The Appellate Court dismissed the husband’s appeal from the Montgomery County Circuit Court’s denial of his second revisory motion. A second revisory motion does not extend the appeal time pursuant to Rule 8-202(c) because to “interpret the rule in that manner would permit a party to extend the time for appeal ad infinitum based on the filing of successive motions within ten days after denial of the immediately preceding motion.”
TRUSTEE REMOVAL; VIOLATION OF COURT ORDERS; FIDUCIARY DUTIES
The Appellate Court affirmed the Montgomery County Circuit Court’s removal of Kevin Johnson as trustee of the Iva E. Johnson Revocable Trust. The circuit court supported its conclusion that Mr. Johnson failed to administer the Trust effectively and competently by crediting relevant testimony presented at the hearing. Next, there are evidentiary facts sufficiently supporting the inference made by the trial court that Mr. Johnson violated court orders. And substantial evidence was presented in the show cause hearing to support the conclusion that Mr. Johnson failed to perform his fiduciary duties.
The Appellate Court held the husband failed to timely appeal from the Baltimore County Circuit Court’s June 27, 2022, judgment of absolute divorce or its Nov. 22, 2022, opinion resolving reserved issues. Because husband’s motion under Rule 2-534 was not filed within 10 days of the Nov. 22, 2022, judgment, Rule 8-202(c) was not invoked; as a result, husband did not have an additional 30 days to appeal the Nov. 22, 2022, judgment from when the court denied his motion for reconsideration.
The Appellate Court affirmed the Baltimore County Circuit Court’s termination of mother’s parental rights, who previously had been adjudicated children in need of assistance. The court’s findings were supported by ample evidence from which it could conclude that mother was unfit and that exceptional circumstances made the continuation of mother’s parental relationship detrimental to the best interests of the children. The court did not err or abuse its discretion in its factual findings or in its ultimate determination that the termination of mother’s parental rights was in the best interest of each child.
The Appellate Court affirmed the Baltimore County Circuit Court’s order establishing a custody schedule for the parties’ three minor children. The circuit court was under no obligation to adopt the pendente lite access schedule, regardless of whether that schedule had been agreed to by the parties. Furthermore, the children’s circumstances were markedly different at the time of trial than at the time the pendente lite custody agreement was put in place. In any event, to the extent that the court did alter the pendente lite custody arrangement, those alterations were minor.
The Appellate Court affirmed the Baltimore City Circuit Court’s termination of father’s parental rights. The court did not err in finding that the Baltimore City Department of Social Services made reasonable efforts to facilitate reunification between father and his children. And the court’s findings were supported by ample evidence from which it could conclude that exceptional circumstances made the continuation of father’s parental relationship detrimental to the best interests of the children.
PARENTAL RIGHTS; TERMINATION; BEST INTERESTS
In Re Su.N., Sa.N., So.N
No. 2031, September Term 2023
Argued before: Berger, Beachley, Albright, JJ.
Opinion by: Beachley, J
Filed: Aug. 23, 2024
The Appellate Court affirmed the Howard County Circuit Court’s termination of parental rights. After considering the factors set forth in FL § 5-323(d), the circuit court considered the best interests of the children, as well as parental unfitness
The Appellate Court vacated the Montgomery County Circuit Court’s increase of father’s monthly child support obligation. Given that mother did not present any evidence of health insurance expenses other than her financial statement and testimony, the record does not support the circuit court’s determination that her monthly expense is $242.
PROTECTIVE ORDER; CHILDREN; PHYSICAL OR MENTAL ABUSE
The Appellate Court affirmed the Anne Arundel County Circuit Court’s final protective order against father and in favor of mother. The evidence presented at the final protective order hearing was sufficient to establish that he physically or mentally abused his sons by a preponderance of the evidence.
The Appellate Court vacated the Montgomery County Circuit Court’s finding that wife was in constructive criminal contempt for violating the terms of a protective order. Constructive criminal contempt proceedings can be initiated only by the court, the state’s attorney, the Attorney General or the state prosecutor; it must be docketed as a separate criminal action; the order or petition must contain the information required in a charging document and it must be served with a summons or a warrant and in compliance with Rule 4-212. None of that happened here.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court dismissed the husband’s appeal from the Montgomery County Circuit Court’s denial of his second revisory motion. A second revisory motion does not extend the appeal time pursuant to Rule 8-202(c) because to “interpret the rule in that manner would permit a party to extend the time for appeal ad infinitum based on the filing of successive motions within ten days after denial of the immediately preceding motion.”
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
In early 2016, the parties separated after Appellant moved out of the marital home. Appellee filed a complaint for absolute divorce and other relief in the Circuit Court for Montgomery County on November 16, 2020. Appellant filed his answer to the complaint on March 22, 2021, and subsequently filed a counterclaim for absolute divorce on March 25.
The circuit court held a four-day divorce hearing from June 13 through June 16, 2022. The primary focus of the hearing was the classification and distribution of marital property. The evidence presented at trial included financial statements for each party, a joint statement designating marital and non-marital property, an accountant’s valuations of both parties’ various pensions and benefits, and an expert’s opinion on different types of military disability benefits.
Craig Bash (“Appellant”) and Margaret Bash (“Appellee”) were granted a judgment of absolute divorce in the Circuit Court for Baltimore County in 2022. Appellant filed a revisory motion in the circuit court that sought to correct a perceived error of the court’s calculation of the value of Appellant’s federal Department of Veterans Affairs (“VA”) disability compensation. The court denied Appellant’s motion.
Appellant then filed a second revisory motion to the same end, which the court also denied. Appellant filed the present appeal, which was timely only to the order denying the second revisory motion.
The question we address here is1: Is the second revisory order appealable?
As we explain below, due to the procedural posture of this case and this Court’s consideration of revisory motions under Rule 2-535, we conclude that the second revisory order is not appealable, and we therefore dismiss the appeal.
BACKGROUND
A. Divorce Proceedings
The parties were married in March 1984. Both parties are medical doctors and disabled veterans of the United States military, Appellant having served in the Air Force and Appellee in the Coast Guard. Additionally, both parties have a 100% disability rating from the VA and receive disability compensation.
There were two types of VA disability compensation discussed by the parties and Appellant’s experts. The first is scheduler2 compensation, which is generally intended to replace potential earnings but are not tied to what an individual actually earns. The amount of the scheduler compensation awarded to a disabled veteran is determined by their disability rating, with greater payments for higher ratings. The second was special monthly compensation (“SMC”), which “is a benefit paid in addition to monthly disability compensation when a veteran suffers additional hardships above and beyond those contemplated by VA’s schedule for rating disabilities.”
Perciavalle v. Wilkie, 32 Vet. App. 117, 118 n.1 (2019) (internal quotation omitted). Appellee receives scheduler compensation, and Appellant receives both scheduler compensation and SMC. The circuit court entered a judgment of absolute divorce on October 18, 2022. The monetary award sheet completed by the court listed the value of Appellant’s VA disability pension as marital property worth $1,830,036 and his SMC as non-marital property worth $1,167,828.
B. Post-Judgment Filings
On October 28, 2022, Appellant filed a motion to alter or amend judgment of absolute divorce pursuant to Maryland Rule 2-534 (the “first revisory motion”).3 Among other things, Appellant argued that the valuation of his VA disability pension—$1,830,036— included the $1,167,828 value of his SMC, with the remainder being his scheduler compensation. Because his scheduler compensation was marital property while his SMC was not, Appellant asserted that the court made a mistake in the monetary award sheet by including his SMC as both marital and non-marital property, thereby double counting it.4 Appellee opposed the first revisory motion, highlighting
that Appellant did not rely on any legal authority to support his position, which only alleged factual errors.
The court denied the first revisory motion on December 8, 2022. The court stated that it had reviewed the record, including the expert’s valuation of Appellant’s VA disability pension, and stated that the yearly value listed in the accountant’s valuation comported with the court’s findings regarding the pension and other evidence presented regarding Appellant’s assets. As a result, the court concluded that it had correctly listed the values of Appellant’s assets.
Appellant filed a motion for reconsideration of the denial of his motion to alter or amend on December 19, 2022 (the “second revisory motion”). The motion, filed pursuant to the court’s revisory power and Maryland Rule 2-535,5 focused on the argument that the court improperly double counted Appellant’s SMC as both marital and non-marital property. Appellant also described his first revisory motion as being “unfairly critical towards the Court” and recognized that the testimony at trial regarding his assets and VA compensation in general was confusing. In support of the second revisory motion, Appellant filed an affidavit from the accounting expert that attempted to clarify his testimony at trial and the information contained in his valuation of Appellant’s VA compensation.
Appellee opposed the second revisory motion, characterizing it as “an impermissible attempt to alter the record before the trial court.” Specifically, she argued that the second revisory motion was filed 62 days after the judgment of absolute divorce in violation of Rule 2-534, which allows new evidence to only be considered within 10 days of judgment. Further, Appellee pointed out that the second revisory motion was the first time Appellant had alleged that the testimony at trial was inaccurate and that at no point during the trial did Appellant attempt to clarify the testimony.
The court denied the second revisory motion on March 28, 2023. Appellant filed an appeal on April 11, 2023.
Appellee filed a motion to dismiss this appeal or, in the alternative, “to clarify which trial court order is the subject of this appeal.” This Court denied the motion to dismiss but granted the request to clarify, ordering that “the scope of review in this appeal is limited to whether the Circuit Court for Montgomery County abused its discretion in its March 2[8], 2023 Order,” which was the order denying the second revisory motion.
DISCUSSION
Appellant asserts that the circuit court abused its discretion in denying the second revisory motion. He reiterates the same arguments made in that motion and the first revisory motion, averring that the court double counted his SMC, thereby overstating the value of his disability benefits by $1.1 million. Appellant contends that there was no evidence in the record to support the conclusion that the total value of his VA disability pension without the SMC was about $1.8 million. Further, he asserts that the evidence and testimony of the various experts agreed that his SMC was separate from his scheduler benefits and that the judge’s questions throughout the trial suggested that he understood this distinction.
In contrast, Appellee contends that it was within the bounds of the circuit court’s discretion to deny both of Appellant’s post-
judgment motions. Appellee also emphasizes that the merits of the monetary award worksheet are not at issue in this appeal, only whether the judge abused his discretion in denying the second revisory motion, which sought to revisit the first revisory motion, not the judgment of absolute divorce. Appellee argues that even if the merits of the underlying judgment were at issue, there was sufficient evidence to support the judge’s findings and that regardless of any potential error in the valuations, the monetary award was equitable and therefore was not an abuse of discretion.
Both parties assert that the standard of review is abuse of discretion. See Sydnor v. Hathaway, 228 Md. App. 691, 708 (2016). This is the correct standard of review for revisory motions generally. However, the procedural history of this case puts it in a different posture on appeal and requires a closer assessment than the parties have afforded in their briefs regarding the procedures and principles of the Maryland Rules.
In Pickett v. Noba, Inc., this Court described the various post-trial revisory motions of the Maryland Rules as follows:
After judgment in a court trial, a litigant can file one of the following post- trial motions: a motion for new trial under Md. Rule 2-533; a motion to alter or amend the judgment under Md. Rule 2-534; or a motion for the court to exercise its revisory power under Md. Rule 2-535. 114 Md. App. 552, 556 (1997), aff’d on reconsideration, 122 Md. App. 566, 570 (1998). Rule 2-533 and Rule 2-534 both require that a motion pursuant to those Rules be filed within 10 days of when the judgment was entered, although a court should treat any initial revisory motion filed within 10 days of the judgment as a Rule 2-533 or Rule 2-534 motion regardless of how it is labeled. Sieck v. Sieck, 66 Md. App. 37, 43–44 (1986). A postjudgment motion filed within 10 days of the judgment stays the 30-day deadline for noting an appeal of the underlying judgment until the court enters an order disposing of the motion or it is withdrawn by the moving party. Md. Rule 8-202(c); Estate of Vess, 234 Md. App. 173, 194–95 (2017).
The second revisory motion, in contrast, is governed by Rule 2-535, which requires that the motion be filed within 30 days of judgment but does not stay the deadline for noting an appeal. Leese v. Dep’t of Lab., Licensing & Regul., 115 Md. App. 442, 445 (1997); Md. Rule 2-535(a). If the court has denied a first motion for reconsideration, a filing of a second revisory motion does not toll the running of time to file an appeal. Johnson v. Francis, 239 Md. App. 530, 541 (2018). Rule 8-202(c) permits motions filed within 10 days of an entry of judgment under Rules 2-534 and 2-535 to toll the time period for appeal as the court considers the motion; however, once a court has denied a motion for reconsideration, the second revisory motion will not toll the time to note a timely appeal. Leese, 115 Md. App at 445.
Appellant filed the first revisory motion on October 28, 2022, 10 days after the judgment of absolute divorce was entered. This stayed the deadline for filing an appeal of the judgment of absolute divorce until the court ruled on the motion. The court did so on December 8, 2022. Appellant timely filed the second revisory motion on December 19, 2022; however, the second revisory motion did not stay the deadline for an appeal. Thus, Appellant had until January 9, 2023, to file a notice of appeal of the judgment of absolutedivorce and/or the denial of the
first revisory motion.6 Appellant filed the notice of appeal on April 11, 2023. As a result, and as we clarified in the order on Appellee’s motion to dismiss, the only order that was timely appealed was the denial of the second revisory motion.
However, what both parties fail to mention in their briefs is that the denial of a second revisory motion is not appealable. In Off. of People’s Couns. v. Advance Mobilehome Corp., we rejected the theory that a party could appeal the denial of an otherwise-timely second revisory motion. 75 Md. App. 39, 45–46 (1988). The appellees in Advance Mobilehome “reason[ed] that as long as their motion was filed within 30 days of the order denying Advance’s motion to alter or amend, they may file a second motion to alter or amend, challenging the denial.” Id. We disagreed, concluding that “[t]heir interpretation of [Rule] 2-535 . . . flies in the face of the import of the rule and the cases that have developed under that rule.” Id. at 46. We then explained that such an interpretation is contrary to the principles of finality of judgment and “would permit a succession of motions, each of which could challenge the denial of a refusal to revise, ad infinitum.” Id. Further, we stated that [a]lthough the [appellees] contend that they filed a timely motion to revise the denial of [the first] motion to revise (and not an untimely motion to revise the original judgment), this distinction is illusory. What is the practical effect of allowing them to file a motion to revise the denial of a motion to revise? It effectively would allow them to attack an
enrolled judgment on groundsother than fraud, mistake or irregularity, which is expressly forbidden by Rule 2-535(b). [7]
Id. at 47–48.
We reiterated this principle in Pickett, stating that the “denial of [the] second motion to revise is not appealable because it is not a final judgment. A second motion to revise filed more than thirty days after the entry of judgment, even though within thirty days after the denial of the first motion, cannot be granted.”8 Pickett, 114 Md. App. at 560; see also Leese v. Dep’t of Lab., Licensing & Regul., 115 Md. App. 442, 445 (1997) (stating that a “second [revisory motion] did not extend the appeal time pursuant to Rule 8-202(c)” because to “interpret the rule in that manner would permit a party to extend the time for appeal ad infinitum based on the filing of successive motions within ten days after denial of the immediately preceding motion” (citing Pickett)).
CONCLUSION
The procedural posture of this case and this Court’s consideration of revisory motions under Rule 2-535 controls the outcome of this case. Because Appellant seeks review of the denial of a second revisory motion and failed to file a notice of appeal within 30 days of the denial of the first revisory order, we shall dismiss the appeal.9
APPEAL DISMISSED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Appellant’s questions presented, which we have reformatted from statements to questions, are:
1. [Was the] trial judge’s denial of [Appellant’s] Motion for Reconsideration of Order Entered 12/8/22 [] clearly erroneous and an abuse of the court’s discretion because, based upon the evidence at trial, the trial judge overstated the value of Appellant’s VA disability pension by $1.1 million dollars by mistakenly “double-counting” Appellant’s special monthly compensation.
2. [Was the] trial court’s monetary award analysis [] clearly erroneous because the Court’s execution of [the] “step two” value analysis ignored the undisputed evidence introduced at trial and substituted it[]s own value, not supported by the evidence.
2 This type of compensation is referred to throughout the record as “scheduler,” “schedular,” “schedule,” and “scheduled” compensation. For consistency, we will use “scheduler” to describe this category of benefits because that is the term used by the parties in their briefs.
3 As relevant here, Rule 2-534 provides:
In an action decided by the court, on motion of any party filed within ten days after entry of judgment, the court may open the judgment to receive additional evidence, may amend its findings or its statement of reasons for the decision, may set forth additional findings or reasons, may enter new findings or new reasons, may amend the judgment, or may enter a new judgment.
4 The monetary award worksheet provided the following valuations for Appellant’s assets: as marital property, a VA disability pension valued at $1,830,036 and as non-marital property, SMC valued at $1,167,828. Appellant’s position is that the correct valuation and designation of his assets is: as marital property, a VA disability pension including only his scheduler compensation valued at $662,208 (i.e., Appellant’s total VA disability pension minus his SMC) and as non-marital property, SMC valued at $1,167,828.
5 Rule 2-535(a) provides in relevant part:
On motion of any party filed within 30 days after entry of judgment, the court may exercise revisory power and control over the judgment and, if the action was tried before the court, may take any action that it could have taken under Rule 2-534.
6 Rule 1-203(a)(1) commands “the last day of the period so computed is included unless: (1) it is a Saturday, Sunday, or holiday[.]” Therefore, the deadline for the second revisory motion fell on December 19, 2022, and the deadline for the appellant to file a notice of appeal was January 9, 2023.
7 Rule 2-535(b) provides: “On motion of any party filed at any time, the court may exercise revisionary power and control over the judgment in case of fraud, mistake, or irregularity.” This is in contrast with Rule 2-535(a), which allows a party to assert any grounds for revision but must be filed within 30 days of the judgment. Rule 2-535(b) is not applicable to this case.
8 The Maryland Rules Commentary describes this outcome as follows:
The time for filing a motion to revise (if filed more than 10 days after the entry of judgment) and the time for filing an appeal both run concurrently from the entry of judgment. Thus, as a practical matter, the filing of a motion to revise a judgment becomes the appeal because, unless it is decided within 30 days, the appeal time on the original judgment will have expired. The moving party’s last attempt to win is directed to the trial court, instead of to [the Appellate Court.]
Paul V. Niemeyer & Linda M. Schuett, Maryland Rules Commentary 753 (5th ed. 2019) (emphasis added) (citation to Pickett omitted). The Maryland Rules Commentary also cautions that:
the party pursuing revision of the judgment must obtain a ruling on the motion before expiration of the time for appeal if the party wishes both trial court and appellate court review of the judgment. Because this may be difficult, the motion to revise under Rule 2-535 is usually reserved for cases in which no appeal will be taken.
Id. at 730.
9 Appellant’s second revisory motion asserted that it sought to correct “new findings of fact” in the order denying the first revisory motion. These new findings do not save this appeal because Appellant sought to correct those errors through a second revisory motion, not in a timely appeal to this Court. In doing so, he precluded himself from challenging that order here. Further, even if we were to review the court’s denial for abuse of discretion, we would not find such abuse. The record before the circuit court was confusing, and it was the Appellant’s burden to present clear evidence to the court as to the value of his assets. He was entitled to request that the court revisit its monetary award decision once it became clear the court disagreed with the Appellant’s assessment of the evidence; however, the court was not required to grant such a request. See Stuples v. Balt. City Police Dep’t, 119 Md. App. 221, 232 (1998) (“[T]he ruling in issue does not have to have been right to survive so minimal and deferential a standard of review [as abuse of discretion].”).
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 06 MFLU Supp. 15 (2024)
Trustee removal; violation of court orders; fiduciary duties
The Appellate Court affirmed the Montgomery County Circuit Court’s removal of Kevin Johnson as trustee of the Iva E. Johnson Revocable Trust. The circuit court supported its conclusion that Mr. Johnson failed to administer the Trust effectively and competently by crediting relevant testimony presented at the hearing. Next, there are evidentiary facts sufficiently supporting the inference made by the trial court that Mr. Johnson violated court orders. And substantial evidence was presented in the show cause hearing to support the conclusion that Mr. Johnson failed to perform his fiduciary duties.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
2. Did the circuit court err in removing Mr. Johnson as trustee of the Trust?
3. Did the circuit court step out of its role as impartial trier of fact?
For the following reasons, we affirm the circuit court.
BACKGROUND
Procedural History
This case stems from a petition by Iva E. Johnson’s son, Mr. Johnson, for appointment as guardian of Ms. Johnson’s property and person. Omitting this case’s full procedural history here, however, the proceedings relevant to the instant appeal begin with this Court’s November 2022 opinion, In the Matter of Johnson, No. 0067, Sept. Term 2021, 2022 WL 16960578 (Md. App. Nov. 6, 2022), which vacated a portion of the March 8, 2021 order removing Mr. Johnson as trustee. In that opinion, we held that the circuit court did not follow proper procedure for removing a fiduciary, and remanded the case for additional proceedings. In the Matter of Johnson, 2022 WL 16960578, at *11-12.
The February 2023 Show Cause Hearing
This appeal returns to us following the Circuit Court for Montgomery County’s April 21, 2023 order to remove appellant, Kevin Johnson, as trustee of the Iva E. Johnson Revocable Trust (“Trust”).
In his first appeal, Mr. Johnson challenged the circuit court’s March 8, 2021 order removing him as trustee and appointing the present appellee, Robert McCarthy, Esq., as the substitute trustee. This Court vacated the decision and remanded the case to the circuit court to comply with procedural requirements. After remand, the circuit court conducted a show cause hearing and found that Mr. Johnson’s failure to administer the Trust effectively and competently, failure to follow court orders, and failure to perform fiduciary duties warranted his removal as trustee. In the same order, the circuit court appointed Mr. McCarthy as the substitute trustee. Mr. Johnson now appeals this order.
As we explain below, we agree with the circuit court’s ruling to remove Mr. Johnson as trustee of the Trust and affirm the judgment of the circuit court.
QUESTIONS PRESENTED
Mr. Johnson presents two questions for our review, which we have recast and rephrased into three:1
1. Did the circuit court err in taking judicial notice of certain documents in the court record?
Shortly after this Court’s remand, Mr. McCarthy again requested that the circuit court remove Mr. Johnson as trustee. Ms. Johnson petitioned separately to remove Mr. Johnson as trustee, and on December 6, 2022, the circuit court issued a show cause order.2 After filing an opposition, Mr. Johnson submitted a motion in limine requesting that the court “preclude . . . [Mr.] McCarthy . . . from introducing documentary evidence or testimony at the [] hearing . . . because [Mr. McCarthy] failed and refused to produce any documents in response to [Mr. Johnson’s] discovery requests and to sufficiently answer interrogatories. ”3
Mr. Johnson’s counsel argued the motion in limine at the outset of the show cause hearing on February 28, 2023. Mr. McCarthy clarified that he was “not going to enter any documents [into evidence at the hearing]”; rather, he “was asking the [c]ourt to take judicial notice of the entire court file and documents there, as well as the docket entries.”4 Mr. Johnson’s counsel agreed that the court could take judicial notice of docket entries, but not the entire court file. The court did not grant or deny Mr. Johnsons’ motion, and instead asked both parties to continue and make any objections as they arose. During the proceeding, Mr. Johnson’s counsel objected twice to Mr. McCarthy’s “request[s] to take judicial notice of the court record,” relying both times on the motion in limine: first, in response to Mr. McCarthy’s testimony about one of the
Adult Protective Services (“APS”) complaints filed against him, and second, after Mr. McCarthy referenced a videotape relating to an incident involving Mr. Johnson’s former attorney. In the second objection, Mr. Johnson’s counsel requested a continuing objection for the motion in limine. The court overruled both objections and continued to use the Maryland Electronic Courts (“MDEC”) electronic filing system to review prior case events, noting that the court “doesn’t have files anymore” and in any event, there were “45 pages of entries for [the] case[] . . . [all together totaling] 4,297 [pages].”
Following the show cause hearing, the circuit court issued a 22-page memorandum opinion and order finding that the removal of Mr. Johnson “is in Ms. Johnson’s best interest.” The court’s relevant factual findings in its opinion are summarized below.
The Circuit Court’s Findings: Catherine McQueen’s Tenure
The court’s opinion first finds that Catherine McQueen, Esq.—who was appointed by the court in 2020 as the guardian of Ms. Johnson’s property—and Mr. Johnson “maintained a cordial relationship,” but that their relationship “began to deteriorate almost immediately[.]” In support of this, the court found Mr. Johnson “refused to” agree with Ms. McQueen as to how to pay an appointed investigator, and that “as a result,” the investigator “was not paid for a year.”
The court also found that Mr. Johnson and Ms. McQueen’s relationship further deteriorated as Ms. Johnson was left with very little net income after paying her monthly expenses. Ms. Johnson repeatedly notified Ms. McQueen about not having enough money for groceries and medication, so Ms. McQueen requested that Mr. Johnson, as representative payee of Ms. Johnson’s social security pension, pay Ms. Johnson more income so she could afford her daily needs.
Meanwhile, Michelle Lancaster, Ms. Johnson’s daughter and Mr. Johnson’s sister, began paying out of her own pocket to pay for her mother’s groceries and medication.
Ms. Lancaster would then submit requests for reimbursement from the Trust, but Mr. Johnson never granted the requests for reimbursement or paid Ms. Johnson an increased allotment of income. When Mr. Johnson directly refused to provide additional funds, Ms. McQueen requested the court to appoint her as representative payee, but Mr. Johnson refused to consent to this solution as well. The court found that as a result of Mr. Johnson’s actions, Ms. McQueen was struggling to manage Ms. Johnson’s expenses and remaining assets.
The circuit court additionally found that Mr. Johnson resisted Ms. McQueen’s efforts to manage the estate taxes. After Ms. McQueen and Ms. Johnson’s former accountant reviewed the tax returns and secured Ms. Johnson’s signature, Mr. Johnson disagreed with it and “declared that he wished to file separate taxes for the Trust.” Ms. McQueen cautioned Mr. Johnson against doing so, given that the Trust did not have a tax identification number and there could be possible financial consequences, but Mr. Johnson filed a separate return anyway.
Overall, the court determined that “Ms. McQueen was caught in the middle of turbulent conflict” and it was difficult for Ms. McQueen “to determine who was telling the truth.” Ms. McQueen received many complaints from Ms. Johnson
regarding Mr. Johnson’s actions as trustee. Mr. Johnson accused Ms. Lancaster as “feeding lies” to Ms. Johnson, prompting the complaints. He also accused Ms. McQueen of “chronic financial mismanagement.”
As to Ms. McQueen’s resignation, the court observed that Ms. McQueen hesitated to say that she resigned because of Mr. Johnson “due to her professionalism.” The court found that Ms. McQueen was hesitant to “blame one individual, despite one individual consistently and relentlessly hindering her ability to serve as an effective guardian, that being Mr. Johnson.” The court also noted that this was the first time in 12 years that Ms. McQueen was forced to resign from a case, and that even after her resignation, Mr. Johnson filed a complaint against Ms. McQueen. The complaint was ultimately dismissed.
The Circuit Court’s Findings: Mr. McCarthy’s Tenure
Similarly, the circuit court found that Mr. Johnson was “unduly hostile” with Mr. McCarthy, who was appointed by the court as Ms. McQueen’s successor in August 2020. As an example, the court noted that Mr. Johnson interfered with Mr. McCarthy’s duties when Mr. Johnson refused to release money from the Trust “unless he approved of the way Mr. McCarthy was acting as guardian.”
The court credited Mr. McCarthy’s testimony that Mr. Johnson failed to comply with the court’s March 2021 order, which required Mr. Johnson to resign as representative payee, close all accounts titled in the Trust’s name, and deliver the remaining funds to Mr. McCarthy. The court’s opinion further acknowledges that Mr. Johnson sent a letter to two account holders explaining the court ordered resignation, but that Mr. Johnson took no additional action.
When Mr. Johnson failed to comply with the circuit court’s March 2021 order, Mr. McCarthy filed a requestion for instructions from the court for guidance on how to proceed. Mr. McCarthy testified that he contacted multiple payors personally, requesting they appoint him as representative payee, even spending “hours on the phone” with one payor throughout the process. The court found that because of “Mr. Johnson’s refusal to cooperate and follow instructions[,]” the Trust “incurred unnecessary fees because” Mr. McCarthy was forced to change the accounts himself.
The circuit court further noted that Mr. McCarthy continued to receive late payment notices from Ms. Johnson’s creditors after he became the trustee. Despite Mr. McCarthy informing the creditors of the address change to Mr. McCarthy’s address rather than Mr. Johnson’s address, the creditors still sent the bills to Mr. Johnson’s home. Because the creditors confirmed the address that they had on file was Mr. McCarthy’s, Mr. McCarthy suspected someone was intentionally altering the address in the creditors’ online portals to Mr. Johnson’s address before the bills were sent out, then subsequently reverting it back to Mr. McCarthy’s address. The court’s opinion characterizes this evidence as “striking.”
Additionally, the court summarized testimony regarding two complaints to APS made against Mr. McCarthy by Ms. Johnson. Mr. McCarthy and Ms. Lancaster testified that Ms. Johnson would not know how to file a complaint with APS without help
due to her cognitive decline, and suggested that Mr. Johnson was responsible for the complaints. Mr. McCarthy also testified that an APS worker would not reveal who initiated the complaint but suggested that Mr. McCarthy file an investigation against Mr. Johnson.
Both APS complaints were ultimately dismissed, and Mr. McCarthy declined to file an investigation against Mr. Johnson.
After the APS complaints were dismissed, Mr. Johnson filed complaints against Mr. McCarthy with three separate government agencies, alleging fraud and mismanagement of the Trust and Ms. Johnson’s assets. Each of the three complaints were dismissed.
The
Circuit Court’s Findings: Mr. Johnson’s Relationship With
Ms. Lancaster
The circuit court’s opinion credits Mr. McCarthy’s and Ms. Lancaster’s testimony regarding a “general lack of cooperation” between Mr. Johnson and Ms. Lancaster. In its findings, the court referenced testimony regarding prior altercations between the two. While determining it had “insufficient” detail on these events, the court used the testimony as evidence of “the inability of Mr. Johnson and Ms. Lancaster to work together effectively.”
The Circuit Court’s Findings: Mr. Johnson’s Relationship With Ms. Johnson
Finally, the court acknowledged testimony regarding Ms. Johnson’s fear that she would lose her home, which resulted in her experiencing “extreme distress.” Although Mr. Johnson first testified that “he did not know how Ms. Johnson got the idea that her home was at risk,” he later stated that he told Ms. Johnson foreclosure was a “conceivable possibility.” However, the court found no evidence “to corroborate [that] Ms. Johnson’s home was near foreclosure.”
The Circuit Court’s Conclusion
Considering its factual findings, the circuit court ultimately found that “there are grounds for [Mr. Johnson’s] removal as trustee.” The court’s opinion specifically concludes that Mr. Johnson failed to administer the Trust effectively, failed to obey court orders, and breached his fiduciary duties. Accordingly, the court determined that removing Mr. Johnson as trustee “is in Ms. Johnson’s best interests” and appointed Mr. McCarthy as trustee of the Trust.
Mr. Johnson’s timely notice of appeal followed.
DISCUSSION
I. THE CIRCUIT COURT DID NOT ERR IN REVIEWING THE COURT FILE.
On appeal, Mr. Johnson argues that the circuit court erred by taking judicial notice of the entire record and disputed facts within the court file.5 Notably, at oral argument, Mr. Johnson’s counsel could not identify any specific document or disputed fact of which the circuit court took judicial notice of but should not have. Mr. Johnson’s counsel instead argued that the court did not state or explain what documents the court did or did not take judicial notice of in the court file, and therefore, did not provide notice of what evidence had been admitted.
Mr. McCarthy contends that the circuit court only took notice of records that had been accepted as evidence in a previous hearing, and, citing to James v. State, 31 Md. App. 666, 687 (1976), argues that Maryland jurisprudence allows judicial notice of official court records when not doing so would “hinder” and “needlessly prolong litigation.”
We hold that the court did not err. As we explain, in our review of the circuit court’s memorandum opinion there is no instance of the court taking judicial notice, and the court properly reviewed the court file before filing its memorandum opinion and order.
A. Discussion
We review a circuit court’s ruling on a request to take judicial notice under the clearly erroneous standard, keeping in mind “[t]he principle that there is a legitimate range within which notice may be taken or declined and that there is efficacy in taking it, when appropriate[.]” Smith v. Hearst Corp., 48 Md. App. 135, 141 (1981) (quotes and citation marks omitted). As “[t]he first step to wisdom is calling a thing by its right name,” Roulette v. City of Seattle, 78 F.3d 1425, 1426 (9th Cir. 1996), however, we begin by reviewing terminology.
Maryland Rule 5-201 governs judicial notice of adjudicative facts, providing in relevant part:
(a) Scope of Rule. This Rule governs only judicial notice of adjudicative facts. Sections (d), (e), and (g) of this Rule do not apply in the Appellate Court or the Supreme Court.
(b) Kinds of Facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
[ ]
(e) Opportunity to Be Heard. Upon timely request, a party is entitled to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
(f) Time of Taking Notice. Judicial notice may be taken at any stage of the proceeding.
The Supreme Court of Maryland has distinguished “adjudicative facts” from “legislative facts,” defining the former as facts “‘about the parties and their activities, businesses and properties. They usually answer the questions of who did what, where, when, how, why, with what motive or intent while legislative facts do not usually concern the immediate parties but are general facts which help the tribunal decide questions of law and policy and discretion.’” Dashiell v. Meeks, 396 Md. 149, 175 n.6 (2006) (quoting Montgomery County v. Woodward & Lothrop, Inc., 280 Md. 686, 711-12 (1977)). “The doctrine of judicial notice substitutes for formal proof of a fact ‘when formal proof is clearly unnecessary to enhance the accuracy of the fact-finding process.’” Lerner v. Lerner Corp., 132 Md. App. 32, 40 (2000) (quoting Smith, 48 Md. App. at 136). Significantly, “[n]oticing pleadings does not mean accepting what they say as true, only that they exist as public records.” Abrishamian v. Washington Med. Grp., P.C., 216 Md. App. 386, 415-16 (2014).
Here, during the February 28, 2023 hearing, Mr. McCarthy requested that the circuit court take “judicial notice” of the record as it appeared on MDEC. The court agreed to review the electronic file, and noted in its opinion that it “reviewed the entire record in this matter.” While Mr. Johnson argues that the court erroneously took judicial notice of the record, our analysis of the circuit court’s memorandum opinion revealed no instance of the court relying on any adjudicative fact not testified to during the hearing.
To the extent the court’s opinion references items within the record, it does so only to create a timeline—not to “accept[] what [the record items] say as true[,]” Abrishamian, 216 Md. App. at 416, or to support its decision. Therefore, because Mr. Johnson does not point to any disputed fact relied upon by the circuit court to remove him as trustee, we conclude that the circuit court did not take judicial notice or otherwise err in reviewing the electronic case file.
II. THE CIRCUIT COURT DID NOT ERR IN REMOVING MR. JOHNSON AS TRUSTEE OF THE TRUST.
A. The Parties’ Contentions
In its memorandum opinion, the circuit court found that Mr. Johnson’s removal was warranted because he failed to administer the Trust effectively and competently, failed to follow court orders, and failed perform his fiduciary duties as trustee. Mr. Johnson argues on appeal that the circuit court erred in “disregard[ing]” testimony and evidence supporting Mr. Johnson. Summarily, he disagrees with the credibility judgment of the circuit court. His specific arguments are as follows.
Mr. Johnson first argues that the court “mistakenly credited” Mr. McCarthy’s testimony about the financial circumstances of the Trust, yet failed to credit the fact that Mr. Johnson was not held in contempt. Mr. Johnson next argues that a lack of cooperation between parties is not a sufficient ground for removal of a trustee, and alternatively, that even if it is a sufficient ground, the evidence does not support the court’s conclusion.6 Finally, Mr. Johnson claims that the court incorrectly “ignored the testimony of [Ms. Johnson’s sister,] who refuted all of [Mr. McCarthy’s] arguments.”
In response, Mr. McCarthy maintains that the circuit court correctly supported its discretionary decision to remove Mr. Johnson as trustee with substantial evidence in the record, and therefore, there were no clearly erroneous factual findings and no incorrect legal conclusions. Accordingly, Mr. McCarthy argues, the evidence supports a finding of removal.
B. Standard of Review
The decision whether to remove a trustee is a matter for the circuit court’s discretion. Schmidt v. Chambers, 265 Md. 9, 34 (1972). In cases that turn on a judge’s exercise of discretion, this Court reviews the circuit court’s factual findings for clear error and its legal analysis under the de novo standard. In re Adoption of Ta’Niya C., 417 Md. 90, 100 (2010). Importantly, “[b]ecause trial judges are presumed to know the law, not every step in their thought process needs to be explicitly spelled out.” Zorich v. Zorich, 63 Md. App. 710, 717 (1985).
