, C.P. answered: “7:45.” Mother subsequently discovered C.P.’s deception after sending an email to her drama teacher, asking what time rehearsal ended.
Christopher Phillips (“Father”) and Pamela Springer (“Mother”) are the unmarried parents of C.P., born in October 2007.1 Under a consent order entered on June 15, 2017, Mother was awarded primary physical and sole legal custody of C.P., with “reasonable rights of access granted to [Father.]” This custodial arrangement continued for approximately seven years without further judicial intervention. On February 27, 2024, however, Father filed a petition for protection from child abuse in the Circuit Court for Prince George’s County against Mother on C.P.’s behalf. In that petition, Father alleged that, on February 12, 2024, Mother intentionally choked C.P. in anger. The court granted a temporary protective order and scheduled a final protective order hearing for March 26, 2024.
Following the March 26th hearing, the circuit court entered a Final Protective Order, finding that Mother had choked and thrown objects at C.P. on February 12th. Although the court permitted Mother to retain sole legal and primary physical custody of C.P., it prohibited her from using further corporal punishment on the child.2 Mother timely appealed and presents two issues for our review, which we rephrase slightly as follows3:
1. Did the court err in finding by a preponderance of the evidence that Mother abused C.P.?
2. Did the court err by prohibiting Mother from using corporal punishment on C.P.?
For the following reasons, we answer these questions in the negative and shall affirm the judgment of the circuit court.4
BACKGROUND
C.P.’s Testimony
The March 26, 2024, protective order hearing began with a private, court-conducted interview of then sixteen-year-old C.P.,
Upon learning the truth (i.e., that rehearsal ended at 7:30 p.m.), Mother confronted C.P. in her bedroom and demanded to know why she had lied. After initially attempting “to dodge the question[,]” C.P. answered: “[B]ecause I wanted to hang out with my friends.” Mother grew angry and yelled at C.P.5 She then “grabbed a hold [sic] of [C.P.’s] neck” and “choked [her] on the bed” for approximately fifteen to twenty seconds. Although C.P. did not lose consciousness, Mother’s hand left a mark on her neck, which was still visible at the hearing.6 After some additional “lecturing” by Mother, C.P. attempted to go to bed. She was interrupted, however, when Mother returned to the bedroom and began throwing Valentine’s Day gifts (which she had purchased for C.P.) at her. Although the objects (e.g., “lip gloss” and “stuffed animals”) struck her, C.P. did not sustain any additional injuries as a result.
Father called C.P. the following day. During their ensuing conversation, C.P. informed him that Mother “got mad again” and relayed the events that had transpired the night before.
Mother’s Testimony
Mother was the second and final witness to testify at the hearing. According to Mother, C.P. had a history of behavioral issues, which included lying and “act[ing] out.” Mother testified that she disciplined C.P. by denying her certain privileges, such as taking away her phone, prohibiting her from attending events (e.g., ice cream socials), and/or grounding her. When these measures were ineffective, Mother resorted to “spank[ing]” C.P. Mother recounted that her use of such corporal punishment had prompted her sister to file a complaint with Child Protective Services. Although the ensuing investigation culminated in a finding that the allegations against her were “unsubstantiated,” Mother denied having “used the same sort of discipline on C.P.” since.
With respect to her daughter’s history of deceit, Mother testified that C.P. had repeatedly told her that drama rehearsal ended
at 7:45 p.m. On several occasions when she picked up C.P. from her high school, however, Mother noticed that the parking lot appeared empty, “the school [wa]s dark, and [C.P. was] nowhere to be found,” at least until Mother called her. When Mother raised the issue, C.P. simply assured her that drama rehearsal had “let out late.” Evidently dissatisfied with C.P.’s explanation, Mother emailed her drama teacher to ask what time rehearsal ended. The teacher responded that the students were dismissed at 7:30 p.m., and that she had not seen C.P. in the auditorium or surrounding area while making her rounds to ensure that there were “no remaining kids, . . . staff, or crew.”
