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Maryland Family Law Update is a review of events as they affect the practice of domestic relations in law in the state of Maryland published by The Daily Record, 200 St. Paul Place, Suite 2480, Baltimore, Maryland 21202.
3 Child Advocacy: The work of the Victim’s Assistance Project
The Victim’s Assistance Project represents victims and survivors at a critical time in their lives; its goal is to ensure that its clients are free from any further harm and abuse. Its approach to eliminating domestic violence, sexual assault, and elder abuse relies on the social services of our local communities.
4 Cover Story: Md. appeals court reinforces new rules on voluntary impoverishment
A court must consider the totality of the circumstances in deciding whether a parent has voluntarily impoverished themselves, the Maryland Appellate Court held in a ruling last month that highlighted the legislature’s recent change to Maryland’s child support guidelines
6 In the News: Rulings on protective order, child support are upheld
In two reported opinions, the Maryland Appellate Court ruled in a Montgomery County case in which a wife who was denied a final order of protection filed a subsequent application, and a case in which a Kent County man was accused of willfully failing to provide child support payments for his two minor children.
7 Guest Column: The rise of pro se litigants in family law
A hot topic at American Bar Association national conferences across practice groups is the sharp rise in pro se litigants, particularly in family law cases. In some jurisdictions pro se litigants exceed 70% of all family law cases filed, and the numbers are climbing nationally, notes columnist Morgan E. Foster.
8 Monthly Memo
Baltimore City voters will not get to decide whether the city’s residents will receive a “Baby Bonus”-- a one-time payment of at least $1,000 to parents after the birth or adoption of a child -- the Maryland Supreme Court ruled Thursday. ... A Kentucky man attempted to fake his death to avoid paying child support obligations by hacking into state registries and falsifying official records, federal prosecutors said. … A Fairfax County, Virginia, judge has rejected a man’s motion to quash subpoenas issued by his ex-wife in a legal malpractice suit. … A 71-year-old French man admitted in court Tuesday that for nearly a decade, he repeatedly drugged his unwitting wife and invited dozens of men to rape her while she lay unconscious in their bed. … A federal judge has approved class-action status for a lawsuit challenging the placement of teens with mental health disabilities in New Hampshire’s foster care system.
The work of the Victim’s Assistance Project
Maryland Legal Aid is a statewide, nonprofit law firm that provides free, civil legal services to low-income and vulnerable people to address their most fundamental legal problems.
As Maryland’s largest legal services provider, MLA maintains 12 full-service offices throughout the state.
MLA supports clients seeking assistance with matters involving consumer law, elder law, employment law, health law, housing law, and family law, as well as criminal record expungement.
In 2016, MLA established The Victim’s Assistance Project to address ways to protect the rights of survivors of crimes, primarily victims of sexual assault, domestic violence, and elder abuse through legal representation, intervention, outreaches, trainings, and education.
The VAP provides free legal assistance to victims and survivors of domestic violence, dating violence, sexual assault, human trafficking, elder abuse, and stalking, to residents of Baltimore City, Baltimore County, Carroll County, and Howard County.
MLA attorneys who work in the Victims Assistance Project represent clients in matters involving divorce, child custody, child support, final protective orders, Title IX, victims’ rights, and elder abuse and exploitation.
The VAP team consists of paralegals and attorneys who are trauma-informed, compassionate, and zealous advocates.
VAP is funded through the Victims of Crime Act Victim Assistance Grant Program, established by the Governor’s Office of Crime Control and Prevention. Passed in 1984, the Victims of Crime Act uses non-taxpayer money generated by federal fines and penalties, to assist crime victims through direct service organizations, such as domestic violence shelters, rape crisis centers, and child abuse treatment programs.
BARILONE SOPHIA
Child Advocacy
Domestic violence, sexual assault, and elder abuse are widespread and pervasive in Maryland:
• About 1 in 5 adult women residing in the state have experienced completed or attempted rape in their lifetime, which is in line with the national average.
• About 44% women and nearly 25% of men have experienced other forms of sexual violence.
• At least 10% of adults aged 60 and older will experience some form of elder abuse in a given year, including financial exploitation, caregiver neglect, psychological abuse, physical abuse, and sexual abuse.
• In 2022, over 33,000 domestic violence crimes were reported.
• In 2023, 30 victims of domestic violence were killed, of whom 19 were intimate partners and 11 were bystanders.
In October 2023, one bystander case gained national attention. Washington County Circuit Court Judge Andrew Wilkinson was fatally shot outside his home by an aggrieved father after sole custody of their four children was awarded to his wife after evidence of his domestic violence.
Wilkinson’s tragic death is evidence of the widespread harm caused by domestic violence. Domestic violence is not merely interpersonal action, it devastates communities.
VAP’s approach to eliminating domestic violence, sexual assault, and elder abuse relies on the social services of our local communities.
VAP accepts clients through legal referrals from MLA’s community partners: TurnAround, Inc., CHANA, and
Springboard Community Services.
TurnAround, Inc. is a designated rape crisis center and comprehensive domestic violence center that provides services to victims and survivors of intimate partner violence, sexual violence, and human trafficking in Baltimore County, Baltimore City, and Howard County.
TurnAround offers safety planning and crisis response services, including a 24/7 crisis helpline.
CHANA is an agency of The Associated: Jewish Community Federation of Baltimore that provides trauma-informed supportive counseling, safety planning and crisis intervention, shelter, support groups, and prevention education to victims and survivors of interpersonal violence in Maryland. It serves clients of all faiths and ethnicities and provides workshops, information, guidance, and resources, including to local clergy members of all faiths, local schools, and clinicians.
Springboard Community Services is a nonprofit agency that provides free case management services to victims of intimate partner violence in Baltimore City, Baltimore County, Carroll County, Harford County, and Howard County and supports such as counseling, crisis assistance, including 24/7 domestic violence hotlines, training and prevention, and programs for youth and older adults.
Springboard is licensed by the Maryland Department of Human Services and the Maryland Department of Health to provide mental health treatment.
VAP represents victims and survivors at a critical time in their lives; its goal is to ensure that its clients are free from any further harm and abuse.
Sophia Barilone, Esq. is the supervising attorney who oversees the Victim’s Assistance Project at Maryland Legal Aid.
Appeals Court: Totality of circumstances must be weighed in voluntary impoverishment cases
By Rachel Konicezny RKonieczny@TheDailyRecord.com
A court must consider the totality of the circumstances in deciding whether a parent has voluntarily impoverished themselves, the Maryland Appellate Court held in a ruling that highlighted the legislature’s recent change to Maryland’s child support guidelines.
The unreported opinion, written by Judge Dan Friedman last month, determined the Montgomery County Circuit Court only considered the mother’s intent in changing jobs and not the totality of the circumstances—a test that considers factors such as the parent’s education level, efforts to find and retain employment, and past work history.
In Gorman v. Gorman, Monica Gorman appealed the circuit court’s determination that by leaving her job as an executive at New Balance Athletics and going to work for the federal government at lower salaries, she had voluntarily impoverished herself. The appellate court vacated the circuit court’s prior decision and remanded the case “without affirming or reversing for the circuit court to conduct the proper analysis.”
If the court finds a parent is voluntarily impoverished, child support may be calculated based on a finding of potential income. To determine how much income to impute to a parent found to be voluntarily impoverished, the court considers factors such as the parent’s age, physical and mental health, education and special training or skills, to name a few.
Maryland attorneys agreed that the appellate court issued the correct ruling in remanding the case,
Submitted Photo
“I think the totality of the circumstances test is, for me as a practitioner, a welcome change,” says family law practitioner Snehal Massey. “Often times in the past, we’ve had to present that evidence and now, the courts are required to look at that and consider it.”
but most have not found many cases where courts applied the totality of the circumstances test.
Vincent Wills, counsel for Monica Gorman, said he’s not aware of any case that discusses the totality of the circumstances because it’s new language.
Snehal Massey, a family law
practitioner at SPM Law, LLC, said she hasn’t seen many cases where the courts have considered voluntary impoverishment, yet alone observed the totality of the circumstances test.
But Massey said she embraces the totality of the circumstances test for evaluating voluntary im -
“It’s not necessarily as formulaic or set as you may think because with any family law case, every single one is different,” says attorney Martha White. “There are similarities, but the facts of each case are different.”
poverishment cases.
“I think the totality of the circumstances test is, for me as a practitioner, a welcome change,” Massey said in an interview. “Often times in the past, we’ve had to present that evidence and now, the courts are required to look at that and consider it.”
Joshua Tabor, a family law practitioner at D’Alesandro & Miliman, agreed that the totality of the circumstances test is important.
