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Maryland Family Law Update is a review of events as they affect the practice of domestic relations in law in the state of Maryland published by The Daily Record, 200 St. Paul Place, Suite 2480, Baltimore, Maryland 21202.
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3 Expanding kinship care for Md. foster youth
Child welfare agencies in Maryland and throughout the U.S. have long recognized that children who enter the foster care system usually benefit from placement within their family of origin whenever possible.
4 Cover story: Same-sex parents urged to complete second-parent adoption
With the political tide about to turn in Washington, family law practitioners in Maryland are fielding calls from same-sex parents worried that the new Donald Trump administration could dismantle LGBTQ rights and threaten the cohesion of their families.
6 In the News: Court says jilted bride must give back $70K ring
Who gets to keep an engagement ring if a romance turns sour and the wedding is called off? That’s what the highest court in Massachusetts was asked to decide with a $70,000 ring at the center of the dispute.
7 Guest Column: Are Canadian couples too poor to break up?
Why did Al and Peg Bundy from the sitcom “Married… with Children” never get divorced? After all, they were rarely happy and constantly arguing. What if the Bundys lived in Canada today? Would they have stuck it out together or gotten divorced? Could they have afforded to?
8 Monthly Memo
Where the parties’ divorce settlement agreement required the father to contribute $10,000 annually into his daughter’s college savings account, but he then refused to use the funds to pay for her college expenses, he was in violation of a court order, the Virginia Court of Appeals ruled. ... Russia’s upper house of parliament endorsed a bill banning adoption of Russian children by citizens of countries where gender transitioning is legal. … Child welfare advocates are dismayed over the lack of funding for a new law to support adults willing to step up at desperate times to care for young relatives who endured suspected abuse or neglect at home. … The Massachusetts Appeals Court has ruled that an estate beneficiary did not trigger the “in terrorem” clause in his father’s will by providing an affidavit that supported his disinherited brother’s allegations in a will contest. … The longtime music director at a northern Michigan church said he was fired just a few months before retirement after officials learned that he was in a same-sex marriage, a dismissal that has angered members and led to sidewalk protests by the choir.
Child Advocacy
Expanding kinship care for Md. foster youth
Child welfare agencies in Maryland and throughout the U.S. have long recognized that children who enter the foster care system usually benefit from placement within their family of origin whenever possible.
However, prior to January 2024, only 23% of Maryland’s foster youth were placed with kinship caregivers.
In May 2024, Gov. Wes Moore signed legislation establishing Maryland’s kinship care program -- a “kin-first culture” that expands kinship care in Maryland to include a preference for living with family by blood, marriage, or choice.
Family members by choice are often referred to as “fictive kin” and include godparents, neighbors, teachers, church members, and a parent of a child’s half-sibling.
Maryland’s kinship care program statute went into effect on Oct. 1, 2024, and defines “kinship caregiver” as “an individual (i) with whom a child who is in the care, custody, or guardianship of the local department (DSS) may be placed for temporary or long-term care other than adoption; and (ii) who is approved by the local department under subsection (e) of this section.”
Under the program, the local DSS is instructed to approve an individual as a kinship caregiver if: “(i) the individual is related to the child through blood or marriage, adoption, tribal law or custom, or cultural custom or practice; (ii) the individual has a strong familial or other significant bond to the child or the child’s family or is a person identified by the child’s parent; and (iii) placement with the individual is in the child’s best interest.”
The primary benefit of kinship care is greater stability; a foster child in kinship care is less likely
SHANNON M.
WEAVER
Child Advocacy
to experience school disruptions, behavioral and mental health challenges, and placement instability.
N., a Spanish-speaking teenager who entered foster care in 2020, initially placed in a group home where no one spoke Spanish.
N.’s former teacher, who speaks Spanish, was identified as a fictivekin placement but, because she was a nonrelative, she was required to complete the foster parent training and approval process before N. could be placed in her home. N. was finally placed with her former teacher in 2022 and is thriving.
Under the new law, N.’s placement with her teacher would occur more quickly as her teacher would be recognized as fictive kin and would not have to take foster parent training
Although the new law provides that “the local department shall give preference to placement with a kinship caregiver…”, it also provides “[i]f a kinship caregiver is located subsequent to the placement of a child in a foster care setting, the local department, shall, in the best interest of the child, place the child with the kinship caregiver.” (emphasis added).
When placing a child, including if removing a child from a nonrelative placement to place in a kinship home, it must be determined that the kin placement is in the child’s best interest based on that child’s individual needs and circumstances. G. and his older sibling M. were initially placed together in a foster home, but M. was removed due to aggression towards his infant sibling, while G. remained in the foster home consistently since he
was 1-month old.
After the children were in foster care for three years, DSS found a potential relative placement. Since G. was placed with the same foster family from the time he was 1-month old and it was the only family he knew, the court found that it was in G.’s best interest to remain with his nonrelative foster parents who wanted to adopt him.
But M.’s circumstances were different. M. moved frequently between foster homes, so the court found it was in M.’s best interest to be placed with his relative caregiver because that placement provided greater stability.
To be successful, kinship caregivers must be provided with appropriate services and full benefits to ensure that children in their care receive all the support they need and are due.
Historically, children in kinship care with cognitive delays or academic difficulties are less likely to receive early intervention and special education services when compared to youth in nonrelative foster care.
Kinship caregivers are less likely to receive financial assistance, including Temporary Cash Assistance, food assistance, and housing assistance. They are also less likely to receive training, peer support, and respite care.
While the child’s best interest must always be the primary consideration when deciding whether to place a child into kinship care, expanding kinship care for Maryland’s foster youth is a positive step forward. It can provide increased stability for foster youth by enabling them to maintain connections with relatives, fictive kin, and their communities to achieve better overall outcomes.
Shannon M. Weaver is a supervising attorney at Maryland Legal Aid.
Cover Story
Same-sex parents urged to complete second-parent adoption
By Hope Keller
Special to The Daily Recor d
With the political tide about to turn in Washington, family law practitioners in Maryland are fielding calls from same-sex parents worried that the new Donald Trump administration could dismantle LGBTQ rights and threaten the cohesion of their families.
These parents’ biggest worry, practitioners say, is that the U.S. Supreme Court’s conservative majority will be emboldened to overturn the 2015 Obergefell v. Hodges decision, which legalized same-sex marriage throughout the United States.
“It looked like after Obergefel l that (the LGBTQ community was) going to be headed in a positive direction, and now of course we’ve experienced a full-on carpet pulling out from under us,” said Heather McCabe, of McCabe Russell in Fulton, referring to the recent elections. “I think, come January or February, we’ll be seeing a lot of chaos around LGBTQ rights in general and there will be a trickle-down to parents for sure.”
If Obergefell were overturned, states without explicit provisions to protect same-sex marriage could revert to latent laws that either outlaw such marriages or define marriage as the union of a man and a woman.
“All of those laws that continue to exist on the books would spring into effect,” McCabe said.
Maryland has permitted samesex marriage since 2013, but more than half the states still have latent laws barring marriage equality, according to the Movement Advancement Project.
Catelyn Slattery of Slattery Law, says same-sex parents can further protect themselves legally with a second-parent adoption, a court order backed by the U.S. Constitution’s full faith and credit clause –which requires all states to recognize an adoption order issued in any state.
Proving parenthood
Today, a birth certificate from Maryland, with both parents’ names on it, is sufficient proof of parenthood everywhere in the United States.
“The marital presumption protects them based on the fact that there’s a marriage that’s federally recognized,” said Catelyn Slattery of Slattery Law, LLC, Modern Family Formation Law Offices in Rockville.
But should Obergefell fall, a birth certificate might be insufficient proof of parentage in states antagonistic to LGBTQ people, Slattery and other family law practitioners emphasize.
“What happens if you travel out of state with your child to a state that is not going to recognize your
rights the way that Maryland does and there’s a medical emergency – and suddenly the parents are both not being recognized to make medical decisions?” posited Jane Rodgers of Markham Law Firm in Bethesda.
With such a scenario in mind, family law practitioners are urging same-sex parents to protect themselves legally with a second-parent adoption, a court order backed by the U.S. Constitution’s full faith and credit clause – which requires all states to recognize an adoption order issued in any state.
“What I’ve been telling everybody is obviously we don’t have our crystal ball, we can’t see what things will actually be coming down the line here, but this is a legal protection that I’ve always
Submitted Photo
recommended to families,” Slattery said. “It gives that added layer of legal security to a family structure that isn’t always provided by a birth certificate.”
A second-parent adoption is effectively an insurance policy, Slattery said.
“You don’t get collision insurance expecting to get into a car accident,” she said. “You don’t go through the process of getting the adoption judgment anticipating ever having to pull it out, but you’re sure going to be glad you have it if the situation ever came up where you had to.”
Statute change
Second-parent adoptions of children conceived via assisted reproduction became easier to obtain in Maryland in 2019, when a new law took effect. Found in Maryland Family Law Article 5-3B27, the law streamlined the adop -
tion process for same-sex parents who are married or who share the express intent of being parents to a prospective adoptee.
Previously, second-parent adoptions in Maryland were treated as standard adoptions, which involve a court hearing, as well as financial and health statements. The new law also removed the requirement of a court investigation, which some counties had mandated.
“I’m asking the court to confirm parentage, not give rights, not take rights away, but to put the stamp of approval on this family structure and to give that legal security through confirmation of their parentage,” Slattery said.
Family law practitioners also use the term “confirmatory adoptions,” said Slattery, who explained she doesn’t like “second-parent adoption” because it suggests there’s a first parent.
“Does delivering the child make you the first?” she asked. “I’m not sure.”
Courts in some Maryland counties have been slow to acknowledge the statute change, noted Slattery and Rodgers, who said Prince George’s County, among others, is still requiring finalization hearings for second-parent adoptions.
The LGBTQ community’s optimism after Obergefel l might have been premature, McCabe acknowledged.
“When you’re caught up in the recognition of your rights, it’s hard to imagine going backwards, yet here we are on the precipice of just exactly that being likely,” she said. “What I’m seeing now is people coming to us saying, ‘We didn’t do a second-parent adoption, but we’d like to do one now.’ And my advice to them is, ‘Heck yes, let’s do it.’”
Submitted Photo
“What happens if you travel out of state with your child to a state that is not going to recognize your rights the way that Maryland does and there’s a medical emergency …?” asks Jane Rodgers of Markham Law Firm in Bethesda.
Submitted Photo
“I think, come January or February, we’ll be seeing a lot of chaos around LGBTQ rights in general and there will be a trickle-down to parents for sure,” says Heather McCabe, an attorney with McCabe Russell.
In the News
Court says jilted bride must give back $70K ring
By Steve leBlanc Associated Press
Who gets to keep an engagement ring if a romance turns sour and the wedding is called off?
That’s what the highest court in Massachusetts was asked to decide with a $70,000 ring at the center of the dispute.
The court ultimately ruled earlier this month that an engagement ring must be returned to the person who purchased it, ending a six-decade state rule that required judges to try to identify who was to blame for the end of the relationship.
The case involved Bruce Johnson and Caroline Settino, who started dating in the summer of 2016, according to court filings. Over the next year, they traveled together, visiting New York, Bar Harbor, Maine, the Virgin Islands and Italy. Johnson paid for the vacations and also gave Settino jewelry, clothing, shoes and handbags.
Eventually, Johnson bought a $70,000 diamond engagement ring and in August 2017 asked Settino’s father for permission to marry her. Two months later, he also bought two wedding bands for about $3,700.
Johnson said he felt like after that Settino became increasingly critical and unsupportive, including berating him and not accompanying him to treatments when he was diagnosed with prostate cancer, according to court filings.
At some point Johnson looked at Settino’s cellphone and discovered a message from her to a man he didn’t know.
“My Bruce is going to be in Connecticut for three days. I need some playtime,” the message read. He also found messages from the man, including a voicemail in which the man referred to Settino as “cupcake” and said they didn’t see enough of each other. Settino has said the man was just a friend.
Johnson ended the engagement. But ownership of the ring remained up in the air.
A trial judge initially concluded Settino was entitled to keep the engagement
ring, reasoning that Johnson “mistakenly thought Settino was cheating on him and called off the engagement.” An appeals court found Johnson should get the ring.
In September, the case landed before the Massachusetts Supreme Judicial Court, which ultimately ruled that Johnson should keep the ring.
In their ruling the justices said the case raised the question of whether the issue of “who is at fault” should continue to govern the rights to engagement rings when the wedding doesn’t happen.
More than six decades ago, the court found that an engagement ring is generally understood to be a conditional gift and determined that the person who gives it can get it back after a failed engagement, but only if that person was “without fault.”
“We now join the modern trend adopted by the majority of jurisdictions that have considered the issue and retire the concept of fault in this context,” the justices wrote in Friday’s ruling. “Where, as here, the planned wedding does not ensue and the engagement is ended, the engagement ring must be returned to the donor regardless of fault.”
Johnson’s lawyer, Stephanie Taverna Siden, welcomed the ruling.
“We are very pleased with the court’s
decision today. It is a well-reasoned, fair and just decision and moves Massachusetts law in the right direction,” Siden said.
A lawyer for Settino said they were disappointed but respected the court’s decision to follow the majority rule among the states.
“We firmly believe that the notion of an engagement ring as a conditional gift is predicated on outdated notions and should no longer be a legal loophole in our otherwise well-established rule that a breach of a promise to marry is not an injury recognized by law,” Nicholas Rosenberg said.
Harvard Law School professor Rebecca Tushnet, who studies engagement ring law, said she wasn’t surprised that the court rejected the fault standard, saying it really doesn’t fit with modern family law.
“I’m a bit disappointed that they didn’t give more consideration to the other no-fault option. That would be that the gift stays with the person who received it, as is standard for most gifts,” she said. “The court calls an engagement ring a conditional gift, but the rule for engagement rings is not the same as the rule for every other kind of conditional gift.”
MARIA SESTITO/THE DAILY NEWS VIA AP
The Massachusetts Supreme Judicial Court’s ruling essentially ends a six-decade state rule that requires judges to try to identify who was to blame for the end of a relationship in ruling over whether an engagement ring should be returned.
Are Canadian couples too poor to break up?
Why did Al and Peg Bundy from the sitcom “Married… with Children” never get divorced? After all, they were rarely happy and constantly arguing. Maybe they felt they were the best they could do for each other — a middleaged homely shoe salesman and a stay-at-home mom with two kids. They cared for each other, but they also hated each other deeply. And neither ever cheated, despite having the opportunity.
However, what if the Bundys lived in Canada today? Would they have stuck it out together or gotten divorced?
Common preconceptions would have us believe that half the people who get married end up divorced, but that’s never really been the case in Canada. A recent report from the Vanier Institute of the Family finds that divorce rates in Canada have been declining since the early 1990s and reached a low in 2020 of 5.6 per 1,000 married people. That year, around 43,000 divorces were granted in Canada, the lowest number since 1973.
The report notes that part of the decline was down to the COVID-19 pandemic, as lockdowns disrupted and delayed court proceedings. It also mentions the decline could be due to the aging population, with older couples less likely to divorce.
The lower divorce rate is also tied to the fact that fewer people — especially younger people — are getting married. In 2020, 98,355 marriages were registered in Canada, the lowest recorded since 1938.
Nonetheless, divorces are declining across the board for those who do decide to get hitched.
So, why are Canadian marriages less likely to end in divorce?
A big part of the reason could be the cost of living in Canada is too
SORIN
RIZEANU
Guest Column
expensive to break up. Would Al, as the family’s sole earner, be able to afford to divorce Peg, cover the legal fees of the divorce, averaging around $18,000, and bear the expenses of two households?
Could Al, a retail worker in his early 50s, survive a divorce, with an average salary of $73,793, taking home about $4,619 a month? We should note that for retail jobs, like salesperson, the income estimates here are optimistic, but using overall averages allows us to apply our thought exercise to more categories.
Housing is especially important in a Canadian budget. It is now very difficult for someone on the average salary to take on a new mortgage on their own. So divorced Al and Peg will likely be life-long renters. With an average apartment in Canada’s major cities renting for well over $2,000 a month, it would be very difficult if not impossible for Al to support two households.
Let’s say Al was able to get a mortgage to buy the family home. The average mortgage debt in Canada is $338,522. Assuming that they have 10 years left on the mortgage, the new monthly payment after refinancing at 4.79 per cent would be a staggering $3,548. If they extend the mortgage to 20 years, there is still a monthly payment of $2,186; very significant for Al’s net income. The family may have trouble renewing their mortgage.
A quick budget calculation shows that the Bundys, while still together, would struggle to support themselves: almost $1,300 a month on food expenses, over $300 average on utilities, another $400-
$1000 for transportation as just a monthly bus pass is around $100. These costs would push them into living paycheque to paycheque. And that’s without considering other costs necessary for a decent life, entertainment, the eventuality of medical expenses or other unexpected expenses.
Given those economic realities, it’s likely Al and Peg would prioritize their practical needs over emotional complexities, in an unhappy but financially afloat situation.
Their emotional life may remain tense, full of conflicts, a tragicomedy. But Canadian Al and Peg simply can’t afford to go their separate ways. The logistics of divorcing – selling the house or buying out one partner’s share, dividing up decades worth of belongings and legal costs are definitely a factor compelling them to stay together, maybe even making it impossible to separate.
Even with two incomes, at the Canadian average of $121,771 (estimated by adjusting for inflation from Statistics Canada’s calculation of $110,560 in 2021) the couple’s situation, while better, wouldn’t be much rosier if they divorce.
Canadians are divorcing less, and not just because they might be afraid to be alone, break up their family or receive social backlash. They are not merely concerned with the difficulties of re-entering the dating scene after a divorce. More likely, they also fear the real financial hit and change in lifestyle divorce will inevitably cause.
Sorin Rizeanu is an assistant business professor at the University of Victoria. This article was first published in The Conversation, an independent and nonprofit source of news, analysis and commentary from academic experts.
Monthly Memo
Father breached duty to pay for child’s college, Va. court says
Where the parties’ divorce settlement agreement required the father to contribute $10,000 annually into his daughter’s college savings account, but he then refused to use the funds to pay for her college expenses, he was in violation of a court order, the Virginia Court of Appeals ruled.
The appeals court upheld a decision by the Fairfax County Circuit Court. The case is Cohn v. Cohn,
The parties were married in 2001 and had one child of the marriage. The parties were divorced in 2008. Before their divorce and when their child was young, the parties created a Vanguard § 529 College Savings Plan, owned solely by defendant.
The parties’ child graduated from high school in June 2024 and began attending college in August 2024. The first bill was due on Sept. 13, 2024. Defendant refused to pay this bill from the funds accrued in the § 529 account.
Defendant argued that his obligation to fund and maintain the § 529 account was to provide assurance that funds would exist in the future in case defendant became disabled. There was, however, not any express language or implied notation in the separation agreement supporting defendant’s claim. Accordingly, the court found the defendant’s refusal to pay the first installment of tuition, room and board now due violates the court’s order.
BridgeTower Media
Russian lawmakers
endorse bill
to ban adoptions by gender-transition countries
Russia’s upper house of parliament endorsed a bill banning adoption of Russian children by citizens of countries where gender transitioning is legal.
The Federation Council also approved bills that outlaw the spread of material that encourages people not to have children.
The bills, which have previously been approved by the lower house, will now go to President Vladimir Putin for signing into law. They follow a series of laws that have suppressed sexual minorities and bolstered longstanding conventional values.
The adoption ban would apply to at least 15 countries, most of them in Europe as well as in Australia, Argentina and Canada. Adoption of Russian children by U.S. citizens was banned in 2012.
Putin and other top officials in recent years have increasingly called for observing so-called traditional values as a counter to Western liberalism.
Associated Press
Funding dispute stalls Kentucky law meant to help adults caring for young relatives
Child welfare advocates cheered when Kentucky lawmakers passed a bill last spring to support adults willing to step up at desperate times to care for young relatives who endured suspected abuse or neglect at home.
Their joy has turned to frustration as the new law, which was supposed to take effect in July, became entangled in a funding dispute that has stalled its implementation. The underlying issue is whether the state can get the millions of dollars needed to carry out the law’s intent — enabling relatives who take temporary custody of children to later become eligible for foster care payments.
An estimated 59,000 Kentucky children are in what’s commonly called kinship care — when a child is living with relatives or close friends instead of their parents.
The new law gives relatives considerably more time to apply to become foster parents for their young relatives, and thus eligible for foster care payments to help support the children already in their care.
Associated Press
Serving as fact witness in brother’s will contest didn’t invoke ‘in terrorem’ clause, court says
The Massachusetts Appeals Court has ruled that an estate beneficiary did not trigger the “in terrorem” clause in his father’s will by providing an affidavit that supported his disinherited brother’s allegations in a will contest.
Under the clause at issue, any named beneficiary revoked their interest in decedent William McLoughlin Sr.’s estate by “contest[ing] the probate or validity of the will” or by “join[ing] in” any proceeding to contest
the will’s validity.
When disinherited son William McLoughlin Jr. moved to file a late objection to the will, which was dated 35 days before the elder McLoughlin’s 2020 death, William Jr.’s younger brother, appellant Sean McLoughlin, filed an affidavit purportedly corroborating William Jr.’s allegations that their father was incompetent and unduly influenced by his other children when he executed the 2020 will.
A Probate & Family Court judge granted a motion brought by the McLoughlins’ sisters declaring that Sean forfeited his rights to an inheritance based on the in terrorem clause.
But the Appeals Court reversed the ruling.
“Construing this in terrorem clause narrowly, Sean’s act of providing an affidavit ... submitted in support of William Jr.’s motion did not amount to contesting or to instituting or joining in a proceeding to contest the validity of the will sufficient to trigger the clause,” Judge Vickie L. Henry wrote for the panel. The 15-page decision is In the Matter of the Estate of McLoughlin.
BridgeTower Media
Music director fired for same-sex marriage
The longtime music director at a northern Michigan church said he was fired just a few months before retirement after officials learned that he was in a same-sex marriage, a dismissal that has angered members and led to sidewalk protests by the choir.
Fred Szczepanski said he was fired on Oct. 18 by the Rev. Michael Lingaur for marrying his longtime partner in a same-sex ceremony in Nevada in 2020. The church confronted him after receiving a letter from an unnamed person.
Szczepanski had been music director for 34 years and planned to retire in January. His recorded voice greets people who call the parish office.
Choir members on Oct. 20 wore black, left their seats empty and refused to sing, the Record-Eagle reported.
“People are hurt, people are sad. In a time where there is so much controversy in the world, the church needs to be a place of peace, and instead it’s turmoil after turmoil,” church member Toni Stanfield said.
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
ALIMONY; MATERIAL CHANGE; VOLUNTARY IMPOVERISHMENT
The Appellate Court affirmed the Baltimore County Circuit Court’s modification of husband’s alimony obligation. It rejected wife’s contentions that: (1) the circuit court did not sufficiently consider husband’s income and expenses in its analysis of whether there was a material change in circumstances; (2) the circuit court should have analyzed whether husband voluntarily impoverished himself and should have found that he did by retiring and (3) husband’s annuity should not have been factored into the analysis of her financial resources for alimony purposes.
The Appellate Court affirmed the Baltimore County Circuit Court’s finding that wife was in contempt of a divorce order, and ordering her to comply with the order, particularly regarding visitation between husband and their shared daughter.
The Appellate Court affirmed the Montgomery County Circuit Court’s order granting wife’s petition for a protective order and denying husband’s petition for a protective order. The circuit court’s findings that wife suffered abuse and husband did not were not clearly erroneous.
The Appellate Court affirmed the Anne Arundel County Circuit Court’s final protective order against Clarke and in favor of Gibson and their shared children. The trial court did not err when it found by a preponderance of the evidence that Clarke committed physical abuse against the children.
PERMANENCY PLAN; ADOPTION; CUSTODY AND GUARDIANSHIP
The Appellate Court affirmed the Baltimore City Circuit Court’s orders changing the permanency plan for one child from reunification with his mother to adoption by a non-relative or custody and guardianship, and changing the permanency plan for the other child from reunification with her mother to custody and guardianship by a relative. The record did not support mother’s contention that the juvenile court erred in finding that reasonable efforts at reunification were made. And there was ample evidence presented at the various hearings to support the juvenile court’s decision to change the children’s permanency plans.
The Appellate Court affirmed the Baltimore County Circuit Court’s determination that the 12-year old minor was not a child in need of assistance. The court’s finding that father is willing and able to provide proper care for the minor was supported by the evidence before it.
The Appellate Court affirmed the Frederick County Circuit Court’s order that father not abuse, threaten to abuse and/or harass his minor child, not to contact her and to stay away from the child’s residence, school and childcare providers. The judge clearly articulated the evidence that supported her finding of sexual abuse, and her finding was in accordance with the protective order statute.
The Appellate Court vacated the Prince George’s County Circuit Court’s disposition of the parties’ respective pensions. Husband provided no notice that he objected to an “if, as, and when” valuation, and the parties did not present evidence at trial as to the value of their pensions. On this record, it was error for the circuit court to set off on pension against another.
The Appellate Court affirmed the Anne Arundel County Circuit Court’s award of primary legal and physical custody to mother. In his ruling on the record, the trial court explained many of the best interest factors and the facts he found relevant to each one.
The Appellate Court vacated the Washington County Circuit Court’s order conditioning father’s in-person visitation with the minor on his therapist submitting a timely report. Because the restriction on father’s in-person visitation is based solely on the timeliness of the reports, over which father may have little if any control, it was neither reasonable nor related to the advancement of a child’s best interests.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 06 MFLU Supp. 11 (2024)
Alimony; material change; voluntary impoverishment
The Appellate Court affirmed the Baltimore County Circuit Court’s modification of husband’s alimony obligation. It rejected wife’s contentions that: (1) the circuit court did not sufficiently consider husband’s income and expenses in its analysis of whether there was a material change in circumstances; (2) the circuit court should have analyzed whether husband voluntarily impoverished himself and should have found that he did by retiring and (3) husband’s annuity should not have been factored into the analysis of her financial resources for alimony purposes.
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.
Mr. Bjork’s alimony obligation?
3. Did the circuit court err by declining to hold Mr. Bjork in contempt?
4. Did the circuit court err or abuse its discretion by denying Ms. Bjork’s request for attorney’s fees?
For the reasons stated below, we answer Questions One and Two in the negative.
We do not reach Question Three, concluding that a circuit court’s declining to hold someone in contempt is not subject to appellate review. We answer Question Four partly in the affirmative and partly in the negative. Thus, as to the aspects of Ms. Bjork’s attorney’s fees challenge with which we agree, we vacate the circuit court’s judgment and remand for further proceedings not inconsistent with this opinion.
BACKGROUND
The parties were married in 1992 in Alabama and are parents to two adult children. The parties attribute the end of their marriage to Mr. Bjork’s affairs. The parties separated in 2010 and divorced in 2018,4 via a Judgment of Absolute Divorce (“JAD”) granted by the Circuit Court for Baltimore County. The JAD incorporated, but did not merge, the parties’ marital settlement agreement (“MSA”).
This appeal comes to us from the Circuit Court for Baltimore County following the granting of Appellee Brett Bjork’s Petition to Modify Alimony.1 The circuit court reduced the monthly amount Mr. Bjork was to pay his former wife, Appellant Frances Bjork, from $2,300 per month to $1,300. Here, Ms. Bjork challenges this reduction, along with one of the circuit court’s discovery rulings, the circuit court’s failure to hold Mr. Bjork in contempt for failing to pay alimony while his modification petition was pending, and the circuit court’s denial of Ms. Bjork’s attorney’s fees claim.2 We agree with Ms. Bjork on some aspects of her attorney’s fees challenge but disagree with her on the balance of her appellate claims. Accordingly, as to those aspects of Ms. Bjork’s attorney’s fees challenge with which we agree, we vacate and remand for further proceedings. Otherwise, we affirm the judgments of the circuit court.
On appeal, Ms. Bjork presents six questions for our review.3 For clarity, we have consolidated those questions into four questions, which we rephrase as:
1. Did the circuit court abuse its discretion in not compelling Mr. Bjork to produce his current wife’s financial information during discovery?
2. Did the circuit court abuse its discretion in modifying
With regard to alimony, the parties agreed in the MSA that commencing in February 2017, Mr. Bjork would pay Ms. Bjork indefinite and modifiable alimony in the amount of $2,300 per month. The incomes “used to determine” this amount were the parties’ 2016 incomes, which was $18,000 for Ms. Bjork and $114,000 for Mr. Bjork.
The MSA further provided that “[e]ither party may apply to the Court for modification of the terms of the alimony provided herein based on a significant change of circumstances, including but not limited to a material change in their incomes or expenses.”
With regard to Mr. Bjork’s Civil Service Retirement System (“CSRS”) gross monthly annuity, the MSA provided that Ms. Bjork would receive 50% of the marital portion of the annuity and “the maximum possible former spouse survivor annuity.”
The MSA further provided for the issuance of a separate order directing the United States Office of Personnel Management (“OPM”) to pay Ms. Bjork “directly” her share of Mr.Bjork’s gross monthly annuity.5
Mr. Bjork petitioned to modify alimony in June 2020. Mr. Bjork had significant difficulty serving Ms. Bjork. He retained a private process company, which repeatedly but unsuccessfully attempted to serve Ms. Bjork at her home. Ms. Bjork was ultimately served in March 2021 by posting.
Originally, Mr. Bjork’s modification petition was based on the loss of his secondary income source. Mr. Bjork alleged that due to the cancellation of all games in response to the COVID-19 pandemic, he was unable to continue earning income from organizing and refereeing recreational sports. Mr. Bjork also alleged that his monthly expenses had increased significantly. At the time, Mr. Bjork still worked full-time as a probation officer for the federal government.
In June 2022, Mr. Bjork amended his petition to “include, as another reason for modification, his retirement.” Mr. Bjork stated that he planned to retire in September 2022 and alleged that while he would receive an annuity after retirement, his income would be “significantly reduced.” The amended petition noted that Ms. Bjork would receive one-half of the marital share of Mr. Bjork’s annuity when he retired.6 In Ms. Bjork’s answer to the amended petition, she responded that Mr. Bjork’s “potential optional retirement is not a valid basis for a modification of alimony.” Ms. Bjork also requested that the circuit court award her attorney’s fees in answering Mr. Bjork’s petition and amended petition.
Both parties filed multiple motions related to discovery disputes in the case. On two occasions in 2022, the circuit court ordered Mr. Bjork to provide discovery responses. The circuit court then held a hearing to address discovery issues in March 2023 and ordered Mr. Bjork to produce additional documents.7 Critically, the circuit court also ordered Mr. Bjork to produce unredacted versions of his jointly-filed income tax returns8 and other tax documents for the court’s in camera review. Ms. Bjork followed this order with a motion to compel Mr. Bjork to produce his unredacted joint income tax returns for 2021 and 2022, as well as the income and employment information of his current wife in the form of W-2s or 1099s for those years. The circuit court denied both Ms. Bjork’s motion to compel and her motion to reconsider the denial.
In January 2023, while the discovery disputes were pending, Ms. Bjork petitioned that Mr. Bjork be held in contempt due to his failure to make full alimony payments as ordered pursuant to the JAD. In her petition, Ms. Bjork again requested that Mr. Bjork be required to pay Ms. Bjork’s “reasonable counsel fees and costs.” This time, Ms. Bjork specifically relied on the parties’ MSA, stating the “MSA specifically provides for the payment of counsel fees in the event that either party has to file a court action to enforce the MSA.”
In June 2023, while the modification petition was pending, the parties submitted, and the court subsequently entered, a Court Order Acceptable for Processing (“COAP”) directing the division of Mr. Bjork’s CSRS gross monthly annuity. The COAP provided that Ms. Bjork would receive half of the marital share of the “self-only (i.e.[,] unreduced)” monthly annuity payable to Mr. Bjork “at his retirement.”9
On August 23 and 24, 2023, the circuit court tried Mr. Bjork’s modification petition and Ms. Bjork’s contempt petition. Mr. Bjork, Ms. Bjork, and the parties’ adult daughter, Abigail Bjork, testified. The parties also introduced several exhibits related to their finances, including financial statements, bank statements, paystubs, Venmo transactions, and bills.
Mr. Bjork retired in September 2022 from his job as a probation officer after having worked with the federal
government for twenty-four years. He explained that he had been eligible to retire beginning in August 2019. As reasons for his retirement, Mr. Bjork cited a lack of “opportunity for advancement” in his career as well as the “mentally exhausting” nature of the work in a “law enforcement position.” Mr. Bjork has continued to officiate sports since his retirement and has also worked part-time at Recreational Equipment, Inc. (REI) and Sun and Ski, a ski shop. Mr. Bjork testified that his income fluctuates, but that it was between $28,000 and $30,000 in 2022. Mr. Bjork testified that he would be receiving a monthly annuity payment in the amount of $2,075.32.
After the divorce, Mr. Bjork remarried. He lives with his current wife in her home.
He testified that his current wife subsidizes his expenses, which include his alimony payments, and largely pays for the multiple vacations that they take during the year. Mr. Bjork estimated that his current wife has given him over $15,000 in the last two to three years.
Mr. Bjork admitted that he stopped paying alimony in full in October 2022. He made payments in the amount of $400 per month in November and December 2022. Mr. Bjork acknowledged that he was aware that the MSA was still in effect and that any time he did not make a payment, he would be in violation of the agreement.
Ms. Bjork presently lives with Abigail in what was formerly the marital home, which is now owned by Abigail. Abigail physically and financially assists Ms. Bjork. Ms. Bjork previously was diagnosed with breast cancer. She also has other significant health problems, including a degenerative neurological disorder, a thyroid disorder, and eyesight issues. As such, Ms. Bjork is permanently disabled and unable to work. She receives disability benefits from the Social Security Administration. In 2022, these benefits were $1,511 per month.10 Ms. Bjork acknowledged that she would receive a share of Mr. Bjork’s monthly annuity.
Ms. Bjork maintained that her monthly income without alimony would be insufficient to pay her expenses. However, testimony from Abigail and Ms. Bjork revealed that Abigail had become primarily responsible for significant household expenses listed on Ms. Bjork’s financial statement, including the gas and electric payment, cell phone bill, homeowner’s insurance, and mortgage. A review at trial of Ms.
Bjork’s actual purchases for the month of July 2023 reflected frequent spending on take-out food and numerous charges for subscriptions and in-app purchases.
Shortly after the trial, Mr. Bjork submitted an adjusted monthly annuity figure, which the circuit court considered in making its decision on his modification petition.11 This document from OPM for September 2023 showed a reduction for Mr. Bjork, lowering his monthly payout to $1,957.32. This document also provided that the monthly court-ordered apportionment, referring to Ms. Bjork’s share, was $1,422.94.
On October 10, 2023, the circuit court issued a Memorandum Opinion and Order that reduced, but did not terminate, alimony. The opinion analyzed each of the statutory alimony factors12 and concluded that Mr. Bjork had met his burden of proving a material change in circumstances in light of his retirement and “uncertain secondary employment as a lacrosse referee[.]” The circuit court found:
1. The ability of the party seeking alimony to be wholly or partly self-supporting
In the present case, Ms. Bjork currently lives with her daughter in the Rodgers Forge rowhome community in Baltimore County. Ms. Bjork was previously diagnosed with breast cancer. She was treated very aggressively, including chemotherapy, given other family members’ experiences. In addition, Ms. Bjork suffered from untreated Lyme’s disease, she was ultimately diagnosed with a degenerative neurological disorder, hypothyroid disorder and has significant eyesight problems. As a result, Ms. Bjork is permanently disabled and receives $1,511.00 per month in Social Security. She is considered permanently disabled. It is unlikely she will ever become wholly or partly selfsupporting.
Consideration of this factor supports a continuation of alimony in some fashion.
2. The time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment
As explained above, Ms. Bjork is permanently disabled and is, therefore, unable to work. This factor supports maintaining alimony in some fashion.
3. The standard of living the parties established during their marriage1
The Parties provided minimal testimony regarding their standard of living during their marriage. They resided in the Rodgers Forge townhome community now owned by their adult daughter.
Testimony about respective current standards of living differed between the Parties. Ms. Bjork testified that she has minimal disposable income, has a minimal ability to contribute to household expenses and rarely, if ever, takes vacations. Mr. Bjork admitted to recently purchasing a new car and taking numerous considerable vacations per year. This factor supports a decision to maintain alimony in some fashion.
4. The duration of the marriage
The Parties married in 1992 and separated eighteen years later, in 2010. However, they remained separated for another seven years until their divorce in 2018. Credible testimony was admitted explaining that the delay was in part due to allowing Ms. Bjork to stay on Mr. Bjork’s health insurance Consideration of this factor in this specific case supports alimony being maintained in some fashion.
5. The contribution, monetary and nonmonetary, of each party to the well-being of the family
Testimony revealed that Mr. Bjork was the primary breadwinner and Ms. Bjork was the primary non-monetary contributor. However, Ms. Bjork did work as an addictions counselor for a period of time. Overall, I find both Parties contributed to the well-being of the family, however, each concentrated on different aspects of that stability. Consideration of this factor does not move the needle in any direction.
6. The circumstances that contributed to the estrangement of the Parties
According to both Parties, the estrangement of the marriage was primarily due to Mr. Bjork’s affairs over the course of the marriage. Although I am considering this factor, I am also cognizant that the Parties have been separated/ divorced for the past thirteen years. Consideration of this factor weighs in favor of maintaining alimony in some fashion.
7. The age of each party
Each Party is in their mid-50’s. In that Ms. Bjork is permanently disabled but Mr. Bjork ostensibly has many potential years left in the work force and the ability to earn income (albeit possibly part-time), the Parties’ respective ages support maintaining alimony in some fashion.
8. The physical and mental condition of each Party
As already mentioned, Ms. Bjork is permanently disabled. Mr. Bjork requires knee replacement surgery. This is certainly a factor, however, it does not prohibit him from earning income in some capacity. Consideration of this factor supports maintaining alimony in some fashion.
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
This was an area of much contention during the two-day hearing. There is a certain legal tension at play. Mr. Bjork’s new wife has no obligation to, even indirectly, help support her husband’s ex-spouse. On the other hand, the Appellate Court of Maryland has instructed that “The husband’s overall financial ability to support (and not merely his current income) and the wife’s need for support are controlling factors.” Lott v. Lott, 17 Md. App 440, 450, quoting Quinn v. Quinn, 11 Md.App. 638 (1971). Evidence adduced at trial, including but not limited to a new vehicle purchase and multiple elaborate vacations by Mr. Bjork and his new wife, establish that he has sufficient assets to continue to pay alimony in some fashion.
10. Any agreement between the parties
The Parties’ Marital Separation Agreement called for indefinite and modifiable alimony. Testimony revealed at least a perceived misconception about those words. It appeared clear to me that Ms. Bjork erroneously equates indefinite with permanent. Indefinite does not mean forever. Obviously, there is no agreement between the Parties regarding alimony. This factor does not affect the determination regarding alimony.
11. The financial needs and financial resources of each Party, including
(i) [A]ll income and assets, including property that does not produce income;
(ii) Any award made under §§ 8-205 and 8-208 of the Family Law Article;
(iii) The nature and amount of the financial
obligations of each Party;
(iv) The right of each Party to receive retirement benefits
I find this factor is of particular significance in this case. Much testimony and documentary evidence were adduced regarding this factor. It is clear to me Ms. Bjork has minimal assets and minimal income. As explained above, she receives approximately $1,511 per month in Social Security. There was testimony regarding the allocation of monthly household expenses between Ms. Bjork and her daughter. Candidly, this testimony was less than clear. I believe Ms. Bjork assists her daughter minimally, if at all, with the bills. In addition, those two pools of funds appear to be commingled for bill-paying purposes.