On February 12, 2024, Mother entered C.P.’s bedroom and confronted her with what her drama teacher had written. This time, C.P. admitted that she had lied about her dismissal time so that she could “hang out with . . . friends.” When Mother asked where her friends had been when she arrived, C.P. answered: “[O]h, they left.” Mother did not believe C.P., suspecting that she had, in fact, been socializing with “a little boy . . . she likes . . . in another part of [the] school.” In expressing that suspicion, Mother told C.P. that she “didn’t want her interacting with this young man.” C.P. replied: “[You] don’t understand, let me explain.” Rather than allowing C.P. to elaborate, Mother responded: “[W]ell, what is it that you’re explaining, because I know that you were not where you were supposed to be, and now you’re telling me that you were hanging with friends, but now you’re telling me let me explain.”
Mother testified that C.P. began to cry and attempted to climb over her bed toward the bedroom door. Believing that she was “trying to run out the door,” Mother grabbed C.P. by the back of the neck. Because Mother’s right hand “is not that strong[,]” she “switched hands[,]” seizing C.P.’s neck with her left. Mother denied that she intended to hurt C.P., claiming that she was “just trying to stop her from running out the door.”7
After releasing her neck, Mother continued to lecture C.P. in a raised voice. Mother then retrieved a Valentine’s Day gift that she had purchased for her. Although she denied throwing the present at C.P., Mother admitted to tossing it on her chair in a gesture of disappointment.
The Court’s Ruling
At the close of the evidence, the circuit court announced its ruling from the bench. Based on C.P.’s testimony, which it found credible, the court determined that Mother had assaulted C.P., stating: “[I]n order for me to grant this protective order, I’ve got to find one of several things. The only one in my mind that applies is assault in any degree. And I do find assault in some degree.” Although the court declined to modify the existing custody order, it directed Mother to refrain from using corporal punishment to discipline C.P., saying:
You’re going to have to find another way to discipline her. And so, I’m granting the protective order. I’m granting that you not have – no corporal punishment. And I’m also putting in the order that you and your daughter, and possibly her father, all go to family counseling, which may assist you.
But I do find that [C.P.] was credible. And I think that you did discipline her. And I do find that it was an assault. And, you know, like I said, I talked to her. Her testimony, you know, I find was credible. She . . . didn’t . . . back away from the fact that she
was lying to you And then, I’m not suggesting that you didn’t have a reason to discipline her.
Ma’am, you are not to commit any corporal – no spankings. I’m sorry. You’re going to have to find another way. And [I am] ordering that you and the minor child, and [Father], if he chooses to participate – hopefully, you’ll get involved in that. You all attend counseling. And I’m closing this case.
Mother’s attorney asked the court to clarify its ruling, stating: “I just want to be clear, are you finding that the corporal punishment is unreasonable in any manner?” The following exchange ensued:
THE COURT: Why do I need to find that? . . . I only need to find assault in any degree.
[MOTHER’S COUNSEL]: Sorry. Because I thought that part of it is that punishment, in and of itself, was not considered abuse. But if it was unreasonable, that it had to be reasonable if the –the language that I’ve seen. So[,] that – that is why I’m asking, just to be clear, of what the findings are, is it that you’re saying that her punishment is considered unreasonable?
THE COURT: I do, if that’s what you want me to find.
[MOTHER’S COUNSEL]: Yes, I just wanted to be clear. The court memorialized its oral ruling in a written one-year protective order entered on March 26, 2024. In that order, the court found by a preponderance of the evidence that Mother had committed an “[a]ssault in any degree” on February 12, 2024, by choking C.P. and “thr[owing] objects at her.” (Capitalization omitted.) The order further provided, inter alia, that Mother “SHALL NOT abuse [or] threaten to abuse [C.P.]” and “THERE IS TO BE NO CORPORAL PUNISHMENT[.]”
DISCUSSION
I.
Mother contends that “the court erred in finding abuse when the discipline [she] used . . . was reasonable[.]” (Capitalization and emphasis omitted.) In support of that contention, she asserts that the court failed to properly assess whether her conduct constituted reasonable corporal punishment (which the law permits) or abuse (which the law prohibits). Specifically, Mother claims that the court neglected “to consider how the incident occurred” as well as whether the discipline she administered was reasonable “based on the child’s age and condition.” When properly weighed, Mother argues, the evidence demonstrated that her “method of discipline was reasonable[,]” and did not therefore “support a ruling of assault or abuse of C.P. by a preponderance of the evidence.”