“I think the totality of the circumstances is important because less pay doesn’t always mean less money in your pocketbook or your pocket because of health insurance… and overall benefits,” Tabor said, noting the court can’t only look at whether the parent is making less money at a different job. “You have to look at all of the factors surrounding it, and the rationale why.”
“I think the totality of the circumstances is important because less pay doesn’t always mean less money in your pocketbook or your pocket because of health insurance… and overall benefits,” says family law attorney Joshua Tabor.
Meanwhile, Gregory Abney, counsel for John Gorman — the father in the case, said he has seen more cases recently where voluntary impoverishment is an issue.
“I think probably the change in the law and the addition of the totality of the circumstances, at least in some lawyers’ minds — my own included — kind of cracked that door a little wider than it had been in the past,” Abney said in a phone call.
Wills said the totality of the circumstances means considering “all the factors that the court has considered previously.”
“I think if you look at the plain meaning of the totality of the circumstances, I think (a holistic approach to the factors) is exactly what it is,” Wills said in a phone interview.
Martha White, a family law practitioner with Wasserman
White Family Law, cautioned that the totality of the circumstances test may not be as structured as lawyers think.
“It’s not necessarily as formulaic or set as you may think because with any family law case, every single one is different,” White said. “There are similarities, but the facts of each case are different.”
White said the Gorman opinion may not have a large impact on the family law legal landscape because courts have already been looking at the factors in considering voluntary impoverishment.
“I think a big thing is that a job change where you’re making less money isn’t everything,” White said. “I think people get that wrong, and I think they’re too quick to throw out voluntary impoverishment for people.”
Submitted Photo
Submitted Photo
In the News
Rulings on protective order, child support are upheld
Daily RecoRD staff
The Maryland Appellate Court ruled that where the wife was denied a final order of protection on June 14, 2023, her subsequent application for another final protective order – filed five days after the denial – was not barred by res judicata. The second proceeding raised new claims, including that after the June 14 hearing, husband threatened to kill wife.
The case is Hripunovs v. Maximova, No. 1169, Sept. Term, 2023 (filed Sept. 3, 2024).
From the reported appellate ruling: Sergejs Hripunovs and Elena Maximova were married on July 22, 2018, and have no children. The marriage has been marred with allegations of physical and emotional abuse, resulting in the issuance of multiple protective orders for both parties.
Relevant to this appeal, wife filed for an interim protective order on June 8, 2023, in the District Court of Maryland. In her petition, she stated that husband “came home on 6/7/2023 and started severely punching, grabbing and kicking me.” This interim petition for protection order was granted on the same day and later a temporary protective order was granted and extended. On June 14, 2023, the District Court of Maryland for Montgomery County denied wife’s request for a final order of protection.
On June 19, five days after her petition for protective order in the District Court was denied, wife filed a new petition for protection in the District Court of Maryland for Montgomery County. The judge entered the final protective order on July 21, 2023, which stated that wife demonstrated by a preponderance of the evidence that husband placed her in fear of imminent danger and caused serious bodily harm, including “[a]ssault in any degree
on June 14, 2023.” Husband argues that the circuit court erred because res judicata and collateral estoppel precluded wife’s claims and because the circuit court relied on prior findings of abuse when it entered a final protective order.
The court was not barred under the doctrine of res judicata because, although husband and wife were the same parties in the June 14, 2023, and the July 20, 2023, hearings for final protective orders, wife’s second petition for a final protective order constituted a different cause of action. The issues of abuse raised during those proceedings were not identical because wife raised a new allegation that, after the June 14 hearing, husband threatened to kill her.
For the same reason, the doctrine of collateral estoppel did not preclude wife from litigating the allegations of abuse during the final protective order hearing on July 20, 2023. The threat to kill wife constituted a new allegation of abuse, as did the allegations that since June 14, husband killed the parties’ kittens to upset and scare wife, and placed hidden cameras throughout the house and filmed wife without her knowledge or consent.
Judgment of the Circuit Court for Montgomery County affirmed.
Also, Maryland’s intermediate appeals court upheld two rulings in Kent County Circuit Court – one by a jury, the other from the bench -that a Kent County man had willfully failed to provide child support payments for his two minor children.
The case is Parks v. State, Nos. 26 & 27, Sept. Term, 2023 (filed Aug. 28, 2024).
From the reported appellate ruling: Brandon Parks was convicted in the circuit court of willfully failing to provide child support for two of his minor children in violation of §
10-203(a) of the Family Law Article, or FL, Maryland Code. The sole issue in each case is whether there was sufficient evidence of willfulness.
To support a conviction for willful failure to pay child support under FL § 10-203(a), there must be evidence from which the trier of the facts can determine that the obligor parent intentionally refused to support their child despite having the capacity to do so. Willful failure to support presupposes the existence of, or the ability to obtain, the means of support by the parent. In other words, the obligor parent must have the means of paying support or the capacity to obtain the means of paying support. Willfulness may be proven by circumstantial evidence and by inferences drawn therefrom.
In the first case, the appellant argues that the evidence was insufficient to prove his failure to pay child support was willful. He contends there was neither evidence of “substantial financial assets” from which he could have made payments nor evidence of “willful unemployment with the purpose of avoiding making support payments.” The court disagrees.
The evidence was sufficient to demonstrate that the appellant willfully failed to pay child support despite having the capacity to do so during the nonpayment period of May 2021 and May 2022. The appellant worked between one to four days per week, which amounted to about 10 to 15 monthly jobs. Although there was no evidence about the exact amount of his monthly income, the jury could have concluded that he earned or otherwise had the means to pay $800 monthly rent. Despite having funds to pay rent, none was used to pay the child support obligation during the nonpayment period.
Judgment of the Kent County Circuit Court affirmed.
The rise of pro se litigants in family law
A hot topic at American Bar Association national conferences across practice groups is the sharp rise in pro se litigants, particularly in family law cases. In some jurisdictions pro se litigants exceed 70% of all family law cases filed, and the numbers are climbing nationally.
At the same time, national brands like “Hello Divorce,” which offers low-cost document preparation and access to limitedscope, low-cost legal advice, are capitalizing on consumers’ desire to handle family law matters in an increasingly “DIY” fashion. Many litigants cite concerns about mounting costs as the primary motivation to file as an unrepresented party.
Can we, as practitioners, respond to this increasing consumer demand to do-itthemselves, or are we destined to relegate our profession to only represent the richest clients in the highest-conflict cases?
One option for providing clients with lower cost, more efficient service is to increase access to alternative dispute resolution early in the case, but there are structural disincentives to firms and attorneys encouraging early ADR.
This is a separate proposition from “court ordered mediation,” which only applies after litigation has been initiated. By that time, many litigants have become entrenched in their polarized “litigation-positions.” Early ADR presents clients with a different (more efficient and costeffective) opportunity.
Family law practitioners know that as a business proposition, a litigation case is usually far more lucrative than a mediation case (because it lasts longer and
Morgan E. Foster
requires more hours – allowing us to bill paralegals and staff as well as attorneys), so if we have to choose, it’s logical to think that most firms would drive clients toward litigation (rather than mediation).
If the Maryland Bar wants attorneys to encourage clients to mediate (or consider other ADR or Collaborative Law options) before litigating (which seems responsive to what consumers are telling us they want), it would help to remove some of the intra-firm concerns about being “conflicted out” of a case. There would need to be safeguards put in place to protect the confidentiality of the mediation process, but if practitioners could feel comfortable that their firm wouldn’t ultimately lose litigation business by encouraging clients
to mediate first (and assisting them as mediators), this would likely increase the chances that attorneys and firms would drive more cases into mediation and other ADR before litigation.
Traditional representation often feels (to clients) like a “blank check” with no end or promised outcome in sight.
Family law practitioners could respond to the shift in what consumers seem to want by considering flat-rate packages or limited scope representation to allow clients more options for predictable costs.
Attorneys would likely feel more comfortable taking on such limited-scope matters if it were easier (or faster) to get out of a case once it’s in litigation, or if our exit could be “automatic” at the expiration of a limited scope representation. Many lawyers now are wary of taking on limited scope matters if the matter is in litigation, because we feel we might get “trapped” in the case beyond what the client has agreed to pay us for.
To keep up with consumer demands and market trends, attorneys and firms will need to think creatively about addressing client needs and interests. The Maryland Bar and Maryland Judiciary could help pave the way for creative solutions that make sound business sense for practitioners while protecting client interests by making it easier (and safer) to offer flat fees, limited scope representation and removing disincentives to encourage mediation prior to litigation.
Morgan E. Foster is a veteran family law practitioner and the founder of The Pivot Process. She can be reached at morgan@pivotprocess.com.
Monthly Memo
Md. high court keeps ‘Baby Bonus’ off the ballot
Baltimore City voters will not get to decide whether the city’s residents will receive a “Baby Bonus”-- a one-time payment of at least $1,000 to parents after the birth or adoption of a child -- the Maryland Supreme Court ruled Thursday.