Testimony and documentary evidence also revealed that Ms. Bjork treats her monthly Social Security as almost “pocket money,” rather than funds to purchase what I would describe as “necessities”. Records established multiple daily trips to fast food restaurants such as Starbucks, Sonic, McDonald’s, Dunkin Donuts, etc. Funds are also routinely spent on various internet subscriptions and/or purchases such as Amazon and Apple, fee-based internet games such as Candy Crush, etc. I am mindful of Ms. Bjork’s testimony regarding the motive(s) surrounding such purchases –wanting to enjoy her children and grandchildren. However, I do factor these discretionary expenses into my analysis.
In addition, there was evidence establishing that Ms. Bjork depleted some $50,000 (if not more) from a retirement account over the course of three years. However, under cross examination she was unable to account for, even anecdotally, where the funds were spent.
I am also factoring into my analysis that Ms. Bjork will be receiving some portion of Mr. Bjork’s monthly annuity. That increases her dependable monthly flow of income. I should be clear that during the drafting of this Memorandum and Order, the Plaintiff received the anticipated correspondence from the U.S. Office Of Personnel Management Retirement Services Program entitled “Notice of Annity Adjustment.” This document, attached as an exhibit to Plaintiff’s posthearing Motion, establishes that Plaintiff’s net monthly annuity will be $1,957.32, not the $2,075.32 figure discussed during the hearing. I want to make clear that negligible difference, approximately $118, does not appreciably alter my ultimate analysis.
As discussed above, Mr. Bjork is receiving a steady stream of monthly pension/annuity payments. I also factor in, notwithstanding his required joint-replacement surgery, Mr. Bjork’s ability to continue to earn income for many years to come. This weighs in favor of continuing to pay alimony in some fashion.
12. Conclusion
In analyzing the above factors, the Parties’ respective financial positions and resources, I do find that Mr. Bjork has met his burden to prove a material change in circumstances. His reduced flow of income due to both his retirement and his uncertain secondary employment as a lacrosse referee merits consideration. My analysis of the above factors
leads me to conclude and find that this change warrants a downward modification of monthly alimony from the original $2,300.00 per month to $1,300.00 per month.
The circuit court ordered Mr. Bjork to pay indefinite and modifiable monthly alimony in the amount of $1,300 per month, backdated to November 2022, as well as to repay previously unpaid alimony in the amount of $200 per month until the arrearage of $14,500 is repaid. The order did not grant Ms. Bjork’s petition for contempt based on the unpaid alimony, instead finding Mr. Bjork to be in breach of contract for not making the full alimony payments as required by the MSA. The circuit court denied both parties’ requests for attorney’s fees. Ms. Bjork timely appealed.
DISCUSSION
I. Discovery
Ms. Bjork argues that the circuit court abused its discretion by declining to compel the production of Mr. Bjork’s current wife’s tax information, as she had requested in her motion to compel and motion for reconsideration. This Court’s review of the circuit court’s resolution of a discovery dispute is “quite narrow.” Adventist Healthcare, Inc., v. Mattingly, 244 Md. App. 259, 273–74 (2018) (citation omitted). We review the denial of discovery for abuse of discretion. Beyond Sys., Inc. v. Realtime Gaming Holding Co., LLC, 388 Md. 1, 28 (2005). A court abuses its discretion when no reasonable person would take the view adopted by the trial court or when the court acts without reference to any guiding principles, and the ruling under consideration is clearly against the logic and effect of facts and inferences before the court or when the ruling is violative of fact and logic.
Id. at 28 (citation omitted) (cleaned up).
The purpose of the discovery process is to ensure the disclosure of all relevant facts. Androutsos v. Fairfax Hosp., 323 Md. 634, 638 (1991) (citation omitted). Maryland Rule 2-402, which concerns the scope of discovery, provides that:
A party may obtain discovery regarding any matter that is not privileged…if the matter sought is relevant to the subject matter involved in the action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party. It is not ground for objection that the information sought is already known to or otherwise obtainable by the party seeking discovery or that the information will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
Md. Rule 2-402(a) (emphasis added). More specifically, this Court previously addressed discovery of jointly-filed tax returns in Rolley v. Sanford, 126 Md. App. 124, 130 (1999) (applying Ashton v. Cherne Contracting Corp., 102 Md. App. 87, 92, 98 (1994)). There, we held that such documents were discoverable if relevant, but that “to the extent that they disclose irrelevant financial information about h[is] or her spouse, that information may be redacted prior to disclosure.” Rolley, 126 Md. App. at 130.
The circuit court did not abuse its discretion by rejecting Ms. Bjork’s unpersuasive attempts to compel disclosure of the
tax information of Mr. Bjork’s current wife, i.e., unredacted tax information. Ms. Bjork never made a showing below as to the relevance, based on the statutory alimony factors, of this information. Ms. Bjork’s motion to compel discovery and her motion to reconsider the court’s order denying her motion as to discovery, like her arguments here, relied only on Lott v. Lott, 17 Md. App. 440 (1973).
As discussed infra, Lott does not support her argument that this tax information should have been produced.
Ms. Bjork cites to Lott for the proposition that “[t]he husband’s overall financial ability to support (and not merely his current income), and the wife’s need for support are controlling factors” when determining alimony. See Lott, 17 Md. App. at 450. But even if Lott could be read to establish an obligation of support of a first spouse in every divorce (we don’t read it that way), such an obligation would not extend to an alimony payor’s second spouse. Instead, the alimony statute directs the trial court to consider, and thus focuses our analysis on, the parties to the alimony claim, not non-parties.13 Thus, the tax information of Mr. Bjork’s current wife (a non-party here) is not relevant.
II. Alimony Modification
In reviewing a circuit court’s determination on the modification of alimony, we “defer to the findings and judgments of the trial court.” Ridgeway v. Ridgeway, 171 Md. App. 373, 383 (2006) (cleaned up) (citation omitted). Such an alimony determination will not be disturbed unless the ultimate decision was clearly wrong or an arbitrary use of discretion. Id. at 384. Maryland’s alimony statute instructs the court to “modify the amount of alimony awarded as circumstances and justice require.” FL § 11-107(b). In doing so, “a trial court has discretion to determine the extent and amount of alimony and must consider specific factors in exercising its discretion.” Baer v. Baer, 128 Md. App. 469, 484 (1999) (cleaned up) (citing the FL § 11-106(b) factors). The party seeking modification “must demonstrate through evidence presented to the trial court that the facts and circumstances of the case justify the court exercising its discretion to grant the requested modification.” Ridgeway, 171 Md. App. at 384 (citation omitted). A court has the discretion to modify an alimony award “at any time if there has been shown a material change in circumstances that justify the action.” Id. (citation omitted).
In this case, the parties agreed to the original monthly alimony in the amount of $2,300 in their MSA, rather than submit the issue to the court for determination. Nonetheless, a court may modify an alimony agreement unless “there is a waiver or a specific statement that the payments are not subject to any court modification.” Goldberg v. Goldberg, 290 Md. 204, 209 n.5 (1981). Here, the parties’ MSA expressly permits modification of the amount by the court in the case of certain changes in circumstances. Specifically, the parties agreed that either party may apply to the court for modification “based on a significant change of circumstances, including but not limited to a material change in their incomes or expense[.]”14
Ms. Bjork contends that the circuit court abused its discretion in three ways in its treatment of Mr. Bjork’s modification petition. First, Ms. Bjork contends that the circuit
court did not sufficiently consider Mr. Bjork’s income and expenses in its analysis of whether there was a material change in circumstances. Second, Ms. Bjork argues that the circuit court should have analyzed whether Mr. Bjork voluntarily impoverished himself and should have found that he did by retiring. Finally, Ms. Bjork argues that the portion of Mr. Bjork’s annuity that she will receive should not have been factored into the analysis of her financial resources for alimony purposes. We address, and reject, each of these contentions below.
A. Material Change in Circumstances
Ms. Bjork argues that the circuit court did not properly consider the financial resources and needs of Mr. Bjork in its analysis of whether there was a material change of circumstances to warrant modification of alimony. Ms. Bjork’s objections focus on the circuit court’s treatment of “the financial needs and financial resources of each party” under FL Section 11-106(b) (11). Ms. Bjork argues that the circuit court focused solely on her income and expenses and did not properly consider Mr. Bjork’s income and expenses under this factor.
Contrary to Ms. Bjork’s argument, the circuit court did not “focus[] solely on the expenses and income of [Ms. Bjork]” in making its decision. As to Mr. Bjork, the circuit court found under FL Section 11-106(b)(11) that he was “receiving a steady stream of monthly pension/annuity payments” and that he has the “ability to continue to earn income for many years to come.” The circuit court concluded under this factor that Mr. Bjork had the ability to continue to pay alimony in some fashion.
Ms. Bjork takes issue with the circuit court’s discussion under FL Section 11-106(b)(11) of her use of funds in light of her “minimal assets and minimal income.” But such analysis of Ms. Bjork’s financial circumstances was appropriate because the statute directs the court to consider the financial needs and resources of each party.
FL § 11-106(b)(11). The circuit court’s opinion reflects its weighing of the evidence adduced at trial and, in particular, its consideration of the “[p]arties’ respective financial positions and resources.”
Considering all the factors, the circuit court concluded that the facts and circumstances of the parties warranted a downward modification of alimony. In addition to the analysis under FL Section 11-106(b)(11), the circuit court’s consideration of Mr. Bjork’s vehicle purchase and vacations under FL Section 11-106(b)(9) and its conclusion referencing “Mr. Bjork’s reduced flow of income due to both his retirement and his uncertain secondary employment as a lacrosse referee” demonstrate that Mr. Bjork’s financial needs and resources were appropriately considered. The circuit court did not abuse its discretion in finding that Mr. Bjork met his burden to prove a material change in circumstances.
B. Voluntary Impoverishment
Ms. Bjork contends that the circuit court abused its discretion by not analyzing whether Mr. Bjork voluntarily impoverished himself and by not finding that he had done so. Again, we disagree.
Voluntary impoverishment is a legal concept defined in Maryland’s child support statute as 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.” FL § 12-201(q) (defining “voluntarily impoverished”); see also Long v. Long, 141 Md. App. 341, 350–51 (2001) (quoting Goldberger v. Goldberger, 96 Md. App. 313, 327 (1993)) (similarly defining “voluntarily impoverished”). When determining a child support obligation under FL Section 12-204(b), the circuit court is instructed that “child support may be calculated based on a determination of potential income” if a parent is voluntarily impoverished. FL § 12-204(b)(1). If there is a dispute as to whether a parent is voluntarily impoverished, the court is directed to make a finding as to this issue based on the statutory factors for attributing potential income. FL §§ 12204(b)(2), 12-201(m).
In contrast with the above requirements under the child support statute, the court is “not expressly require[d] . . . to consider a spouse’s voluntary impoverishment or potential income for alimony purposes.” St. Cyr v. St. Cyr, 228 Md. App. 163, 179 (2016). Alimony and child support are separate issues for which Maryland has distinct statutory provisions. Of course, a spouse’s potential income may be relevant to considerations under FL Section 11-106(b) and the court, acting within its discretion, may consider a party’s potential income in an alimony case. See Durkee v. Durkee, 144 Md. App. 161, 181 (2002) (recognizing that potential income is relevant to FL § 11-106(b)(9), which concerns “the ability of the party from whom alimony is sought to meet that party’s needs, while also meeting the needs of the party requesting alimony”); see also St. Cyr, 228 Md. App. at 179–80 (discussing the factors under FL § 11-106(b)(1), (2), and (11) and concluding that “the court may consider the potential income of a voluntarily impoverished spouse when it considers an alimony request”).
Here, the circuit court found that Mr. Bjork had the ability to pay alimony and considered his potential to continue to earn income in the future. In considering “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” under FL Section 11-106(b)(9), the court concluded that the evidence established that Mr. Bjork “has sufficient assets to continue to pay alimony in some fashion.” In analyzing “the age of each party” under FL Section 11-106(b)(7), the circuit court also noted that Mr. Bjork “ostensibly has many potential years left in the work force and the ability to earn income (albeit possibly part-time).” In addressing “the physical and mental condition of each party” under FL Section 11-106(b)(8), the court similarly noted that although Mr. Bjork requires knee replacement surgery, this “does not prohibit him from earning income in some capacity.” When discussing the financial needs and resources of each party under FL Section 11-106(b)(11), the court again “factor[ed] in, notwithstanding his required joint-replacement surgery, Mr. Bjork’s ability to continue to earn income for many years to come.” The court concluded that each of these factors supported maintaining alimony because Mr. Bjork was able to pay alimony.
To the extent that Ms. Bjork relies on John O. v. Jane O., 90 Md. App. 406 (1992), abrogated by Wills v. Jones, 340 Md. 480, 494 (1995), and Guarino v Guarino, 112 Md. App. 1 (1996), her reliance is misplaced. First, John O. was a child support
case. 90 Md. App. at 423. And, while Guarino was an alimony case in which the chancellor had found that the payee was “not voluntarily impoverishing herself” after considering the John O. factors, we did not mandate such analysis in the alimony context. 112 Md.
App. at 15, n.4. That some circuit courts in previous alimony cases have used the term “voluntary impoverishment” does not mean that a court abuses its discretion when it chooses not to do so. This is especially true when, as here, a party is found to have sufficient resources to pay alimony, i.e., not to be voluntarily impoverishing themselves.
C. Consideration of Annuity as a Financial Resource
Ms. Bjork argues that the circuit court abused its discretion by considering the share of Mr. Bjork’s CSRS gross monthly annuity she will receive when assessing her financial circumstances. As previously discussed, the circuit court is directed to consider “the financial needs and financial resources of each party.” FL § 11-106(b)(11). This provision includes “all income and assets,” any monetary award following divorce, and “the right of each party to receive retirement benefits.” FL § 11-106(b)(11) (referencing FL § 8-205, which provides for the transfer of retirement benefits on absolute divorce, among other marital property dispositions). The amount of the annuity that Ms. Bjork will receive is a “financial resource” appropriately considered by the court under
FL Section 11-106(b)(11). That Ms. Bjork receives the annuity as part of the parties’ MSA does not remove it from consideration by the court under this factor because the statutory language makes specific reference to such retirement benefit plans.
Riley v. Riley, on which Ms. Bjork relies, virtually forecloses her argument that the circuit court abused its discretion in considering the annuity a financial resource. 82 Md. App. 400 (1990). Ms. Bjork points to language in Riley that describes how alimony and monetary awards function differently in their nature and purpose. See id. at 405–06. To be sure, monetary awards based on marital property (and divisions of marital property such as retirement benefit plans) are different from alimony. But there is nothing in the plain language of FL Section 11-106(b), nor does Ms. Bjork identify anything, that directs the court not to consider retirement benefits received as a transfer of marital property when determining how much alimony to award.
If anything, Riley further supports the conclusion that retirement benefits are a financial resource to be considered when calculating alimony. Id. at 407–08. The court in Riley determined that the payor’s entitlement to receive monthly pension benefits was “a resource that he has from which to pay alimony” and was appropriately considered by the court in determining the amount of the alimony award. Id. Nothing in FL Section 11-106(b)’s plain language makes this consideration applicable only to the alimony payor. Indeed, it would be inconsistent with the language of the alimony statute for this only to be true for a payor.
In sum, we see no abuse of discretion in the circuit court’s
inclusion of Ms. Bjork’s share of Mr. Bjork’s CSRS gross monthly annuity as part of her “dependable monthly flow of income.”
The circuit court had to consider Ms. Bjork’s share of this asset.
III. Contempt
Ms. Bjork’s challenge to the circuit court’s denial of her contempt petition also fails. Appellate review in contempt cases is limited “to persons adjudged in contempt.” Pack Shack, Inc. v. Howard Cty., 371 Md. 243, 254 (2002); see also Md. Code, Courts & Judicial Proceedings § 12-304 (providing a person held in contempt the right to an appeal). A person not held in contempt has “no right to appeal the trial court’s denial of the contempt petition.” Pack Shack, Inc., 371 Md. at 254. Ms. Bjork, who was not held in contempt, cannot appeal the circuit court’s denial of her petition for contempt. We have no jurisdiction to review this decision.
IV. Attorney’s Fees
The final issue before us on appeal is the circuit court’s denial of attorney’s fees to Ms. Bjork. The circuit court addressed Mr. Bjork’s and Ms. Bjork’s respective requests for attorney’s fees in its opinion, denying both:
REQUESTS FOR LEGAL FEES
“[T]he court may order either party to pay to the other party an amount for the reasonable and necessary expense of prosecuting or defending the proceeding,” FL §8-214. “Before ordering the payment, the court shall consider: (1) the financial resources and financial needs of both parties; and (2) whether there was substantial justification for prosecuting or defending the proceeding.” FL §8-214(c)(1) & (2).
In this case, I heard credible testimony that Ms. Bjork actively avoided service for a substantial amount of time. In fact, Mr. Bjork had to resort to hiring a private investigator to locate Ms. Bjork, despite her living in what was the marital home. This fact, coupled with my finding that Mr. Bjork did not act in bad faith by making the request for modification of alimony, leads me to conclude there is no legal or factual basis to award legal fees and costs to either Party. The Parties’ respective requests for legal fees and costs are denied.
Whether to award attorney’s fees and, if so, in what amount is within the “wide discretion” of the circuit court. Malin v. Mininberg, 153 Md. App. 358, 435–36 (2003). The denial of attorney’s fees is governed by the abuse of discretion standard. Id. at 436; see also Guillaume v. Guillaume, 243 Md. App. 6, 11–12 (2019).
Ms. Bjork argues that the circuit court erred in two respects when it denied her request for attorney’s fees. First, she contends that she was entitled to attorney’s fees under the parties’ MSA. Second, Ms. Bjork contends that the court erred by not considering the required factors under the alimony statute. We agree, to an extent, with Ms. Bjork’s contentions and discuss each below.
We are not convinced that the circuit court fully analyzed Ms. Bjork’s request for attorney’s fees. Specifically, it does not appear that the circuit court considered Ms. Bjork’s claim to contractual attorney’s fees under the MSA. Nor does it appear that the circuit court fully considered Ms. Bjork’s claim to statutory attorney’s fees in the absence of
bad faith. Accordingly, we vacate and remand for further proceedings not inconsistent with this opinion on the issue of attorney’s fees.
A. Attorney’s Fees Under the Parties’ MSA
The parties’ MSA provides for the award of contractual attorney’s fees in the event of breach. Specifically, the MSA provides that:
Each party hereby waives the right to assert any claim against the other party for counsel fees for legal services rendered to him or her at any time in the past, present, or future, except as permitted by law and except that if either party breaches any provision of this Agreement, or is in default thereof, said party shall be responsible for any reasonable legal fees incurred by the other party in seeking to enforce this Agreement which are awarded by a court of competent jurisdiction.
Here, the circuit court found that Mr. Bjork was in breach of the MSA by failing to pay all the alimony that was due while his modification petition was pending. The circuit court found that Mr. Bjork owed Ms. Bjork $14,500 in unpaid alimony and ordered him to repay it at the rate of $200 per month. Nonetheless, the circuit court did not explain why it did not award contractual attorney’s fees as a result of this breach. Accordingly, we agree with Ms. Bjork that further proceedings regarding this breach, and attendant contractual attorney’s fees, are in order, and we will remand for this purpose.
However, to the extent that Ms. Bjork argues that the MSA requires that Mr. Bjork be responsible for all attorney’s fees incurred by Ms. Bjork in defending against Mr. Bjork’s modification petition and in bringing this appeal, we disagree. The MSA’s creation of a contractual right to attorney’s fees from the other party is narrow. The language of the agreement generally provides that each party is responsible for their own attorney’s fees. The exception to this general rule quoted above applies only when a party incurs attorney’s fees in “seeking to enforce” the MSA in the event of breach or default by the other party. It does not provide for contractual attorney’s fees to the nonprevailing party on a modification petition. Accordingly, we will not remand on that issue.
B. Attorney’s Fees Under the Attorney’s Fees Statute15
The court’s discretion for awarding attorney’s fees in alimony cases is addressed under FL Section 11-110.16 The statute provides that the court, at any point, “may order either party to pay to the other party an amount for the reasonable and necessary expense of prosecuting or defending the proceeding.” FL § 11-110(b). Before ordering a party to pay, the court must consider “(1) the financial resources and financial needs of both parties” and “(2) whether there was substantial justification for prosecuting or defending the proceeding.” FL § 11-110(c).
Ms. Bjork contends that the circuit court erred in denying attorney’s fees incurred in defending against Mr. Bjork’s modification petition because it did not consider the statutory criteria under FL § 11-110(c), citing Malin, 153 Md. App. 358. Malin provides that the “[f]ailure of the court to consider the statutory criteria constitutes legal error.” 153 Md. App. at 435.
We agree that the court erred in failing to consider the required statutory factors. First, while the circuit court concluded that Mr. Bjork’s request for a modification of alimony was substantially justified and that he “did not act in bad faith” by initiating the proceeding, it is not apparent to us that the court addressed whether Ms. Bjork was substantially justified in defending the proceeding, a defense one might expect given that Ms. Bjork was disabled and dependent, at least to some
extent, on alimony.17 Second, if the court were to have found that Ms. Bjork was substantially justified in defending the proceeding, the court failed to discuss the financial resources and needs of Mr. Bjork and Ms. Bjork for the purpose of paying Ms. Bjork’s reasonable attorney’s fees. Thus, we remand to the circuit court for further proceedings regarding Ms. Bjork’s claim for attorney’s fees under FL Section 11-110(c).
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED IN PART AND VACATED IN PART. CASE IS REMANDED FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. COSTS TO BE PAID TWO-THIRDS
FOOTNOTES
1 Mr. Bjork did not file a brief before this Court.
2 We do not address the denial of Mr. Bjork’s request for attorney’s fees because this issue is not before us on appeal.
3 Ms. Bjork phrased her questions as follows:
i) Did the Trial Court err in not permitting evidence of Appellee’s current’s [sic] wife’s income and finances to be discoverable to Appellant?
ii) Did the Trial Court err in failing to conduct an analysis of the voluntary impoverishment factors and in failing to find that Appellee had voluntarily impoverished himself?
iii) Did the Trial Court err in determining that there was a material change in circumstances when Appellee’s overall financial circumstances were no worse than they were at the time of the Marital Settlement Agreement and in failing to properly consider Appellee’s financial resources including income and expenses in granting the modification of alimony?
iv) Did the Trial Court err in considering the amount of moneys Appellant may receive under the annuity in determining the amount of alimony when the annuity was a monetary award and considered at the time of the Marital Settlement Agreement?
v) Did the Trial Court err in refusing to hold Appellee in contempt and instead treating the matter as a breach of contract?
vi) Did the Trial Court err in refusing to award any counsel fees to Appellant and in not conducting an analysis to see if they should be awarded and in not awarding counsel fees based on the Marital Settlement Agreement for Appellee’s breach of it?
4 The parties delayed divorce following their separation in part to allow for Ms. Bjork to stay on Mr. Bjork’s health insurance because she had recently been diagnosed with breast cancer.
5 At the time that Mr. Bjork petitioned to modify alimony, and then amended his petition, such an order had not been entered. The order was not entered until
BY APPELLANT AND ONE-THIRD BY APPELLEE.
June 2023, roughly two months before the trial of Mr. Bjork’s modification petition began.
6 Mr. Bjork’s amended petition notes that Ms. Bjork “will receive one-half (1/2) of Plaintiff’s annuity.” We presume, in light of the parties’ MSA and the Court Order Acceptable for Processing that was eventually entered, that this language refers to half of the marital share of the annuity.
7 The court also ordered Ms. Bjork to produce documents following the March 2023 hearing.
8 By then, Mr. Bjork had remarried but the record does not reflect precisely when he did so.
9 The COAP also provided that Ms. Bjork’s share of the gross monthly annuity would be reduced by the cost of the survivor annuity Mr. Bjork elected that Ms. Bjork would receive.
10 In 2023, the amount Ms. Bjork received was increased to $1,557 per month.
13 FL Section 11-106(b) provides:
(b) In making the determination, the court shall consider all the factors necessary for a fair and equitable award, including:
(1) the ability of the party seeking alimony to be wholly or partly self- supporting;
(2) the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment;
(3) the standard of living that the parties established during their marriage;
(4) the duration of the marriage;
(5) the contributions, monetary and nonmonetary, of each party to the well-being of the family;
(6) the circumstances that contributed to the estrangement of the parties;
(7) the age of each party;
(8) the physical and mental condition of each party;
(9) the ability of the party from whom alimony is sought to meet that party’s needs while meeting the needs of the party seeking alimony;
(10) any agreement between the parties;
(11) the financial needs and financial resources of each party, including:
(i) all income and assets, including property that does not produce income;
(ii) any award made under §§ 8-205 and 8-208 of this article;
(iii) the nature and amount of the financial obligations of each party; and
(iv) the right of each party to receive retirement benefits; and
(12) whether the award would cause a spouse who is a resident of a related institution as defined in § 19-301 of the Health - General Article and from whom alimony is sought to become eligible for medical assistance earlier than would otherwise occur.
FL § 11-106(b). We recognize, of course, that not all of the above factors will be relevant to the determination of modified alimony. See Shapiro v. Shapiro, 346 Md. 648, 665 (1997); see also Blaine v. Blaine, 336 Md. 49, 74 (1994).
14 With their reference to this standard in their MSA, the parties appeared to adopt the standards set out in FL Section 11-107(b) regarding alimony modification and the relevant alimony factors in FL Section 11-106(b). Neither party contended otherwise below, and Ms. Bjork does not contend otherwise here.
15 Plainly read, the MSA preserved both parties’ right to claim counsel fees “in the future” “as permitted by law.”
16 The circuit court’s opinion quotes FL Section 8-214. Title 8 of the Family Law Article governs agreements between spouses. We assume that the circuit court meant to refer to the standard under FL Section 11-110. In any event, the statutory provisions as to attorney’s fees are substantively identical under both titles and Ms. Bjork does not contend otherwise. See FL § 8-214(b); FL § 11-110(b).
17 The circuit court also referred to Ms. Bjork’s apparent extended avoidance of service, but this discussion does not refer to the financial resources or needs of the parties or whether Ms. Bjork had substantial justification for her defense of the entire proceeding.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Baltimore County Circuit Court’s finding that wife was in contempt of a divorce order, and ordering her to comply with the order, particularly regarding visitation between husband and their shared daughter.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B).
Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
temporary protective order on October 21, 2022. The court, however, declined to issue a final protective order following a hearing on January 24, 2023. During the time the temporary protective order was in place, Mr. de Guzman did not have access to R.
This case arises from an order of the Circuit Court for Baltimore County finding Appellant, Krystal Smalls (“Ms. Smalls”), in contempt of a divorce order, and ordering Ms. Smalls to comply with the order, particularly regarding visitation between Appellee, Rafael de Guzman (“Mr. de Guzman”), and their shared daughter, R. The circuit court additionally awarded attorney’s fees to Mr. de Guzman. This timely appeal by Ms. Smalls followed.
QUESTIONS PRESENTED
Ms. Smalls presents two questions for our review, which we have recast slightly as follows:1
1. Whether the trial court erred when it barred Ms. Smalls from introducing alleged evidence of abuse as a reason for withholding the child from Mr. de Guzman.
2. Whether the trial court erred when it awarded attorney’s fees to Mr. de Guzman.
For the following reasons, we affirm.
BACKGROUND
Ms. Smalls and Mr. de Guzman began a relationship in 2014 or 2015, and share a child, R., who was born in 2019. Ms. Smalls and Mr. de Guzman were married on February 18, 2020. The parties separated on February 2, 2021, and Mr. de Guzman filed for divorce on May 6, 2021. On August 23, 2022, the circuit court entered a decree for absolute divorce, granting the divorce, awarding sole legal and primary physical custody of R. to Ms. Smalls, and granting Mr. de Guzman visitation according to a specific schedule.
The parties have a lengthy and contentious history, including multiple allegations that Mr. de Guzman committed acts of abuse against R. and Ms. Smalls.2 Ms. Smalls was awarded a
The present appeal stems from Mr. de Guzman’s October 12, 2022 petition for contempt. Mr. de Guzman filed an amended petition for contempt on February 23, 2023, and a hearing was held on October 4, 2023. The petitions alleged that Ms. Smalls was late to scheduled visits or withheld R. entirely from Mr. de Guzman on multiple occasions in violation of the August 23, 2022 divorce order. Before the hearing commenced, Mr. de Guzman represented that Ms. Smalls would attempt to introduce into evidence instances of alleged child abuse as justification for withholding R. from visitation with Mr. de Guzman. Mr. de Guzman moved to preclude Ms. Smalls from introducing any of these allegations under the doctrine of res judicata3 because those issues had already been raised and decided during the divorce proceedings and the protective order proceedings. The circuit court agreed, and barred Ms. Smalls from introducing in her defense any allegations of abuse that had already been made and decided in the divorce proceedings or protective order proceedings.
Following the hearing, the court found Ms. Smalls in contempt, ordered her to immediately comply with the divorce decree, and ordered Ms. Smalls to provide Mr. de Guzman with additional visitation. The court also ordered Ms. Smalls to pay attorney’s fees totaling $5,800. In arguing for attorney’s fees, Mr. de Guzman (through counsel) stated:
I’m going to ask the Court to award attorney’s fees. Even if Ms. Smalls’ income is 0, we assume that because there’s no evidence before the Court, the ability of the parties to pay is merely a factor for the Court to consider. It is not a prohibition on the Court just because the person may have difficulty paying. And there’s simply total substantial justification for my client to bring this proceeding, and no substantial justification whatsoever from the day it was filed, which is almost a year ago, of not resuming access to this child.
The court agreed with Mr. de Guzman, stating as follows: THE COURT: . . . I'm ordering attorney’s fees in the case. Based on the lack of financial information on her, I’ll give her a substantial period of time to pay it. But the attorney’s fees are ordered in the amount of $5,000, payable at the rate of $100 per month. All right.
[COUNSEL FOR MS. SMALLS]: Your Honor, and I’m sorry, that is pending -- I guess the Court is kind of maybe holding
that sub curia pending and the income information she provides to the Judge.
THE COURT: All right. If she has some information she wants me to modify it, but, I mean, I’m going to order $5,800 at this point. I mean, if she has some information she wants me to consider, I think $100 a month is pretty reasonable, even in the absence of additional information. But if you want to speak to her.
[COUNSEL FOR MS. SMALLS]: Oh, no, Your Honor. I -the Court understands the circumstances of which I am here. THE COURT: All right. I do.
[COUNSEL FOR MS. SMALLS]: Right.
THE COURT: All right. It’s $5,800 payable at the rate of $100 a month.
Ms. Smalls appealed the court’s decision to prohibit her from entering into evidence allegations of abuse by Mr. de Guzman, and the court’s award of attorney’s fees for Mr. de Guzman.
STANDARD OF REVIEW
These are two issues raised in this appeal. Both issues involve differing standards of review. When considering the doctrine of collateral estoppel, “whether this doctrine should be applied is ultimately a question of law for the court. Therefore, we examine de novo the court’s legal determination of whether collateral estoppel should apply based on the court’s sustainable findings of fact.” Shader v. Hampton Imp. Ass’n, Inc., 217 Md. App. 581, 605 (2014).
We review a court’s decision to award attorney’s fees for abuse of discretion. Baldwin v. Baynard, 215 Md. App. 82, 105 (2013). A court abuses its discretion “when no reasonable person would take the view adopted by the trial court or when the court acts without reference to any guiding rules or principles.” Santo v. Santo, 448 Md. 620, 625- 26 (2016) (cleaned up). We will not reverse the circuit court’s award of attorney’s fees unless the “court’s discretion was exercised arbitrarily or the judgment was clearly wrong.” Petrini v. Petrini, 336 Md. 453, 468 (1994).
DISCUSSION
I. The trial court did not err when it prohibited Ms. Smalls from introducing alleged evidence of abuse as a defense for withholding R. from Mr. de Guzman.
Ms. Smalls first contends that the court committed reversible error when it prohibited her from introducing allegations of abuse as a defense for withholding R. from Mr. de Guzman in violation of the visitation scheduled ordered by the court in the divorce decree. Mr. de Guzman counters that the court correctly determined that Ms. Smalls should not be allowed to reintroduce the allegations, as any issues of domestic violence or child abuse were settled in prior litigation.
At the hearing, Mr. de Guzman requested that the court prohibit Ms. Smalls from introducing such evidence, stating that “any such defense would be subject to the principle of res judicata[4] at this point.” Mr. de Guzman continued, arguing that because the Judgment of Absolute Divorce made no finding of abuse committed against either R. or Ms. Smalls, and because Ms. Smalls’ petition for a Final Protective Order was denied, the allegations of child abuse and domestic violence had already been litigated twice and Ms. Smalls should be prohibited from raising the allegations again. The court agreed, finding that
“the issues of domestic abuse and child abuse have been fully litigated in this [c]ourt, and they may not be raised in this action.”
Under the doctrine of collateral estoppel, an issue decided in a prior adjudication may not be re-litigated if that issue was “(1) identical to the issue to be decided in the present action; (2) there was a final judgment on the merits in the prior adjudication; (3) the party against whom the doctrine is asserted was a party to the prior adjudication or was in privity with a party to the prior adjudication; and (4) the party against whom the doctrine is asserted had a fair opportunity to be heard on the issue in the prior adjudication.” Cunningham v. Baltimore Cnty., 246 Md. App. 630, 669 (2020) (internal citations omitted).
Here, the court correctly determined that the doctrine of collateral estoppel barred Ms. Smalls from introducing the alleged acts of abuse to defend her violation of the divorce decree. First, during the divorce proceedings, Ms. Smalls testified regarding various acts of violence and abusive behaviors exhibited by Mr. de Guzman. The court considered Ms. Smalls’ testimony when it determined the custody arrangement and created the visitation schedule outlined in the divorce order. Ms. Smalls also testified as to Mr. de Guzman’s alleged abuse during the final protective order hearing on January 24, 2023, at which the final protective order was denied. Mr. de Guzman sought to prohibit Ms. Smalls from raising these same allegations of abuse once again because the issues were identical. Second, both the divorce decree and the final protective order denial were final judgments on the merits. Third, both Ms. Smalls and Mr. de Guzman were parties in the previous two actions. Finally, as the court considered Ms. Smalls allegations of abuse when creating the divorce order, Ms. Smalls had ample opportunity to be heard on the allegations of abuse during the divorce proceedings.
Notably, because the court held a hearing at which Ms. Smalls presented evidence of alleged abuse in an attempt to secure a final protective order -- although it was ultimately denied -- Ms. Smalls was also clearly given the opportunity to be heard on the issue at the final protective order hearing. Therefore, the precise issue that Ms. Smalls may have attempted to put forward as a defense was appropriately barred by the doctrine of collateral estoppel, and the trial court did not err in prohibiting Ms. Smalls from re-litigating the issue.
II. The trial court did not err in awarding attorney’s fees to Mr. de Guzman.
Ms. Smalls contends that the trial court erred when it ordered her to pay Mr. de Guzman’s attorney’s fees of $5,800 because it failed to consider necessary factors when determining whether to award fees. Mr. de Guzman counters that the court’s decision to award attorney’s fees was not an abuse of discretion.
The award of attorney’s fees in this instance is governed by Md. Code (1984, 2019 Repl. Vol.) § 12-103 of the Family Law Article (“FL”). FL § 12-103(a)(2)(iii) provides that a court may award costs and counsel fees in any case in which a party files for proceedings to enforce a decree of custody or visitation. FL § 12-103(b) further provides:
(b) Before a court may award costs and counsel fees under this section, the court shall consider:
(1) the financial status of each party;
(2) the needs of each party; and (3) whether there was substantial justification for bringing, maintaining, or defending the proceeding. FL § 12-103(b).
Although not mandated by FL § 12-103(b), the court is also required to consider the reasonableness of the fees requested. Sczudlo v. Berry, 129 Md. App. 529, 550 (1999). In determining whether the attorney’s fees are reasonable, the court “must look at (1) whether the [award] was supported by adequate testimony or records; (2) whether the work was reasonably necessary; (3) whether the fee was reasonable for the work that was done; and (4) how much can reasonably be afforded by each of the parties.” Lieberman v. Lieberman, 81 Md. App. 575, 601-02 (1990); see also Lemley v. Lemley, 109 Md. App. 620, 633 (1996) (holding that when determining the reasonableness of the fees request, the court must “tak[e] into account such factors as labor, skill, time and benefit afforded to the client by the attorney, as well as the financial resources and needs of each party”).
Ms. Smalls argues that Mr. de Guzman only made a “passing mention” of the FL § 12-103(b) factors when requesting attorney’s fees and never offered any proof of reasonableness. Ms. Smalls further argues that the court never addressed any of the factors, and similarly failed to address whether Mr. de Guzman’s requested fees were reasonable, and therefore committed reversable error. Mr. de Guzman counters that the court clearly considered Ms. Smalls’ financial situation, and considered the necessity of the contempt action, which addresses the “substantial justification” factor.
As noted, we review a circuit court’s award of attorney’s fees
under an abuse of discretion standard, and we will only reverse if the “court’s discretion was exercised arbitrarily or the judgment was clearly wrong.” Petrini, 336 Md. at 468. Mr. de Guzman clearly presented evidence that the contempt proceedings were substantially justified after Ms. Smalls withheld R. from visitation following the divorce proceedings. Additionally, the court considered the financial status of the parties, as the court stated that it had limited information about Ms. Smalls’ financial status and would therefore require her to pay the
$5,800 award of attorney’s fees in installments of $100 per month, which the court stated was “pretty reasonable.” The court further stated that it would modify this award if Ms. Smalls presented information on her finances, indicating its consideration of her financial status. The court, therefore, adequately assessed the FL § 12-103(b) factors.
The court additionally addressed the reasonableness of the $5,800 fee award. The court stated that paying $100 per month until the total sum of $5,800 was paid off was “pretty reasonable.” Mr. de Guzman introduced into evidence as Exhibit 3 a billing statement for work done by his attorney in preparation for the contempt proceedings. Mr. de Guzman testified that the $400 hourly rate he was charged by his attorney was “fair and reasonable.” Inasmuch as the billing statement was introduced into evidence, the trial court did not err in determining the fees to be reasonable. As noted above, the court considered the financial position of Ms. Smalls in determining whether to award attorney’s fees. Thus, the trial court neither erred nor abused its discretion in its award of attorney’s fees to Mr. de Guzman. We, therefore, affirm.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Ms. Smalls phrased the questions as follows:
1. Did the circuit court err in prohibiting Appellant from presenting evidence to establish her reasons for not complying with the visitation provisions of the divorce order?
2. Did the circuit court err in awarding attorney’s fees to Appellee?
2 For a thorough recitation of the parties’ history, see de Guzman v. Smalls, No. 1275, Sept. Term 2022 WL 5030169 (Md. App. Ct., Aug. 8, 2023).
3 As discussed below, Mr. de Guzman used the term res judicata; however, the doctrine of collateral estoppel more aptly applies in this instance. Therefore, we will instead discuss whether Ms. Smalls was correctly
prohibited from again raising the abuse allegations under the doctrine of collateral estoppel.
4 At the hearing, Mr. de Guzman used the term res judicata. Res judicata, or claim preclusion, concerns the “legal consequences of a judgment entered earlier in the same cause.” Colandrea v. Wilde Lake Cmty. Ass’n, Inc., 361 Md. 371, 390-91 (2000). In our view, collateral estoppel, or issue preclusion, is more appropriate. Collateral estoppel instead concerns the “issue implications of the earlier litigation of a different case.” Id. In our view, the doctrine of collateral estoppel is better applicable than res judicata to the present case, as we are specifically considering the issue of Ms. Smalls’ abuse allegations. Accordingly, we shall only address whether Ms. Smalls was collaterally estopped from raising the issues of abuse as a defense to contempt of the divorce decree ordering visitation between R. and Mr. de Guzman.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Montgomery County Circuit Court’s order granting wife’s petition for a protective order and denying husband’s petition for a protective order. The circuit court’s findings that wife suffered abuse and husband did not were not clearly erroneous.
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.
relocated from Russia to the United States to marry Husband. At the time of the protective order hearings, Wife was unemployed, did not speak English, had no relatives in the United States, and was Child’s primary caretaker.