Mr. Johnson’s challenge to his removal as trustee depends on the circuit court’s factual findings. “We defer to the fact finder’s ‘opportunity to assess the credibility of the witnesses, weigh the
evidence, and resolve conflicts in the evidence.’” Neal v. State, 191 Md. App. 297, 314 (2008). We accordingly review the court’s three reasons for removing Mr. Johnson separately and for clear error. See In re Ta’Niya C., 417 Md. at 100.
1. Failure to Administer the Trust Effectively and Competently
Under Md. Code Ann., Est. & Trusts (“ET”) § 15-112(a)(1) (iii), a trial court “shall” remove a trustee who has “[s]hown to be incapable, with or without fault to properly perform” fiduciary duties. A court “may” remove a trustee who has “[f]ailed to perform any fiduciary duty, or to competently administer the fiduciary estate,”
ET § 15-112(a)(2)(iii), or under § 14.5-706(2), when:
(i) The trustee has committed a serious breach of trust;
(ii) Lack of cooperation among cotrustees substantially impairs the administration of the trust; [or]
(iii) Because of unfitness, unwillingness, or persistent failure of the trustee to administer the trust effectively, the court determines that removal of the trustee best serves the interests of the beneficiaries[. ]
Here, the circuit court found that Mr. Johnson failed to administer the Trust effectively and competently because Mr. Johnson failed to cooperate, was incapable of properly performing the duties of the fiduciary, and substantially impaired the administration of the Trust. The court detailed “ample evidence of the inability” of Mr. Johnson to cooperate with Ms. McQueen, Mr. McCarthy, Ms. Johnson, and Ms. Lancaster in the administration of the Trust. The court found that Mr. Johnson “deliberately def[ied]” and “intentionally sought to cause animosity” between the guardians, so that he “failed to administer the [T]rust[.]” Specifically, the court found, Mr. Johnson defied Ms. McQueen’s direction not to file separate taxes for the Trust, refused to pay the investigator, delayed the payment of fees, refused to extend enough of the Trust’s funds for Ms. Johnson to pay for her daily needs, failed to follow court orders causing “Mr. McCarthy [] to spend time correcting Mr. Johnson’s actions,” caused the Trust to suffer unnecessary fees, and “frequently initiated frivolous and baseless complaints” against Mr. McCarthy and Ms. McQueen.
The circuit court supported its conclusion that Mr. Johnson failed to administer the Trust effectively and competently by crediting relevant testimony presented at the hearing. Reviewing the court’s factual findings for clear error, we see none.
Accordingly, we hold that the circuit court did not err in finding that removal of Mr. Johnson as trustee serves the best interests of Ms. Johnson.
2. Failure to Follow Court Orders
A court “shall” remove a trustee who has willfully disregarded a court order but “may” remove a trustee who has negligently failed to obey an order of the court.
ET §§ 15-112(a)(1)(ii), (a)(2)(ii). Here, the circuit court identified two instances where Mr. Johnson negligently failed to follow an order of the court.
First, the court found that Mr. Johnson disobeyed the October 25, 2019 order to pay the investigator’s fee from the assets of the estate “and/or” the Trust within 21 days of the
order. The court acknowledged that the October 2019 order determined the Trust had sufficient fees to pay the investigator while Ms. Johnson’s estate did not. But the court found that Mr. Johnson refused to pay the fee from the Trust’s funds, instead “forcing” Ms. McQueen to sell Ms. Johnson’s car to cover the expense.
Second, Mr. Johnson did not follow the June 21, 2021 order to “take all steps necessary to resign as Representative Payee on behalf of Iva E. Johnson with the Social Security Administration[, ] including but not limited to signing all appropriate documentation and submitting notice of resignation by June 24, 2021.” The court found that the letters sent by Mr. Johnson to the creditors were not sufficient to comply with this order.7
“We give ‘due regard’” to the circuit court’s role as fact finder, State v Smith, 374 Md. 527, 534 (2003) (citations omitted). We hold that there are evidentiary facts sufficiently supporting the inference made by the trial court, and we defer to the circuit court’s finding that Mr. Johnson violated court orders. Neal, 191 Md. App. at 314.
3. Failure to Perform Fiduciary Duties
Under ET § 15-112(a)(1)(iv), a court “shall” remove a trustee who has breached the duty of good faith or loyalty to the fiduciary estate. Here, the circuit court found that Mr. Johnson breached his duty of care by failing to provide Ms. Johnson with enough income to support her daily needs, by delaying the payment of the investigator’s fee, and by filing separate taxes despite being informed about possible financial consequences of doing so. The court found that each instance illustrated Mr. Johnson’s continual refusal to act in the best interest of the Trust and Ms. Johnson.8
The court also found that Mr. Johnson breached the duty of loyalty and good faith. The court explained that since Mr. Johnson is a future beneficiary of the Trust, serving as trustee could pose a conflict of self-interest. Given that Mr. Johnson previously refused to payout Trust money—which conflicted with Ms. Johnson’s best interests—the court concluded that it is in Ms. Johnson’s “best interests that she maintains a strong
cohesive relationship with the guardians of the property.”
Mr. Johnson’s refusal to cooperate with Ms. McQueen and Mr. McCarthy demonstrated his threat to maintaining these relationships. Additionally, the court found that Mr. Johnson also worked against Ms. Johnson’s best interest by informing Ms. Johnson that she may lose her home, thereby causing her distress, when no evidence was presented to support the possibility of foreclosure.
Overall, substantial evidence was presented in the show cause hearing to support the conclusion that Mr. Johnson failed to perform his fiduciary duties. See Neal, 191 Md. App. at 314. Therefore, we hold that the circuit court did not clearly err in its assessment of the evidence, and affirm the court’s removal of the Mr. Johnson as trustee.
III. MR. JOHNSON DID NOT PRESERVE THE ISSUE OF JUDICIAL BIAS FOR APPELLATE REVIEW.
Mr. Johnson also claims that the circuit court “eroded [his] due process at the hearing when it stepped out of its role[s] as impartial trier of fact” and “neutral arbiter.”9
“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[.]” Md. Rule 8-131(a). A party must object or otherwise raise the issue of judicial bias absent “very extenuating circumstances” to preserve the issue for review. Scott v. State, 110 Md. App. 464, 486 (1996); Azquah v. State, 113 Md. App. 29, 61 (1996) (“[i]n order to preserve this issue for appeal, [defendant] must first have objected to the individual instances of improper conduct.”).
Mr. Johnson did not raise or object to the issue of judicial bias before the circuit court. Therefore, Mr. Johnson did not preserve this issue for our review and we do not reach it here.
CONCLUSION
Accordingly, we hold that the circuit court did not err in reviewing the court record in the case at-issue, and we affirm the circuit court’s order removing Mr. Johnson as trustee of the Trust under ET § 15-112.
JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED; COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Mr. Johnson phrased the questions as follows:
1. Did the trial court err in taking judicial notice of disputed facts contained in pleadings in the court file and eroding [Mr. Johnson]’s due process when it stepped out of its role of impartial trier of fact?
2. Did the trial court err in removing [Mr. Johnson] as trustee of his mother’s Revocable Trust on the merits?
2 The circuit court later issued an Amended Show Cause Order on February 9, 2023, to ensure the parties had notice that Ms. Johnson’s Motion to Remove Trustee, filed February 21, 2019, may be discussed at the show cause hearing.
3 While Mr. Johnson’s motion in limine indicates it was electronically filed on February 17, 2023, the circuit court explained that the motion was not filed appropriately and, consequently, was not received by chambers until the evening of February 27, 2023.
4 Notably, at the February 2, 2024 oral argument before this Court, Mr. McCarthy’s counsel clarified that he did not think “judicial notice [was] [] the right term to apply here, particularly when it c[a]me[] to [the records the court reviewed].”
5 After the hearing, the court denied the motion in limine as moot. Mr. Johnson does not explicitly appeal the court’s finding that his motion is moot. Mr. Johnson only makes an argument that “the trial court erred in taking judicial notice of disputed facts[.]” Accordingly, we focus our analysis on this issue only.
6 In relevant part, Mr. Johnson contends that Ms. McQueen’s testimony was not reliable, and that any
disharmony between Mr. Johnson and Ms. Lancaster did not necessitate his removal as trustee.
7 The court’s memorandum opinion states that “Mr. Johnson informed the recipients that he did not know how to follow the Court’s order [removing him as representative payee].” The letters do not appear to indicate Mr. Johnson did not know how to follow the court’s order. Rather, one of the letters states his request that the recipients notify him of the “next steps to effectuate th[e] order.” And, while the letters explain the court’s order requiring Mr. Johnson’s recusal, Mr. Johnson took no further action beyond mailing the letters. The circuit court’s characterization that Mr. Johnson stated he “did not know how to follow the Court’s order” does not appear to be supported by the letter, but is harmless.
8 Mr. Johnson cites to Miller v. Rosewick Road Development, LLC, 214 Md. App. 275 (2013) to support that his actions did not arise to a breach of his fiduciary duty. But Miller is not analogous to the instant dispute. In Miller, this Court held that the trial court erred in removing trustees for failure to sell a piece of property when the trustees worked to enhance the property value, inspected the property, sought legal advice for the sale, appraised the home, and negotiated with government officials. Id. at 306-309. Unlike the trustees and property in Miller, however, the circuit court here found that Mr. Johnson intentionally breached his fiduciary duties to Ms. Johnson by refusing her enough money to support her daily needs, paying taxes under the Trust, and refusing to cooperate with the property guardians.
9 While the record demonstrates that Mr. Johnson’s counsel did contemporaneously object to Mr. McCarthy’s use of notes on evidentiary grounds, no objection was made for the judicial bias alleged on appeal.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court held the husband failed to timely appeal from the Baltimore County Circuit Court’s June 27, 2022, judgment of absolute divorce or its Nov. 22, 2022, opinion resolving reserved issues. Because husband’s motion under Rule 2-534 was not filed within 10 days of the Nov. 22, 2022, judgment, Rule 8-202(c) was not invoked; as a result, husband did not have an additional 30 days to appeal the Nov. 22, 2022, judgment from when the court denied his motion for reconsideration.
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.
(D) Remand on the issue of dissipation
(E) Reverse the Order that [Mr. Rood] pay attorney’s fees to [Ms. Rood]
(F) Reverse the Order that [Mr. Rood] pay indefinite alimony to [Ms. Rood]
(G) Reverse the Order regarding the determination of extant marital property
For the following reasons, we affirm.
BACKGROUND
Mr. Rood and Tracy Rood, appellee, were married May 24, 2002, in Baltimore County. The parties have one child together, who was born in November 2002. The parties separated on December 1, 2019. Mr. Rood filed a complaint for absolute divorce and child custody on March 4, 2020, which he amended on the record on March 15, 2022, without objection, to include a request for absolute divorce on the grounds of 12- month separation. Ms. Rood filed an answer and a counterclaim for limited divorce on April 20, 2020.
James Rood, appellant, filed a complaint for absolute divorce and child custody on March 4, 2020. The Circuit Court for Baltimore County entered a judgment for absolute divorce and related memorandum opinion on June 27, 2022, and reserved judgment on multiple issues. On November 22, 2022, the court entered an order and related memorandum opinion, incorporating the June findings and addressing the issues the court had reserved. Mr. Rood filed a motion to modify with the court on December 22, 2022, which the court considered as a motion for reconsideration following a status conference. The court denied Mr. Rood’s motion on April 20, 2023. Mr. Rood filed his appeal to this Court on May 19, 2023.
QUESTIONS PRESENTED
Mr. Rood requests that this Court review “the [t]rial [c] ourt’s award of attorney’s fees and the [t]rial [c]ourt’s award of alimony and arrears regarding the same.” He also asks this Court to review “the [t]rial [c]ourt’s determination of dissipation.”1 Mr. Rood ultimately requests this Court to:
(A) Vacate the [c]ircuit [c]ourt’s Order entered November 22, 2022
(B) Remand on the issue of attorney’s fees
(C) Remand on the issue of alimony
The parties appeared for a pendente lite hearing on March 5, 2021, with pendente lite child support, alimony, and attorney’s fees at issue. Both parties filed exceptions to the Magistrate’s Report and Recommendation. Following an exceptions hearing, the pendente lite order was entered on June 2, 2021, consistent with the Magistrate’s recommendations and overruling the exceptions. Mr. Rood filed a motion to modify and rescind the June 2, 2021 order and judgment on June 23, 2021. Ms. Rood moved to dismiss Mr. Rood’s motion on July 8, 2021. Mr. Rood’s motion to modify was denied on July 16, 2021.
Ms. Rood filed a petition for contempt on January 13, 2022, and a motion to modify the pendente lite order on February 2, 2022. The parties agreed for the petition for contempt and motion for modification to be heard at the divorce trial set for March 15, 2022. The divorce trial took place on March 15, March 16, March 17, March 21, and April 21, 2022. The court gave an oral ruling on June 17, 2022, “granting the parties a judgment of absolute divorce from today,” reserving on the issue of valuation of marital property and marital award for a period of 90 days, summarizing testimony and findings related to the factors considered for alimony and indefinite alimony, reserving the amount of alimony to be decided until the “marital property, monetary award can be resolved, as that is a factor in the [c]ourt’s decision on an alimony award,” and finding Mr. Rood “to be in contempt for nonpayment of child support and the pendente lite alimony award in the amount of $42,270.” The reserved issues were scheduled to be heard on October 11, 2022.
June
Judgment of Divorce
The circuit court entered its first memorandum opinion and the judgment of absolute divorce on June 27, 2022. The court “considered all of the testimony and evidence in this matter, as well as the arguments of counsel.” The court found the evidence to be sufficient to award Mr. Rood a judgment of absolute divorce, naming “[Ms. Rood]’s request for alimony, the division of the parties; marital property, [Ms. Rood]’s request for a monetary award, and [Ms. Rood]’s Motions for Contempt and for Retroactive Modification of the Pendente Lite Alimony award” to be at issue. To identify the marital property, the court “relied heavily on the Joint Statement of Parties Concerning Marital and Non-Marital Property, as amended during trial, and as admitted as Joint Exhibit 1.” The court also “relied on the exhibits admitted into evidence, and the testimony of the parties.”
The court listed the items the parties agreed upon to be marital and non-marital property. The court then made findings as to what the items the parties disagreed upon would be considered. The court decided the “proceeds of the house, after all encumbrances are satisfied, [would be] divided equally between the parties.” The proceeds would be held in an attorney escrow account until the conclusion of the case. The court also explained its inability to value and divide the marital property accurately, so it reserved the issue of marital property and a monetary award for 90 days for the parties to “present evidence of the value of the marital property as of today.”
The court then addressed the issue of alimony. The court noted that it was “guided by the factors in Family Law Article, Section 11-106.”2 The court examined “the ability of the party seeking alimony to be wholly or partly self-supporting” and found that, at that time, Ms. Rood was not able to be selfsupporting. The court then analyzed “the time necessary for the party seeking alimony to gain sufficient education or training to enable the party to find suitable employment[,]” and found “[t]he biggest obstacle to [Ms. Rood] becoming self-supporting [was] not her education, or lack of training, but her health.” The court then looked at “the standard of living that the parties established during their marriage” and illustrated the parties’ “upper middle-class standard of living” while they were together. As for the duration of the marriage and the parties’ ages, the court noted that the parties had been married for 20 years, Mr. Rood was 54 years old and Ms. Rood was 51 years old at the time of trial. The court also wrote about “[t]he contributions, monetary[] and nonmonetary, of each party to the well-being of the family,” explaining each party’s work life during marriage and since separation. The court looked at the “circumstances that [c]ontributed to the estrangement of the parties, noting some of the parties’ altercations prior to Ms. Rood leaving the marital home.
Before addressing “the physical and mental condition of each party,” the court wrote, “[a] great deal of testimony throughout the course of the trial was focused on the physical and mental condition of [Ms. Rood]. Less attention was provided to [Mr. Rood]’s health.” The court then addressed “the ability of the party from whom alimony is sought to meet that party’s needs while meeting the needs of the party seeking alimony.” The
court found that “[Mr. Rood] is financially able to pay alimony.” The court acknowledged that there was “no agreement between the parties as to alimony.”
The court determined “the financial needs and financial resources of each party,” which included “all incomes and assets, including property that does not produce income;”3 “any award made under §§ 8-205 and 8-208 of this article;”4 “the nature and amount of the financial obligations of each party; and . . . the right of each party to receive retirement.” The court determined that “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” does not apply. Finally, the court addressed other factors, specifically, finding “[Mr. Rood]’s behavior during the parties’ separation” to be “noteworthy.”
The court then discussed indefinite alimony, citing the factors for indefinite alimony to be either: (1) due to age, illness, infirmity, or disability, the party seeking alimony cannot reasonably be expected to make substantial progress toward becoming self-supporting; or (2) even after the party seeking alimony will have made as much progress toward becoming self-supporting as can reasonably be expected, the respective standards of living of the parties will be unconscionably disparate. 5 The court reserved on the issue “until the marital property and monetary award issue [was] resolved as that could factor into the [c]ourt’s award. [The court] will also address at that time the request for the retroactive modification.”
The court found Mr. Rood to be “in contempt for nonpayment of child support and Pendente Lite alimony in the amount of $42,270.00.” The court also imposed instructions for Mr. Rood to purge being found in contempt. If Mr. Rood failed to follow the court’s order, the court would “impose a monetary sanction of $3,000, plus attorney’s fees.”
November 22, 2022 Memorandum Opinion and Order
During the hearing on October 11, 2022, the court “receive[d] additional documentation, as well as arguments of counsel” to address the “issues that remained open[] following” the judgment of absolute divorce.6 As a result of the hearing, the circuit court entered a memorandum opinion and an order on November 22, 2022. The court “considered all the testimony and evidence in this matter, as well as the arguments of counsel” and “incorporate[d] into th[e] [Memorandum] Opinion all findings previously made in the Memorandum Opinion accompanying the parties’ Judgment of Absolute Divorce” entered on June 27, 2022.
The court ordered “the marital property to be divided equally between the parties as detailed in the Separation of Property chart [] and Property Ownership chart [].” The court “considered the factors set forth in Family Law Act § 8-205. Many of the factors the [c]ourt considered were the same factors the [c]ourt considered in its award of alimony.” The court incorporated its findings from the June 27, 2022 memorandum opinion and supplemented some of the factors from FL § 11-106. The court found that an indefinite alimony award was appropriate under FL § 11-106(c), and Mr. Rood’s payments were to continue to be
made to Ms. Rood by an Earnings Withholding Order.
As for the arrears, the court detailed Mr. Rood’s payments towards alimony and arrears and ordered Mr. Rood to “satisfy all arrears in a lump sum payment to [Ms. Rood] from his share of the proceeds from the marital home prior to its distribution.” The court also found that “significant attorney[’s] fees were incurred by [Mr. Rood] and [Ms. Rood]” and detailed Mr. Rood’s obligations to pay the fees and corresponding consequences should he fail to pay them.
December 20, 2022 Motion to Modify
Mr. Rood filed a motion to modify requesting the court “to modify its judgment and order of November 21, 2022” pursuant to Maryland Rule 2-535.7 Mr. Rood claimed that “[t]he alimony is problematic;” “[t]he arrearage calculation . . . is incorrect;” “[t]he notion that [Ms. Rood] has an entitlement to indefinite alimony cannot withstand scrutiny;” “it is impossible to discern what [Ms. Rood] did with any of the money she received;” and “[t]he double award of attorney’s fees is also questionable.” Mr. Rood concluded with: “In sum, the court must modify its holding in [its] order [for] alimony, support, marital award, . . . attorney’s fees, contempt and such other decisions may be articulated at any hearing hereon.” After a remote status conference on April 10, 2023 to clarify contentions as to the intent of Mr. Rood’s motion, the circuit court ordered Mr. Rood’s motion to modify to be considered as a motion for reconsideration and denied the motion on April 20, 2023.
Mr. Rood filed his appeal to this Court on May 19, 2023.
DISCUSSION
I. MR. ROOD’S APPEAL OF THE
JUNE 27, 2022
JUDGMENT OF ABSOLUTE DIVORCE AND RELATED MEMORANDUM OPINION IN ADDITION TO THE NOVEMBER 22, 2022 ORDER AND RELATED MEMORANDUM OPINION IS NOT TIMELY.
Mr. Rood appeals from the following: [T]he Judgment of Absolute Divorce entered June 27, 2022 and related Memorandum Opinion entered simultaneously, the Trial Court’s Order entered November 22, 2022 and the related Memorandum Opinion entered simultaneously, and the Trial Court’s Order entered April 20, 2023 on [Mr. Rood]’s Motion to Modify (treated as a Motion for Reconsideration).
Ms. Rood argues on appeal that Mr. Rood “did not appropriately preserve issues contained in his brief and the issues presented should not be considered by this Court on appeal.” Specifically, Ms. Rood claims “Mr. Rood’s appeal is limited to the issue of whether the court abused its discretion when it denied his revisory motion, which is not the same as an appeal from the original judgment.” Citing to Cent. Truck Ctr., Inc. v. Cent. GMC, Inc., 194 Md. App. 375, 397 (2010), Ms. Rood argues that this Court should not review the June 27, 2022 judgment of absolute divorce and related memorandum opinion nor the November 22, 2022 order and related memorandum opinion. We agree with Ms. Rood.
Mr. Rood’s motion to modify was filed on December 20, 2022.
The motion requested the circuit court to “modify its judgment and order of November 21, 2022[.]” The order was entered by the court on November 22, 2022. The motion to modify was considered by the court as a motion for reconsideration and denied on April 20, 2023.
Maryland Rule 8-202 governs when appeals must be filed. Rule 8-202(a) states: “Except as otherwise provided in this Rule or by law, the notice of appeal shall be filed within 30 days after entry of the judgment or order from which the appeal is taken.” Rule 8-202(c) states:
In a civil action, when a timely motion is filed pursuant to Rule 2-532, 2-533, 2-534, or 11-218, the notice of appeal shall be filed within 30 days after entry of (1) a notice withdrawing the motion or (2) an order denying a motion pursuant to Rule 2-533 or disposing of a motion pursuant to Rule 2-532, 2-534, or 11-218.
A motion to reconsider is governed by Maryland Rule 2-534. Matter of Jacobson, 256 Md. App. 369, 404 (2022). Under Rule 2-534, a motion for reconsideration may be filed within ten days after entry of judgment. Md. Rule 2-534; Matter of Jacobson, 256 Md. App. at 404. Pursuant to Maryland Rule 8-202 and the precedent of this Court and the Supreme Court of Maryland: When parties file timely motions under Rules 2-533 or 2-534, the time the parties have to note an appeal is suspended until after the motion is decided. See Md. Rule 8-202; Unnamed Attorney v. Attorney Grievance Comm’n, 303 Md. 473[ ] (1985); Sieck v. Sieck, 66 Md. App. 37[ ] (1986). If parties file a motion for new trial or a motion to alter or amend more than ten days after judgment, the time for filing an appeal will not be stayed. See Md. Rule 8-202(c); Stephenson v. Goins, 99 Md. App. 220[ ] (1994).
Pickett v. Noba, Inc., 114 Md. App. 552, 556 (1997).
Mr. Rood filed his motion for reconsideration on December 20, 2022, which is more than ten days after judgment was entered on November 22, 2022. Because his motion under Rule 2-534 was not filed within ten days of the November 22, 2022 judgment, Rule 8-202(c) was not invoked; as a result, Mr. Rood did not have an additional 30 days to appeal the November 22, 2022 judgment from when the court denied Mr. Rood’s motion for reconsideration. Therefore, Mr. Rood’s appeal of the November 22, 2022 order and related memorandum opinion is not timely.
Additionally, Mr. Rood’s appeal of the June 27, 2022 judgment and related memorandum opinion is also not timely. In that judgment, the circuit court reserved judgment on the issues of marital property, monetary award, amount of alimony, attorney’s fees, and retroactive modification of alimony. The court held a hearing on October 11, 2022, to address those issues. Following the hearing, the November 22, 2022 judgment “incorporate[d] . . . all findings previously made in the [June 27, 2022] Memorandum Opinion accompanying the parties’ Judgment of Absolute Divorce[,]” made additional findings, and issued a judgment concerning “marital property, monetary award, amount of alimony, [and] retroactive modification of alimony.”
Because the June 27, 2022 judgment awarded an absolute divorce but did not include a conclusive ruling on several other contested issues, the judgment was not final nor reviewable
by this Court on those unaddressed issues. See Rohrbeck v. Rohrbeck, 318 Md. 28, 41 (1989). The November 22, 2022 judgment included the court’s ruling on the remaining issues and was the final judgment in this case. While Mr. Rood could have appealed the November 22, 2022 judgment, as we have already concluded, he did not do so in a timely manner. Mr. Rood’s challenges to the June 27, 2022 and November 22, 2022 judgments are untimely.
II. THE CIRCUIT COURT DID NOT ABUSE ITS DISCRETION IN DENYING MR. ROOD’S REVISORY MOTION.
What this Court can review is the circuit court’s denial of Mr. Rood’s motion for reconsideration which he filed on December 20, 2022, and the court denied in its April 20, 2023 order. As stated above, Mr. Rood requests this Court to review the circuit court’s award of attorney’s fees, alimony and arrears, and determination of dissipation. An appeal of an order denying a motion for reconsideration is governed by an abuse of discretion standard. Cent. Truck Ctr., Inc., 194 Md. App. at 397. This Court continued:
As been reiterated on numerous occasions, an abuse of discretion occurs:
“where no reasonable person would take the view adopted by the [trial] court []” . . . or when the court acts “without reference to any guiding principles.” An abuse of discretion may also be found where 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.”
Questions within the discretion of the trial court are “much better decided by the trial judges than by appellate courts, and the decisions of such judges should be disturbed where it is apparent that some serious or abuse of discretion or autocratic action has occurred.” In sum, to be reversed “[t]he decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.”
Aventis Pasteur, Inc. v. Skevofilax, 396 Md. 405, 418-19[ ] (2007) (quoting Wilson v. John Crane, Inc., 385 Md. 185, 19899[ ] (2005), in turn quoting In re Adoption/Guardianship No. 3598, 347 Md. 295, 312-13[ ] (1997)).
An abuse of discretion, therefore, “‘should only be found in the extraordinary, exceptional, or most egregious case.’” Id. at 419[ ] (quoting Wilson, 385 Md. at 199[ ]). Given that the abuse of discretion standard makes “generous allowances for the trial court’s reasoning,” Das v. Das, 133 Md. App. 1, 15[ ] (2000), we grant great deference to that court’s conclusion and uphold it unless it is apparent a serious error has occurred.
Cent. Truck Ctr., Inc., 194 Md. App. at 398. “[A]n error in applying the law can constitute an abuse of discretion, even in the context of a motion for reconsideration.” Matter of Jacobson, 256 Md. App. at 405 (quotation marks and citation omitted).
Mr. Rood’s first argument addresses the court’s findings for the attorney’s fees.
Mr. Rood writes:
The [c]ourt’s Order entered November 22, 2022 ordered that [Mr. Rood] is to pay to [Ms. Rood]’s attorney [] the sum of $37,000 within thirty days of the Order and that [Mr. Rood] was to further pay to [Ms. Rood]’s other attorney [] the sum of $7,500 within third days of the Order. Unpaid sums were to be reduced to judgment. The [t]rial [c]ourt erred and abused its discretion regarding the same.
Mr. Rood claims “[t]he trial court failed to apply properly the statutory criteria having made no finding regarding whether the litigation was substantially justified and hav[ing] failed to consider [Mr. Rood]’s financial resources and financial needs.”
Mr. Rood then addresses the alimony award. First, Mr. Rood cites to “the [t]rial [c]ourt’s memorandum opinion entered June 27, 2022” and the “[t]rial [c]ourt Judgment of Absolute Divorce entered June 27, 2022” and claims “the [t]rial [c]ourt was clearly erroneous to have decided to award indefinite alimony without considering the factors necessary for a fair and equitable award.” Second, Mr. Rood cites to the “[c]ourt’s Order entered November 22, 2022” and argues that the trial court: did not explain how, based on the evidence, it determined [Ms. Rood]’s needs and made no finding regarding the amount of [Ms. Rood]’s monthly needs. Further, the [t] rial [c]ourt failed to explain how, based on the evidence, it determined that [Mr. Rood] had the ability to pay the alimony award and take care of his needs. ***
The [t]rial [c]ourt was clearly erroneous to have decided to award indefinite alimony without determining and considering [Ms. Rood]’s monthly needs and [Mr. Rood]’s monthly needs and in failing to explain how, based on the evidence, it determined that [Mr. Rood] had the ability to pay the alimony awarded.
Mr. Rood again cited to the “[c]ourt’s November 22, 2022 Memorandum Opinion” when arguing that the court failed to conduct an analysis of the parties’ financial needs and resources when determining each party’s rights to receive retirement benefits. Mr. Rood also claims the circuit court “detailed some of [Mr. Rood]’s liabilities” but “omitted and failed to consider further obligations of [Mr. Rood]” in the “[t]rial [c] ourt’s Judgment of Absolute Divorce and related Memorandum Opinion and the [t]rial [c]ourt’s Order entered November 22, 2022 and related Memorandum Opinion.”
Mr. Rood then addresses the alimony arrears. Mr. Rood writes:
Pursuant to the [t]rial [c]ourt’s Order entered November 22, 2022, the [t]rial [c]ourt modified [Mr. Rood]’s pendente lite alimony obligation for the period from June 2021 to September 2021 and again beginning June 2022. The [t]rial [c]ourt erred and abused its discretion in modifying the pendente lite alimony obligation to $3,000 per month.
Mr. Rood lastly addresses the dissipation determination. Again, Mr. Rood cites to the trial court’s finding in the memorandum opinion entered June 27, 2022, and argues that the purpose behind the expenditure of the marital assets is important.
Although, Mr. Rood cites to the June 27, 2022 and November 22, 2022 judgments throughout his brief, he does not provide meaningful argument as to why the court abused its discretion in its denial of his motion for reconsideration. “[A]rguments not presented in a brief or not presented with particularity will not be considered on appeal.” Klauenberg v. State, 355 Md. 528, 552 (1999). See Md. Rule 8-504(a)(6) (requiring that briefs contain “[a]rgument in support of the party’s position on each issue”). In short, Mr. Rood has failed to present with particularity how the circuit court abused its discretion when it denied his motion for reconsideration, only mentioning the circuit court’s order when
he stated he was appealing it.8
Nevertheless, the questions raised are essentially mixed questions of law and fact and we reviewed the record with that in mind. Based on the record and the circuit court’s multiple memorandum opinions, which included its analysis, relevant factual details, and reasoning, accompanying its orders in this case, we are not persuaded that “[any] serious error has occurred.” Cent. Truck Ctr., Inc., 194 Md. App. at 398. Therefore, we hold that the circuit court did not abuse its discretion when it denied Mr. Rood’s motion for reconsideration.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED; COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Mr. Rood explains the issues that he requests this Court to review, but he does not present specific questions in his informal brief.
2 Md. Ann. Code, Family Law (“FL”) § 11-106 (1984, 2019 Repl. Vol.).
3 The circuit court “[had] not yet made a property distribution determination” but did include information regarding Mr. and Ms. Rood’s income and assets.
4 FL § 8-205 governs the monetary award, or the granting of award or transferring ownership of an interest in property. FL § 8-205(b) requires courts to consider 11 factors when determining the “amount and the method of payment of a monetary award, or the terms of the transfer of the interest in property[.]”
FL § 8-208 governs the possession and use of the family home and family use personal property after “the court grants an annulment or a limited or absolute divorce.”
In the case here, the circuit court had not yet determined the marital award.
5 FL § 11-106(c)(1)-(2).
6 The hearing also addressed Ms. Rood’s Motion to Amend or Alter Memorandum Opinion and Judgment filed on July 7, 2022, Mr. Rood’s Responses filed on July 22, 2022, Mr. Rood’s Motion for Lien on June 13, 2022 (to which there was no objection), and Ms. Rood’s request for an Earnings Withholding Order.
7 The November 22, 2022 memorandum opinion and order was entered by the circuit court on November 22, 2022 but was signed on November 21, 2022. Based on the record, the judgment and order to which Mr. Rood is referring here are the same as the November 22, 2022 memorandum opinion and order.
8 “A single sentence is insufficient to satisfy [Maryland Rule 8-504(a)(6)]’s requirement.” Silver v. Greater Baltimore Med. Ctr., Inc., 248 Md. App. 666, 668 n.5 (2020).
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Baltimore County Circuit Court’s termination of mother’s parental rights, who previously had been adjudicated children in need of assistance. The court’s findings were supported by ample evidence from which it could conclude that mother was unfit and that exceptional circumstances made the continuation of mother’s parental relationship detrimental to the best interests of the children. The court did not err or abuse its discretion in its factual findings or in its ultimate determination that the termination of mother’s parental rights was in the best interest of each child.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
Mother presented as manic, determined that she suffered from Bipolar I disorder, mild intellectual disability with a low level of cognitive functioning, and evidence of turbulent, narcissistic, and paranoid personality traits.6 Due to her susceptibility to poor judgment, the evaluator believed that Mother would require “close and constant supervision” if C.W. were returned to her care. The evaluator also recommended ongoing mental health treatment and medication adjustment by a psychiatrist.
Mother gave birth to A.W. in March 2020. She regained custody of C.J. and C.W. from November 2020 through January 2021, but she then was involved in a domestic violence incident with her partner, which necessitated her hospitalization. Mr. and Ms. S., C.J. and C.W.’s former foster parents, agreed to provide care for C.J., C.W., and A.W. while Mother was treated for her injuries. Within days, Mr. and Ms. S. reported to the Department that A.W. was not well.
Appellant Jy.W. (“Mother”) appeals an order entered by the Circuit Court for Baltimore County, sitting as a juvenile court, which granted the petition of the Baltimore County Department of Social Services (the “Department”) to terminate Mother’s parental rights in relation to her natural children, A.W. (born March 2020), J.W. (born March 2022), and C.W. (born January 2019), who previously had been adjudicated children in need of assistance (“CINA”).1,2 In her timely appeal, Mother3 asks us to consider three questions, which we have consolidated into the following:
Did the juvenile court err or abuse its discretion when it terminated Mother’s parental rights to A.W., J.W., and C.W.?4
For the reasons that follow, we affirm the juvenile court’s order.
FACTS AND LEGAL PROCEEDINGS
Background of the
Department’s
Involvement with the W. Family
The Department became involved with the W. family shortly after C.W.’s birth in 2019, when he experienced poor weight gain due to limited caloric intake. The Department noted concerns of Mother’s medical neglect of the child and of her mental health and cognitive processing limitations.5 C.J. and C.W. were removed from her care and placed in the foster home of Mr. and Ms. S. A psychological evaluation at the time, during which
A.W. was taken to Johns Hopkins Hospital in an unresponsive state, where he was diagnosed with severe dehydration, possible failure to thrive, and bilateral leg fractures that were suspected to be non-accidental (although no maltreater was identified). Mother was “combative and argumentative” in working with the Department, and she did not follow the hospital’s medical recommendations.
A.W. was transferred to Mount Washington Pediatric Hospital to receive treatment for feeding issues. Hospital staff attempted to work with Mother, but two feeding trials were unsuccessful because Mother left the hospital and did not comply. Due to her lack of compliance, A.W. required the insertion of a gastrostomy tube to address his nutritional deficits.
The Department facilitated two Family Team Decision Making (“FTDM”) meetings to express the importance of complying with A.W.’s medical treatment, but Mother attended only one of the meetings. Mount Washington Pediatric Hospital staff noted ongoing concerns of A.W.’s safety in Mother’s care due to her mental health, mood swings, emotional dysregulation, non-compliance, and lack of engagement in A.W.’s overall care. As a result, A.W. was sheltered with the Department on February 25, 2021, and placed in foster care with the J. family, where he has since remained. A.W. was adjudicated CINA in April 2021.
In Ms. J.’s care, A.W. was able to have the gastrostomy tube removed and to learn to eat and drink completely by mouth.
Although the Department continued to express concern about Mother’s ability to care properly for A.W., C.J. and C.W., they were returned to Mother’s care, under a trial home visit.
Mother underwent another psychological evaluation, to determine her parenting capacity, in October 2021. The evaluator noted that Mother’s limited intelligence, parenting
skills, and knowledge of parenting practice placed her at high risk for dysfunctional parenting and neglect. The evaluator recommended that Mother participate in parenting training, continue mental health care treatment, and find a trained parent mentor to assist her in caring for a child with special needs.