In a per curiam order, the Maryland Supreme Court determined that the “Baby Bonus” Amendment violates a provision of the Maryland Constitution because it is not proper “charter material” and therefore cannot be presented on the November general election ballot.
The high court’s detailed reasoning for the ruling is expected to follow at a later date.
The Maryland Child Alliance, an antipoverty group, led the effort to put the fate of the $1,000 bonus in the hands of voters via a proposed amendment to the Baltimore City Charter to ensure children born in Baltimore City have the basic resources needed to thrive.
Baltimore Mayor Brandon Scott and the Baltimore City Council had opposed the ballot measure, saying it was overly broad and legally unsound.
Daily Record staff
Hacker tried to dodge child support by faking his death, prosecutors say
A Kentucky man attempted to fake his death to avoid paying child support obligations by hacking into state registries and falsifying official records, federal prosecutors said.
Jesse Kipf, 39, of Somerset, was sentenced to nine years in federal prison after reaching a plea agreement where he admitted going to great lengths to avoid child support payments.
Kipf’s scheme began in January 2023 when he accessed Hawaii’s death registry system by using the username and password of a doctor living in another state, according to a media release from Carlton Shier, the U.S. attorney for the Eastern District of Kentucky. Once inside the system, Kipf created a case for his own death and completed a worksheet for a death certificate in that state, the federal prosecutor said.
The filing resulted in Kipf being registered as a deceased person in several government databases, the release said. Kipf also accessed other state registry systems and private networks using credentials taken from real people, and attempted to sell the access on the dark web, prosecutors said.
He must pay more than $195,000 in restitution for damage to computer systems and the remaining total of his child support, the government said.
Associated Press
Va. court rules that ex-husband can’t quash subpoenas as non-party in case
A Fairfax County, Virginia, judge has rejected a man’s motion to quash subpoenas issued by his ex-wife in a legal malpractice suit. Even though he was affected by the subpoenas, standing to quash or modify a subpoena duces tecum is granted only to the person to whom the subpoena is directed or a party to the litigation in which the subpoena is issued, Circuit Court Judge Jonathan D. Frieden ruled.
Firouzeh Dinarany sued Daniel Dannenbaum and Dannenbaum Law Firm PLLC for legal malpractice, alleging they failed to adequately represent her in her divorce from John Stark. Her counsel issued subpoenas to Citibank and TD Ameritrade. He served the subpoena on counsel for defendants, but not on Stark or his counsel.
Citibank fully complied with the Citibank subpoena. After alerting Stark to the Ameritrade subpoena, Ameritrade fully complied with the subpoena served upon it.
Stark sought to quash the subpoenas, despite the fact that all the documents responsive to the subpoenas had been produced. The matter is moot and the motion denied on that basis, the judge ruled. The case is Dinarany v. Dannenbaum, Case No. CL-2023-1823, Aug. 19, 2024.
BridgeTower Media
A French man admits in court to drugging his wife so he and dozens of men could rape her
AVIGNON, France — A 71-year-old French man admitted in court Tuesday that for nearly a decade, he repeatedly drugged his unwitting wife and invited dozens of
men to rape her while she lay unconscious in their bed.
His wife of 50 years, who has divorced him since his arrest, also got to speak, telling the court that she feels completely betrayed.
In a trial that has gripped France and raised awareness about sexual violence in the home and beyond, Dominique Pélicot told the court that he also raped his wife, Gisèle Pélicot, and that the 50 men standing trial alongside him understood exactly what they were doing.
Pélicot’s testimony marked the most important moment yet in a trial that has shocked the world. Although he previously confessed to investigators, his court testimony will be crucial for the panel of judges to decide on the fate of his codefendants, who range in age from 26 to 74. Many of them deny having raped Gisèle Pélicot, saying her then-husband had manipulated them or that they believed she was consenting.
Associated Press
New Hampshire class action approved for foster teens with mental health disabilities
A federal judge has approved classaction status for a lawsuit challenging the placement of teens with mental health disabilities in New Hampshire’s foster care system.
The lawsuit was filed against the state in 2021 and it has been amended since then. It says New Hampshire has “unnecessarily warehoused” foster care teens in institutional and group home care settings instead of with families, against their best interests. The state requested a dismissal, saying the plaintiffs did not prove their case. Efforts at mediation failed earlier this year.
U.S. District Judge Paul Barbadaro’s ruling Wednesday applies to children ages 14 through 17 who are or will be under supervision of the state Division for Children, Youth and Families, have a mental impairment and are at serious risk of being unnecessarily placed in a group care setting. The ruling says fewer than 200 teens could be affected.
Associated Press
Family Law Digest
Use the topic and case indexes at the back of this issue to find the full-text opinions that are of most interest to you.
IN THE COURT OF SPECIAL APPEALS: FULL TEXT UNREPORTED OPINIONS
CUSTODY; DUE PROCESS; BIAS
Jermaine Levont Hancock v. Lauren Elaine Greenwood
The Appellate Court affirmed the Harford County Circuit Court’s custody award regarding the parties’ four children. Contrary to father’s contentions, the circuit court did not violate his due process rights, did not err by admitting into evidence a partial video recording and did not have an “anchoring bias” in favor of mother.
The Appellate Court affirmed the Prince George’s County Circuit Court’s award of child support. The circuit court did not abuse its discretion when it denied father’s fourth postponement request or when it refused to reopen the evidentiary part of the case.
PARENTAL RIGHTS; INCARCERATION; BEST INTERESTS In Re: G.W.
No. 2234, September Term 2023
Argued before: Leahy, Friedman, Beachley, JJ.
Opinion by: Beachley, J.
Filed: Aug. 12, 2024
The Appellate Court affirmed the Anne Arundel County Circuit Court’s termination of mother’s parental rights over one of her children, G.W. Mother’s incarceration as a result of committing a violent crime made it “impossible” for her to maintain regular contact with G.W. or to participate in services necessary for him to return to her care.
The Appellate Court affirmed the Charles County Circuit Court’s award of sole legal custody and primary physical custody of the parties’ child to mother. The circuit court properly addressed the relevant factors in determining that it was in child’s best interest to award mother sole legal and primary physical custody, and the court’s findings were supported by evidence in the record.
The Appellate Court vacated the Montgomery County Circuit Court’s finding that mother had voluntarily impoverished herself by leaving an executive position at a private company and going to work for the federal government at lower salaries. The circuit court erred when it did not consider the totality of the circumstances.
The Appellate Court affirmed the Baltimore County Circuit Court’s finding that father’s two biological children were children-in-needof-assistance. There was sufficient evidence that the children were subjected to a substantial risk of harm from mother, and that father was “unable or unwilling to give proper care and attention to the child[ren] and the child[ren]’s needs.”
The Appellate Court affirmed the Anne Arundel County Circuit Court’s order granting father visitation with the child without allowing mother to know the location of the visits. The child was four years old and there was no abuse by either parent.
The Appellate Court affirmed the Frederick County Circuit Court’s entry of a protective order in favor of wife. The record did not support husband’s claim that he was denied due process or that he was denied the opportunity to present a defense.
The Appellate Court affirmed the Baltimore City Circuit Court’s award of sole legal custody and primary physical custody to mother. A reasonable factfinder could determine that it was in child’s best interest for mother to have sole legal custody and primary physical custody.
The Appellate Court remanded the case to the Prince George’s County Circuit Court. Through no fault of mother, the record is incomplete because of the lack of the transcript of the Nov. 6, 2023, hearing. The circuit court must thus explain what occurred at the November 6 hearing and the reasons for its decision.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Harford County Circuit Court’s custody award regarding the parties’ four children. Contrary to father’s contentions, the circuit court did not violate his due process rights, did not err by admitting into evidence a partial video recording and did not have an “anchoring bias” in favor of mother.
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 2015, and a son born in 2018. They separated in June 2021. Their relationship just prior to and during the separation was acrimonious, with each accusing the other of extramarital affairs and verbal and physical abuse. In addition to their testimony, other evidence elicited at the merits hearing (including numerous text messages between the parties), undisputedly demonstrated what the court later described as “the high-conflict nature of this case[.]”
During her testimony, Mother admitted to her role in some of the unsavory interactions between her and Father and expressed regret that some of them occurred in the presence of their children. She described the marriage as a “toxic relationship[,]” but claimed that since the relationship has ended, she has “changed” and “grown” with the help of therapy. Father also admitted that he and Mother “weren’t kind at all” in various text messages they had exchanged.