When reviewing the issuance of a final protective order, “we accept the facts as found by the hearing court unless it is shown that its findings are clearly erroneous.” Piper v. Layman, 125 Md. App. 745, 754 (1999). We thus “consider evidence produced at the trial in a light most favorable to the prevailing party and if substantial evidence was presented to support the trial court’s determination, it is not clearly erroneous and cannot be disturbed.” Mills v. Mills, 178 Md. App. 728, 734-35 (2008) (quotation marks and citation omitted). See also Innerbichler v. Innerbichler, 132 Md. App. 207, 230 (“When the trial court’s findings are supported by substantial evidence, the findings are not clearly erroneous.”), cert. denied, 361 Md. 232 (2000). We likewise defer to the trial court’s assessment of witness credibility, as it had “the opportunity to gauge and observe
the witnesses’ behavior and testimony[.]” Barton v. Hirshberg, 137 Md. App. 1, 21 (2001) (quotation marks and citation omitted). “As to the ultimate conclusion, however, we must make our own independent appraisal by reviewing the law and applying it to the facts of the case.” Piper, 125 Md. App. at 754.
Maryland Code (1984, 2019 Rep. Vol.), § 4-506(c) of the Family Law Article (“FL”) authorizes courts to issue final protective orders “if the judge finds by a preponderance of the evidence that the alleged abuse has occurred[.]” FL § 4-506(c)(1)(ii). The petitioner therefore bears the burden of proving that it is “‘more likely than not’” that the alleged abuse occurred. C.M. v. J.M., 258 Md. App. 40, 56-57 (2023) (cleaned up) (quoting State v. Sample, 468 Md. 560, 598 (2020)). See also Piper, 125 Md. App. at 754 (“The burden is on the petitioner to show . . . that the alleged abuse has occurred.”). “‘If the court finds that the petitioner has met th[at] burden, it may issue a protective order tailored to fit particular needs that the petitioner has demonstrated are necessary to provide relief from abuse.’” Id. (quoting Ricker v. Ricker, 114 Md. App. 583, 586 (1997)). FL § 4-501(b)(1) defines “abuse” as the term is used in FL § 4-506, and provides, in pertinent part: “‘Abuse’ means any of the following acts: . . . (iii) assault in any degree[.]” In Maryland, “assault” “‘encompasses three modalities: (1) intent to frighten, (2) attempted battery, and (3) battery.’” Hammond v. State, 257 Md. App. 99, 126 (2023) (quoting Snyder v. State, 210 Md. App. 370, 382, cert. denied, 432 Md. 470 (2013)). See also Lamb v. State, 93 Md. App. 422, 428 (1992), cert. denied, 329 Md. 110 (1993). The battery variety of assault consists of “the unlawful[,] unjustified, offensive[,] and non- consensual application of force to the person of another.”
Hickman v. State, 193 Md. App. 238, 256 (2010).
“As a defense, by way of justification, to what would otherwise be an assault and battery, an individual in loco parentis may. . . establish that the force used upon the child was privileged as necessary and proper to the exercise of domestic authority.” Anderson v. State, 61 Md. App. 436, 443, cert. denied, 303 Md. 295 (1985). This parental privilege arises from the common law “‘precept . . . that the parent of a minor child . . . was justified in using a reasonable amount of force upon a child for the purpose of safeguarding or promoting the child’s welfare.’” Fisher v. State, 367 Md. 218, 271 (2001) (quoting Bowers v. State, 283 Md. 115, 126 (1978)). “The Maryland General Assembly has expressly codified the parent’s common law right to impose reasonable corporal punishment” in FL § 4-501(b). Dep’t of Hum. Res. v. Howard, 168 Md. App. 621, 635 (2006) (quotation marks omitted), vacated on other grounds, 397 Md. 353 (2007). Specifically, FL § 4-501(b)(2)(ii) states: “Nothing in this subtitle shall be construed to prohibit reasonable punishment, including reasonable corporal punishment, in light of the age and condition of the child, from being performed by a parent or stepparent of the child.” (Emphasis added.)
The parental privilege to employ corporal punishment “‘has two clear limitations.’” Fisher, 367 Md. at 275 (quoting Anderson, 61 Md. App. at 444). “‘The first . . . is that the force truly be used in the exercise of domestic authority by way of punishing or disciplining the child—for the betterment of the child or promotion of the child’s welfare[.]’” Id. (quoting Anderson, 61 Md. App. at 444). “The second . . . is that the amount of force used be moderate and reasonable.” Anderson, 61 Md. App. at 444-45. See also Charles Cnty. Dep’t of Soc. Servs. v. Vann, 382 Md. 286, 303 (2004) (“When . . . deciding whether a particular parental discipline is child abuse
. . . under . . . FL §§ 5-701 or 4-501, the court always determines whether the corporal punishment was reasonable.”).