After J.W.’s birth in 2022, the Department continued to express concerns about Mother’s parenting of the children without Department oversight. Despite those concerns, the CINA cases relating to C.J. and C.W. were closed, and those children were reunified with Mother in March 2022. Mother’s supervised visits with A.W., who remained in foster care, were consistent and raised no major concerns for the Department at the time.
On August 4, 2022, however, C.J., C.W., and J.W. were sheltered again over concerns of Mother’s mental health following a visit with A.W. wherein she became agitated and aggressive with one of the two supervising social workers—cursing loudly, hitting the walls of her apartment, and frightening the children—after the social worker questioned her about a mattress on the floor of the living room. One of the social workers left the visit due to Mother’s escalating aggression and agitation. The second social worker continued to try to deescalate Mother’s behavior and threatened to end the visit if Mother did not calm down. Mother failed to comply and pushed C.W. to the floor. When the social worker tried to leave with A.W., Mother blocked the door and threatened to drop four- month-old J.W., whom she was holding, onto the floor and to blame any resulting injuries on the social worker. The social worker contacted the police for assistance in leaving Mother’s home.
C.J., C.W., and J.W. were placed in foster care with the S. family; C.J. and C.W. were happy to return to the foster home they had lived in previously. After the children were sheltered, Mother remained argumentative with the Department and unable to demonstrate sound judgment. Despite receiving mental health services, she struggled to maintain healthy coping skills when triggered. And, even after completing several parenting classes, the Department remained concerned about her ability to provide care for the children. Additionally, Mother remained unemployed and without sufficient means to provide for the children. C.J., C.W., and J.W. were adjudicated CINA in October 2022.
A.W. remained in foster care with Ms. J., with whom he shared a “secure attachment.” The Department reported that Ms. J. provided excellent care to A.W., who was in good health and meeting all developmental milestones, and ensured that his needs were met.
After a December 2022 psychiatric evaluation, the evaluator recommended that Mother take medication and mood stabilizers to address her bipolar symptoms, but Mother declined, insisting that she was not ill and that “DSS and everyone are making up lies against her.” The Department believed that Mother’s consistent compliance with medication management, in conjunction with therapy, was necessary for her to improve.
In January 2023, the Department reported to the juvenile court that Mother had not been receiving care from a psychiatrist for her bipolar disorder, although she had been engaged in several supportive services including in-home parenting support, therapy, and parenting classes. Mother
agreed to obtain a comprehensive psychiatric evaluation.
On April 26, 2023, the Department filed the guardianship petition relating to A.W., J.W., and C.W. The petition detailed that the Department believed it to be in the children’s best interest for the Department to be granted guardianship with the right to consent to adoption or a long-term care option short of adoption because Mother was unable to provide the care and support required by the minor children, and it was unknown whether she would be willing to consent to the termination of her parental rights. Mother objected to the petition.
In June 2023, the Department received a message from S.W., who identified herself as Mother’s adoptive mother. S.W. expressed a desire to be considered as an adoptive resource for C.W., A.W., and J.W.
The Department was open to exploring S.W. as a resource, but explained to her that it had already filed a TPR petition relating to the children. The Department also felt it “important to note” that C.W. and J.W. were “very bonded” to and were thriving with their foster family. And, A.W., who had been in the same foster home since he was 11 months old, was also very bonded to his foster parents, referring to them as “Mommy” and “Dada.” For those reasons, the Department believed it would be detrimental for the children to be removed from their placements and placed with S.W., whom the children had only met for the first time a few months before.7
Mother remained unemployed and received housing via a Department of Human Services voucher. Mother had participated in mental health therapy and was reportedly “highly motivated with an investment to excel in many of her life domains,” but the Department continued to be concerned about her unstable moods and erratic behavioral responses, “which could pose a risk in her caring for young children who are unable to self- protect.”
Toward the end of 2023, the Department remained concerned about Mother’s parenting abilities. Although Mother’s visits with A.W. were consistent, the child exhibited “limited bonding” with Mother, instead playing only with his siblings, which concerned the Department. The Department also noted that A.W. was “always emotional when he must leave his foster mother for an hour visit with [Mother].”
During several visits with the children, Mother, who had been instructed that J.W. was not to drink “thin liquids” due to swallowing problems that could cause him to aspirate, nevertheless gave the child apple juice (a thin liquid) instead of the approved thickened liquid. Mother gave him the thin liquids “on the sly,” by hiding J.W. behind her jacket, and smirking while she did so. Mother also played very loud music during visits so the supervising social worker could not hear what she was saying to the children and obstructed the social worker’s view of the children. When the social worker attempted to discuss her concerns with Mother, she was met with hostility. As a result, on November 30, 2023, the Department suspended Mother’s visitation with the children until the next court hearing.
TPR HEARING
Evidence Presented
The juvenile court held a three-day TPR hearing on February 28 and 29, 2024, and March 1, 2024. At the start of the hearing,
which took place over Zoom, the Department sought to have Mother appear on camera, but her attorney claimed that Mother’s camera was not working. When the Department asked if the court would delay the proceedings if the Department sent a cab for Mother to appear in person or on camera at the Office of the Public Defender, Mother indicated she would not get in a cab and refused to go to the courthouse that day. The juvenile court agreed to put Mother under oath and have her swear that she was then alone in a room, warning that it would later consider “whatever inferences, by her refusal to appear with the request that we’ve made of her, that I deem appropriate[.]”
The Department called Mother as its first witness. Mother claimed that the Department had never advised her what she had to do to have her children returned to her care. She acknowledged that she was then unemployed, but said she was looking for a job. She claimed that every time she obtained employment, she lost it “because of DSS.”8
Regarding the August 2022 visitation incident with the two social workers, Mother said that she had “exploded” when the Department social worker “assaulted” her by throwing things at her. Mother denied having threatened to drop J.W. and to blame the Department for any injuries or preventing the social worker from leaving the apartment.
Mother also denied having given J.W. apple juice, a thin liquid, during a visit in 2023. Instead, she said she brought the apple juice for her other children but that J.W. got ahold of the straw, and instead of “snatching it out his mouth,” Mother gave him a toy to get the juice away from him. She did, however, admit to having become confrontational with another social worker who supervised a visit shortly before the hearing, claiming that the worker had threatened her.
Mother acknowledged that she had been diagnosed bipolar but was not taking any medication. She said that she had left therapy because “they wasn’t doing anything to help [her].”
A.W.’s Department foster care social worker, Lela Kaidbey, testified as to the reasons for A.W.’s removal from Mother’s care and provided details about Mother’s visit with A.W. on August 4, 2022, which necessitated police intervention and led to the removal of the other three children. After that incident, Ms. Kaidbey continued, the Department had asked Mother to seek mental health treatment and to obtain a psychological evaluation. Mother, however, “was adamant that she didn’t have mental illness” and refused to participate in the evaluation with the Department’s recommended provider, instead suggesting a psychologist who worked with the Office of the Public Defender.
Because Mother did not obtain the court ordered mental health treatment, in September 2022, the Department had recommended that the children remain in foster care. The Department again referred Mother for a psychiatric evaluation and mental health treatment after she had completed a “not comprehensive” psychological evaluation and continued to refuse to follow the evaluator’s recommendation of medication. Through June 2023, Mother remained non-compliant with the Department’s recommendations. Ms. Kaidbey noticed no improvement in her behavior.
Ms. Kaidbey also enumerated the reasonable efforts made by the Department, including housing resources, referrals to mental health treatment, providing almost $3000 to restore
Mother’s electricity, transportation to Mother’s medical appointments and visits with the children, and FTDMs.
According to Ms. Kaidbey, the Department continued to recommend that the children remain in foster care until Mother received mental health treatment. The Department also recommended that she obtain employment, demonstrate an ability to use coping skills, and cooperate with the Department by maintaining regular contact and staying aware of A.W.’s medical history.
Department adoption social worker Gina Malphrus, accepted by the juvenile court as an expert in social work, testified that in September 2022, the Department recommended that the children’s permanency plan of reunification add a concurrent plan of adoption by a non-relative based on Mother’s “limited progress towards reunification.” The Department had expressed concern about Mother’s intellectual disability and mood issues that impaired her capacity to provide consistent care for the children.
Ms. Malphrus explained that after the visits during which Mother attempted to give J.W. thin liquids, the Department suspended her visitation with all the children due to safety concerns, which also included her tendency to obstruct the supervising workers’ view of the children, play loud music so the workers could not hear what she was saying to the children, and use the children’s car seats improperly and unsafely.
Ms. Malphrus reported that A.W. was thriving in the J.s’ care and was securely attached to and bonded with them. He was, she said, very comfortable in their home and community. In Ms. Malprhus’s view, it would be “incredibly distressing and detrimental to him to be removed from this placement.” Similarly, Ms. Malphrus continued, J.W. and C.W. were content and comfortable in the S. home, with a secure attachment to the S. family members.
Ms. Malphrus said she would have safety concerns if the children were returned to Mother, due to Mother’s history of cognitive issues and significant mental health concerns and her refusal of medication for those diagnoses. In Ms. Malphrus’s professional opinion, a continued lack of permanence would be increasingly detrimental to the children as they got older. She did not believe there were additional services that could be offered to Mother that would help her attain reunification.
Mr. S., C.W. and J.W.’s foster father, testified that the children were thriving in the S.s’ care, making good progress on physical growth and education. C.W., usually funny, often exhibited a change in behavior on the nights before visitation with Mother, which he did not like to attend, except to see his siblings. J.W., because of an oral aversion to solid food and a dysphagia diagnosis requiring thickened liquids, requires specialist care, which is “somewhat more complex” than C.W.’s.
Mr. S. said that he and his wife were adoptive resources for C.W. and J.W. and that the children call them “Mom” and “Dad.” He promised to continue sibling visits with A.W., to which A.W.’s foster mother was very receptive. Mr. and Ms. S. did not maintain much of a relationship with Mother for a number of reasons, but mostly because she had falsely accused them of abuse.
Ms. J., A.W.’s foster mother, testified that A.W. had been in her care continuously since he was approximately 11 months old, more than three years. When he came to her, he was a
“really sick kid.” Ms. J. had to learn to feed him through his gastrostomy tube, the only way he was fed. After several months, however, she was successful in getting him to eat and drink. He was, at the time of the hearing, “very healthy.” He was “extremely adjusted” to the J.s’ home and considers Mr. and Mrs. J. to be “Mom” and “Dad.”
Ms. J. said that she and her husband were adoptive resources for A.W. While Ms. J. agreed with Mr. S. that continued contact between A.W. and his siblings was “definitely a must,” she had not had contact with Mother in approximately a year because she believed Mother to be “very dishonest” and “not trustworthy.”
S.W., Mother’s adoptive sister, testified that she had been a family support worker with the Department and found out through her employment that the W. children had entered foster care in 2021. Until then, she had “no idea that they even existed,” having not spoken to Mother in approximately seven years, after Mother left home and cut ties with her family.
Although no one at the Department approached her about being a resource for the children, S.W. offered herself as a resource, as did her mother (Mother’s adoptive mother, also named S.W.). S.W. claimed that no one at the Department wanted to consider her or her mother as resources.
When the elder S.W. heard from her the younger S.W. that the W. children were in foster care, she decided to start the process of trying to become a resource to them, even though she had not spoken to Mother since she was 18 years old. S.W. accompanied Mother to several visits with the children until the thin liquid incident with J.W. in 2023, after which she thought it would be in Mother’s and the children’s best interest that she not return. At the TPR hearing, however, the elder S.W. testified that she was still interested in being a resource for the children.
The juvenile court also accepted into evidence an October 2023 psychiatric evaluation of Mother, which diagnosed her with “significant cognitive, emotional, and behavioral issues.”
The evaluator noted that Mother’s “significant intellectual disability and substantial mood issues. . .[impacted] her capacity to consistently provide care and custody of minor children” and that “diagnosed conditions will not ever remit and will continue for the rest of her life.” The evaluator further recommended that Mother not have unsupervised visitation with the children.
Juvenile Court’s Ruling
The juvenile court, in summarizing the witnesses’ testimony and assessing their credibility, noted that Mother, “[t]o put it kindly, she was a poor witness” who “couldn’t even give her testimony undivided attention,” instead watching TV while testifying and refusing to come to the courthouse or to turn on her camera on Zoom. The court found that Mother was highly emotional, cursed repeatedly at the attorneys asking questions, refused to answer questions, and showed no respect for the attorneys or the court. During the hearing, Mother displayed “explosive anger and paranoia,” dovetailing with the issues noted in her psychological evaluations. The court further found Mother to have “extremely low intelligence” and “significant mental illness” that remained untreated.
The juvenile court went on to find, by clear and convincing evidence, that Mother was an unfit parent and that exceptional
circumstances existed to terminate her parental rights. As the court pointed out, none of the witnesses called by Mother suggested that she was either a good mother or a fit parent, so the court had “literally no evidence to suggest that she is.” On the other hand, the children, who suffered from significant health and safety issues when taken into the Department’s custody, were then healthy and safe in their foster homes, which to the court, spoke volumes.
The services offered to Mother, the juvenile court found, were appropriate and timely. Mother had, however, ignored the counseling offered to her “on a continuous basis.” The only obligation Mother had fulfilled, pursuant to the one service agreement she had signed, was attending visitation and remaining in contact with the Department. She had done nothing else to adjust her circumstances—instead refusing mental health treatment and asking the children’s foster parents not to be in contact with her—to facilitate having the children return home. The court did not believe that additional services would bring about a lasting adjustment so the children could be returned to her care.
And, the juvenile court continued, Mother was argumentative with Department personnel, and “pretty much everybody else, and has been extremely difficult to deal with.” Therefore, the court found “the real issue here” to be Mother’s behavior, alienation of anyone who might help her, and refusal to get care relating to her bipolar diagnosis or even admitting to the fact that she is mentally ill.
The juvenile court ruled that the best interest of the children was to terminate Mother’s rights and place the children in the care and custody of the Department, with the expectation that adoption would follow, because their return to Mother would pose “an unacceptable risk to their future safety.” The court therefore granted the Department’s petition and terminated Mother’s parental rights (and those of the unknown fathers of the children) and granted the Department guardianship with the right to consent to adoption or a long-term care arrangement short of adoption.
Mother filed a timely notice of appeal.9
DISCUSSION
Standard
of Review in TPR Proceedings
Termination of parental rights decisions are reviewed under three different but interrelated standards: clear error review for factual findings, de novo review for legal conclusions, and abuse of discretion for the juvenile court’s ultimate decision. In re Adoption/Guardianship of C.A. and D.A., 234 Md. App. 30, 45 (2017). It is for this Court to decide only whether there was sufficient evidence from which the juvenile court could reasonably have determined, by clear and convincing evidence, that terminating parental rights was in the best interest of the child. Id. at 46.
In other words, “when the appellate court views the ultimate conclusion of the [juvenile court] founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the [court’s] decision should be disturbed only if there has been a clear abuse of discretion.” Davis v. Davis, 280 Md. 119, 126 (1977). And, “[w]here the best interest of the child is of primary importance, ‘the trial court’s determination
is accorded great deference, unless it is arbitrary or clearly wrong.’” In re Adoption/Guardianship Nos. 2152A, 2153A, 2154A in the Circuit Court for Allegany County, 100 Md. App. 262, 270 (1994) (quoting Scott v. Dep’t of Social Services, 76 Md. App. 357, 382 (1988)).
Termination of Mother’s Parental Rights
“Parents have a fundamental right under the Fourteenth Amendment of the United States Constitution to ‘make decisions concerning the care, custody, and control of their children.’” In re Adoption/Guardianship of C.E., 464 Md. 26, 48 (2019) (quoting Troxel v. Granville, 530 U.S. 57, 66 (2000)). Moreover, “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.’” In re Adoption/Guardianship of H.W., 460 Md. 201, 216 (2018) (quoting In re Adoption/Guardianship of Rashawn H., 402 Md. 477, 495 (2007)).
Nevertheless, parental rights are not absolute, and the presumption in favor of preserving those rights may be rebutted “by a showing that the parent is either unfit or that exceptional circumstances exist that would make the continued relationship detrimental to the child’s best interest.” Id. at 217 (quoting Rashawn H., 402 Md. at 498). “When it is determined that a parent cannot adequately care for a child, and efforts to reunify the parent and child have failed, the State may intercede and petition for guardianship of the child pursuant to its parens patriae authority.” C.E., 464 Md. at 48. “The grant of guardianship terminates the existing parental relationship and transfers to the State the parental rights that emanate from a parental relationship.” Id.
Before terminating parental rights, the juvenile court must consider the factors set forth in Md. Code, § 5-323(d) of the Family Law Article (“FL”), while giving “primary consideration to the health and safety of the child[.]” If, after considering those factors, the court “finds by clear and convincing evidence that a parent is unfit to remain in a parental relationship with the child or that exceptional circumstances exist that would make a continuation of the parental relationship detrimental to the best interests of the child,” the court may terminate the parental relationship and grant guardianship of the child to the Department. FL § 5-323(b).
FL § 5-323(d) provides:
[I]n ruling on a petition for guardianship of a child, a juvenile court shall give primary consideration to the health and safety of the child and consideration to all other factors needed to determine whether terminating a parent's rights is in the child’s best interests, including:
(1) (i) all services offered to the parent before the child’s placement, whether offered by a local department, another agency, or a professional;
(ii) the extent, nature, and timeliness of services offered by a local department to facilitate reunion of the child and parent; and
(iii) the extent to which a local department and parent have fulfilled their obligations under a social services agreement, if any;
(2) the results of the parent’s effort to adjust the parent’s circumstances, condition, or conduct to make it in the child’s
best interests for the child to be returned to the parent’s home, including:
(i) the extent to which the parent has maintained regular contact with:
1. the child;
2. the local department to which the child is committed; and
3. if feasible, the child’s caregiver;
(ii) the parent’s contribution to a reasonable part of the child’s care and support, if the parent is financially able to do so;
(iii) the existence of a parental disability that makes the parent consistently unable to care for the child’s immediate and ongoing physical or psychological needs for long periods of time; and
(iv) whether additional services would be likely to bring about a lasting parental adjustment so that the child could be returned to the parent within an ascertainable time not to exceed 18 months from the date of placement unless the juvenile court makes a specific finding that it is in the child’s best interests to extend the time for a specified period;
(3) whether:
(i) the parent has abused or neglected the child or a minor and the seriousness of the abuse or neglect;
(ii) 1. A. on admission to a hospital for the child’s delivery, the mother tested positive for a drug as evidenced by a positive toxicology test; or
B. upon the birth of the child, the child tested positive for a drug as evidenced by a positive toxicology test; and
2. the mother refused the level of drug treatment recommended by a qualified addictions specialist ... or by a physician or psychologist ... [;]
(iii) the parent subjected the child to:
1. chronic abuse;
2. chronic and life-threatening neglect;
3. sexual abuse; or
4. torture;
(iv) the parent has been convicted, in any state or any court of the United States, of:
1. a crime of violence against:
A. a minor offspring of the parent;
B. the child; or
C. another parent of the child; or
2. aiding or abetting, conspiring, or soliciting to commit a crime described in item 1 of this item; and
(v) the parent has involuntarily lost parental rights to a sibling of the child; and
(4)(i) the child’s emotional ties with and feelings toward the child’s parents, the child’s siblings, and others who may affect the child’s best interests significantly;
(ii) the child’s adjustment to:
1. community;
2. home;
3. placement; and 4. school;
(iii) the child’s feelings about severance of the parent-child relationship; and
(iv) the likely impact of terminating parental rights on the child’s well- being.
FL § 5-323(d).
The role of the juvenile court is: to give the most careful consideration to the relevant statutory factors, to make specific findings based on the evidence with respect to each of them, and, mindful of the presumption favoring a continuation of the parental relationship, determine expressly whether those findings suffice either to show an unfitness on the part of the parent to remain in a parental relationship with the child or to constitute an exceptional circumstance that would make a continuation of the parental relationship detrimental to the best interest of the child, and, if so, how.
Rashawn H., 402 Md. at 501.
The juvenile court, after summarizing all the evidence presented at the TPR hearing, found as follows:
FL
§ 5-323(d)(1)(i): The Department offered counseling services to Mother, which she ignored “on a continuous basis.” She was argumentative with everyone the Department enlisted to help her, but the court found that the Department had nonetheless “bent over backwards in the service department,” trying to help Mother. The court found the services provided by the Department to be appropriate and “maybe above appropriate in this case.”
FL § 5-323(d)(1)(ii): The court found that the Department consistently made “every effort” to facilitate reunion of the children with Mother.
FL § 5-323(d)(1)(iii): Pursuant to the one service agreement that Mother had signed, the only obligation Mother fulfilled was attending visitation with the children.
FL § 5-323(d)(2)(i): The court found that Mother had done nothing to adjust her circumstances to make it in the children’s best interest to be returned to her care. She refused the offered counseling services until the eve of trial.
And, while she visited with the children and kept in contact with the Department, Mother had caused problems with both of sets of foster parents, telling them not to talk to her and causing them to find her untrustworthy.
FL § 5-323(d)(2)(ii): Mother did not contribute financially to the children’s care, but the court acknowledged that, given her mental health diagnoses and lack of employment opportunities as a result, she could not be expected to do so.
FL
§ 5-323(d)(2)(iii): Noting that Mother’s intellectual disability was of concern, the court found the “real issue” to be her volatile behavior and refusal to obtain treatment for her bipolar diagnosis. Mother’s lack of acknowledgment of any mental illness led to her failure and inability to care for the children and to put the children “last on her list.”
The Department adduced evidence of several instances of Mother’s poor behavior with the children that rendered them unsafe with her, and two witnesses had stated that the children’s safety was at risk in her presence. Moreover, Mother had alienated anyone who could help her with these issues.
FL § 5-323(d)(2)(iv): All three children had been in the Department’s care for well over 18 months. There was no evidence that any additional service would bring about a
lasting adjustment so the children could be returned to her care and Mother had presented “no game plan that says here’s how we’re going to make it all better.”
FL
§ 5-323(d)(3)(i): The court found that “[n]eglect clearly was happening here.” There was “plenty of evidence” of the feeding issues with the children, which caused the Department’s intervention in the first place. The court found the record to be “replete with the neglect,” which was caused by Mother’s mental illness. The neglect was “unquestioned” and “an absolute fact.”
FL § 5-323(d)(3)(ii)-(v): The court found no evidence of Mother’s drug use, chronic abuse or neglect, convictions, or loss of parental rights of an older child, although her older child, C.J., had been removed from her care in the past.
FL
§ 5-323(d)(4)(i): The court found that the children felt “great affection for each other” and for their respective foster parents, while the testimony was “a little fractured” as to their opinions about Mother. The children were clearly bonded to their foster parents, who loved and cared for them and improved their medical conditions to the point that they were thriving, while Mother had permitted their medical issues to persist.
FL § 5-323(d)(4)(ii): The court found that the children were adjusted to the communities surrounding their foster homes and were thriving there. Their homes were nice and appropriate and full of love and caring. All the children were doing well in their placements, and the foster parents were pre-adoptive resources.
FL
§ 5-323(d)(4)(iii): Due, in part, to the children’s young ages, the court could not speak to their feelings about severing their relationship with Mother.
FL
§ 5-323(d)(4)(iv): The court found that the evidence presented at the hearing established that the children were “well adjusted and doing well where they are, extremely well, coming from a place where they did extremely poorly. And there’s no reason they wouldn’t do poorly again, if they were put back in [Mother’s] care.” Therefore, in the court’s view, terminating Mother’s parental rights will have a positive impact on the children, particularly as it would do away with their uncertainty and lack of permanence. Indeed, the court concluded, given the children’s ages and secure adjustment to their foster homes, the impact of not terminating Mother’s parental rights would be detrimental to their well-being. After considering the required factors, the juvenile court found, by clear and convincing evidence, that “the best interest. . . of these children. . . is to terminate any parental rights of [Mother] and to place these children in the care and custody of the Department, for what I expect is an adoption. I do think that the return of these children to their parent’s custody poses an unacceptable risk to their future safety.” The court further found that Mother was an unfit parent and that exceptional circumstances exist to overcome the presumption that the children’s best interests would be served by continuing the parental relationship.
The juvenile court did not err in finding that Mother did not participate in services, engage in counseling, or fulfill any service obligation other than visitation.
Despite Mother’s argument that the juvenile court clearly
erred in some of its factual findings, we are unpersuaded by her claims. Mother first suggests that the court improperly found that she had not participated in services the Department offered and that she had not engaged with the counseling portion of those services in a timely manner. That finding, however, is well supported by the record.
Although Mother remained in contact with the Department and was consistent in visitation with the children, the evidence was clear that she continually refused to: (1) accept her mental health diagnoses; (2) take recommended medications for those diagnoses, instead insisting nothing was wrong with her; (3) remain committed to therapy, instead leaving therapy providers who she said were not helping her, being discharged from therapy for missing too many appointments, and failing to make an appointment with a new therapist until literally the middle of the first day of the TPR hearing; and (4) assist in the provision of her therapy treatment plan and records to the Department after repeated requests. Moreover, the therapy that Mother did participate in was not found to have ameliorated any of her mental health issues or the concerns that led to the children’s removal from her care. Therefore, the court’s finding that Mother had ignored “the counseling services aspect” of her service agreement is not clearly erroneous, even though she did receive some therapy.
And, accepting as accurate the court’s determination that Mother’s engagement with mental health services was lackluster, we cannot say that the court clearly erred in finding that Mother’s only real commitment to her service obligation was her visitation with the children. Her visits were consistent, but even so, Mother was noted to be disrespectful to and combative with the supervising social workers, and visitation was halted after she gave J.W. thin liquids “on the sly” after repeatedly being warned about the danger in doing so.
And, while Mother had engaged in some supportive services on her own, such as parenting classes and engagement with an independent community support worker who helped her find resources, none of those efforts improved her ability to resume custody of the children or work cooperatively with the Department. As the Department notes in its brief, Mother’s “mere participation did not equate to fulfilling her service obligations.”
The juvenile court did not err in finding that the Department made reasonable efforts to promote reunification.
We also cannot say that the juvenile court erred, as Mother claims, in finding that the Department made reasonable efforts to promote Mother’s reunification with the children. While a CINA proceeding requires the juvenile court to make ongoing findings of the reasonableness of the Department’s efforts, a guardianship proceeding requires the juvenile court only to examine “the extent, nature, and timeliness of services offered” by the Department to facilitate reunification and whether the Department and the parents have “fulfilled their obligations.” FL § 5-323(d)(1).
Here, the court did make findings that the Department had made “every effort” to provide reunification services to Mother and had perhaps even gone “above appropriate” in doing so. That finding is borne out by the evidence that the Department provided Mother with housing vouchers (the only resource
she had for stable housing in light of her lack of employment), paid her delinquent electric bill of almost $3000, set up multiple psychological and psychiatric evaluations and therapy services, provided transportation services to visits and appointments, supervised visits with the children (sometimes with not one but two social workers), scheduled in-home parenting classes, considered and approved S.W. as a resource for the children, and maintained communication with Mother via conversation rather than email or text, to account for Mother’s cognitive disability and low reading level.
It was Mother who failed to fulfill her obligations toward reunification, by continually refusing to accept her mental health diagnoses, declining to take prescribed medication, refusing to sign a second service agreement and releases for treatment records, and becoming combative with the Department workers and foster parents. Mother does not specify any additional services that could have facilitated reunification, and the Department’s expert witness, Ms. Malphrus, testified at the TPR hearing that she was aware of none.
The juvenile court did not err in not considering placement of the children with relatives before terminating Mother’s parental rights.
We also find no merit in Mother’s contention that the juvenile court erred in declining to consider placement of the children with her relatives before terminating her parental rights in favor of adoption by non-relatives.
“[A] CINA permanency hearing and a TPR hearing are seeking to resolve related, but, ultimately distinct issues.” C.E., 464 Md. at 64. “The purpose of CINA proceedings is to provide for the care, protection, safety, and mental and physical development of CINA children; conserve and strengthen the child’s family ties; remedy the circumstances that required the court’s intervention; and achieve a timely, permanent placement for the child consistent with the child’s best interests.” Id. (cleaned up). “A TPR, conversely, is initiated once the Department is seeking to terminate the existing parental relationship.” Id. As we have explained, “the appropriate focus of [a] TPR hearing [is] not the potential suitability of [a relative] as a placement for [the child]—as this [is] an issue properly addressed in the CINA case—but rather, the fitness of [the parents].” In re Adoption/ Guardianship of Cross H., 200 Md. App. 142, 152 (2011).
Any argument that Mother’s relatives should be considered as resources should have occurred during the CINA proceedings, but Mother did not raise the issue then, nor did she ever suggest her adoptive mother or sister as resources for the children. Moreover, in the TPR case, as the juvenile court found, Mother waived any right to have her relatives considered as a resource for the children when she specifically prohibited the Department from speaking to them about the children or considering them as resources.
And, in any event, the evidence presented at the TPR hearing showed that the elder and younger S.W. had not had any contact with Mother in approximately seven years and were not even aware that the children existed until their case coincidentally came across the younger S.W.’s desk while she worked for the Department. Those facts are in stark contrast to the close bond the children have all formed with their respective foster families,
with whom they have lived for the majority of their short lives, and who have a demonstrated record of providing excellent and loving care. On this record, we cannot conclude that the juvenile court erred in not considering whether placement with a relative was in the children’s best interest.
The juvenile court did not improperly shift the burden of proving fitness as a parent to Mother.
Next, we disagree with Mother when she avers that the juvenile court improperly shifted the burden of proving her lack of unfitness as a parent to her, instead of leaving the burden of persuasion on the Department. The court did not, as she claims, require her to demonstrate that she was not unfit.
Indeed, the court specifically advised the Department that “you have the burden” and went on to give a detailed analysis of the overwhelming evidence of Mother’s unfitness to have the care and custody of the children, which included her own witnesses’ failure to testify that she was a good or fit parent, but also her argumentative and disrespectful testimony, her cognitive deficits and untreated mental illness, her frequent displays of explosive anger toward Department workers during visitation, her placing the children in danger by giving J.W. thin liquids that could cause him to aspirate fluid into his lungs and failing to secure the children safely in their car seats, and the evaluating psychiatrist’s conclusion that her impaired judgment made it unsafe for Mother to have even unsupervised visitation with the children. Only after all those findings did the court comment that Mother’s evidence had not demonstrated that she was a fit parent, which we perceive as nothing more than a reinforcement of the conclusion that the Department had clearly and convincingly proven her to be unfit, and none of her adduced evidence rebutted that conclusion.
The juvenile court did not improperly assess the credibility of the witnesses at the TPR hearing.
Finally, we find no merit in Mother’s assertion that the court improperly assessed the hearing witnesses’ credibility in rendering its decision to terminate her parental rights.
Despite acknowledging that this Court must give deference to the juvenile court’s assessment of the witnesses’ credibility,10 Mother claims that the juvenile court found the Department’s witnesses the more credible, partly because the court was able to view them on Zoom and found them well-groomed and
professional. Because she did not appear on camera during the hearing, Mother continues, the court found her to be a poor witness who did not care about her children because it was unable to evaluate her appearance or watch how she reacted to the proceedings. When she became emotional, she said, the court “belittled the misunderstandings of a parent with cognitive limitations[.]”
In our view, the juvenile court properly assessed the demeanor and background of each witness. See In re Adriana T., 208 Md. App. 545, 563 (2012) (“Demeanor-based credibility is a witness’ outer appearance and mannerisms while testifying before the fact finder. Credibility is at issue in any case concerning testimonial evidence.”) (citations omitted). The fact that the court found the Department’s witnesses to be more professional was based as much on their education and licensure, which Mother and her witnesses did not share, as their appearance on camera. As far as Mother’s own credibility, the court exhibited no bias in drawing negative conclusions about her lack of commitment to reunifying with the children from her unwillingness to appear on camera or to accept a cab ride to appear in person and her extremely argumentative behavior and lack of respect toward the court and counsel, which underscored her demonstrated inability to control her emotions. The juvenile court noted Mother’s lack of respect for counsel; her lack of respect for the court by frequently cursing and “dropping F bombs” during her testimony; and her refusal to turn her television off. It was well within the juvenile court’s discretion to consider Mother’s demeanor on the stand as corroboration of other evidence regarding her unfitness as a parent. Contrary to Mother’s assertion, the juvenile court did not base those conclusions on her cognitive deficits or the court’s perception of her appearance.
CONCLUSION
The juvenile court’s findings were supported by ample evidence from which it could conclude that Mother was unfit and that exceptional circumstances made the continuation of Mother’s parental relationship detrimental to the best interests of the children. The court did not err or abuse its discretion in its factual findings or in its ultimate determination that the termination of Mother’s parental rights was in the best interest of each child.
ORDER OF THE CIRCUIT COURT FOR BALTIMORE COUNTY, SITTING AS A JUVENILE COURT, AFFIRMED; COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Pursuant to Md. Code, § 3-801(f) of the Courts & Judicial Proceedings Article (“CJP”), a “child in need of assistance” means “a child who requires court intervention because: (1) The child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and (2) The child’s parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and the child’s needs.”
In a previous appeal, Mother challenged the juvenile court’s adjudication of J.W. and C.W. as CINA; this Court affirmed the juvenile court’s orders. See In re: C.W., J.W., and C.J., case numbers 1451, 1452, 1453, consolidated, September Term, 2023 (filed April 12, 2023). Mother also appealed the juvenile court’s December 2023 permanency plan review order, which changed the children’s plan from reunification with Mother to a concurrent plan of reunification and adoption by a non-relative.
See In re: J.W., and C.W., and A.W., case numbers 2048, 2049, and 2050, September Term, 2023. Because the Department, shortly thereafter, filed the guardianship petitions at issue in this matter, which the juvenile court granted, Mother moved to stay the appeal in the CINA matter on the ground that our resolution of the TPR appeal could render the CINA appeal moot. We granted Mother’s motion pending further order.
2 Mother is also the parent of C.J. (born April 2017). C.J.’s CINA case was closed when custody was granted to her father. C.J. is not involved in this appeal and is discussed only as relevant to the W. children.
3 Mother claims not to know the identity of any of the children’s fathers. The fathers were deemed to have consented to the TPR, and none is a party to this appeal.
4 The questions as posed by Mother are:
1. Did the court commit error when it terminated Ms. W’s parental relationship with her children?
2. Did the court err by ignoring the presumption to keep
the parental relationship intact and shifting the burden to Ms. W to demonstrate her fitness as a parent?
3. Did the court use improper considerations in determining credibility of the witnesses?
5 Mother was assessed as having a full-scale IQ of 60-65, “which is in the extremely low range.”
6 At the time of the evaluation, Mother was residing in a homeless shelter and had maintained employment for only very short periods of time.
7 By October 2023, Mother advised the Department that she no longer wanted to involve her family in the matter, and she did not want the children to transition into their care.
8 The juvenile court permitted the Department’s attorney to question Mother as a hostile witness when she refused to answer direct questions. Throughout her testimony, Mother was argumentative and disrespectful toward counsel and the court. At one point, when the court asked her to turn off the television she was watching, she responded, “Sorry but you don’t control my house.” The court replied that “I do control how you testify. Turn off the T.V.” Even with that admonition, Mother only turned the television down. And, with no explanation, she did not log back in to the virtual proceedings until well after the court resumed the hearing following the lunch break.
9 After a subsequent guardianship review hearing on May 16, 2024, the juvenile court found that the children were welladjusted and attached to their pre-adoptive parents. The court therefore changed the children’s permanency plan to adoption by a non-relative.
10 See, e.g., Scott v. Dep’t of Social Services, 76 Md. App. 357, 382 (1988) (quoting Cecil County Dep’t of Social Services v. Goodyear, 263 Md. 611, 622 (1971)) (In a case involving termination of parental rights, “‘the greatest respect must be accorded the opportunity [the juvenile court] had to see and hear the witnesses and to observe their appearance and demeanor.’”).
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Baltimore County Circuit Court’s order establishing a custody schedule for the parties’ three minor children. The circuit court was under no obligation to adopt the pendente lite access schedule, regardless of whether that schedule had been agreed to by the parties. Furthermore, the children’s circumstances were markedly different at the time of trial than at the time the pendente lite custody agreement was put in place. In any event, to the extent that the court did alter the pendente lite custody arrangement, those alterations were minor.
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.
alleging constructive desertion. Father asked for sole physical and joint legal custody of the minor children. In September 2019, Mother filed an answer to Father’s complaint. Shortly thereafter, Mother filed a counter-complaint for limited divorce. Mother asked for primary physical and sole legal custody of the minor children.
On October 15, 2019, the trial court issued a scheduling order. The court ordered that all discovery, including disclosures regarding expert witnesses, be completed by June 2, 2020.