The relationship between the parties has been turbulent. Husband has filed for divorce three times – twice before the incident leading to the requests for protective orders and once after.3
On December 15, 2023, Husband and Wife quarreled. Wife called the police who interviewed both parties. The police left without arresting either person.
In this consolidated appeal, we are asked to review the decisions of the Circuit Court for Montgomery County denying the petition for a protective order filed by appellant, Fedor Karmanov (“Husband”), and granting the petition filed by appellee, Iuliia Vysotina (“Wife”).1 Husband, who noted the appeals, presents the following questions, which we have rephrased slightly as follows:2
1. Did the trial court abuse its discretion in denying Husband’s mid-trial request for discovery, thereby depriving Husband of a fair opportunity to present his defense?
2. Did the trial court err in finding Wife to be a credible witness?
3. Did the trial court err in granting Wife’s petition for a protective order and denying Husband’s petition?
4. Did the trial court violate Husband’s constitutional rights by granting Wife exclusive use of the marital home during the duration of the protective order?
For the reasons to be discussed, we answer “no” to these questions and shall affirm the judgments.
BACKGROUND
Factual & Procedural History
Husband and Wife, both natives of Russia, married in February 2022. They have one child together, a daughter born in August 2023 (“Child”). At the time of the December 2023 incident leading to the filing, by both parties, of the protective orders at issue here, Husband was forty-eight years old and Wife twentysix years old. Husband, who speaks fluent English, works from home as a software engineer for NIH. He also has two side businesses he runs from the home. Husband had resided in the United States for about thirteen years and his marriage to Wife was his fifth marriage, the previous four ending in divorce. Wife
Three days later, Husband filed a complaint for divorce. The day after that, December 19, Husband filed his petition for a protective order on behalf of himself and Child seeking protection from Wife based on the December 15 incident and an alleged incident on October 14, 2023.4 The circuit court granted a temporary protective order, effective through December 26, which was served on Wife on December 22 at 3:50AM. At that time, Wife was directed to vacate the marital home without Child, who at that time was four months old and breast feeding.
Later that day, December 22, Wife filed a petition for protection from Husband. The court granted her a temporary protective order, effective through December 26. The court scheduled a final protective order hearing, in both cases, for December 26. Also, on December 22, Wife filed an application for statement of charges against Husband based on the December 15 incident and an arrest warrant was issued charging him with two counts of second-degree assault.
On December 26, the parties appeared in court, Husband with counsel and Wife pro se, for the final protective order hearing. Husband testified that the quarrel on December 15 had begun a few days prior when Wife found a souvenir pen on his desk that was gifted him by a friend. The pen had a “trick” such that “if you pull it, it presents something” that he agreed is “moderately indecent[.]” Husband claimed that Wife “harassed” him for a few days about the pen and why he had not told her about it. This harassment—which Husband related involved Wife accusing him of lying “a hundred times a day” and chasing him around the house—eventually “escalated to an assault.”
According to Husband, on December 15th, Wife banged on his office door (located on the second floor of the home) and demanded that he admit that he is a liar. When Husband opened the door, Husband claimed that Wife punched him in the left eye. Husband related that he then went to the first floor and Wife began “blackmailing” him by saying she would call the police unless he agreed to a divorce with the following conditions: Wife would have custody of Child, Wife and Child would move
to Russia, and Husband would pay spousal and child support. When he refused to agree to her terms, Wife called the police.
Husband asserted that Wife “regularly . . . attacked [him] and she accused [him] of attacking her[,]” and to protect himself from Wife’s violent outbursts, he had converted his home office to a “saferoom” that he could lock himself in. He submitted photographs showing the room both before and after the conversion. He claimed that Wife had assaulted him three or four times between October and December 2023. According to Husband, Wife would also leave him “insulting notes,” saying things like she wished he would die soon. A photograph Husband had taken of one note purportedly written by Wife, that he submitted into evidence, read: “Everything is over. Go f*** yourself. Prepare for the court.” Husband also submitted photos he had taken of himself showing “scars” on his body, which he testified were inflicted by Wife during quarrels in October and November 2023. Wife objected to Husband’s admission of the photos into evidence, claiming that the “scratches” were not inflicted by her but rather incurred by Husband when he was “doing some repairs.” Her objection was overruled.
Husband submitted into evidence a number of videos he recorded during quarrels with Wife, including several from different days in November 2023. The videos were played for the court and the words spoken by the parties captured thereon were translated from Russian to English with the assistance of the court appointed translator.5
In one video submitted by Husband, it appears that Wife knocked Husband’s glasses off his face. Husband, in testifying about another video, claimed that Wife—after breaking into his “saferoom”—tried to stab him with scissors and then tried to push him down the stairs. Wife is heard on the video saying to Husband: “So, you bringing me to the edge and you, you have beaten me up and you hit me right here in the presence of the child.” Wife also is heard saying, “So, you, you f*** hit me. You f*** hit me up, have beaten me up over here” and “[I] can die from fear.”
Husband denied that he ever hit or kicked Wife, other than “in self-defense when [he] tried to protect” himself from her assaultive behavior. At the hearing, Husband, who had been caring for Child since the protective order was served on Wife four days earlier, claimed that he had no issues tending to Child.
Wife, in response to questions posed by the court, testified that she has been Child’s full-time provider since her birth and that she believes, one hundred percent, that she is a “safe person” to care for Child. She admitted that she and Husband had quarreled on December 15 and she had called the police, but she denied touching him. She claimed that the police did not arrest Husband because she had told them not to. In subsequent testimony, she claimed that her reason for telling the police not to arrest Husband that day was because she “was afraid” that afterwards he would return and “beat[]” her up.
The court continued the hearing until December 28, but because Husband was about to be served with the arrest warrant for the assault charges sought by Wife, the court first addressed temporary custody of Child so that Child could be cared for. The court found that, given that Husband was about to be taken into custody and his bail status was then unknown, Wife was the appropriate person to have custody of Child, at
least until the next hearing. And because Wife had no place to live other than the marital home—and the home was the best place for Child—the court awarded Wife temporary occupancy of the marital home and ordered Husband to stay away.
The next day, December 27, Husband filed assault charges against Wife.6 On December 28, the parties returned to court to continue the final protective order hearing. This time, Wife was represented by counsel.
Wife testified that, when she returned to the marital home following the court hearing on December 26 (after having been away since the service of the protective order on her on December 22), she discovered the mattress in Child’s crib “was covered with urine, dirty, also with some vomiting messes” and she found “a plethora of dirty baby clothing as well as dirty bottles.” She submitted into evidence a photograph she had taken of the sheet on the crib mattress.
Wife portrayed Husband as the aggressor of the December 15 incident. She testified that Husband started “grabbing” her and “making arm movement, like, attempting to hit” her. Wife “started protecting” herself because she “realized that he wanted to beat [her] up.” She claimed that Husband grabbed her by the neck, dragged her across the floor by her hair, threw her on the floor, and kicked her. Wife testified that she told Husband they had to divorce, otherwise she would call the police, because she had “been sustaining domestic violence on monthly basis[.]” She then “started googling” to learn “how to reach the police.” Wife submitted into evidence, without objection, photographs she said she had taken of herself on December 15 showing a mark on her nose and bruises, which she claimed were inflicted by Husband during the December 15 incident.
Wife testified that this was not the first time Husband had abused her, claiming, again, that it “has been going on every single month since [she] came to America.” Wife related that, when she was three months pregnant, Husband had grabbed her by the throat, grabbed her by her hands and dragged her across the floor, and kicked her. She submitted photos of herself, taken by herself, showing bruises and marks on her body she testified that she sustained in that incident.
Wife also related an incident from July 2022. She claimed Husband was drunk and she heard him loading his firearm. When he went downstairs for more alcohol, she grabbed the firearm and hid it under the bed in another room. She then locked herself in a bathroom. Husband then went looking for his firearm and also opened the bathroom door where Wife was hiding. Husband grabbed Wife by her hands to pull her out of the bathroom and in doing so squeezed her hands so tight that he broke her finger. (Wife submitted a photo of her finger, in what appears to be a splint, after she received medical treatment the next day.) When Husband retreated to the second floor and Wife heard him grab the firearm, she rushed to the garage and hid there. Wife recorded the incident from this point forward. She claimed that she was fearful that Husband was going to kill her. Wife’s video of the July 2022 incident was played in court and submitted into evidence. The video shows Wife crouching beside a vehicle in the garage, Husband approaching her, Husband returning to the house, and Husband (in the house) holding a large firearm.
During cross-examination of Wife, Husband’s counsel
questioned the photos Wife admitted into evidence, which she claimed during her direct examination depicted injuries she sustained during the December 15 incident. In an attempt to discredit her testimony that the photos were actually taken on December 15, Husband’s counsel sought to have Wife access the photos (which were previously printed and also placed on a flash drive for submission into evidence) on her iPhone in open court to “show us those photographs with the time stamps, metadata, showing [they were] taken December 15[.]” Wife replied that Husband had “broke[n] into” her phone and “breached the security of [her] account” and that she had “proof that he logged in on December 27 . . . into [her] iCloud.” Counsel asked Wife to answer “yes or no, you do not have photographs with a time stamp saying December 15, 2023? Just a yes or no.” Wife answered: “He removed - - yes.” Husband’s counsel asked the court to take “notice of the appearance of” Wife and “of the fact that she does not have any marks” on her face and did not have them when the final protective order hearing began December 26.
Husband’s counsel also elicited from Wife that, on December 24, she had posted a video on TikTok which was submitted into evidence by Husband and played for the court. The video depicted Wife standing next to a Christmas tree that she had recorded in the marital home and Husband attempted to utilize the video to prove that “she posted something December 24th which . . . shows no marks whatsoever on her face.” Wife, however, claimed she had taken the video prior to the December 15 incident and merely posted it to TikTok on December 24 at a time when she was barred from the premises. When asked, Wife admitted that she had taken the video posted to TikTok with her cell phone. Mother’s counsel objected. The exchange about which Husband now complains then occurred:
[HUSBAND’S COUNSEL]: Can you check the date on your cell phone when this video was taken?
THE COURT: We’re not going to pause the proceeding to go through a cell phone right now. If you have evidence - - if you have evidence that she took it on a date after December 15th, show me the evidence.
[HUSBAND’S COUNSEL]: Respectfully, Your Honor, I’m trying to get the evidence. She says - -
THE COURT: Okay. But this - -
[HUSBAND’S COUNSEL]: - - she can get on the cell phone -THE COURT: We’re not going to have a discovery session here in the middle of an emergency proceeding. What you’re looking - -
[HUSBAND’S COUNSEL]: I’m - -
THE COURT: - - for right now is discovery from a witness who’s on the stand testifying. That’s not appropriate at an emergency hearing. It’s not an appropriate thing to do at any hearing, but there’s not even discovery that goes on at these hearings.
[HUSBAND’S COUNSEL]: Incorrect, Your Honor. I’m asking for impeachment. I’m trying to impeach her - -
THE COURT: Okay. Ask a question.
[HUSBAND’S COUNSEL]: I asked her a question: What is the date - - she has the date when this video was taken. I’m
asking for the date when this video was taken.
THE COURT: And she said it was before December 15th and doesn’t know the exact date. Next question.
[HUSBAND’S COUNSEL]: I’m asking her to check on her cell phone what is the exact date.
THE COURT: That is not a question. That is a command to get - - to her to get off the stand and to go into her phone at a table and start looking for something, and that is not what we’re doing at an emergency hearing. Next question.
Subsequently, Husband took the stand. As to why he filed his petition for a protective order, he testified that, after Wife had called the police following the December 15 incident, Wife “became more confident” and started “harassing [him] again and again” and he no longer felt “safe at home” and, having been “wrongly accused,” he felt the need to seek protection. He asserted that Wife had “threatened” him “before many times” that she would call the police, have him thrown out of the house, and take Child to Russia with her.
With regard to the photos Wife submitted purporting to show injuries she sustained on December 15, Husband testified that he “absolutely” believed that the photos were not taken on December 15. And he testified that the video Wife posted on TikTok on December 24, which does not reflect any “marks” on Wife’s face, was filmed by Wife on December 20 when they were both home. As for Wife’s photo of the dirty crib sheet, Husband testified that he believed that the photo had been altered. He acknowledged that there were “some stains on the sheet[,]” but claimed that Child had “burped” just before they were leaving for court and he did not have time to change the sheet.
Husband admitted that he owned a “shotgun,” which he claimed he had legally purchased “for protection of the house[.]” He kept it by his bed initially, but later moved it to his walk-in closet. He denied ever threatening Wife with the gun.
His story of the July 2022 incident differed from Wife’s. Husband related that he was sleeping, with the gun beside his bed, when he woke to use the bathroom. Upon returning, he noticed the gun was gone and was worried that someone had broken into the home and stolen it. After finding the gun in Wife’s bedroom, he went searching for her and when he didn’t find her inside the home, he “thought that she might be hiding in the garage.” He placed the gun on the washing machine and entered the garage, finding Wife there hiding behind the car and “barricaded” with “paper bags for garden refuse.” The “loud sounds” heard on the video was him moving the bags away. Husband related that he “politely and calmly asked [Wife] to return home” and she followed him into the house and when he picked up the gun Wife started screaming. Wife, according to Husband, then accused him of hurting her finger, but he had “no clue” what she meant. He claimed that the gun was “unloaded” and he never had his finger on the trigger. When asked why he thought Wife had been hiding in the garage, Husband answered that he suspects that he “was being set[] up . . . for the purpose of [the] video.”
On cross-exam by Wife’s counsel, Husband testified that he had purchased the gun because he “was afraid for [his] life after having a conflict with [his] business partners” in 2021. He admitted that he kept the gun by his bed, but denied it was
loaded. He explained that the gun has a magazine which holds five cartridges and that he kept the magazine attached to the gun. Although the magazine was “loaded,” he said he did not keep a cartridge in the “chamber.” (In his view, “‘loaded’ means something in the chamber.”)
Husband admitted that Wife’s video of the July 2022 incident depicted him holding the gun and Wife stating that she took the gun from his room so that he wouldn’t kill her, but again claimed that he believed Wife “was trying to provoke” and “set [him] up exactly for this video.” He confirmed that he took Wife to the hospital the next day where she received treatment for her finger, but adamantly denied any knowledge as to how her finger was injured.
The only other witness to testify was Andrii Trofymenko, a friend who testified on Husband’s behalf. Mr. Trofymenko had known Husband about eight years. On two occasions, November 2022 and November 2023, Husband had asked to stay a night at his home. In November 2023, when Husband appeared at Mr. Trofymenko’s house, Husband showed him “a lot of scratches and kind of like bruises on his body.” On that occasion, Mr. Trofymenko testified that Husband related that he could not stay at his own home because Wife was “punching him.”
After closing statements by counsel, the court recessed and took the time to again watch all the videos that the parties had submitted into evidence.
Court’s Findings & Rulings
Following the recess, the court resumed the bench and apologized for taking “much longer” than anticipated but stated that she “wanted to watch every last video” submitted into evidence, which she had done. The court thereafter gave a thorough and specific recitation of its findings.
The court reviewed that both Husband and Wife had sought protective orders, claiming abuse by the other spouse. In that situation, the court noted, Family Law Article § 4-506(c)(3) applies and provides that “the judge may issue mutual protective orders if the judge finds by a preponderance of the evidence that mutual abuse has occurred.” Md. Code Ann. (1984, 2019 Repl. Vol.), Fam. Law § 4-506(c)(3)(i). In addition, the statute states that mutual protective orders may be issued “only if the judge makes a detailed finding of fact that: 1. both parties acted primarily as aggressors; and 2. neither party acted primarily in self-defense.” Fam. Law § 4-506(c)(3)(ii).
The court also related that it had reviewed pertinent case law and cited two decisions by the Supreme Court of Maryland that it found particularly instructive in this case. Quoting the decision in Coburn v. Coburn, 342 Md. 244, 252 (1996), the court stated that “the primary goals of the [domestic abuse] statute are preventive, protective and remedial, not punitive. The legislature did not design the statute as punishment for past conduct; it was instead intended to prevent further harm to the victim.”
In assessing whether a petitioner seeking a protective order has been the subject of abuse—as that term is defined in the protective order statute7—the court stated it was guided by the decision in Katsenelenbogen v. Katsenelenbogen, 365 Md. 122 (2001) and read the following passage from that decision:
A person who has been subjected to the kind of abuse defined
in [Fam. Law] § 4-501(b) may well be sensitive to non-verbal signals or code words that have proved threatening in the past to that victim but which someone else, not having that experience, would not perceive to be threatening. The reasonableness of an asserted fear emanating from that kind of conduct or communication must be viewed from the perspective of the particular victim. Any special vulnerability or dependence by the victim, by virtue of physical, mental, or emotional condition or impairment, also must be taken into account.
365 Md. at 139.
Guided by these legal provisions and principles, the court turned to its findings in this case. The court recounted each alleged incident of abuse testified to in court and summarized what it found on the videos which it had rewatched during the recess. In short, the court credited Wife’s testimony and did not credit Husband’s testimony on salient points. In fact, the court found Wife “very credible” based on her demeanor while testifying, “both in what she said and how she said it.”
The court found that Wife was afraid of Husband, noting that in the July 2022 video it could see “fear in her eyes” and heard “fear in her voice. Her voice was shaky. It sounded like she was crying.” The court observed that that video also depicted the “menacing” looking shotgun Husband carried through the house when searching for Wife during that incident. The court credited Wife’s testimony that she had heard Husband loading the gun, and that is why she was so fearful. The court also found that Husband had carried the gun from upstairs to downstairs when searching for Wife for the purpose of intimidating her. The court did not credit Husband’s testimony that he did not know how Wife hurt her finger in the July 2022 incident, and credited Wife’s testimony that her finger was broken when Husband grabbed her by the hands to pull her out of the bathroom where she had been hiding.
In reviewing the other videos—recorded by Husband and submitted into evidence by him—the court found that, in all instances, Husband appeared calm and steady. For example, in an October 13 video, Wife is seen holding Child and speaking and “[t]he video is held very still and very focused on her” and “then there’s a pause, and she hits something with a bottle.” Yet, the court noted, “[t]here’s no reaction from him . . . not even an audible anything . . . like ah.”
In addressing other videos recorded by Husband, the court again noted how “calm” Husband was and found that “the calm videoing for such lengths of time to be wholly inconsistent with someone who’s in fear of someone else.” Rather, the court found “it [to be] consistent with a desire to build a . . . custody case.” The court also found Husband’s failure to call the police during Wife’s alleged attacks of him to be inconsistent with someone who was fearful of experiencing imminent harm. And the court found significant that Wife, in most of these videos recorded by Husband, was crying (and sometimes hysterical) whereas Husband is “calm” and “keeps on videoing.” Moreover, the court was unable to discern what Husband was doing behind the camera, such as whether he could have been sending non-verbal signals to Wife that she might have perceived as threatening.
Although there were some instances captured on the videos where Wife appeared to throw something or slap her hands
in Husband’s direction, the court nonetheless concluded that there was insufficient evidence that Wife was the primary aggressor or was inflicting abuse upon Husband. The court was not persuaded that “being that calm and continuing to video is consistent with someone who has been attacked.” In a November 11 video, for example, the court noted that Husband never “sound[s] afraid” or “upset” and the camera never falls. In sum, the court repeatedly found Husband’s “behavior inconsistent with being the victim in these” incidents. On the other hand, Wife, the court concluded, was “afraid, especially in light of what happened [in July 2022] with that firearm.”
The court observed that, during the final protective order hearings, Husband came across as “someone who is articulate, speaks English, has lived in the United States for many years and, from observing his behavior in court, is a very assertive person.” The court found that he gave “very strong” answers when testifying and corrected counsel “on cross- examination when he thought that counsel was wrong.” The court noted that Husband also corrected the court appointed interpreter and made comments to the court’s law clerk regarding the playing of the videos. The court found Husband to be no “shrinking violet” but rather “very strong-willed,” having “no problem speaking out, speaking his mind, and taking charge.” Consequently, the court found Husband’s failure to call the police during alleged attacks by Wife to be significant and did not credit his testimony that he failed to do so out of fear that he would be falsely accused of something.
Moreover, the court found that Wife had a “special vulnerability and dependence[.]” Physically, the court noted that Wife “is an extremely slight woman . . . probably five two and 110 pounds at the max” and Husband “is double that[.]” The court also concluded that there was an “extraordinary imbalance of power” in the relationship. The court explained:
On the one hand, [Husband] is fully fluent in English. He makes no English errors and has only a slight accent. He works at NIH, and . . . he’s the one that brought her here to the United States. He’s the one that is entrenched in American society. He makes good money. And she, on the other hand, speaks no English and has no job, has no money, and stated she has no family or friends here and didn’t even know how to go to the police and had to Google how to do certain things.
The court found that Wife had suffered abuse on December 15 and was unpersuaded that Husband was not the primary aggressor in the various incidents and unpersuaded that Wife was not acting in self-defense. In short, the court concluded that “all of [Husband’s] behavior” in the incidents captured on video was “inconsistent with [him] being the victim in these cases.” Again, the court credited Wife’s testimony and not Husband’s, noting for example that her testimony about the December 15 incident was “a much more detailed account of what happened” and she was the one who had called the police, whereas Husband “was very brief about that incident and didn’t give many details at all.”
The court denied Husband’s request for a protective order and granted Wife’s. Among other things, the court ordered that Husband stay away from Wife and remain absent from the marital home. The protective order remains in effect until
December 28, 2024.
STANDARD OF REVIEW
A petitioner seeking a final protective order must show “by a preponderance of the evidence that the alleged abuse has occurred[.]” Fam. Law § 4-506(c)(1)(ii); C.M. v. J.M., 258 Md. App. 40, 56 (2023). “Preponderance of the evidence means more likely than not.” C.M., 258 Md. App. at 56-57 (cleaned up). When reviewing the issuance of a final protective order, we accept the trial court’s findings of fact unless they are clearly erroneous. See Md. Rule 8-131(c); Barton v. Hirshberg, 137 Md. App. 1, 21 (2001). “Under the clearly erroneous standard, this Court does not sit as a second trial court, reviewing all the facts to determine whether an appellant has proven his case.” Webb v. Nowak, 433 Md. 666, 680 (2013) (cleaned up). “Nor is it our function to weigh conflicting evidence.” Goss v. C.A.N. Wildlife Tr., Inc., 157 Md. App. 447, 456 (2004). Rather, we “must consider evidence produced at the trial in a light most favorable to the prevailing party and if substantial evidence was presented to support the trial court’s determination, it is not clearly erroneous and cannot be disturbed.” Ryan v. Thurston, 276 Md. 390, 392 (1975). We defer to the trial court’s credibility determinations because it has “the opportunity to gauge and observe the witnesses’ behavior and testimony during the trial.” Barton, 137 Md. App. at 21 (cleaned up). “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 v. Layman, 125 Md. App. 745, 754 (1999).
DISCUSSION
Husband’s “Discovery” Request
Husband asserts that the court abused its discretion by denying his “request for discovery” and maintains that the “emergency nature of the proceeding deprived [him] of a fair opportunity to examine [Wife’s] evidence and adequately prepare for the hearing.” He claims that his “multiple requests for discovery . . . would have yielded crucial impeachment evidence” that “would have conclusively demonstrated [Wife’s] claims were fabricated[.]” He also maintains that the court “erred in not giving proper weight to lack of authentication of submitted evidence.” Citing Napue v. Illinois, 360 U.S. 264 (1959), Husband states that “a prosecutor’s knowing use of false testimony violates due process, even if the false testimony only relates to the credibility of a witness rather than direct evidence of guilt.” He asserts that, “[b]y preventing [him] from obtaining proof that [Wife] fabricated evidence about her injuries, the court’s ruling violated Napue[.]”
Specifically, Husband maintains that the photographs submitted by Wife showing a mark on the side of her nose and bruises on her body which she testified she sustained during the December 15 incident “were actually from an earlier, unrelated incident” and he claims that Wife “mispresented” the dates the photos were taken. He also mentions the TikTok video he submitted into evidence and the court’s refusal to have Wife, during Husband’s cross-examination of her, delve into her iPhone and produce the time stamps of when the video was recorded. (At the hearing, in his rebuttal direct examination, Husband testified that Wife recorded the TikTok video on December 20.)
First, Napue is inapplicable. The matter before us was not a
criminal case prosecuted by the State or a proceeding involving State agents as witnesses, but cross petitions for civil protective orders filed first by Husband and then by Wife. See Coburn, supra, 342 Md. at 252 (“The [domestic violence] statute grants courts the power to issue civil protection orders, which can prohibit a perpetrator of domestic violence from, among other things, abusing, contacting or harassing the victim.”).
In arguing that the “emergency nature of the proceeding” did not give him sufficient time to prepare his case, Husband ignores the fact that he filed his petition for a protective order on December 19, three days prior to Wife filing her petition. Husband (and Wife) specifically sought relief pursuant to the domestic violence statute set forth in § 4-501 et seq. of the Family Law Article. “Through [this] statute, victims of domestic abuse are offered access to the judicial system to seek emergency relief and protection from their abusers.” Coburn, 342 Md. at 252 (emphasis added). The statute is intended “to protect and ‘aid victims of domestic abuse by providing an immediate and effective’ remedy.” Id. (emphasis added) (quoting Barbee v. Barbee, 311 Md. 620, 623 (1988)). Thus, Husband can hardly complain that he did not have sufficient time to prepare his case because the court proceeded expeditiously, as the statute he invoked so intends.
As for his specific complaints, Wife testified that the photos she submitted into evidence showing a mark on the side of her nose and bruises on her body were taken following the December 15 incident. Husband did not object when the photos were moved into evidence. It was only later, during crossexamination, that Husband’s counsel attempted to discredit her testimony as to the date the photographs were taken. After several questions along these lines, Wife testified that Husband had logged into her iCloud account the day before (December 27) and “everything was deleted[.]” When asked to respond “yes or no,” to the statement “you do not have photographs with a time stamp saying December 15, 2023[,]” she answered: “He removed - - yes.” In his rebuttal direct examination, when Husband was asked whether he believed these photos were taken on December 15, he replied: “Absolutely not.” He also denied that the photos depicted how Wife actually looked on that day.
It was for the circuit court—not this Court on appeal—to weigh the conflicting evidence and to assess the credibility of the witnesses. As for any “lack of authentication,” Husband made no objection on that ground when Wife’s December 15 photos were introduced or submitted into evidence and, therefore, any authentication issue was not preserved for appellate review.
As for the TikTok video Wife posted on December 24, it was Husband who submitted that into evidence to establish that Wife had no marks on her face when the video was recorded. On cross-examination, Wife testified that, although she posted the TikTok video on December 24, she had recorded it prior to the December 15 incident. We discern no abuse of the court’s discretion in denying Husband’s request that Wife, in the midst of her cross-examination, stop and search her phone for evidence to corroborate her testimony as to the date she recorded the TikTok video. An abuse of discretion will be found only when “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. Baltimore Cnty., 220 Md. App. 529, 566 (2014) (cleaned up). “[W]here a trial court’s ruling is reasonable, even if we believe it might have gone the other way, we will not disturb it on appeal.” Fontaine v. State, 134 Md. App. 275, 288 (2000). We are not convinced that the court’s ruling was unreasonable.
The Court’s Credibility Determinations
In a detailed summary of its findings, the court repeatedly indicated that it found Wife’s testimony credible and Husband’s not so. On appeal, Husband maintains that the court erred in finding Wife credible. In support of his position, he claims: (1) Wife gave “inconsistent” and “irreconcilable versions” of the December 15 incident; (2) Wife was “judicially estopped from claiming self-defense” because she admitted that “she initiated the physical fight without justification”; (3) Wife failed to corroborate her claims of abuse with evidence, such as police documents or recordings of the abuse; (4) Wife’s description of the physical abuse she sustained on December 15 was “inconsistent and contradicted by the photographic evidence”; (5) the court disregarded Husband’s testimony of Wife’s “blackmail attempts”; and (6) the court failed to consider his “documented history” of Wife’s “aggression and violence” against him. All of the above, according to Husband, “severely undermined” Wife’s credibility and yet was overlooked by the court.
In essence, Husband is asking this Court to make our own credibility determination, which we decline to do. As always, we defer to the trial court’s credibility assessment because it has “the opportunity to gauge and observe the witnesses’ behavior and testimony during” the hearing. Barton, 137 Md. App. at 21 (cleaned up). It is clear from our review of the transcripts from the two-day hearing that the court did just that.
When Husband’s counsel requested the court to “take notice of the appearance” of Wife and the fact that she “does not have any marks” on her face, the court responded in pertinent part: “I’ve been observing both - - the physical appearances of both parties all day today and two days ago[.]” In announcing its findings, the court observed that, physically, Wife “is an extremely slight woman . . . probably five two and 110 pounds at the max” and Husband “double that[.]”
The court also observed the parties’ behavior in the courtroom and concluded that Husband “is a very assertive person”; was “very strong in his answers” to his counsel and even corrected counsel on cross-examination “when he thought that counsel was wrong.” From its observations, the court concluded that Husband is “not a shrinking violet” – noting that on occasion the court observed “the anger in his face when he got angry at the way” Wife’s counsel asked him questions. The court also described Husband as “very strong- willed,” pointing out that he corrected the court interpreter, spoke to the law clerk about how play the videos, and had “no problem speaking out, speaking his mind, and taking charge.”
In discussing Wife, the court noted that it had “watched her on the stand” and “watched her demeanor” and “found her credible both in what she said and how she said it.” When discussing each of the videos submitted into evidence, the court observed that Husband’s recording of the incidents and his behavior during them was particularly “calm” and belied the
notion that he was scared or fearful of Wife. The court observed in the videos that Wife was often crying or hysterical and there was “fear in her voice” and “fear in her eyes.”
We decline to disturb the court’s credibility determinations, as, unlike this Court, it had the opportunity to both hear the testimony and observe the parties and it is “not our role, as an appellate court, to second-guess the trial judge’s assessment of a witness’s credibility.” Gizzo v. Gerstman, 245 Md. App. 168, 203 (2020). We also decline to reweigh the evidence before the court.
Husband Abuser and Wife Victim
Where, as here, both parties file a petition for a protective order, the court may issue “mutual protective orders” if it finds by a preponderance of the evidence that “mutual abuse” occurred. Fam. Law § 4-506(c)(3)(i). “Abuse,” for purposes of the domestic violence statute, is defined, in pertinent part, as “an act that causes serious bodily harm” or “an act that places a person eligible for relief in fear of imminent serious bodily harm[.]” Fam. Law § 4-501(b)(1)(i)–(ii). To issue mutual final protective orders, the court must “make[] detailed finding[s] of fact that: 1. Both parties acted primarily as aggressors; and 2. Neither party acted primarily in self-defense.” Fam. Law § 4-506(c)(3)(ii).
The court found by a preponderance of the evidence that Husband had abused Wife. The court found that Wife had a “special vulnerability and dependence” based on several factors, including her inability to speak English, unemployment, lack of family and friends in the United States, and her dependence on Husband. For reasons the court articulated, it concluded that the evidence did not support a finding that Wife abused Husband. The court found that the videos Husband submitted involved “constant calm videoing” on his part for significant lengths of time which the court concluded was “wholly inconsistent with someone who’s in fear of someone else.”
On appeal, Husband challenges the court’s findings and asserts that “critical video evidence . . . conclusively established [Wife] as the unprovoked aggressor in multiple violent assaults on [him].” He maintains that the “videos objectively depict [Wife] attacking [him] without justification, chasing him through the house, throwing objects at him, swinging scissors at him, and pushing him down the stairs as he tried to escape her rage.” In essence, Husband seems to argue that the court erred in finding that he abused Wife and/or erred in failing to find that Wife abused him.
Again, it is clear to us that the court carefully considered all the evidence before it (testimonial, photographic, and video) and was not persuaded that Wife was the primary aggressor based on, among other things, the calm, steady, and consistent manner in which Husband recorded the videos. The court also noted that, even where Wife appeared to throw something in Husband’s direction, Husband did not react but continued to calmly and steadily record her which the court concluded was inconsistent with someone who was in fear of imminent serious bodily harm.
Mindful of the Supreme Court’s opinion in Katsenelenbogen, supra, the court also considered Wife’s behavior in light of past incidents involving these parties and the imbalance of power in their
relationship. The court credited Wife’s testimony regarding the July 2022 incident involving the firearm and concluded that Wife was afraid of Husband. And of utmost significance, the court credited Wife’s testimony about the other incidents as well and found Husband’s testimony not credible. As our Supreme Court has stated, a trial court 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) (emphasis in the original).
In short, we are not convinced that the court’s findings that Wife suffered abuse and Husband did not were clearly erroneous or that the court abused its discretion in denying Husband’s petition for a protective order and granting Wife’s petition.
Wife’s Exclusive Use of the Marital Home
Husband challenges the provision in the final protective order which directed him to immediately vacate the marital home and prohibits him from entering the home during the one-year duration of the protective order. Claiming that he is the “sole legal owner” of the home and, therefore has a constitutionally protected property interest in it, he maintains that he was deprived of his property without due process. He asserts that he “did not receive any notice that the protective order could result in him being ordered to vacate a home that he solely owns, despite [Wife’s] name not being on the deed.”
“The core of due process is the right to notice and a meaningful opportunity to be heard.” Roberts v. Total Health Care, Inc., 349 Md. 499, 509 (1998) (cleaned up). Due process “is a flexible concept that calls for such procedural protection as a particular situation may demand.” Wagner v. Wagner, 109 Md. App. 1, 24 (1996). “Stated another way, due process merely assures reasonable procedural protections, appropriate to the fair determination of the particular issues presented in a given case.” Id. (emphasis in the original).
A protective order is not intended to punish the abuser, but is designed to prevent further harm to the victim. Coburn, 342 Md. at 252. “[O]nce a court has found from the evidence that abuse has occurred” and that a protective order is warranted, the court then focuses “on fashioning a remedy that is authorized under the statute and that will be most likely to provide that protection.” Katsenelenbogen, 365 Md. at 136-37.
The statute provides various remedies the court may order when granting a final protective order, including ordering the respondent to immediately vacate the home where the parties resided at the time of the abuse. Fam. Law § 4-506(d)(4). Before doing so, however, the court shall consider the following factors:
(1) the housing needs of any minor child living in the home;
(2) the duration of the relationship between the respondent and any person eligible for relief;
(3) title to the home;
(4) pendency and type of criminal charges against the respondent;
(5) the history and severity of abuse in the relationship between the respondent and any person eligible for relief;
(6) the existence of alternative housing for the respondent and any person eligible for relief; and
(7) the financial resources of the respondent and the
person eligible for relief. Fam. Law § 4-506(h).
Here, the court awarded Wife temporary custody of Child, as authorized by Fam. Law § 4-506(d)(7). The court also awarded Wife temporary exclusive use and possession of the home recognizing that Wife had no other place to live, was unemployed, was dependent financially on Husband, and had no family or relatives in the area. The court also determined that the home where the parties and Child had lived together was the best place for Child to reside. We are not persuaded that the court abused its discretion or that Husband was denied due process. Katsenelenbogen, 365 Md. at 137 (If the court, after considering the relevant factors, “believes that protection of the petitioner requires that the parties be physically separated and that the respondent vacate the home, it should not hesitate to
order that relief[.]”). Title ownership is but one of seven factors for the court to consider and the Legislature did not indicate that title to the home is to be weighted more heavily than any other factor.
Moreover, the court did not deprive Husband of his ownership interest in the home, but after a hearing temporarily awarded Wife exclusive use and possession of it. Finally, the terms of a protective order are certainly subject to modification by the court, either after notice and a hearing pursuant to Fam. Law § 4-507 or as part of the parties pending divorce litigation.
In sum, we are not persuaded that the circuit court erred or abused its discretion in granting Wife’s petition for a protective order and denying Husband’s or in the remedy it fashioned to protect Wife from further abuse.
JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Although represented by counsel in the circuit court, Mr. Karmanov is self- represented on appeal. Ms. Vysotina has not filed an appellee’s brief.
2 Husband phrased his questions as follows:
1. Did the trial court abuse its discretion in denying Appellant’s request for discovery, which would have allowed him to obtain exculpatory evidence to impeach Appellee’s claims and credibility, thereby depriving Appellant of a fair opportunity to present his defense?
2. Did the trial court err in failing to properly assess the credibility of Appellee in light of substantial impeachment evidence, including material inconsistencies in her accounts of the December 15, 2023 incident, admissions of being the initial aggressor, lack of corroborating evidence for her claims, physically impossible scenarios described in her testimony, attempts at blackmail, a demonstrated pattern of violence, and disregard for the court orders?
3. Did the trial court err by engaging in improper speculation, without evidentiary support, about hypothetical provocations in order to disregard video evidence that clearly showed Appellee as the unprovoked aggressor in multiple assault incidents, and then relying on this unsupported speculation to justify a finding of self-defense by Appellee, despite Appellee’s own statements not claiming it?
4. Did the trial court violate Appellant[’s] 14th
Amendment due process rights by depriving him of his property interest in the solely-owned family home through the protective order, without providing adequate procedural protections such as proper notice and a meaningful opportunity for Appellant to object before being deprived of his property rights?
3 Husband withdrew his first two complaints for divorce. His third complaint and Wife’s counter-complaint for absolute divorce are presently pending.
4 Husband testified that he sought the protective order on behalf of Child, as well as himself, based on concerns for Child’s safety because he claimed Wife “cannot control herself and she attacked [Husband] when [he] was taking care [of] the baby” and also “while she was holding the baby[.]” There was no evidence produced at the hearings that Wife abused Child. Nor were any arguments made to support such a claim.
5 Because one or the other party’s voice was sometimes “muffled,” the translation was not always complete. Given the difficulties, the court ultimately watched the videos without any translation.
6 The assault charges the parties filed against each other were ultimately nol prossed.
7 “Abuse,” for purposes of the domestic violence statute, is defined, in pertinent part, as “an act that causes serious bodily harm” or “an act that places a person eligible for relief in fear of imminent serious bodily harm[.]” Fam. Law § 4-501(b)(1)(i)–(ii).
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Anne Arundel County Circuit Court’s final protective order against Clarke and in favor of Gibson and their shared children. The trial court did not err when it found by a preponderance of the evidence that Clarke committed physical abuse against the children.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
the Petition of Protection filed by Ms. Gibson only alleged “threats of violence” and “mental injury of”
A.C. and O.C.
III. Whether the trial court erred when it admitted hearsay testimony from Ms. Gibson over objections from Mr. Clarke, and if so, whether the error was sufficiently prejudicial to warrant reversal.
IV. Whether the trial court erred in finding by a preponderance of the evidence that Mr. Clarke had abused A.C. and O.C.
For the following reasons, we affirm the judgment of the Circuit Court for Anne Arundel County.
Parties’ History
This appeal arises out of the issuance of a final protective order by the Circuit Court for Anne Arundel County against appellant, Philip Clarke (“Mr. Clarke”), and in favor of appellee, Chinyere Gibson (“Ms. Gibson”). In February 2024, Ms. Gibson filed a petition for a protective order against Mr. Clarke on behalf of herself and their shared children, “A.C.” and “O.C.,” asserting that Mr. Clarke committed “threats of violence” and “mental injury of a child” against A.C. and O.C. At the temporary protective order hearing, Ms. Gibson alleged that A.C. informed her that Mr. Clarke had recently threatened to punch A.C., punched the headboard next to her head, and punched a hole in the wall in her bedroom. Ms. Gibson further alleged that A.C. told her that Mr. Clarke had punched O.C. in the chest and threatened to throw O.C. into a wall. A temporary protective order was granted. At the final protective order hearing, Ms. Gibson testified that A.C. had told her that Mr. Clarke had punched O.C. in the chest. Mr. Clarke testified that he had never physically abused A.C. or O.C. Based on the evidence presented, the court determined that Mr. Clarke was not credible. The circuit court, therefore, granted a final protective order against Mr. Clarke, granting Ms. Gibson full custody of A.C. and O.C., and granting Mr. Clarke supervised visitation. This appeal followed.