The Circuit Court for Harford County granted Lauren Elaine Hancock (now known as Greenwood) (“Mother”), appellee, an absolute divorce from Jermaine Hancock (“Father”), appellant.1 As for the custody of their four children, the circuit court awarded the parties joint legal custody with tie breaking authority to Mother; granted Mother primary physical custody of their oldest child and gave Father access to him “as the parties may from time to time agree[;]” and granted the parties shared physical custody of the three younger children based on a schedule giving Father “parenting time” with them every other weekend and overnights every Wednesday.
Father, who was represented by counsel during the litigation in the circuit court, noted an appeal and is representing himself in this Court. He makes three contentions related to the custody award: (1) the court violated his due process rights by “rush[ing]” his lawyer through his testimony and hampering his attorney’s ability to “present all of the evidence needed to receive a fair trial[;]” (2) the court erred in admitting into evidence a partial video recording which prejudiced him and not asking that the full video be submitted; and (3) the judge had an “anchoring bias” in favor of Mother and improperly based the custody decision on his failure to pay child support during the litigation.
Because we find no merit to Father’s arguments, we shall affirm the judgment.
BACKGROUND2
The parties married in 2006 and had four children together: a son born in 2007, a daughter born in 2012, a daughter born
In February 2022, in an apparent “settlement” following Mother’s filing of a protective order against Father, the parties agreed to a temporary child custody arrangement, which the court entered as a pendente lite consent order. This order provided, among other things, that the parties would “stay away” from each other’s residences; they would share joint legal custody of the children; they would share physical custody of the two youngest children pursuant to a set schedule reflecting equally shared access time with the children; the parties would share physical custody of the oldest two children pursuant to a particular schedule with the majority of their time in Mother’s care and alternating weekends with Father; and Mother would dismiss her request for a protective order.
Ultimately, the oldest son refused to visit with or engage with Father. The oldest daughter expressed ambivalence about the visits, sometimes refusing to go to Father’s house and other times content with being in Father’s care. At the time of the merits hearing, these two children were both in therapy.
Mother requested sole legal custody of all four children. She also sought primary physical custody of the three youngest children, with Father given alternating weekend visitation rights from 6:00 p.m. Friday to 6:00 p.m. Sunday. She requested primary physical custody of the oldest son, with “no required contact” between him and Father. Father asked for joint legal custody of the children and shared physical custody of the three youngest on a “50/50” schedule.
The children’s Best Interest Attorney (“BIA”) advised the court that the oldest son, then 16 and a half years old, “is in trauma therapy[]” and recommended that “the no contact” with Father continue. As for the oldest daughter, the BIA informed the court that he had spoken with the child’s therapist and
visited Father’s home when the children were with him and its “a tale of two cities.” On the one hand, the BIA related that the oldest daughter expressed she did not want to visit with Father, but during the BIA’s site visit at Father’s home, he observed a very loving family with no indication that she did not want to be there. As for the youngest two children, the BIA recommended maintaining “the 50/50” schedule and including the oldest daughter in that custody arrangement. The BIA also recommended that the parents be awarded joint legal custody, with Mother given tie-breaking authority.
On December 8, 2023 (about two weeks after the close of the merits hearing), the court convened a hearing to announce its findings and decision on the record. The court first noted that it had spent “a significant amount of time thinking about this case,” reviewed its notes from the testimony presented, reviewed all the exhibits entered into evidence, considered the arguments of the parties, and researched the issue. The court then granted Mother an absolute divorce. After addressing some marital property and retirement issues not in dispute here, the court turned to custody.
The court noted that it had “heard a lot of bad behavior on the part of both parties in this case, very bad behavior.” In addition, the court found that “[t]here’s a lot of troubling communications between the parties[,]” and “a lot of troubling behavior that [it] heard about and observed.” The court stated that, as a result, “[a]t some point, it just sort of becomes noise,” leaving the court “trying to sort out . . . what the factors are that really do matter” when making custody determinations. The court then reviewed some of the “particularly problematic” incidents one or the other party had initiated or escalated. The court found that many of the incidents involved “a lot of he said, she said in this case” and, again, observed that “[a]t some point, it just becomes noise and [the court has] to look for objective examples . . . to evaluate the party’s credibility and how to apply the custody factors[.]”
One concern the court had was an incident occurring in the midst of trial—and memorialized in text messages between the parties—regarding Father reneging on his agreement to allow Mother to have the children for Halloween 2023 because she did not immediately respond to a text message regarding the same. The court was troubled that Father could not “get away from this, kind of tit-for-tat bargaining[.]”
The court noted that Father had been assessed $170 and $360 in sanctions (representing attorney fees Mother had incurred) for failing to comply with discovery orders and that he had made no attempt to pay them, which concerned the court. The court also expressed concern about Father’s failure to make the previously ordered $500 per month child support payments and noted an arrearage of $11,587 as of February 28, 2023. Other than a one-time payment of $250 in March 2023, the court found that there had been “[n]o effort” to make those payments.3
The court also noted its concern about a protective order that had been issued against Father and a Department of Social Services (“DSS”) investigation regarding an alleged incident involving Father choking the oldest son—an incident Mother testified about, not having witnessed it firsthand, but observing its immediate aftermath—and DSS’s report regarding the same.4 The court stated that it had “review[ed] the DSS records
. . . start to finish.”
The court stated that it had “balance[d]” its concerns “against what [it] hear[d] from the best interest attorney, that Father has a great house with wonderful time with the kids.” The court found that the “children go back and forth from house to house and they end up probably enjoying time with both of the parties for the most part.”
The court then turned to the factors set forth in Taylor v. Taylor, 306 Md. 290 (1986) and Montgomery County Dept. of Social Services v. Sanders, 38 Md. App. 406 (1978), which a court considers when determining the best interests of the child in custody disputes. Among other things, the court found that the parties have “an enormous problem with communication” and difficulty making “shared decisions on behalf of these children.” The court found that, as for the “willingness of the parties to share custody,” Father was willing, but Mother was not. The court further found that the three youngest children have a good relationship with both parents and they “have a preference to see both the parents on a regular basis.” The court was concerned that the four children were on three different parenting time schedules and found that there was “[t]oo much back and forth.” The court concluded that it was in the children’s best interests to be on the same regular schedule.
The court granted joint legal custody to the parents, with tiebreaking authority given to Mother. The tie-breaking authority was subject to various conditions and guidelines.
The court awarded Mother primary physical custody of the oldest son, with Father given access to him “as the parties may agree[.]” The court awarded the parties shared physical custody of the three youngest children on the following schedule: Father has parenting time with the children every other weekend from Friday after school (or 4:00 p.m. if school is not in session) until Monday morning at school drop-off (or 9:00 a.m. if school is not in session), plus every Wednesday overnight from after school (or 4:00 p.m. if school is not in session) until Thursday morning at school drop-off (or 9:00 a.m. if school is not in session). For the summer months, the court expanded Father’s time on alternating weekends so that it begins at 9:00 a.m. on Fridays and ends at 4:00 p.m. on Mondays. The court also addressed vacation time and a holiday schedule.
As noted, Father filed an appeal.
STANDARD OF REVIEW
In an action tried to the court, we “review the case on both the law and the evidence” and “will not set aside the judgment of the trial court on the evidence unless clearly erroneous, [as we give] due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Md. Rule 8-131(c). “When a trial court decides legal questions or makes legal conclusions based on its factual findings, we review these determinations without deference to the trial court.” E.N. v. T.R., 474 Md. 346, 370 (2021) (citation and quotation marks omitted). We review a trial court’s custody decision for abuse of discretion. Basciano v. Foster, 256 Md. App. 107, 128 (2022).
DISCUSSION
I. FATHER RECEIVED A FAIR TRIAL, AND THE CIRCUIT COURT DID NOT VIOLATE FATHER’S DUE PROCESS RIGHTS.
Father’s first contention is that the court violated his due process rights by rushing his attorney through his testimony and not allowing his attorney to “present all of the evidence needed to receive a fair trial.” He asserts that the court sought to expedite the case after Mother had rested, and “time should have been taken out to hear [his] side.” He claims that there were “several false allegations that [he] was not able to defend” against and Mother “was allowed to testify for two days” but “when it came time for [him] to testify, all [the judge] heard was noise.”
First, Father does not indicate what evidence he wished to submit but claims he could not. Second, having read through all the transcripts, we disagree with his characterization of what transpired. The record reflects that the case was scheduled for a merits hearing for August 30 and 31, 2023 and that the parties had expected that two days would be sufficient.
The hearing on August 30 began with some housekeeping issues, including a discussion on sequestering witnesses and the submission of records from DSS, and some stipulations regarding the parties’ finances, child support, alimony, the marital home, a holiday schedule with the children, and Father’s access to the oldest child. The court also heard from counsel what each party was seeking in terms of custody, and counsel (including the BIA) presented their opening statements.