In January 2020, the parties filed a list of witnesses that each party expected to call at trial. In April 2020, Father filed a “Designation of Expert Witnesses.” In that filing, Father stated that he reserved the right to call, as expert witnesses, the minor children’s “treating healthcare providers” and “treating school educators and counselors[.]”
On August 7, 2020, the trial court entered a pendente lite consent order, to which the parties had previously agreed, regarding custody of the minor children.2 In that order, the parties agreed that Mother would have primary custody of the minor children and Father would have visitation pursuant to an access schedule.
This is an appeal from a judgment entered in the Circuit Court for Baltimore County granting Patience Okereke (“Mother”) an absolute divorce from Mason Inko-Tariah (“Father”) and establishing a custody schedule for the parties’ three minor children. Father has appealed from that judgment and has filed an informal brief, raising 12 “issues.” For clarity, we have rephrased those issues and consolidated them into the following questions1:
1. Did the trial court err or abuse its discretion in refusing to grant Father’s request for an annulment?
2. Did the trial court err or abuse its discretion in entering the judgment of absolute divorce?
3. Did the trial court err or abuse its discretion in making its custody determination?
4. Did the trial court err or abuse its discretion in denying Father’s pretrial request to have two witnesses give testimony remotely from Nigeria?
Finding no error or abuse of discretion, we affirm.
BACKGROUND
Mother and Father were married in 2011. Three children were born as a result of the marriage: twins, M.S. and M.O., born in April 2012, and a third child, N.S., born in April 2018.
Divorce Proceedings Initiated
On June 21, 2019, Father filed a complaint for limited divorce,
Father Files Amended Complaint
On December 28, 2020, Father filed an amended complaint in which he sought an annulment of the parties’ marriage. Father alleged that, prior to the marriage, Mother had presented him with a divorce certificate from Nigeria, which stated that Mother had obtained a divorce from her first husband in May 2010. Father maintained that he had recently discovered that the divorce certificate, which had purportedly been issued by the Customary Court of Lagos in Nigeria, was fake and that Mother was still in a legal marriage when she and Father married in November 2011. Father asserted that his marriage to Mother was therefore “void by reason of bigamy and polygamy” and “voidable by reason of fraud and deceit.” Mother did not file an answer to Father’s amended complaint.
Mother Files Counter-Complaint for Absolute Divorce
On November 21, 2022, Mother filed a counter-complaint for absolute divorce.
Mother again asked for primary physical and sole legal custody of the minor children.
On April 6, 2023, the court scheduled a two-day merits trial to begin on June 29, 2023.
Father Files Request for Expert Witnesses to Appear Remotely
On June 7, 2023, Father filed a “Motion for Witnesses to Appear Remotely from Nigeria.” In that motion, Father stated that he intended to call two witnesses, both of whom were experts in traditional marriages in Nigeria. Father stated that both witnesses were in Nigeria and unable to attend the trial in person. Father did not disclose the substance of the witnesses’ testimony, nor did he provide any reason for the late disclosure.
Mother opposed the motion, arguing that one of the witnesses had never been identified as a witness; that the other witness had not been identified as an expert witness; and that Father had not disclosed any information regarding either witness’s opinion. Mother also argued that permitting the witnesses to testify would be prejudicial given the late disclosure. The trial court ultimately denied Father’s request.
For reasons not entirely clear from the record, the merits hearing was cancelled and rescheduled for October 25, 2023.
Father Files Motion for Summary Judgment
On September 7, 2023, Father filed a “Motion for Part Summary Judgment of His Amended Complaint.” Father argued that, because Mother did not file an answer to his amended complaint, the allegations in that complaint were deemed admitted. Father argued that he was therefore entitled to summary judgment on his annulment claim.
Mother opposed the motion, arguing that granting Father an annulment by way of summary judgment would be inappropriate. Mother also argued that Father’s motion should be denied because Father failed to file the requisite affidavit along with his summary judgment motion. Lastly, Mother argued that the averments in Father’s amended complaint were “complete speculation” and did not provide sufficient grounds on which to grant Father an annulment.
On September 27, 2023, the trial court denied Father’s motion. Father subsequently renewed the motion and included, as an attachment, a one-page document that was, purportedly, an excerpt of Nigerian law. The court denied Father’s renewed motion.
Shortly thereafter, the merits hearing that was scheduled for October 25, 2023, was postponed. A new hearing was scheduled for January 26, 2024.
Father Files Notice of Intention to Rely on Foreign Law
On December 5, 2023, Father filed a “Notice of Intention to Rely on Foreign Law.” In that notice, Father stated that he planned “to rely on the Laws of the Federation of Nigeria, including the customary laws of Lagos state and Imo state.” Father asked the court “to take judicial notice of these laws.”
Trial
On January 26, 2024, the parties arrived in court for trial on Father’s complaint for annulment and Mother’s counter-complaint for absolute divorce. At the start of the hearing, the trial court noted that “annulments are disfavored under Maryland [l]aw.” The court added that “we can take testimony, if [Father] wants to pursue that, he can.”
The court then asked if counsel wished to provide an opening
statement. Father’s counsel responded by stating that he was renewing the motion for summary judgment. Counsel argued that, because Mother was not properly divorced in Nigeria, and because Mother did not file an answer to Father’s amended complaint, the court was required to grant the annulment.
Mother’s counsel opposed the renewed motion. Counsel asserted that Father, in renewing his summary judgment motion and indicating his intention to rely on Nigerian law, appeared to be asserting a claim that was different from the claims raised in his amended complaint. According to counsel, Father appeared to be arguing that Mother’s divorce was invalid under Nigerian law because Mother’s first marriage “happened [in] one place and the divorce happened somewhere else.” Counsel noted that that argument was different from the one raised in the amended complaint, in which Father alleged that Mother’s divorce certificate was fraudulent. Counsel argued further that Father should not be allowed to rely on Nigerian law because he did not provide adequate notice regarding the substance of the Nigerian law on which he intended to rely.
After reviewing the parties’ filings, including the one-page excerpt of Nigerian law that Father had attached to his renewed motion for summary judgment, the trial court found “a number of issues[.]” The court explained that, to begin with, Father’s motion for summary judgment had already been considered and denied multiple times. The court then noted that, in relying on Nigerian law, Father seemed to be arguing a “different ground . . . than what was set forth in the amended complaint.” Lastly, the court found that there were questions about the authenticity and reliability of the evidence on which Father was relying regarding Nigerian law.
In response, Father’s counsel argued that the court should take judicial notice of Nigerian law, regardless of any deficiencies in Father’s evidence, because Nigerian law is based on the common law of England. Counsel then explained that, under Nigerian law, a divorce decree must be obtained from the area where the marriage occurred.
The court was not persuaded. The court found that Father had not produced “any admissible authority” that “what [he had] proffered to the [c]ourt is [Nigerian] law.” The court also found that the theory set forth in Father’s amended complaint was “a different theory and basis for a request for annulment than what’s being put forth today for the first time.” For those reasons, the court concluded that it was “not going to go forward on the annulment request.” The court then proceeded to take testimony from Mother and Father regarding Mother’s divorce request and the parties’ request for custody of the minor children.
Court Announces Its Ruling
At the conclusion of the evidence, the court granted Mother an absolute divorce. In addition, the court expressly considered and discussed, in detail, various factors that were relevant to the court’s custody determination. In the end, the court found that it was in the minor children’s best interests that Mother be given primary physical custody, with Father having visitation according to an access schedule, which the court set forth in detail. The court also found that it was in the children’s best interests that the parties share legal custody.
After putting its findings on the record, the court asked Mother’s counsel to prepare a proposed judgment for the court’s
signature. On April 8, 2024, Mother’s counsel filed the proposed judgment, which was signed by Father’s counsel.
Judgment of Absolute Divorce
On April 10, 2024, the court signed the proposed judgment and entered it into the court’s docket. The relevant portions of the judgment were: that Mother would have primary physical custody of the children; that Father would have access to M.S. and M.O. every other weekend from Friday after school to Monday morning; that Father would have access to N.S. during that same period, but would return the child to Mother’s care on Sunday evening; that, during the summer time, the parties would share custody of M.S. and M.O. on a “week on/week off” basis; that, during the summer, Father would have access to N.S. for two non-consecutive weeks in addition to his regular-scheduled weekend visits; that Father would provide notice to Mother of his selected weeks with N.S.; and, that the minor children would not be left unattended while in either parent’s care.
This timely appeal followed. Additional facts will be supplied as needed below.
STANDARD OF REVIEW
“When reviewing an action tried without a jury, we review the judgment of the trial court ‘on both the law and evidence.’”
Baltimore Police Dep’t v. Brooks, 247 Md. App. 193, 205 (2020) (quoting Banks v. Pusey, 393 Md. 688, 697 (2006)). We “will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and [we] will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Md. Rule 8-131(c). Issues of law are reviewed de novo. Brooks, 247 Md. App. at 205.
DISCUSSION
As noted, Father has filed an informal brief raising twelve “issues.” Those issues address a variety of topics, some of which concern the proceedings generally, while others concern specific decisions by the trial court. For the purposes of this appeal, we have arranged those topics into four “questions presented,” which are set forth below. Within each question, we shall address the corresponding issue or issues raised by Father.
I.
We begin with a discussion of whether the trial court erred or abused its discretion in refusing to grant Father’s request for an annulment. For reasons to follow, we find no error or abuse of discretion.
A.
Father first contends that the trial court should have granted him an annulment based solely on the allegations contained in his amended complaint. Father argues that Mother’s failure to file an answer to his amended complaint meant that the allegations contained in the complaint were deemed admitted. Father argues that, because those allegations established that Mother was not properly divorced when she and Father married, the trial court should have granted his motion for summary judgment with
respect to annulment.
Mother argues that the court did not err in refusing to summarily grant Father’s annulment request. Mother contends that the court could not grant an annulment by default. Mother further contends that Maryland law disfavors annulments and that, in any case, Father’s evidence in favor of the annulment was insufficient.
We hold that the court did not abuse its discretion in refusing to grant Father an annulment based solely on the allegations contained in his amended complaint and his “renewed motion for summary judgment.” By that time, the court had already considered and denied the motion twice. The court was within its discretion in refusing to reconsider the motion again. See Ralkey v. Minnesota Mining & Mfg. Co., 63 Md. App. 515, 522 (1985) (noting that a trial court has the discretion to uphold a prior ruling in the case). The underlying merits of the motion and additional arguments are discussed, infra.
B.
Father next claims that the trial court erred in “dismissing” his amended complaint “without a merits trial[.]” Father insists that the court dismissed his complaint for the following reasons: that the notice he filed indicating his intention to rely on Nigerian law was insufficient; that the court did not have the authority to interpret or implement Nigerian law; that annulments are disfavored in Maryland; that Father propounded different legal theories in support of his annulment claim; and, that there were no expert witnesses to explain Nigerian law. Father claims that none of those reasons constitutes adequate grounds to uphold the court’s decision.
Mother contends that the court properly refused to consider Father’s annulment claim. Mother argues that the theory presented by Father in support of the claim at trial was different from the one set forth in his amended complaint. Mother argues that permitting Father to go forward on that new theory would have resulted in prejudice.
Before discussing the merits of Father’s claims, we must set forth the relevant facts, as Father has seemingly misconstrued the court’s decision. At the beginning of trial, the court recognized that Father was asking for an annulment. Although the court cautioned that “annulments are disfavored under Maryland [l] aw[,]” the court nevertheless stated that it was willing to “take testimony, if [Father] wants to pursue that[.]” Shortly thereafter, the court asked the parties if they wanted to give opening remarks. Father’s counsel responded by renewing his motion for summary judgment, which the court subsequently denied because, inter alia, the motion had already been considered multiple times. In addition, Father’s counsel suggested that the annulment claim should be allowed to go forward because, under Nigerian law, a divorce decree must be obtained from the area where the marriage occurred. Mother objected, arguing that Father was presenting a new legal theory based on foreign law, about which she had not been given reasonable notice. After the court suggested that it may not have the authority to interpret Nigerian law, the court reviewed the relevant statute, namely, § 10-504 of the Courts and Judicial Proceedings Article (“CJP”) of the Maryland Code, which states, in relevant part, that a party may present admissible evidence of foreign law, but the party must provide reasonable notice to the
adverse parties. Upon reviewing that statute, the court noted that Father had not presented any admissible evidence that would allow the court to take judicial notice of Nigerian law. The court further noted that the basis for Father’s request for an annulment included in his amended complaint was “a different theory . . . than what’s being put forth today for the first time.” Citing those reasons, the court decided that it was “not going to go forward on the annulment request.”
From that, it is evident that the court was under the impression that Father was essentially asking to amend his complaint so that he could pursue his annulment claim under a new legal theory rooted in Nigerian law. The court ultimately refused to entertain Father’s annulment request because: one, Father had failed to present “admissible evidence” of Nigerian law, as required by CJP § 10-504; and two, Father’s stated grounds for annulment were being raised for the first time at trial and were different from the grounds set forth in his amended complaint.3
The trial court did not “dismiss” Father’s claim or prohibit him from pursuing it. The court was willing to allow Father to present evidence on the claims raised in his amended complaint, and the court offered Father the opportunity to give some opening remarks on those claims. Rather than taking the court up on its offer, Father took that time to challenge the court’s prior summary judgment decision and to further amend his claim for annulment.
With respect to Father’s attempt to further amend his complaint, when a party seeks to do so on the day of trial, the party must obtain leave of the court. Md. Rule 2-341(c). Amendments to pleadings should be permitted liberally, provided that “the operative factual pattern remains essentially the same, and no new cause of action is stated invoking different legal principles[.]”
Asphalt & Concrete Servs., Inc. v. Perry, 221 Md. App. 235, 269 (2015) (quotation marks and citations omitted). “A trial court should not grant leave to amend if the amendment would result in prejudice to the opposing party or undue delay.” Prudential Sec. Inc. v. E-Net, Inc., 140 Md. App. 194, 232 (2001) (cleaned up). We review for abuse of discretion the court’s decision to grant or deny leave to amend. Id.
Here, the annulment claim presented by Father to the trial court was based on facts and legal principles that were substantially different from those contained in his amended complaint. Permitting Father to pursue his amended claim, which was not disclosed until just before trial, would have certainly caused prejudice to Mother. That prejudice was compounded by the fact that Father’s claim was based on foreign law, and there were questions as to whether Father could produce admissible evidence regarding that law and whether he had provided Mother adequate notice of his intentions.
Father takes issue with the court’s interpretation and application of CJP § 10-504, arguing that Mother was provided adequate notice of his intention to rely on Nigerian law and that his grounds for annulment have always been rooted in Nigerian law.
We remain unpersuaded. In his amended complaint, Father sought an annulment on the grounds that Mother’s divorce certificate from Nigeria was fraudulent. That theory was markedly different from the one proffered for the first time at trial, in which Father suggested that Mother’s divorce was invalid under Nigerian law because she did not obtain a divorce from the same area
where the marriage occurred. Moreover, while Father may have informed Mother of his intention to rely on Nigerian law, it does not appear that Father properly disclosed the substance of the law or how he intended to use that law at trial. Permitting Father to proceed with his claim under those circumstances would have almost certainly prejudiced Mother.
C.
Father next claims that the trial court erred in permitting Mother to defend against the relief for annulment of marriage sought by Father in his amended complaint. Citing Mother’s failure to file a timely responsive pleading to his amended complaint, Father insists that Mother “cannot raise any defense to the averments” because “the statute of limitation[s] had run[.]” Father contends that the trial court should not have allowed Mother to argue against the amended complaint’s averments at trial.
Mother asserts that Father’s argument is merely a restatement of his previous argument regarding the trial court’s decision not to summarily grant him an annulment based on the averments in his amended complaint. Mother disputes Father’s current argument for the reasons given in opposition to his prior argument.
We find no merit to Father’s claims. First, Father is mistaken in claiming that Mother’s failure to file a timely responsive pleading implicated a “statute of limitations” that would have precluded Mother from defending against Father’s claim for relief. Although the Maryland Rules generally require a party to challenge new facts or allegations in an amended complaint within a certain period of time, see Md. Rule 2-341, that requirement does not operate as a “statute of limitations,” such that a party who fails to file a responsive pleading would be barred from defending against the amended pleading’s averments. To the contrary, the Rules expressly empower the court to accept a pleading, including an amended answer, beyond the deadline for which such a pleading would normally be due. Md. Rule 2-341(b); see also Mattvidi Assocs. Ltd. P’ship v. NationsBank of Virginia, N.A., 100 Md. App. 71, 83-84 (1994) (discussing a court’s authority to accept a belated amended answer).
D.
Father next claims that the court erred in denying the motion for summary judgment he filed prior to trial. Father claims that, because the allegations contained in his amended complaint were deemed admitted by Mother after she failed to file a responsive pleading, he was “entitled” to summary judgment as a matter of law. Mother contends that the denial of a motion for summary judgment is not appealable.
First, although the denial of a motion for summary judgment generally is not appealable, it may be reviewed for abuse of discretion following entry of a final judgment. See Com. Union Ins. Co. v. Porter Hayden Co., 116 Md. App. 605, 626-27 (1997) (discussing the appealability of the denial of a motion for summary judgment); see also Shader v. Hampton Improvement Ass’n, Inc., 217 Md. App. 581, 601 (2014) (“[W]e generally apply an abuse of discretion standard when reviewing a circuit court’s denial of a motion for summary judgment in favor of further proceedings[.]”).
That said, Father is incorrect in asserting that he was “entitled” to summary judgment. Assuming without deciding that the averments in Father’s amended complaint were admitted by
Mother and that those averments formed the requisite proof to sustain Father’s annulment claim, a court has the discretion to relieve a party from an admission and require proof of the facts in question. Moreover, although a trial court does not have the discretionary power to grant summary judgment, the court does have the discretion to ‘“affirmatively deny[] a summary judgment request in favor of a full hearing on the merits . . . even though the technical requirements for an entry of such a judgment have been met.’” Dashiell v. Meeks, 396 Md. 149, 164 (2006) (quoting Metro. Mortg. Fund, Inc. v. Basiliko, 288 Md. 25, 28 (1980)). That is, “a trial court has at least a limited amount of discretion to deny a motion for summary judgment, even if it could properly have granted the motion, in order to allow the parties to develop the facts in greater detail, including at a trial.” Johns Hopkins Univ. v. Ritter, 114 Md. App. 77, 92 (1996). “Thus, on appeal, the standard of review for a denial of a motion for summary judgment is whether the trial judge abused his discretion and in the absence of such a showing, the decision of the trial judge will not be disturbed.” Dashiell, 396 Md. at 165. The question here, then, is not whether Father was entitled to summary judgment, but rather whether the court abused its discretion in refusing to grant Father’s motion for summary judgment.
We hold that the court acted within its discretion in denying Father’s request for summary judgment on his annulment claim. “The law does not favor annulments of marriages, and it has long been a settled judicial policy to annul marriages only under circumstances and for causes clearly warranting such relief.”
Morris v. Goodwin, 230 Md. App. 395, 402 (2016) (cleaned up) (quoting Hall v. Hall, 32 Md. App. 363, 381-82 (1976), superseded by statute on other grounds as stated in Ledvinka v. Ledvinka, 154 Md. App. 420 (2003)).4 “The general rule is that marriages shall stand and not be nullified except with caution, and only upon clear, satisfactory proof of recognized grounds of nullification.”
Here, the bases for Father’s summary judgment motion were the averments in his amended complaint, which he claimed Mother had admitted by failing to file a timely answer. Though Mother did in fact fail to file a timely answer, she nevertheless did file a timely response to Father’s summary judgment motion. In that response, Mother challenged the validity of the averments in Father’s amended complaint, and she questioned whether the averments in Father’s amended complaint were sufficient to grant an annulment. Thus, had the court granted Father’s summary judgment motion, it would have been awarding him an annulment based solely on Mother’s failure to plead.
Moreover, we have reviewed the averments in Father’s amended complaint and found those averments to be ambiguous and open to interpretation. Thus, even if those averments are deemed admitted, there is a question as to whether Father would be entitled to an annulment based solely on the truth of those averments.
Given those circumstances, and given Maryland’s general disapproval of annulments, we cannot say that the court abused its discretion in denying Father’s summary judgment request in favor of a trial.
II.
Father’s next set of issues concern whether the trial court
erred or abused its discretion in entering the judgment of absolute divorce. For reasons to follow, we find no error or abuse of discretion.
A.
Father first contends that the written judgment entered by the court is invalid because “it is materially different from the judgment announced by the court” at trial. Father asserts that the court’s written judgment contains a provision that was not part of the court’s announced judgment. That provision, which concerns Father’s vacation time with N.S., states that Father “shall provide notice to Mother prior to May 15th of each year of his selected weeks.” Father insists that that provision was “surreptitiously inserted” into the judgment following a “secret ex parte” meeting between the trial court, Mother, and Mother’s attorney, which Father claims occurred without his knowledge at the conclusion of trial.
Mother categorically denies that there was any “secret meeting” involving either her or her counsel and the trial court. Mother contends that the written judgment is valid because, before the court signed it and entered it into its docket, a copy was sent to Father’s counsel, and Father’s counsel signed off on the judgment.
We find no merit to Father’s claim. There is absolutely no evidence in the record of any meeting, secret or otherwise, between Mother, Mother’s counsel, and the trial court following the court’s announcement of its ruling at the conclusion of trial. Nor is there any evidence that either Mother or Mother’s counsel colluded with the court to “surreptitiously” have the disputed provision included in the court’s written judgment. Father’s claim that the court inappropriately added the disputed provision to the judgment of absolute divorce is simply not supported by the record.
To the contrary, the record establishes that the court’s inclusion of the disputed provision was appropriate. When the court announced its decision at the conclusion of trial, it stated that Father would have two, non-consecutive weeks of vacation time with N.S. The court did not, however, indicate that Father had to provide Mother with any particular notice regarding which weeks he would choose. After announcing its ruling, the court asked Mother’s counsel to prepare a proposed judgment for the court’s review. Mother’s counsel agreed, and neither Father nor Father’s counsel objected. Several weeks later, Mother’s counsel filed the proposed judgment, and that proposed judgment included the disputed provision stating that Father “shall provide notice to Mother prior to May 15th of each year of his selected weeks.” The proposed judgment also included a signature line on which Mother’s counsel and Father’s counsel could indicate whether the proposed judgment was “[a]pproved as to form[,]” and both signature lines contained signatures indicating that both attorneys had approved of the judgment. Two days later, the court signed the judgment and entered it into the court’s docket.
Based on that record of events, we find nothing that would invalidate the court’s written judgment. Although it is apparent that the disputed provision was not included in the court’s oral ruling, the court’s acceptance of the provision suggests that the court believed that it was reasonable for Father to provide Mother with some sort of notice as to which weeks Father
planned to exercise his vacation time. The court’s decision to accept the proposed judgment, including the disputed provision, was all the more reasonable given that Father (through counsel) had approved of the proposed judgment. See Md. Rule 1- 311 (permitting a party’s attorney to act on behalf of the party). If Father believed that the disputed provision should not have been included in the judgment, then he (through counsel) should have brought the matter to the court’s attention instead of affirmatively attesting to the judgment’s accuracy. Father cannot now complain about a provision to which he (through counsel) agreed. See In re Nicole B., 410 Md. 33, 64 (2009) (“It is well- settled that a party in the trial court is not entitled to appeal from a judgment or order if that party consented to or acquiesced in that judgment or order.”).
B.
Father next asks whether this Court should give deference to the trial court’s findings of fact and determinations of credibility. In suggesting that we should not, Father cites, as examples of the court’s “dishonesty” and “biased judgment,” various adverse rulings and alleged nefarious acts by the trial court, including the previously-discussed “clandestine” meeting that purportedly occurred between Mother, Mother’s counsel, and the trial court. Mother, unsurprisingly, denies any untoward behavior on the part of the trial court.
We will not belabor this issue any more than necessary. We have reviewed the record, and we have found absolutely no evidence in support of Father’s outlandish claims. The record shows that the trial court conducted the proceedings in a professional manner and without any hint of bias.
III.
Father’s next set of issues concern whether the trial court erred or abused its discretion in determining custody of the minor children. For reasons to follow, we find no error or abuse of discretion.
Appellate review of a trial court’s decision regarding child custody involves three interrelated standards. J.A.B. v. J.E.D.B., 250 Md. App. 234, 246 (2021). First, any factual findings are reviewed for clear error. Id. Second, any legal conclusions are reviewed de novo. Id. Finally, if the court’s ultimate conclusion is “founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the [court’s] decision should be disturbed only if there has been a clear abuse of discretion.” In re J.J., 231 Md. App. 304, 345 (2016) (quotation marks and citation omitted). “A decision will be reversed for an abuse of discretion only if it is well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.” Id. (quotation marks and citation omitted).
This Court has identified various factors a trial court should consider when making a custody determination. J.A.B., 250 Md. App. at 253. Those factors include but are not limited to: the parties’ fitness; the parties’ character and reputation; the parties’ desire; any agreements between the parties; the potential of maintaining natural family relations; the child’s preference; any material opportunities affecting the child’s future; the child’s age, health, and sex; the parties’ residence and the opportunity for visitation; the length of separation from the natural parents; and any prior voluntary abandonment or surrender. Id.
When considering those factors, “the trial court should examine the totality of the situation in the alternative environments and avoid focusing on or weighing any single factor to the exclusion of all others.” Jose v. Jose, 237 Md. App. 588, 600 (2018) (quotation marks and citation omitted). Moreover, “[t]he primary goal of access determinations in Maryland is to serve the best interests of the child.” Conover v. Conover, 450 Md. 51, 60 (2016). “The best interest of the child is [therefore] not considered as one of many factors, but as the objective to which virtually all other factors speak.” E.N. v. T.R., 474 Md. 346, 397 (2021) (cleaned up). ‘“In this regard, trial courts are endowed with great discretion in making decisions concerning the best interest of the child.”’ Bussell v. Bussell, 194 Md. App. 137, 157-58 (2010) (quoting Petrini v. Petrini, 336 Md. 453, 469 (1994)).
A.
Father first claims that the trial court abused its discretion in requiring that the minor children not be left unsupervised while in their parents’ care. Father contends that the court’s decision was “without rationale or justification,” particularly given that the court did not indicate when that supervision would end, which meant that, theoretically, the children would need supervision until they become legal adults.
Mother argues that the court did not abuse its discretion. Mother notes that the court received evidence that M.S. and M.O. had special needs and that Father had previously left the children alone while he went to work.
We hold that Father’s argument was either affirmatively waived or, at the very least, unpreserved. At trial, Father testified that, when the children spent extended periods of time with him during the previous summer, he sometimes left the children home alone when he went to work. Later, when the trial court was announcing the access schedule, the court stated that Father would be allowed vacation time with the children but “he’s got to make sure that the children are properly supervised during his absence.” Shortly after the court finished announcing its decision, Father’s counsel asked for clarification as to whether supervision would be required when Father had the children over spring break. The following colloquy ensued:
THE COURT: Any time that [Father] has the children, and if he has to leave, just because of their ages, they can’t be left unattended. That’s all I’m saying.
[DEFENSE]: But you did not make that requirement for the mother, also.
THE COURT: Because I didn’t hear any testimony that that was an issue. Obviously, you know it’s against the law to leave your children unattended when they’re certain ages.
[DEFENSE]: That’s obvious, but it wasn’t ever – it’s never put on a judgment, order that there should be supervision. If the man is in violation, or the woman is in violation, the law would take its course. It was never in part of the order to put, “supervised” –
THE COURT: Okay, I’ll tell you what I’ll do. I’ll make it neutral. The children will not be unattended by their parents, when they have them in their custody. All right? So that will apply to both parents without singling dad out.
[DEFENSE]: That’s fair. THE COURT: All right.
From that, we are convinced that Father’s appellate argument was waived or, at the very least, unpreserved. Though Father’s counsel did initially object to the supervision requirement, he did so on the grounds that the court was not holding Mother to the same requirement. When the court addressed that issue by making the provision neutral, Father’s counsel agreed that the provision was “fair.” It appears, then, that Father was in agreement with the disputed provision. Father cannot now claim error about a custody provision to which he agreed. See In re Nicole B, supra, 410 Md. at 64. At the very least, if Father still had an objection to the provision, he had a duty to bring it to the court’s attention. Md. Rule 8-131(a).
Assuming, arguendo, that Father’s appellate argument is properly before this Court, we find no merit to Father’s claim that the court’s inclusion of the supervision requirement was “without rationale or justification[.]” At the time of trial, M.S. and M.O. were both eleven years old and N.S. was five years old. The court heard evidence that Father had previously left the children alone and unattended while he went to work. After considering that evidence and the children’s best interests, the court decided to include a provision in the custody arrangement that prevented either parent from leaving the children unattended. We see no error or abuse of discretion in that decision. That the children may eventually not need constant supervision does not mean that the court abused its discretion in determining that the children need such supervision now. See Basciano v. Foster, 256 Md. App. 107, 152 (2022) (“In making a custody determination, courts look to the situation as it exists at the time.” (quotation marks and citation omitted).
In support of his argument, Father notes that “Maryland statutory law does not require adult supervision for minors over the age of eight.” Although Father does not cite the specific law to which he is referring, we assume he is referencing § 5-801 of the Family Law Article (“FL”) of the Maryland Code, which makes it a crime for a child-care provider to leave a child under the age of eight locked or confined in a dwelling or other enclosure without appropriate supervision. To the extent that Father is claiming that the court erred because it implemented a condition of supervision that is more restrictive than FL § 5-801, we remain unpersuaded. That statute is a bar, not a ceiling.
B.
Father next claims that the trial court abused its discretion in deciding custody. Father contends that the court’s decision to have one visitation schedule for M.S. and M.O. and a different visitation schedule for N.S. was “arbitrary and distinctly irrational.” Father further contends that the court erred in implementing an access schedule that was different from the access schedule set forth in the pendente lite custody agreement. Father insists that the court should not have modified that schedule because the parties had previously agreed to that schedule.
Mother contends that the court did not abuse its discretion in reaching its decision regarding custody. Mother asserts that the court carefully considered the evidence and the relevant circumstances and made a sound decision based on the children’s best interests.
We hold that the court did not abuse its discretion in deciding
custody. First, the court was under no obligation to adopt the pendente lite access schedule, regardless of whether that schedule had been agreed to by the parties. See Frase v. Barnhart, 379 Md. 100, 111 (2003) (“A pendente lite order is not intended to have long-term effect[,] . . . and it does not bind the court when it comes to fashioning the ultimate judgment.”). Furthermore, the children’s circumstances were markedly different at the time of trial than at the time the pendente lite custody agreement was put in place. The pendente lite order was entered in August 2020, when M.S. and M.O. were eight years old and N.S. was just two years old. By the time of trial nearly four years later, M.S. and M.O. were almost twelve years old and N.S. was almost six years old. As the court explained in reaching its decision, there were various social, scholastic, and other factors relevant to the court’s custody determination that were not at issue when the pendente lite custody order was entered. The court properly considered those factors and, based on the children’s best interest, implemented a reasonable custody arrangement.
In any event, to the extent that the court did alter the pendente lite custody arrangement, those alterations were minor. Under the pendente lite schedule, Father had access to M.S. and M.O. for two consecutive weekends, from Thursday to Monday, every three weeks and for alternating weeks during the children’s summer vacation. Under the court’s modified schedule, Father had access to M.S. and M.O. every other weekend, from Friday to Monday, and for alternating weeks during the children’s summer vacation. As to N.S., under the pendente lite schedule, Father had access on the same weekends he had M.S. and M.O., but his time with N.S. was limited to Friday to Sunday on the first weekend and Friday to Saturday on the second weekend. In addition, Father had no summer visits. Under the court’s modified schedule, Father had access to N.S. every other weekend, from Friday to Sunday evening, for the entire year, and he had two additional weeks of vacation time with N.S. during the summer. Thus, while Father’s time with M.S. and M.O. was decreased slightly under the court’s modified schedule, his time with N.S. was increased significantly. Given those circumstances, we fail to see how the court abused its discretion in reaching its decision.
As to the court’s decision to have an access schedule for M.S. and M.O. that was different from the access schedule for N.S., we see nothing “arbitrary” or “irrational” about that decision. As noted, the parties had agreed to and were already operating under separate schedules pursuant to the pendente lite order. We are at a loss as to why Father would take issue with such a schedule now. Be that as it may, the court provided a detailed explanation for its decision. The court noted that, at the time of trial, N.S. was in kindergarten and had to be in school later than the other two children. After discussing “some of the challenges” that had occurred between the parties in the past, the court found that it was in N.S.’s best interest that she be returned to Mother by Sunday evening. The court then included a provision whereby the parties could modify that schedule if they later agree that doing so would be in N.S.’s best interest. We find no abuse of discretion.
IV.
Father’s final issue concerns whether the trial court erred or abused its discretion when it denied his pretrial request to have
witnesses testify remotely from Nigeria. Father argues that those witnesses “were essential participants in the proceeding” and were “critical to [his] case[.]”
Mother contends that Father’s argument is unpreserved because he did not raise the issue at trial. Mother argues, in the alternative, that the court did not err or abuse its discretion in precluding the two witnesses from testifying.
We hold that Father’s argument is unpreserved. To be sure, Father did file a pretrial request for the witnesses to testify remotely, and the court denied the request. Father did not, however, provide any proffer as to the substance of the excluded evidence. Father therefore failed to preserve his appellate argument. Md. Rule 5-103(a).
Assuming, arguendo, that the issue was preserved, we hold
JUDGMENT
CIRCUIT
FOOTNOTES
1 Father phrased the issues as:
1. Whether the averments in Appellant’s amended pleading are admitted by Appellee, since Appellee did not deny said averments in Appellee’s responsive pleading, and did not generally deny Appellants averments.
2. Whether the trial Court erred by dismissing Appellant’s amended complaint without a merits trial on the ground that the complaint was not accompanied by sufficient evidence to proceed to trial.
3. Whether the judgment signed by the trial court is valid, since it is materially different from the judgment announced by the court.
4. Did the trial court err by allowing Appellee to raise a defense against the relief for annulment of marriage sought by Appellant in his amended complaint after the limitation time for Appellee’s response had expired?
5. Did the trial Court abuse its discretion by refusing to grant Appellant’s partial summary judgment?
6. Whether the trial Court acted inappropriately when it had a secret ex parte meeting with Appellee and her counsel before signing the judgment.
7. Whether this Court would give deference to the trial court’s finding of facts in light of the trial court’s established dishonesty, and whether the overtly biased judgment of the trial court is valid.
8. Did the trial court abuse its discretion when it ordered that the parties’ eleven-year-old minor children should have adult supervision at all times?
that the court did not abuse its discretion in refusing Father’s request to have two expert witnesses testify remotely from Nigeria. Father made the request on June 7, 2023, three weeks before trial and approximately three years after the court-ordered deadline for discovery. As Mother pointed out in her opposition to Father’s request, Father never identified either witness as an expert witness or disclosed any information regarding either witness’s opinion. Moreover, Father provided no explanation for the late disclosure. Under the circumstances, we cannot say that the court abused its discretion in denying Father’s request. See Shelton v. Kirson, 119 Md. App. 325, 332-33 (1998) (holding that trial court did not err in precluding expert witness, where witness was not named until nearly one year after the close of discovery).
9. Did the trial court abuse its discretion with respect to [one of the minor children’s] custody?
10. Whether the credibility finding of the trial court can be relied upon, or given deference, by this Court.
11. Whether it is equitable to modify the parties’ consent pendente lite custody judgment.
12. Did the trial court abuse its discretion for denying Appellant’s witnesses in Nigeria remote participation during trial?
2 Father subsequently noted an appeal from that order, arguing, among other things, that the consent order was the result of duress, undue influence, and fraud. Inko-Tariah v. Okereke, Case No. 703, September Term, 2020, 2021 WL 840922 (filed March 5, 2021). We later affirmed, finding no merit to Father’s arguments. Id.
3 To the extent that Father is arguing that the court was incorrect in its assessment of his position, Father did not raise that issue in the trial court. As such, that argument is not preserved for our review. Md. Rule 8-131(a).
4 Father claims that “the annulment disfavorment [sic] theory . . . has been obsoleted in Maryland by . . . Ledvinka v. Ledvinka, 154 Md. App. 420 (2003).”