Mr. Clarke presents four questions for our review, which we have recast and rephrased slightly as follows:1
I. Whether the trial court erred when it scheduled a final protective order hearing for 16 days after granting a temporary protective order to Ms. Gibson.
II. Whether the trial court erred by allowing Ms. Gibson to present evidence of physical abuse by Mr. Clarke when
BACKGROUND
Ms. Gibson and Mr. Clarke are parents to A.C., born in 2012, and O.C., born in 2014. Ms. Gibson and Mr. Clarke were married in 2013. On June 30, 2016, Mr. Clarke filed a Complaint for Limited Divorce. On February 9, 2017, the court issued a judgment of Absolute Divorce granting the parties joint legal and shared physical custody of A.C. and O.C. The court further ordered Mr. Clarke to pay $200.00 per month in addition to a child support obligation that had been established for A.C. in a previous case. On March 1, 2021, Mr. Clarke filed a Complaint for Modification of Custody, alleging, among other things, that Ms. Gibson had withheld A.C. and O.C. from Mr. Clarke; Ms. Gibson had placed A.C. and O.C. in dangerous situations; Ms. Gibson did not provide A.C. and O.C. with safe and stable housing; and A.C. and O.C. had missed many days of school and assignments while in Ms. Gibson’s care. The court entered a Temporary Consent Order Regarding Custodial Schedule on February 2, 2022, providing a one-week on/one-week off schedule and outlining other requirements of Ms. Gibson and Mr. Clarke. Following a modification hearing on May 23 and 24, 2022, the court issued a report and recommendation on September 14, 2022, and an order on October 12, 2022, granting Mr. Clarke primary physical and sole legal custody of A.C. and O.C., and granting Ms. Gibson visitation every other weekend. Petition for Protection and Temporary Protective Order Hearing
On February 7, 2024, Ms. Gibson filed a Petition for Protection from Child Abuse requesting relief for A.C. and O.C. from abuse by Mr. Clarke. In the petition, Ms. Gibson indicated that Mr. Clarke had committed “threats of violence” and “mental injury of a child” against A.C. and O.C. A Protection Order hearing was held that same day. At the hearing, Ms. Gibson testified that on February 2, 2024, she received a text message from A.C. stating that A.C. was “scared of her dad, she didn’t feel safe and that she
wanted to come home with [Ms. Gibson].” Ms. Gibson informed A.C. that Ms. Gibson would pick her up for scheduled visitation that evening. Ms. Gibson testified that A.C. told her that on January 31, 2024, Mr. Clarke had threatened to punch A.C., punched the headboard next to her head, and punched a hole in the wall in her bedroom. Ms. Gibson additionally testified that A.C. told her that on February 1, 2024, Mr. Clarke punched O.C. in the chest and threatened to throw O.C. into the wall.
The court granted Ms. Gibson’s request for a temporary protective order. The court found that there were reasonable grounds to believe that Mr. Clarke committed physical and mental abuse of a child. The court stated its reasoning for the finding of abuse, specifically that “on January 31, 2024, [Mr. Clarke] punched O.C. in the chest and threatened to throw her into the wall. And on February [1], 2024, [Mr. Clarke] threatened to punch A.C. and punched her headboard and punched a hole in the wall.” The court scheduled a final protective order hearing, stating it would “set a date for two weeks rather than one because [Child Protective Services] will be involved . . . and they’ll have to have a report. So that would be two weeks from today.” The court asked Ms. Gibson when she was available, and set the hearing for Friday, February 23, 2024. The court forwarded the temporary protective order to the Department of Social Services (“DSS”) and the Sheriff’s Office.
Final Protective Order Hearing
On February 23, 2024, the court held a hearing to determine whether to enter a final protective order against Mr. Clarke. Prior to arguments, the court gave the parties the opportunity to review the DSS report completed by the DSS worker, Donyell Brodie (“Ms. Brodie”). Ms. Gibson called Ms. Brodie as a witness and the following testimony ensued:
[MS. GIBSON]: Ms. Brodie, on page seven when you had -where it says that, “Mom tried to have conversation about the reason O.C. (phonetic) was crying, but he did not want to hear it. Prior to talking to mom, dad threatened to punch her in the chest on Thanksgiving Day 2023 before they went into the grocery store. As they were walking into the store, she was putting on her coat. He thought she wasn’t listening, so he punched O.C. in her chest. By the time they went in -- went with mom, she was sick and could barely walk. She stated that
O.C. has to have her jacket on with [layers] because she has asthma which cause her to get sick. When he punched her in her chest --
[COUNSEL FOR MR. CLARKE]: Objection, Your Honor. We just --
THE COURT: Yes.
[COUNSEL FOR MR. CLARKE]: (unintelligible) is there going to be a -- is there --
THE COURT: I was gonna wait until the end of the sentence to see if there was --
[COUNSEL FOR MR. CLARKE]: Okay.
THE COURT: -- going to be a question. [COUNSEL FOR MR. CLARKE]: Okay.
THE COURT: So, let’s hold on that. But go ahead.
[MS. GIBSON]: “When he punched her in the chest, she tried not to cry in an effort [not] to make a scene.” When O.C. stated that to you, what -- when O.C. stated that to you, did
she say what she was doing. Like, as far as, why her -- why did she think her dad punched her?
[MS. BRODIE]: No, only what you read here is – [MS. GIBSON]: Okay.
[MS. BRODIE]: -- what she shared.
[MS. GIBSON]: The reason I asked her that is – THE COURT: So –
MS. GIBSON: Okay.
THE COURT: -- you can’t testify. MS. GIBSON: Okay.
THE COURT: So, you have to ask questions of this worker.
Ms. Gibson asked no further questions of Ms. Brodie. Mr. Clarke declined to ask any questions of Ms. Brodie. The DSS report was marked for identification purposes but was not entered into evidence. Next, Ms. Gibson called her sister, Princess Nadia Agbeko, to testify. Ms. Agbeko testified that she was present on February 4, 2024 when A.C. and O.C. were returned to Mr. Clarke’s care. Ms. Agbeko testified that A.C. was frowning and that O.C. appeared scared. Ms. Gibson stated that she did not have any more witnesses, and Mr. Clarke moved to dismiss the action seeking a final protective order. Ms. Gibson then asked for the opportunity to present her evidence, and the court allowed her to testify.
Ms. Gibson testified regarding several phone calls on January 31, 2024, between 6:02 p.m. and 6:11 p.m., when she was attempting to contact A.C. and O.C. for their nightly phone calls allowed by the custody agreement. The phone calls were between Ms. Gibson’s cell phone and both A.C.’s and Mr. Clarke’s cell phones. Ms. Gibson testified that Mr. Clarke answered one of the calls to his cell phone, explaining that O.C. had messed up a spelling word and was being punished. Ms. Gibson testified that A.C. was crying and saying that she had gotten in trouble -- Mr. Clarke objected to this statement, and the court overruled the objection. Ms. Gibson testified that she texted Mr. Clarke stating that he was “mentally and verbally -- emotionally abusing the children,” to which Mr. Clarke responded with “laughing emojis.” Ms. Gibson continued, testifying that she called police to request a wellness check at 6:35 p.m., which was completed shortly thereafter, and A.C. went to cheerleading practice. Ms. Gibson testified that she received a text message from A.C. on February 2, 2024. Mr. Clarke objected when Ms. Gibson began testifying as to the contents of the message. Ms. Gibson then testified that A.C. wrote a letter to her as well, outlining what occurred “between January 31st and February 2nd of the incident of Philip Clarke being frustrated with the children.” The court sustained Mr. Clarke’s subsequent objection to the contents of the letter. Ms. Gibson then testified as follows:
[MS. GIBSON]: Philip Clarke had on January 31st as the phone call was interrupting, the -- there was -- had punched --
[COUNSEL FOR MR. CLARKE]: Objection.
THE COURT: Overruled.
[MS. GIBSON]: He had punched O.C. because she was crying. He had punched her as --
[COUNSEL FOR MR. CLARKE]: Objection. She’s saying that he did something. She was not present.
THE COURT: Well, that’s what I’m trying to get to. So, I can’t hear, like, I know that you’re, like, being, like, very -- you’re being an advocate and I get that, but she’s pro se. So, it’s different when someone -- the counsel asks a question --
[COUNSEL FOR MR. CLARKE]: Mm-hmm.
THE COURT: -- and I can, like, cut it off. But I have to let her go, so I can decide whether to consider it or disregard it.
[COUNSEL FOR MR. CLARKE]: Okay.
THE COURT: All right, go ahead.
[MS. GIBSON]: He had, because she was crying and upset that what was going on, he had punched her in her chest and her throat and yoked her up her up, stating that he would throw her in the wall if she did not stop crying.
[COUNSEL FOR MR. CLARKE]: Objection.
THE COURT: Overruled.
[MS. GIBSON]: If she did not stop crying. When the children were going to bed, as A.C. was sleeping, he was angry for some sort and --
THE COURT: Well, let me just stop you right there, just so I understand what the foundation --
[MS. GIBSON]: Mm-hmm.
THE COURT: How do you know this?
[MS. GIBSON]: From A.C. and O.C. Clarke.
THE COURT: Okay, and when did you get this information?
[MS. GIBSON]: I received this information on February the 2nd.
THE COURT: Okay, so is that at the same time that this is happening or a time after that?
[MS. GIBSON]: This was time after that. THE COURT: Okay, all right.
[MS. GIBSON]: I couldn’t get the -- what was going on because as I was -- as I started before, at -- when I tried to call, he did not want to -- I was asking him what was going on. He did not want to talk to me, so that’s why I text him because of what I was hearing on the phone to tell him that he was abusing them. And he just text back with laughing emojis.
THE COURT: Okay, understood. Okay, go ahead.
[COUNSEL FOR MR. CLARKE]: Your Honor, I would renew my objection and move to strike all the previous testimony as to what she supposedly learned about after the fact.
THE COURT: Okay, all right. So, I’m gonna sustain the objection. So, it’s important for me to understand is it something that you are hearing that the children are telling you, at what point in time? So, that’s part of it. So, for instance, is it something that when you said about the phone call, you made clear about that. That it was you were trying to call and couldn’t get through to the children or you spoke to the children, that information I want to hear. But if it’s after the fact, two days when they’re back in your custody, don’t -- I cannot hear --not that I don’t want to hear, but evidencewise, I can’t hear. If it’s at the same time it’s happening, I can hear that. Does that make sense?
Following Ms. Gibson’s testimony, Mr. Clarke moved to dismiss the action seeking a final protective order, stating that the original petition for protection identified “threats of violence” and “mental injury” as the reason for seeking a protection order. Mr. Clarke further sought dismissal because Ms. Gibson argued that A.C. and O.C. had been physically abused, but she had not presented sufficient evidence to grant a final protective order on the issues alleged in the petition for protection. The court denied the motion, stating that there was sufficient evidence
presented by Ms. Gibson to grant a final protective order. Mr. Clarke then testified in his own defense. Mr. Clarke testified that he punished A.C. on January 31, 2024, because she was being disruptive in class and disrespecting her teacher. As punishment, Mr. Clarke testified that A.C. was required to write a five-page paper. He further testified that he took her phone and threatened to take her off the cheerleading team. Mr. Clarke testified that O.C. was also punished, stating that he “used an open palm on O.C.’s backside and told her to stop yelling and screaming and throwing a tantrum and do what [Mr. Clarke] told her to do.” Mr. Clarke testified that he never punched, threatened violence against, or mentally abused A.C. or O.C.
Mr. Clarke’s fiancé, Kitoya Williams (“Ms. Williams”) then testified for the defense. Ms. Williams testified that on January 31, 2024, she observed A.C. and O.C. crying because they had been punished. Ms. Williams testified that she did not see Mr. Clarke threaten to abuse, physically assault, or punch either of the children. On cross- examination, Ms. Williams testified that on January 31, 2024, when A.C. and O.C. were crying, she was present and did not see Mr. Clarke hit the children at all. Neither A.C. nor
O.C. testified at the final protective order hearing.
After considering all testimony and evidence, the court made the following factual findings:
[T]he Court, after consideration of all of the evidence, the credibility of witnesses, finds that there is preponderance of the evidence to believe that the respondent committed the following acts of abuse. Assault in any degree and statutory abuse of a child physical, specifically punching O.C. in the chest.
The evidence was -- persuaded this Court. I know that there was testimony to the contrary as far as the respondent stating that -- denying that he hurt her in any way, but I just did not find his testimony credible at all. Particularly given when his fiancé’s testimony seemed to contradict his testimony and his attempt to minimize the physical touching. So, I did not find his testimony credible at all.
The court, therefore, issued a final protective order against Mr. Clarke. The court granted custody of A.C. and O.C. to Ms. Gibson and granted Mr. Clarke supervised access to the children. The order specified that Mr. Clarke committed physical abuse of a child by punching O.C. in the chest and ordered Mr. Clarke to surrender all firearms and attend anger management classes. Following the court’s order, Mr. Clarke reiterated that the petition for protection only alleged threats of violence and mental injury of a child and did not allege any physical abuse, and therefore, Mr. Clarke had not been given proper notice in violation of his procedural due process rights. The court disagreed, stating that Mr. Clarke would have received notice “when he was served with a temporary protective order where the findings of the Court indicated that [Mr. Clarke] punched O.C. in the chest and threatened to throw her into a wall. [Mr. Clarke] threatened to punch A.C. and punched her headboard and punched a hole in the wall. So, if you’re concerned about notice, that information was provided to [Mr. Clarke] when he was served with a temporary protective order.” Mr. Clarke then filed this timely appeal.
STANDARD OF REVIEW
A trial court may grant a final protective order once a petitioner has shown “by a preponderance of the evidence that the alleged abuse has occurred[.]” Md. Code (1984, 2019 Repl. Vol.) § 4-506(c)(1)(ii) of the Family Law Article (“FL”). “Abuse” includes “the physical or mental injury of a child under circumstances that indicate that the child’s health or welfare is harmed or at substantial risk of being harmed by[] a parent.” FL § 5- 701(b)(1)(i)(1). “If the court finds that the petitioner has met the burden, it may issue a protective order tailored to fit particular needs that the petitioner has demonstrated are necessary to provide relief from abuse.” Piper v. Layman, 125 Md. App. 745, 754 (1999) (quoting Ricker v. Ricker, 114 Md App. 583, 586 (1997)).
When we review a trial court’s grant of a final protective order, we accept the trial court’s findings of fact unless they are clearly erroneous. C.M. v. J.M., 258 Md. App. 40, 58 (2023). A trial court’s findings of fact are not clearly erroneous so long as they are supported by substantial evidence. Innerbichler v. Innerbichler, 132 Md. App. 207, 230 (2000). We defer to the trial court’s determination of credibility because it has “the opportunity to gauge and observe the witnesses’ behavior and testimony” throughout the proceedings. Barton v. Hirshberg, 137 Md. App. 1, 21 (2001) (quoting Ricker, 114 Md. App. at 592). The trial court is “entitled to accept – or reject – all, part, or none of the testimony of any witness.” Omayaka v. Omayaka, 417 Md. 643, 659 (2011) (emphasis in original). “It is ‘not our role, as an appellate court, to second-guess the trial judge’s assessment of a witness’s credibility.’” C.M., supra, 258 Md. App. at 58 (quoting Gizzo v. Gerstman, 245 Md. App. 168, 203 (2020)).
We consider the evidence produced at trial in the light most favorable to the prevailing party.I, 276 Md. 390, 392 (1975). “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, supra, 125 Md. App. at 754.
DISCUSSION
I. The trial court did not err when it scheduled a final protective order hearing for 16 days after it granted a temporary protective order to Ms. Gibson.
Mr. Clarke first contends that the trial court erred when it scheduled the final protective order hearing for February 23, 2024, 16 days after the temporary protective order hearing held on February 7, 2024. In support, Mr. Clarke cites FL § 4-506(b) (1)(ii), which provides: “Except as provided in § 4-505(c) of this subtitle, or unless continued for good cause, the final protective order hearing shall be held no later than 7 days after the temporary protective order is served on the respondent.” FL § 4-505(c)(1) further provides: “Except as otherwise provided in this subsection, the temporary protective order shall be effective for not more than 7 days after service of the order.” FL § 4-505(c)(2) provides: “The judge may extend the temporary protective order as needed, but not to exceed 6 months, to effectuate service of the order where necessary to provide protection or for other good cause.”
When the trial court granted Ms. Gibson’s request for a temporary restraining order, the court appeared to recognize the 7-day limitation, stating: “I’m going to set a date for two
weeks rather than one because [Child Protective Services] will be involved, the Department of Social Services, and they’ll have to have a report. So, that would be two weeks from today.” The court then proceeded to ask Ms. Gibson what day of the week she was available to ensure she was able to attend the final protective order hearing.
Mr. Clarke argues that the extension of the temporary restraining order to 16 days was in violation of FL § 4-505 and § 4-506 because the court did not state on the record good cause for exceeding the 7-day requirement. Mr. Clarke cites no case law defining what constitutes a “good cause” reason for extending a temporary protective order, and solely claims that the court’s determination that DSS would need additional time to complete its report did not amount to good cause. Mr. Clarke further maintains that the court needed to state on the record that it “knew DSS was running behind, [was] short staffed, or any other reason that it would need more time than [the] seven (7) day statutory period.”
There is no requirement in the Family Law Article that the court specify with particularity its reasoning for extending a temporary protective order. The court indicated that it was extending the order approximately one additional week because DSS needed time to complete an investigation and report as mandated by FL § 4-505(e). In our view, allowing DSS time to complete its investigation into an allegation of child abuse is more than sufficient for extending a temporary protective order to ensure children’s safety. It makes no difference how long the investigation ultimately took DSS to complete, only that the court believed that good cause existed to extend the temporary protective order in the interim. Therefore, we find no error with the trial court’s extension of the temporary protective order against Mr. Clarke for a total of 16 days.
II. The trial court did not err when it allowed Ms. Gibson to present evidence of physical abuse when the petition for protection filed only alleged “threats of violence” and “mental injury of” A.C. and O.C.
Mr. Clarke next contends that because the initial petition for protection filed by Ms. Gibson alleged “threats of violence” and “mental injury of a child,” Mr. Clarke had not been given notice which amounted to a violation of his procedural due process rights. Mr. Clarke, therefore, argues that allowing Ms. Gibson to allege physical abuse of O.C. was a violation of his due process right because he was only on notice of the non-physical abuse allegations noted in the petition.
In support, Mr. Clarke cites FL § 4-504(b)(1)(ii) which requires that the petition include:
1. the nature and extent of the abuse for which the relief is being sought, including information known to the petitioner concerning previous injury resulting from abuse by the respondent;
2. each previous action between the parties in any court; 3. each pending action between the parties in any court; 4. the whereabouts of the respondent, if known;
5. if financial relief is requested, information known to the petitioner regarding the financial resources of the respondent; and
6. in a case of alleged child abuse or alleged abuse of a vulnerable adult, the whereabouts of the child or vulnerable
adult and any other information relating to the abuse of the child or vulnerable adult.
Mr. Clarke maintains that it is “Petitioner’s pleading under oath that gives notice to the Respondent of what the allegations are and what relief is being requested.” Mr. Clarke continues, citing FL § 4-505, which provides: “If, after a hearing on a petition, whether ex parte or otherwise, a judge finds that there are reasonable grounds to believe that a person eligible for relief has been abused, the judge may enter a temporary protective order to protect any person eligible for relief from abuse.” FL § 4-505(a)(1). Mr. Clarke notes that FL § 4-505 lacks any provisions permitting the trial court to “add additional allegations” to the petition for protection; however, he also fails to recognize that FL § 4-505 does not prohibit the trial court from doing just that.
Notably, temporary protective order hearings provide petitioners with the opportunity to elaborate on the allegations outlined in their petitions for protective orders. Under Mr. Clarke’s interpretation, courts would no longer need to hold a hearing on a petition to determine whether to enter a temporary protective order because they would only be permitted to consider what was written on the protective order petition when filed. We decline to read FL § 4-505 to render a hearing on a petition for protection meaningless. The circuit court expressly noted that Mr. Clarke received notice when the temporary protective order was served on him, which included the allegations of physical abuse against O.C. and threats of violence against A.C. and O.C. If, following the hearing on the petition for protection, the court had determined that a temporary protective order was not warranted and therefore was not granted, Mr. Clarke would not have been served with any documents, and may never have known that a petition for protection had been filed at all. Without the temporary order of protection, which outlined the allegations of physical abuse against Mr. Clarke, he may not have seen the petition for protection. Thus, when Mr. Clarke was served with the temporary protective order, he was given notice of the allegations against him, even though they were not outlined with clarity in the petition for protection filed by Ms. Gibson. Therefore, the trial court did not err when it considered allegations of physical abuse, rather than only threats of violence and mental injury at the final protective order hearing.
III. The trial court did not admit into evidence the hearsay testimony of Ms. Gibson, and therefore, did not err in its evidentiary determination.
Mr. Clarke next contends that the trial court erred because it improperly admitted hearsay testimony by Ms. Gibson, and ultimately relied on that testimony in determining that Mr. Clarke had abused O.C. Mr. Clarke maintains that Ms. Gibson’s questioning of the DSS worker, Ms. Brodie, and Ms. Gibson’s own testimony are particularly problematic. Hearsay is defined as “a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Maryland Rule 5-801(c). Hearsay may only be admitted if it falls under a recognized exception. Bernadyn v. State, 390 Md. 1, 8 (2005).
Here, at the final protective order hearing, A.C. and O.C. did not testify; instead, Ms. Gibson attempted to testify as to what A.C. and O.C. allegedly told her regarding the abuse by their father. On multiple occasions, Ms. Gibson’s testimony
was cut off by the objection of Mr. Clarke’s counsel. First, Ms. Gibson called the DSS worker, Ms. Brodie, to testify. During questioning, Ms. Gibson began with a long-winded statement that included the allegation made by A.C. and O.C. Mr. Clarke objected, to which the court responded that it “was gonna wait until the end of the sentence to see if there was . . . going to be a question.” After Ms. Gibson finished her question, the court stated: “[Y]ou can’t testify,” and reminded Ms. Gibson that she was required to ask Ms. Brodie questions.
Later, during Ms. Gibson’s testimony, Ms. Gibson attempted to recount the events of January 31, 2024, as told to her by A.C. Mr. Clarke objected multiple times throughout Ms. Gibson’s testimony, arguing that Ms. Gibson could not testify regarding events she was not present for. The court overruled these objections, stating:
Well, that’s what I’m trying to get to. So, I can’t hear, like, I know that you’re, like, being, like, very -- you’re being an advocate and I get that, but she’s pro se. So, it’s different when someone -- the counsel asks a question -* * * -- and I can, like, cut it off. But I have to let her go, so I can decide whether to consider it or disregard it.
The court allowed Ms. Gibson to continue. Following Ms. Gibson’s testimony, Mr. Clarke renewed his objection, and moved to strike “all the previous testimony as to what she supposedly learned about after the fact.” The court responded, “So, I’m gonna sustain the objection,” and proceeded to remind Ms. Gibson that the court could only hear testimony regarding events she witnessed directly, such as her phone call with A.C. and O.C. on the evening of January 31, 2024.
The record reflects that the court ultimately sustained Mr. Clarke’s objections to Ms. Gibson’s hearsay testimony on both occasions. Although Mr. Clarke argues that it is unclear what the court decided regarding Mr. Clarke’s objection during Ms. Brodie’s testimony, we read this interaction, reminding Ms. Gibson that she could not testify, as disregarding Ms. Gibson’s lengthy question, thereby sustaining the objection. Furthermore, following Ms. Gibson’s direct testimony, the court clearly struck Ms. Gibson’s hearsay testimony when it stated that it would sustain the objection, referring to Mr. Clarke’s objection moving to strike all of Ms. Gibson’s previous testimony.
Although the court seemed to grant Ms. Gibson leeway in her questioning and testimony, the court indicated that this was because Ms. Gibson was proceeding pro se, and it emphasized that the court was able to distinguish what testimony it was permitted to consider when making its ruling. This is further reflected in the court’s findings, addressed below, which indicate that the court did not rely on any of Ms. Gibson’s testimony in making its ruling, and expressly noting that it did not find Mr. Clarke to be credible. Because the trial court did not admit and consider the hearsay testimony of Ms. Gibson, it therefore committed no error in its evidentiary ruling.
IV. The trial court did not err when it found by a preponderance of the evidence that Mr. Clarke committed physical abuse against A.C. and O.C.
Mr. Clarke argues that the trial court erred when it found that he had committed physical abuse against A.C. and O.C. because it relied on improperly admitted hearsay evidence. As noted above, the trial court did not admit hearsay testimony by Ms. Gibson and did not rely on hearsay testimony for its ruling.
The trial court found as follows:
All right, so I’ve had an opportunity to consider the evidence and also, which was highly significant for my determination, the credibility of witnesses.
So, after the appearance of the petitioner, the respondent, the respondent’s counsel; the Court makes the following findings that the person eligible for (unintelligible) is a individual related to the respondent by blood, marriage, or adoption; that the petitioner in the case of a . . . minor child is a relative; the Court, after consideration of all of the evidence, the credibility of witnesses, finds that there is preponderance of the evidence to believe that the respondent committed the following acts of abuse. Assault in any degree and statutory abuse of a child physical, specifically punching O.C. in the chest. The evidence was -- persuaded this Court. I know that there was testimony to the contrary as far as the respondent stating that -- denying that he hurt her in any
way, but I just did not find his testimony credible at all. Particularly given when his fiancé’s testimony seemed to contradict his testimony and his attempt to minimize the physical touching. So, I did not find his testimony credible at all.
The court based its finding of physical abuse of O.C. on Mr. Clarke’s own testimony which was contradicted by Ms. Williams’ testimony. The court explicitly stated that its finding was predicated on the fact that it did not find Mr. Clarke to be credible. As noted, we defer to the trial court’s credibility determinations because the court has had the opportunity to observe and assess witness behavior during proceedings. Barton, supra, 137 Md. App. at 21. “It is not our role, as an appellate court, to second-guess the trial judge’s assessment of a witness’s credibility.” C.M., supra, 258 Md. App. at 58 (internal quotations and citations omitted). Notably, the trial court did not find Mr. Clarke’s explanation of events to be credible, and discounted his testimony that he never punched, threatened violence against, or mentally abused A.C. or O.C. As a result, based on the trial court’s credibility determinations, there is sufficient evidence in the record to support the trial court’s finding, by a preponderance of the evidence, that Mr. Clarke had committed physical abuse against A.C. or O.C. Accordingly, the circuit court did not err by granting the final protective order against Mr. Clarke. We, therefore, affirm.
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Mr. Clarke presented the questions as follows:
A. Did the trial court err when it scheduled the hearing in the excess of seven (7) days without stating a good cause reason on the record?
B. Did the trial court err and violate Appellant’s due process rights when the Petition for Protection failed to plead any form of physical assault or child abuse?
C. Did the trial court err when it failed to sustain the objections of Appellant and admit inadmissible evidence?
D. Did the trial court err in finding abuse when there was insufficient evidence in the record?
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 06 MFLU Supp. 37 (2024)
Permanency plan; adoption; custody and guardianship
The Appellate Court affirmed the Baltimore City Circuit Court’s orders changing the permanency plan for one child from reunification with his mother to adoption by a non-relative or custody and guardianship, and changing the permanency plan for the other child from reunification with her mother to custody and guardianship by a relative. The record did not support mother’s contention that the juvenile court erred in finding that reasonable efforts at reunification were made. And there was ample evidence presented at the various hearings to support the juvenile court’s decision to change the children’s permanency plans.
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.
planning hearings. A consolidated contested review hearing was held before a magistrate over three days in May and June 2023. On 18 July 2023, the magistrate issued a proposed order in which he determined that “reunification with the parent is not in the child’s interests” and recommended that J.C.’s permanency plan be changed to adoption or guardianship by a non-relative, and D.J.’s permanency plan be changed to guardianship for relative placement. The magistrate recommended also that the juvenile court find that DSS made reasonable efforts to reunify the family. The magistrate’s order specifically provided, however, that:
a more comprehensive written report of this Magistrate’s proposed findings of fact, conclusions of law, recommendations and proposed orders with respect to today’s decision on this matter will be forthcoming.
This appeal arises from a decision of the Circuit Court for Baltimore City, sitting as a juvenile court, to change the permanency plans for two children, J.C., born in February 2021, and D.J., born in April 2022. The juvenile court changed the permanency plan for J.C. from reunification with his mother, D.D. (“Mother”), to adoption by a non-relative or custody and guardianship. Additionally, the court changed the permanency plan for D.J. from reunification with her Mother to custody and guardianship by a relative.1
On 2 September 2021, the Baltimore City Department of Social Services (“DSS”) placed J.C. in shelter care2 and, the following day, the juvenile court authorized J.C.’s continuation in shelter care. Before J.C.’s adjudicatory hearing was concluded, Mother gave birth to D.J. Shortly after her birth, DSS placed D.J. in shelter care and, subsequently, the juvenile court authorized her continuation in shelter care. Eventually, the juvenile court found each child to be a child in need of assistance (“CINA”).3 The court awarded custody of J.C. to DSS for placement in foster care and custody of D.J. to DSS for placement with a relative.
DSS recommended, shortly thereafter, changing the permanency plan of reunification for each child. At a 30 March 2023 status conference, DSS advised the court that it had filed a proposal to change D.J.’s permanency plan “from reunification to placement with a relative for custody and guardianship.” The juvenile court consolidated the children’s contested permanency
Notwithstanding the fact that the magistrate’s order was neither complete nor final, nine days later, on 27 July 2023, the juvenile court judge adopted it. On 23 August 2023, Mother filed a notice of appeal. Seven months after the magistrate filed his initial order, he issued another order that included “a memorandum explaining the bases for the court’s [18 July 2023] decision” and findings of fact that included consideration of factors required by § 5-525(f)(1) of the Family Law Article (“FL”) of the Maryland Code. On 7 March 2024, the juvenile court adopted the magistrate’s proposed factual findings and order. No exceptions or an additional notice of appeal were filed. As explained below, at that point, the appeal from the initial order of the juvenile court was stayed.
Proceedings in the Appellate Court of Maryland
On 15 December 2023, Mother filed an unopposed motion to stay the appeal based on the fact that DSS had filed a petition to terminate Mother’s parental rights to J.C. and, if that petition was granted, the issues in the instant appeal regarding changes to the permanency plan might become moot. We granted Mother’s motion and stayed the appeal pending a further order. Mother’s counsel was ordered to update this Court as to the status of the termination of parental rights (“TPR”) proceedings in the juvenile court. On 8 February 2024, Mother’s counsel filed an unopposed motion to continue the stay and advised this Court that, among other things, the trial on the petition to terminate Mother’s parental rights had been postponed to 25-27 June 2024. We granted the motion, continued the stay, and ordered Mother’s counsel to provide updates regarding the status of the TPR proceedings in the juvenile court. On 1 April 2024, Mother’s counsel filed an unopposed motion to lift the stay. Counsel advised this Court that trial on a petition to terminate Mother’s parental rights to J.C. was still scheduled to take place on 25-
27 June 2024, and that trial on a petition to terminate Mother’s parental rights to D.J. had not been scheduled yet. Counsel requested that the stay be lifted “[d]ue to the continued delay in adjudicating the TPR petitions, which will not be resolved for at least three months[.]” We granted that motion and lifted the stay.
QUESTIONS PRESENTED
Mother presents the following questions for our consideration:
I. Did the [juvenile] court err as a matter of law when it ordered the children’s permanency plans changed away from reunification in July 2023 based on a magistrate recommendation that included no proposed factual findings whatsoever?
II. Does the lack of exceptions limit the scope of mother’s appeal, and if so, did mother receive ineffective assistance of counsel?
III. Did the [juvenile] court err in finding, and did DSS fail to prove, that DSS made reasonable efforts to reunify [M] other and her children, especially considering DSS’s position that [M]other is cognitively limited with significant mental health issues?
IV. Did the [juvenile] court err in changing the children’s plans away from reunification during the very first postdisposition review hearing[]?
For the reasons explained below, we shall affirm the decision of the juvenile court to change the permanency plans for each child.
BACKGROUND
A. Mother’s History
Mother has a long history of involvement with DSS. In addition to the two children who are the subject of this appeal, she has three older children: I.C., born in January 2017, and twins, D.D.B. and K.D.B., born in December 2018. At the time of the twins’ birth, Mother disclosed to hospital staff that she had smoked marijuana during her pregnancy. Neither Mother nor either of the twins tested positive for any illicit drugs on the day the twins were born, but hospital staff expressed concerns about discharging the twins to Mother’s sole custody. Mother had been diagnosed with bipolar disorder and attention deficit hyperactivity disorder (“ADHD”), but was not participating in mental health treatment. Mother acknowledged that, as a teenager, she had been hospitalized at Sheppard Pratt for psychiatric treatment, and that she had not had mental health treatment since she was seventeen years old.
DSS filed CINA petitions for all three of the older children. Before the twins were discharged from the hospital, the juvenile court granted an order of shelter care for the three children and they were placed in foster homes. In the order granting shelter care, the juvenile court noted that DSS received three prior reports against Mother, including reports for medical neglect resulting from untreated “bed bites,” leaving the oldest child unattended in a car, and leaving the oldest child in the care of an adult who walked away from caring for the child. DSS entered safety plans with Mother with regard to the claim of medical neglect (which was ruled out ultimately) and for leaving the child unattended in a car. At the time the adjudication order was issued on 8 April 2019, Mother was homeless and lacked
therefore appropriate housing for the children. On 23 April 2019, Mother was hit by a car. Following that accident, she reported that she was unable to care for herself and was living in a medical shelter.
The juvenile court issued a disposition order for the three children on 20 June 2019. The parties stipulated to certain facts and the proposed disposition. The juvenile court found the children to be CINAs and committed them to the custody of DSS. Among other things, the court found that Mother signed a service agreement pursuant to which she agreed to comply with “her mental health regimen and take medication if prescribed[.]” Mother agreed also to “identify housing,” “maintain visitation,” and provide confirmation of her intended visits with the children twenty-four hours in advance of each visit.
On 1 December 2019, while still in the medical shelter, Mother obtained prospectively, from the Baltimore City Mayor’s Office of Homeless Services Coordinated Access Program, a threebedroom supportive housing apartment through Dayspring Programs, Inc. (“Dayspring”). In March 2020, Mother met with Dayspring’s clinical director for a twenty-five-minute therapy session. Three other therapy appointments were set for the month of March, but Mother failed to keep those appointments. The clinical director noted that Mother appeared “to have problems with impulsivity and/or cognitive skills as evidenced by her not adhering to program guidelines and becoming verbally combative.” Mother committed multiple violations for failing to pay her rent on time, was not at home for scheduled visits, missed team meetings, was disrespectful to clients and staff, and yelled and cursed. On one occasion, the police had to be called when she fought with another client.
According to Tonia Matthews, Mother’s case manager at Dayspring, Mother failed to begin parenting classes, anger management class, or seek employment until the children’s court date approached, but she did complete ultimately parenting and anger management classes. Matthews did not notice, however, any change in Mother’s behavior after she completed the parenting and anger management classes. Matthews spoke to Mother about her behavior toward clients and staff, but her conduct did not improve. Mother disclosed to Matthews that she had been diagnosed with bipolar disorder, ADHD, and posttraumatic stress disorder (“PTSD”). Mother said she did not need therapy, felt it did not help, and refused to attend therapy. In January 2021, however, Mother told Matthews that she was not mentally well, but needed a therapist, which was arranged. Mother began therapy on 18 January 2021.
In February 2021, Mother gave birth to J.C. Mother tested positive for marijuana three days before J.C.’s birth and at the time of his birth. Matthews recommended that Mother and J.C. be moved to a smaller home in another program. While at Dayspring, Mother had a three-bedroom apartment because the plan was reunification with her three children, but after a year, her children still did not reside with her. Mother left Dayspring on 11 June 2021, and moved to a smaller home on North Curley Street through the efforts of Promise Housing, an agency that houses homeless individuals. According to Matthews, when Mother moved out of her Dayspring-provided apartment, it was cluttered and horribly dirty, food was left in the refrigerator, and dead bugs were throughout the home.
B. J.C.’s Removal From Mother’s Care
On 2 September 2021, DSS worker Monica Johnson was instructed to go to Mother’s home on North Curley Street and retrieve J.C. because there had been a report alleging that Mother, who “had severe mental illness,” had a gun in the house, left the child unattended, smoked marijuana, and kept her house in poor condition. Because of the allegation that there was a gun in the house, Johnson was accompanied to Mother’s home by Baltimore City police officers. An officer knocked on the door and Mother responded by pretending to be a family member and saying that the child’s mother was at Lexington Market. Mother provided also a phone number. When Johnson dialed the number she heard a phone ring inside Mother’s home. An officer looked through a window and saw a baby on a couch. Mother asked repeatedly for Johnson and the police to display a warrant to enter her home.
After about thirty minutes, Mother acknowledged her true identity, but refused still to open the door. Police “cleared the block” and told Mother they would have to use force to enter because of the alleged gun in the house. Two neighbors tried, unsuccessfully, to convince Mother to open the door and give them the baby. Eventually, Mother’s grandmother arrived and Mother opened the door. When Johnson entered the house, she observed a man, later identified as Mother’s brother, who departed immediately. Johnson observed trash, dirty dishes, cat feces, and a kitten, and reported a “foul smell” in the house that she believed could have been marijuana. She did not observe a gun. Mother denied that there was a gun in the house. Johnson observed J.C. on the sofa and was concerned because he could have rolled off or smothered himself. Mother picked up J.C. and held him tight, but turned him over ultimately to an officer. Mother “changed her voice several times” and stated that she had some mental health issues, but was in treatment. She did not provide, however, the name of the place that was providing her treatment, her provider’s phone number, or any documentation to show she was receiving treatment. Mother was unable also to provide any information about J.C.’s wellness visits or his healthcare provider. Johnson reported that Mother behaved erratically, vacillating between screaming, crying, and being calm. Although her behavior did not rise to the level of requiring a call for an ambulance, Johnson believed Mother was having a mental health crisis and did not feel comfortable leaving J.C. in her care.
J.C. was placed with a foster family on 2 September 2021. The juvenile court authorized his continuation in shelter care. His adjudicatory hearing did not conclude until the following year, on 1 September 2022. Initially, there were issues regarding Mother’s visitation with J.C. Mother claimed that from 3 September to 12 October 2021, she did not have any visits with J.C. She maintained that she had difficulty with transportation and communication, and that it was difficult for her to confirm visits twenty-four hours in advance. She requested unsupervised visits in her home until a hearing could be held on any need for continued shelter care. The magistrate denied that request and determined that “the failure to have these visits is not because of obstacles that are being thrown in the way by the Department of Social Services.” According to the magistrate, it was Mother who was “not taking advantage of the resources that are being
made available to her.” Thereafter, Mother attended weekly supervised visits with J.C. She continued to reside in the home on North Curley Street that was provided through Promise Housing.
D.J. Enters Care
In April 2022, Mother gave birth to a daughter, D.J. At the time of D.J.’s birth, both she and Mother tested positive for marijuana. D.J. did not require medical intervention. Hospital records showed that on 11 April 2022, Mother was walking around the hospital carrying D.J. When it was explained to her that, for safety reasons, the baby should be transported in a bassinet, Mother responded that D.J. was her baby and “you can’t tell me what to do.” On the same day, D.J.’s father, M.J., was observed on two occasions punching a wall after he was told that the baby could not go home with him.
In response to a report for a substance-exposed newborn, Ebony Covert, a family preservation case worker from DSS, met with Mother and M.J. to discuss their ability to care for the child. Mother reported that she lived alone in her home on North Curley Street.
M.J. refused to provide his address. He and Mother explained later that M.J. was living in Mother’s home even though he was not on the lease. Mother identified D.S., whom she claimed was her sister, as a person who could supervise Mother as she cared for D.J. DSS developed a safety plan with D.S.