In this case, we are principally concerned with the second limitation (i.e., that the force used was reasonable). In assessing the reasonableness of corporal punishment, courts must “consider . . . the totality of circumstances surrounding the physical punishment[.]” Id. at 299. Relevant factors include “the misbehavior of the child[,]” “the amount of force used in the punishment from the parent’s perspective, . . . the physical and mental maturity of the child, and the propriety of the decision to use force in circumstances that may increase the potential for serious injury.” Id. Ultimately, however, “[t]here simply is no privilege . . . within the context of administering ostensible child discipline, for excessive, cruel, or immoderate conduct[.]” Anderson, 61 Md. App. at 446.
We will first briefly address Mother’s peripheral assertion that the court’s findings were internally inconsistent. Noting that the “Domestic Violence Statute carved out an exception to abuse which allows parents . . . to punish/discipline their children[,]” Mother claims that the court’s determination that she “disciplined” C.P. contradicted its conclusion that she “assaulted” her. The fatal flaw in Mother’s argument is that it focuses exclusively on the first limitation (i.e., that the force be used for disciplinary purposes) while completely disregarding the second (i.e., that the force be reasonable). Contrary to the discipline-assault dichotomy Mother proposes, corporal punishment of a child—even when performed for purely disciplinary purposes—constitutes assault, and therefore abuse under FL § 4-501(b)(1)(iii), if the force used is unreasonable or excessive. See Anderson, 61 Md. App. at 446 (“Where . . . the chastisement becomes immoderate, it defeats the parental privilege and is treated as an ordinary assault and battery, as if perpetrated upon a stranger[.]”). Although the court in this case determined that Mother had “discipline[d]” C.P., it also found that the force she used was unreasonable. The court’s conclusion that Mother assaulted C.P. necessarily followed from the latter finding and was not, therefore, inconsistent with the former.
We turn now to Mother’s argument that the court failed to consider the totality of the circumstances surrounding her use of corporal punishment when assessing whether it was reasonable. Preliminarily, we note that, although FL § 4-506(c)(3)(ii) mandates that the court “make[] a detailed finding of fact” before issuing mutual final protective orders, FL § 4-506(c)(1)(ii) imposes no such requirement, stating instead: “[I]f the judge finds by a preponderance of the evidence that the alleged abuse has occurred, . . . the judge may grant a final protective order[.]”8 (Emphasis added.) The fact that the General Assembly explicitly required courts to make detailed factual findings in a different paragraph of the same statutory subsection indicates that it deliberately omitted such a requisite from FL § § 4-506(c)(1)(ii). See In re Adoption/ Guardianship of Dustin R., 445 Md. 536, 565 (2015) (“Because FL § 5-324(b)(1)(ii) includes language in subsubparagraphs (2) and (3) limiting the juvenile court’s order to [the Department of Social Services], but does not contain such language in subsubparagraph (7), such an omission is presumed to be intentional.”); Milleri v. Miller, 142 Md. App. 239, 251 (“[W]hen Congress included particular language in one section of a statute, but omitted it in another section of the same act, it could be presumed that Congress acted intentionally and purposely in the disparate inclusion or exclusion.” (citing Lindh v. Murphy, 521 U.S. 320 (1997))), aff’d sub nom.
Goldberg v. Miller, 371 Md. 591 (2002). Thus, to the extent that Mother is arguing that the court failed to make detailed findings before issuing the final protective order at issue, we hold that it was not required to do so. See Green v. Taylor, 142 Md. App. 44, 59 (2001) (“There is no requirement that the trial court . . . make detailed findings on every fact in dispute.”).