Father is mistaken. In Ledvinka, we held that an annulment could be granted only on specified grounds. Id. at 436. We did not hold, or suggest, that annulments were no longer disfavored in Maryland. In fact, we reaffirmed Maryland’s policy of disfavoring annulments as recently as 2016. Morris, supra, 230 Md. App. at 402-03.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Baltimore City Circuit Court’s termination of father’s parental rights. The court did not err in finding that the Baltimore City Department of Social Services made reasonable efforts to facilitate reunification between father and his children. And the court’s findings were supported by ample evidence from which it could conclude that exceptional circumstances made the continuation of father’s parental relationship detrimental to the best interests of the children.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
out of the marital home. Appellee filed a complaint for absolute divorce and other relief in the Circuit Court for Montgomery County on November 16, 2020. Appellant filed his answer to the complaint on March 22, 2021, and subsequently filed a counterclaim for absolute divorce on March 25.
The circuit court held a four-day divorce hearing from June 13 through June 16, 2022. The primary focus of the hearing was the classification and distribution of marital property. The evidence presented at trial included financial statements for each party, a joint statement designating marital and nonmarital property, an accountant’s valuations of both parties’ various pensions and benefits, and an expert’s opinion on different types of military disability benefits.
Craig Bash (“Appellant”) and Margaret Bash (“Appellee”) were granted a judgment of absolute divorce in the Circuit Court for Baltimore County in 2022. Appellant filed a revisory motion in the circuit court that sought to correct a perceived error of the court’s calculation of the value of Appellant’s federal Department of Veterans Affairs (“VA”) disability compensation. The court denied Appellant’s motion.
Appellant then filed a second revisory motion to the same end, which the court also denied. Appellant filed the present appeal, which was timely only to the order denying the second revisory motion.
The question we address here is1: Is the second revisory order appealable?
As we explain below, due to the procedural posture of this case and this Court’s consideration of revisory motions under Rule 2-535, we conclude that the second revisory order is not appealable, and we therefore dismiss the appeal.
BACKGROUND
A. Divorce Proceedings
The parties were married in March 1984. Both parties are medical doctors and disabled veterans of the United States military, Appellant having served in the Air Force and Appellee in the Coast Guard. Additionally, both parties have a 100% disability rating from the VA and receive disability compensation.
In early 2016, the parties separated after Appellant moved
There were two types of VA disability compensation discussed by the parties and Appellant’s experts. The first is scheduler2 compensation, which is generally intended to replace potential earnings but are not tied to what an individual actually earns. The amount of the scheduler compensation awarded to a disabled veteran is determined by their disability rating, with greater payments for higher ratings. The second was special monthly compensation (“SMC”), which “is a benefit paid in addition to monthly disability compensation when a veteran suffers additional hardships above and beyond those contemplated by VA’s schedule for rating disabilities.” Perciavalle v. Wilkie, 32 Vet. App. 117, 118 n.1 (2019) (internal quotation omitted). Appellee receives scheduler compensation, and Appellant receives both scheduler compensation and SMC.
The circuit court entered a judgment of absolute divorce on October 18, 2022. The monetary award sheet completed by the court listed the value of Appellant’s VA disability pension as marital property worth $1,830,036 and his SMC as nonmarital property worth $1,167,828.
B. Post-Judgment Filings
On October 28, 2022, Appellant filed a motion to alter or amend judgment of absolute divorce pursuant to Maryland Rule 2-534 (the “first revisory motion”).3 Among other things, Appellant argued that the valuation of his VA disability pension—$1,830,036— included the $1,167,828 value of his SMC, with the remainder being his scheduler compensation. Because his scheduler compensation was marital property while his SMC was not, Appellant asserted that the court made a mistake in the monetary award sheet by including his SMC as both marital and non-marital property, thereby double counting it.4 Appellee opposed the first revisory motion, highlighting that Appellant did not rely on any legal authority
to support his position, which only alleged factual errors.
The court denied the first revisory motion on December 8, 2022. The court stated that it had reviewed the record, including the expert’s valuation of Appellant’s VA disability pension, and stated that the yearly value listed in the accountant’s valuation comported with the court’s findings regarding the pension and other evidence presented regarding Appellant’s assets. As a result, the court concluded that it had correctly listed the values of Appellant’s assets.
Appellant filed a motion for reconsideration of the denial of his motion to alter or amend on December 19, 2022 (the “second revisory motion”). The motion, filed pursuant to the court’s revisory power and Maryland Rule 2-535,5 focused on the argument that the court improperly double counted Appellant’s SMC as both marital and non-marital property. Appellant also described his first revisory motion as being “unfairly critical towards the Court” and recognized that the testimony at trial regarding his assets and VA compensation in general was confusing. In support of the second revisory motion, Appellant filed an affidavit from the accounting expert that attempted to clarify his testimony at trial and the information contained in his valuation of Appellant’s VA compensation.
Appellee opposed the second revisory motion, characterizing it as “an impermissible attempt to alter the record before the trial court.” Specifically, she argued that the second revisory motion was filed 62 days after the judgment of absolute divorce in violation of Rule 2-534, which allows new evidence to only be considered within 10 days of judgment. Further, Appellee pointed out that the second revisory motion was the first time Appellant had alleged that the testimony at trial was inaccurate and that at no point during the trial did Appellant attempt to clarify the testimony.
The court denied the second revisory motion on March 28, 2023. Appellant filed an appeal on April 11, 2023.
Appellee filed a motion to dismiss this appeal or, in the alternative, “to clarify which trial court order is the subject of this appeal.” This Court denied the motion to dismiss but granted the request to clarify, ordering that “the scope of review in this appeal is limited to whether the Circuit Court for Montgomery County abused its discretion in its March 2[8], 2023 Order,” which was the order denying the second revisory motion.
DISCUSSION
Appellant asserts that the circuit court abused its discretion in denying the second revisory motion. He reiterates the same arguments made in that motion and the first revisory motion, averring that the court double counted his SMC, thereby overstating the value of his disability benefits by $1.1 million. Appellant contends that there was no evidence in the record to support the conclusion that the total value of his VA disability pension without the SMC was about $1.8 million. Further, he asserts that the evidence and testimony of the various experts agreed that his SMC was separate from his scheduler benefits and that the judge’s questions throughout the trial suggested that he understood this distinction.
In contrast, Appellee contends that it was within the
bounds of the circuit court’s discretion to deny both of Appellant’s post-judgment motions. Appellee also emphasizes that the merits of the monetary award worksheet are not at issue in this appeal, only whether the judge abused his discretion in denying the second revisory motion, which sought to revisit the first revisory motion, not the judgment of absolute divorce. Appellee argues that even if the merits of the underlying judgment were at issue, there was sufficient evidence to support the judge’s findings and that regardless of any potential error in the valuations, the monetary award was equitable and therefore was not an abuse of discretion.
Both parties assert that the standard of review is abuse of discretion. See Sydnor v. Hathaway, 228 Md. App. 691, 708 (2016). This is the correct standard of review for revisory motions generally. However, the procedural history of this case puts it in a different posture on appeal and requires a closer assessment than the parties have afforded in their briefs regarding the procedures and principles of the Maryland Rules.
In Pickett v. Noba, Inc., this Court described the various post-trial revisory motions of the Maryland Rules as follows: After judgment in a court trial, a litigant can file one of the following post- trial motions: a motion for new trial under Md. Rule 2-533; a motion to alter or amend the judgment under Md. Rule 2-534; or a motion for the court to exercise its revisory power under Md. Rule 2-535. 114 Md. App. 552, 556 (1997), aff’d on reconsideration, 122 Md. App. 566, 570 (1998). Rule 2-533 and Rule 2-534 both require that a motion pursuant to those Rules be filed within 10 days of when the judgment was entered, although a court should treat any initial revisory motion filed within 10 days of the judgment as a Rule 2-533 or Rule 2-534 motion regardless of how it is labeled. Sieck v. Sieck, 66 Md. App. 37, 43–44 (1986). A post- judgment motion filed within 10 days of the judgment stays the 30-day deadline for noting an appeal of the underlying judgment until the court enters an order disposing of the motion or it is withdrawn by the moving party. Md. Rule 8-202(c); Estate of Vess, 234 Md. App. 173, 194–95 (2017).
The second revisory motion, in contrast, is governed by Rule 2-535, which requires that the motion be filed within 30 days of judgment but does not stay the deadline for noting an appeal. Leese v. Dep’t of Lab., Licensing & Regul., 115 Md. App. 442, 445 (1997); Md. Rule 2-535(a). If the court has denied a first motion for reconsideration, a filing of a second revisory motion does not toll the running of time to file an appeal. Johnson v. Francis, 239 Md. App. 530, 541 (2018). Rule 8-202(c) permits motions filed within 10 days of an entry of judgment under Rules 2-534 and 2-535 to toll the time period for appeal as the court considers the motion; however, once a court has denied a motion for reconsideration, the second revisory motion will not toll the time to note a timely appeal. Leese, 115 Md. App at 445.
Appellant filed the first revisory motion on October 28, 2022, 10 days after the judgment of absolute divorce was entered. This stayed the deadline for filing an appeal of the judgment of absolute divorce until the court ruled on the motion. The court did so on December 8, 2022. Appellant timely filed the second revisory motion on December 19, 2022; however, the second revisory motion did not stay the deadline for an appeal. Thus,
Appellant had until January 9, 2023, to file a notice of appeal of the judgment of absolute divorce and/or the denial of the first revisory motion.6 Appellant filed the notice of appeal on April 11, 2023. As a result, and as we clarified in the order on Appellee’s motion to dismiss, the only order that was timely appealed was the denial of the second revisory motion. However, what both parties fail to mention in their briefs is that the denial of a second revisory motion is not appealable. In Off. of People’s Couns. v. Advance Mobilehome Corp., we rejected the theory that a party could appeal the denial of an otherwise-timely second revisory motion. 75 Md. App. 39, 45–46 (1988). The appellees in Advance Mobilehome “reason[ed] that as long as their motion was filed within 30 days of the order denying Advance’s motion to alter or amend, they may file a second motion to alter or amend, challenging the denial.” Id. We disagreed, concluding that “[t]heir interpretation of [Rule] 2-535 . . . flies in the face of the import of the rule and the cases that have developed under that rule.” Id. at 46. We then explained that such an interpretation is contrary to the principles of finality of judgment and “would permit a succession of motions, each of which could challenge the denial of a refusal to revise, ad infinitum.” Id. Further, we stated that [a]lthough the [appellees] contend that they filed a timely motion to revise the denial of [the first] motion to revise (and not an untimely motion to revise the original judgment), this distinction is illusory. What is the practical
effect of allowing them to file a motion to revise the denial of a motion to revise? It effectively would allow them to attack an enrolled judgment on grounds other than fraud, mistake or irregularity, which is expressly forbidden by Rule 2-535(b).[7]
Id. at 47–48.
We reiterated this principle in Pickett, stating that the “denial of [the] second motion to revise is not appealable because it is not a final judgment. A second motion to revise filed more than thirty days after the entry of judgment, even though within thirty days after the denial of the first motion, cannot be granted.”8 Pickett, 114 Md. App. at 560; see also Leese v. Dep’t of Lab., Licensing & Regul., 115 Md. App. 442, 445 (1997) (stating that a “second [revisory motion] did not extend the appeal time pursuant to Rule 8-202(c)” because to “interpret the rule in that manner would permit a party to extend the time for appeal ad infinitum based on the filing of successive motions within ten days after denial of the immediately preceding motion” (citing Pickett)).
CONCLUSION
The procedural posture of this case and this Court’s consideration of revisory motions under Rule 2-535 controls the outcome of this case. Because Appellant seeks review of the denial of a second revisory motion and failed to file a notice of appeal within 30 days of the denial of the first revisory order, we shall dismiss the appeal.9
APPEAL DISMISSED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Appellant’s questions presented, which we have reformatted from statements to questions, are:
1. [Was the] trial judge’s denial of [Appellant’s] Motion for Reconsideration of Order Entered 12/8/22 [] clearly erroneous and an abuse of the court’s discretion because, based upon the evidence at trial, the trial judge overstated the value of Appellant’s VA disability pension by $1.1 million dollars by mistakenly “double-counting” Appellant’s special monthly compensation.
2. [Was the] trial court’s monetary award analysis [] clearly erroneous because the Court’s execution of [the] “step two” value analysis ignored the undisputed evidence introduced at trial and substituted it[]s own value, not supported by the evidence.
2 This type of compensation is referred to throughout the record as “scheduler,” “schedular,” “schedule,” and “scheduled” compensation. For consistency, we will use “scheduler” to describe this category of benefits because that is the term used by the parties in their briefs.
3 As relevant here, Rule 2-534 provides:
In an action decided by the court, on motion of any party filed within ten days after entry of judgment, the court may open the judgment to receive additional evidence, may amend its findings or its statement of reasons for the decision, may set forth additional findings or reasons, may enter new findings or new reasons, may amend the judgment, or may enter a new judgment.
4 The monetary award worksheet provided the following valuations for Appellant’s assets: as marital property, a VA disability pension valued at $1,830,036 and as non-marital property, SMC valued at $1,167,828. Appellant’s position is that the correct valuation and designation of his assets is: as marital property, a VA disability pension including only his scheduler compensation valued at $662,208 (i.e., Appellant’s total VA disability pension minus his SMC) and as non-marital property, SMC valued at $1,167,828.
5 Rule 2-535(a) provides in relevant part:
On motion of any party filed within 30 days after entry of judgment, the court may exercise revisory power and control over the judgment and, if the action was tried before the court, may take any action that it could have taken under Rule 2-534.
6 Rule 1-203(a)(1) commands “the last day of the period so computed is included unless: (1) it is a Saturday, Sunday, or holiday[.]” Therefore, the deadline for the second revisory motion fell on December 19, 2022, and the deadline
for the appellant to file a notice of appeal was January 9, 2023.
7 Rule 2-535(b) provides: “On motion of any party filed at any time, the court may exercise revisionary power and control over the judgment in case of fraud, mistake, or irregularity.” This is in contrast with Rule 2-535(a), which allows a party to assert any grounds for revision but must be filed within 30 days of the judgment. Rule 2-535(b) is not applicable to this case.
8 The Maryland Rules Commentary describes this outcome as follows:
The time for filing a motion to revise (if filed more than 10 days after the entry of judgment) and the time for filing an appeal both run concurrently from the entry of judgment. Thus, as a practical matter, the filing of a motion to revise a judgment becomes the appeal because, unless it is decided within 30 days, the appeal time on the original judgment will have expired. The moving party’s last attempt to win is directed to the trial court, instead of to [the Appellate Court.]
Paul V. Niemeyer & Linda M. Schuett, Maryland Rules Commentary 753 (5th ed. 2019) (emphasis added) (citation to Pickett omitted). The Maryland Rules Commentary also cautions that: the party pursuing revision of the judgment must obtain a ruling on the motion before expiration of the time for appeal if the party wishes both trial court and appellate court review of the judgment. Because this may be difficult, the motion to revise under Rule 2-535 is usually reserved for cases in which no appeal will be taken.
Id. at 730.
9 Appellant’s second revisory motion asserted that it sought to correct “new findings of fact” in the order denying the first revisory motion. These new findings do not save this appeal because Appellant sought to correct those errors through a second revisory motion, not in a timely appeal to this Court. In doing so, he precluded himself from challenging that order here. Further, even if we were to review the court’s denial for abuse of discretion, we would not find such abuse. The record before the circuit court was confusing, and it was the Appellant’s burden to present clear evidence to the court as to the value of his assets. He was entitled to request that the court revisit its monetary award decision once it became clear the court disagreed with the Appellant’s assessment of the evidence; however, the court was not required to grant such a request. See Stuples v. Balt. City Police Dep’t, 119 Md. App. 221, 232 (1998) (“[T]he ruling in issue does not have to have been right to survive so minimal and deferential a standard of review [as abuse of discretion].”).
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 06 MFLU Supp. 47 (2024)
Parental rights; termination; best interests
In Re Su.N., Sa.N., So.N
No. 2031, September Term 2023
Argued before: Berger, Beachley, Albright, JJ.
Opinion by: Beachley, J
Filed: Aug. 23, 2024
The Appellate Court affirmed the Howard County Circuit Court’s termination of parental rights. After considering the factors set forth in FL § 5-323(d), the circuit court considered the best interests of the children, as well as parental unfitness.
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.
caseworker responded to the home and found both children bound to their beds. The caseworker also discovered that the home was very cluttered and had no smoke detectors; that Mother and Father had a history of domestic violence; and that Mother had recently obtained a protective order against Father.
This case arises from a judgment entered in the Circuit Court for Howard County, sitting as the juvenile court, in which the court terminated the parental rights of S.W. (“Mother”) and J.N. (“Father”) as to the parties’ three minor children. Mother and Father each noted an appeal from that judgment. In her appeal, Mother has presented three questions for our review. For clarity, we have rephrased and consolidated those questions as:
Did the juvenile court err or abuse its discretion in terminating Mother’s parental rights?
Father, in his appeal, has presented two questions for our review. For clarity, we have rephrased and consolidated those questions as:
Did the juvenile court err or abuse its discretion in denying Father’s request for a postponement so that he could obtain counsel and in proceeding to trial with Father unrepresented by counsel?
For reasons to follow, we hold that the juvenile court did not err or abuse its discretion in granting a termination of parental rights or in denying Father’s request for a postponement and proceeding to trial with Father unrepresented by counsel. Accordingly, we affirm the court’s judgment.
BACKGROUND
Mother and Father met at a homeless shelter and were later married. In June 2016, the parties had their first child, Su.N. The parties’ second child, Sa.N., was born in December 2017.
In June 2018, the Howard County Department of Social Services (the “Department”) received a report that Su.N. and Sa.N. were being tied to their beds. A Department caseworker responded to the home and instructed Mother not to bind the children to their beds.
In January 2019, the Department received a report that Su.N. and Sa.N. were again being tied to their beds. A Department
Based on those discoveries, the Department filed petitions in the juvenile court requesting that Su.N. and Sa.N. each be declared a child in need of assistance (“CINA”).1 In February 2019, the court granted the Department’s request, and both children were placed in foster care. Shortly thereafter, Mother was charged, in the circuit court, with child abuse and neglect. As a result of those charges, Mother was prohibited from having in-person contact with the children and from leaving the State of Maryland except for employment purposes. Mother’s contact with the children was thereafter limited to video calls.
In July 2019, the children moved to California and began living with their maternal aunt, Ms. B., and her husband, Mr. B. Mother and Father consented to the relocation.
In January 2020, the parties had their third child, So.N. Neither Mother nor Father informed the Department about the pregnancy and subsequent birth. In order to hide the child from the Department, Mother traveled to Louisiana to give birth. Mother then gave the child to relatives in California (not Mr. and Ms. B.). The Department quickly learned of the birth and confronted the parents, who refused to cooperate or disclose So.N.’s location. The Department filed a petition to have So.N. declared a CINA. When the parents continued to refuse to disclose the child’s location, the court threatened to hold them in contempt. Ultimately, the parents cooperated, and So.N. was located. In February 2020, So.N. was declared CINA and placed with Mr. and Ms. B. Around this time, the frequency of the parents’ video calls to the children diminished, and in September 2020, the parents stopped contacting the children altogether.
In March 2021, the Department asked the juvenile court to change the children’s permanency plans from reunification with a parent to adoption by a relative. Following a hearing before a magistrate, the magistrate recommended granting the Department’s request. Mother and Father filed exceptions.
In May 2021, Mother was acquitted of her pending criminal charges. Mother and Father began traveling to California to visit with the children in person in August 2021. They also resumed video calls.
In December 2021, the juvenile court held the first of several hearings on Mother’s and Father’s exceptions. The
final hearing was held in January 2023.2 In May 2023, the juvenile court adopted the magistrate’s recommendations and entered an order changing the children’s permanency plans to adoption by a relative. After Mother noted an appeal, this Court affirmed in an unreported opinion. In re: Su.N., Sa.N., and So.N., No. 793, Sept. Term 2023 (filed Jan. 18, 2024).
Meanwhile, in June 2023, the Department filed petitions requesting that the parents’ parental rights to each child be terminated and that the Department be granted guardianship with the right to consent to adoption. A termination of parental rights (“TPR”) hearing was ultimately scheduled for December 4 through December 13, 2023.
TPR Hearing
At the TPR hearing, the Department presented various testimonial and documentary evidence regarding the Department’s involvement with the family. According to that evidence, Michelle Harman, a caseworker with the Department, first became involved with the family in December 2017, after Su.N. was born. At the time, the Department had “concerns regarding mental health in [the] home, [and] domestic violence.” Additionally, the parents only had one car seat and “were trying to take the mattress and crib” from the hospital because “they didn’t have what they needed in the home to properly care” for the child. Ms. Harman reached out to Mother and told Mother that the Department could assist with supplies, but Mother declined.
Ms. Harman came into contact with the family again in March 2018 after receiving a referral regarding concerns of domestic violence. Upon receiving that report, Ms. Harman went back to the home and spoke with Mother and Father, and Ms. Harman provided referrals for counseling. One month later, Mother called Ms. Harman and stated that she “couldn’t get a break from her children” and that Father “wasn’t allowing her to, like, work or give her money.” Ms. Harman provided Mother with information on how to get help with those issues. According to Ms. Harman, Mother did not avail herself of those services.
On May 31, 2018, Emmett Woodard, a Department caseworker, received a report that the children were being tied to their beds. Upon responding to the home that evening, Mr. Woodard discovered that the children “were still tied up.” Photos of the children taken by Mr. Woodard that evening were admitted into evidence. According to Mr. Woodard, Sa.N. was in bed, a hat was “pulled over the child’s eyes,” and she was “being restrained in a very aggressive manner that could have resulted in death.” Su.N. was in a different bed, a hat was “pulled over her face,” and “[s]he was tied up with rope around her torso and that rope was then tied to . . . a bed.” Mr. Woodard instructed Mother and Father that “under no circumstances could the children be tied up like that again.” When asked why she had tied the children up, Mother stated that she was attempting to “swaddle” the children.
The following day, Ms. Harman went back to the home for an unannounced home visit. Upon making contact with Mother and Father, Ms. Harman informed them that they could not tie their children to their beds. Ms. Harman had both parents sign a safety plan, which instructed the parents to use
appropriate sleeping devices and to participate in a parenting program and counseling. Ms. Harman continued working with Mother and Father over the following months, making a total of fourteen home visits and providing various referrals for services. Following her last home visit, Ms. Harman attempted to contact Mother and Father, but she was unable to reach them. Ms. Harman closed the case in October 2018 because she was unable “to make contact with the family and have them follow through with any of the recommendations [for] counseling.”
On January 16, 2019, Howard County Police Corporal Justin Frei responded to the family home after the Department had received a report “about children that were being improperly restrained.” Upon responding to the home, Corporal Frei discovered both children in their beds. Photos of the children taken by Corporal Frei were admitted into evidence. According to Corporal Frei, Su.N. was “lying face down” and had “a cloth tied around her torso area . . . in a knot fashion . . . which was tied to the bed.” Corporal Frei was concerned because, if there was “an immediate emergency, whether it be a fire or a medical incident, the way she was tied up would make it extremely difficult to be removed quickly and efficiently.” Sa.N. was also “positioned face-down on her stomach,” and she had “a white cloth wrapped around her upper back area, which [was] wrapped around the bed restraining her down to the bed, and she was unable to . . . move from side to side.” Corporal Frei was concerned because “[t]he way she [was] positioned could make it extremely hard to breathe” and posed a risk, “if they spat up, [of] possibly chok[ing] on any spit-up.” Corporal Frei observed that the home was “cluttered” and had “a lack of smoke detectors.” Corporal Frei spoke with Mother, who reported “a previous domestic incident” in which Father had assaulted her and which resulted in the issuance of a protective order. Mother also reported that the children, one and two years old at the time, were only consuming breast milk. The Department thereafter removed the children from the home and filed CINA petitions for both children.
In February 2019, both children were found to be CINA. The parents subsequently asked that the children be placed with Mother’s sister, Ms. B., and her husband, Mr. B., in California. In July 2019, Mr. and Ms. B. assumed custody of the children.
In August 2019, Markeita Matthews, a Department caseworker, was assigned as the family’s primary caseworker. Upon being assigned the case, Ms. Matthews discovered that neither parent had signed a service agreement. Ms. Matthews met with Mother and Father shortly thereafter, and, based on that meeting and her review of the case file, Ms. Matthews developed concerns regarding the lack of stable housing, Mother’s mental health, domestic violence issues between Mother and Father, and Father’s suspected substance abuse. Ms. Matthews then developed a service agreement for each parent that included certain tasks that the Department wanted each parent to complete. For both parties, the tasks were: participate in a parenting capacity evaluation and sign all necessary releases; participate in and complete parenting classes; provide proof of stable housing; and provide proof of income. Father’s service agreement included additional tasks: participate in a domestic violence evaluation and a substance
abuse evaluation and follow treatment recommendations; and submit to weekly drug testing. Ms. Matthews presented the service agreements to Mother and Father, but neither party agreed to sign. Mother and Father both insisted that they had already completed some of the tasks. Ms. Matthews asked for proof in the form of documentation, and the parties stated that they would provide that information.
In January 2020, Mr. Woodard contacted the family after receiving a report that Mother had given birth to a child, later identified as So.N. Mr. Woodard asked Mother about the child, but Mother refused to provide any information. When Mr. Woodard asked Father about the child, Father stated that “there is no baby” and that Mother “did not give birth.” Eventually, Mother disclosed the location and circumstances of So.N.’s birth. So.N. was thereafter taken into the custody of the Department and placed with Mr. and Ms. B. in California.
In September 2020, after receiving some documents from Mother and Father, Ms. Matthews created a new service plan that included tasks that still needed to be completed. When Ms. Matthews sent the plan to Mother and Father through their counsel as Mother requested, neither of them signed. In November 2020, Ms. Matthews sent letters to Mother and Father regarding the uncompleted tasks, but neither responded. Ms. Matthews sent additional letters in January 2021. Several months later, Mother responded by providing some, but not all, of the requested documents. By May 2021, Ms. Matthews had received “quite a bit of documentation about the services the parents completed,” so she created updated service plans, with updated tasks, and presented them to Mother and Father. For Mother, the updated tasks included: completing a parental evaluation; participating in ongoing mental health counseling; participating in parent education classes, with a focus on nutrition and sleep; and participating in couples therapy. For Father, the updated tasks included: completing a parental evaluation; completing ongoing drug testing; participating in parent education classes; and participating in mental health therapy. Again, neither parent agreed to sign the service plan.
In March 2021, the Department recommended changing the children’s permanency plan to adoption. Up to that point, the plan had been that the children would be reunified with the parents. The Department recommended the change because, although the parents had completed “quite a bit of the tasks” that had been assigned, the parents still exhibited “a lack of insight in regards to keeping the children safe, safe practices, regular child development.”
In March 2022, Mother completed a psychological evaluation with Alexandra Maribelli, a psychologist. During that evaluation, Mother stated that the children had been removed from her care “because the Department did not agree with swaddling practices that she was implementing.” Mother believed that her swaddling techniques were “appropriate,” and insisted that Ms. B. was the only barrier to reunification with the children. She did not identify housing or income as a barrier to reunification. Mother reported that she was currently in therapy, but when Dr. Maribelli asked if she could contact Mother’s therapist, Mother refused. Based on the results of Mother’s evaluation, Dr. Maribelli concluded that Mother’s
ability to provide consistency and structure for the children was “limited,” that Mother lacked “insight regarding her behavior that brought her children into care,” and that the children were “at a risk for similar disciplinary practices in the future.” Dr. Maribelli also expressed concerns about “the marital dynamic,” noting “the history of domestic violence” and Father’s “anger issues.” Dr. Maribelli concluded that “the children remained at risk” due to Mother’s “lack of insight and lack of understanding into how her own behavior could impact the children.”
In March 2022, Dr. Maribelli attempted to complete a psychological evaluation of Father, but Father refused. According to Dr. Maribelli, when Father arrived for the scheduled evaluation, he “barged” into her office and was “ranting and saying things . . . about [her and] about the judge.” Dr. Maribelli described Father as “aggressive and agitated.” When Dr. Maribelli asked Father if he planned to participate in the evaluation, Father declined. Father then “stormed out and shouted.”
In August 2023, Ms. Matthews created a new service plan that reflected each parent’s progress toward completing the assigned tasks. By that time, Mother had completed the parenting evaluation, the psychiatric evaluation, and the parenting classes. Mother claimed that she was engaged in individual therapy, but did not provide any documentation to support that claim. Father had completed anger management classes and parenting classes, but failed to complete the parenting evaluation and participate in therapy. The couple engaged in two couples counseling sessions in 2019. Neither party had obtained stable housing, provided proof of any income, or signed any of the many services agreements prepared by the Department after the children were removed from their care. When asked about her lack of housing, Mother stated that “her intention was to get an apartment once she knew that the kids were going to return home to her care.” Ms. Matthews believed that Father shared that sentiment.
Regarding the parents’ interaction with the children, Ms. Matthews noted that, from 2019 to 2021, the parents’ visits with the children were limited to video calls, which the parents engaged in “sporadically.” At one point during that period, Mother went six months without speaking to the children. In August 2021, after Mother was acquitted of her pending criminal charges, the parents began traveling to California for in-person visits with the children. The Department arranged those visits and provided funds for the trips. The visits were supervised by Jonathan Ogle, a caseworker with the San Diego Department of Health and Human Services. According to Mr. Ogle, the initial visits were difficult because the children were hesitant to interact with Mother and Father. For some of the visits, the parents brought several shopping carts filled with toys. When Mr. Ogle spoke with the parents and told them not to bring so many toys, there was “no change,” and the parents continued bringing “excessive amounts” of toys.
The parents continued the in-person visits throughout 2022, and the Department continued to arrange the visits and provide funds. In October 2022, the parents’ in-person visitation privileges were suspended by the juvenile court, but that suspension was lifted in the summer of 2023. During
the suspension, the parents engaged in virtual visits. At one point, Mother’s electronic device broke, which hampered her ability to visit with the children virtually, and the Department provided her with a new laptop so that she could continue to participate in virtual visits. The in-person visits resumed in September 2023 following the lifting of the court-ordered suspension, and the Department continued to arrange those visits. Mr. Ogle reported that the more recent visits had “a lot more positive interactions” between the parents and the children.
In the fall of 2023, at a time when the parents were scheduled to visit with the children in California, Father “surprised” Ms. Matthews by showing up at her office in Maryland. When Ms. Matthews asked Father why he was not in California, Father responded that he had “recently come back because of some family discord with [Mother’s] family.” Father stated that he had gotten into an argument with Mother’s brother, who physically attacked Father. Father stated that he did not retaliate because “he did not want to ultimately kill him in the altercation” and “he would not want to have to also . . . kill [Mother] as well because she was present during the altercation.” During that meeting, Ms. Matthews and Father also discussed his part in “not protecting the children . . . at the time when they came into care.” Father stated that he did not agree with “the way they were tied” and that, when he confronted Mother about it, he and Mother got into “a physical altercation” that resulted in Mother having one of her teeth knocked out.
As for the children’s progress in their current placement, Ms. Matthews reported that the children were thriving and had developed a strong bond with their current caregivers, Mr. and Ms. B., and their family. Mr. B. reported that, when he first gained custody of Su.N. and Sa.N., both children had behavioral and developmental issues, including “nightmares,” “trauma,” “acting out,” and being “underweight.” Mr. B. testified that the children started receiving therapeutic services for those issues. Mr. B. noted that Su.N. had recently experienced “outbursts” and “tantrums” in school, but those problems had lessened once Su.N. started receiving supportive services in school. Those services were later suspended after Mother, upon learning about the services, refused to give her consent. Eventually, Mr. and Ms. B. obtained a court order naming them as surrogate parents, and the services were resumed. Mr. B. reported that, after caring for Su.N. and Sa.N. for approximately five years and So.N. for approximately four years, the children were “family,” and he and Ms. B. wanted to provide a permanent home for them. Ms. Matthews stated that she had no concerns about the children’s current well-being or safety. In her case-in-chief, Mother testified that, early on, Su.N. had “sleep issues,” so Mother “became interested in swaddling.” Mother subsequently tried various swaddling devices and techniques. Mother continued those practices after Sa.N. was born. Mother insisted that the swaddling devices she used were commercially available and that she used those devices appropriately. Mother disputed the Department’s description of how the children were being “swaddled.” She admitted that she had used rope to swaddle one of the children because “there’s other cultures that use rope too, like in Saudi Arabia, South Asia and in Japan.” Mother testified that she stopped
using the rope after Ms. Harman advised her against it. When asked how she could assure the court that “these issues would not arise again,” Mother responded, “Well, they’re too old. The way that they are being put to sleep -- they’re too old to go to sleep like that.”
Mother testified that, as of trial, she had completed all required tasks and provided documentation in support. Mother testified that she and Father currently earned an income through “a lead generation company” and that they made between $500 and $10,000 per month. Mother testified that she and Father had approximately $70,000 in savings and that they owned four vehicles, including a Tesla. Mother stated that she and Father currently lived in a one-bedroom apartment in Columbia.
Mother’s brother, K.W., who lived in California, testified that he was willing to provide housing and financial support to the parents. Mother’s other brother, W.W., who also lived in California, told Mother that he would provide housing and support for her in California.
Father provided testimony concerning his difficulties in obtaining housing and income due to his criminal history. He also testified that many of the tasks the Department asked him to complete were the same as the tasks he was required to complete as part of his parole. He therefore believed that the Department would be aware that he had completed the tasks when he provided proof of completion to his parole officer. As to the underlying reasons why the children were removed from the parents’ care, Father testified that he and Mother did nothing wrong, and he felt the children were “kidnapped” by the Department.
Juvenile Court’s Findings
At the conclusion of the hearing, the juvenile court made express findings based on Md. Code (1984, 2019 Repl. Vol.), § 5-323 of the Family Law Article (“FL”), which sets forth the factors a court must consider in ruling on a petition for guardianship. As the court noted, the primary factor a court must consider is “the health and safety of the child.” FL § 5-323(d). The other factors are: (1) the Department’s efforts in providing services, including the extent, nature, and timeliness of those services and the extent to which the Department and parent had fulfilled their obligations under a service agreement; (2) the parent’s efforts at reunification, including the extent to which the parent had maintained contact with the child and the Department, the parent’s contribution to the child’s care, the existence of a parental disability that would make the parent consistently unable to care for the child, and whether additional services would make it feasible for the child to be returned to the parent’s care within 18 months of placement; (3) certain aggravating circumstances, such as whether the parent had abused or neglected the child, whether the mother or child had tested positive for a drug at birth, whether the parent had been convicted of a crime of violence against the child or other parent, and whether the parent had involuntarily lost parental rights to the child’s sibling; and (4) the child’s emotional well-being, including the child’s feelings toward the parent and significant others, the child’s adjustment to their current
placement, the child’s feelings about severing the parental relationship, and the impact that such an act would have on the child’s well-being. FL § 5-323(d)(1)-(4).
(1) Services
Regarding the services offered by the Department, the court found that the services provided to Mother and Father both prior to and following the children’s removal were appropriate and designed to address the concerns raised by the Department and to facilitate reunification. The court noted that, prior to the children’s removal, the parents “declined to take advantage of the majority of the services offered and recommended[.]” The court found that, while the Department fulfilled its obligations under the service agreements, the parents fulfilled only some of their obligations. The court noted that Mother and Father attended only two couples counseling sessions, that Mother failed to provide documentation of her individual counseling, and that neither parent ever provided proof of income or stable housing.
(2) Efforts toward reunification
Regarding the parents’ efforts toward reunification, the court found that both parents had been “highly motivated to participate in in-person visits with the children” and had “taken advantage of any opportunity to do so.” The court was “at a loss as to why the parents have not relocated to California where they could have much more frequent contact with the children,” particularly where multiple family members had “apparently offered [Mother] and Father free housing in that state.” The court found that the “obvious solution was for the parents to move to where the children were as soon as they could, since the children had stability [in] California, and the parents have very little stability in Maryland.”
The court concluded that the parents’ “choice to remain in Maryland further hampers their ability to visit frequently with the children in person.”
The court found that the parents had not made contributions to the children’s reasonable support “to the extent that they are able to.” Father was ordered to pay $300 per month in child support, but had “fallen behind twice, causing his license to be suspended.” The court expressed “concerns with Mother’s credibility regarding her financial circumstances.” The court noted that the parents had “money to purchase and maintain four . . . vehicles and to bring cartloads of toys to the children, but not for computer repairs, child support, rent, or counsel fees.”
The court found that additional services would not likely bring about a lasting parental adjustment so that the children could be returned to the parents’ care within a reasonable time. The court noted that the parents had never acknowledged “that there was any problem with their parenting” or that “tying the older children to the beds was dangerous and not in the children’s best interest.” The court further noted that neither parent had “focused on his or her own behavior toward the children, Mother’s in binding and blindfolding the children and tying them to their beds, and Father’s in not taking action to stop her from doing so.” The court found that, although both parents had complained that
various events outside of their control had hampered the reunification efforts, it was instead “the lack of progress in other areas that makes reunification impossible.” The court found that the parents had “not made significant progress in working on their relationship” and had “not changed their approach to parenting after attending parenting classes and learning about normal child developmental stages and needs.” The court noted that the parents had failed to secure stable housing, demonstrate stable income, or “accept generous offers of financial and housing assistance by Mother’s family in California.” The court observed that, while Mother had “insisted that she [was] seeing a therapist,” she had “refused to divulge the identity of the therapist or allow [the Department] to get verification of the treatment.”