On 13 April 2022, DSS granted M.J.’s request to take D.J. to a doctor’s appointment and then return her to D.S.’s home. M.J. failed to return D.J. to D.S.’s house. When contacted by D.S. and a DSS worker, he said that “no one was going to find his baby.” The following day, the baby was found with M.J. and Mother at Mother’s home. DSS reported that Mother and M.J. refused to allow a case worker access to the child. The worker described their behavior as hostile. DSS issued an emergency shelter care authorization and D.J. was placed in shelter care with D.S. Five days later, the juvenile court authorized D.J.’s continued placement in shelter care.
On 22 April 2022, DSS case worker Marsha Towson was assigned to D.J.’s case. Mother admitted that D.S. was not her sister and advised Towson that she and D.S. were not getting along and had disputes about the way things were being done with regard to D.J. At the request of both parents, on 4 May 2022, D.J. was placed with M.J.’s cousin, S.A. S.A. did not have a good relationship with Mother either, describing her as having “a really bad temper” and always being “disrespectful.” S.A. reported situations when M.J. smelled of alcohol or had alcohol with him when he visited D.J. S.A. believed that M.J. needed parenting classes because he did not know how to provide basic care for D.J. In June 2022, M.J. entered a substance abuse treatment program.
Towson noted that both parents had quick tempers. On one occasion, Mother put her hands on M.J. while they were in a vehicle. On 22 June 2022, Mother got into an altercation, was arrested, and charged with affray. After pleading guilty, she was incarcerated until her release on 5 January 2023. While incarcerated, Mother lost her housing. During the six months she was incarcerated, Mother had telephone contact, but, understandably, no in-person visits with either J.C. or D.J. CINA DETERMINATION FOR J.C.
A number of hearings were held in J.C.’s contested CINA proceeding. The testimony included the following:4 At a hearing on 31 March 2022, Mother’s brother testified that he was present in Mother’s house when DSS removed J.C. from the home. He described the home as “decent” and said there was nothing wrong with it. Mother’s aunt, M.F., visited Mother’s home on the day that J.C. was removed and described it as “very decent.” There were dishes in the sink and Mother had a cat, but the house was clean. She visited Mother in the home once a week and never observed deplorable conditions, roaches, or rats.
At a hearing on 20 April 2022, Mother testified that she saw a therapist twice a week while at Dayspring and more for emergencies. She completed anger management classes and learned to use coping skills instead of acting impulsively. She claimed that she moved from Dayspring because she was dealing with “some little issues with residents,” and because her child was young and she felt they should move. She was last prescribed psychotropic medications in 2015 when, as a teenager, she was at Sheppard Pratt.
Mother denied ever leaving J.C. alone at home. On 2 September 2021, the day J.C. was removed, he was on the couch with her brother while she was upstairs getting dressed to go to a visit with her other children. She denied that her house was in disarray or that there were cat feces on the floor. She acknowledged that she had a cat, but said that it used cat litter that was on the floor in the basement.
When Mother was receiving therapeutic services at Dayspring, she was diagnosed with bipolar disorder and ADHD, but was not taking medications. Mother stated that, with her bipolar disorder, her emotions go up and down and sometimes she has a “tendency to get a little upset.” She claimed to use coping skills to control herself and learned to walk away when she is upset. At the time J.C. was removed on 2 September 2021, she did not have mental health services because she had just moved and was waiting for a referral. After receiving the referral, Mother called the provider, but asserted she did not receive a return call. Mother stated she found, on her own, a new therapist, Shae Gorham,5 from Solid Ground Wellness. She had been seeing Gorham roughly two or three times a week for over a year. That time frame conflicted, however, with Mother’s acknowledgment that she was not receiving therapy from Gorham while she was at Dayspring.
At a hearing on 9 August 2022, Mother testified (via Zoom) from the facility where she was incarcerated after having pleaded guilty to affray. She was cross-examined about the two mental health diagnoses of ADHD and bipolar disorder. After Mother stated that she did not believe that she had a disability, the following exchange occurred:
[Counsel for DSS:] You don’t believe that you have bipolar disorder?
[Mother:] I don’t believe it. I – I seriously don’t believe it. I’m not on medication. I talk to a therapist. I’m able to communicate and express my feelings and how I feel. I’m a – I feel as though I’m a regular human being who has the same feelings as everybody else.
Q. Ms. [D.], why do you think you were diagnosed with bipolar disorder?
A. Because I was forced to be in Sheppard Pratt. I was forced
to deal with these things when I was younger.
Q. Isn’t it true that you have occasions where your temper gets the better of you and your behavior is pretty explosive?
A. No, that’s not true.
Q. Isn’t it true that you’ve gotten in a lot of fights with other people including residents at Dayspring and people that –
A. No, that’s not true.
Q. – you interact with in the community?
A. That’s not true.
Q. So is it your testimony that you don’t experience any symptoms of – any mental health symptoms?
A. At this time I don’t believe that I have a mental health problem at all. I don’t believe it.
Q. Ms. [D.], you testified that you moved from Dayspring because you were dealing with little issues with the other residents. What were those issues?
A. One; this – that – that question has nothing to do with my kids, but I will answer it. The reason why is because they were making noises over top of my head and at that time I was pregnant with [J.C.] I was not getting any sleep. But I did calmly ask these people to please with the noise.
Q. Isn’t it true that you had a fight with another resident at Dayspring –
A. No, ma’am.
Q. – outside of the facility?
A. No, ma’am.
Q. Isn’t it true that the police came?
A. That’s true.
Q. Why did the police come?
A. That I can’t even answer. They were called. People called them. They seen us arguing.
Q. Arguing?
A. Arguing.
On 1 September 2022, the magistrate issued proposed findings of fact and an adjudicatory order that the juvenile court adopted. After sustaining various facts alleged by DSS, the court found that:
Mother’s history with Baltimore City Department of Social Services, Baltimore County Department of Social Services, and her various providers clearly demonstrates a pattern of failing to comply with the services needed to ensure her ability to safely parent the respondent, and an ongoing pattern of mood instability, housing instability, and housing conditions that fail to meet basic health and safety standards. The court found also that DSS had made reasonable efforts to prevent the removal of J.C. from his home.
An uncontested disposition hearing for J.C. was held on 18 January 2023, less than two weeks after Mother had been released from incarceration. At that time, Mother had lost her housing through Promise Housing, was homeless, and was living temporarily with a relative. The juvenile court found J.C. to be a CINA and awarded custody to DSS.
CINA DETERMINATION FOR D.J.
After several contested hearings, the parties stipulated to certain adjudicatory facts alleged in D.J.’s CINA petition. The parties agreed that D.J. should remain with S.A. pending a contested disposition hearing. Ultimately, the disposition
hearing on 3 February 2023 was not contested. The court determined that M.J. did not have independent housing, had not maintained contact with DSS or entered into a service agreement, and was not currently in a position to care for D.J. Mother had been released on supervised probation on 5 January 2023, had lost her housing, was living temporarily with a relative, and was working to get her benefits restored. The juvenile court found D.J. to be a CINA and awarded custody to DSS for relative placement with S.A.
CHANGE IN PERMANENCY PLANS
At a hearing on 30 March 2023, counsel advised that DSS was proposing to change the permanency plans away from reunification. M.J. was not at the hearing, but was represented by counsel. At that time, Mother was living in a shelter. The juvenile court consolidated D.J.’s case with J.C.’s case. A contested permanency planning hearing was held before a magistrate on 16 and 17 May and 13 June 2023.
D.J.’s father, M.J., was not at the hearing on 16 May 2023, but his attorney appeared and advised the juvenile court that he did not “have representation.” Mother, who was still living in a shelter, did not have any contact information for M.J. DSS requested that the juvenile court change J.C.’s permanency plan from reunification to placement with a non- relative for either custody and guardianship or adoption. It asked also that D.J.’s permanency plan be changed from reunification to placement with a relative for adoption and/or custody and guardianship. At the time of the hearing, J.C. had been in foster care for nineteen or twenty months and D.J. had been in care for a little more than a year. DSS asserted that Mother had not made progress toward reunification, and counsel for the children requested a change in the permanency plans for both children because of their time in care and Mother’s lack of progress toward reunification.
Karen Jennings, a DSS case manager for out-of-home placement, testified that J.C. was in foster care, that he was a “very bright little boy,” he attended daycare, had his own bedroom, was doing well, was happy and well-adjusted, and all of his basic and medical needs were being taken care of by his foster family. Jennings visited J.C. on a monthly basis and transported him for visits with Mother and his siblings. J.C.’s foster parents reported that J.C. returns from visits with Mother “juiced up on sweets” and not paying attention, and that it was hard for him to settle down.
Jennings testified that Mother had visits with all five of her children every Tuesday for an hour and a half at a visitation center. DSS workers observed the visits from an observation window. According to Jennings, there was not much conversation or engagement between Mother and the children. In three out of four visits, Mom got on her cellphone, but she allowed the children to talk to the person on the phone. Mother arrived generally at the visits with a box of snacks such as cheese curls, cakes, cookies, and juices for the children. In the visits prior to the hearing, after handing out the snacks, Mother focused on caring for J.C.’s hair. J.C. has a lot of hair and she made it known to J.C.’s foster parents that she did not want his hair to be cut. J.C. sat in Mother’s lap eating his snacks while the other children ran around and played. Mother did not say much to J.C.
and did not engage with the other children. On occasion, DSS workers had to bang on the glass of the observation window to notify Mother that something was going on in the room that required her attention. On one visit, J.C. seemed upset and cried about having his hair combed. Jennings went to ask Mother to give J.C. a reprieve because he was getting very upset. Mother became angry, “went from 1 to 100,” began screaming that J.C. was fine, and continued to comb his hair.
When asked about barriers to reunification, Jennings said that, except for attending visits with the children, she did not have anything to show that Mother was working towards reunification and that recently she was unable “to get anything from” Mother. Mother was homeless and Jennings did not know who Mother was seeing for therapy. Mother never provided a signed consent form to allow DSS to obtain information about her mental health provider, her diagnosis, or her compliance with treatment. When Jennings asked for information, Mother told her to speak to her attorney. Jennings sent a service plan and a consent for release of information to Mother’s attorney, but got nothing back. With respect to marijuana use, Jennings stated that she was concerned that Mother was using it to selfmedicate. Jennings sent several notices to addresses provided for D.Sm., one of the men identified by Mother as J.C.’s father, but did not get a response.
Marsha Towson was assigned to be D.J.’s case manager in April 2022. When D.J. first entered care, she was placed with fictive kin,6 D.S., but that only lasted about a week because of conflicts between D.S. and Mother. D.J. was placed next with her father’s cousin, S.A., with whom she has resided since May 2022. Towson visited D.J. weekly and conducted monthly home visits. She stated that D.J. was meeting her milestones and doing well. D.J. was bonded to S.A., had started walking, and had visits with her paternal grandmother. When D.J. first entered care, Mother and M.J. visited her every Monday, but those visits ended when Mother was incarcerated and M.J. ceased visiting. On one occasion, in about March 2023, M.J. appeared unexpectedly at the visitation center. He appeared to be intoxicated as he walked across the room and picked up D.J. from her high chair. Towson ran into the room and asked Mother to take D.J. from M.J., which she did. M.J. called Towson names. Towson called security and asked that M.J. be removed because he appeared to be intoxicated. That was the last time Towson saw him. The phone number Towson had for M.J. was disconnected and M.J. had not been in contact with DSS. Towson asked S.A. if she had heard from M.J. She had not.
Like Jennings, Towson testified that Mother visited with all five of her children on Tuesdays and that she brought them a box of snacks. After distributing the snacks, Mother combed the hair of one child while the three oldest children played and D.J., who recently started walking, walked around the room. On one occasion, D.J. fell and got a bump on her head. Towson got some ice, but when she entered the room and asked Mother to check on D.J., Mother responded that the child was “fine” and said, “you know, kids fall and bump their head.” According to Towson, Mother was not receptive to advice and there was always push back.
When Mother was released from incarceration, she told Towson she was receiving therapeutic services, but did not
provide any documentation. Towson provided Mother with a referral for mental health care, but when the provider reached out to Mother, she told them she was in therapy already someplace else. Mother never informed DSS where she was receiving services or the name of her therapist. Mother did not want to speak about service agreements and always told Towson to send paperwork to her attorney.
In about April 2023, S.A. told Towson that she had to block calls from Mother because she was being disrespectful. S.A. told Mother that, if she had issues, she would have to contact a DSS worker. Mother was upset because she wanted to cook food for D.J.’s birthday party, but S.A. declined that offer. Mother called S.A. late at night and was disrespectful. S.A. blocked her calls on several occasions.
According to Towson, the primary barriers to reunification were that Mother failed to provide any documentation of her mental health treatment, was living in a shelter and lacked housing for the children, and failed to provide a substance abuse evaluation. There was no documentation that Mother had been in therapy since D.J.’s birth. Towson was the case worker for Mother’s three oldest children and was aware that, at one time, Mother was using marijuana to self-medicate. Mother said she had a medical marijuana card, but did not provide a copy of it to DSS.
D.J. was placed in the care of her father’s cousin, S.A., on 4 May 2022. They lived together in S.A.’s house with S.A.’s teenage son. D.J.’s paternal grandmother and great- grandmother visited every weekend and other relatives visited regularly. D.J.’s father, M.J., was visiting early on, but S.A. had not seen him since Christmas 2022. S.A. did not have M.J.’s contact information, but explained that he had been arrested a few months before the 17 May 2023 hearing. Initially, S.A. allowed Mother and M.J. to visit D.J. at her house, but on one occasion, Mother became upset after S.A. told her the baby was being held too tightly. After that, S.A. told Mother she had to go through DSS for visits because S.A. did not want any trouble. S.A. sometimes made video calls to Mother so she could see D.J. Mother called and texted S.A. Sometimes Mother would get upset and would be disrespectful to S.A. and start “hooping and hollering,” so S.A. hung up on her a few times. Mother called and harassed S.A. about D.J.’s birthday party because she wanted to make food for the event, but S.A. had made already arrangements for the food. Mother responded, “how you going to f-ing tell me what I can do for my daughter?” Thereafter, Mother threatened S.A. and D.J.’s grandmother. S.A. described Mother as having “a real bad temper.” As a result, Mother did not get to attend D.J.’s birthday party. S.A. testified that she was willing to adopt D.J. J.C. was placed with foster parent J.S. and his wife on 2 September 2021. They lived in a townhouse where J.C. had his own bedroom. J.S. and his wife worked, and J.C. attended an early learning center. J.S.’s sister, who lived nearby, had a twoyear-old son who got along with J.C. J.S.’s parents and his wife’s parents lived nearby, and they saw them on the weekends. J.S. was aware that Mother did not want J.C.’s hair to be cut. He and his wife respected those wishes. J.S. was aware that Mother braided J.C.’s hair at visits. J.S. attended a course offered to foster parents to learn how to braid hair. J.S. testified that he and his wife would enjoy
being J.C.’s permanent, long-term parents. He had no objection to maintaining contact with J.C.’s siblings and had a couple of outings and Zoom calls with them. He was willing also to attend a mediation session with Mother to discuss contact if he was to be given custody of or adopt J.C.
At the hearing on 17 May 2023, Mother testified that D.Sm. is J.C.’s father. She supplied his date of birth, but did not know where he was residing and did not have a useable phone number for him. She does not contact him and does not know any of his family or friends who might be able to contact him. After Mother was released from incarceration on 5 January 2023, she stayed with an aunt. In the middle of March 2023, Mother decided that she no longer wished to live with her aunt because she did not “want to live under people . . . [she] want[ed] [her] own house with [her] own kids.” At the time of the hearings on 17 May 2023, Mother lived in a shelter. She was working to obtain a threebedroom house for her and her children from a program run by the Mayor’s office. As for employment, Mother wanted to be a chef and was “thinking about opening [her] own business.”
Mother said that she had been “in and out of mental health treatment” since August 2022 because she moved and had to find a new therapist. In 2022, she saw a therapist named “Dalia” and also saw “Shae Gorham” through “Wellness.” She also had a therapist while in a “Mommy Baby’s” program. She said DSS had information about “Shae Gorham” who she saw at least four, maybe five times. Mother stopped seeing Gorham because she said that she “couldn’t help [Mother] or come to court when it was time to testify, and [Mother] felt as though that was a huge factor . . . in the court case.” Mother testified that she did not see a therapist after Gorham, but was trying to get another referral from her drug treatment program. Mother stated also that, “almost two months” before the 17 May 2023 hearing, she started seeing a therapist named Derrick Henson, who she met with via phone twice a week for thirty to forty minutes. She told Henson that she sought therapy because she “was currently trying to get [her] kids back and that DSS has been pressuring [her] about medication.” Mother testified that it had “been a few years” since she was in a drug program called “Interfaith Academy” on North Avenue, but she did it for “over two years.” She claimed she did the drug program because DSS said she needed to do it, but she denied having a drug problem.
Mother described how therapy helped her with coping skills. She acknowledged that DSS workers tried to “redirect” her sometimes “and it really frustrates” her so the therapist suggested she count to ten. Mother also acknowledged that she got upset when, on one occasion, S.A. suggested that some food Mother gave to D.J. made the child sick. Mother sent a text message to S.A. saying that she was going to continue to give D.J. cheese curls and juice. Mother checks in with S.A. to see how D.J. is doing “at least maybe once a day or once every other day.”
The hearing was continued to 13 June 2023. At the time of that hearing, Mother was still living at the shelter and awaiting housing from the program run by the Mayor’s office. Mother said that, for the past four months, she had been seeing a therapist one or two times a week, on Tuesdays and Thursdays, although she visited with her children on Tuesdays. She worked with her therapist on coping skills and when to use them.
Mother stated that she was employed at a corner store called “Mama Ella’s” on North Avenue. She started working on Sunday, 11 June 2023, and said she worked from 8:30 a.m. to 10 p.m. cooking, cleaning, taking orders, and serving. When asked how much she was being paid, Mother said, “I pretty much just say I get paid by the hour,” and “I want to say approximately $26 to $30 maybe an hour. Something like that.” When asked why she did not know specifically how much she was being paid, Mother said that she had just started the job, that she had not really spoken to her boss about it, and that she wanted “to say roughly I should be making about $300 per week.” Mama Ella’s was open seven days a week, and Mother’s plan was to work eleven and a half hours a day, six days a week, but she told her boss she would not work on Tuesdays. Mother also said that “if people don’t come, I don’t get paid. If people come, I get paid.” Mother said that she had obtained a food handler’s certificate and planned to use it to open her own business. For the past two years, she had been working on starting her business. She filled out applications to start “LLCs” and was working on getting money to pay for them. She had been looking also for a place to buy from which she could run her business. She intended to sell seafood bowls and operate “a soul food buffet.”
With regard to visits with the children, Mother said she had a “misunderstanding” with Towson when, during a visit at the visitation center, D.J. opened a cabinet. Mother viewed it as a safety issue and told Towson “I could sue y’all because that’s a safety issue for my child.” Mother put a chair in front of the cabinet and redirected D.J. Mother stated her desire for J.C.’s foster parents to not cut his hair and to take him to a shop to have his hair braided because “they don’t know how to do it.” She claimed also that D.J.’s caretaker was putting fake hair into D.J.’s natural hair. She claimed she took out the fake hair and took photographs of it, and that it is an ongoing issue. She complained also that no diapers were sent to the visitation center with J.C. Mother claimed she did not receive any information about what her children were doing in daycare or about doctor appointments or health issues. Mother expressed also her disappointment that visits were cancelled when DSS workers were out of the office. She had not been offered makeup visits when there was a court hearing or other conflicts with the Tuesday visits.
Towson was called as a rebuttal witness. She testified that there were diapers, wipes, and pull-ups at the visitation for Mother to use. With regard to the incident involving D.J. opening cabinet doors, Towson said that she asked Mother to keep an eye on her. Mother “started with ‘It’s a safety hazard. I’m going to sue the Department,’ and so forth.” Mother put chairs in front of the cabinets. After Towson stepped out of the room, Mother “continued to go on how she was going to sue the Department because we don’t have safety locks and things like that.” Towson said she had no conversations with Mother about housing, and Mother did not ask for help with housing; nor did Mother ask about the children’s medical appointments. Towson acknowledged that missed visits were not made up necessarily. On one occasion, Mother was offered some extra time at the end of another visit, but she did not receive the full amount of the time missed. According to Towson, scheduling make-up visits depended on the visitation center’s schedule.
DISCUSSION
QUESTIONS I. & II.
Mother contends that the juvenile court erred as a matter of law when it ordered in July 2023, the children’s permanency plans changed from reunification, based on the magistrate’s recommendation and order that included no proposed factual findings whatsoever. In addition, she argues that her failure to file exceptions should not be construed as a waiver or otherwise prevent her from challenging all aspects of the juvenile court’s decision to change the permanency plans. We shall discuss together these contentions.
We agree with Mother that the juvenile court erred technically in adopting the magistrate’s recommendation and order in July 2023, when no proposed factual findings were set forth, and where the magistrate stated specifically that a more comprehensive written report would be forthcoming on an unspecified future date. A decision in a contested CINA case is of critical importance because it impacts significantly the lives of the parents and children involved. “While the system of resorting to [magistrates] is one of long standing and undoubtedly has salutary effects resulting in the more expeditious dispatch of the judicial process, the system cannot supplant the ultimate role of judges in the judicial process itself.” Ellis v. Ellis, 19 Md. App. 361, 365 (1973) (footnote omitted). See also Wenger v. Wenger, 42 Md. App. 596, 602 (1979) (stating that a judge may never delegate away his or her decision-making function to a master). As we noted in Ellis with respect to child custody cases, litigants in CINA cases, as in all judicial proceedings, are entitled to have their case determined ultimately by a duly qualified judge of a court of competent jurisdiction. 19 Md. App. at 365. Mother, like all parents, was entitled to more than the judge’s adoption of a magistrate’s admittedly incomplete recommendation. Id. at 365-66. It was her right to have the benefit of the judge’s fully informed judgment, as distinguished from the magistrate’s alone. Id. at 366.
We agree also with Mother that her failure to file exceptions to the magistrate’s bifurcated recommendation and order should not be construed as a waiver. Because the magistrate’s initial recommendation and order provided specifically that a more comprehensive written report would be forthcoming, there were initially no material factual findings to which Mother could note an exception. Moreover, under Maryland Rule 8-131(a), even with regard to the lack of exceptions to the magistrate’s final report, “an appellate court has discretion to excuse a waiver or procedural default and to consider an issue even though it was not properly raised or preserved by a party.”
Jones v. State, 379 Md. 704, 713 (2004). The Rule provides, in relevant part, that:
Ordinarily, an appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.
Md. Rule 8-131(a).
In deciding whether to exercise our discretion to address an unpreserved issue, Maryland’s Supreme Court has said that we should ponder two considerations. First, whether the
exercise of discretion “will work unfair prejudice to either of the parties.” Jones, 379 Md. at 714. In considering whether the prejudice suffered by a party rises to the level of “unfair,” we “should consider whether the failure to raise the issue was a considered, deliberate one, or whether it was inadvertent and unintentional.” Id. As an example, the Supreme Court noted that unfair prejudice may “result if counsel fails to bring the position of her client to the attention of the lower court so that that court can pass upon and correct any errors in its own proceedings.” Id. Second, we should “consider whether the exercise of [our] discretion will promote the orderly administration of justice.” Id. at 715. This consideration seeks “to prevent the trial of cases in a piecemeal fashion, thereby saving time and expense and accelerating the termination of litigation.” Id.
In the case before us, the exercise of our discretion in Mother’s favor is warranted. Even if there was some finding from which Mother could have excepted, the magistrate stated clearly his intent to file a fulsome written justification for the recommendation in the future. This approach fostered apparent confusion for Mother and/or her counsel as to how to proceed. Mother had a right to rely on the magistrate’s statement and to forebear filing exceptions. Requiring her to file exceptions to the magistrate’s preliminary and incomplete recommendation and order would unfairly prejudice Mother and result in piecemeal litigation.
Although Mother was not required to file exceptions before the magistrate filed his comprehensive written report, and was entitled to more than a pro forma adoption by the court of the magistrate’s initial recommendation, the juvenile court’s initial error in adopting the incomplete recommendation and order was remedied when the magistrate filed his full and final report in February 2024, and the juvenile court adopted the magistrate’s recommendations and proposed order in March 2024. At that point, Mother had filed a notice of appeal from the initial order, which set forth an apparent ultimate result. When the March 2024 order was issued, it maintained the status quo and, as a result, suggests that the July 2023 order failed arguably to constitute an appealable interlocutory order under CJP § 12303(3)(x), which permits a party to appeal from an interlocutory order “[d]epriving a parent, grandparent, or natural guardian of the care and custody of his child, or changing the terms of such an order[.]” That was no fault of Mother under these circumstances.
In light of the unusual procedural path traveled by these CINA cases, the general purpose of the CINA statute, and our parens patriae authority, we shall exercise our discretion to consider in this appeal both the July 2023 and March 2024 orders together, and to determine whether the juvenile court erred in (1) finding that DSS made reasonable efforts to reunify Mother with J.C. and D.J., and (2) changing the children’s permanency plans away from reunification with Mother. See In re T.K., 480 Md. 122, 147 (2022) (stating that the broad purpose of the CINA statute “is to ensure that juvenile courts (and local departments of social services) exercise authority to protect and advance a child’s best interests when court intervention is required” (internal quotation marks and citation omitted)); In re Mark M., 365 Md. 687, 705-06 (2001) (“Pursuant to the doctrine of parens patriae, the State of Maryland has an interest in caring
for those, such as minors, who cannot care for themselves.”).
Standard of Review
Appellate courts apply “‘three distinct but interrelated standards of review’” to a juvenile court’s determinations in a CINA proceeding. In re J.R., 246 Md. App. 707, 730 (2020) (quoting In re Adoption/Guardianship of H.W., 460 Md. 201, 214 (2018)). The court’s factual findings are reviewed for clear error. In re R.S., 470 Md. 380, 397 (2020). Matters of law are reviewed de novo, without deference to the juvenile court. Id. “[T]he final conclusion of the juvenile 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. (quoting In re Yve S., 373 Md. 551, 586 (2003)). “A court abuses its discretion when ‘no reasonable person would take the view adopted by the trial court or when the court acts without reference to any guiding rules or principles.’” In re K.L., 252 Md. App. 148, 185 (2021) (quoting Santo v. Santo, 448 Md. 620, 625-26 (2016)).
The CINA Framework Parents “have a fundamental, Constitutionally-based right to raise their children free from undue and unwarranted interference on the part of the State, including its courts.” In re Adoption/Guardianship of Rashawn H., 402 Md. 477, 495 (2007) (“Rashawn H.”). There is “a presumption of law and fact – that it is in the best interest of children to remain in the care and custody of their parents.” Id. This right is not absolute, however. The fundamental right to parent must be balanced with the State’s interest in protecting children, who cannot protect themselves, in most instances, from abuse and neglect. In re H.W., 460 Md. at 216; Rashawn H., 402 Md. at 497; In re Mark M., 365 Md. at 706 (“That which will best promote the child’s welfare becomes particularly consequential where the interests of a child are in jeopardy[.]”). Those competing rights are implicated in CINA proceedings, the purpose of which are “‘to protect children and promote their best interests.’” In re Priscilla B., 214 Md. App. 600, 622 (2013) (quoting In re Rachel T., 77 Md. App. 20, 28 (1988)); see also CJP § 3-802 (stating the purposes of the CINA statutes).
A juvenile court may find that a child is in need of assistance upon a showing, by a preponderance of the evidence, CJP § 3-817(c), that the child “requires court intervention because: (1) [t]he child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and (2) [t]he child’s parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and the child’s needs.” CJP § 3-801(f); In re M., 251 Md. App. 86, 115 (2021).
Once a child is declared a CINA and removed from the care of a parent, the juvenile court must hold a hearing within eleven months to determine a permanency plan for the child. CJP § 3-823(b)(1)(i). “The permanency plan is intended to ‘set[ ] the tone for the parties and the court’ by providing ‘the goal toward which [they] are committed to work.’” In re D.M., 250 Md. App. 541, 561 (2021) (quoting In re Damon M., 362 Md. 429, 436 (2001)). “Every reasonable effort shall
be made to effectuate a permanent placement for the child within 24 months after the date of initial placement.” CJP § 3-823(h)(5).
Under the statutory scheme, “unless there are compelling circumstances to the contrary, the plan should be to work toward reunification, as it is presumed that it is in the best interest of a child to be returned to his or her natural parent.” In re Yve S., 373 Md. at 582. Accordingly, the juvenile court, when determining a permanency plan, must follow a prescribed hierarchy of placement options decided in a “descending order of priority”: (1) reunification with a parent or guardian; (2) placement with a relative for adoption or custody and guardianship; (3) adoption by a non-relative; (4) custody and guardianship by a non-relative; or (5) another planned permanent living arrangement. CJP § 3-823(e).
The juvenile court then reviews the permanency plan at a review hearing “at least every 6 months” until the child’s commitment is rescinded or a voluntary placement is terminated. CJP § 3-823(h)(1). At each review hearing, the juvenile court shall:
(i) Determine the continuing necessity for and appropriateness of the commitment;
(ii) Determine and document in its order whether reasonable efforts have been made to finalize the permanency plan that is in effect;
(iii) Determine the appropriateness of and the extent of compliance with the case plan for the child;
(iv) Determine the extent of progress that has been made toward alleviating or mitigating the causes necessitating commitment;
(v) Project a reasonable date by which a child in placement may be returned home, placed in a preadoptive home, or placed under a legal guardianship;
(vi) Evaluate the safety of the child and take necessary measures to protect the child;
(vii) Change the permanency plan if a change in the permanency plan would be in the child’s best interest; and
(viii) For a child with a developmental disability, direct the provision of services to obtain ongoing care, if any, needed after the court’s jurisdiction ends.
CJP § 3-823(h)(2).
In determining both the initial permanency plan and whether to change it, the juvenile court must consider the factors set forth in FL § 5-525(f)(1), CJP § 3-823(e)(2), and give “primary consideration to the best interests of the child[.]” FL § 5-525(f)(1); see also In re D.M., 250 Md. App. at 562. Those factors are:
(i) the child’s ability to be safe and healthy in the home of the child’s parent;
(ii) the child’s attachment and emotional ties to the child’s natural parents and siblings;
(iii) the child’s emotional attachment to the child’s current caregiver and the caregiver’s family;
(iv) the length of time the child has resided with the current caregiver;
(v) the potential emotional, developmental, and educational harm to the child if moved from the child’s current placement; and
(vi) the potential harm to the child by remaining in State custody for an excessive period of time.
FL § 5-525(f)(1).
While the juvenile court is required to consider the relevant statutory factors and make specific findings based on the evidence with respect to each of them, it is not required “‘to recite the magic words of a legal test.’” In re D.M., 250 Md. App. at 563 (quoting In re Adoption/Guardianship of Darjal C., 191 Md. App. 505, 531-32 (2010)). The key is whether “‘actual consideration of the necessary legal considerations [is] apparent in the record.’” Id. (citations omitted).
III.
Against this backdrop, we turn to the questions at hand, beginning with Mother’s contention that the juvenile court erred in finding, in its July 2023 order, that DSS “made reasonable efforts to alleviate the circumstances that caused the child [sic] to come into foster care and achieve the presumptive plan of reunification[.]” Mother asserts that DSS failed to make good faith efforts to provide services to achieve reunification that were tailored to her specific cognitive and mental health needs. Specifically, she argues that DSS failed to provide consent forms or a service agreement to cover the post-disposition review period, failed to follow up after learning that Mother told A&E Health Services she was engaged in services elsewhere, and failed to provide any housing assistance after Mother’s release from incarceration, either when she was residing temporarily with a relative, or after learning in March 2023 that she was homeless. The record does not support Mother’s contention that the juvenile court erred in finding that reasonable efforts were made.
Under Maryland law, the juvenile court was required to make a finding as to whether the local department made reasonable efforts to finalize the permanency plans in effect for each child. CJP §§ 3-816.1(b)(2)(i) and 3-823(h)(2)(ii). Reasonable efforts are “efforts that are reasonably likely to achieve the objective[]” of finalizing the permanency plan in effect for a child. CJP §§ 3-801(w) and 3-816.1(b)(2)(i). The court must “assess the efforts made since the last adjudication of reasonable efforts and may not rely on findings from prior hearings.” CJP § 3-816.1(b)(5). “[T]here is no bright line rule to apply to the ‘reasonable efforts’ determination; each case must be decided based on its unique circumstances.” In re Shirley B., 191 Md. App. 678, 710-11 (2010). A juvenile court’s finding with regard to whether DSS made reasonable efforts toward reunification is a factual finding that we review pursuant to the clearly erroneous standard. Id. at 708-09.
This record makes clear that, from late January to the start of the permanency plan hearing on 16 May 2023, Mother refused DSS’s offers of assistance and refused to engage with respect to services. At the hearing on 16 May 2023, DSS worker Jennings testified that in recent months she had been unable to get anything from Mother. Mother never signed a consent form for the release of information from mental health providers and Jennings did not know who she was seeing for therapy. Mother told Jennings routinely that everything should go through her attorney. Jennings testified that she sent a consent form release of information
to Mother’s attorney and, on 2 March 2023, she sent a service plan, but got nothing back.
With regard to housing, Jennings was aware that, at one time, Mother was living with Ms. K. who was a potential foster care or adoptive resource for J.C. Jennings had contact with Ms. K. and told her what DSS needed, but “that never went anywhere.” Prior to that, Mother lived with Ms. S. Jennings set up several times for Ms. S. to provide fingerprints, but she did not show up. Until the end of March 2023, Jennings did not know that Mother was homeless and living in a shelter. According to Mother, the shelter was providing her with resources to acquire housing through a program run by the Mayor’s office. She had submitted an application for a three-bedroom home for her and her five children and was awaiting notification from the Mayor’s office that a home was available. As for mental health services, after Mother’s release from incarceration, DSS worker Towson asked her if she was receiving mental health services. Mother said she was, but failed to provide documentation. In light of Mother’s failure to provide documentation, Towson provided a referral for Mother to A&E Healthcare Services. Towson was notified by that provider that it contacted Mother on 16 February 2023, and she declined services and stated that she was receiving therapy from another provider. On one occasion, when Mother’s social worker was present at a visit, Towson asked if Mother was receiving mental health services, but Mother did not want to speak with Towson about that. DSS did not learn the name of Mother’s current therapist until 17 May 2023, the second day of the hearing.
Maryland’s Supreme Court has recognized that DSS “is not obliged to find employment for the parent, to find and pay for permanent and suitable housing for the family, to bring the parent out of poverty, or to cure or ameliorate any disability that prevents the parent from being able to care for the child.”
Rashawn H., 402 Md. at 500. In the pertinent review period, Mother refused DSS’s offers of assistance, declined to engage with DSS workers with respect to services, declined to sign a service agreement, declined to sign a consent form to allow DSS to receive information, and decided to pursue housing through a program at the shelter where she was living. On the record before us, we are unable to say that the juvenile court erred in determining that DSS made reasonable efforts to alleviate the circumstances that caused the children to enter care and to achieve reunification.
IV.
Mother contends that it was premature for the juvenile court to change the children’s permanency plans away from reunification, and that there were no compelling circumstances to override the strong presumption that reunification with Mother was in the children’s best interests. Considering each of the factors set forth in FL § 5-525(f)(1), we are convinced that there was ample evidence presented at the various hearings to support the juvenile court’s decision to change the children’s permanency plans.
1. The children’s ability to be safe and healthy in the parents’ home
On this factor, the juvenile court found: Notwithstanding the fact that [Mother] has never been found to be affirmatively abusive to her children, [her] mental and emotional state, and her unwillingness/ inability to benefit from services intended to assist in that regard, cause this court to conclude that the respondents would not be safe and healthy in [her] home. [D.J.’s father] has never cared for [her], has all but disappeared from her life, and is not imputed with a presumption that if given a chance to do so he would provide her with ordinary care. The evidence showed that Mother was homeless and living in a shelter. After being incarcerated for engaging in an affray, she lost the housing she had obtained through Promise Housing. When she was released from incarceration in January 2023, she lived with her aunt, Ms. S., but decided that she did not “want to live under people” and wanted her “own house with [her] own kids,” so she went to live in a homeless shelter. While at the shelter, she applied for housing through a program offered by the Mayor’s office, but had not received housing at the time the hearing began in May 2023. Mother had a history of mental health issues including diagnosed mental health disorders. Mother testified that she had been “in and out of mental health treatment,” but she did not believe that she had any mental health issues or that she would benefit from therapy. At the hearing on 17 May 2023, Mother testified that she had been “seeing” a therapist, Derrick Henson, for about two months. She told Henson that the reason she was seeking therapy was because it was “mainly one of the requirements of me getting my kids back.” Although Mother testified that she had seen a number of mental health providers, and one DSS worker had communicated with Shae Gorham, a therapist Mother saw for “a few months,” Mother never provided a signed consent to release information to DSS so it could verify her participation in appropriate therapy and the “success” it may have in helping Mother achieve reunification with her children. Other evidence showed that Mother’s “mercurial” behavior did not change even after she completed parenting and anger management classes. There was ample evidence to support the juvenile court’s finding on this factor.7
2. and 3. The children’s attachment and emotional ties to their natural parents, siblings, current caregivers, and the caregivers’ family
As to the second required factor, the children’s attachment and emotional ties to their natural parents and siblings, the juvenile court concluded that “[a]lthough there is reason to believe that both respondents have an emotional tie to their siblings, neither has been in their parents’ care for a significant period of time.” As to the third required factor, the children’s emotional attachment to their current caregivers and the caregivers’ families, the court found that “[t]his is a compelling factor in this court’s decision. [J.C.] has flourished in the foster parents’ care and [D.J.] is in a loving, relative placement.” Mother argues that the court gave “short shrift ” to the second required factor by focusing on the children’s time in custody and failed to examine the children’s emotional ties to her and the fact that visits went well.
The court found that Mother participated regularly in visitation with the children, but that during the visits she focused “on specific, narrow matter,” such as braiding J.C.’s hair, “to the exclusion of interacting with the other children.” Evidence showed that during the visits, Mother did not speak much to J.C. and did not really engage with the other children. According to Jennings, there was not much conversation or engagement between Mother and the children. Towson testified also that Mother loved her children. S.A. testified that she sometimes set up video calls between Mother and D.J.
J.C., who was born in February 2021, lived with Mother for the first six months of his life and then lived with his foster parents continuously since 2 September 2021. Jennings testified that J.C. seemed very happy and “well adjusted” with his foster family. J.C.’s foster father testified that J.C. had contact with his brothers and they had been on “a couple of outings” together.
After her birth in April 2022, D.J. was placed with fictive kin. Shortly thereafter, in May 2022, she was placed with S.A., where she has lived since. Towson testified that D.J. was doing well in her placement, had bonded with her caregivers, and had visits with other paternal relatives. Neither child visited with Mother during the six months she was incarcerated.
The record does not contain a great deal of evidence with respect to the children’s attachment to and emotional ties with Mother. The evidence admitted below, however, supported the findings of the juvenile court as to both factors.
4. The length of time the child has resided with the current caregiver
The juvenile court found that “[t]his factor is comparable to the previous in militating in favor of a plan of adoption by non-relatives for [J.C.] and custody and guardianship by a relative for [D.J.]” The court’s finding was supported by evidence. At the time of the May 2023 hearings, J.C. was about two years and three months old. For approximately the first six months of his life, he lived with Mother. From 2 September 2021 to the time of the hearings, he lived continuously with his foster parents. At the time of the May 2023 hearings, D.J. was about thirteen months old and had been in the care of S.A. for nearly her entire life. Under CJP
§ 3-823(h)(5), “[e]very reasonable effort shall be made to effectuate a permanent placement for the child within 24 months after the date of initial placement.” There is nothing in the statute, however, that prohibits a court from effectuating a permanent placement in less than twenty-four months.