Thereafter, the court advised the parties that, “for the benefit” of the parties, the court hoped to finish the case in two days because it would otherwise be hard to start and then finish at a later day. Mother, as the plaintiff in the case, then began her case presentation by calling herself as the first of two witnesses. Father’s attorney began her cross-examination of Mother about 3:00 p.m. that day. The proceedings for the day ended before the cross-examination was completed.
The court advised the parties that cross-examination of Mother would resume the next day and expressed some concern “about finishing[]” the case. The court did state, however, that it believed that “everyone’s being efficient with their use of time . . . [a]nd the case is moving along[.]” The court informed the parties that, “if we don’t finish by tomorrow, that would be problematic, but it happens. But we’ll do the best we can, okay?”
Cross-examination of Mother by Father’s attorney resumed the next day. The BIA also cross-examined Mother, which was followed by a re-direct and a re-cross by Father’s counsel.
Mother then called her only other witness, her stepfather, who was examined and cross-examined. Mother’s counsel then moved into evidence some exhibits and rested her case.
Prior to breaking for lunch, the court then engaged in a discussion regarding the time Father needed to present his case. His counsel indicated that Father would likely be on the stand “a full day” and that the defense would be calling two additional witnesses. The court concluded the discussion by stating that they would “see where we are” at the end of the day and asked the parties what their schedules were like for the next day (September 1, 2023) in the event more time was needed to complete the case. Mother’s counsel indicated that she could adjust her schedule to be in court the next day, and the BIA said
he was available, but Father’s attorney said she could not be as she was catching a flight out of town.
The proceedings resumed at 1:55 p.m. with Father calling his mother, followed by his brother, as witnesses. Father then took the stand at approximately 3:30 p.m. and testified for about an hour before the court concluded for the day.
The parties returned to court in the morning on November 21, 2023 and Father’s direct examination resumed. Prior to him taking the stand, the judge informed counsel that he was available until noon, for a “solid two hours,” but expected to be available again by 1:15 p.m.
At 11:45 a.m., the judge reminded counsel that they needed to break at noon and asked how much more time counsel needed to complete Father’s direct examination. The court noted that Mother had “almost a full day” and Father had “about an hour or so” on August 31. The court indicated that it was “just trying to see if we can expedite the testimony here to wrap the case today” as that “would be ideal for the parties[.]” After inquiring whether Mother would have any rebuttal and whether the BIA intended to call any witnesses, the court and Father’s counsel engaged in the following colloquy:
THE COURT: Okay. All right, well let’s proceed. I would say I understand your desire to have him address some of the allegations that were made against him and some of the testimony that she gave, but I don’t need to hear everything about these incidents over and over. But go ahead.
[COUNSEL FOR FATHER]: And I understand, but I also think it’s important for you to hear his version of these events.
THE COURT: Of course it is. And it is, and that’s why I’m sort of guarding my language here. I don’t want to lead with the impression that I’m saying I don’t need to hear his response to the allegations. Because [Mother] did take a good bit of time going through all of this and I’m aware of what you’re accomplishing here is getting his response on some of these things.
[COUNSEL FOR FATHER]: I will do everything we can to expedite my questions. I’ve put off some other things, exhibits that I’m not going to admit. But certainly, during the break, I will look to see if I can condense, eliminate any testimony to move it long.
THE COURT: Well, we’ll continue until noon. It doesn’t sound like you’ll finish with him by noon, so.
[COUNSEL FOR FATHER]: No.
After the lunch recess,5 Father’s direct examination continued, followed by his cross-examination by Mother’s counsel and by the BIA, a redirect by his counsel and a brief recross-examination by Mother’s counsel. During this period, there were no further on-the-record discussions with the court regarding the time, and Father’s attorney rested without any request for more time to present his case. Mother’s counsel did not have any rebuttal witnesses, and the BIA did not present a case. The court allotted about 30 minutes for closing. Counsel for both parties, and the BIA, then gave closing statements. Court adjourned at 4:49 p.m.
Based on our review of the transcripts, we are not persuaded that the court rushed Father’s testimony nor deemed his testimony
and his side of the story to be simply “noise.” Moreover, we are not persuaded that Mother’s testimony significantly exceeded the time allotted for Father’s testimony. We also note that both parties submitted over 30 exhibits, as well as about eight joint exhibits. In rendering its decision, the court mentioned that it had reviewed its notes from the merits hearing as well as all the exhibits submitted by the parties.
II. THE CIRCUIT COURT DID NOT ERR IN ADMITTING A VIDEO INTO EVIDENCE.
Father contends that the court erred in admitting into evidence, during Mother’s testimony, a particular video (Mother’s Exhibit No. 18) Mother had recorded during an exchange of the children, which he asserts “played a key role in the trial.” He claims that the video provided “false” and misleading information because it had been “edited[,] and there was more to the video.” Although Father states that, during his testimony, he “mentioned [that] the full video” should have been submitted, he maintains that “[a]t no point did the Judge ask for it to be provided.”
We are not persuaded that the court erred in accepting the video into evidence.
Father’s counsel did not object prior to the playing of the video in open court. After the video was played, however, Father’s counsel did note an objection on the grounds that “it’s an abbreviation of the full video[]” and “doesn’t show everything.”
The court and counsel then engaged in the following colloquy: THE COURT: Okay. So I would be fine if you . . . wanted to provide the complete version of the video. I mean, the video itself was authenticated. It didn’t indicate to me it [would] be inadmissible. It’s been provided, right, in discovery? You’ve seen it before. I don’t think there’s anything wrong with presenting a shortened version of a longer video, as long as I give you the opportunity to present a longer version of it, if that’s what you would like.
[COUNSEL FOR FATHER]: Okay. Well, we’re not in possession of the video because it was - -
[COUNSEL FOR MOTHER]: (Unintelligible) inquire.
[COUNSEL FOR FATHER]: - - taken by [Mother].
[COUNSEL FOR MOTHER]: - - of my client about whether or not she did shorten the video.
Counsel then continued with her direct examination of Mother:
[COUNSEL FOR MOTHER]: [Mother], so we just watched a video. Was there more to the video? Did you only provide me a portion of the video?
[MOTHER]: In the very beginning he’s asking about [oldest son].
[COUNSEL FOR MOTHER]: Right This video starts at a particular point in time. Were there things that happened prior that you caught on video?
[MOTHER]: Mm-hmm.
[COUNSEL FOR MOTHER]: But when you provided it to me, you only gave me the last minute 11 - - and 11 seconds, but there was something else you captured by video before it?
[MOTHER]: Prior to[, Father] is asking me about [oldest son] and why [oldest son] [w]as not coming.
[COUNSEL FOR MOTHER]: Okay. So you have you have that video - -
[MOTHER]: Yes, I can send that to you.
[COUNSEL FOR MOTHER]: The entire video, right? [MOTHER]: Yeah. Mm-hmm, that’s no problem.
[COUNSEL FOR MOTHER]: Okay.
THE COURT: Okay. We can supplement it. I mean that’s, I’ll allow this, but I’ll make a note that there may be some additional - - how about this? You can allow your Counsel to see it. And you can show [Father’s counsel]. If she wants to make it a part of the record, then I would certainly - -
[COUNSEL FOR MOTHER]: Okay.
THE COURT: - - will make some accommodations for that. All right, so may be supplemented. So I’ll admit it with that stipulation, that characterization.
In short, Father’s counsel objected to the admission of the video on the ground that it was “an abbreviation of the full video” and did not “show everything.” The court overruled the objection with the understanding that counsel could later supplement it with the full video.
When the hearing resumed about three months later, Father, during his direct examination, testified about the incident portrayed on the video:
[COUNSEL FOR FATHER]: [W]e saw a video involving you and [Mother] and her mother. Can you tell me what was going on that day, at that exchange [of the children]?
[FATHER]: So that was the first time of - - you know, a few days before, I had just caught wind that [oldest son] was going through something. So I wasn’t being told what. So when I went to drop off [oldest daughter], I asked [oldest daughter], you know, could she just sit in the car for a second, I just needed to talk with her mom. [Oldest daughter] sat in the car, and I leaned against my car and just asked her what was going on with [oldest son]. And she’s just yelling and screaming she don’t have to tell me anything. And I was just like, “I don’t understand what’s going on or what I’ve done.” And I’m not aggressive with them, and I’m just trying to ask her what’s going on.
[COUNSEL FOR FATHER]: You’re not aggressive with whom?
[FATHER]: With [Mother] and her mom. [COUNSEL FOR FATHER]: Okay.
[FATHER]: And I’m just asking, [“[S]o what is actually going on?[”] And she’s like, “What haven’t you done? You’ve done a lot.” But I’m just like, “Okay, so what?” And she can’t explain. She just keeps yelling that I’m this and that and I’ve done a lot and she don’t have to tell me anything.
And her mom is yelling. I don’t really know what her mom is yelling, but they’re both recording. They’re both coming towards the car, as they’re still yelling and screaming.