We are also unpersuaded by Mother’s argument that the court neglected to consider the totality of the circumstances in reaching its decision. As with factual findings, a court is not necessarily required “to state each and every consideration or factor in a particular applicable standard . . . so long as the record supports a reasonable conclusion that [the] appropriate factors were taken into account[.]” Ademiluyi v. Egbuonu, 466 Md. 80, 131 (2019) (quotation marks and citations omitted). See also Aventis Pasteur, Inc. v. Skevofilax, 396 Md. 405, 426 (2007) (“[T]rial judges are not obliged to spell out in words every thought and step of logic.” (quotation marks and citation omitted)). Nor is it necessary for a trial judge to “articulate each item or piece of evidence she or he has considered in reaching a decision[.]” Id. (quotation marks and citation omitted). Rather, “‘we presume judges know the law and apply it even in the absence of a verbal indication of having considered it.’” In re X.R., 254 Md. App. 608, 629 (2022) (cleaned up) (quoting Marquis v. Marquis, 175 Md. App. 734, 755 (2007)). See also Bangs v. Bangs, 59 Md. App. 350, 370 (1984) (“A judge is presumed to know the law and to properly apply it. That presumption is not rebutted by mere silence.” (internal citation omitted)).
In this case, the court repeatedly and unequivocally found C.P.’s testimony credible, thereby implicitly endorsing her narrative of events. That testimony provided the court with ample evidence relevant to the above-enumerated factors it was required to consider. The only arguable suggestion that the court may have inadequately considered these factors was a remark it made in response to Mother’s counsel asking whether it had found that Mother’s use of corporal punishment was unreasonable. In a seemingly offthe-cuff response that Mother characterizes as “sarcastic[,]” the court answered: “I do, if that’s what you want me to find.” Mother construes the court’s response as an attempt “to put an end to the discussion rather than an indication that [it] actually made a judicial determination that the punishment was unreasonable.” As explained above, however, the court’s determination that Mother’s corporal punishment of C.P. amounted to assault (of the battery variety) necessarily entailed a finding that the amount of force she used was unreasonable and excessive.9 Thus, by answering counsel’s question in the affirmative, the court simply made explicit what had been implicit in its initial ruling.
Finally, Mother claims that the court erred in finding that she assaulted C.P., arguing that the force she used was reasonable “to maintain some control over the situation and keep C.P. in the room[,]” particularly in view of her recent deceptive and rebellious behavior. In support of that position, Mother relies on her own selfserving testimony that “she grabbed C.P. to prevent her from leaving the room,” resulting in a “minor scratch on C.P.” In so arguing, Mother makes two fundamental mistakes. First, she distorts the applicable standard of review by viewing the evidence in the light most favorable to herself—rather than Father, who was the prevailing party. Secondly, she disregards the court’s unequivocal determination that C.P.’s testimony was credible.
Deferring, as we must, to C.P.’s narrative of events, we perceive no error in the court’s implicit determination that the amount of force Mother used was neither reasonable nor moderate, and therefore defeated the parental privilege. C.P. testified that Mother grabbed her neck in anger and choked her for approximately fifteen to twenty seconds, leaving a mark on her neck that was still visible at the protective order hearing held over six weeks later. According to C.P., Mother left the bedroom after releasing her neck only to return and throw objects at C.P., repeatedly striking her. Based upon the totality of the circumstances, we hold that the court did not err in concluding that Mother’s conduct exceeded the bounds of reasonable corporal punishment and therefore constituted assault. See B.H. v. Anne Arundel Cnty. Dep’t of Soc. Servs., 209 Md. App. 206, 216, 226, 230 (2012) (affirming the administrative law judge’s determination that appellant’s use of corporal punishment was unreasonable and amounted to abuse where appellant grabbed his four-year-old son by the neck and forced him back to the dinner table, resulting in bruises to the child’s neck and a scratch on his chin).
II.
Mother also contends that the court erred in ordering that she refrain from using corporal punishment to discipline C.P. Citing FL § 4-501(b)(2)(ii), she argues that such a prohibition “[i]s contrary to Maryland [l]aw[,]” which “clearly contemplates and allows parents to use corporal punishment as a method of discipline so long as it is reasonable.” By imposing a “wholesale ban on corporal punishment[,]” Mother claims that the court infringed upon her fundamental liberty interest in raising C.P.