5. and 6. The potential emotional, developmental, and educational harm to the child if moved from the child’s current placement, and the potential harm to the child by remaining in State custody for an excessive period of time
The court found that these considerations “militat[ed] in favor of a plan of adoption by non-relatives for [J.C.] and custody and guardianship by a relative for [D.J.]” As we have noted already, J.C. was well-adjusted with his foster family and D.J. was doing well and had bonded with S.A. The foster parents and S.A. remained committed to caring for J.C. and D.J., respectively, and provided safe and stable homes for them. The court was free to consider the testimony of J.C.’s foster father, S.A., Jennings, and Towson, as well as Mother’s failure to engage with DSS to address her mental health issues and the fact that she was residing in a homeless shelter. From that evidence, a reasonable inference could be drawn that moving the children from their current placements would cause emotional, developmental, and educational harm. Likewise, a reasonable inference could be drawn that keeping the children in State custody any longer could cause harm, particularly
considering, as we have already noted, that CJP § 3-823(h) (5) requires that “[e]very reasonable effort shall be made to effectuate a permanent placement for the child within 24 months after the date of initial placement.” J.C. had been in foster care for about twenty months. Although D.J. had only been in placement for about thirteen months, Mother had not taken any significant steps toward reunification with her.
Summary
In sum, the evidence was more than sufficient to support the juvenile court’s decision to change the children’s permanency plans. We cannot say that the juvenile court abused its discretion in determining that reunification with Mother was not in the children’s best interests.
JUDGMENTS OF THE CIRCUIT COURT FOR BALTIMORE CITY, SITTING AS A JUVENILE COURT, AFFIRMED; COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 D.J.’s father, M.J., was represented and appeared at the shelter care hearing. He is not a party to this appeal. In September 2020, Mother identified A.C. as J.C.’s father. At a hearing on 3 September 2021, she testified that she was uncertain of the identity of J.C.’s father. At a hearing on 27 October 2021, Mother said that D.Sm. was J.C.’s father, but she did not provide DSS or the juvenile court with any contact information for D.Sm. Neither A.C. nor D.Sm. are parties to this appeal.
2 Shelter care is defined in § 3-801(bb) of the Courts and Judicial Proceedings Article (“CJP”) of the Maryland Code as “a temporary placement of a child outside of the home at any time before disposition” as a child in need of assistance.
3 A CINA is “a child who requires court intervention” because the child has, among other things, been abused or neglected, and the child’s parents “are unable or unwilling to give proper care and attention to the child and the child’s needs.” CJP § 3-801(f) and (g).
4 By stipulation, the court considered also testimony that DSS workers Monica Johnson and Yvette Bennerson gave during contested shelter care hearings on 5 and 8 November 2021, subject to strict application of the rules of evidence.
5 Gorham’s last name is spelled various ways in the record, but we shall use “Gorham.”
6 Kinship or social ties based on other than a blood relationship or marriage.
7 Mother argues that the court found erroneously that she engaged in an ‘overindulgence’ of marijuana, considering both DSS workers admitted that they did not have any affirmative indication that mother currently used marijuana, the sustained petition findings did not document [M]other’s marijuana use past D.J.’s birth, and [M]other’s uncontroverted testimony reflected that she completed a program in the past and was testing clean for her probation.
That argument is not supported by the record. In its order, the juvenile court found that Mother “was not interested in receiving services from [DSS], including to address what appeared to be an overindulgence in cannabis.” (Emphasis added). The record shows that even after Mother attended a drug program, she and D.J. tested positive for marijuana at the time of D.J.’s birth. The DSS case workers presented the issue as one of health and safety. Towson, who was also the case worker for Mother’s three older children, expressed concern that Mother was “using marijuana, and at the time she was self-medicating.” Similarly, Jennings testified that the concern about Mother’s marijuana use was “not so much with the marijuana smoking,” but with whether “she’s using that to self-medicate. That’s the only concern.”
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Baltimore County Circuit Court’s determination that the 12-year old minor was not a child in need of assistance. The court’s finding that father is willing and able to provide proper care for the minor was supported by the evidence before it.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
to testify, she absolutely denies that those things are accurate.” Specifically, Mother proffered that she would deny, among other things alleged in the petition, that she physically abused either child, left them without adequate food, and that she would have S.T. provide urine which Mother would submit with her own urinalysis tests. “[W]ith those proffers,” Mother, was “not objecting to the [c]ourt sustaining the petition.” Mother also acknowledged that she had lost her job and her housing and was currently living with her aunt, who could not accommodate the children.
The Baltimore County Department of Social Services (the “Department”) filed a petition with the Circuit Court for Baltimore County, sitting as a juvenile court, alleging that then twelve-year-old S.T. was a child in need of assistance (“CINA”) based on allegations that her mother, C.P. (“Mother”), appellant, had abused and neglected S.T. and S.T.’s then seventeen-year-old brother, J.C. On November 8, 2023, the court authorized shelter care for both children.1 Following a hearing held on January 30, 2024, the court sustained certain facts in the petition that the parties had stipulated to and found that Mother had abused and neglected the children; determined that S.T. was not a CINA because her father, A.T. (“Father”), appellee, was able and willing to provide care to S.T.; and awarded Father, who resides in Texas, custody of S.T. Mother appeals the decision and raises three questions for our consideration which we consolidate and rephrase as follows: Did the court err in closing the CINA case and awarding custody of S.T. to Father?2 For the reasons to be discussed, we answer “no” and accordingly shall affirm the judgment of the court.
BACKGROUND
CINA Petition & Adjudicatory Proceeding
The Department filed CINA petitions on November 9, 2023 which resulted in the court granting its request for shelter care for S.T. and J.C., who were placed with their grandparents (Mother’s mother and stepfather). The court then held adjudication and disposition hearings on January 30, 2024. At the outset of the adjudicatory proceeding, the five attorneys representing the respective parties3 stipulated to certain facts set forth in the Department’s CINA petition. Mother joined in that stipulation, with the caveat that “while she would agree that the children’s statement, which make up a large portion of this petition are what the child would say were they called
The parties stipulated to the allegations set forth in the following paragraphs of the CINA petition related to S.T. In the petition, S.T. is referred to as “Respondent,” Mother as “Ms. P[.],” and Father as “A.T.” or “Mr. T.”
1. On November 8, 2023, the 12-year old Respondent and her I7-year-old brother to the [sic] Baltimore County Department of Social Services due to concerns of abuse and significant neglect related to parental substance use and lack of appropriate care for the Respondent and her brother.
2. On September 29, 2023, the Department received a report alleging neglect of the Respondent and her sibling. It was reported that the Respondent had a visible bruise on her left pointer finger and that she reported that her mother only comes home once a week to tend to her and her I7-year-old brother. The Respondent reported that her mother “beats her weekly,” usually in the middle of the week. The Respondent reported that the bruise on her finger was caused by her mother throwing a container lid at her which cut her knuckle. The Respondent further reported that her mother abuses substances like Percocet and that she “favors things with needles.” The Respondent reported that her mother sometimes leaves for up to two weeks at a time leaving her and her brother alone. The Respondent also reported that the family does not live in district for her current school and that her mother is late picking her up from school, sometimes making her wait until 8pm.
3. On October 2, 2023, this writer [a social worker] attempted to complete an initial face-to-face interview with the Respondent at her school, Stemmers Run Middle School, but was informed that she was absent. This writer confirmed the family’s address as [redacted], Essex, MD, but was informed that the family is reportedly not living there and is instead living at [redacted], Middle River, MD. This writer then attempted to complete an initial face-to face interview with the Respondent and her mother at the address listed for the family, [redacted], Essex, MD, but received no response and left a notification letter. This writer was then able to
complete a successful initial face-to-face interview with Ms. P[.] and the Respondent at the [Middle River] address.
4. Upon arrival to this address, this writer knocked several times before hearing someone shouting “Hello?” from a window above. This writer observed a woman with dark hair sticking her head out of the window who identified herself as [C.P.] This writer identified myself, the purpose of my visit, and asked if I could speak to Ms. P[.], to which she responded “No,” and closed the window. After a short time, Ms. P[.] then opened the door of the home and immediately stated the Respondent lied about her injury and that she has had problems with the Respondent telling lies. Ms. P[.] then called the Respondent downstairs so this writer could see her and again repeated that the Respondent was lying. Ms. P[.] then repeatedly said “Tell her” to the Respondent until the Respondent stated that she lied. This writer inquired if the Respondent has participated in therapy to help address the reported behavioral concerns, to which Ms. P[.] stated that the Respondent does not need therapy. This writer provided Ms. P[.] with my contact information and a brochure regarding the process of CPS investigations and stated that I would be in touch.
5. On October 2, 2023, this writer completed an initial face-to-face interview with the Respondent’s 17-year-old brother at Kenwood High School. The Respondent’s brother stated that the Respondent lied about the cut on her finger being caused by their mother but that everything else is the truth. He stated that their mother is using drugs and that she is always with “random guys.” He stated that he and the Respondent found a bag of different pills in their mother’s room that they believed to be Percocet and what may be heroin. This writer asked about the weekly beatings the Respondent reported, her brother stated that that is “definitely happening” and that there have been times when Ms. P[.] has dragged the Respondent around by her hair. The Respondent’s brother stated that he knows when his mother is on drugs because of her eyes, that she “rages,” and that the slightest things set her off. He stated that he cannot tell when their mother is not on drugs and that when she is not on drugs, she tries to discipline him and the Respondent and that it “gets out of hand.” He stated that there was an incident wherein Ms. P[.] punched him in the mouth for not giving her his phone password. The Respondent’s brother stated that Ms. P[.] has threatened to hit the Respondent for speaking to CPS in the past. He stated that Ms. P[.] has offered him drugs in the past, but that he is not interested, and that she has the Respondent pee in cups for her when she must do drug tests for work.
6. On October 19, 2023, this writer completed a face-toface interview with the Respondent at Stemmers Run Middle School to ask about the concerns without Ms. P[.] present. The Respondent stated that her mother is a pathological liar and “twists” what she tells people. The Respondent stated that her mother uses her pee for drug tests and that she uses “needles, pills, and coke.” The Respondent stated that her mother was home the night before, but that prior to that she had not been home for 5 days. The Respondent stated that she has panic attacks and that her mother is not supportive
and often says things like she wishes she never had the Respondent and that the Respondent should go kill herself. The Respondent stated that her mother takes her brother’s money to pay bills. The Respondent stated that most of the food in their home is expired or her mother tells them not to eat it.
7. The Respondent also stated that her mother has bipolar disorder and that she believes she is beginning to show signs of the disorder, but that her mother refuses to take her to a psychiatrist. The Respondent stated that she takes medicine for ADHD, but she never takes it because she never has enough due to her mother selling it. The Respondent stated that she is always late for school because her mother cannot wake up in the morning or, once she is awake, continues to fall asleep. The Respondent stated that she asks her mother to take her to school and that her mother refuses to and tells her to walk. The Respondent stated that her mother has gotten mad at her for talking to her biological father and that she slammed her head into things and told the Respondent to hang herself. The Respondent stated that her mother refuses to put her in therapy because “they will just shove pills down her throat” and that she wants to be in therapy, but her mother will not let her.
8. On November 6, 2023, this writer called Ms. P[.] in an attempt to schedule a follow-up visit with her to discuss the concerns for her children and to determine if she would submit to a drug test. Ms. P[.] presented as combative, refusing to meet with this writer, refusing to take a drug test, refusing to provide the information for her children’s pediatrician, and instructing this worker to close my case. This writer attempted to explain my need to fully assess and address the concerns, but Ms. P[.] stated that she knew her rights and would not provide this writer with any information.
9. [redacted]
10. On November 8, 2023, this writer conducted a followup face-to-face visit with the Respondent at Stemmers Run Middle School. The Respondent stated that things at home are “not so good” and that while her mother was “hardly home” before, now she is never home. The Respondent stated that her mother “can’t function without doing pills or smoking.” She stated that she took her medicine on Monday, but that there was only one pill and her mother said she needed to refill her medication. The Respondent stated that she later found several pill bottles in her mother’s room with her (the Respondent’s) name on them as well as a full bottle of her ADHD medicine. The Respondent stated that after this worker attempted to speak with her mother on November 6th, her mother became upset and said that the Respondent would need to take the drug test for her and that CPS can take her, but they cannot take her brother. The Respondent expressed that she may have an eating disorder, but that her mother says she is doing it for attention and will not take her to a psychiatrist.
11. On November 8, 2023, this writer conducted a followup face-to-face visit with the Respondent’s 17-year-old brother at Kenwood High School. The Respondent stated that life at home has been “the same as usual.” He stated that
his mother came home last night, but that she was arguing with her boyfriend and not interested in talking to him about his senior interview. The Respondent’s brother stated that after this writer’s attempted phone call with Ms. P[.] on November 6th, she told the Respondent “They can take you.” He stated that Ms. P[.] told the Respondent she would have to take the drug test for her. He stated that Ms. P[.] coached the Respondent on what to say to this writer, that she has a good mom and that she does not have to speak.
12. On November 8, 2023, this writer called Ms. P[.] in an attempt to safety plan the Respondent and her 17-yearold brother to the care of their maternal grandparents until all of the concerns for the children had been assessed and addressed. Ms. P[.] refused to safety plan the Respondent and her brother to the care of their maternal grandparents resulting in this writer issuing shelter paperwork. This writer provided Ms. P[.] the shelter authorization form and information for the Office of the Public Defender via text message. Ms. P[.] then called this writer and stated that there were no legal grounds for the removal of her children and that she would come to the Respondent’s schools and pick them up.
13. On November 8, 2023, this writer attempted to remove the Respondent from Stemmers Run Middle School to her grandparents’ home prior to Ms. P[.]’s arrival to the school. When the Respondent was told that her mother was coming to the school, she began to cry and hyperventilate. This writer assured her that she would still be going with her grandparents and that if the police needed to be contacted for support, we would do that. The Respondent asked “Are you going to let her near me?” and expressed concern that her mother would hit her. Ms. P[.] continually called the Respondent’s brother and was heard to be screaming at him over the phone, telling him to tell someone that she does not use drugs and would not take a drug test. This writer heard Ms. P[.] yell “I swear to God J[.C.]” 14. [redacted]
15. On November 8, 2023, this writer contacted the Respondent’s father, [A.T.], to notify him that the Respondent and her brother were sheltered to the Department. Mr. T[.]’s response to this writer was “Thank God.” Mr. T[.] stated that Ms. P[.] has not allowed him to contact the Respondent, but that he has continued to financially support his daughter. . . . 16. Ms. P[.] has history with the Department including a service case referred to the Department from Dallas, Texas due to domestic violence concerns for Ms. P[.] and her thenboyfriend, [A.T.] Ms. P[.]was also involved in an Alternative Response case from March 2023 to May 2023 for allegations that Ms. P[.] hit the Respondent in the face with a belt and banged her head on the floor causing a tooth to fall out. Ms. P[.] allegedly told the Respondent she would be better off dead and should shoot herself. There were additional concerns for Ms. P[.] using pills. Per case notes from the Alternative Response, Ms. P[.] would not cooperate with allowing the Department to address the concerns received for the children and would not provide information for their pediatrician nor any other information regarding her children.
The court sustained the findings, noting that the evidence was presented by stipulation and proffer and “no objection being heard[.]” The court concluded that “continuation of the children in the children’s home is contrary to their welfare[,]” finding, among other things, that “Mother’s uncontrolled and untreated substance abuse has left her unwilling and/or unable to safely and appropriately care” for the children.
Disposition Proceeding
Section 3-819(e) of the Courts & Judicial Proceedings (“CJP”) Article of the Maryland Code addresses disposition proceedings where, as here, allegations in a CINA petition are sustained against only one parent and the other parent expresses a willingness and ability to care for the child. The statute provides:
If the allegations in the [CINA] petition are sustained against only one parent of a child, and there is another parent available who is able and willing to care for the child, the court may not find that the child is a child in need of assistance, but, before dismissing the case, the court may award custody to the other parent.
Here, the allegations in the CINA petition were leveled and sustained against Mother only and Father expressed his desire for custody of S.T.4 Mother opposed Father having custody of S.T., preferring instead that the court declare her a CINA.
The Department informed the court that it was not opposed to the court granting custody to Father and closing S.T.’s CINA case. The Department did acknowledge, however, that, although it “does not have any problems with” him, based on Mother’s allegations that she was the victim of domestic violence when living with Father nearly ten years ago, the Department was not in a position to present any evidence regarding whether Father “is a fit and proper person” for custody. The Department related that its “several attempts to get records from Texas” were unavailing. The only thing it had learned was that, in 2013, “there was a call about domestic violence between” Father and Mother when they resided together in Texas, but because the parties had failed to cooperate “the Department in Texas made no findings.”
Father, recognizing that it was his burden to establish that he was able and willing to care for S.T., then testified. He related that he and Mother lived together in Texas prior to S.T.’s birth and thereafter off and on for the first three or four years of S.T.’s life. During those years when not living with Father, Mother resided in Maryland. According to Father, Mother “did this back and forth thing about four or five times.”
Father admitted that there had been a domestic violence incident between him and Mother, but he claimed it did not involve either S.T. or J.C. and neither child had been removed from their home. Although Father claimed that he was the victim in the incident and the one who had called the police, he acknowledged that he had ultimately pleaded guilty to a “misdemeanor” (entering the plea in order to move on with his life) and was placed on probation. Other than that, Father related that he had no criminal record. Although it had not been requested of him to date, Father stated that he was “100 percent” willing to subject himself to fingerprinting and a background check.
After Mother left Texas for Maryland for the last time in 2015 or 2016, Father strived to maintain a relationship with S.T. When S.T. turned five years old, Father drove to Maryland to celebrate her birthday and submitted a photograph of that occasion. But after Mother learned that he was in a relationship with the woman he ultimately married, Father claimed that Mother thwarted his attempts to communicate with S.T. Because Mother would often move without giving Father her address, Father typically did not know where S.T. was living. Nonetheless, despite no court order requiring him to do so, Father regularly sent Mother money to support S.T.
When Father married in 2019, he asked Mother’s permission for S.T. to attend the wedding. Mother refused, claiming she did not want to send the child to Texas alone. When Father offered to fly S.T. and Mother to Texas and pay for a hotel room, Mother still refused.
Father testified that, upon learning of the CINA petition, he moved to a larger home in hopes of obtaining custody of S.T. and he absolutely desired S.T. residing with him. Father currently lives in a three-bedroom, two-bathroom house in Denton, Texas with his wife and his eleven-year-old stepson. Father’s wife shares custody of her son with the son’s father. Father, appearing remotely, gave the court and the parties a visual tour of his home.
Father has worked as a utility locator with United States Infrastructure Company since November 2021, and earned approximately $64,720 in 2023.5 He is subject to random drug testing every quarter as part of his employment and has not failed any drug tests. He also has a degree in “automotive mechanic work” from the Universal Technical Institute and on weekends does occasional side work fixing the vehicles of friends and neighbors.
Father lives less than an hour’s drive from his grandparents and, although his mother resides in Oklahoma, she visits Father’s grandparents nearly every weekend. Father has a close relationship with both his mother and his grandmother, visiting with them frequently, as well as with his large extended family who reside nearby. Father and his wife also have close ties with the wife’s family, including wife’s father and siblings and their families.
Father claimed to be actively involved with his stepson and treats him as his own child. He does not have much of a relationship with his stepson’s father, but their interactions are cordial and there have been no problems with co-parenting the stepson. When asked whether there had been any “police involvement” or “history of domestic violence arrests” between him and his wife, Father responded in the negative. Father also replied “no” when asked if he or his wife had ever been arrested in regard to any incidents involving his stepson.
Upon learning of the CINA petition, Father related that he was “distraught” as he had no knowledge that Mother was abusing or neglecting S.T. and J.C. Although Father related that Mother had occasionally “shown some violent tendencies” in the past, he never thought she would harm the children.
After the Department contacted him about the CINA petition, Father related that he has “cooperated every step of the way with them.” He moved to a larger home in order to have a bedroom for S.T. in the event he was awarded custody, and
he also researched resources local to him that could provide S.T. with therapy. Father and S.T. text each other daily, and he described their current relationship as “great[.]”
As noted, Mother opposed the court awarding custody of S.T. to Father, preferring instead that the court declare her a CINA and continue her commitment to the Department. Mother testified that she met Father after moving to Texas in 2009 and they were “really good friends[,]” but the relationship changed after she became pregnant with S.T. She testified that Father subjected her to physical abuse, and claimed that Father was the aggressor in the incident that ultimately led to Father pleading guilty to the misdemeanor charge. Mother also testified that, when S.T. was about three months old, she had obtained a protective order against Father directing him to stay away from her and the children. Although she asserted that she had “documents at the house from CPS [Child Protective Services]” to substantiate her claims, she had not shown them to her attorney, she did not bring them to court, and she could not provide any citation numbers because “that’s things that were years ago” and they were “in a safe locked away.”
Mother denied that she ever refused Father’s request to speak with S.T. and claimed that she had given him S.T.’s cell phone number. Mother admitted that Father had mentioned that he wanted S.T. to attend his wedding, but claimed that Father told her he “wasn’t sure how it was going to work[,]” and he never raised the subject again.
Mother related that she “tried so hard” to get Father to “be a father” and regularly sent him photographs of S.T. She opposed Father being awarded custody of S.T. because “S.T. doesn’t know him” and “he knows nothing about his daughter.”
Mother denied that S.T. had any serious mental health issues, claiming instead that S.T. had “behavior problems” and is an “attention seeker . . . because of her lack of her relationship with her father. Due to him.”
Mother’s position was that her children were lying about the neglect and abuse they reported to the Department, claiming that her mother and stepfather, with whom the children were sheltered, were “brain washing” and “bribing” the children. When asked whether she was currently participating in substance abuse treatment, mental health treatment, anger management, or parenting classes, Mother responded no. She asserted that she does not “need any of that.”
A report of the Department dated November 27, 2023 was also admitted into evidence. This report related that S.T. and J.C. were then living with their maternal grandparents and doing well in their care and were regularly attending school.6 An initial health assessment revealed that S.T. had “mental health issues including depression and suicidal ideation.” J.C. was assessed with “moderately severe depression and suicidal ideation” and had reported several attempts to kill himself “and that his mother encouraged him to kill himself on multiple occasions.”
Closing Statements
In closing statements, Father’s counsel argued that it was in S.T.’s best interest that Father be awarded custody. The attorney representing S.T. also argued that the evidence elicited at the hearing “lean[s] definitely and heavily in the direction of
[Father] being definitely a fit parent and definitely the proper custodial parent for S.T.” S.T.’s counsel pointed out that Father is gainfully employed; there were no allegations that he engages in substance abuse and there was testimonial evidence that he passes random drug tests administered quarterly by his employer; he had contributed financially to S.T.’s care over the years; he had moved to a new house in order to accommodate S.T.; he had identified a mental health provider for S.T.; and is supported by extended family members and friends. S.T.’s counsel concluded that “it’s pretty clear from [Father’s] testimony that he is committed to S.T.’s care . . . and nothing that has been said has raised any kind of safety concern for S.T. in [Father’s] care.” Moreover, counsel related that S.T. “wants to go with dad. She has fostered a relationship with dad. And these are her express wishes.” In sum, S.T.’s counsel informed the court that “[w]hat we believe is in the best interest of the child is also what the child is expressly saying that she wants for herself in an exercise of her considered judgment.”
While acknowledging that the Department’s efforts to learn more about the alleged Child Protective Services referral that had been made nearly a decade ago in Texas had “not been fruitful[,]” counsel for the Department informed the court that nothing elicited in the hearing “raised any concerns” for him or the two social workers assigned to the case who had sat through the proceeding. Counsel further related that the Department had “nothing to indicate that [Father] is not willing and able to care for S.T.”
Mother’s counsel asked the court find S.T. a CINA and to find that Father is “either unable or unwilling to provide proper care and attention.” As grounds, counsel referred to Mother’s testimony that Father had abused her in the past and asserted that the Department had failed to properly investigate Father. Counsel further asserted that it would be in S.T.’s best interests to first “build a better relationship with her father” before granting him custody. In short, Mother requested that the court “commit S.T. to the custody of the Department and not close the [CINA] case at this point.”
Court’s Ruling
After a recess, the court announced its decision regarding S.T. The court first stated that it was guided by what “is in the best interest of the child.”
The court discussed Father, finding that he had “taken positive, deliberate steps in an effort to obtain custody of S.T.” after learning of the CINA petition, including moving to a new home and researching schools in his district and mental health resources for S.T. The court found that Father has a stable job, as well as mechanic skills. The court acknowledged Father’s decade old conviction following the domestic violence incident with Mother, for which he was placed on probation, and found that Father did not “minimize that.” There was no evidence, the court noted, that Father has any substance abuse problem, and it found that he demonstrated “that he has a safety net around him of family and friends” to support him.
In discussing Mother, the court noted that the sustained facts in the CINA petition “are highly troubling.” The court found Mother’s testimony “difficult to follow at times” and that it was “inconsistent.” The court also took into consideration Mother’s
“housing instability and job instability[.]”
The court noted that, although neither child testified, it had observed their “nonverbal conduct” in court, “[h]ow they interacted with each other[,]” with Father (who appeared via ZOOM), and with their attorney throughout the hours long hearing that day. The judge related that, although he was observing the children, the children were not looking at him or aware he was observing them. The court observed their smiles and their “head nods, either affirmatively or negatively based upon what the testimony was at that very moment[.]” Although the children’s reactions were not “driving” the court’s decision, the judge noted that it was a factor that bolstered his decision.
Based on the evidence before it, the court concluded that Father “is most willing and capable” of caring for S.T. and that there was no need to find her a CINA. In its written disposition order, the court noted that it had found Father “is available and is able and willing and a fit and proper parent to care for the child[.]” The court awarded Father custody of S.T. and granted Mother “liberal and supervised” visitation rights, and also telephone contact with S.T. at S.T’s discretion. Accordingly, the court dismissed the CINA case and terminated its jurisdiction.
STANDARD OF REVIEW
On appeal, CINA determinations are reviewed utilizing three interrelated standards of review. In re T.K., 480 Md. 122, 143 (2022). “Factual findings by the juvenile court are reviewed for clear error.” Id. “Matters of law are reviewed without deference to the juvenile court.” Id. “Ultimate conclusions of law and fact, when based upon sound legal principles and factual findings that are not clearly erroneous, are reviewed under an abuse of discretion standard.” Id. (cleaned up). “[A]n abuse of discretion exists where no reasonable person would take the view adopted by the [juvenile] court, or when the court acts without reference to any guiding rules or principles.” In re Andre J., 223 Md. App. 305, 323 (2015) (cleaned up).
DISCUSSION
Mother challenges the court’s award of custody to Father and argues that there was insufficient evidence before the court to find that Father was “willing and able to provide for S.T.” In essence, Mother maintains that the court could not have awarded custody to Father without an investigation by the Texas Department of Social Services given Mother’s allegations of domestic violence when she and Father resided together in Texas. Mother asserts that S.T. should have been declared a CINA and the case should have been kept open pending “background checks of all family members” and verification of Father’s employment. In other words, she argues that Father “did not meet his burden of persuasion or production of his fitness and ability to provide a safe and nurturing home to S.T.” Although Mother relies on her own testimony to challenge Father’s fitness, she claims that the court erred in basing its custody award on Father’s “own self-serving” and uncorroborated testimony of his “fitness and ability” to care for S.T.
Father urges this Court to affirm the judgment, as does S.T.’s counsel. Father maintains that his testimony “provided substantial evidence of his parental fitness, as well as his
commitment and dedication to S.T.’s care.” He also asserts that he “testified to, and took accountability for, his choices in 2014” regarding the domestic violence incident and had related that he pleaded guilty to a misdemeanor charge so that he could move on with his life. Moreover, Father asserts that “[a]ll allegations and concerns regarding [him] were presented by Mother, whose credibility is severely lacking.” And Father maintains that the court properly awarded him custody after determining what was in S.T.’s best interests.
As noted, the relevant statute at issue here is CJP § 3-819(e), which provides:
If the allegations in the [CINA] petition are sustained against only one parent of a child, and there is another parent available who is able and willing to care for the child, the court may not find that the child is a child in need of assistance, but, before dismissing the case, the court may award custody to the other parent.
In applying this statute to the case before us, we turn to the Maryland Supreme Court’s decision in In re T.K., supra, for guidance.
The Supreme Court stated that, in order to exercise its discretion under CJP § 3- 819(e), “the first prerequisite” is that the juvenile court, following an adjudicatory hearing, “sustained allegations in the [CINA] petition that are sufficient to support determinations that: (1) the child has been abused or neglected; and (2) one of the child’s parents is unable or unwilling to provide proper care for the child.” In re T.K., 480 Md. at 147. The first prerequisite was met in this case, as the court sustained the allegations in the CINA petition that (1) Mother had abused and/or neglected S.T. and found that (2) Mother was unable to provide proper care for her children. Mother does not challenge these findings on appeal.
The “second prerequisite to a juvenile court’s authority to award custody under § 3- 819(e)[,]” the Supreme Court stated, is ‘“another parent available who is able and willing to care for the child.’” Id. at 149. This “requires a finding that the parent to whom the court is considering awarding custody—the ‘other parent,’ in the language of the statute—is available, willing, and able to provide proper care.” Id. The burden of proving that the prerequisites are satisfied is on the proponent of the transfer of custody. Id. In other words, here, Father had the burden of proving, by a preponderance of the evidence, id. at 153, that he is available, willing, and able to provide S.T. with proper care.
If these prerequisites are satisfied, “the court then must decide whether to exercise [its] discretion” under § 3-819(e) and award custody to the other parent based on the best interest of the child. Id. at 150. “Thus, a juvenile court should exercise its discretion to award custody of a child to the parent who it finds available, willing, and able to provide care only if it determines that doing so is in the best interest of the child.” Id. at 151.
The first question we must address is whether, as Mother alleges, the juvenile court erred in finding that Father is able and willing to provide care to S.T. As noted, Mother’s position is that, without a background investigation of Father and information from the Texas Department of Social Services about a decade old referral, the court could not conclude that Father is a “fit” person to care for S.T.
We do not agree. The Supreme Court has made clear that the burden is on the parent seeking custody to establish that he (or she) is “available, willing, and able to provide proper care” to the child. There is no requirement that the parent be perfect or have an unblemished record. See, e.g., id. at 158 (observing that “the bare fact that a parent has been indicated for an instance of neglect does not, by itself, automatically disqualify that parent from maintaining custody”). See also In re Yve S., 373 Md. 551, 566 (2003) (“[A] parent’s liberty interest in raising a child [is] a fundamental one that cannot be taken away unless clearly justified.” (cleaned up)). Moreover, one of the purposes of the CINA statute is “[t]o conserve and strengthen the child’s family ties and to separate a child from the child’s parents only when necessary for the child’s welfare[.]” CJP § 3-802(a)(3).
In our view, there were sufficient facts before the juvenile court to support its conclusion that Father was willing and able to properly care for S.T. First, Father was present for the hearing and expressed a keen desire to care for S.T. Second, Father testified that he had moved to a larger home so that S.T. could have her own bedroom. And third, Father testified that he is gainfully employed, would enroll S.T. in the local middle school, had a large and supportive family and friend network, and had researched mental health resources should S.T. reside with him. In short, we are persuaded that the court did not err in finding that Father is “available, willing, and able to provide proper care” for his daughter.
That finding, however, does not end the analysis because only upon its determination that doing so would be in S.T.’s best interest could the court exercise its discretion to award custody of S.T. to Father. In making the best interest determination, what the Supreme Court stated in In re T.K. is instructive: [S]uch a hearing need not look identical to a best interest custody hearing of the type that would ordinarily occur in a family law case, nor must an overburdened juvenile court hold an evidentiary hearing when all the evidence that is relevant and material is already in the record. The sustained findings that the juvenile court must necessarily already have made in a CINA adjudicatory proceeding to satisfy the first prerequisite to the exercise of discretion under § 3-819(e) will, in many cases, likely obviate the need to consider evidence relating to many of the factors that would otherwise be relevant to a custody determination. As a result, although consideration of the factors listed in Montgomery County Department of Social Services v. Sanders, 38 Md. App. 406 (1978), and Taylor v. Taylor, 306 Md. 290 (1986), will often be helpful to a juvenile court considering a § 3-819(e) best interest analysis, the juvenile court should exercise its discretion in determining which factors and what evidence may be relevant to the best interest determination it must make in each individual case.
480 Md. at 153-54.
Here, Mother has not challenged the court’s findings that she had abused and neglected S.T. and that she was presently unable to care for her. Although the court did not review on the record all the Sanders/Taylor factors a court may consider when making a custody ruling, the court, in announcing its decision in this case articulated that its was guided by what “is in the best interest of the child” in reaching that decision.7 As
mentioned, the court noted that Father had moved to a larger home with a bedroom dedicated for S.T.; Father had researched the schools in his district and explored mental health resources for S.T.; Father was gainfully employed; Father had a “safety net around him of family and friends”; and there was no evidence of Father having any substance abuse issues. The court was also aware that Father had been married for five years and assists in the care of his stepson.
The court did consider Father’s conviction following a domestic violence incident with Mother. Noting that Father “did not minimize that” incident and finding it an “important” factor, it also “weigh[ed] the fact that it [happened] a decade ago.” In making a custody determination, a court should consider “‘the totality of the situation in the alternative environments’ and avoid focusing on or weighing any single factor to the exclusion of all others.” Jose v. Jose, 237 Md. App. 588, 600 (2018) (quoting Best v. Best, 93 Md. App. 644, 656 (1992)). In discussing Father, the court noted that he had “taken positive, deliberate steps in an effort to obtain custody of S.T.[,]” and, after reviewing the evidence before it, concluded that Father “is most willing and capable” of care for his daughter.
We are not persuaded that the court erred or abused its discretion, as Mother asserts, by not delaying a custody decision pending a background check of Father. Again, the court took into consideration the decade old conviction. The court found Mother’s testimony, which included several instances of alleged abuse against her by Father, to be “inconsistent” and “difficult to follow at times.” The court also heard Father’s testimony regarding the same instance and his testimony of no instances of domestic violence with his wife, to whom he has been married
five years, or his stepson. In short, it appears that the court found Father more credible than Mother. That court, unlike an appellate court, had the opportunity to both hear the testimony and observe the parties. For that reason, we decline “to secondguess the trial judge’s assessment of a witness’s credibility” in this case. Gizzo v. Gerstman, 245 Md. App. 168, 203 (2020).
Although Father resided in Texas and had not visited with S.T. in a number of years, he was not a stranger to her. The court heard evidence that Father had voluntarily sent Mother child support over the years and made attempts to communicate with S.T., which were often thwarted by Mother. Both Father and Mother testified that Father had made efforts to include S.T. in his 2019 wedding celebration. And Father testified that, since the filing of the CINA petition several months prior, he and S.T. communicate daily. And the court was aware that S.T. desired to reside with Father.
The court also took into consideration its observations of the children throughout the proceeding in court, taking note of their non-verbal behavior and how they interacted with each other, with Father, and with their attorney. The court clarified that its decision was “based on all of the evidence[,]” and its personal observations of the children were not “driving” its ruling, but served to “bolster[]” its “ultimate decision.”
In sum, we are persuaded that the court’s finding that Father is willing and able to provide proper care for S.T. was supported by the evidence before it and that the court based its decision to grant custody to Father on what it determined to be in S.T.’s best interests. That the court exercised its discretion to award custody to Father was not, in our view, an abuse of its discretion.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY, SITTING AS A JUVENILE COURT, AFFIRMED. COSTS TO BE PAID BY MOTHER.
FOOTNOTES
1 The Department filed a separate petition for S.T.’s brother, J.C., who would turn eighteen years old in June 2024. At the adjudicatory and disposition hearings held on January 30, 2024, Mother “acquiesc[ed] . . . that she [was] not in a position right now today to care for the children.” Although J.C.’s father participated in the CINA proceeding, he too was unable to care for J.C. as he was then incarcerated. The court ultimately determined J.C. a CINA and continued his commitment to the Department. This appeal relates to S.T. only. Any information regarding J.C. is provided for context.
2 Mother phrased her questions presented as follows:
1) Did the trial court erroneously close the CINA case when Mother presented evidence that Father had a history of violence toward mother and child, Father had no substantial contacts or relationship with child and the Department did not fully investigate [F]ather’s criminal history, employment, and home adult occupants[?]
2) Did the Department’s failure to investigate Father’s history and home warrant the [c]ourt’s further intervention
to ensure the paramount interests of the safety of a child before sending the child out of state[?]
3) Was there [ins]ufficient evidence to find that S.T. was not a child in need of assistance and to award custody under the statute?
3 The Department, Mother, S.T.’s Father, J.C.’s Father, and the children were all represented by counsel.
4 Mother and Father never married and there was never any court involvement regarding custody or child support.
5 Father testified that his employer is “fast tracking” to make him a supervisor and he expects to receive a raise upon that happening.
6 S.T. had been late for school nineteen times that school year.
7 Moreover, given that Mother was not seeking custody, but merely opposing the grant of custody to Father, many of the Sanders and Taylor factors a court considers when making a custody determination involving two parents were not applicable here.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Frederick County Circuit Court’s order that father not abuse, threaten to abuse and/or harass his minor child, not to contact her and to stay away from the child’s residence, school and childcare providers. The judge clearly articulated the evidence that supported her finding of sexual abuse, and her finding was in accordance with the protective order statute.
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 April 25, 2023, Appellee filed a second petition for a protective order on behalf of N.T., alleging abuse. The court ordered the Department of Social Services to conduct an investigation, and, on September 29, 2023, the court held a final protective order hearing. Appellant appeared pro se and Appellee was represented by counsel. Both parties viewed the report submitted by DSS prior to the beginning of the proceedings.
At the hearing, Appellee testified that, in December of 2022, her daughter returned home from a visit with Appellant and complained that her vagina was “bleeding.” Appellee observed that the area was swollen and she took her to Frederick Health Hospital where the child was treated. Appellee testified that she “followed their instructions on how to care for her until she healed.”
This is an appeal from the issuance of a final protective order by the Circuit Court for Frederick County. Following a hearing, the court ordered Appellant, Marquia Dominicq Waiters, not to abuse, threaten to abuse and/or harass his minor child, not to contact her and to stay away from the child’s residence, school, and childcare providers. Appellee, Yvonne Denise Taylor, was awarded full custody and Appellant was granted supervised visitation. Appellant timely filed a Motion for a New Trial and his motion was denied by the court. Appellant then noted this appeal. He presents one question for our review:
1. Whether the trial court erred in signing the final protective order dated September 29, 2023, as there were no factual findings to support Appellee’s allegation of sexual abuse?
For the reasons that follow, we affirm the judgment of the circuit court.
BACKGROUND
N.T. is the daughter of Appellant, her father, and Appellee, her mother. On December 29, 2022, Appellee filed a petition for a protective order against Appellant on behalf of N.T., who was four years old, in the Circuit Court for Frederick County. She alleged that Appellant sexually abused N.T. during a visit between December 22, 2022, and December 25, 2022. Appellee sought a protective order limiting Appellant’s contact with N.T. The court ordered that an investigation be conducted by the Department of Social Services. An investigation was completed, the report was forwarded to the court and the parties viewed the report prior to the proceedings. On January 4, 2023, the court held a final protective order hearing and denied the petition.
In January 2023, N.T. began seeing a therapist once a week. During her sessions, she made certain disclosures about Appellant. Her therapist reported those disclosures to the social worker assigned to the investigation. According to the DSS report, which was admitted into evidence, N.T. told her therapist on January 16, 2023, that Appellant was touching her inappropriately and not during bath time. On April 20, 2023, N.T. again disclosed to her therapist that Appellant was touching her inappropriately. N.T. expressed to her therapist that she did not want to visit Appellant’s house because she felt unsafe, slept on the floor, and did not receive food.