[COUNSEL FOR FATHER]: So was that video, that was played, was that the entire interaction between you and [Mother] and her mother that day?
[FATHER]: Not even close. It’s missing a whole portion.
Purposely, they didn’t want to show them yelling and screaming and coming towards me. [Oldest daughter] would’ve have no idea what was going on. It’s the yelling and screaming and coming towards me aggressively that our child would even think something is wrong.
[COUNSEL FOR FATHER]: And at what point did that happen? Was that in the beginning, the middle, the end, that they were aggressive towards you?
[FATHER]: From the very beginning. Later in cross-examination, the video was again discussed.
[COUNSEL FOR MOTHER]: Now, you testified about the exchange that was videotaped and it was your testimony, prior to the video that we sa[w], that [Mother] was yelling at you?
[FATHER]: Yes.
[COUNSEL FOR MOTHER]: And that you were calm?
[FATHER]: Yes.
[COUNSEL FOR MOTHER]: And she was the one that was out of control?
[FATHER]: Yes.
[COUNSEL FOR MOTHER]: The behavior that we saw on that videotape, do you think your behavior was appropriate?
[FATHER]: I think my behavior was appropriate. I think maybe I could’ve picked a different time to try to communicate with her about it, but at that point, I hadn’t received any answers on what was going on with [oldest son] whatsoever.
It is not this Court’s role to search the record, but we see no indication that the full video, if it existed, was moved into evidence by either party. And despite his assertion to the contrary, it certainly was not incumbent upon the judge to request it. Nonetheless, Father testified as to what occurred immediately prior to the recording, thus giving context to the incident from his perspective. Finally, although Father asserts that the video “played a key role in the trial[,]” he does not support that assertion with any evidence from the record, and we note that, in announcing its findings and decision on the record, the circuit court did not specifically mention this video or the incident captured thereon.
III. THE CIRCUIT
COURT WAS NOT BIASED AGAINST FATHER AND DID NOT ABUSE ITS DISCRETION IN ITS CUSTODY AWARD.
Father maintains that the judge in this case “had an anchoring bias[]” and “believed what he was able to hear first.”6 He also asserts that the judge’s decision was “based on [Father’s] inability to pay the full child support between hearings” because he was paying his lawyer, as well as the BIA, but contends that “child support does not have any bearing on visitation.” Father also points out that the BIA, who he claims had met with the children several times, had recommended “50/50 physical custody[]” and the court “completely went against [the BIA’s] recommendations.”
First, Father does not support his allegation that the judge was biased with any examples or citation to the record. Moreover,
given that Mother was the plaintiff, her case naturally was presented first. But, in any event, it is clear to us that the circuit court carefully considered all the evidence in this case. Prior to announcing its findings and decision, the court stated that it had “considered the testimony and the evidence presented by the parties[;]” reflected on its “observations of the parties in this case” and on its “notes from their testimony[;]” reviewed “all of the exhibits[;]” and “considered the arguments of the parties[.]” The court reiterated, “for the record,” that it “did review all of it, every bit of it, more than once, frankly.”
It is true that the circuit court was “very troubled” by Father’s failure to pay the interim child support payment of $500 monthly during the litigation (and the arrearages totaling over $11,000) and by his failure to satisfy two orders ($170 and $360 respectively) assessed against Father for discovery violations. The court found that, “[i]t’s one thing if he’s paying portions of it, attempting to comply with the orders, but he just totally disregards the concept of child support.”7
Nonetheless, we are not persuaded that the court’s custody award was based solely (or even in large part) on Father’s failure to make these payments. The court was also troubled by “some of the childish behavior both parties engaged in,” but found that Mother seemed to have “turned the corner away from that behavior” while Father “is still engaging in it to some extent.” One example the court pointed out involved the incident in the midst of trial where Father reneged on his agreement to allow Mother to have the children for Halloween that year because she failed to immediately respond to his text message about it. The court found that “[Father] was unable to . . . get away from this, kind of tit-for-tat bargaining that he had engaged in[.]” Of particular concern to the court were allegations that Father had engaged in some physical altercations, and in particular, a “choking incident” with the oldest son.
The court was aware of the DSS investigation and its report that included an admission by Father, in the court’s words, of “some kind of maybe stepping over the line physical discipline[]” of the children. The court was also mindful of the final protective order that had been issued against Father.
As for the BIA’s recommendation, the recommendation was just that—a recommendation. The court was not bound to accept it nor required to explain why it did not. Moreover, although Father had requested shared physical custody on a “50/50” bases, Mother had requested primary physical custody with Father having visitation every other weekend from 6:00 p.m. Friday to 6:00 p.m. Sunday. The court awarded the parties shared physical custody, giving Father parenting time every other weekend from Friday after school until Monday morning at school drop-off (with expanded hours in the summer), as well as overnights every Wednesday. In other words, in terms of physical custody, the court awarded both parties less than what they requested and awarded Father more time with the children than what Mother desired.
In sum, we are not persuaded that the court was biased against Father or abused its discretion in its custody award.
JUDGMENT OF THE CIRCUIT COURT FOR HARFORD COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 At the time of the divorce and the custody award, appellee was known as Lauren Elaine Hancock. On appeal, both parties refer to her as Lauren Elaine Greenwood and, accordingly, we shall modify the case caption in this Court to reflect the name change.
2 We present only the facts necessary to provide context to the issues before us on appeal. We assure the parties, however, that we have read the transcripts from the merits hearing held on August 30 and 31, 2023 and November 21, 2023, as well as the transcript from the December 8, 2023 hearing where the court announced its findings and decision. We have also reviewed the many exhibits entered into evidence during the hearings.
3 In his testimony, Father stated that he had not paid the $500 in child support pursuant to an interim order the court had issued on March 10, 2023 because the case was “still being in litigation” and it was “very challenging to . . . still take care of our kids as well as pay two lawyers.” He testified that “it’s pretty much impossible to do when you’re still paying thousands and thousands of dollars in lawyer fees.”
Mother testified that, after the parties had separated in June 2021, Father had given her approximately $500
monthly, but since December 2021, he had only given her $250 once, which was on March 30, 2023. She did acknowledge, however, that when the air- conditioning in the marital home stopped working, Father had it fixed; but, when it stopped working again, she had it fixed. She also testified that, during the separation, she alone made the mortgage payment, which totaled over $2,000 per month.
4 In his testimony, Father denied that he had ever choked his son.
5 It is not clear from the transcript what time the hearing resumed after the lunch break.
6 “Anchoring bias” has been described as “people’s tendency to rely too heavily on the first piece of information they receive on a topic. Regardless of the accuracy of that information, people use it as a reference point, or anchor, to make subsequent judgments.” Kassiani Nikolopoulou, What is Anchoring Bias?, SCRIBBR, Scribbr.com/research-bias/anchoring-bias (last visited Aug. 15, 2024).
7 At the August 31, 2023 merits hearing, Father testified that he is employed as a “talent acquisition manager” in the human resources department of an independent living facility and earns about $88,000 annually.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Prince George’s County Circuit Court’s award of child support. The circuit court did not abuse its discretion when it denied father’s fourth postponement request or when it refused to reopen the evidentiary part of the case.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
11 of that year, Ashley filed a motion for physical and legal custody of J. and child support, which triggered a counter motion for similar relief by Michael in May of that year. On March 10, 2023, the court denied Michael’s motion to dismiss Ashley’s petition. On March 29, Pawnee Davis, Esq., of the P.A. Davis Law Office, entered her appearance for Michael and, on May 12, filed a countermotion to modify custody and support on the ground that Ashley had exercised her tie-breaking authority inappropriately.
Although the settlement agreement required the parties to participate in at least four hours of mediation in the event of such a dispute, they had, in fact, engaged in only two hours of mediation. Michael notes that fact in the Statement of the Case section of his brief but did not raise it as an issue in the argument section. Ashley responded that the parties had made as much progress as possible in their June 23, 2022 mediation and that any further effort in that regard would simply have added unnecessary expense.
Michael Cristler and Ashley Drapeau got married in Massachusetts in May of 2012. At some point, they adopted J., a special needs child who was born in September 2013, and at some later point, the three of them moved to Prince George’s County, Maryland. The appellate briefs do not tell us precisely when the adoption and the move occurred, but the exact dates are not important to this case.
By mutual agreement, Michael and Ashley separated in September 2016, and, in October 2017, they entered into a written settlement agreement that, among other things, provided for (1) the disposition of their marital property, (2) shared care, custody, and support of J., (3) a mutual waiver of alimony and the payment of child or spousal support from one parent to the other, and (4) the mediation of disputes concerning the interpretation, construction, and enforcement of the Agreement.