The court also expressed concern “about the parents’ candor with the [c]ourt and with [the Department].” The court found that the “greatest concern regarding candor was Mother and Father’s active attempts to conceal the birth and whereabouts of [So.N.] in January 2020.” The court noted that “Mother knowingly violated the conditions of her pretrial release to leave the state to give birth” and that, when confronted, she “refused to give information.” The court also noted that, after a break during Mother’s trial testimony, “Mother and Father rushed into the [c]ourtroom late holding documents that Mother had created in the law library during the break, in violation of the rule on witnesses.” The court found that “[t]he parents[’] lack of candor makes it difficult . . . to find them credible.”
(3) Aggravating circumstances
Regarding any aggravating circumstances, the court found that Mother had abused and neglected the children. The court cited the incident in 2018, in which Mother had bound both children to their beds. The court noted that, based on the pictures taken at the time, Su.N. appeared “to be in a sleep sack that is too short for her to fully stretch out, with a knit cap pulled down over her eyes.” The court noted that there was a rope “tied around the child with an elaborate knot[,]” that the child’s arms were “inside the device[,]” and that there was “no way to extricate the child quickly in the event of a fire.” The court noted that Sa.N. had been “wrapped tightly” in a sleep device “intended for a much smaller baby.” The court also cited the incident in 2019, in which Mother had again bound the children to their beds. The court noted that, during that incident, Sa.N. was “face down on pillows in a device tied to the bed in a manner that the child was unable to turn over[,]” which “presented a risk of suffocation.”
As to Father, the court found that, while he “disagreed with the children being tied to the bed,” he did not insist that they be untied, but instead “engaged in a domestic violence incident with Mother, resulting in his being removed from the home on a protection order.” The court found that Father had neglected the children’s needs in failing to protect them from Mother’s abuse and neglect.
(4) The children’s emotional well-being
Regarding the children’s current emotional well-being, the court noted that all three children were “extremely young
when they were removed.” The court noted that Su.N. and Sa.N. had not lived with the parents in nearly five years and that So.N. had never lived with the parents. Nevertheless, the court found that the children enjoyed their visits with Mother and Father and “would likely miss the interaction if it ended.” The court had “no doubt that the parents love these children very much and want them returned.”
The court found that the children were very closely bonded with each other and with Mr. and Ms. B. and their family. The court found that the children had adjusted to their current placement, that the children had become members of Mr. and Ms. B.’s neighborhood and community, and that the children had friends and were established at a school. The court found that the children had “a loving stable home with appropriate caregivers[,]” that the children had “gotten services to address their needs,” and that the children had “grown in positive and healthy ways.” The court concluded that the children would be harmed if they were removed from Mr. and Ms. B.’s care and that the likely impact of terminating Mother and Father’s parental rights would be enabling Mr. and Ms. B. to become the children’s adoptive parents, which would “allow these children to have permanency” and “enhance the children’s wellbeing.”
Juvenile Court’s Ruling
Based on those findings, the court determined that “the parents are unfit to remain in a parent[-]child relationship.” The court found “it to be in the best interest of the child[ren] to grant the Department’s petition.” The court ordered that Mother and Father’s parental rights be terminated and that the Department be granted guardianship over the children.
DISCUSSION – MOTHER’S APPEAL Parties’ Contentions
Mother argues that the juvenile court erred and abused its discretion in granting the Department’s guardianship petition and terminating her parental rights. First, Mother claims that the court failed to engage in the requisite analysis, as set forth in the relevant statute, in reaching its decision. Second, Mother claims that the court clearly erred and abused its discretion in finding that she had abused and neglected the children and in finding that the Department had provided appropriate and timely services. Lastly, Mother claims that the court clearly erred and abused its discretion in finding that she was unfit to remain in a parental relationship with the children.
The Department contends that the juvenile court properly considered the mandatory statutory factors and did not abuse its discretion in finding Mother to be unfit. The Department further contends that the services provided to Mother were appropriate.
As discussed in greater detail below, we hold that the juvenile court did not err or abuse its discretion in reaching its decision.
STANDARD OF REVIEW
“‘Maryland appellate courts apply three different but interrelated standards of review’ when reviewing a juvenile
court’s decisions at the conclusion of a termination of parental rights proceeding.” In re Adoption/Guardianship of C.E., 464 Md. 26, 47 (2019) (quoting In re Adoption/Guardianship of Cadence B., 417 Md. 146, 155 (2010)). First, any factual findings made by the court are reviewed for clear error. Id. (quoting In re Adoption/Guardianship of Ta’Niya C., 417 Md. 90, 100 (2010)). “A factual finding is clearly erroneous if there is no competent and material evidence in the record to support it.” Mayor of Balt. v. Thornton Mellon, LLC, 249 Md. App. 231, 238 (2021) (quoting Hoang v. Hewitt Ave. Assocs., LLC, 177 Md. App. 562, 576 (2007)), aff’d 478 Md. 396 (2022). Second, any legal conclusions made by the court are reviewed de novo. C.E., 464 Md. at 47 (quoting Ta’Niya C., 417 Md. at 100). Finally, if the court’s ultimate conclusion is “founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the [court’s] decision should be disturbed only if there has been a clear abuse of discretion.” Ta’Niya C., 417 Md. at 100 (alteration in original) (quoting In re Adoption/Guardianship of Victor A., 386 Md. 288, 297 (2005)). “A decision will be reversed for an abuse of discretion only if it is ‘well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.’” In re J.J. & T.S., 231 Md. App. 304, 345 (2016) (quoting In re Yve S., 373 Md. 551, 583-84 (2003)), aff’d 456 Md. 428 (2017).
Analysis
“Parents have a fundamental right under the Fourteenth Amendment of the United States Constitution to ‘make decisions concerning the care, custody, and control of their children.’” C.E., 464 Md. at 48 (quoting Troxel v. Granville, 530 U.S. 57, 66 (2000)). Moreover, “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.’” In re Adoption/ Guardianship of H.W., 460 Md. 201, 216 (2018) (quoting In re Rashawn H., 402 Md. 477, 495 (2007)).
Nevertheless, parental rights are not absolute, and the presumption in favor of preserving those rights may be rebutted “by a showing that the parent is either unfit or that exceptional circumstances exist that would make the continued relationship detrimental to the child’s best interest.” Id. at 217 (quoting Rashawn H., 402 Md. at 498). “When it is determined that a parent cannot adequately care for a child, and efforts to reunify the parent and child have failed, the State may intercede and petition for guardianship of the child pursuant to its parens patriae authority.” C.E., 464 Md. at 48. “The grant of guardianship terminates the existing parental relationship and transfers to the State the parental rights that emanate from a parental relationship.” Id. (citing Rashawn H., 402 Md. at 496).
As noted, before terminating parental rights, the juvenile court must consider the factors set forth in FL § 5-323(d), while giving “primary consideration to the health and safety of the child[.]” If, after considering those factors, the court “finds by clear and convincing evidence that a parent is unfit to remain in a parental relationship with the child or that exceptional circumstances exist that would make a continuation of the parental relationship detrimental to the best interests of the
child,” the court may terminate the parental relationship and grant guardianship of the child to the Department. FL § 5-323(b).
A.
Mother first argues that the juvenile court failed to follow the dictates of FL § 5-323 in terminating her parental rights. Mother insists that, before the court could begin any “best interest” analysis, it first needed to overcome the presumption that a child’s best interests are served by maintaining the parental relationship. Mother contends that the court conflated the two analyses by discussing the children’s best interests prior to making the threshold determination regarding the parental presumption.
We find no merit to Mother’s claims. As discussed, the proper analysis, as set forth in FL § 5-323, is a two-step process. First, the court must consider the factors enumerated in the statute. Then, after considering those factors, the court may terminate the parental relationship if it finds either that the parent is unfit to remain in a parental relationship or that exceptional circumstances exist that would make continuing the parental relationship detrimental to the child’s best interests. That is precisely what the court did here.
To be sure, in considering the factors set forth in FL § 5-323, the court did, at times, discuss the children’s best interests. Nevertheless, there is nothing to suggest that the court “conflated” its analysis, and we note that the court appropriately stated that its analysis gave “primary consideration to the health and safety” of the children. Given the nature of some of the factors, it was only natural that the court would allude to the children’s best interests in discussing those factors. E.g. FL § 5-323(d)(2) (requiring the court to consider “the results of the parent’s effort to adjust the parent’s circumstances, condition, or conduct to make it in the child’s best interests for the child to be returned to the parent’s home”); § 5-323(d)(4)(i) (requiring the court to consider “the child’s emotional ties with and feelings toward the child’s parents, the child’s siblings, and others who may affect the child’s best interests significantly”); § 5-323(d)(4)(iv) (requiring the court to consider “the likely impact of terminating parental rights on the child’s well-being”).
The Maryland Supreme Court has recognized that “[t]he same factors that a court uses to determine whether termination of parental rights is in the child’s best interest under the TPR statute equally serve to determine whether exceptional circumstances exist.” C.E., 464 Md. at 51 (quoting Ta’Niya C., 417 Md. at 104). Thus, in discussing the FL § 5-323(d) factors, the court looks to both the child’s best interest as well as parental unfitness and exceptional circumstances. We discern no error in the court’s analysis here.3
B.
Mother next argues that the juvenile court erred and abused its discretion in finding that she had abused and neglected the children. Mother notes that the sole basis for the court’s finding was her “swaddling methods.” Mother disputes the Department’s evidence and argues that her “swaddling” did not constitute abuse.
We hold that the juvenile court did not err or abuse its
discretion in finding that Mother had abused and neglected Su.N. and Sa.N. “Abuse” is defined, in pertinent part, as “the physical or mental injury of a child under circumstances that indicate that the child’s health or welfare is harmed or at substantial risk of being harmed by . . . a parent[.]” FL § 5-701(b). Neglect is defined, in pertinent part, as the “failure to give proper care and attention to a child by any parent . . . under circumstances that indicate: (1) that the child’s health or welfare is harmed or placed at a substantial risk of harm; or (2) mental injury to the child or a substantial risk of mental injury.” FL § 5-701(s).
Here, the juvenile court received testimonial and photographic evidence establishing that, on one occasion, Mother had bound both Sa.N. and Su.N. in their beds, with Sa.N. being tied to her bed “in a very aggressive manner that could have resulted in death,” while Su.N. was in a different bed, a hat was “pulled over her face,” and “she was tied up with rope around her torso and that rope was then tied to . . . a bed.” Six months later, Mother had again bound the children in their beds. Su.N. was “lying face down” and had “a cloth tied around her torso area . . . in a knot fashion . . . which was tied to the bed” in a manner that “would make it extremely difficult to be removed quickly and efficiently” in an emergency. Sa.N. was also “positioned face-down on her stomach[,]” and she had “a white cloth wrapped around her upper back area, which [was] wrapped around the bed restraining her down to the bed” in a manner that made it “extremely hard to breathe” and “would make the child . . . possibly choke on any spit-up.” After the children were removed from the home and sent to live with Mr. and Ms. B., the children exhibited signs of “trauma” and had issues with “nightmares” and “acting out.”
From that, the juvenile court had ample evidence to conclude that Mother had both abused and neglected Su.N. and Sa.N. The court was under no obligation to accept Mother’s version of events, nor was the court required to accept Mother’s articulated reasons as to why she bound the children. Accordingly, the court did not err or abuse its discretion in finding that Mother had abused and neglected the children.
C.
Mother next claims that the juvenile court erred and abused its discretion in finding that the Department had provided appropriate and timely services. Mother contends that the services offered by the Department were “pro forma” and not “specifically targeted at the behavior that brought the children into care,” which was her act of “swaddling” the children. Mother argues that the Department should have connected her “with a specialist to address child sleep issues” and employed “an in-home aide” and “parenting coach.”
We reject Mother’s arguments. To be sure, when a juvenile court considers the services provided by the Department, the court should be mindful that a “reasonable level of those services [must be] designed to address both the root causes and the effect of the problem[.]” Rashawn H., 402 Md. at 500. That said, the Department’s efforts “need not be perfect, but are judged on a case-by-case basis.” H.W., 460 Md. at 234 (citation omitted). Moreover, the Department “need not expend futile
efforts on plainly recalcitrant parents[.]” In re James G., 178 Md. App. 543, 601 (2008). In other words, although the Department must provide reasonable assistance in helping a parent ameliorate the impediments to reunification, the Department’s “duty to protect the health and safety of the children is not lessened and cannot be cast aside if the parent, despite that assistance, remains unable or unwilling to provide appropriate care.” Rashawn H., 402 Md. at 500- 01.
Here, the record shows that the Department provided reasonable assistance and that Mother was unable or unwilling to provide appropriate care despite that assistance. When the Department first made contact with Mother in December 2017 following Su.N.’s birth, the Department offered various services after Mother was seen taking supplies from the hospital, but Mother failed to avail herself of those services. The Department again offered services in March 2018 after Mother complained that she was having trouble taking care of the children, and Mother failed to avail herself of those services as well. Then, when the Department came into contact with Mother in June 2018 after finding Su.N. and Sa.N. tied to their beds, the Department had Mother sign a safety plan, which instructed her to use appropriate sleeping devices and to participate in a parenting program and counseling. The Department later closed the case because it was unable “to make contact with the family and have them follow through with any of the recommendations with counseling.” Mother continued binding the children in their beds, which resulted in their removal from the home in January 2019. From that point forward, the Department offered myriad services aimed at appropriate parenting practices, including parenting classes, a parental evaluation, and therapy, all of which were presented to Mother in the form of various service agreements, none of which Mother agreed to sign. Importantly, despite the Department’s reasonable efforts, Mother consistently maintained that her practice of binding the children in their beds was appropriate and not a cause for concern.
From that, the juvenile court could appropriately conclude that the Department had made reasonable efforts at addressing the behavior that brought the children into care, and that additional services would likely have had little discernible impact on that behavior. Accordingly, the court did not err or abuse its discretion in finding that the Department had provided appropriate and timely services prior to the termination of Mother’s parental rights.
D.
Mother next argues that the juvenile court erred and abused its discretion in finding that she was unfit to remain in a parental relationship with the children. Mother contends that the evidence adduced at trial was “contrary to such a finding” and that there was “no evidence” that the children would be harmed if they were returned to Mother’s care.
We reject Mother’s claims. As noted, the court carefully and comprehensively considered the requisite statutory factors before reaching its ultimate conclusion that Mother was unfit. Regarding the services offered by the Department and Mother’s response to those services, the court found that the services provided by the Department were appropriate,
that Mother failed to take advantage of the majority of those services, and that Mother failed to provide key documentation regarding proof of counseling, income, and stable housing.
Regarding the parents’ efforts toward reunification, the court found that, although Mother appeared “highly motivated” to visit with the children, she inexplicably failed to take advantage of several offers of housing and financial support from relatives in California. The court found that Mother had never acknowledged that there was a problem with her tying the children to their beds and that Mother had not made any progress toward altering her behavior, despite “attending parenting classes and learning about normal child developmental stages and needs.” The court noted that Mother had failed to secure stable housing, demonstrate stable income, or work toward improving her and Father’s relationship, which was marked by a history of domestic violence. The court also noted that Mother had serious credibility issues stemming from the events surrounding So.N.’s birth, in which Mother “knowingly violated the conditions of her pretrial release to leave the state to give birth” and then, when confronted, refused to disclose So.N.’s location.
Regarding any aggravating circumstances, the court found that Mother had abused and neglected the children. The court cited the incidents in 2018 and 2019, in which Mother had bound Su.N. and Sa.N. to their beds.
As to the children’s current emotional well-being, the court noted that all three children were “extremely young when they were removed,” that Su.N. and Sa.N. had not lived with the parents in nearly five years, and that So.N. had never lived with the parents. Although the court believed that the children enjoyed their visits with Mother and would likely miss those interactions, the court concluded that the children would be harmed if they were removed from Mr. and Ms. B.’s care. The court noted that the children were very closely bonded with each other and with Mr. and Ms. B. and their family, that the children had adjusted to their current placement, that the children had become members of Mr. and Ms. B.’s neighborhood and community, and that the children had friends and were established at a school. The court noted that the children had “a loving stable home with appropriate caregivers,” that the children had “gotten services to address their needs,” and that the children had “grown in positive and healthy ways.” The court reasoned that terminating Mother and Father’s parental rights would allow Mr. and Ms. B. to become the children’s adoptive parents, which would “allow these children to have permanency” and “enhance the children’s wellbeing.”4
Given those findings, none of which was clearly erroneous, we cannot say that the court erred or abused its discretion in concluding that Mother was unfit to remain in a parental relationship with the children.
DISCUSSION – FATHER’S APPEAL
Father’s appellate argument centers on his lack of representation during the TPR hearing. By way of background, in February 2020, after the Department filed the CINA petition for So.N., Father retained counsel to represent him during those proceedings. In September 2022, Father’s counsel filed
a motion to strike her appearance. Counsel stated that she “had to obtain a Peace Order against . . . Father” and that she was “no longer permitted to represent him in this matter.”
Counsel noted that she had been advised by the Office of the Public Defender (“OPD”) that it was Father’s responsibility to contact OPD regarding new counsel. Counsel stated that she had informed Father of his responsibility to contact OPD. On September 20, 2022, the juvenile court struck counsel’s appearance.
On October 12, 2022, Father returned to court for one of the hearings on his and Mother’s exceptions to the magistrate’s recommendation that the children’s permanency plans be changed. At the start of that hearing, the court noted that Father was unrepresented by counsel, and asked Father if he planned to represent himself. Father stated that he wanted to retain an attorney. The court ultimately decided to continue the proceedings so that Father could obtain an attorney.
On January 11, 2023, Father returned to court for a continuation of the exceptions hearing. Father represented himself in those proceedings.
On June 23, 2023, the Department filed TPR petitions for each child. That same day, the juvenile court issued a show cause order, which was later served on Father. The show cause order stated that Father had a right to an attorney and that, if he could not afford one, an attorney may be appointed by the court. The show cause order also stated that, if Father believed he was entitled to a court-appointed attorney, he was required to notify the court within 30 days of service.
Father thereafter filed a “Notice of Objection” form for each TPR petition, objecting to the termination of his parental rights. Each of those forms instructed Father to indicate, by way of a checkmark, whether he did or did not want the court to appoint an attorney to represent him. Father did not check either option on any of the forms.
On July 26, 2023, the court held a pre-trial status hearing. Father did not attend that hearing.
On November 8, 2023, the court held another pre-trial status hearing. Father was present for that hearing. At the beginning of the hearing, Father stated that he “would like to have representation.” The court asked Mother’s counsel, an OPD attorney, what Father would need to do to obtain counsel from OPD, and Mother’s counsel responded that Father
could call counsel’s office. After counsel for the Department objected to any delay in the proceedings, the court made the following comments:
No one’s requesting a postponement today. So we’re not going to jump over that broom just right now. I have had numerous circumstances where people get attorneys at the 11th hour just to represent their point of view at trial. It’s often very helpful to . . . self-represented parties to have someone who can appropriately bring their issues before the [c]ourt.
The court then asked Mother’s counsel if he would give Father OPD’s contact information, and counsel agreed. The court stated that it wanted Father “to have an opportunity to apply for legal counsel,” but the court reiterated that there was “no one here asking for a postponement.” The court then
confirmed that trial would begin on December 4, 2023. At no time did Father object or otherwise indicate that he was dissatisfied with the court’s handling of the matter. In fact, the court expressly asked Father if he had any objection to starting the TPR hearing on December 4, and Father answered in the negative, stating “I just have the objection that it’s five years later.”
On November 27, 2023, Father filed a motion to postpone. Father stated that he had contacted OPD and that OPD had informed him that it did not have enough time to prepare for trial. Father stated that he and OPD needed more time to prepare.
On November 28, 2023, the juvenile court entered a written order denying Father’s postponement request. The court noted that Father had failed to request an attorney when filing his notice of objection in July 2023. The court further noted that, when Father did finally request counsel at the hearing on November 8, 2023, he did not request a postponement. Rather, the court explained, “[i]t was not until November 27, 2023, one week before the December 4, 2023 trial date, four months after he was advised of his right to request the [c]ourt to appoint counsel in the TPR case, that [Father] filed his request for postponement to obtain counsel.” Based on those findings, the court declined to postpone the TPR hearing.
On December 4, 2023, the parties returned to court for the start of the TPR hearing. Father represented himself for the remainder of the proceedings. In so doing, Father made opening and closing remarks, presented evidence, and called and cross-examined witnesses.
Parties’ Contentions
Father now claims that the juvenile court erred and abused its discretion in denying his request for a postponement and in proceeding with the TPR hearing with Father unrepresented. Father contends that he had a right to counsel during the TPR proceedings and that the court was therefore obligated to consider a reasonable postponement so that he could obtain counsel. Father also contends that the court should have inquired as to his “application, eligibility, and/or denial of counsel from [OPD]” before proceeding with the TPR hearing. Father insists that the court’s actions violated his “fundamental due process rights to defend his right to parent” and “impacted the [c]ourt’s ability to objectively and impartially receive and assess evidence under a clear and convincing standard.”5
The Department contends that Father waived his right to counsel by waiting until one week before trial to ask for a postponement. The Department avers that the court did not abuse its discretion in denying Father’s postponement request.
Analysis
Md. Code (2001, 2018 Repl. Vol.), § 16-204(b)(1)(vi) of the Criminal Procedure Article states that the OPD must provide representation to an indigent parent in a proceeding involving the termination of parental rights.6 But, like a defendant in a criminal case, a parent in a TPR proceeding may waive his or her right to counsel, either affirmatively or through inaction. See In re Alijah Q., 195 Md. App. 491 (2010); Peterson v. State, 196 Md. App. 563, 573-74 (2010) (discussing waiver of counsel
through inaction in a criminal case). And, because an indigent parent’s right to counsel is statutory and not constitutional, a waiver of that right need not satisfy the “voluntary, knowing, and intelligent” standard. In re Alijah Q., 195 Md. App. at 51920. Nevertheless, “certain minimal protections must govern the waiver of counsel[.]” Id. at 519.
In addition, when a proceeding involves an intrusion upon an individual’s fundamental right to parent, that proceeding must comport with basic due process requirements. In re Blessen H., 163 Md. App. 1, 15-16 (2005), aff’d 392 Md. 684 (2006). The process due a parent in that situation is determined by three factors: (1) “the private interest that will be affected by the official action;” (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards;” and (3) “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Id. at 19 (quoting Matthews v. Eldridge, 424 U.S. 319, 335 (1976)).
Applying these principles to the instant case, we hold that Father waived his right to counsel and that the juvenile court afforded him the requisite due process in preserving that right. The record shows that Father was represented by counsel from February 2020, shortly after the CINA proceedings for So.N. were initiated, to September 2022, when Father’s counsel withdrew her appearance. At that time, Father’s counsel informed him of his responsibility to contact OPD to obtain substitute counsel. In October 2022, Father returned to court unrepresented, and the juvenile court continued the proceedings so that Father could obtain an attorney. In January 2023, Father again returned to court unrepresented, at which time Father stated that he would be representing himself.
Then, in June 2023, after the Department filed TPR petitions for each child, Father was served with a show cause order, which stated that Father had a right to an attorney; that, if he could not afford one, an attorney may be appointed by the court; and that, if Father believed he was entitled to a courtappointed attorney, he was required to notify the court within 30 days of service. When Father thereafter filed a “Notice of Objection” form for each TPR petition, he failed to indicate that he wanted an attorney, even though each form instructed Father to indicate, by way of a checkmark, whether he did or did not want the court to appoint an attorney to represent him. The form is short, and the portion concerning a request for counsel is conspicuous, encompassing half the length of the form, making it unlikely that someone filling out the form could accidentally overlook that portion. Moreover, Father actually knew that he had a right to counsel in these types of cases, as evidenced by the record. Father had an additional opportunity to request counsel at the pre-trial hearing on July 26, 2023, but Father did not attend that hearing. It was not until the pre-trial status hearing on November 8, 2023, nearly five months after the TPR petitions were filed and less than a month before trial, that Father stated that he “would like to have representation.” As soon as Father made that request, the court asked Mother’s counsel, an OPD attorney, to provide Father with the requisite information for Father to obtain counsel from OPD. Although
the court noted that it would be “very helpful” for Father to have the assistance of counsel, the court indicated that Father was a “self- represented party.” The court further made clear that “no one’s requesting a postponement” and that the TPR hearing would begin on December 4, to which Father affirmatively stated that he had no objection and voiced his belief that the proceedings had already taken too long. Then, on November 27, 2023, one week before the TPR hearing was set to begin, Father asked for a postponement, stating that he had contacted OPD, that OPD had informed him that it did not have enough time to prepare for trial, and that, consequently, he and OPD needed more time to prepare. The court denied the motion, and the TPR hearing was held as scheduled. Father, representing himself, fully participated in the proceedings, making opening and closing remarks, presenting evidence, and calling and cross-examining witnesses.
Under these circumstances, we hold that Father waived his statutory right to counsel. Father was repeatedly advised, both during the CINA proceedings and the TPR proceedings, about his right to counsel and his duty to seek representation from OPD, and Father was afforded myriad opportunities to exercise that right. Despite those advisements and opportunities, Father did not ask for an attorney until a few weeks before the TPR hearing was set to begin. Moreover, after Father requested an attorney, the court asked Father if he had any objections to starting the TPR hearing on December 4, and Father affirmatively stated that he had no objection and that he would have preferred if the hearing had occurred much sooner, suggesting that he did not want a postponement. As such, we cannot say that the court erred or abused its discretion in holding the TPR hearing as scheduled with Father unrepresented.
Father argues that the juvenile court should have inquired into his application or eligibility for counsel at the TPR hearing on December 4. We disagree. In his motion to postpone, Father indicated that he had already spoken with OPD and that, while OPD had agreed to represent him, it needed more time. Therefore, there was no need for the court to inquire further about Father’s application or eligibility for counsel from OPD. Regardless, Father cites no authority indicating that a court is required, or even encouraged, to make such an inquiry under the circumstances presented here.
We also hold that Father’s statutory right to counsel and attendant fundamental right to parent were afforded the requisite due process. Again, Father was given ample warning and opportunity regarding his right to counsel, and yet he waited until the eleventh hour to exercise that right. Furthermore, although Father’s rights are important and should be preserved, those rights do not exist in a vacuum. In a TPR case, a juvenile court must balance those rights against the child’s best interests, which are “paramount.” In re Adoption of Jayden G., 433 Md. 50, 82 (2013). “A critical factor in determining what is in the best interest of a child is the desire for permanency in the child’s life.” Id. To that end, courts are encouraged to make every reasonable effort to effectuate a permanent placement for a child within 24 months after initial placement, and courts have a statutory duty to rule on a TPR petition within 180 days of filing. Id. at 79-84; FL § 5-319(a).
Given that So.N. had been in foster care for nearly four years and the other two children had been in foster care for nearly five years, and given Father’s consistent failure to exercise his right to counsel in a timely fashion, the court afforded Father all the process he was due.
For many of the same reasons, we hold that the juvenile court did not err or abuse its discretion in denying Father’s postponement request. Maryland Rule 2-508(a) states that, “[o] n motion of any party or on its own initiative, the court may continue or postpone a trial or other proceeding as justice may require.” “[T]he decision to grant a continuance lies within the sound discretion of the trial judge.” Touzeau v. Deffinbaugh, 394 Md. 654, 669 (2006). “We review the trial court’s decision for an abuse of discretion and ‘unless [the] court acts arbitrarily in the exercise of that discretion, [its] action will not be reviewed
on appeal.” Serio v. Baystate Props., LLC, 209 Md. App. 545, 554 (2013) (alterations in original) (quoting Das v. Das, 133 Md. App. 1, 31 (2000)). “An abuse of discretion occurs ‘where no reasonable person would take the view adopted by the court’ or if the court acts ‘without reference to any guiding rules or principles.’” Id. (quoting North v. North, 102 Md. App. 1, 13 (1994)).
Here, the juvenile court denied Father’s postponement request because: Father failed to request an attorney when filing his notice of objection in July 2023; Father failed to request a postponement at the hearing on November 8, 2023; and Father waited until November 27, 2023, one week before trial, to ask for a postponement. For all the reasons previously discussed, we hold that the juvenile court did not abuse its discretion in denying Father’s request.
JUDGMENT OF THE CIRCUIT COURT FOR HOWARD COUNTY AFFIRMED. COSTS TO BE PAID BY
FOOTNOTES
1 Md. Code (1974, 2020 Repl. Vol.), § 3-801(f) of the Courts and Judicial Proceedings Article (“CJP”) defines “child in need of assistance” as “a child who requires court intervention because: (1) [t]he child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and (2) [t]he child’s parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and the child’s needs.”
2 During a hearing in October 2022, the children’s attorney reported that the parents had filed CPS reports against Mr. and Ms. B. Mr. B. testified that the parents had shown up to the children’s school unannounced. As a result, the court suspended the parents’ in- person visitation. The parents appealed the order, and this Court reversed in May 2023.
3 To the extent that Mother is claiming that the court failed to properly consider each factor, we find no merit to that claim, either. The record makes plain that the juvenile court carefully and expressly considered all relevant statutory factors before making its determination regarding parental fitness.
4 Mother’s argument that the court improperly focused on fitness to have custody rather than fitness to maintain a parental relationship is misplaced. The findings by the court that Mother references as indicative of this improper focus were part of the court’s analysis of the final two FL
§ 5-323(d) factors—“the child’s feelings about severance of the parent-child relationship” and “the likely impact of terminating parental rights on the child’s well-being.” The court found that Mother and Father were “unable or unwilling to make the changes necessary to be safe and appropriate parents,” that “the children would be harmed if they were to be removed” from Mr. and Ms. B.’s home, and that the children “have a loving and stable home with appropriate caregivers.” In making these findings, the court was focused on the children’s “right to reasonable stability in their lives.” See Rashawn H., 402 Md. at 501. Stability is best achieved by allowing the children to be adopted by Mr. and Ms. B., rather than lingering in foster care waiting for the unlikely time when Mother and Father are able to be “safe and appropriate parents.”
5 Father complains that the juvenile court “abused [its] discretion by making speculative financial eligibility determinations” regarding his right to counsel from OPD. The court made no such findings. In its written opinion, the court noted, in a footnote, that “Mother testified that the parties make $500 to $10,000 per month.” The court then stated: “if that is true, Father likely would not have qualified for a court appointed attorney.”
6 In his brief, Father relies on CJP § 3-813 and Maryland Rule 11-207. That reliance is misplaced, as that statute and rule pertain to CINA proceedings, not TPR proceedings.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Montgomery County Circuit Court’s increase of father’s monthly child support obligation. Given that mother did not present any evidence of health insurance expenses other than her financial statement and testimony, the record does not support the circuit court’s determination that her monthly expense is $242.
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.
respects. Id. at 9,11.
The events the led to this appeal occurred while Father’s appeal Tyler I was still pending in this Court. During an evidentiary hearing on October 7, 2022, the circuit court addressed Mother’s related petition to modify Father’s child support obligation in light of the custody change. In an order on November 21, 2022, the circuit court: 1) increased Father’s child support obligation to $554 per month; 2) established unpaid child support in the amount of $1,608.39 through August 3, 2022; and 3) required Father to pay $481.22 for dental services rendered to the Child in March and May of 2019—the same payment that we vacated in our prior decision. Id. at 8. Father noted this timely appeal from the child support order entered November 21, 2022.1 He raises four issues that we restate as follows:
I. Did the circuit court commit clear error in miscalculating Father’s child support obligation based on mistakes regarding the Child’s health insurance expenses and by imputing income to Father despite his “leave without pay” employment status?
Appellant, Jermaine C. Tyler (“Father”), and appellee, Natasha Charisse Hewlett (“Mother”), are the parents of a child born April 14, 2012 (the “Child”). They divorced in June 2019, litigated a prior appeal to this Court, and now return on Father’s appeal from the underlying order modifying his child support obligations.
In the prior appeal, we reviewed the child custody order entered by the Circuit Court for Montgomery County on August 3, 2022, on Mother’s petition for contempt and to modify custody. See Tyler v. Hewlett, No. 1486, slip op. at 1 (Md. App. filed June 12, 2023) (hereafter cited as “Tyler I”). The August 3 judgment held Father in contempt for nonpayment of child support obligations and entered a purge amount of $713 reflecting Father’s then child support arrearage; modified physical and legal custody by awarding Mother sole legal and primary residential custody with visitation for Father; and ordered Father to pay his share of extracurricular activities and extraordinary medical expenses incurred after the judgment of absolute divorce entered on June 24, 2019. Id. at 1, 6. In Tyler I, we vacated the court’s judgment with respect to the extraordinary medical expenses after determining that the order directing Father reimburse Mother $481.22 for dental services rendered to the Child in March and May of 2019 was barred by the doctrine of res judicata because Mother should have litigated Father’s obligation to pay those expenses during the evidentiary hearing preceding the divorce judgment. Id. at 8-9. We directed the circuit court, on remand, to enter a new judgment against Father in the amount of $3,728 for those expenses, and affirmed the court’s judgment in all other
II. Did the circuit court err in entering judgment against Father for $481.22, as reimbursement for the Child’s dental expenses?
III. Did the circuit court demonstrate bias that warranted granting Father’s motion seeking recusal?
IV. Did the circuit court err in denying Father’s motion to alter or amend the judgment, or in the alternative for a new trial?2
For reasons that follow, we will affirm the circuit court’s decisions to modify child support and to deny Father’s demand for recusal. But we must vacate and remand the Child Support Order entered November 21, 2022, for recalculation of the amounts Father owes in monthly child support and child support arrearage.
BACKGROUND
As we recounted in Tyler I, when Mother and Father divorced in June 2019, they consented to joint legal custody and shared physical custody on a “week-on-week-off basis,” with Father paying monthly child support of $31. See Tyler I, slip op. at 1. In January 2022, Mother filed a petition for contempt, alleging Father failed to pay child support, accompanied by a motion seeking to modify custody and child support, alleging, among other things, that the Child was missing school and treatment for health issues when in Father’s care. Id . at 2. After a hearing, the circuit court entered the Child Custody Order on August 3, 2022.
As reflected in the order, the court found Father in contempt
for willfully refusing to pay child support. See id. To purge the contempt, the court ordered Father to pay $713 in monthly child support arrears; $4,209.22 for his half of extraordinary medical expenses incurred for dental, orthodontic, and therapy services; and $177.50 for half of the Child’s extracurricular activities. The court also found that there was a material change in circumstances warranting modification of custody, and then awarded Mother sole legal and primary physical custody, with Father having the Child on three weekends per month and specified summer vacation and holiday dates. Because “[n]o evidence was submitted regarding child support[,]” the court set a hearing on child support. Meanwhile, Father noted a timely appeal to this Court.
On October 7, 2022, while Father’s appeal in Tyler I was pending, the circuit court held a hearing on Mother’s request to modify Father’s child support obligation based on the material change in physical custody. The presiding judge denied Father’s motion to recuse on ground of bias. At the conclusion of that hearing and by order entered November 21, 2022, the court increased Father’s monthly child support to $554. The court also entered judgment against Father for $1,608.39 in child support arrearage as of August 3, 2022, and for “$481.22 for reimbursement of dental expenses[.]” Father noted this timely appeal.
We include additional facts concerning the underlying child support order in our discussion.
STANDARDS GOVERNING REVIEW
The circuit court “may modify a child support award subsequent to the filing of a motion for modification and upon a showing of a material change of circumstance.” Maryland Code (1984, 2019 Repl. Vol., 2023 Supp.), Family Law Article (“FL”), § 12-104(a). As this Court has explained, this means there must be “an affirmative showing of a material change in circumstances in the needs of the children or the parents’ ability to provide support.” Payne v. Payne, 132 Md. App. 432, 442 (2000) (citations omitted). Even when modification is warranted, courts “may not retroactively modify a child support award prior to the date of the filing of the motion for modification.” FL § 12-104(b); see Damon v. Robles, 245 Md. App. 233, 240 (2020). A decision to modify child support “is left to the sound discretion of the trial court, so long as the discretion was not arbitrarily used or based on incorrect legal principles.” Walker v. Grow, 170 Md. App. 255, 266 (2006) (quotation marks and citation omitted).