Appellant testified at the hearing and denied touching N.T. inappropriately. He stated that he did not bathe his daughter and further that Appellee was responsible for any abuse. Appellant objected to specific statements in the DSS Report arguing that they were inadmissible hearsay because the social worker’s identity was not stated and the worker was not present to testify. The circuit court overruled the objections, citing the “hearsay exception with regard to a final protective order conducted pursuant to the Code.”1
At the conclusion of the hearing, the court ruled that there was a preponderance of evidence to believe that Appellant committed sexual abuse of his minor child, N.T. The court ordered Appellant to not abuse, threaten to abuse, contact or attempt to contact the minor child, and to stay away from the child’s residence and school. Custody was awarded to Appellee and Appellant was granted supervised visitation.
On October 10, 2023, Appellant filed a Motion for a New Trial. The motion was denied by the court on October 31, 2023. Appellant filed this timely appeal.
STANDARD OF REVIEW
In reviewing a trial court’s grant of a final protective order, this Court accepts “the circuit court’s findings of facts, unless they are clearly erroneous.” C.M. v. J.M., 258 Md. App. 40, 58 (2023) (citing Md. Rule 8-131(c)). We give deference to the trial court’s assessments of witness credibility because it had the “opportunity to gauge and observe the witnesses’ behavior and testimony.” Barton v. Hirshberg, 137 Md. App. 1, 21 (2001). The evidence is reviewed “in a light most favorable to the prevailing party[.]” Friedman v. Hannan, 412 Md. 328, 335 (2010) (quoting Ryan v. Thurston, 276 Md. 390, 392 (1975)). “As to the circuit court’s ultimate conclusion, we must make our own independent appraisal by reviewing the law and applying it to the facts of the case.” C.M., 258 Md. App. at 58 (quoting Piper v. Layman, 125 Md. App. 745, 754 (1999)).
DISCUSSION
I. The circuit court did not err in granting a final protective order.
A petitioner, related to a child by blood, marriage or adoption may seek relief from abuse on behalf of the minor child. Md. Code Ann., Fam. L. § 4-501(m). The court may grant a final protective order when a petitioner proves “by a preponderance of the evidence that the alleged abuse has occurred[.]” Md. Code Ann., Fam. L. § 4-506(c)(1)(ii). A final protective order may be granted to protect any person eligible for relief from abuse. Id.
Abuse, under Section 4-501, includes sexual contact, as defined by the Criminal Law Article. Md. Code Ann., Fam. L. § 4-501(b)(iv). Sexual contact is the intentional touching of a victim’s genital or intimate area for sexual arousal, gratification or for the abuse of either party. Md. Code Ann., Crim. L. § 3-301(e)(1). Sexual contact does not include familial or friendly affection or an act for accepted medical purposes. Md. Code Ann., Crim. L. § 3-301(e)(2).
Appellant argues that the evidence presented at the protective order hearing did not support a finding of sexual abuse. Appellant contends the DSS report did not specifically point to sexual abuse, “the daughter did not specifically point to sexual abuse,” her reports were “vague”, and the court did not recite sufficient facts as a basis for its findings. Appellee did not file a brief in this matter, or otherwise, participate in this appeal.
Both parents testified at the protective order hearing and the parties also gave closing arguments. The DSS report was admitted into evidence and the court noted that its ruling was based, in large part, on the report. The court began its ruling by first, recounting the pertinent testimony. The court specifically referred to the DSS report which stated that the minor child disclosed that she had been touched vaginally several times by Appellant. There was testimony from the Appellee as to the time frame and details related to the
FOOTNOTES
1 Md. R. Evid. 5-803 (b)(8)(A)(iv) allows factual findings reported to the court pursuant to Md. Code Ann.,
incidences. Appellee also testified to taking the child to the hospital following a visit with Appellant, where the child complained that her vaginal area was swollen. Both the child’s characterization and Appellee’s account indicated that the contact was not associated with bath time. Approximately one month later, the child engaged in therapy and she eventually made separate disclosures to her therapist regarding sexual contacts by Appellant. In her ruling, the judge stated:
[T]he Court is concerned, when it looks at the report – and it is a preponderance of the evidence standard – with regard to the paragraph, particularly, that this worker spoke with [N.T.]’s therapist, Ms. Dorian Campbell-Temple, and she has disclosed twice that her father was touching her. The first time Ms. Campbell-Temple asked [N.T.] if it was during bath time. [N.T.] said no. The second time [N.T.] disclosed to her but did not disclose to her mother. She stated [N.T.] has said that she is unsafe at her father’s house, that she sleeps on the floor at her father’s house, that he does not feed her, and she’s reportedly also stated that she does not want to go to her father’s house.
The Court, as such, what I also further note, that in these hearings the Court always – and in this case – has made a credibility assessment, and I have considered the testimony of the parties and the credibility therein, including the manner in which they testified, and obviously in this case, both parties –the Court’s considered the motive in this case with regard to both parties.
After the appearance of the petitioner, petitioner’s counsel, and the respondent, the Court notes that the person eligible for relief . . . is an individual who has a child in common with the respondent, one child, age 5.
There is a preponderance of the evidence, this Court finds for the reasons stated, to believe that the respondent committed the following acts of abuse: sexual abuse of a child . . . statutory abuse of a child, sexual.
Appellant cites Musser v. Christie in support of his argument that the evidence was vague and thus, insufficient. 131 Md. App. 200 (2000). In Musser, however, the trial judge, in an abuse case, made no findings of physical or mental injury as was required by the statute. Id. at 207. We reversed the judgment of the court, as a result. Id.
Here, the judge clearly articulated the evidence that supported her finding of sexual abuse, and her finding was in accordance with the protective order statute. The court’s ruling was based on the DSS report, as well as its assessment of the credibility of the witnesses. We hold the court did not err in finding that there was sufficient evidence of sexual abuse by Appellant to warrant the issuance of a final protective order.
Fam. Law § 4-505 to be admitted into evidence in a final protective order hearing, provided that the parties have had a fair opportunity to review the report.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Prince George’s County Circuit Court’s disposition of the parties’ respective pensions. Husband provided no notice that he objected to an “if, as, and when” valuation, and the parties did not present evidence at trial as to the value of their pensions. On this record, it was error for the circuit court to set off on pension against another.
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.
purchased the marital home in Beltsville. On June 2, 2022, Wife filed a complaint for absolute divorce. Husband filed an answer and counter-complaint for absolute divorce, and Wife amended her complaint for an absolute divorce.
The circuit court held a merits trial on May 24, 2023. Both parties were represented by counsel, and the parties submitted a Joint Statement Concerning Marital and Nonmarital Property, pursuant to Maryland Rule 9-207 (“Joint Property Statement”).
On July 24, 2023, the Circuit Court for Prince George’s County granted an absolute divorce to appellant, Nicole Gilbert (“Wife”), and appellee, Kurt Ullyseese Gilbert (“Husband”). The court also distributed the parties’ marital property and denied Wife’s request for attorneys’ fees. Wife timely appealed that judgment and presents the following issues, which we have rephrased as follows:
1. Whether the trial court erred in its distribution of the marital property, specifically:
A. Whether the trial court made clearly erroneous factual findings;
B. Whether the trial court erred in failing to value the parties’ pensions and in transferring title to personal property;
C. Whether the trial court erred in failing to consider the required statutory factors before making a monetary award.
2. Whether the circuit court abused its discretion in declining to award Wife attorneys’ fees.
3. Whether the trial judge should be recused from hearing this matter on remand.
For the reasons set forth below, we shall vacate the judgment of the circuit court and remand for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
The parties married on June 15, 1996, in Roanoke, Virginia. During the marriage, the parties had two children together, both of whom were emancipated at the time of trial. In 2008, the parties
Wife, age 53, has a master’s degree in social work and a bachelor’s degree in psychology. Wife was employed as a therapeutic social worker and administrator for the duration of the marriage. She worked for Catholic Charities from 1997 to 2006, and she was the Deputy Director for the Healthy Families Thriving Communities Collaborative Council from 2006 to 2012. Since 2013, Wife has been employed with the District of Columbia Department of Children and Family Services, overseeing assessments and investigations of abused and neglected children. She was promoted to Deputy Director in 2021. At the time of trial, Wife’s annual income was $169,789.
Wife’s work was stressful, requiring her to handle difficult cases of abused and neglected children in foster care, and she was often on-call during evening hours. Wife was the primary caregiver, working a traditional 9:00 a.m. to 5:00 p.m. schedule so that she could care for the children after school, take them to activities, and support Husband’s rotating police schedule. Husband assisted Wife in caring for the children and managing the home. Wife also managed the family’s finances, and from 2009 through 2020, the parties shared a joint checking account.
In 1993, Husband, age 54, began working as a police officer for the Takoma Park Police Department (“TPPD”). Husband was earning approximately $138,000 per year when he retired in October 2020, after twenty-seven years. In November 2020, he began working for the Bladensburg Police Department (“BPD”), where he earned approximately $90,000 per year. In June 2022, he retired from police work. Husband’s police schedule fluctuated between day shifts, evening shifts, and overnight shifts, and often included weekends. Husband struggled with stress and insomnia due to the challenges of his job and the shiftwork. According to Husband, Wife was supportive of his work and his health struggles.
In 2008, the parties began experiencing marital difficulties. Wife testified that she learned that Husband was having an extramarital relationship. As a result of the parties’ marital problems, Wife began experiencing cardiac pain, numbness in her arms and face, lightheadedness, headaches, and vertigo. In or about 2010, Husband moved into the family’s guest room, but continued living in the family home.
Husband denied having a sexual relationship outside the
marriage. According to Husband, in 2014, he learned that he had contracted a sexually transmitted disease from Wife, causing him to suffer anxiety and depression.1 In May of 2014, Husband leased an apartment in Takoma Park close to the police station because he felt that he needed space to try and get his anxiety “under control.”
He told Wife that he planned to rent the apartment on a monthly basis, but he signed a one-year lease “by mistake.” In 2010, Husband had started a vending machine business. He used the apartment to store product for the vending machines.
Early in the marriage, the parties discussed increasing the amount of contributions to their respective retirement accounts. Husband informed Wife that he was “paying extra money toward the Takoma Park retirement” in order to increase his pension, which Wife understood to be for the benefit of both parties. Husband receives a monthly pension payment of $4,300 from TPPD. He testified that he was seeking an award of one hundred percent of his pension, which he stated, is “just enough for [him] to get by.”
Husband had a Mission Square 457(b) retirement account with a balance of approximately $18,000;2 a New York Life Securities account that, according to Husband, had a balance of $176,929.54; and a Maryland State Retirement and Pension Systems account with a balance of $10,051.22 that was payable upon a single lump sum withdrawal.
Wife’s Mission Square 401(a) deferred compensation plan was valued at $269,957.98, and her Mission Square 403(b) account was valued at $72,463.61. Wife testified that she had a pension through Catholic Charities and that she was projected to receive a monthly pension payment of $621.00 upon her retirement.
The parties disputed the value of Husband’s Truist savings account x3013 and checking account x8496. Wife valued Husband’s account x8496 at $42,196.01 and account x3013 at $34,221.21. In the Joint Property Statement, Husband reported $11,000 in account x3013 and a zero balance in account x8496. At trial, he stated that his account x3013 had a balance of $300. Husband stated that he used the funds in his accounts to pay his increased rent, attorneys’ fees, and living expenses, but he failed to produce any records in discovery or at trial showing his expenditures.
The marital home was valued at $650,000 with an outstanding mortgage of $451,157, resulting in a net equity of approximately $198,843. The parties valued the furniture in the home at $13,200 and Wife’s jewelry at $2,000. Wife requested that she be awarded the marital home, where she was living with the parties’ daughter.
On June 29, 2023, the court delivered an oral opinion as to the divorce and the division of marital property, followed by a written order. The court granted the parties an absolute divorce on the ground of a twelve-month separation.
The court ordered the sale of the marital home and the proceeds to be divided equally, further ordering that Husband’s share of the proceeds was to be reduced by $42,196.01 plus an additional $22,797.30, representing funds the court found that Husband had dissipated. The court awarded Wife the furniture, valued at $13,200, and her jewelry, valued at $2,000. Each party was awarded sole ownership of the vehicle in his and her name, and Husband retained sole ownership of the vehicle utilized by the parties’ daughter. The court ordered that each party was to retain sole ownership of their individually titled bank accounts, retirement accounts, and pensions. The court denied Wife’s request for attorneys’ fees.
Wife filed this appeal.
DISCUSSION
Standard
of Review
We review the rulings of a circuit court sitting without a jury, “on both the law and the evidence.” Md. Rule 8-131(c). We review a trial court’s factual findings under the clearly erroneous standard of review and determine whether the court’s findings are supported by substantial evidence in the record. Innerbichler v. Innerbichler, 132 Md. App. 207, 230 (2000). “‘When a trial court decides legal questions or makes legal conclusions based on its factual findings, we review these determinations without deference to the trial court.’” Plank v. Cherneski, 469 Md. 548, 569 (2020) (quoting MAS Assocs., LLC v. Korotki, 465 Md. 457, 475 (2019)).
1.
Equitable Distribution of the Marital Property
Wife asserts that the trial court erred in distributing the pensions because the parties had waived any distribution other than on an “if, as, and when” basis or, alternatively, that it erred in failing to value the parties’ pensions. Wife further contends that the trial court erred in failing to consider the statutory factors before making two monetary awards, referring to the findings of dissipation and the consequent reduction of sale proceeds to Husband. Husband responds that the trial court properly valued the parties’ marital property, considered the relevant statutory factors, and did not abuse its discretion in making its award.
A. Statutory Framework
Section 8-202(a)(1) of the Family Law Article (“FL”) of the Maryland Code (1984, 2019 Repl. Vol.) authorizes a trial court, in the context of a divorce proceeding, to “resolve any dispute between the parties with respect to the ownership of personal property.” In making a proper division of marital property upon divorce, trial courts must utilize a three- step process. Abdullahi v. Zanini, 241 Md. App. 372, 405 (2019); FL §§ 8-203–205. First, the trial court must determine which property is marital. Abdullahi, 241 Md. App. at 405 (citing FL § 8-203(a)). Second, the court must value the property. Id. (citing FL § 8- 204(a)). Third, the court must determine whether distribution of the marital assets by title would be unfair, and if so, the court may adjust any inequities in property ownership by granting a monetary award or transferring ownership of an interest in a pension or retirement account, or both. Id.; FL § 8-205. “[T] he purpose of going through the steps outlined is to acquire the requisite information from which an informed, equitable decision can be made.” Jandorf v. Jandorf, 100 Md. App. 429, 440 (1994).
At step three, when deciding whether to order a monetary award or transfer an interest in property, courts must comply with FL § 8-205(b), which requires the court to consider each of the following factors before making an award:
(1) the contributions, monetary and nonmonetary, of each party to the well- being of the family;
(2) the value of all property interests of each party;
(3) the economic circumstances of each party at the time the award is to be made;
(4) the circumstances that contributed to the estrangement of the parties;
(5) the duration of the marriage;
(6) the age of each party;
(7) the physical and mental condition of each party;
(8) how and when specific marital property or interest in property described in subsection (a)(2) of this section, was acquired, including the effort expended by each party in accumulating the marital property or the interest in property described in subsection (a)(2) of this section, or both;
(9) the contribution by either party of property described in § 8-201(e)(3) of this subtitle to the acquisition of real property held by the parties as tenants by the entirety;
(10) any award of alimony and any award or other provision that the court has made with respect to family use personal property or the family home; and
(11) any other factor that the court considers necessary or appropriate to consider in order to arrive at a fair and equitable monetary award or transfer of an interest in property described in subsection (a)(2) of this section, or both.
FL § 8-205(b); see also Abdullahi, 241 Md. App. at 406; Hart v. Hart, 169 Md. App. 151, 161 (2006); Otley v. Otley, 147 Md. App. 540, 547 (2002).
In this case, the circuit court completed the first step in the process outlined above, and found that all of the property was marital property. In valuing the marital property, the court accepted the parties’ valuations as to the marital home, furniture, vehicles, and the parties’ retirement accounts. The court found that Husband had dissipated funds in the amount of $42,196.01 from his checking account x8496 and $22,797.30 from his savings account x3013. With regard to the parties’ pensions, the court found: [Wife] requested a share of [Husband’s] pension in this case, which again, I certainly find that [Husband’s] pension is marital property.
But I also – the [c]ourt has to make a finding or its decision has to be one that reflects an equitable distribution of that marital property.
And what is clear and unequivocal is that [Wife] currently and for quite some time has earned, based on the testimony and the documents that were submitted in this case, has earned substantially more money than [Husband].
[Husband’s] current income is his pension, which is approximately $4,600 a month. [Wife’s] monthly income is I believe over $13,000, as she earns almost $170,000 a year. And she works for the Federal government.
And so what the [c]ourt has decided, based on the evidence in this case and because it is my responsibility to equitably divide the property, the marital property of the parties, is that the [c]ourt . . . will divide the proceeds as follows.
receiving a monthly pension payment.3 She testified that she was entitled to a Catholic Charities pension, which she projected to be $621.00 per month upon her retirement. See Hoang v. Hewitt Ave. Assocs., LLC, 177 Md. App. 562, 576 (2007) (“A factual finding is clearly erroneous if there is no competent and material evidence in the record to support it.”). Though the circuit court’s erroneous finding as to Wife’s pension was the basis, in part, of the marital property awards, we need not determine the extent that the circuit court’s error contributed to the awards because those awards must be vacated for the reasons below. See Pac. Mortg. & Inv. Grp., Ltd. v. LaGuerre, 81 Md. App. 28, 34-35 (1989) (vacating injunction that was issued based on erroneous factual finding and legal error).
B. Pension Valuation
Maryland courts employ three methods of valuing pension and retirement benefits:
“First, a trial court could calculate the value of the member’s contributions to the pension during the marriage, plus interest. Second, the court could attempt to compute the present value of the pension when it vests. Third, the court could determine a fixed percentage for [the spouse] of any future payments [the pension recipient] receives under the plan, payable to [spouse] as, if, and when paid to [the pension recipient].ˮ Abdullahi, 241 Md. App. at 421 (internal quotation marks, further citation, and footnote omitted) (quoting Dziamko v. Chuhaj, 193 Md. App. 98, 111 (2010)).
It is unnecessary to value a pension, however, if the party requesting the award agrees to an award on an “if, as and when” basis. Cynthia Callahan & Thomas C. Ries, Fader’s Maryland Family Law § 13-16(n) (7th ed. 2021); see FL § 8-204(b)(1) (providing that a court “need not determine the value of a pension, retirement, profit sharing, or deferred compensation plan, unless a party has given notice in accordance with paragraph (2) of this subsection that the party objects to a distribution of retirement benefits on an ‘if, as, and when’ basis”); see also Otley, 147 Md. App. at 547. If a party objects to distribution on an “if, as, and when” basis, that party may present evidence of the value of the retirement benefits. FL § 8-204(b)(2). However, if no notice is given, any objection to distribution on an “if, as, and when” basis is waived. Id.; see Abdullahi, 241 Md. App. at 422 (holding that, where neither party gave notice of an objection pursuant to FL § 8-204(b) (1), the trial court was required to distribute the parties’ pensions on an “if, as, and when” basis, or its equivalent, and the trial court erred in setting off one spouse’s pension against another).
So, to be clear, [Husband] will retain his pension from the City of Takoma Park, for which he is currently receiving $4,690.65, and [Wife] will retain her Catholic Charities pension, for which she is currently receiving $621.83.
But again, if you look at the value of the other bank accounts and retirement accounts that are in the names of each of the parties, I believe that this constitutes a fair and equitable distribution of the assets of both of the parties.
The court’s finding that Wife was currently receiving her pension was erroneous, as there was no evidence that Wife was
Under the “if, as and when” distribution method, known as the Bangs4 formula, the court calculates the marital portion of a pension using “‘a fraction of which the number of years and months of the marriage [ ] is the numerator and the total number of years and months of employment credited toward retirement is the denominator[.]’” Dziamko, 193 Md. App. at 112 (quoting Bangs, 59 Md. App. at 356). The non-member spouse’s share is determined by applying a “fixed percentage” to the marital portion of the pension. Id.
Here, Husband provided no notice that he objected to an “if, as, and when” valuation, and the parties did not present evidence at trial as to the value of their pensions. On this record, it was error for the circuit court to set off one pension against another, and we must vacate the judgment and remand for further proceedings. See
Abdullahi, 241 Md. App. at 421 (explaining that in the absence of a valuation of the parties’ pensions, it was “impossible” for this Court to determine the basis for the circuit court’s award). On remand, the circuit court must apply the “if, as, and when” analysis, or an equivalent method, to determine the appropriate distribution of the parties’ pensions. See id. at 422- 23. As explained below, the court must also analyze the factors set forth in FL § 8-205(b) before making a monetary award or transfer of ownership of property.
C.
The FL § 8-205(b) Factors
In deciding whether to order a monetary award or transfer of property, as the court did in this case, the court must make findings based on its consideration of the factors set forth in FL § 8-205(b). See Quinn v. Quinn, 83 Md. App. 460, 464-65 (1990). A court’s failure to consider the statutory factors requires that any monetary award be vacated. Id.; Campolattaro v. Campolattaro, 66 Md. App. 68, 79 (1986).
In this case, the circuit court did not reference FL § 8-205(b) or the statutory factors in its decision, and we cannot tell from the court’s ruling whether the court factored in those considerations in balancing the equities between the parties. “Although the court is not required to recite each factor in making a monetary award, appellate courts must be able to discern from the record that these factors were weighed.” Hart, 169 Md. App. at 166-67; accord Quinn, 83 Md. App. at 466.
There was evidence at trial, for example, as to the age of each party, the mental condition of each party, and the monetary and nonmonetary contributions of the parties to the well-being of the family, though the court did not discuss that evidence in its findings. Wife argues that the trial court focused primarily on Husband’s work as a police officer and ignored evidence of the sacrifices that she made to promote his career and secure his pension benefits. With respect to the economic circumstances of the parties, the court noted that “the parties are for the most part . . . sort of equally situated in terms of their financial status and their contribution to marital property during the marriage.” See FL § 8-205(b)(3) (requiring consideration of the economic circumstances of the parties at the time of the award). The court stated that Wife “currently and for quite some time . . . has earned substantially more money than [Husband,]” noting that Wife earned approximately $13,000 monthly and Husband’s monthly pension was approximately $4,600.
Wife argues that because Husband did not request alimony, the court improperly focused on her non-marital income and conflated the parties’ assets with income. We have noted that alimony and monetary awards serve distinct functions:
[A]limony is intended to provide periodic support to a financially dependent spouse following the divorce. . . . [T]he principal focus is really on the future[.] * * *
A monetary award, on the other hand, is not intended as support, and it focuses not on the future but on the present and past. The sole purpose of the [monetary] award is to assure that the disposition of that property upon the divorce will be equitable in terms of the overall contributions that each party made to the acquisition of the property and to the marriage and its breakup.
Riley v. Riley, 82 Md. App. 400, 406 (1990).
In this case, the circuit court erred in failing to demonstrate
that it considered the factors set forth in FL § 8-205(b). On remand, the court shall decide whether additional evidence is required to address the required statutory considerations, and the court must explain how it balanced the equities in reaching its allocation of the marital assets.
i. Transfer of Ownership of Furniture
Because the issue is likely to arise on remand, we shall address Wife’s contention that the circuit court erred in transferring ownership of the parties’ furniture to her absent the parties’ consent.
FL § 8-205(a)(2)(ii) provides that, “subject to the consent of any lienholders,” the circuit court may transfer the ownership of an interest in family use personal property from one party to another. “Family use personal property” means personal property acquired during the marriage, owned by one or both of the parties, and used primarily for family purposes, and specifically includes “furniture.”
FL § 8-201(d)(1)-(2).
Wife relies on Blake v. Blake, 81 Md. App. 712, 725 (1990), in support of her argument that the circuit court was not authorized to transfer the parties’ furniture to her. In Blake, this Court stated that no provision under FL §§ 8-202 and 8-205 permits the trial court to transfer ownership of personal or real property from one party to the other. 81 Md. App. at 725. Our decision in Blake, however, predated the enactment of subsection (a)(2)(ii) in FL § 8-205, which authorizes the trial court to transfer the ownership of an interest in family use personal property from one party to another. See 2004 Md. Laws, ch. 457 (effective October 1, 2004). Because FL § 8-205(a) (2)(ii) authorizes a court to transfer family use personal property, such as furniture, from one or both parties to either or both parties, the court’s order transferring ownership of the family use furniture to Wife was not error. On remand, the court may or may not choose to reach the same result with regard to the furniture, after applying the statutory factors and balancing the equities.
2.
Attorneys’ Fees
Wife further challenges the circuit court’s denial of her request for attorneys’ fees. Because the case is remanded for reconsideration of the monetary award, the circuit court may also reconsider Wife’s request for attorneys’ fees. See Turner v. Turner, 147 Md. App. 350, 400 (2002) (explaining that “[t]he factors underlying alimony, a monetary award, and counsel fees are so interrelated that, when a trial court considers a claim for any one of them, it must weigh the award of any other”); accord Wasyluszko v. Wasyluszko, 250 Md. App. 263, 283 (2021).
3.
Circuit Court’s Alleged Bias
Wife requests that, on remand, this case be assigned to another judge due to the trial judge’s demonstrated bias in favor of Husband’s history of public service, as evidenced in the following comments: As someone who has worked with law enforcement for the past, over 25 years, I don’t doubt that any of that [the stresses of being a police officer] is correct.
And what I find in this case is that [Husband] as a retired police officer is entitled to have his day in the sun, so to speak.
He should not have to go out and continue to work after he has put in his time and he has made the sacrifice of being a police officer. * * *
But I am not finding that he has to do anything because he has put in the sacrifice as a public servant and I think that anyone who has been a public servant for 25 years should be entitled to enjoy the fruits of that service. So, I just wanted to be clear
about that.
Indeed, courts should avoid any potential appearance of partiality, even where no partiality exists, in order “to promote public confidence in the integrity of the judicial process.” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860 (1988). On remand, we leave the assignment of this matter to the discretion of the circuit court.
JUDGMENT VACATED. CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID 50% BY APPELLANT AND 50% BY APPELLEE.
FOOTNOTES
1 Wife had disclosed the condition to Husband prior to their marriage.
2 Husband reported in the Joint Property Statement that his Mission Square 457(b) account represented retirement funds in the amount of $21,867.70 that he earned prior to the marriage. At trial, he provided no evidence showing the balance in the account as of the
date of the parties’ marriage. The circuit court found Husband’s Mission Square account to be marital property. Husband does not challenge that finding.
3 The court also incorrectly stated that Wife was working for the “Federal government.” The evidence showed that Wife worked for the District of Columbia Department of Children and Family Services.
4 Bangs v. Bangs, 59 Md. App. 350 (1984).
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Anne Arundel County Circuit Court’s award of primary legal and physical custody to mother. In his ruling on the record, the trial court explained many of the best interest factors and the facts he found relevant to each one.
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.
little time with Appellant.
During the hearing, there was testimony that the parties separated in June 2022, after Appellant physically abused Appellee. Appellee alleged that while in the car with Appellant and the minor children, Appellant struck her head and face, and later threatened over the phone to kill her. Following the incident, Appellant was arrested. Appellee petitioned for a protective order against Appellant, and the trial court granted a temporary protective order on June 29, 2022.2 On July 11, 2022, the Circuit Court for Anne Arundel County found by a preponderance of the evidence that Appellant had assaulted Appellee and granted a final protective order. The order prohibited the Appellant from contacting Appellee and awarded Appellee sole custody of the minor children.
This matter began on July 5, 2022, when Appellee, Danielle Bowling, filed a Complaint for Custody against Appellant, Keith Chase. A custody hearing was held before a trial judge on January 10, 2024, and a custody order was entered on February 22, 2024. On February 29, 2024, Appellant filed a timely Notice of Appeal of the custody order.
In bringing his appeal, Appellant presents two questions for appellate review, which the court rephrases into three questions as follows1:
I. Did the trial court err by awarding Appellee primary legal and physical custody?
II. Did the trial court err by requiring supervision during Appellant’s visitation with the children?
III. Did the trial court err by ordering a graduated access and visitation schedule for the Appellant?
For the following reasons, we affirm the ruling of the trial court.
FACTUAL & PROCEDURAL BACKGROUND
The parties in this case are the unmarried biological parents of two minor children, H.C., born July 19, 2020, and N.C., born December 3, 2021. The party’s relationship began in 2019. They cohabitated with their children on-and-off for two and a half years prior to separating.
The parties recall the division of parental responsibility differently. Appellant, Mr. Chase, testified that he was very involved in rearing the young children and formed a strong relationship with them. Appellee testified that she did most of the work raising the children, and that the children spent very
Prior to the final protective order hearing, Appellee also filed a complaint for custody on July 5, 2022. On October 4, 2022, the trial court ordered a custody evaluation. A magistrate presided over a pendente lite custody hearing on October 27, 2022. On December 7, 2022, the magistrate recommended that Appellee, Danielle Bowling, be awarded sole legal, and primary physical custody of the children, and Appellant be granted supervised visitation with the children. The magistrate’s recommendations were adopted by the trial court on January 5, 2023.
Mr. Rick Tabor supervised Appellant’s visitation with the children during the pendente-lite custody arrangement. On February 1, 2023, Appellant and Mr. Tabor got into a disagreement over the phone regarding Appellant’s payments for supervision services. Mr. Tabor later told the court ordered custody evaluator that Appellant was enraged, screaming, and cursing during the dispute. Mr. Tabor did not feel safe supervising visitation after this incident and terminated his services. Though Appellant eventually hired a new visitation supervisor, no further supervised visitations took place.
A final custody hearing was held on January 10, 2024. Appellee’s testimony detailed the facts surrounding the protective order case, and described other occasions when Appellant physically abused her and threatened her.
The court admitted the custody evaluator’s report as a joint exhibit. The court admitted other evidence, including screenshots of threatening text messages sent by Appellant to Appellee, the parties’ financial records, photographs of the parties with their children, and photographs of the Appellee’s injuries following the abuse.
On February 6, 2024, the trial judge delivered a ruling on the record and awarded sole legal and physical custody to the Appellee. The trial court awarded Appellant access to the children on a graduated schedule.
The graduated schedule is divided into seven phases. Phases 1-3 last one month each, Phases 4-6 last two months each, and Phase 7 is the final access arrangement. By complying with each phase’s requirements, Appellant graduates to the next phase. During Phase 1, Appellant has a minimum of two hours of supervised access per week. Unsupervised access begins during Phase 2. As Appellant progresses, he gains increased access time each phase. Upon reaching Phase 7, Appellant has unsupervised access with the children on alternating weekends from Friday to Sunday. The trial court ordered that exchanges of the children are to take place at a Maryland State Police barracks in Glen Burnie, Maryland.
The ruling established a holiday access schedule and procedures for taking vacations with the children The ruling also required the Appellant to pay child support.
The ruling was reduced to a written order filed on February 22, 2024. The written order required the parties to communicate via the co-parenting platform “AppClose,” although this requirement was not discussed during the ruling on the record.
The Appellee was awarded “sole legal and primary physical custody of the children” during the ruling on the record, but the final written order grants Appellee “primary legal custody” of the minor children. These are distinct forms of legal custody.3 In our review, we give credence to the written order’s award of primary legal custody.
Following the decision by the court, Appellant filed a Notice of Appeal to appeal to this Court on February 29, 2024. The instant appeal followed. Appellant filed a brief on May 20, 2024, while Appellee has not participated in this appeal.4
STANDARD OF REVIEW
A. Generally
A reviewing court reviews the trial court’s ultimate custody and visitation decisions for an abuse of discretion. Davis v. Davis, 280 Md. 119, 126-27 (1977). On appeal, the trial court’s factual findings are reviewed for clear error. Id. Alleged legal deficiencies are only overruled if the error is not harmless. Id.
We review final custody and visitation decisions for abuse of discretion by respecting “the trial court’s unique opportunity to observe the demeanor and the credibility of the parties and the witnesses.” Santo, 448 Md. at 626 (quoting Petrini v. Petrini, 336 Md. 453, 470 (1994)) (cleaned up).
The Supreme Court’s decision in Santo outlined how trial courts may abuse their discretion in custody and visitation cases:
Though a deferential standard, abuse of discretion may arise when no reasonable person would take the view adopted by the trial court or when the court acts without reference to any guiding rules or principles. Such an abuse may also occur when the court’s ruling is clearly against the logic and effect of facts and inferences before the court or when the ruling is violative of fact and logic. Put simply, we will not reverse the trial court unless its decision is well removed from any center mark imagined by the reviewing court.
Santo, 448 Md. at 626 (quoting In re Adoption/Guardianship No. 3598, 347 Md. 295, 313 (1997)) (cleaned up)
B. The Best Interests of the Child
The best interests of the child are the determining factor in Maryland custody and visitation decisions. See, e.g., Taylor, 306 Md. at 303 (“We emphasize that in any child custody case, the paramount concern is the best interest of the child.”); Boswell v. Boswell, 352 Md. 204, 219 (1998) (“In Maryland, the State’s interest in disputes over visitation, custody, and adoption is to protect the “best interests of the child” who is the subject matter of the controversy.”).
As compared to a trial court, a reviewing court is “in a much less advantageous position to assure that the child’s welfare is best promoted.” Davis, 280 Md. at 132. While the trial judge “sees the witnesses and the parties, hears the testimony, and has the opportunity to speak with the child” a reviewing court “has only a cold record before it.” Id. at 125. As a result, “trial courts are endowed with great discretion in making decisions concerning the best interest of the child.” Petrini 336 Md. at 469.
DISCUSSION
A.
Appellant’s Contentions
First, Appellant argues that when awarding Appellee primary legal and physical custody, the trial court failed to consider Appellant’s relationship with the children. Specifically, Appellant argues that the trial judge disregarded testimony of Appellant’s relationship with the children prior to their separation. Second, Appellant argues that because the trial judge did not find that the Appellant abused or neglected the children, supervised visitation was unnecessary. Third, Appellant similarly argues that because the trial judge did not find that Appellant abused or neglected the children, the graduated access schedule is unnecessary. In support, Appellant claims his unsupervised vacation time with children is evidence that the graduated schedule was unnecessary.5
B. Analysis
Law Generally Applicable to Custody and Visitation Cases
Maryland case law equips trial judges with several factors (hereinafter “the Best Interest Factors”) to guide them when determining what custody and visitation arrangements are in the best interests of a child. See, e.g., Montgomery Cnty. Dep’t of Soc. Servs. v. Sanders, 38 Md. App. 406; Taylor, 306 Md. 290. The Best Interest Factors include:
(1) The fitness of the parents;
(2) The character and reputation of the parties;
(3) The requests of each parent and the sincerity of the requests;
(4) Any agreements between the parties;
(5) Willingness of the parents to share custody;
(6) Each parent’s ability to maintain the child’s relationships with the other parent, siblings, relatives, and any other person who may psychologically affect the child’s best interest;
(7) The age and number of children each parent has in the household;
(8) The preference of the child, when the child is of
sufficient age and capacity to form a rational judgment;
(9) The capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare;
(10) The geographic proximity of the parents’ residences and opportunities for time with each parent;
(11) The ability of each parent to maintain a stable and appropriate home for the child;
(12) Financial status of the parents;
(13) The demands of parental employment and opportunities for time with the child;
(14) The age, health, and sex of the child;
(15) The relationship established between the child and each parent;
(16) The length of the separation of the parents;
(17) Whether there was a prior voluntary abandonment or surrender of custody of the child;
(18) The potential disruption of the child’s social and school life;
(19) Any impact on state or federal assistance;
(20) The benefit a parent may receive from an award of joint physical custody, and how that will enable the parent to bestow more benefit upon the child.
Azizova v. Suleymanov, 243 Md. App. 340, 345-46 (2019).
Trial courts also consider some additional factors described in Fader’s Maryland Family Law, an oft cited compendium of Maryland domestic relations law:
(1) the ability of each of the parties to meet the child’s developmental needs, including ensuring physical safety; supporting emotional security and positive self-image; promoting interpersonal skills; and promoting intellectual and cognitive growth;
(2) the ability of each party to meet the child’s needs regarding, inter alia, education, socialization, culture and religion, and mental and physical health;
(3) the ability of each party to consider and act on the needs of the child, as opposed to the needs or desires of the party, and protect the child from the adverse effects of any conflict between the parties;
(4) the history of any efforts by one or the other parent to alienate or interfere with the child’s relationship with the other parent;
(5) any evidence of exposure of the child to domestic violence and by whom;
(6) the parental responsibilities and the particular parenting tasks customarily performed by each party, including tasks and responsibilities performed before the initiation of litigation, tasks and responsibilities performed during the pending litigation, tasks and responsibilities performed after the issuance of orders of court, and the extent to which the tasks have or will be undertaken by third parties;
(7) the ability of each party to co-parent the child without disruption to the child’s social and school life;
(8) the extent to which either party has initiated or engaged in frivolous or vexatious litigation, as defined in the Maryland Rules; and
(9) the child’s possible susceptibility to manipulation by a party or by others in terms of preferences stated by the child.
Id. at 346-47 (quoting Cynthia Callahan & Thomas C. Ries, Fader’s Maryland Family Law § 5-3(a), at 5-9 to 5-11 (6th ed. 2016)).
The Best Interest Factors are “not intended to be all-inclusive, and a trial judge should consider all other circumstances that reasonably relate to the issue.” Taylor, 306 Md. at 311. See also Petrini, 336 Md. at 469 (“While custody determinations must be made on a case-by-case basis due to the uniqueness of the fact patterns in such disputes, factors relied upon in past cases can be used to guide the trial court’s decision-making process.”).
Furthermore, when making custody and visitation decisions trial judges are required by statute to consider both evidence of abuse or neglect of the subject child and evidence of abuse of certain other household members. Md. Code Ann., Fam. Law § 9-101 (abuse or neglect of subject child); Md. Code Ann., Fam. Law § 9-101.1 (abuse of household members).
I. Did the trial court err by awarding Appellee primary legal and physical custody?
We find that the trial judge properly considered the best interests of the children when he awarded primary legal and physical custody to Appellee. In his ruling on the record, the trial court explained many of the Best Interest Factors and the facts he found relevant to each one.6
We need not review the trial judge’s entire analysis of each Best Interest Factor to show he neither erred nor abused his discretion. Gizzo v. Gerstman, 245 Md. App. 168, 195-96, 226 A.3d 372, 389 (2020) (“Generally, even where the trial court must issue a statement explaining the reasons for its decision, the court need not articulate every step of the judicial thought process in order to show that it has conducted the appropriate analysis.”). We instead focus on the Best Interest Factors implicated by Appellant’s arguments.
One Best Interest Factor is the existing relationship between a child and the parent seeking custody. Trial judges are more likely to award custody to parents with strong bonds with their children than to those with fraught relationships. Taylor, 306 Md. at 308 (“When both parents are seen by the child as a source of security and love, there is a favorable climate for joint custody. On the other hand, joint custody may be inappropriate when opposed by the child, or when there are indications that the psychological or emotional needs of the child would suffer under a joint custody arrangement.”).
A closely related Best Interest Factor is the amount of time a parent has been separated from their child. If a parent has had a long separation from their child, it is likely not in the best interests of a child to award that parent custody. Ross v. Hoffman, 280 Md. 172, 189 (1977) (quoting Dietrich v. Anderson, 185 Md. 103, 119 (1945) (“It is an obvious fact, that ties of blood weaken, and ties of companionship strengthen, by lapse of time, and the prosperity and welfare of the child depend on the number and strength of these ties...”).
The trial court clearly considered the Appellant’s relationship with the children when considering the children’s best interests. At the time of the merits hearing in January 2024, Appellant had not seen the children since February 2023 and had not lived with the children since June 2022. As a result of this long absence, the trial judge found that the children, particularly the
younger N.C., likely did not have a significant relationship with Appellant:
…I recognize that [N.C.] right now probably doesn’t, you know, have much of a bond with [Appellant] because [Appellant] hasn’t seen [N.C.]… [N.C.] needs to get to know you Mr. Chase…I know you are frustrated by that, but I’m here charged to do what’s best for the kids, and [N.C.] needs to get to know you.