With respect to custody, paragraph 9 sets forth a schedule under which each parent would have physical custody of J. the same number of days each year. Consistent with that, in paragraphs 42 and 43, they acknowledged that their actual and potential incomes were approximately equal and that they would share the basic expenses for J. equally, with neither party making any direct payment to the other.
In conformance with that Agreement, the parties were divorced a month later, in November 2017. Ashley has since remarried. Unfortunately, the shared custody arrangements fell into conflict, which, in September 2018, led to cross petitions to modify the custody arrangements but resulted only in a May 2019 court award of final decision-making authority to Ashley.
That brought a respite to judicial activity until 2023. On January
That issue was raised again on the third day of trial on November 21, 2023, in the context of Michael’s motion to dismiss Ashley’s request for a modification of the custody arrangements. After having then engaged in three days of trial, the court found the motion to dismiss untimely and denied it for that reason. We find no reversible error in that decision. To send the case back for an additional two hours of mediation after three days of trial would have made utterly no sense. The parties were, and remain, as far apart as they ever were.
On March 1, 2023, the court set trial dates of July 10 and 11, 2023. At Michael’s request, but ultimately with the consent of Ashley after an initial denial by the court, the trial was postponed until September 27 and 28, 2023, with a carryover date of November 21, 2023. That was Michael’s third motion to postpone the trial.
Very early on the morning of September 27 – at 4:08 a.m. –Michael’s attorney (Ms. Davis) informed Ashley’s attorney (Matthew D. Alman) that due to back pain she would not be appearing for trial, and she did not in fact appear.
She was not too disabled to file another motion, at 8:15 a.m., to postpone the trial – the fourth such motion filed on behalf of Michael.1
The postponement issue initially came before Judge Wytonja Curry at 9:01 a.m. Ashley’s attorney opposed a postponement, noting that he had spoken with Ms. Davis the day before and “she sounded fine.” Judge Curry responded that her judicial assistant had contacted Ms. Davis to determine whether she could participate remotely from her home, which she declined.
At that point, the matter was referred to Judge Kelsey, the Administrative Judge, before whom Michael contended that this would be the first continuance. Judge Kelsey immediately corrected him, noting that there had been several prior continuances. Mr.
Alman contended that this was the fourth continuance requested by Michael.
Judge Kelsey determined from a review of the file that the person “who may really be suffering here is the child with no final outcome,” that “the court’s primary goal is to consider the best interest of the child,” that the problem “seems to be a continuing matter with respect to your attorney,” and “that this case has to move forward.” Accordingly, she denied the request for another continuance, and the case was returned to Judge Curry for trial.
The September 27 session dealt with testimony by Ashley in support of her petition to alter the custody and support arrangements, including cross- examination by Michael, which continued on the 28th.
On November 6, Michael’s attorney filed a fifth motion for continuance, claiming she had a scheduling conflict. The court denied that motion.
The final day of trial was on November 21, 2023, which was largely for the purpose of allowing Michael to present his case. No attorney appeared for Michael, even though a month had elapsed since Ms. Davis’s bout with back pain.2
After a few preliminaries, Michael asked to recall Ashley to complete his cross-examination. Ashley’s attorney objected. Michael responded that there were discrepancies in Ashley’s financial statements, that he did not have the opportunity to review earlier, and that he needed only ten minutes, which the court allowed. Nonetheless, the court sustained the objection, ruling that, although she would allow him the ten minutes to inquire about any new matters, he would not be permitted to engage in further crossexamination regarding matters dealt with in September.
The trial itself ended on November 21. The case ended five weeks later when, on December 28, 2023, the court entered its Amended Opinion and Order. In a victory for Michael, the court denied Ashley’s Petition for a Modification of Custody, declaring that “no change in circumstance has taken place in this matter. Both parties agree that the minor child has a straight A average and that many of his prior disorders have improved” and that the difficulty the parties had in communicating was resolved by giving Ashley tie- breaking authority.
In a victory for Ashley (and J.), the court concluded that Ashley’s income had become “significantly divergent” from Michael’s and that, pursuant to the Maryland Child Support Guidelines, Michael was obligated to pay child support in the amount of $546 per month, commencing from February 1, 2023 (the filing date of the modification order), which created a deficit of $6,552 as of December 28, 2023. The court ordered that deficit to be discharged by an additional payment of $50 per month commencing January 1, 2024.
Michael has appealed, raising four complaints, which we shall take in order:
1. The court erred when it denied Michael’s attorney’s motion to postpone the modification trial and required Michael to proceed without counsel.
The parties agree that a decision to grant or deny a motion to postpone a hearing is within the discretion of the court. Rule 2-508; Touzeau v. Diffinbaugh, 394 Md. 654, 669 (2006); Attorney Grievance v. O’Neill, 477 Md. 632, 661 (2022). A reviewing court, in determining whether that discretion has been abused, looks to determine whether it was exercised in an arbitrary or capricious manner, whether it was manifestly unreasonable, without reference to any guiding rules or principles, and is violative of fact or logic. Touzeau, supra.
We do not take lightly that the impact of denying the motion to postpone left Michael without an attorney for the September 27 hearing. It is not clear from the briefs why Ms. Davis was unable to participate remotely on the 27th – only that she declined to do so. She says in her brief that “it was painful and difficult to move around and walk,” which would have been largely unnecessary had she accepted the court’s invitation to participate remotely from her home. Nor does she explain why she could not participate on September 28, much less in November. We do know that she was able to file a postponement motion at 8:15 a.m. on September 27. This was the fourth postponement requested by or on behalf of Michael. In denying this request, the court expressed legitimate concern about the interest of J., who was allegedly and ultimately found to having been denied a significant measure of child support. We find no abuse of discretion in denying the motion to postpone.
2. Failure to follow Rule 16-302 and the county’s Case Management Plan
Rule 16-302(b) requires each County Administrative Judge to develop and, upon approval by the Chief Justice of the Maryland Supreme Court, to implement a case management plan for the prompt and efficient scheduling and disposition of actions in the circuit court of the county. The Circuit Court for Prince George’s County has adopted such a plan that contains provisions for settlement conferences and ADR in an effort to resolve disputes amicably, without the time and expense of a trial.
Michael complains that those techniques were not afforded in this case and that, had they been, it is “possible that there would have been a settlement of some or all of the issues.” He complains that there was no scheduling conference, no pretrial conference, no discovery deadline or, nothing to “facilitate an amicable resolution.”
This case was specially assigned to Judge Wytonja Curry in 2019. That is permissible under the Prince George’s County Case Management Plan. If a case is so assigned, that judge is responsible for the effective management of the case, including the selection of a trial date, so long as it is consistent with case time standards. Motions for a postponement are handled by the assigned judge. Judge Curry was, in fact, the judge who tried the case and rendered the judgment.
Michael did request a scheduling conference and complained about the lack of a Pretrial Statement in June 2023, when the July trial dates were pending, which was denied That was part of a motion to continue those trial dates. As noted, those trial dates were eventually postponed, but the request for administrative relief was not renewed with respect to the September proceedings. At that point, but for Ms. Davis’s back pain, both sides were prepared
to try the case.
We do not condone the court’s failure to follow in full the requirements of the case management plan, but it seems at least doubtful that there was any likely prospect of the parties settling this case, and the need to resolve the child support issue, which had been pending for nearly ten months, was a pressing one. As the court later found, since February, J. was being deprived of $546 per month in child support and Michael was filing one motion to postpone after another.
3. The court abused its discretion in limiting Michael’s cross- examination and not permitting impeachment evidence.
Michael began his cross-examination of Ashley on the afternoon of September 27. Ashley contends that he cross-examined her “during the entire afternoon,” which Michael does not deny, and he continued that cross- examination for nearly the entire morning of the 28th, at the end of which he said that he had no further questions “at this time.”
The September hearings involved the presentation of Ashley’s case, including cross-examination by Michael. The November hearing was for the presentation of Michael’s case. He said that he wanted to recall Ashley to present evidence regarding her financial statement that needed clarification.
The court agreed that he could recall Ashley as his witness. It stated “if there is something new that you need to [ ] recall her for a particular purpose, I will allow you to do that. But we are not going to reiterate the testimony that we have exhausted in this case,” to which Michael responded, “Yes ma’am.”
Michael treats that as an impermissible denial of crossexamination. Apart from the fact that he appeared to accept the court’s ruling, Rule 5-611 (a) requires the court to “exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.” See also Stouffer v. State, 118 Md. App. 590, 625 (1997); Myer v. State, 403 Md. 463, 476 (2008).
Michael was not denied the right to cross-examine Ashley. He exercised that right in September.