“[T]he Due Process Clause of the 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) (plurality opinion). See also Conover v. Conover, 450 Md. 51, 60 (2016) (“[T]he rights of parents to direct and govern the care, custody, and control of their children is a fundamental right protected by the Fourteenth Amendment of the United States Constitution.”). That right, however, “is not absolute and . . . must be balanced against the fundamental right and responsibility of the State to protect children, who cannot protect themselves, from abuse and neglect.” In re Adoption/ Guardianship of Rashawn H., 402 Md. 477, 497 (2007). See also In re T.K., 480 Md. 122, 131 (2022) (“Parents have a fundamental right to rear their children without unwarranted interference by the State. That interest, however, is not absolute, and must be balanced against society’s obligation to protect the welfare of children.”). “That which will best promote the child’s welfare becomes particularly consequential where the interests of a child are in jeopardy, as is often the case in situations involving physical . . . abuse by a parent.” In re Mark M., 365 Md. 687, 706 (2001). See also In re Adoption/Guardianship No. A91-71A, 334 Md. 538, 561 (1994) (“[I]n all cases where the interests of a child are in jeopardy the paramount consideration is what will best promote the child’s welfare, a consideration that is of ‘transcendent importance.’”). “[I] n cases where abuse is evidenced,” moreover, “the court’s role is necessarily more pro-active.” In re Mark M., 365 Md. at 706.
Mother acknowledges that FL § 4-501(b)’s definition of “abuse” “balance[s] the [S]tate’s interest in caring for children and . . . parent[s’] fundamental liberty interest to raise their children
by authorizing reasonable corporal punishment.” She argues, however, that the court’s order upset that balance in contravention of Maryland law by failing to “distinguish between reasonable corporal punishment” and abuse. Mother’s argument misses the mark.
The exclusion of reasonable corporal punishment from the definition of “abuse” is clearly relevant to whether parental conduct supports the issuance of a final protective order pursuant to FL § 4-506(c)(1)(ii). It has little if any bearing, however, on the permissible scope of such an order, which is governed by FL § 4-506(d). Rather, FL § 4-506(d) “gives discretion to the trial judge to choose from a wide variety of available remedies in order to determine what is appropriate and necessary according to the particular facts of that case.” Coburn v. Coburn, 342 Md. 244, 258 (1996). See also La Valle v. La Valle, 432 Md. 343, 357 (2013) (“The [domestic violence] statute provides for a wide variety and scope of available remedies designed to separate the parties and avoid future abuse.” (quotation marks and citation omitted)). In 2015, the General Assembly further expanded an already extensive list of enumerated remedies by adding a catch-all provision to FL § 4-506(d), which permits a final protective order to provide “any
other relief that the judge determines is necessary to protect a person eligible for relief from abuse.” 2015 Md. Laws, ch. 335, § 1 (S.B. 269) (emphasis added).
In this case, the court evidently determined that preventing Mother from using corporal punishment on C.P. was necessary to ensure the child’s safety. That conclusion was perfectly reasonable given that Mother’s prior exercise of such disciplinary measures exceeded the bounds of reasonable punishment and therefore amounted to abuse. Thus, the relief granted in the court’s order was properly “tailored to fit [the] particular need[] . . . necessary to provide relief from [that] abuse.” Piper, 125 Md. App. at 754 (quotation marks and citation omitted). Finding no error in the court’s determination that a prohibition against corporal punishment was necessary to protect C.P. from abuse, we hold that the court’s remedy was permissible pursuant to FL § 4-506(d)(14). Accordingly, we conclude that the court did not err in ordering that Mother refrain from using corporal punishment as a disciplinary method against C.P.
For the foregoing reasons, we will affirm the judgment of the circuit court.
JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY AFFIRMED. COSTS
TO BE PAID BY APPELLANT.
FOOTNOTES
1 As she is a minor, we will refer to C.P. by her initials to protect her privacy.
2 The Final Protective Order is effective through March 26, 2025.
3 In her appellate brief, Mother articulated the questions presented as follows:
1. Did the Court err in finding that the Appellant abused the Minor Child, when the disciplined [sic] used was reasonable?
2. Did the Court err in ordering no corporal punishment when that is contrary to Maryland law?
4 Father did not file a brief or otherwise participate in this appeal.
5 C.P. testified that “when [Mother] gets really mad, she kind of loses it.”
6 C.P. attributed the mark to Mother’s fingernails.
7 Mother elaborated: “[T]here has been a time in the past, where C.P. has tried to run out the front door. At this point, it’s, like, after 9. And I don’t want my child running outside, into the street or into the hallway, or anything else, because it’s dark.”
8 FL § 4-506(c)(3)(i) authorizes the issuance of “mutual protective orders” if, inter alia, “the judge finds by a preponderance of the evidence that mutual abuse has occurred.”