The children in this case were two and three years old at the time of the custody hearing. Appellant’s 18-month absence spanned a significant portion of their young lives. The trial court appropriately considered the impact of Appellant’s absence on forming a meaningful relationship with the children.
Appellant claims the trial judge “omitted any mention of the relationship” he had with the children prior to their separation. The record reflects the opposite. The trial judge stated, “[t]here was disputed testimony about [Appellant’s] relationship when the children were young. But I took all that, you know, all of that into account.”
The trial court did not err nor abuse its discretion. The decision to award Appellee primary legal and physical custody was made with the best interests of the children in mind and was supported by the facts of the case and the evidence presented at the merits hearing.
II. Did the trial court err by requiring supervision during Appellant’s visitation with the children?
We further hold that the trial court properly considered the best interests of the children in requiring supervised visitation for the Appellant during Phase 1 of the custody order.
Trial courts have broad power to craft visitation arrangements designed to protect a child’s best interests. Wagner v. Wagner, 109 Md. App. 1, 42 (1996) (“The parens patriae power of the equity courts is plenary to afford minors whatever relief may be necessary to protect their best interests.”). When in the child’s best interests, a parent’s “visitation may be restricted or even denied.” Boswell, 352 Md. at 221.
Appellant’s argument appears to claim, without citation, that supervised visitation is unnecessary because there was no specific judicial finding on the likelihood of abuse or neglect by the Appellant.7 This argument mistakenly assumes that supervised visitation is only warranted after a finding of abuse or neglect under FL § 9-101.8
FL § 9-101 instructs judges to consider abuse or neglect of a child in rendering custody decisions:
(a) In any custody or visitation proceeding, if the court has reasonable grounds to believe that a child has been abused or neglected by a party to the proceeding, the court shall determine whether abuse or neglect is likely to occur if custody or visitation rights are granted to the party.
(b) Unless the court specifically finds that there is no likelihood of further child abuse or neglect by the party, the court shall deny custody or visitation rights to that party, except that the court may approve a supervised visitation arrangement that assures the safety and the physiological, psychological, and emotional well-being of the child.
FL § 9-101.
Importantly, prior to ordering supervised visitation under
FL § 9-101, trial judges are required to make a specific finding that there is no likelihood of abuse or neglect. It states, “unless the court makes a specific finding that there is no likelihood of further child abuse or neglect by the party the court must deny the party’s request for custody or unsupervised visitation.”
Gizzo, 245 Md. App. at 184 (internal quotation marks omitted) (quoting Md. Code Ann., Fam. Law § 9-101(b)).
The finding of abuse must be made unambiguously because “FL § 9-101 requires the trial court to make a specific finding and does not envision an appellate court assuming the required finding from other disparate statements by the trial judge.”
Id. at 199 (quoting In re Adoption No. 12612 in Cir. Ct. for Montgomery Cnty., 353 Md. 209, 232 (1999) (cleaned up).
FL § 9-101.1 further directs trial judges to consider abuse of certain household members other than the subject child:
In a custody or visitation proceeding, the court shall consider, when deciding custody or visitation issues, evidence of abuse by a party against:
(1) the other parent of the party’s child
(2) the party’s spouse; or
(3) any child residing within the party’s household, including a child other than the child who is the subject of the custody or visitation proceeding.
FL § 9-101.1(b).
If abuse occurred to one of these household members, trial courts are instructed to craft custody and visitation arrangements in the best interests of the child and the victim of abuse:
If the court finds that a party has committed abuse against the other parent of the party’s child, the party’s spouse, or any child residing within the party’s household, the court shall make arrangements for custody or visitation that best protect:
(1) the child who is the subject of the proceeding; and
(2) the victim of the abuse.
FL § 9-101.1(c).
FL § 9-101.1 is not a substitute for the best interests of the child standard. Rather, “it obligates the court, when it receives evidence of a party’s history of violence against certain household members, to give due consideration to such violence in determining what is in a child’s best interest.” Gizzo, 245 Md. App. at 199.
Although they require similar considerations, the Gizzo court identified crucial differences between FL § 9-101 and FL § 9-101.1:
The language used to describe the court’s obligations in FL § 9-101.1 is by no means identical to or equivalent to the language used in FL § 9-101. Section 9-101 states that the court “shall determine” the likelihood of further child abuse or neglect and that the court “shall deny” custody or unsupervised visitation unless the court “specifically finds” no likelihood of further child abuse or neglect.
By contrast, section 9-101.1 states that the court “shall consider” evidence of abuse by a party against the child’s parent and that the court “shall make arrangements” to best protect the child and the victim of the abuse, “[i]f the court finds” that the party has committed abuse against the other parent.
Id. at 193-94.
Consequently, it is unclear whether a specific judicial finding regarding abuse is required before a trial judge may consider evidence of abuse against the child’s parents under FL § 9-101.1.9 Id. at 196-97. Moreover, FL § 9-101.1 does not mandate a specific custody or visitation arrangement after abuse against the child’s parent is found. It merely instructs trial judges to ensure the protection of the child and victim. Id. at 193-94.
Appellant overlooks these critical distinctions between FL § 9-101 and FL § 9-101.1. To justify supervised visitation, the trial judge was not required to determine that abuse or neglect of the children was likely under FL § 9-101. Instead, under FL § 9-101.1, the judge could consider evidence of domestic violence, apparently without needing to make a specific finding of abuse. Based on this evidence, the judge had the discretion to order supervised visitation to best protect the children.
Even assuming, arguendo, that the trial court needed to make a specific judicial finding of abuse before considering domestic violence evidence under FL § 9-101.1, the trial judge was nonetheless directed by the Best Interest Factors to consider “any evidence of exposure of the child to domestic violence and by whom.” Azizova, 243 Md. App. at 347.
Whether the trial judge was guided by FL § 9-101.1 or by the Best Interest Factors, he clearly considered Appellant’s violence against Appellee to be relevant when evaluating the best interests of the children. In his ruling, he emphasized the effect Appellant’s abuse may have on the children: And there are studies out there that say that children who witness domestic violence, that is just as traumatic for the child to see it to actually be a participant or to be the one receiving abuse. So it is going to be very important when the two of you exchange the children for you to act appropriately with each other for your children’s sake, if not for each of your respective sakes...
The judge had the discretion to order supervised visitation to best protect the children.10 Wagner, 109 Md. App. at 42. Considering the evidence that Appellant abused the Appellee, the trial court made visitation arrangements aimed at protecting the children from witnessing domestic violence and suffering psychological harm. Therefore, we find that the trial court did not err nor abuse its discretion in ordering supervised visitation.
III. Did the trial court err by ordering a graduated access and visitation schedule for the Appellant?
Finally, we conclude that the trial court did not abuse
its discretion in ordering a graduated access schedule for Appellant. Again, we note that trial courts have broad power to craft visitation arrangements designed to protect a child’s best interests. Wagner, 109 Md. App. at 42.
The schedule ordered by the trial court was clearly devised with the best interests of the children in mind. Though Appellant contends that the graduated visitation was unnecessary after “the Court’s acknowledgment that there were no concerns about the Appellant posing a danger to the minor children,” the purpose of the graduated schedule was not exclusively to ensure the safety of the children. The trial judge clarified that an important purpose of the graduated access schedule was to ensure Appellant steadily develops a relationship with the children.
As we discussed earlier, the trial judge expressed serious concern that the Appellant’s long absence from the children’s lives meant that they had not formed a significant bond. See supra pp. 10-11.
The trial judge further noted that supervised visitation under the pendente lite order lasted only briefly, and then stopped altogether after Appellant’s conflict with the court ordered supervisor. Therefore, the graduated schedule was designed to begin building a parental relationship. The trial judge explained, “I want this to be, you know, positive interaction time so [Appellant] builds, you know, a good relationship…This is part of why, [Appellant], you’re not getting as much access as you wanted…it’s because the contact didn’t happen for whatever reasons it didn’t.”
Viewed in this light, receiving unsupervised vacation time is not the contradiction that Appellant contends. Rather, it is another opportunity the trial judge has afforded Appellant to forge a meaningful relationship with the children.
For the reasons articulated by the trial judge on the record, Appellant’s access schedule was designed to be in the best interest of the children. Accordingly, we hold that the trial court did not err nor abuse its discretion in ordering the graduated access schedule.
CONCLUSION
Accordingly, we affirm the decision of the trial court.
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY, AFFIRMED; COSTS TO BE PAID BY THE APPELLANT.
FOOTNOTES
1 Appellant identified the following two questions for review in his brief: “[1] Did the Circuit Court properly consider the Best Interests of the Minor Children when imposing access/visitation schedule and awarding sole legal and primary physical custody to the Appellee? [2] Did the Circuit Court erred [sic] in ordering a gradual schedule to the Appellant?”
2 The temporary protective order was granted in the District Court (Case No. D-07- FM-22-00425), and then transferred to the Circuit Court for Anne Arundel County for adjudication of the final protective order (Case No. C-02-FM-22-809108).
3 A parent with sole legal custody has “the right and obligation to make long range decisions involving education, religious training, discipline, medical care, and other matters of major significance concerning the child’s life and welfare.” Taylor v. Taylor, 306 Md. 290, 296 (1986). The custody order awarded Appellee “primary legal custody” which is not a judicially established form of custody. It seems to refer to joint custody with tie-breaking authority granted to one parent. See Santo v. Santo, 448 Md. 620, 632-33 (2016) (“In a joint legal custody arrangement with tie-breaking provisions, the parents are ordered to try to decide together matters affecting their children. When, and only when the parties are at an impasse after deliberating in good faith does the tie-breaking provision permit one parent to make the final call.”).
4 Appellant filed an Amended Brief on August 14, 2024, which was stricken as untimely on August 23, 2024.
5 Appellant also argues that the trial court erred by failing to order that the parties exchange children at a certain location and to communicate using the AppClose co- parenting platform. These contentions are moot, as they are already required by the custody order.
6 In his ruling on the record, the trial judge noted “if I for some reason don’t mention one factor in particular or I don’t say anything in great detail regarding any one factor, it doesn’t mean I didn’t consider the factor. It just means I am giving you sort of an overview
of what I heard in the evidence and the main things I took into account.”
7 Specifically, Appellant argues supervision was unnecessary because the trial judge “acknowledged the absence of any incidents of child abuse or neglect by the Appellant.”
8 There are circumstances other than abuse or neglect where the trial judge may find supervised visitation appropriate. These include when a parent “is working to improve parenting skills, has not seen the child in a long time, has a substance use disorder or mental health issue that might interfere with their ability to parent, has a history of being abusive or trouble controlling anger, or has acted inappropriately with a child.” Visitation/Supervised Visitation, The People’s Law Library of Maryland (Updated Feb. 13, 2024), https://www.peoples-law.org/ visitation-and-supervised-visitation [https://perma. cc/6ZF7-JGGL].
9 In unreported opinions, this Court has required a preliminary finding of abuse under FL § 9-101.1. See Jones v. Wells, No. 778, Sept. Term, 2020, 2021 WL 4169200, at
*6 (Md. Ct. Spec. App. Sept. 14, 2021); Sanchez v. Sanchez, No. 1689, Sept. Term, 2021, 2022 WL 2354989, at *8 (Md. Ct. Spec. App. June 30, 2022).
10 Maryland case law does not state exhaustively what arrangements trial courts may make to protect a child from exposure to domestic violence under FL § 9-101.1(c). However, this court has found in unreported cases that supervised visitation was appropriate when the trial judge was presented with evidence of domestic abuse against household members. See, e.g., Tusha v. Tusha, No. 1249, Sept. Term, 2022, 2023 WL 3881259, at *8 (Md. Ct. Spec. App. June 8, 2023).
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Washington County Circuit Court’s order conditioning father’s in-person visitation with the minor on his therapist submitting a timely report. Because the restriction on father’s in-person visitation is based solely on the timeliness of the reports, over which father may have little if any control, it was neither reasonable nor related to the advancement of a child’s best interests.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
reasonably related to the best interests of the child, we shall vacate that provision in the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father were married in 2016 and have a single child together, A.H., born in August of 2016. A.H. has a history of serious medical problems, including cancer, that necessitate frequent medical appointments, hospitalization, and medication. The parties divorced in April 2021 and entered into a consent order providing for joint physical and legal custody of A.H. During the school year, A.H. primarily lived with Father, and visited with Mother nearly every weekend. During the summer, A.H. lived primarily with Mother and visited Father one full week and one weekend per month.
On April 8, 2022, Mother filed a motion for modification, seeking sole legal and primary physical custody of A.H. due to Father’s alleged failure to allow Mother access to A.H.’s medical information and his failure to facilitate visitation between A.H. and Mother. The court held a three-day hearing on Mother’s motion beginning on March 23, 2023.
Eric Houston (“Father”) and Mary Houston (“Mother”) have one child, A.H. When the parties divorced in 2021, they entered into a consent order providing for shared custody. In May 2023, after a three-day hearing, the Circuit Court for Washington County issued an order reducing Father’s custodial time with A.H. Father appealed from that order. Shortly thereafter, A.H.’s Best Interest Attorney filed a motion for a review hearing, resulting in the court issuing an order in February 2024 further curtailing Father’s visitation with A.H. Father also noted an appeal from the second order.1
In his first appeal, Father presents a single question for our review:
1. Did the [circuit] court err, as a matter of law, in admitting evidence of illegally recorded videos in violation of Maryland’s wiretapping laws?
In his second appeal, Father presents two questions, which we have rephrased:2
2. Did the court err in modifying custody without making an explicit finding that there was a material change in circumstances?
3. Did the court err in conditioning Father’s in-person visitation on his therapist’s timely submission of reports to the court?
We answer the first two questions in the negative. However, because we conclude that conditioning Father’s in-person visitation on his therapist submitting a timely report was not
At the March 2023 hearing, Mother introduced several videos which Father challenges in this appeal. The first video (“Video 1”) is a recording of a virtual visit between Mother and A.H. on January 11, 2023. In the video, Mother’s boyfriend is also present with her. When A.H. greets Mother and her boyfriend, Father is heard on the video using a homosexual slur to refer to the boyfriend. Father objected to the video being admitted because it was “recorded without [his] consent,” and there was no indication that he knew the conversation was being recorded. Counsel for Mother and the Best Interest Attorney (“BIA”) both argued that Father was aware that Mother had security cameras in the main areas of her house and that the video was recorded while Mother was in her kitchen; therefore Father was “aware that it’s not a private call.” The court overruled the objection and admitted the video into evidence, comparing the situation to an inmate who is “aware . . . that all phone calls are recorded” and chooses to speak over the phone.
The second video (“Video 2”) is also a recording of a virtual visit between Mother and A.H. on January 30, 2023. The following occurred at the beginning of the virtual visit:
[MOTHER]: Hi baby. . . . What’s up? [A.H.]: Nothing.
[MOTHER]: How’s your day been?
. . .
[A.H.]: Good.
[MOTHER]: I’m glad. Miss you. [A.H.]: Miss you too.
[MOTHER]: Um. What’d you do today?
[A.H.]: Nothing really. We really played (inaudible –
few words.) [FATHER]: (Inaudible – few words) say none of your business. [A.H.]: None ya. [MOTHER]: [A.H.], that’s rude. [A.H.]: None ya. [MOTHER]: That’s not nice. Later during the same visit, while Mother was attempting to discuss an upcoming medical appointment with her, A.H. “repeated no and uh-uh, in response to [Father] saying no, to [Mother.]” Father also objected to the admission of this video, saying his objection was “the same” as his objection to Video 1. The court overruled the objection and admitted Video 2 into evidence.
The third video (“Video 3”) is a recording Mother made of one of A.H.’s doctor appointments. Father was physically present at the appointment with A.H., and, in accord with the custody order in effect at the time, initiated a video call with Mother so she could hear from and communicate with the doctors. The recording does not contain any audio. Father is seen walking over to the phone and disconnecting the video call with Mother while a doctor is treating A.H. Father objected to the admission of this recording because “[i]t was not taken with consent.” The court noted that the video contained no audio, overruled Father’s objection, and admitted Video 3 into evidence.
The final video (“Video 4”) is Mother’s recording of an interaction between her and Father in the hospital while A.H. was in surgery. Father testified that he did not give consent to being recorded and was not aware that he was being recorded during the interaction. Video 4 was not admitted into evidence. Instead, during the BIA’s cross- examination of Father, Father viewed the video outside the presence of the court and then provided testimony about it. Father testified that the video was recorded around 11:45 p.m., shortly after Mother arrived at the hospital. When Mother told Father that she was only staying at the hospital for two hours, Father responded, “I don’t give a f***.” Father explained that he had arrived at the hospital at 5:45 a.m. that day, and, at the time of his interaction with Mother, he was “extremely tired and a little upset that she decided to show up at midnight” rather than arriving “immediately after she got off work.” Although Father objected to the admission of the recording, no objection was raised to his testimony about the events depicted in the video.
During Mother’s cross-examination of Father, he acknowledged that, under the order in effect at the time, Mother was permitted to record her conversations with A.H. while the child was in Father’s custody. Mother’s counsel then asked Father: “And if you’re jumping in the background of a video, she’s going to catch you on camera. But she’s -- she is recording that legally based upon your consent, correct?” Father responded affirmatively.
On May 8, 2023, the court issued an order modifying physical and legal custody. Pursuant to this order, A.H. was to live primarily with Mother during the school year, and Father would have visitation nearly every weekend. During the summer, Father would also have two consecutive weeks in July and one week in August for vacation time with A.H. The order provided that evening virtual visits with the non-custodial parent may be recorded. The order also contained a provision prohibiting the parties from making “any negative comment, or through their conduct, indicat[ing] anything negative about the other parent,
the other parent’s family, or any person connected with the other parent, to [A.H.] or to any other person.” The order further specified: [E] ach party (now recognizing the significant negative impact on [A.H.], and the negative impact on [A.H.’s] medical care generated from the ongoing animosity, lack of trust, and attempts to assert control over the other parent’s access, and attempts to negatively impact the other parent’s relationship with [A.H.]), shall do the following 100% of the time (some of the time or most of the time is not even close to being adequate):
A. Be respectful of the other parent directly and indirectly, within the hearing of the other parent, medical professionals, family, friends, and most of all [A.H.]
B. Never engage in name calling, cursing, raising of the voice, and do not have any physical contact with the other parent.
C. Make NO attempt to convince either the child or any other person that the other parent is wrong, making poor choices, is a bad person/parent or the like.
D. Do not have any discussion whatsoever about the other parent for any reason except with that parent’s own attorney.
E. Do nothing, directly or indirectly, to negatively impact the other parent’s (or their family or friends’) relationship with [A.H.]
F. If frustrated, don’t act out and don’t speak out, pull back from the interaction long enough to make an intelligent choice about how to act, or engage on a topic. Ensure that interactions are driven by mature thought focused on [A.H.’s] best interests rather than that parent’s emotion, frustration, anger and/or desire for revenge for the other parent’s perceived wrongdoing.
G. Don’t call hospital security, Child Protective Services, or the police unless there is an immediate risk of actual physical harm. Otherwise, the party should, during regular business hours, contact counsel for advice.
In the order, the court noted certain hypothetical situations which may constitute a material change in circumstances, including:
[I]f there is evidence that [Father] continues to engage in conduct that is fueling further conflict, undermining [A.H.’s] well-being or undermining [A.H.’s] relationship with her Mother such as name calling, disrespectful conduct, or taking other actions to undermine [Mother’s] parenting . . . , or if he has not engaged in counseling as Ordered,[3] and/or has not made reasonable progress in counseling on the issues identified, then the [c]ourt may consider whether it would serve [A.H.’s] best interests to adjust the summer vacation, holiday, and weekend access schedule to further limit [A.H.’s] time with [Father] and increase her time with [Mother].
Father noted a timely appeal from this order.
On June 30, 2023, while this appeal was pending, the BIA filed a motion for a review hearing, alleging that Father had made inappropriate comments to A.H. during phone calls, that Father had been creating difficulty with exchanging A.H. and her medication, and that A.H.’s medical care had been disrupted due to the parents’ actions. The court held a four-day hearing on
the BIA’s motion, concluding on November 21, 2023.
The hearing on the BIA’s motion primarily focused on two issues: Father’s failure to continue mental health treatment, as required in the May 2023 order; and inappropriate conversations occurring during Father’s virtual visits with A.H. At the hearing, Father admitted that he had not participated in mental health treatment since “late July or early August.”
Mother introduced video evidence from Father’s virtual visits with A.H. in which he routinely discusses matters related to the court case, criticizes Mother, and denies A.H.’s medical diagnoses. Father engaged in arguments with A.H. on these issues, despite her being seven years old at the time and the visits being recorded. In several videos, A.H. is riding in a car with Mother during the visit and Father refuses to speak to A.H. because Mother can overhear the conversation, despite A.H. pleading with him to not hang up.
On February 20, 2024, the court issued an “Amended Custody Order.” The court found that the changes made in the order are in the best interests of the minor child Based upon [Father’s] conduct from May 5, 2023, through the last day of the review hearing, the [c]ourt has found a continuing pattern of conduct which is mental abuse of [A.H.], however, so long as [Father] complies with the terms of this Amended Custody Order and the terms of the May 5, 2023, Order for Counseling and Mental Health Treatment, then the [c] ourt finds that there is no further likelihood of abuse and neglect. While the conduct and comments from [Father] are sufficiently problematic to justify much more limited contact than provided in this Amended Custody Order, the [c]ourt was conservative and still is providing significant in-person child access time, including overnights with [A.H.], mainly because [A.H.] is bonded to her father and this relationship is important to her[.]
The amended order further reduced Father’s visitation to every other weekend during the school year and reduced his summer access to one week in July and every other weekend. The amended order provides the non-custodial parent video calls with A.H. on Tuesdays and Thursdays. The video calls are required to be recorded. The amended order also provides:
IT IS FURTHER ORDERED that in order for [Father] to maintain the in- person visits with [A.H.], on or before April 15, 2024, [Father’s] therapist shall provide to the BIA, the parties, and file with the [c]ourt a report with the following information as to [Father’s] therapy:
1. The date that therapy began, the date of each therapy session and whether in person or remote;
2. A confirmation that all material forwarded by the BIA has been received, reviewed and understood;
3. [T]he therapist’s diagnosis of any mental health conditions;
4. [T]he therapist’s summary of the issues currently be[ing] addressed in treatment, and future issues to be addressed;
5. [T]he therapist’s treatment plan and recommended frequency of treatment;
6. [T]he therapist’s opinion regarding [Father’s] understanding of the [c]ourt’s concerns;
7. [T]he therapist’s opinion regarding [Father’s] cooperation with and engagement in the therapeutic process.
IT IS FURTHER ORDERED that if that report from [Father’s]
therapist has not been received by April 15, 2024, then starting April 15, 2024, [Father] shall have no in-person visits with [A.H.] (however, the recorded remote/video visits may continue) until the report has been forwarded to the [c]ourt and the parties/ lawyers, and until the [c]ourt has acknowledged receipt and adequacy of the report, or if the court finds the report to be inadequate and has specified other needed information, then there shall continue to be no in-person visits until the inadequacy has been remedied by the therapist.
According to [Father], after stopping his prior therapy because he felt better, as of the last day of the review hearing, he was trying to start therapy as of November 2023, and therefore compliance with these provisions should not be difficult. The only reason compliance may be difficult is if [Father] has continued to ignore the requirement for courtordered therapy . . . .
IT IS FURTHER ORDERED that in order for [Father] to maintain his in-person visits with [A.H.], [Father’s] therapist shall update the initial report with current information on or before each July 1, October 1, January 1, and April 1 continuing into the future, until sufficient progress has been made such that the court deems that the progress reports are no longer necessary
IT IS FURTHER ORDERED that if a therapist report/update has not been received on by [sic] each date above, then inperson visits with [Father] shall be suspended until the report is received.
Father noted a timely appeal from the amended order. We discuss both of Father’s appeals in this opinion.
DISCUSSION
I. VIDEO EVIDENCE WAS
NOT ADMITTED IN VIOLATION OF THE WIRETAP ACT
Father argues that the court erred in admitting Videos 1-3, and erred in allowing opposing counsel to elicit testimony concerning Video 4. He argues that the videos of him were made without his consent or knowledge, and therefore are in violation of the Maryland Wiretap Act, which precludes such recordings from being admitted into evidence.4 Mother responds that Father was aware that her calls with A.H. were being recorded and that, even if the court erred, Father was not prejudiced because he admitted to making inappropriate comments to A.H. The Wiretap Act provides that “it is unlawful for any person to . . . [w]illfully intercept . . . any wire, oral, or electronic communication[,]” unless “all of the parties to the communication have given prior consent to the interception[.]” CJP § 10-402(a), (c)(3). An individual may consent to an interception either expressly or implicitly. Agnew v. State, 461 Md. 672, 683 (2018) (citing State v. Maddox, 69 Md. App. 296, 301 (1986)). The Wiretap Act further provides that, “no part of the contents of [any intercepted] communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court . . . if the disclosure of that information would be in violation of this subtitle.” CJP § 10-405(a).
4 See Md. C
As we discuss below, none of the recordings Father complains of were admitted in violation of the Wiretap Act. a. Video 1 and Video 2
During Mother’s cross examination of Father, he agreed that the custody order in place at the time was a consent order that allowed Mother to record her conversations with A.H. while A.H. was in Father’s custody.
[MOTHER’S COUNSEL]: And you consented to the noncustodial parent . . . recording um, video calls . . . which would mean that when [A.H.] is with you, [Mother] was allowed to record videos?
[FATHER]: Yes.
. . .
[MOTHER’S COUNSEL]: . . . [Y]ou signed this agreement. You agreed to this statement. The parties -- only the noncust -noncustodial parent may record the video with the minor child. You agreed to that statement.
[FATHER]: I guess, I did.
[MOTHER’S COUNSEL]: So, . . . when [A.H.] is with you, [Mother] is the noncustodial parent, correct?
[FATHER]: Yes.
[MOTHER’S COUNSEL]: And she’s allowed to record her conversations with [A.H.] when [A.H.] was with you? Yes?
[FATHER]: That’s -- I guess that’s correct. [MOTHER’S COUNSEL]: And if you’re jumping in the background of a video, she’s going to catch you on camera. But she’s -- she is recording that legally based upon your consent, correct?
[FATHER]: For that aspect of it. . . .
Thus, Father acknowledged that Mother was acting within the terms of the consent order when she recorded her visits with A.H., including those times when Father inserted himself into the conversation. Father therefore consented to the video recordings as contemplated by the Wiretap Act.
Furthermore, even if Father had not implicitly given his consent, the recordings were not made in violation of the Wiretap Act. In Boston v. State, 235 Md. App. 134 (2017), this Court considered whether a detention center “willfully” recorded a conversation in which an inmate called his girlfriend, and later added a third person (Boston) to the call. We concluded that, although the recording of the conversation between the inmate and the girlfriend was “an intentional, purposeful act, i.e., was willful, its recording of Boston’s portion of the telephone conversation was not.” Id. at 150. The detention center’s “intent to record [was] directed to” the initial parties to the conversation. Id. “Even in the absence of a policy prohibiting the later addition of a third participant to an inmate call, the Detention Center ordinarily would not be acting ‘willfully’ by continuing to record the call once it came to include the third participant.” Id. “[W]ithout evidence of knowledge, power, and control on the part of the Detention Center, its recording of a conversation between an inmate and a person who was not the recipient of the inmate’s call but was added to the call by the recipient is not willful. At most it would be inadvertent.” Id. at 151.
Boston is instructive because, as an uninvited third-party to Mother’s call with A.H., Father’s interjected background remarks were not willfully recorded by Mother. As Father frequently pointed out concerning his own video calls with A.H., the calls are intended to be between A.H. and the non-custodial parent, without participation by the custodial parent. Father’s interference in the conversations was therefore unexpected. Although Mother had the “knowledge, power, and control” to end the recording at any time, Father failed to show that Mother had the ability to prevent the recording of Father’s short, unexpected comments.
b. Video 3
Video 3, as mentioned above, does not contain any audio. The Maryland Supreme Court has interpreted the Wiretap Act as applying only to audio recordings, not video recordings. Deibler v. State, 365 Md. 185, 199-200 (2001) (citing Ricks v. State, 312 Md. 11, 20-24 (1988), disapproved on other grounds by Ragland v. State, 385 Md. 706, 718- 25, n.5 (2005)). Thus, the Wiretap Act did not apply to Video 3 and the court did not err in admitting it into evidence.5
c. Video 4
Video 4, in which Mother recorded her conversation with Father at the hospital while A.H. was in surgery, was not admitted into evidence. Father’s counsel appeared to object to admission of Video 4 into evidence on the ground that it violated the Wiretap Act, stating: “the question needs to be asked . . . did he know he was being recorded? Was his -- did he give consent? . . . Otherwise, I’m going to object.” Father then testified that he did not know he was being recorded and did not give consent to being recorded. At that point, the BIA asked if she could play the video for Father outside of the courtroom in anticipation of further questioning about the video. Father’s counsel raised no objections to the BIA’s proposal, and did not object when Father was questioned about the contents of the video after he reviewed it. Thus, Father’s argument on appeal that the court erred in allowing the BIA to elicit his testimony concerning Video 4 was not preserved for our review. See Patriot Constr., LLC v. VK Elec. Servs., LLC, 257 Md. App. 245, 268 (2023).
II. THE COURT IMPLICITLY FOUND A MATERIAL CHANGE IN CIRCUMSTANCES
Father argues that the court failed to find a material change in circumstances to support its Amended Custody Order. Father’s single-paragraph argument on this issue is based on the court’s failure to use the phrase “material change in circumstances.”6
For a court to modify a prior custody order, it must make two findings: first, that there has been a material change in circumstances; and, second, that a modification is in the best interests of the child. Jose v. Jose, 237 Md. App. 588, 599 (2018). However, these two findings do not necessarily need to be made separately. Wagner v. Wagner, 109 Md. App. 1, 28-29 (1996). “[I]f a court concludes, on sufficient evidence, that an existing provision concerning custody or visitation is no longer in the best interest of the child and that the requested change is
in the child’s best interest, the materiality requirement will be satisfied.” McMahon v. Piazze, 162 Md. App. 588, 596 (2005). Certainly, the very factors that indicate that a material change in circumstances has occurred may also be extremely relevant at the second phase of the inquiry—that is, in reference to the best interest of the child. If not relevant to the best interest of the child, the changes would not be material in the first instance. Because of the frequency with which it occurs, this two- step process is sometimes considered concurrently, in one step, i.e., the change in circumstances evidence also satisfies—or does not—the determination of what is in the best interest of the child. Even if it alone does not satisfy the best interest standard, it almost certainly will afford evidentiary support in the resolution of the second step. Thus, both steps may be, and often are, resolved simultaneously.
Wagner, 109 Md. App. at 28-29. The Maryland Supreme Court has noted that
In the limited situation where it is clear that the party seeking modification of a custody order is offering nothing new, . . . the effort will fail on that ground alone. . . .
In the more frequent case, however, there will be some evidence of changes which have occurred since the earlier determination was made. Deciding whether those changes are sufficient to require a change in custody necessarily requires a consideration of the best interest of the child. Thus, the question of “changed circumstances” may infrequently be a threshold question, but is more often involved in the “best interest” determination, where the question of stability is but a factor, albeit an important factor, to be considered.
McCready v. McCready, 323 Md. 476, 482 (1991). In summary, where there has been some change in circumstances since the prior custody order, a court may resolve whether that change is “material” by finding that a modification to the custody arrangement is in the child’s best interests.
Here, the court discussed Father’s behavior subsequent to the May 2023 order, and indicated that his behavior necessitated a change in the custody order to preserve A.H.’s best interests. The court noted that Father showed a “lack of willingness to follow the [c]ourt’s orders regarding no negative comments and regarding counseling[.]”7 A determination of whether these changes were “material” depends on their effect on A.H.’s best interests. Under these circumstances, the issues of “material change in circumstances” and “best interest of the child” may be “resolved simultaneously.” See Wagner, 109 Md. App. at 29.
Furthermore, as this Court has stated in prior cases, the “mere incantation of the ‘magic words’ of a legal test, as an adherence to form over substance, . . . is neither required nor desired if actual consideration of the necessary legal considerations are apparent in the record.” In re D.M., J.M., 250 Md. App. 541, 563 (2021) (alteration in original) (quoting In re Adoption/ Guardianship of Darjal C., 191 Md. App. 505, 532 (2010)).
“Trial judges are presumed to know the law and to apply it properly. Indeed, 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) (quoting Marquis v. Marquis, 175 Md. App. 734, 755 (2007)). Here, the trial judge explicitly demonstrated her familiarity with the material change
in circumstances requirement in her prior orders in this case, stating in the May 2023 order that “the evidence has shown a substantial and significant change in circumstances such that the [c]ourt will address the legal custody and physical custody and child access structure that is in the best interest of the minor child[.]” Thus, although the court’s discussion in the February 2024 order does not explicitly use the phrase “material change in circumstances,” it is clear from context that the court implicitly found that there had been a material change subsequent to issuing its previous order.8 We discern no abuse of discretion in the court’s determination and, indeed, Father’s brief fails to articulate any abuse of discretion on this point.
III. THE COURT IMPROPERLY CONDITIONED FATHER’S VISITATION ON THIRD-PARTY ACTIONS
Finally, Father argues that the court’s order improperly conditioned his in-person visitation with A.H. on his therapist submitting a report to the court. He contends that this is an improper delegation of the court’s decision-making authority, and that it is inappropriate to condition his visitation on the actions of a third person. Although he acknowledges that the therapist’s first report, due on April 15, 2024, was late, he objects to the continued suspension of his in-person visits with A.H. because the “lower court continues to sit on the report without acknowledging it or its adequacy.”9
Mother responds that the court did not delegate a judicial function to Father’s therapist because the therapist “is not making decisions[,]” but instead “is merely writing a report.” Mother also notes that the therapist’s report was late because Father did not provide the therapist a copy of the court order in a timely manner.
A trial court has “broad discretion” to impose a condition on a parent’s visitation and custody rights, “so long as it is in the child’s best interest and there is sufficient evidence in the record to support the condition[.]” Cohen v. Cohen, 162 Md. App. 599, 608 (2005); see also Kennedy v. Kennedy, 55 Md. App. 299, 310 (1983) (“We will affirm the imposition of such a condition so long as the record contains adequate proof that the condition or requirement is reasonably related to the advancement of a child’s best interests.”). We have upheld visitation conditions such as requiring the parent to abstain from consuming alcohol, Cohen, 162 Md. App. at 612, or to participate in family counseling, Kennedy, 55 Md. App. at 311. However, where the limitation is not related to the child’s best interests, it has been stricken. See, e.g., Boswell v. Boswell, 352 Md. 204, 211, 240 (1998) (involving an order providing that the children have no visitation with parent in the presence of parent’s same-sex partner or “anyone having homosexual tendencies or such persuasions”). “In all family law disputes involving children, the best interests of the child standard is always the starting—and ending—point.” Id. at 236.
Additionally, “a court may not delegate to a non-judicial person decisions regarding child visitation and custody.” Van Schaik v. Van Schaik, 200 Md. App. 126, 134 (2011). This limitation extends to orders which allow a non-judicial person “to curtail, or make more onerous, the visitation allowed in the court order.” In re Justin D., 357 Md. 431, 449 (2000). However, a court may delegate decisions regarding “matter[s] ancillary
to custody and visitation[,]” Van Schaik, 200 Md. App. at 135 (emphasis omitted), and may allow a non-judicial person to increase visitation beyond a minimum (non-zero) level set by the court, Justin D., 357 Md. at 450.
Although we agree with Mother that the therapist was not asked to make any decisions concerning visitation with Father, we conclude that the order is deficient under the applicable caselaw. In Justin D., the Supreme Court reiterated that a complete suspension of all visitation privileges “should be ordered only in the exceptional case.” 357 Md. at 446 (citing Shapiro v. Shapiro, 54 Md. App. 477 (1983)). The order here automatically suspends Father’s in-person visitation if the therapist’s report is not provided by specific deadlines, and “until the [c]ourt has acknowledged receipt and adequacy of the report[.]” After Father’s in-person visitation is suspended for failure to timely provide the therapist’s report, Father may not have in-person visitation until the court reviews the report and reinstates in-person visits. The court’s order therefore makes Father’s continued in-person visitation with A.H. fully dependent on his therapist. If the therapist fails to submit a report by a specified deadline, Father automatically loses inperson visitation. We perceive myriad reasons why the therapist may not timely provide the court-ordered report. For instance,
if the therapist earnestly believed that in-person visits were inappropriate, the therapist could effectively suspend Father’s in-person visitation by intentionally missing a deadline, resulting in an improper delegation of the court’s jurisdiction over custody matters. Cf., In re Mark M., 365 Md. 687, 710 (2001) (holding that “[v]esting the therapist . . . with complete discretion to deny or permit visitation . . . constitutes an improper delegation”). We recognize that there could be more innocuous reasons for failing to timely provide the report, such as simple administrative error or the unavailability of the therapist to provide the report due to professional or personal circumstances unrelated to the child. In short, we discern many circumstances where submission of the therapist’s report by a specific date would be unrelated to A.H.’s best interests. Because the restriction on Father’s inperson visitation with A.H. is based solely on the timeliness of the reports, over which Father may have little if any control, it is neither “reasonabl[e]” nor “related to the advancement of a child’s best interests.” See Kennedy, 55 Md. App. at 310. Accordingly, we shall vacate the provision automatically suspending Father’s in- person visitation based on the filing of his therapist’s report, but otherwise affirm the circuit court’s judgment.
JUDGMENT OF THE CIRCUIT COURT FOR WASHINGTON COUNTY AFFIRMED IN PART AND REVERSED IN PART. THE PROVISION IN THE ORDER SUSPENDING VISITATION BASED ON THE TIMELINESS OF FILING THERAPIST’S REPORTS IS VACATED. JUDGMENT IS OTHERWISE AFFIRMED. COSTS TO BE EQUALLY DIVIDED BETWEEN APPELLANT AND APPELLEE.
FOOTNOTES
1 This Court consolidated the two appeals by an Order issued on March 26, 2024.
2 Father presented the following questions in his brief:
1. Did the lower court err, as a matter of law, in modifying custody without making a finding of a material change in circumstances?
2. Did the lower court err, as a matter of law, in delegating a judicial function to a non-judicial actor?
3 A separate order issued the same day required both parents to separately participate in counseling and mental health treatment. The order provided a lengthy list of specific issues the court wanted each party to focus on in therapy. ode (1974, 2020 Repl. Vol., 2024 Supp.), §§ 10-401 to 10-414 of the Courts and Judicial Proceedings Article (“CJP”).
5 Furthermore, Father admits in his reply brief that Video 3 “was not referred to by the lower court in any meaningful way in its decision.” He therefore appears to concede that, even if Video 3 were erroneously admitted into evidence, that error was not prejudicial to him.
6 We note that we need not decide an issue raised in a brief where the party failed to adequately provide a supporting argument. Boston Sci. Corp. v. Mirowski Fam. Ventures, LLC, 227 Md. App. 177, 209 (2016) (citing Honeycutt v. Honeycutt, 150 Md. App. 604, 618 (2003)). However, we will exercise our discretion in this case to consider Father’s argument.
7 Indeed, Father admitted that he had stopped participating in therapy within three months of the May 2023 order requiring him to attend therapy.
8 We further note that the court indicated in the May 2023 Order that, if Father acted to undermine Mother’s parenting or failed to continue therapy, it might consider such actions to be a material change in circumstances.
9 Our review of the docket entries indicates that the therapist timely submitted the July 1, 2024 report, but we see no indication that Father’s in-person visits have been reinstated. The court’s order implicitly presumes that it will promptly consider “adequacy of the report” yet the docket entries show no action by the court until it issued a Show Cause Order on September 30, 2024.