“[T]here is a strong presumption . . . that judges are impartial participants in the legal process, whose duty to preside when qualified is as strong as their duty to refrain from presiding when not qualified. Consequently, the decision to recuse oneself ordinarily is discretionary and will not be overturned except for abuse.” Conner v. State, 472 Md. 722, 738 (2021) (internal citations and quotations omitted).
DISCUSSION
I. Modification of Father’s Child Support Obligation Father challenges the circuit court’s increase of his monthly child support obligation to $554 and the corresponding arrearage judgment of $1,608.39 as of August 3, 2022. In his
view, the circuit court “used a legally improper and inequitable process in determining [his] income” given the “non-pay status” of his employment and also “erred in the determination of the health insurance expense included in the calculation[.]”
After reviewing the hearing record, we address the imputed income and health insurance challenges in turn. For reasons that follow, we conclude that the court did not err in imputing income to Father but that the evidentiary record does not support the health insurance expense that the court used to calculate Father’s child support obligation.
A. The Relevant Record
The record contains conflicting evidence concerning expenses for the Child’s health insurance. First, the Child Support Worksheet from a hearing on March 8, 2022 (regarding Mother’s contempt petition and motion to modify custody and support) shows that the circuit court factored into its support calculation $293 for Mother’s health insurance expenses and $230 for Father’s.
Second, for the child support hearing on October 7, 2022, Mother presented her financial statement dated October 4, which itemized her monthly medical/dental expenses as follows:
Third, in Father’s financial statement for the October 7 hearing, he listed the amount of health insurance expense attributable to his two children as $212, which is half of his total monthly health insurance expense of $424.
Fourth, during the October 7 hearing, when asked how she calculated the cost of the Child’s health insurance, Mother explained that she estimated that 30 percent of her monthly premium was attributable to coverage for the Child, based on the cost of adding him to her plan:
THE COURT: Okay. And the amount that you have for health insurance, that’s just for your child?
[MOTHER]: Yeah. I separated it out. So if you look at my earnings statements, you’ll see that I pay $252 per pay period. When you total that up, it’s about $500. I separated it out, about 30 percent for the [C]hild, because if I was on my own, I would probably be paying 30 percent less. If that makes sense.
THE COURT: Probably?
[MOTHER]: Yeah. It’s – when you look at the figures, it depends if you do plus one or family. I did plus one, so it was a little higher for the plus one rather than doing family. And I can’t change it now.
THE COURT: Okay. Do you have anything to indicate what the family and the family plus one is?
[MOTHER]: I do not, Your Honor. I didn’t bring that with me.
THE COURT: Okay. So explain how you got to the health insurance number for . . . . you[r] son. Just explain again how you got to that number.
[MOTHER]: Yeah. Based off of my previous – because I did this before where I break it down and I did bring in the actual breakdown and I just completely forgot today.
But it’s around 30 percent that you’re paying for a difference, a 30 percent difference. So when I did that, I took out –
THE COURT: Thirty percent difference from – [MOTHER]: From doing single.
THE COURT: From one to –[MOTHER]: Just one person to move into individual plus one. Self plus one. That’s what it’s called. Self plus one.
[COUNSEL FOR FATHER]: Your Honor, I’m going to object on the grounds that there is a -- there’s best evidence of the answers to these questions rather than her speculation or approximation, would be the actual chart for the insurance company.
THE COURT: Mm-hm.
[COUNSEL FOR FATHER]: Her testimony isn’t really admissible given the fact that there is a readily available resource[] that she could have brought but didn’t bring today to prove that number.
THE COURT: Right. I’m just asking . . . her how she got to figures that are on the financial statement . . . that’s already received.
[MOTHER]: Mm-hm.
THE COURT: So I just want to know how you got to them. [MOTHER]: Right.
THE COURT: It is a problem. [MOTHER]: Okay.
THE COURT: But I’m going to overrule the objection because of the nature of my question. This is just what did you do to get to this figure. Okay.
[MOTHER]: Yes, Your Honor. Mm-hm.
THE COURT: So you said there was a 30 percent difference . . . . [MOTHER]: Yes, Your Honor.
At the hearing, Father testified with respect to his employment income, and presented supporting documentation. Beginning around August 28, 2022, he was placed on leave without pay from his job with the United States Treasury. When asked about his prospects for receiving pay soon, Father testified that he “d[id] not have full confidence,” citing “the federal investigation into my EEO matter” involving “discrimination[,]” which he expected to lead to “[t]ermination.” Although he admitted that he was “not unable to work,” he did not have a plan for reemployment or any current income.
On cross-examination, Father confirmed the itemized expenses on his updated financial statement, including the monthly amounts he budgeted for dining out with his two sons ($440 for his one-year-old and the Child); the Child’s allowance ($100); the Child’s cell phone ($65 for a second phone not provided by Mother); and childcare for his younger son ($1,000). Father also testified that he recently sold his house, then contributed $75,000 in sale proceeds to his fiancée for her purchase of a house, but clarified that even though he included a $27,000 mortgage liability on his financial statement, he is not a party to that mortgage. He also admitted that he used sale proceeds to prepay some of the monthly expenses itemized on his October 4 financial statement, including his younger son’s “childcare for the remainder of the year[,]” as well as his “TV and internet[.]”
In the court’s Child Support Obligation Worksheet (dated October 7, 2022, and filed with the court’s child support order on November 21, 2022), Father’s “Monthly Actual Income-Before
Taxes” is listed as $10,089. Mother’s health insurance expense for the Child is listed as $242. There is no health insurance expense itemized for Father. The recommended amount of child support for Father is $554.
After reviewing the evidence regarding income and expenses in light of the new custody schedule, the court concluded that Father should pay $554 in monthly child support, explaining:
With respect to the incomes, I calculate [Mother’s] income at $13,799.20 a month; and that’s from the pay statement, as well as the monthly earning VA earnings. . . .
[Father], with respect to [Father], the leave without pay to me connotes a temporary circumstance. I have no idea of the circumstances really of the leave, how long, or even why, except that he asserts it’s relating to an EEO action. I’m not willing to accept that [Father] earns no income based on his unsupported testimony, especially given his financial statement, which I have considered that was signed four days ago. His assertion that he incurs expenses of $9,910 a month; that he says his . . . [fiancée] isn’t paying any of his bills, and she lives with him, so I can infer that he’s paying her expenses. He has at least $12,459 in savings according to his financial statement.
He indicates that he’s incurring a number of expenses. He’s able to keep up, pay $160 for lawn and yard care; so, you know, he wants to make sure the home looks pretty. He pays for his therapist. I think that’s important. He says he pays $440 a month . . . for dining out for a child who is about 15 months old, and a 10-year-old child, that’s a goodly amount; and an allowance of $100 a month to a 10-year-old child. Okay.
He pays $225 for purchasing clothing for the child, 275 in total; and he has funds left over to make his $200 a month religious contribution, which I certainly think is important; but I also think that supporting one’s own child is important. He indicated on his financial statement that he had $75,000 worth of real estate assets, although now he says he doesn’t. He indicated on his financial statement that he had $27,000 of mortgage, though now he says it isn’t his.
Given what he, himself, has indicated that he’s able to afford on a monthly basis, I think it is absolutely appropriate that he pay child support. The parties are within the guidelines. I think [counsel] is right with respect to the . . . approximate overnights. I’ve included 134 overnights in the guidelines.
With respect to the therapy costs, I can’t, I have to have sufficient evidence of . . . . an extraordinary medical, extraordinary medical expense cost, and I just do not. With respect to the work-related childcare, the testimony was that the work-related childcare was not all work-related. Some of it, and . . . work-related childcare is a very specific category. So what I did was, because one of those three days was not for work, it’s for therapy, I calculate the work-related childcare over 42 weeks as opposed to 52 because the month the summer, I took out because different things happened during the summer, realizing it might not be, that some of these figures we’re using, including the overnight and things like that and we can’t really get too exact;
but I calculate the work-related childcare per month at $455 a month; the health insurance expense at 242; and there’s an extraordinary medical expense that was reflected in the financial statement which I credit at $78 a month. That brings the recommended child support to 554 a month that I’m going to order that [Father] pay; and it will be retroactive to the date of my custody order where I change the custody, and I will have to calculate that. . . .
So, I will do that and include that in my order. And I will include the arrearage amount in my order that . . . [Father] will owe[.] . . .
[S]o, I will . . . calculate the child support from August 3rd; but the ongoing support will be from, well, he’s in arrears at this point for October; and so, . . . ongoing support will be . . . from November 1st. I’ll assess the arrears, reduce that to judgment. . . .
I think the sufficient evidence was provided that [Father] owes [Mother] $481.22 as reimbursement for medical expenses. I will order that. I will reduce that to judgment. And I think that concludes our business for today. (Emphasis added).
The Child Support Order entered on November 21, 2022 is consistent with this bench ruling. The court ordered Father to pay $554 per month in child support, and entered judgments for a child support arrearage in the amount of $1,608.39 through August 3, 2022 and for “reimbursement of dental expenses” in the amount of $481.22.
B. Health Insurance Expense
Under FL § 12-204(h)(1), “[a]ny actual cost of providing health insurance coverage for a child for whom the parents are jointly and severally responsible shall be added to the basic child support obligation and shall be divided by the parents in proportion to their adjusted actual incomes.” Here, the court stated in its bench ruling that Mother’s monthly health care expense for the Child was $242, then used that figure to calculate Father’s child support obligation in its Child Support Worksheet. The court did not include any health insurance expense for Father in its calculation.
Father disputes this “determination of the cost and allocation of health insurance[,]” arguing that the court used figures that are “not based upon any amount discernable in the record.” In support, Father points out that the $242 “shown on the Court’s October 7 Guidelines worksheet attributed” to Mother does not match “the amount of the child’s share of health insurance on [Mother’s] financial statement page 3[,]” which is $212.
We cannot discern from the record before us how the court reached the $242 figure that it used to calculate Mother’s health insurance expense factored into its modified award of child support. That number does not correspond to either Mother’s financial statement, which listed her health insurance expense for the Child as $127.28, or to her testimony at the October 7 hearing, when she estimated her health insurance expense to be 30% of the $504 monthly health insurance premium shown on her pay records, which would amount to $151.20.
Given that Mother did not present any evidence of health insurance expenses other than her financial statement and
testimony, the record does not support the circuit court’s determination that her monthly expense is $242. Nor did the court explain why its calculation from October 7 differs from its March 8 calculation by excluding Father’s claimed health care expense of $212. Consequently, we must vacate the Child Support Order and remand for further proceedings to clarify and correct the support calculation to accurately account for each parent’s health insurance expenses.
C. Father’s Income
Although Father does not challenge the circuit court’s finding that a material change in custody warranted modification of his child support obligation, he contends that the court erred in imputing income to him because he was on leave without pay during investigation of an employment-related discrimination claim. In Father’s view, “[t]here was no evidence to support a finding that this was a temporary cessation that could be absorbed from savings or other financial resources.”
We are not persuaded, however, that the circuit court erred in imputing employment income to Father. As Father points out, the court rejected his contention that his income was “zero” and instead determined his support obligation “based on [Father’s] Statement of Earnings and Leave that was [his] Exhibit 2 at the October 7, 2022 hearing[,]” which showed his salary at that time. Father concedes that the $10,089 in monthly income attributed to him in the court’s Child Support Worksheet corresponds to that salary.
It is the responsibility of the circuit court, rather than this Court, to resolve conflicts in the evidence, assess the credibility of the witnesses, and draw inferences based on those determinations. Cf. Petrini v. Petrini, 336 Md. 453, 470 (1994) (emphasizing the importance of “the trial court’s opportunity to observe the demeanor and the credibility of parties and witnesses”); Frazelle-Foster v. Foster, 250 Md. App. 52, 84 (2021) (recognizing that “[e]valuation of the evidence lies within the sound discretion of the trial court” where issue was whether evidence supported divorce on requested grounds). The court expressly found that Father failed to establish that his leave without pay status was more than temporary. The record is sufficient to support that factual finding, given the short length of time since Father was placed on leave without pay status; Father’s failure to provide information for the court to evaluate the nature, duration, and potential consequences of his EEO claim; Father’s admission that he was able to work; the lack of evidence corroborating Father’s expectation of employment termination; his lack of any plan for substitute employment; his continuation of expenses that may be viewed as discretionary; and his recent use of proceeds from the sale of his home to assist his fiancée in purchasing a home and to prepay childcare and utility expenses.
Based on this record, the circuit court’s conclusion that Father’s income could and would resume was not clearly erroneous. On remand for recalculation of child support, however, the court may consider new evidence it finds relevant to the determination of Father’s employment status and income. II. Dental Expenses
Father next contends that the circuit court erred in entering
judgment for $481.22 in extraordinary medical expenses, for the same dental expenses incurred in 2019 that this Court disallowed in Tyler I. We agree.
The circuit court’s inclusion of these extraordinary medical expenses in its November 21, 2022 order predates our unreported opinion in Tyler I, where we vacated the earlier order requiring Father to reimburse Mother for those particular dental expenses, explaining:
Earlier in the history of this case, on May 29, 2019, a merits hearing was held on divorce and child support. The order resolving those issues was issued on May 31, 2019 and was entered as a judgment of absolute divorce on June 24, 2019. In its order, the court made findings of fact on several issues, including those pertinent to child support. On those findings, the court filled out a Child Support Worksheet, from which it determined that Father would be obligated to pay child support of $31 per month to Mother.
On the Child Support Worksheet, at section 11 “Expenses,” the court listed $747 per month for work-related childcare, $54 per month for health insurance, and $0 per month for extraordinary medical expenses, cash medical support, and additional expenses. In the last paragraph of its order, in language couched in terms of the future, the court stated that the parties shall divide Child’s extraordinary medical and dental expenses “50/50” and that, [t]he parties shall reach an agreement as to who is going to incur such expense at the time of service, that party shall seek reimbursement from the other party within thirty (30) days from the date of purchase. Every month, on the 1st of each month, the party who purchased the expense will notify the other in writing, which shall include e-mail, will submit by email to the other party, the receipt for the expense, and the other party shall have fifteen (15) days from the receipt of the email to reimburse the other party for their 50% share of the extraordinary medical and/or dental expense.
In the opinion issued after the June 21-22, 2022 hearing central to this appeal, the court found that, contrary to the directive in the June 24, 2019 judgment of absolute divorce “[t] he parties did not reach [an] agreement as to who will incur the expense. It is evident that [Mother] reached out and submitted expenses to [Father] and received no response or reimbursement.” (Emphasis in original.) The court continued:
These expenses include:
$299.52 (Dental, Pl.’s Ex. 4)
$662.92 (Dental, Pl.’s Ex. 6)
$190 (Therapy, Pl.’s Ex. 11)
$1,596 (Braces, Pl.’s Ex. 23)
$5,670 (Therapy, Pl.’s Ex. 43)
The total of the expenses is $8,418.44, of which [Father] owes 1/2, or [$]4,209.22.
On appeal, with respect to extraordinary medical expenses, Father argues:
must [sic] [of the expenses] were incurred prior to any such obligation and the subject of prior hearings. They could not be revisited in this proceeding under the guise of contempt. Moreover, a prior order, dated April 14, 2021, continued
joint custody and provided [Mother] with a tie breaking vote if they could not agree on specified issues; however, she was not to use the tie breaker authority to bind [Father] financially. She did precisely that. The medical and dental expenses would be covered by insurance, but [Mother] refuses to use the physicians and dentists who would accept insurance.
(Internal record references omitted.)
Father is incorrect that extraordinary medical expenses were a basis for the contempt finding. We agree, however, that the court erred by including two items incurred before the May 29, 2019 evidentiary hearing in calculating the $4,209.22 judgment entered against him. Those items, which total $962.44, are $299.52 (Dental, Pl.’s Ex. 4), incurred on May 7, 2019, and $662.92 (Dental, Pl.’s Ex. 6), incurred on March 26, 2019. Both could have been introduced into evidence at the May 29, 2019 hearing. As we explained in Lieberman v. Lieberman, 81 Md. App. 575, 597 (1990), “the doctrine of res judicata applies in the modification of alimony and child support and the court may not ‘relitigate matters that were or should have been considered at the time of the initial award’” (quoting Lott v. Lott, 17 Md. App. 440, 444 (1973)). Although there was a material change of circumstances in this case regarding custody, there was no change relating to extraordinary medical expenses.
From the Child Support Worksheet, it appears that, although evidence was admitted regarding childcare expenses and health insurance costs, no evidence of extraordinary medical expenses was introduced. Accordingly, those two items should not have been included in the court's determination of extraordinary medical expenses owed by Father to Mother. The correct amount of the judgment against Father for extraordinary medical expenses should have been one-half of $7,456, which equals $3,728.8.
Tyler I, at 7-8 (emphasis added).
Although we acknowledge that the circuit court did not have the benefit of our decision that Father cannot be required to pay one-half of the Child’s dental expenses from 2019, we must vacate the November 21, 2022 order requiring Father to pay $481.22 for dental expenses.
III. Recusal
Father renews his complaint that the circuit court judge was so biased against him that she erred in denying his request that she recuse herself. In Tyler I, we addressed Father’s request to recuse Judge Bibi Berry, concluding there was no legal or factual basis for doing so:
A judge “is required to recuse himself or herself from a proceeding when a reasonable person with knowledge and understanding of all the relevant facts would question the judge’s impartiality.” In re Russell, 464 Md. 390, 402 (2019). A party attempting to demonstrate that a judge is not impartial faces a high burden because there is a strong presumption in Maryland “‘that judges are impartial participants in the legal process, whose duty to preside when qualified is as strong as their duty to refrain from presiding when not qualified.’” Nathans Assocs. v. Mayor & City Council of Ocean City, 239 Md. App. 638, 659 (2018) (quoting Jefferson-El v. State, 330 Md. 99, 107 (1993)), cert. denied, 463 Md. 539 (2019). We
have explained:
To overcome the presumption of impartiality, the party requesting recusal must prove that the trial judge has “a personal bias or prejudice” concerning him or “personal knowledge of disputed evidentiary facts concerning the proceedings.” Boyd [v. State, 321 Md. 69, 80 (1990)]. Only bias, prejudice, or knowledge derived from an extrajudicial source is “personal.” .Where knowledge is acquired in a judicial setting, or an opinion arguably expressing bias is formed on the basis of information “acquired from evidence presented in the course of judicial proceedings before [her],” neither that knowledge nor that opinion qualifies as “personal.” Boyd, 321 Md. at 77[.]
Id. (quotation marks omitted) (quoting Jefferson-El, 330 Md. at 107). When bias, prejudice, or partiality is alleged, this Court reviews a trial judge’s decision on a motion to recuse for abuse of discretion. See Scott v. State, 175 Md. App. 130, 150 (2007).
Typically, the question of recusal “is decided, in the first instance, by the judge whose recusal is sought.” Surratt v. Prince George’s Cnty., 320 Md. 439, 464 (1990). There are, however, “some circumstances in which the judge whose impartiality is questioned should not himself or herself decide the merits of a recusal request.” Id. at 465. When the “asserted basis for recusal is personal conduct of the trial judge that generates serious issues about his or her personal misconduct, then the trial judge must permit another judge to decide the motion for recusal.” Id. at 466. “[T]he recusal motion must set forth facts in reasonable detail sufficient to show the purported personal misconduct; mere conclusions as to lack of impartiality will not suffice. And it should be supported by affidavit or testimony or both.” Id. at 467.
From June 2019 to February 2021, Judge David Boynton was specially assigned to this case. At some point, Father filed a complaint against the United States Department of the Treasury with the federal Equal Employment Opportunity Commission (“EEOC”), which resulted in litigation. According to Father, Judge Boynton’s wife “is [a] named subject” in that matter. On that basis, Father filed a motion to recuse Judge Boynton, which Judge Boynton granted. Judge Bibi Berry then was specially assigned to this case.
Four weeks after Judge Berry’s opinion and order was docketed, Father filed an “emergency motion to recuse” her and to transfer the action to another court. He asserted bias because she “may have” received documents and information in the federal EEOC portal pertaining to Father’s pending litigation; “allowed and accepted as evidence” prior rulings by Judge Boynton “which manifested negative bias” toward Father and used them to assess his credibility; used “similar language and manifestations of recused Judge David Boynton” in her opinion, referenced his pending litigation, and discredited his testimony; did not appoint a Best Interest Attorney; and declined to shield or redact documents Father deemed sensitive. Further, Father “reasonably fears” the prior rulings and opinions by Judge Boynton “tainted and impaired” Judge Berry’s impartial assessment of his character and credibility; “reasonably believes” that due to his ongoing litigation Judge Berry “may be acting in a retaliatory manner and such actions can negatively
impact the child's well-being”; and thinks that Judge Berry is biased because the treasurer for her 2020 election campaign was a person who, based on her name, “appears” to be “a close family relative of Judge David Boynton[,]” who also was on the ballot. Father “reasonably believes” the circuit court “cannot serve in the interest of justice fairly” because of a “perceived private and public relationship” between Judges Berry and Boynton and his wife. Finally, Father maintains that by presiding over this case, Judge Berry created “an unacceptable appearance of impropriety” and that her “remaining on this matter would not promote public confidence.”
On September 22, 2022, Judge Berry entered an order denying Father’s motion to recuse and to transfer. It stated that Father “failed to show any credible or reasonable basis” for her recusal.
Before this Court, Father contends Judge Berry was biased and should have recused herself because she had “communications” with Judge Boynton, “an issue [she] even discussed in her opinion.” We find no merit in this contention.
Father’s assertions of bias against Judge Berry are based on speculation and guesswork about supposed connections and communications between Judge Berry and Judge Boynton and/or his wife and supposed knowledge Judge Berry may have acquired about Father’s EEOC litigation, none of which is supported by the record and some of which is based on outof-context information. For example, Judge Berry did refer to Judge Boynton in her opinion, but not in any way that would evidence bias. In the context of finding that Father was not able to effectively communicate with Mother, Judge Berry observed: [Father’s] communications with [Mother] tend to sway from the pertinent topics, and do not appear to this court to be designed to resolve anything or to make decisions for the child's benefit. Even a request to swap weekends so he can have Father’s Day turned into a commentary about [Father’s] supposed grave concerns about [Mother], past grievances, and even claims of discrimination and abuse of power of Judge Boynton. Pl.’s Ex. 9.
This reference to Judge Boynton does not reveal an improper communication between Judge Berry and Judge Boynton or any other evidence of bias.
We see nothing in the record to support Father’s contention that Judge Berry was or appeared to be biased or impartial in her handling of this case. Accordingly, she did not abuse her discretion in denying Father’s motion to recuse.
Tyler I, at 9-11.
In this appeal, Father invokes his prior allegations of bias against Judge Berry and points to what he contends is further evidence of Judge Berry’s bias from both “her conduct and oral rulings” during hearings on March 8, 2022 and October 7, 2022. Father contends that during the March 8 hearing, “Judge Berry[’s] bias was shown by giving [Mother] a substantial advantage” when she provided guidance to Mother by pointing that that if she did not call Father as a witness, the court “won’t have any evidence of his income.” In addition, Father argues that during the October 7 hearing, “Judge Berry[’s] bias led her to get the facts wrong[,]” to admit the disallowed dental expenses over his objections, and to miscalculate his monthly child support in an
amount that “has caused a significant financial burden on” him. Father asserts that his “motion for recusal should have been granted nunc pro tunc” given the “intentional” errors “due to now known bias given she is no longer assigned to the case.”
Our prior decision forecloses any challenge based on the record that we reviewed in that case. Father’s new claims of bias are also not supported in the record underlying this appeal. Once again, Father has not submitted an affidavit or evidence other than cherrypicked excerpts from two hearing transcripts. Even then, he does not point to any improper “personal knowledge of disputed evidentiary facts concerning the proceedings[.]” See Boyd, 321 Md. at 75.
Nor do we discern any bias from Judge Berry, either toward Mother or against
Father. As explained in Tyler I, Father’s bald assertions of bias based on speculation, guesswork, and misstatements of fact and law do not support recusal. See Tyler I, at 11.
The cited excerpt from the March 8 motion hearing before Judge Berry shows nothing more than the judge explaining to an unrepresented litigant the potential evidentiary consequences of not questioning the opposing party about his claims. This does not constitute unfair bias requiring recusal.
Nor does the Child Support Order entered on November 21, 2022, support Father’s claim of bias. Significantly, the October 7 evidentiary hearing upon which Judge Berry predicated that order was conducted by Magistrate Lili Khozeimeh, again, with Father represented by counsel and Mother pro se. The fact that months after the hearing and rulings challenged here, this Court would hold that Father cannot be required to reimburse Mother for $481.22 in dental expenses, does not constitute evidence of bias.
After reviewing the record, we detect no improper knowledge of disputed evidentiary facts pertaining to this child support
dispute. Nor was there any inappropriate judicial assistance or resistance to either party. Instead, the transcripts and orders show an even-handed consideration of the parties’ evidence and arguments. On this record, the denial of Father’s demands for Judge Berry’s recusal was not an abuse of discretion.
IV.
Motion to Alter or Amend
In his last assignment of error, Father contends that the circuit court erred in denying his motion to alter or amend the November 2022 Judgment “without justification.” Yet Father does not identify any specific grounds, offer supporting argument, or cite to the record.
We will not conjure reasons where an appellant has supplied none. See Md. Rule 8-504(a)(6) (Appellate briefs must contain “[a]rgument in support of the party’s position on each issue.”). That appellate courts will not “rummage in a dark cellar” to find support for appellate contentions is well-established. See HNS Dev., LLC v. People’s Counsel for Balt. Cnty., 425 Md. 436, 459 (2012) (“The brief provides only sweeping accusations and conclusory statements” and “we are disinclined to search for and supply HNS with authority to support its bald and undeveloped allegation”); Comptroller v. Aerial Prods., 210 Md. 627, 644-45 (1956) (collecting cases).
Consequently, Father’s failure to provide legal analysis to support his appellate contention constitutes a waiver of that argument. See, e.g., HNS Dev., 425 Md. at 459; Honeycutt v. Honeycutt, 150 Md. App. 604, 618 (2003) (“The Estate argues that the circuit court was legally incorrect when it granted the Bank’s Motion for Summary Judgment; however, the Estate failed to adequately brief this argument, and thus, we decline to address it on appeal.” (footnotes omitted)); Wallace v. State, 142 Md. App. 673, 684 n.5, aff’d, 372 Md. 137 (2002) (“Arguments not presented in a brief or not presented with particularity will not be considered on appeal.” (cleaned up)).
JUDGMENT AGAINST APPELLANT ENTERED ON NOVEMBER 21, 2022 VACATED AND CASE REMANDED TO THE CIRCUIT COURT FOR MONTGOMERY COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE DIVIDED EQUALLY BETWEEN APPELLANT AND APPELLEE.
FOOTNOTES
1 On December 1, 2022, Father moved to alter or amend the child support order. See Md. Rule 2-534; Md. Rule 8-202(c). The circuit court denied that motion on January 19, 2023. Father noted this timely appeal on February 17, 2023. See generally Edery v. Edery, 213 Md. App. 369, 383-84 (2013) (“when the entry of a final judgment . . . is followed by the filing, within 10 days, of a Rule 2-534 or 2-535 motion, the deadline for noting an appeal to this Court . . . is 30 days from the notice of withdrawal of the motion or 30 days from the ruling on the motion, under Rule 8-202(c).”).
2 In his pro se brief, Father frames the issues as follows:
“Issue 1. Did the Circuit Court err in making its child support award?
Issue 2. Did the Circuit Court err in issuing and entering its Judgements? [sic]
Issue 3. Whether the Trial Judge should have vacated the determination and recused herself retroactively/ nunc pro tunc.
Issue 4. Did the Circuit Err in Denying Appellant’s Motion to Alter or Amend Judgement [sic], for New Trial and Request for Hearing.”
Mother did not file a brief.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Anne Arundel County Circuit Court’s final protective order against father and in favor of mother. The evidence presented at the final protective order hearing was sufficient to establish that he physically or mentally abused his sons by a preponderance of the evidence.
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.
final protective order at issue in this appeal. On September 10, 2023, Ms. Slack filed a petition for a protective order on behalf of her two sons, L.J. and J.R., due to an incident that occurred on September 7, 2023 while the children were in Mr. Richards’s care. At the time of the incident, L.J. was fourteen years old and J.R. was twelve years old. Both children were permanently residing with Mr. Richards who, under a 2000 Consent Order, had full custody of the children. The Consent Order also awarded Ms. Slack visitation rights subject to certain conditions.
On the day of the incident, the children had just returned home from school when Mr. Richards asked his sons to do some chores. L.J. testified that he replied to his father’s instructions by shrugging his shoulders. Mr. Richards asserts that he saw L.J. raise his hands as if he were going to hit Mr. Richards and that he perceived this as a sign of disrespect. Mr. Richards slapped L.J. in the face twice, resulting in a cut the size of a quarter likely caused by Mr. Richards fingernail catching on L.J.’s cheek. Later that night, Anne Arundel County police officers responded to a call requesting a welfare check at Mr. Richards’s home.
This appeal arises out of the issuance of a final protective order by the Circuit Court for Anne Arundel County against appellant, John Richards (“Mr. Richards”), and in favor of appellee, Kimberly Slack (“Ms. Slack”). In September 2023, Ms. Slack filed a petition for a protective order against Mr. Richards, her ex-husband and the father of their two sons. Ms. Slack filed this petition for relief following an incident during which Mr. Richards allegedly hit the parties’ eldest son, “L.J.” At the circuit court hearing, L.J. testified that his father routinely physically and verbally abuses him and his younger brother, “J.R.” Based on the testimony and evidence presented at the hearing, the circuit court issued a final protective order against Mr. Richards, granting Ms. Slack full custody of their two children for the duration of the protective order and denying Mr. Richards visitation rights.
Mr. Richards presents three questions for our review, which we consolidate and rephrase slightly as follows:1
I. Whether the circuit court erred in determining that Mr. Richards had abused the minor children by a preponderance of the evidence.
II. Whether the circuit court erred in issuing as a remedy a final protective order granting Ms. Slack full custody of the minor children and preventing Mr. Richards from visiting or contacting them.
For the reasons explained herein, we shall affirm.
FACTS AND PROCEDURAL HISTORY
Although the parties’ child custody disputes date back to 2014, we focus our attention on the facts most relevant to the
Upon hearing about this incident, Ms. Slack filed a petition for a protective order in the Circuit Court for Anne Arundel County. The petition alleged that Mr. Richards slapped L.J. and told him that “he was going to brake [sic] his neck.” It also alleged that Mr. Richards called L.J. and J.R “faggots,” “pieces of shit,” and “worthless.” Ms. Slack also noted in the petition that Mr. Richards has a history of verbally abusing her and their sons as well as physically abusing the children. The circuit court issued a temporary protective order against Mr. Richards, awarding Ms. Slack temporary custody of the children. After multiple postponements, the circuit court held a final protective order hearing on February 8, 2024.
At the hearing, the circuit court entered into evidence two reports from the Anne Arundel County Department of Social Services (“DSS”) dated September 19, 2023 and October 16, 2023. DSS conducted interviews with L.J., J.R., Ms. Slack, and Mr. Richards to discuss the incident that occurred on September 7, 2023 and to address any history of abuse. L.J. reported that his father frequently yells at and hits him and his younger brother. Both children told DSS workers that they are fearful of being returned to Mr. Richards’s residence. Mr. Richards did not deny hitting L.J. on September 7, 2023 and argued that his actions constituted reasonable discipline. The September 19, 2023 DSS report ultimately concluded that there was “no credible finding of abuse as defined by Title 5 Subtitle 7 of the Family Law Article” of the Maryland Code. The report concluded that L.J. and J.R. were safe in Mr. Richards’s care.
Both reports observed that the September 7, 2023 incident
resulted in a cut on L.J.’s face but determined that this injury was “not significant and did not place the child at substantial risk of harm.” The October 16, 2023 DSS report documented that J.R. told a guidance counselor that “he wanted to kill himself because his father hits and yells at him.” The report also noted that Mr. Richards had expressed an interest in working with a counselor and receiving parenting resources. DSS ultimately recommended that the Circuit Court for Anne Arundel County determine the custody and visitation rights of the parents. Mr. Richards, Ms. Slack, and L.J. all testified at the final protective order hearing.2
Mr. Richards once again did not deny hitting L.J. on September 7, 2023. He argued that his actions qualified as reasonable discipline, asserting that he “barely even hit” his son.
L.J. also testified about this incident, describing how his father hit him in the face twice.
L.J. specified that this was not the first time his father had hit him. L.J. alleged that when Mr. Richards “gets mad,” he curses at both sons or hits them, specifying that this happens “usually every day or so.” He told the court that he does not believe his father’s home is a “healthy home” nor a “safe place to live at.” L.J. also testified that he has thought about harming himself and has threatened to harm himself. He recalled that he once told his father that he wanted to kill himself, to which Mr. Richards replied: “Good luck with that.”
Ms. Slack testified that she filed the petition for a protective order because her sons asked her to do so “out of fear.”
The trial court repeatedly emphasized throughout the hearing that the matter before the court was a domestic violence proceeding rather than a custody case. The court recognized the existence of a pending custody dispute between the parties and noted that the court’s limited role in the protective order matter was to determine “whether there was an act of domestic violence” and to identify “the appropriate relief the Court should grant to protect the subject individuals.” After considering all testimony and evidence presented by both parties, the court made the following factual findings: [T]hat September incident alone probably would not constitute unreasonable corporal punishment, but when that is factored in with the history and the testimony that I heard from [L.J.] of what is happening and transpiring in the environment in [Mr. Richards’s] home, I find by a preponderance of the evidence that that certainly placed [L.J.] in fear of imminent serious bodily harm by a preponderance of the evidence. It certainly went beyond – the piling on of it went beyond reasonable corporal punishment, so I also find that it was an assault in any degree and I believe that the swearing, and the name calling and the constant yelling in that home combined with the physical, for lack of a better term, punishment, constitutes statutory abuse, mental abuse of a child and that’s with respect to both children.
So I do find that [Ms. Slack] has met her burden of proof to establish acts of domestic violence against these two children.
The court, therefore, issued a final protective order against Mr. Richards and in favor of Ms. Slack. The order specifies that Mr. Richards committed the following acts of abuse by a preponderance of the evidence: physical abuse of a child, placing
persons eligible for relief in fear of imminent serious bodily harm, and assault. The description of harm includes “slapping, hitting, and extensive verbal abuse.” The final protective order awards Ms. Slack custody of the children for the duration of the final protective order, which is effective through February 8, 2025. The order prohibits Mr. Richards from contacting Ms. Slack, J.R., and L.J. Mr. Richards is also barred from visiting Ms. Slack’s residence and the children’s school.
The court noted that it did not find it appropriate to grant Mr. Richards visitation rights at the time because the boys were “too fragile.” The court, however, made the following disclaimer: But again, that’s certainly not something that I am in a position to determine for sure, but I am erring on the side of caution.
But given the brevity of our proceeding today, I’m not in a position to make that judgment at this time.
So again, I know that – I’m very mindful that there’s a family law case pending and this could all change as a result of the pendente lite order, but right now this is what I think needs to be done for the safety of the children.
Mr. Richards noted his timely appeal to the circuit court’s issuance of the final protective order on March 1, 2024.
STANDARD OF REVIEW
Under Section 4-506 of the Family Law Article of the Maryland Code, a court may issue a final protective order if “the judge finds by a preponderance of the evidence the alleged abuse has occurred[.]” Md. Code (1984, 2019 Repl. Vol.) § 4-506(c)(1)(ii) of the Family Law Article (“FL”). The petitioner bears the burden to establish by a preponderance of the evidence that the alleged abuse has occurred. Piper v. Layman, 125 Md. App. 745, 754 (1999). “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.” Id. (quoting Ricker v. Ricker, 114 Md. App. 583, 586 (1997)). On review of the issuance of a final protective order, an appellate court “accept[s] the facts as found by the hearing court unless it is shown that its findings are clearly erroneous.” ID. See also Md. Rule 8-131(c) (providing that this Court “will not set aside the judgment of the trial court on the evidence unless clearly erroneous”).
A trial court’s factual findings are not clearly erroneous so long as they are supported by substantial evidence. Innerbichler v. Innerbichler, 132 Md. App. 207, 230 (2000). See also Mills v. Mills, 178 Md. App. 728, 734–35 (2008) (“[I]f substantial evidence was presented to support the trial court’s determination, it is not clearly erroneous and cannot be disturbed.”). We are deferential to the factual findings of the trial court, which had the “opportunity to gauge and observe the witnesses’ behavior and testimony” throughout the protective order proceeding. Barton v. Hirshberg, 137 Md. App. 1, 21 (2001) (quoting Ricker, supra, 142 Md. App. at 592). For this reason, we also “leave the determination of credibility to the trial court[.]” Id. This Court considers the evidence produced at trial in the light most favorable to the prevailing party. Mills v. Mills, 178 Md. App. 728, 734–35 (2008). “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 745–55.