9 Indeed, the court recognized that not all corporal punishment rises to the level of assault. Immediately after announcing its conclusion that Mother had both disciplined and assaulted C.P., it noted that “corporal punishment . . . is still on the books” and cautioned: “[T]hat’s not to suggest that you can’t spank your children.”
FOOTNOTES
1 Wife’s brief, filed by counsel, is very difficult to follow. The questions presented for appellate review in her brief are phrased as follows:
The question presented is whether the Circuit Court Order of December 12, 2023, follow Legal Custody, Physical Custody, and Mother holds tiebreaker in Legal Custody and Physical Custody Issues, as address under ‘Maryland’s Domestic Violence Act, Maryland Code, §§ 4-501 through 4-516 “and the Domestic Violence laws, under Family Law (“F.L.”) Article, subsection 5 of title 4 of the Maryland Code?
a) Legal Custody
b) Physical Custody
c) Mother holds tiebreaker in Legal Custody and Physical Custody Issues.
Did the Circuit Court Order dated December 12/2023, follow the ‘Maryland’s Domestic Violence Act, Maryland Code, §§ 4-501 through 4-516” under the Domestic Violent laws in divorce case, by not addressing the issues in its ruling for Divorce and Property Settlement?
We also note that Wife’s brief contains some assertions (such as that Husband was trained in the martial arts and that he “is a U.S. Navy-trained weapon; his hand are lethal weapons[]”) that are not based on the record before us. Husband’s informal brief, filed as a self-represented litigant, also contains some information (such as email exchanges between the parties) that occurred after the trial in this case. Because appellate review is limited to the record developed before the trial court, we shall disregard—as we must— any factual assertions in the briefs that were not in evidence in the circuit court proceedings which are the subject of this appeal.
2 In opening statements, Husband’s counsel related that Wife’s Mother died in a fire when Child was about six weeks old.
3 The record before us does not include a transcript of the hearing.
4 The magistrate’s Report and Recommendation did not recount any details regarding the alleged physical altercation.
5 Husband included in the appendix to his brief an order dated October 25, 2023, of the Municipal Court, City of Biloxi, Mississippi expunging the charge of
“domestic assault/simple 1st” after finding that “said charges were nolle prossed, dismissed, passed to the inactive files or otherwise not prosecuted[.]”
6 At the merits hearing, the petition was referred to as a “protective order,” as it is called in Maryland, but it seems Mississippi’s term for it may be a “domestic violence order.”
9 Subsection 5 of Title 4 of the Family Law Article of the Maryland Code addresses temporary and final protective orders. There is no evidence in the record before us that Wife sought a protective order in Maryland. Accordingly, we fail to understand Appellant’s counsel’s contention that the court did “not follow” this statute.
10 In Appellant’s Brief, counsel asserts that the criminal conviction was expunged and cites a Mississippi statute allowing for the expungement of one conviction from public records “five (5) years after the successful completion of all terms and conditions of the sentence.” Not only is there no evidence in the record before us that Husband was convicted of any criminal charges in Mississippi based on the alleged assault in June 2022, even if he was the Mississippi statute counsel cites would not have allowed expungement at this point because five years have not elapsed.
11 Family Law, § 9-101.1(b) provides that, “[i]n a custody or visitation proceeding, the court shall consider, when deciding custody or visitation issues, evidence of abuse by a party against,” among others, the “other parent of the party’s child.” Then, “[i]f the court finds that a party has committed abuse against the other parent[,]” the “court shall make arrangements for custody or visitation that best protect” the child and the victim of the abuse. Family Law, § 9-101.1(c).
Here, Wife’s only complaint of “abuse” by Husband against her was in relation to the June 2022 panic attack incident and, thereafter, of Husband being verbally “nasty” to her and failing to communicate with her when Child was in his care. The court’s order addressed the communication issue by requiring the parties, among other things, to communicate through Our Family Wizard app; to provide FaceTime (or similar) access to Child with the non-custodial parent every other day; to inform the non-custodial parent if Child would not be spending the night at the custodial parent’s home and, in that event, inform the non-custodial parent of the location where Child would be spending the night; and to provide the non-custodial parent with the name and phone number of any third party who might care for the Child.
12 In his brief, Husband requests that this Court “consider a 30-day rotation for custody instead of a 15-day rotation[]” and asks us to modify the exchange time from 12:00PM to another more convenient time. Husband must direct these requests to the circuit court.
Reginald Evan Taylor v. Renee Hill Taylor (Unrep.)