DISCUSSION
Mr. Richards raises two arguments on appeal. First, he argues that the evidence presented at the final protective order hearing was insufficient to establish that he physically or mentally abused his sons by a preponderance of the evidence. In doing so, Mr. Richards asserts that his behavior during the September 7, 2023 incident qualifies as reasonable corporal punishment. Second, Mr. Richards contends that the trial court erred in granting a final protective order under which Ms. Slack has full custody of the children and Mr. Richards has no visitation rights. He claims that the terms of the protective order are excessive and radical and contends that the court erred in failing to consider Ms. Slack’s ability to care for the children.
For the reasons described below, we conclude that the trial court did not err in finding that the alleged abuse occurred by a preponderance of the evidence. Furthermore, we conclude that the court’s remedy is reasonable to fulfill the purpose of the domestic violence statute, which is to insulate victims from further abuse.3
I. The trial court did not err in concluding that Mr. Richards committed the alleged abuse by a preponderance of the evidence.
Mr. Richards primarily contends that there was insufficient evidence to establish that the alleged abuse occurred by a preponderance of the evidence. Section 4-501(b)(1) of the Family Law Article of the Maryland Code defines “abuse” as follows:
(i) an act that causes serious bodily harm;
(ii) an act that places a person eligible for relief in fear of imminent serious bodily harm;
(iii) assault in any degree;
(iv) rape or sexual offense under § 3-303, § 3-304, § 3-307, or § 3-308 of the Criminal Law Article or attempted rape or sexual offense in any degree;
(v) false imprisonment;
(vi) stalking under § 3-802 of the Criminal Law Article; or (vii) revenge porn under § 3-809 of the Criminal Law Article. FL § 4-501(b)(1).
The Family Law Article also specifies that “[i]f the person for whom relief is sought is a child, ‘abuse’ may also include abuse of a child, as defined in Title 5, Subtitle 7 of this article.” FL § 4-501(b) (2)(i). Section 5-701 defines abuse of a child as “the physical or mental injury of a child under circumstances that indicate that the child’s health or welfare is harmed or at substantial risk of being harmed” by a parent. FL § 5-701(b)(1)(i)(1). Of particular importance to this matter is the exclusion provided in Section 4-501(b)(2)(ii) of the Family Law Article, which provides that: Nothing in this subtitle shall be construed to prohibit reasonable punishment, including reasonable corporal punishment, in light of the age and condition of the child, from being performed by a parent or stepparent of the child. FL § 4-501(b)(2)(ii). See also FL § 5-701(b)(2) (providing that child abuse “does not include the physical injury of a child by accidental means”).
On appeal, Mr. Richards does not deny hitting L.J. on
September 7, 2023. He contends that his conduct on September 7 involved a “moderate use of force in an exercise of domestic authority, consistent with parental privilege.” Accordingly, he asserts that hitting L.J. was a reasonable form of corporal punishment that did not “extend beyond the bounds of moderation” and, therefore, did not constitute physical abuse of a child. We recognize that “[r]easonable corporal punishment, by definition, is not child abuse.” Charles Cnty. Dep’t of Soc. Servs. v.Vann, 382 Md. 286, 303 (2004). Whether corporal punishment is reasonable “depends not simply on the misbehavior of the child and the amount of force used in the punishment from the parent’s perspective, but also on the physical and mental maturity of the child[.]” Id. at 299.
Even if this Court were to assume arguendo that Mr. Richards’s action during the September 7 incident -- slapping his elder son in the face twice -- was reasonable corporal punishment, we recognize that the circuit court did not base its finding of physical abuse solely on that incident. The circuit court specified that it based its finding of abuse on the “history . . . of what is happening and transpiring” in Mr. Richards’s home, as revealed by L.J.’s testimony at the final protective order hearing. L.J.’s testimony provided substantial evidence of a history of abuse and supported the circuit court’s finding that Mr. Richards’s behavior placed L.J. in fear of imminent bodily harm. We, therefore, conclude that the trial court did not err in finding that the alleged abuse occurred.
A. L.J.’s testimony presented substantial evidence of a history of abuse sufficient to support the trial court’s factual findings.
The circuit court concluded that, although the September 7, 2023 incident alone may not give rise to a finding of physical abuse, Mr. Richards’s prior actions support such a finding. The court made its finding of abuse based on that incident as well as the “history and the testimony” that L.J. provided, noting that the “piling on” of Mr. Richards’s actions towards the children amounts to abuse under the domestic violence statute. Mr. Richards argues on appeal that there was insufficient evidence to support such a finding. In doing so, he emphasizes that there was no testimony of any other specific acts of abuse other than the incident that occurred on September 7, 2023 in Mr. Richards’s home.
There is no doubt that “[p]rior abuse and the nature and severity of abuse may be relevant to certain types of relief” available under the Family Law Article’s domestic violence statute. C.M. v. J.M., 258 Md. App. 40, 69 (2023) (quoting Katsenelenbogen v. Katsenelenbogen, 365 Md. 122, 132 (2001)).
As the Supreme Court of Maryland has recognized: In determining whether to issue a protective order, the judge should consider not only evidence of the most recent incident of abuse, but prior incidents which may tend to show a pattern of abuse. Allegations of past abuse provide the court with additional evidence that may be relevant in assessing the seriousness of the abuse and determining appropriate remedies Admitting prior acts of abuse aids in assessing the need for immediate and future protection. The fact that there is a history of prior abusive acts implies that there is a stronger likelihood of future abuse.
Coburn v. Coburn, 342 Md. 244, 257–58 (1996).
L.J. testified about Mr. Richards’s prior acts of abuse at the protective order hearing. He revealed that his father has a history of physically abusing him and his brother, reporting that he hits them “when he gets mad” and specifying that this occurs “usually every day or so.” He stated twice during the hearing that he does not feel safe around his father and that he does not think his father’s home is “a healthy home.” The DSS reports admitted into evidence at the protective order hearing similarly report that L.J. is “fearful of returning to his father’s residence” because he “hit[s] them if they do not do things when or how it should be done.”
Mr. Richards argues this testimony is insufficient to support the trial court’s finding because L.J. failed to provide details regarding specific prior incidents of abuse separate from the September 7 incident. Notably, however, Mr. Richards fails to cite to any case law or statute to support this argument. Indeed, Mr. Richards fails to present any applicable law providing that a court can make a finding of abuse for purposes of issuing a protective order only if there is sufficient evidence of specific prior acts at specific dates and times.
L.J. presented testimony that him and his brother suffer physical abuse at the hands of their father nearly “every day or so.” Mr. Richards is unable to point to any case law to support his argument that such testimony is insufficient to support a finding abuse,
Critically, it is “not our role, as an appellate court, to secondguess the trial judge’s assessment of a witness’s credibility.” Gizzo v. Gerstman, 245 Md. App. 168, 203 (2020).
See also Md. Rule 8-131(c) (providing that this Court “will give due regard to the opportunity of the trial court to judge the credibility of the witnesses”). The circuit court found L.J.’s testimony about Mr. Richards’s prior abusive acts to be credible. The circuit court relied on this testimony and the other evidence presented at the hearing to reach its finding of physical abuse. We cannot conclude that this finding, based on all of the evidence and the trial court’s credibility determinations, is clear error.
B. The trial court relied on substantial evidence in finding that Mr. Richards’s actions placed L.J. in fear of imminent bodily harm.
Mr. Richards also contends that the circuit court erred in concluding that he had physically abused his sons because L.J. did not provide “explicit testimony” that he fears serious bodily harm by his father. Notably, neither the statutory definition of abuse nor the domestic violence statute require such “explicit testimony.” The statutes merely provide that putting someone in fear of imminent serious bodily harm is a form of abuse and can serve as the basis for the issuance of a protective order if a judge finds that such abuse has occurred by a preponderance of the evidence. We conclude that the trial court relied on substantial evidence in finding that Mr. Richards’s actions placed L.J. in fear of imminent bodily harm.
At the final protective order hearing, L.J. testified that he thinks his father’s home is “not a safe place to live.” L.J. explained that although he had a “bond” with his father when he was younger, as he has grown he has started feeling like he “didn’t want to be around” Mr. Richards and “didn’t feel safe around him either.” He also testified that he believes Mr. Richards will abuse him in the future if returned to his care. The September 19, 2023 DSS report also provides details about L.J.’s fear of his
father. L.J. told a DSS worker that he was afraid of returning to Mr. Richards’s home because “he believes that his father may try to retaliate against him or his brother for getting arrested when the police were called to the home” on September 7, 2023.
The circuit court ultimately found L.J.’s testimony to be credible and concluded that Mr. Richards’s actions placed L.J. in fear of imminent serious bodily harm. In doing so, the court properly relied on the Supreme Court of Maryland’s holding in Katsenelenbogen, supra, 365 Md. at 139. In Katsenelenbogen, the Supreme Court determined:
[T]he reasonableness of an asserted fear . . . 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.
Id. The circuit court specified at the protective order hearing that it based its findings on the “victim’s history” and recognized that “what might seem non-threatening to one person would be extremely threatening to another person given the second person’s history.”
We conclude that the circuit court properly applied Katsenelenbogen in determining whether there was sufficient evidence to find that Mr. Richards placed L.J. in fear of imminent bodily harm. Based on all of the evidence presented at the protective order hearing, we conclude that the circuit court did not err in finding that Mr. Richards’s actions placed L.J. in fear of imminent serious bodily harm by a preponderance of the evidence.
C. There is substantial evidence to support the circuit court’s finding of mental abuse.
Mr. Richards observes, and this Court similarly recognizes, that although the final protective order did not specify that Mr. Richard mentally abused his sons by a preponderance of the evidence, the trial court stated the following at the conclusion of the protective order hearing:
I believe that the swearing, and the name calling and the constant yelling in that home combined with the physical, for lack of a better term, punishment, constitutes statutory abuse, mental abuse of a child and that’s with respect to both children.
Section 5-701 of the Family Law Article of the Maryland Code defines mental abuse of a child as “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). Mr. Richards contends that there is insufficient evidence to support a finding of mental injury. We disagree.
The circuit court admitted into evidence the DSS report dated October 16, 2023, which reported the J.R. had told a counselor that he has struggled with suicidal thoughts. L.J. also testified at the final protective order hearing that he has thought about harming himself and has threatened to harm himself. L.J. detailed an interaction with Mr. Richards during which he told his father that he wanted to kill himself, to which Mr. Richards replied: “Good luck with that.” In our view, the fact that both sons have struggled with either suicidal ideation or thoughts of self-harm serves as substantial evidence of mental injury. The circuit court, therefore, did not err in concluding that Mr. Richards’s actions
constituted mental abuse of a child.
As this Court has previously recognized, “the clearly erroneous standard is a deferential one, giving great weight to the trial court’s findings.” Gizzo, supra, 245 Md. App. at 200 (quoting Viamonte v. Viamonte, 131 Md. App. 151, 157 (2000)) (internal quotation marks omitted). Based on all of the evidence presented at the final protective order hearing, we cannot conclude that the trial court’s findings of abuse are clearly erroneous.
II. The terms of the final protective order do not constitute an excessive or radical remedy and were reasonable to ensure the immediate safety of the parties’ minor children.
In addition to challenging the sufficiency of evidence, Mr. Richards contends that the terms of the final protective order impose an excessive remedy. Under the terms of a previous protective order issued against Ms. Slack and the terms of the 2020 Consent Order, L.J. and J.R. have been residing with their father since 2018. The 2020 Consent Order awarded Mr. Richards sole custody of the children and conferred visitation rights to Ms. Slack, subject to certain limitations. The final protective order issued by the Circuit Court of Anne Arundel County on February 8, 2024 awards Ms. Slack full custody of the children for the duration of the protective order and prohibits Mr. Richards from contacting his sons or visiting them at their home or their school. Mr. Richards suggests that such terms are “excessive” and contends that the circuit court exceeded its authority under the protective order statute.
There is no doubt that circuit courts are authorized to temporarily alter parental custody arrangements through the issuance of a final protective order. Section 4-506 of the Family Law Article of the Maryland Code sets forth various remedies that can be included in the terms of a final protective order, including “award[ing] temporary custody of a minor child” as well as “restrict[ing] visitation” or “deny[ing] visitation entirely, as needed to guard the safety of any person eligible for relief[.]” FL § 4-506(d). See also Katsenelenbogen, supra, 365 Md. at 130 (noting that a protective order may result in “temporary loss of custody”). Circuit courts, therefore, may exercise broad discretion in determining which available remedies are most appropriate to protect victims from further abuse based on all of the facts and circumstances of the case.
Moreover, we recognize that the issuance of a protective order may “have consequences in other litigation.” Id. at 137. Nevertheless, such consequences are not the focus of the circuit court in considering a petition for a protective order. The Supreme Court of Maryland has held:
Living arrangements established as the result of a protective order may have relevance in determining custody, use and possession, and support in subsequent litigation. That is not the concern of the court in fashioning appropriate relief in a
domestic violence case, however. The concern there is to do what is reasonably necessary--no more and no less--to assure the safety and well-being of those entitled to relief.
Id. (emphasis in original). Indeed, the “purpose of the domestic abuse statute is to protect and aid victims of domestic abuse by providing an immediate and effective remedy.” Coburn, supra, 342 Md. at 252 (quoting Barbee v. Barbee, 311 Md. 620, 623 (1988)) (internal quotation marks omitted) (emphasis added).
The circuit court properly explained its limited scope throughout the protective order hearing. At the beginning of the hearing, the court clarified that the hearing was a “domestic violence” proceeding rather than a custody case. The judge noted that the purpose of the hearing was to determine “whether an act of domestic violence” took place and, if so, to identify “the appropriate relief the court should grant to protect the subject individuals.” The court also repeatedly stated throughout the hearing that it was aware and mindful of the parties’ pending custody modification case. The circuit court further elaborated on its limited scope when explaining the court’s decision to deny Mr. Richards visitation rights under the terms of the protective order. The court stated: [A]gain, that’s certainly not something that I am in the position to determine for sure, but I am erring on the side of caution.
But given the brevity of our proceeding today, I’m not in a position to make that judgment at this time.
In our view, the circuit court’s approach and the terms of the final protective order properly served the purpose of “prevent[ing] further harm to the victim[s].” Coburn, supra, 342 Md. at 252. Based on its finding of abuse, the circuit court issued a protective order that would effectively insulate L.J. and J.R. from any further harm posed by Mr. Richards for the duration of the protective order. Mr. Richards argues that the circuit court failed to consider Ms. Slack’s parental fitness, emphasizing Ms. Slack’s history of drug abuse. Mr. Richards contends that the circuit court failed to consider and did not hear any testimony regarding Ms. Slack’s employment, ability to provide for the children, or the stability of her home environment.
This type of testimony is certainly important for a court to analyze when considering a motion to modify custody. It is wellestablished that “overarching all of the contentions in disputes concerning custody or visitation is the best interest of the children.” Wagner v. Wagner, 109 Md. App. 1, 11 (1996) (quoting Hixon v. Buchberger, 306 Md. 72, 83 (1986)). We have no doubt that the circuit court will do so in the parties’ pending custody modification case. The role of the circuit court in this matter, however, was to make a determination based on the evidence presented on how best to protect the children from future abuse. We decline to conclude that the trial court’s finding of abuse was clear error and hold that the trial court did not abuse its discretion in issuing the final protective order. For these reasons, we affirm.
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY
FOOTNOTES
1 Mr. Richards’s original questions presented read as follows:
1. Did the trial court err in issuing a final protective order where the evidence was legally insufficient to show physical “abuse” within the meaning of the domestic violence statute?
2. Did the trial court err in issuing a final protective order where the evidence was legally insufficient to show mental abuse or child neglect within the meaning of the domestic violence statute?
3. Did the trial court err in granting as a remedy the transfer of custody of minor children in a protective order absent of showing that the transferee had a stable or safe home environment and where that person had significant long- term history of drug abuse and mental health issues?
2 Corporal Zachary Hill of the Anne Arundel County Police Department also testified at the hearing. Corporal Hill responded to the scene of the incident on September 7, 2023 in response to a call requesting a welfare check.
3 In reaching this conclusion, we decline to consider two documents referenced by Ms. Slack in her brief: an Anne Arundel County police report filed following the September 7, 2023 incident at Mr. Richards’s home and a “Child Advocate Assessment.” The circuit court excluded the police report as inadmissible hearsay at the protective order hearing. Furthermore, the Child Advocate Assessment seems to have been developed for the parties’ pending custody case. Ms. Slack never sought to introduce this assessment into evidence at the protective order hearing. In fact, it appears the assessment was not created until after the hearing took place. Neither of these documents, therefore, are appropriate for our consideration on appeal.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Montgomery County Circuit Court’s finding that wife was in constructive criminal contempt for violating the terms of a protective order. Constructive criminal contempt proceedings can be initiated only by the court, the state’s attorney, the Attorney General or the state prosecutor; it must be docketed as a separate criminal action; the order or petition must contain the information required in a charging document and it must be served with a summons or a warrant and in compliance with Rule 4-212. None of that happened here.
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.
they have two children together. On September 19, 2022, the court granted Mr. Nelson sole legal custody and primary physical custody of the children, with appellant having supervised visitation. On November 22, 2022, the circuit court granted Mr. Nelson an absolute divorce from appellant.
I.
Protective Order and Petition for Contempt
On March 7, 2023, Mr. Nelson filed a petition for a protective order against appellant. Mr. Nelson alleged that appellant had assaulted him while attempting to force her way into his home.
On March 14, 2023, the circuit court held a hearing on Mr. Nelson’s petition. The court granted the petition and entered a final protective order, which provided, among other things, that appellant shall not “contact, attempt to contact, or harass (in person, by telephone, in writing, or by any other means) DANIEL NELSON except to facilitate any child visitation ordered below.”
On September 15, 2023, in the Circuit Court for Montgomery County, Tanya Nelson, appellant, was found to be in constructive criminal contempt for violating the terms of a protective order. In a subsequent hearing, the court found that appellant had complied with the terms of the protective order since the contempt hearing and it imposed no further contempt sanctions.
On appeal, appellant presents the following questions for this Court’s review:
1. May the finding of criminal contempt stand where the circuit court violated Md. Rule 15-205 and Appellant’s due process rights?
2. May the finding of criminal contempt stand where the circuit court violated Appellant’s right to counsel and Appellant’s right to a jury trial?
3. Was the evidence insufficient to sustain the conviction for criminal contempt?
4. Did the circuit court err in trying Appellant in absentia?
For the reasons set forth below, we shall vacate the judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant and Daniel Nelson were formerly married, and
On August 18, 2023, Mr. Nelson filed a petition for constructive civil contempt against appellant, alleging that she violated the protective order by sending harassing text messages to him and his extended family. On August 21, 2023, the court issued a show cause order, directing appellant to appear in court on September 15, 2023, and show cause why she should not be held in contempt of the court’s March 14, 2023 order.1
On August 30, 2023, appellant filed a motion requesting dismissal of the petition for contempt. She alleged that the protective order “allows for contact to facilitate child visitation,” and “[a]ll communication[s] sent to Daniel Nelson were requests to facilitate child visitation.” She also argued that the communications sent to Mr. Nelson’s family were “initiated by” him. On August 31, 2023, the court denied the motion.
On September 8, 2023, appellant filed a motion requesting a continuance of the September 15, 2023 hearing “until the completion of the investigation of fraud reported to the Maryland Administrative Offices of the Courts.” Appellant requested that the court reschedule the hearing to a date after January 16, 2024. She also filed a motion to “shorten the time for a ruling on the motion for a continuance” of the hearing on the contempt petition. On September 12, 2023, the court denied appellant’s motion to shorten the time for a ruling on the motion for a continuance.
II.
Contempt Hearings
On September 15, 2023, the circuit court held a hearing on Mr. Nelson’s contempt petition. The court noted that appellant’s
motion for a continuance was pending, but appellant was not present in the courtroom. Mr. Nelson informed the court that appellant had been in the courtroom earlier, but the court proceeded without her and denied her motion for a continuance.
During the hearing, Mr. Nelson testified that appellant had sent him several text messages following entry of the final protective order. Copies of those text messages were admitted into evidence. In one message, appellant told Mr. Nelson that “it’s not good for me to agree to your limited interpretations of the current custody order,” and “[i]t is better that I follow the same rules that they already made up until they realize how dumb they are.” In another message, appellant told Mr. Nelson that, although she had tried “to be in our coparent dynamic,” she would “continue to oppose the current court order.” She proposed that “you and I could circumvent the Court by having a private discussion to come up with solutions that actually serve the best interests of our kids.” She asked for a good time to drop off a lasagna that she made for the kids, then texted that she did not need “to regularly inform the kids that you would not allow me to get the lasagna I made for them.” In other messages, appellant made comments that Mr. Nelson characterized as harassing and unrelated to visitation with the children under the agreed terms of the custody order.
At the conclusion of the hearing, the circuit court issued the following ruling:
The Court is going to find that [appellant] did, and certainly by her language, she clearly understood what she could and couldn’t do regarding contacting [Mr. Nelson] and she clearly indicated that she was not going to abide by the Court’s order in this case. I am going to find her in contempt at this time.
All right. I’m going to find that, due to the statements that she made in these communications, that [appellant] is guilty of criminal contempt.
During scheduling discussions for the upcoming sanctions hearing, but before the proceeding was concluded, appellant appeared in the courtroom. The judge instructed appellant to sit down, and he informed her that he had found her in criminal contempt. Appellant explained that she had been at the court since 9:30 a.m., but she did not hear the case called, and she went outside to wait. The court again advised that it had found her guilty of criminal contempt, and it scheduled a sanctions hearing for September 29, 2023.
That same day, the court entered an order stating that appellant was “in contempt.” The courtroom hearing sheet stated that the court had found appellant to be “in criminal contempt.”
On September 29, 2023, the parties returned to court for a sanctions hearing. Appellant appeared unrepresented. In response to the court’s question whether she intended to represent herself, appellant stated that she was representing herself based on the information provided to her as she “explored [her] options for representation.”
The court then heard from Mr. Nelson, who stated that appellant had “ceased . . . the harassing behavior.” He asked the court to order mental health assistance for appellant. The court
explained that it did not have the authority to order mental health treatment in the absence of evidence that appellant was a danger to herself or others. It then proceeded to address the issue of sanctions for the contempt finding.
Although the court stated at the September 15, 2023 hearing that it found appellant in constructive criminal contempt, the court discussed sanctions in the context of constructive civil contempt, stating the following:
Civil contempt is the power the [c]ourt has to compel people to behave in a certain way. It’s generally not to punish people, that would be criminal contempt. Civil contempt, which is what we have right here, is getting somebody to do something.
Mr. Nelson reiterated that, since the contempt hearing, appellant had been complying with the protective order.
Appellant stated that she did not believe that she had violated the protective order because she “was allowed to contact Mr. Nelson with respect to facilitating visitation between myself and the children.” The court told her that, pursuant to the protective order, she could contact Mr. Nelson regarding pick up and drop off times for the children, but discussions about dropping off food did not involve child visitation. Appellant indicated that, since she was not present at the contempt hearing, she could not review the communications provided, and she stated that, in her experience, Mr. Nelson sometimes edited information provided to the court. Nevertheless, she stated that, since the September 15, 2023 contempt hearing, she had “ceased all communication with Mr. Nelson with the exception of calling . . . or sending text messages, specifically with respect to having access to communicate with our shared children.”
The court found that jail time with a purge provision would not do anything to compel appellant to comply with the protective order. The court stated its belief that appellant had “changed her conduct” and would continue to “stay within the limits placed by the protective order.” Based on those findings, the court ordered that no further contempt sanctions were to be imposed against appellant.
This timely appeal followed.
DISCUSSION
Before addressing appellant’s contentions, we briefly discuss the law on contempt. As we explained in Maryland Department of Health v. Myers, contempt proceedings can be classified as direct or constructive and as criminal or civil:
Direct contempt occurs when the contempt is “committed in the presence of the judge presiding in court or so near to the judge as to interrupt the court’s proceedings.” Rule 15-202(b). Direct contempts may be summarily punished to protect the orderly administration of justice and vindicate the dignity of the court. Smith v. State, 382 Md. 329, 338 (2004); Espinosa v. State, 198 Md. App. 354, 387 (2011).
‘“Constructive contempt’ means any contempt other than a direct contempt.” Rule 15-202(a). In constructive contempt proceedings, the accused contemnor must have “an opportunity to challenge the alleged contempt and show cause why a finding of contempt should not be entered.”
Fisher v. McCrary Crescent City, LLC, 186 Md. App. 86,
119 (2009), cert. denied, 562 U.S. 1060 (2010). Civil contempt proceedings are “intended to preserve and enforce the rights of private parties to a suit and to compel obedience” with court orders and decrees. Dodson v. Dodson, 380 Md. 438, 448 (2004) (quoting State v. Roll and Scholl, 267 Md. 714, 728 (1973)). “Civil contempt ‘proceedings are generally remedial in nature and are intended to coerce future compliance.”’ Royal Inv. Group, LLC v. Wang, 183 Md. App. 406, 447 (2008) (quoting Roll, 267 Md. at 728), cert. granted, 408 Md. 149 (2009), appeal dismissed, 409 Md. 413 (2009). Regardless of the penalty imposed in a civil contempt action, it “must provide for purging.” Dodson, 380 Md. at 448. A purge provision offers the party “the opportunity to exonerate him or herself, that is, ‘to rid him or herself of guilt and thus clear himself of the charge.”’ Jones v. State, 351 Md. 264, 281 (1998) (quoting Lynch v. Lynch, 342 Md. 509, 520 (1996)).
Criminal contempt proceedings, in contrast, are intended to ‘“punish for past misconduct, which may no longer be capable of remedy.”’ Bradford [v. State, 199 Md. App. 175, 193 (2011)] (quoting Arrington v. Dep’t of Human Res., 402 Md. 79, 93 (2007)). The sanctions in these proceedings are “punitive in nature,” and therefore, they do not require a purging provision. Id. at 194 (quoting Arrington, 402 Md at 83). Unlike civil contempt, which generally must be proved by a preponderance of the evidence, the burden of proof in criminal contempt proceedings is beyond a reasonable doubt. Gertz v. Md. Dep’t of Env’t, 199 Md. App. 413, 423, cert. denied, 423 Md. 451 (2011).[2] 260 Md. App. 565, 614-15 (internal citations omitted) (quoting State v. Crawford, 239 Md. App. 84, 109-11 (2018)), cert. denied, 487 Md. 267 (2024).
Here, there were conflicting statements about the contempt finding. Although Mr. Nelson filed a petition for constructive civil contempt, and the court discussed civil contempt at the sanctions hearing, the court found appellant guilty of criminal contempt.3 Appellant contends that the court erred in finding her guilty of constructive criminal contempt for several reasons. She argues that the court violated Md. Rule 15-205 and her due process rights, and it erred in trying her in absentia. Appellant also asserts that the evidence was insufficient to support the finding of constructive criminal contempt.
“A court’s interpretation and application of a statute or case law in its finding of contempt is reviewed de novo for legal error.” Md. Dep’t of Health, 260 Md. App. at 614. The interpretation of the Maryland Rules governing contempt is also a question of law subject to de novo review. Mayor of Baltimore v. Prime Realty Assocs., LLC, 468 Md. 606, 616 (2020).
I. Procedure
Although constructive civil contempt proceedings may be initiated by “[a]ny party to an action in which an alleged contempt occurred,” Md. Rule 15-206(b)(2), constructive criminal contempt proceedings can be initiated only by the court, the State’s Attorney, the Attorney General, or the State Prosecutor. Rule 15-205(b). Such a proceeding must “be docketed as a separate criminal action” and cannot “be included in any action
in which the alleged contempt occurred.” Rule 15-205(a). The order or petition must contain the information required in a charging document, as set forth in Rule 4-202(a), and it must be served with a summons or a warrant and in compliance with Rule 4-212. See Rule 15-205(d). In addition, in a constructive criminal contempt proceeding, a court must comply with the provisions of Rule 4-215, regarding a defendant’s waiver of counsel, and Rule 4- 246, relating to a defendant’s waiver of his right to a trial by jury. See Rule 15-205(e), (f).
The contempt proceedings here did not comply with Rule 15205. See Pinkney v. State, 427 Md. 77, 87 (2012) (the Maryland Rules are “precise rubrics” that must be followed). The criminal contempt proceeding was not docketed as a separate criminal action, and it was not initiated by the court, the State’s Attorney, the Attorney General, or the State Prosecutor. Rule 15-205(b) (2)-(5).4 Moreover, neither the show cause order nor the petition for contempt served on appellant indicated that she was being charged with criminal contempt as required by Rule 15-205(d). See Dorsey v. State, 356 Md. 324, 349 (1999) (criminal contempt conviction reversed where petition failed to notify defendant that he was being charged with a crime and court improperly converted constructive civil contempt proceedings into constructive criminal contempt proceedings).
Moreover, the court abused its discretion in finding appellant in constructive criminal contempt in absentia. “Trial in absentia is not favored.” Pinkney v. State, 350 Md. 201, 218 (1998). Rule 4-231(b) provides that a “defendant is entitled to be physically present in person at a preliminary hearing and every stage of trial, except (1) at a conference or argument on a question of law; [or] (2) when a nolle prosequi or stet is entered pursuant to Rules 4-247 and 4-248.”
To be sure, a defendant may waive the right to be present. Rule 4-231(c) provides as follows:
Waiver of right to be present. — The right to be present under section (b) of this Rule is waived by a defendant:
(1) who is voluntarily absent after the proceeding has commenced, whether or not informed by the court of the right to remain; or
(2) who engages in conduct that justifies exclusion from the courtroom; or
(3) who, personally or through counsel, agrees to or acquiesces in being absent.
Before a court may try a defendant in absentia, it “must both (i) find a knowing and voluntary waiver of the right to be present at trial and (ii) exercise sound discretion in determining whether to proceed” in the absence of the defendant. Pinkney, 350 Md. at 213. “[V]oluntary absence must be clearly established and will not be presumed.” Id. at 217 (quoting Haley v. State, 40 Md. App. 349, 361 (1978)). This principle “is especially pertinent in a criminal case where the entire trial is conducted without the presence of the defendant” and where constitutional guarantees such as the right to confront witnesses are implicated. Id. at 214. When determining whether a defendant waived the right to be present, the court “must generally be satisfied of two primary facts: that the defendant was aware of the time and place of trial, and that non-appearance was both knowing and sufficiently deliberate to constitute an agreement or acquiescence to the trial court proceeding in his or her absence.” Id. at 215-16.
Although there are no required “investigatory measures” that a court must take before finding a voluntary waiver of the right to be present, “the record must reflect that adequate inquiry has been made to ensure that a defendant’s absence is not in fact involuntary. A court cannot presume waiver from a silent record.” Id. at 216-17.
Here, although the record supports the court’s finding that appellant was aware of the time and place of the hearing, it does not indicate that appellant knowingly and voluntarily waived her right to appear. At the start of the hearing, Mr. Nelson informed the court that appellant “was in the courtroom” earlier. The court stated: “It seems like [appellant] just assumed that we were going to grant [her motion for a continuance]. But I can’t hear from her because she’s not here . . . .” The court then proceeded with the contempt hearing.
At the end of the hearing, after the court had already made its contempt finding, appellant appeared in the courtroom. She explained that she had been at the courthouse since 9:30 a.m., and that she went outside to wait for the case to be called, but she “didn’t hear it called.”
Given that Mr. Nelson stated that he saw appellant at the courthouse earlier that morning and that appellant was actively engaged the proceedings against her, filing motions to dismiss the contempt petition and for a continuance of the hearing, the court should have made an effort to locate or reach appellant or determine why she was not present when the hearing began. Without any such inquiry, the court did not have a sufficient basis to presume appellant voluntarily waived her appearance based on her absence alone. Pinkney, 350 Md. at 223 (“[I]nadequate inquiry into [defendant]’s whereabouts on the morning of trial did not give it a sufficient basis to conclude that his absence was the product of voluntary choice.”).
Moreover, even if a court finds that a defendant waived the right to be present at trial, that is not the end of the inquiry. Id. at 218. The court must next “exercise . . . careful discretion,” id. at 221, to determine “whether to proceed in the defendant’s absence,” recognizing “that the public interest and confidence in judicial proceedings is best served by the presence of the defendant at trial.” Id. at 218. “The State’s legitimate interest in ‘keeping the trial calendar moving’ is not, standing alone, sufficient justification to try a defendant in absentia.” Id. at 220. “Trial in absentia should be the extraordinary case.” Id. at 221.5
Under these circumstances, we conclude that the court erred in finding appellant in contempt in absentia. Based on this error, and the failure to comply with Rule 15-205, we vacate the court order finding appellant in constructive criminal contempt.6
II.
Sufficiency of the Evidence
Appellant next claims that the evidence adduced at trial was insufficient to sustain the court’s finding of constructive criminal contempt. In that regard, she argues that the evidence failed to establish that she willfully or deliberately failed to
comply with the protective order. Although we have vacated the finding of constructive criminal contempt, we need to address appellant’s sufficiency claim because it implicates double jeopardy principles. Scott v. State, 454 Md. 146, 167 (2017).
“The standard for appellate review of evidentiary sufficiency is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Scriber v. State, 236 Md. App. 332, 344 (2018) (quoting Darling v. State, 232 Md. App. 430, 465 (2017)). Accord Ashford v. State, 358 Md. 552, 570-71 (2000). The relevant question “is not whether the evidence should have or probably would have persuaded the majority of fact finders but only whether it possibly could have persuaded any rational fact finder.” Scriber, 236 Md. App. at 344 (quoting Darling, 232 Md. App. at 465). “When making this determination, the appellate court is not required to determine ‘whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’” Roes v. State, 236 Md. App. 569, 583 (2018) (quoting State v. Manion, 442 Md. 419, 431 (2015)). “This is because weighing the credibility of witnesses and resolving conflicts in the evidence are matters entrusted to the sound discretion of the trier of fact.” Scriber, 236 Md. App. at 344 (quoting Darling, 232 Md. App. at 465).
Here, the court’s criminal contempt finding was based on appellant’s violation of the terms of the protective order. To sustain that finding, the evidence needed to show that appellant acted with the requisite intent in violating the protective order. Dorsey, 356 Md. at 352. In other words, there needed to be “a deliberate effort or a wil[l]ful act of commission or omission by the alleged contemnor committed with the knowledge that it would frustrate the order of the court.” Id. (quoting In re Ann M., 309 Md. 564, 569 (1987)). This mens rea requirement, “like scienter generally in criminal cases . . . ‘may be proven by circumstantial evidence and by inferences drawn therefrom.’” Id. (quoting Dawkins v. State, 313 Md. 638, 651 (1988)).
Viewing the evidence in the light most favorable to the State, we hold that the evidence was sufficient to support the court’s finding that appellant acted with the requisite intent. The protective order prohibited appellant from contacting Mr. Nelson for any reason other than to facilitate visitation with the children pursuant to the terms of the parties’ custody order. Mr. Nelson testified that appellant contacted him by text message and came to his residence for reasons unrelated to visitation. The text messages, which were admitted into evidence, show that appellant made comments indicating that she was unhappy with the custody order, that she would continue to oppose it, and that she and Mr. Nelson should “circumvent the Court” and privately discuss solutions involving the children. This evidence supported the finding that appellant’s contacts with Mr. Nelson constituted a willful violation of the court’s order. See id. The evidence was sufficient to support the court’s finding of criminal contempt.
JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY VACATED; COSTS TO BE PAID BY THE COUNTY.
FOOTNOTES
1 The show cause order included a notice pursuant to Md. Rule 15-206 informing appellant, inter alia, that it was alleged that she was in contempt and should go to jail, that she had a right to counsel at the contempt hearing, and that she could be subject to arrest if she did not appear at the hearing.
2 “Maryland Rule 15-207(e)(2) sets forth an exception to the rule that civil contempt must be proved by a preponderance of the evidence. When the constructive civil contempt proceeding is to enforce a spousal or child support order, the burden of proof is ‘clear
and convincing evidence that the alleged contemnor has not paid the amount owed.’” Md. Dep’t of Health v. Myers, 260 Md. App. 565, 615 (quoting Rule 15- 207(e) (2)), cert. denied, 487 Md. 267 (2024).
3 The court stated its finding of criminal contempt three times during the September 15, 2023 hearing, and the courtroom hearing sheet and docket entry also stated a finding of criminal contempt.
4 Because the court did not properly initiate a criminal contempt proceeding, a prosecutor was not appointed under Rule 15-205(c), and the State never became a party to the matter below. The State, therefore, is not a party to this appeal.