The issue of Ashley’s bank statements arose at the end of
FOOTNOTES
1 At 8:47 a.m., Judge Curry’s judicial assistant emailed Ms. Davis inquiring whether she could participate in the hearing from home, noting that the court could obtain a zoom link for her. At 10:05 a.m., Ms. Davis responded that she was lying down and could not get up. At 10:29 a.m., she informed the aide that she had a telemedicine appointment with her doctor scheduled
the November 21 hearing when, following cross-examination by Ashley’s attorney, Michael wanted to recall Ashley to answer questions regarding her financial statements, that Michael claimed were fraudulent. In response to the court’s question, Michael said that his attorney had that information earlier. At that point, the testimony had been concluded and final arguments were about to begin. We find no error in the court’s refusal to reopen the evidentiary part of the case.
4. The evidence did not support the child support award.
As noted, in its Amended Opinion and Order, the court found that child support of $546 per month was due from Michael, although it did not recite the calculations regarding that determination in its Opinion but simply noted that Ashley had provided sufficient information for the purpose of making that determination. That number was calculated in accordance with the Child Support Guideline Worksheet.
That worksheet shows Ashley’s monthly income to be $8,422 and Michael’s monthly income to be $14,724. The issue is where the $8,422 number came from. Ashley’s evidence showed there were three sources. One, about which there appears to be no controversy, arises from monthly disability benefits in the amount of $2,035.68 that she receives from the Veterans Administration. A second source is $4,166.67 per month from the 20 hours per week that she works for George Washington University.
The third is from the 30 hours a week she works for the Center for Integrative Medicine. That appears to be a contractual employment that does not produce monthly or weekly checks. Evidence was produced of checks totaling $21,670 over a 11-month period. The court considered only the $13,315 she earned from January to June of 2023, which amounted to $2,219 per month.
Michael complains that the court should not have considered the check for January 2023 because it was for work performed in 2022, but, as Ashley notes, if the court had done that and counted instead one-fifth of the $10,900 Ashley earned in 2023, her income would have been even less.
CONCLUSION
There were some lapses in this case, which, in large part, were due to Michael’s persistent effort to avoid trial on Ashley’s petition and his attorney’s unexcused absence from all three of the hearings conducted by the court. We find no reversible error.
JUDGMENT AFFIRMED; APPELLANT TO PAY THE COSTS.
for 1:00 p.m. Altogether, it appears that, despite her back pain, she sent nine emails that morning.
2 At the conclusion of the hearing on September 28, the court inquired whether Michael’s attorney (Ms. Davis) was still representing him, and Michael replied, “[a]s of right now, I believe so.” It seems that Ms. Davis was still in the case. She filed the appellate brief for Michael on May 21, 2024 and a reply brief on July 11, 2024.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 06 MFLU Supp. 20 (2024)
Parental rights; incarceration; best interests In
Re: G.W.
No. 2234, September Term 2023
Argued before: Leahy, Friedman, Beachley, JJ.
Opinion by: Beachley, J.
Filed: Aug. 12, 2024
The Appellate Court affirmed the Anne Arundel County Circuit Court’s termination of mother’s parental rights over one of her children, G.W. Mother’s incarceration as a result of committing a violent crime made it “impossible” for her to maintain regular contact with G.W. or to participate in services necessary for him to return to her care.
granting the Department’s petition for guardianship and effectively terminating Mother’s parental rights (“First TPR Order”).
Mother appealed the First TPR Order to this Court. In Re: G.W., Nos. 2022 & 454, Sept. Term 2022 (filed Dec. 4, 2023). The appeal was dismissed as untimely, but the case was remanded for further proceedings on a procedural matter. Id., slip op. at 25. On remand, the parties consented to the issuance of a new TPR order and stipulated that there had been no material change in circumstances since the hearing in November of 2022. On January 18, 2024, the court issued a second order terminating Mother’s parental rights (“Second TPR Order), the terms of which are essentially identical to the terms of the First TPR Order. Mother filed this timely appeal from the Second TPR Order.
Evidence Introduced at the TPR Hearing
This is the second time that appellant, S.B. (“Mother”), has appealed an order from the Circuit Court for Anne Arundel County, sitting as a juvenile court, which provided for the termination of her parental rights over one of her children, G.W. In this appeal, Mother presents a single question for our review, which we have rephrased as follows:1
Did the court err in terminating Mother’s parental rights?
For the reasons set forth below, we shall affirm the judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
Mother has seven children. This case involves G.W., her youngest child, who was born in April of 2020. The other six children, who are all half-siblings to G.W., are between one and twelve years older than G.W.
In July of 2020, Mother fatally stabbed “Mr. D.”, the father of the six older children. She was convicted of manslaughter and was given an eight-year executed sentence commencing on July 5, 2020.
On October 7, 2020, G.W. was adjudicated to be a Child in Need of Assistance (“CINA”).2 The initial permanency plan was reunification with G.W.’s biological father (“Father”). Father was initially involved in the CINA case and was provided reunification services by the Anne Arundel County Department of Social Services (“Department”). Unfortunately, he died on September 18, 2021. The Department explored another potential relative placement, to no avail.
On May 20, 2022, G.W.’s permanency plan was changed to adoption by a non- relative. On June 16, 2022, the Department filed a petition for guardianship with the right to consent to adoption or long term care short of adoption.
The court held a two-day termination of parental rights (“TPR”) hearing in November of 2022. Mother was represented by counsel, as was G.W. On December 20, 2022, the court entered an order
Because the parties stipulated that there had been no material change in circumstances since the hearing in November of 2022, the Second TPR Order was based solely on evidence introduced at that hearing. The Department’s evidence consisted of a five-page written stipulation of facts, and testimony from two social workers who had been assigned to G.W.’s case.3 G.W.’s foster parent was called as a witness by counsel for G.W. Mother testified in her case and also presented testimony of a friend, “Ms. P.” The following is a summary of the evidence considered by the juvenile court.
a. Department’s Involvement Prior to G.W.’s birth
The Department’s first interaction with Mother and her family was in 2016. At that time, the Department conducted a family assessment, and the case was closed.
In April of 2017, the Department was again involved with the family after Mother tested positive for cannabis upon the birth of her fifth child. Mother was referred for a substance abuse assessment. She was also provided with information about discipline practices, birth control, and applying for temporary cash assistance. That case was closed on or about May 26, 2017.
In November of 2019, Mother reported that she felt overwhelmed by caring for the children. The Department was concerned that the children were experiencing hunger, were inadequately supervised in the home, and were exposed to domestic violence between Mother and Mr. D. Mother was referred to the Community Resource Initiative Care Team (CRICT)4 to address “neglect concerns” regarding all of her children. As a result of this referral, the family was provided with services, including therapy; financial assistance for after-school programs for the children; financial assistance with utility bills; help with applying for child support, food stamps, and temporary cash assistance; help with reactivating medical assistance; transportation to food and baby supply pantries; bedding for the children; and household/personal hygiene supplies.
In January of 2020, three months before G.W. was born, the Department provided Mother with emergency family services. A family assessment was conducted on February 25, 2020. The Department again recommended that Mother participate in CRICT services. The family was provided with a car seat and gift cards to purchase baby items. The school- aged children received help from
school staff with their weekly assignments.
b. G.W. is Born Prematurely
Mother did not receive prenatal care while pregnant with G.W. In April of 2020, G.W. was born prematurely, at home and without medical help. He was determined to have “Failure to Thrive.”5
After G.W.’s birth, the Department continued to provide Mother with services to address concerns it had about G.W.’s health and to “assess further needs.” G.W. had missed several appointments for medical care. The other six children had outstanding medical, dental, and vision care needs. Mother had not participated in mental health treatment that had been recommended, and there was a “need to address” her financial situation. The Department located a pediatrician for G.W., scheduled medical appointments, applied for and transported G.W. to and from appointments, paid for the initial medical appointment, secured medical assistance for G.W., and applied for G.W.’s birth certificate and social security number. The Department also scheduled and transported the older children to a pediatrician for physicals and immunizations.
c. Mother is Charged with Murder
On July 5, 2020, Mr. D., the father of G.W.’s half-siblings, died after suffering a stab wound to his chest. Mother was arrested and charged with second degree murder and possession of a dangerous weapon with intent to injure. According to the statement of probable cause introduced into evidence, Mother told police that she asked Mr. D. to leave the house but he “kept coming back[.]” She armed herself with a kitchen knife and held it up as Mr. D. “advanced on her” in an encounter outside the house. Mother told police that Mr. D.’s chest “collided with the knife” but that the knife blade bent and did not penetrate his body. She said that Mr. D. walked away and that she went back inside the house. A short time later, she went outside and observed that Mr. D. was lying on the ground and was “unresponsive.” Mother did not call 911. The parties stipulated that the four oldest children may have witnessed the stabbing of their father.
d. CINA Petition and Adjudication
On July 30, 2020, the Department filed a petition seeking a determination that G.W. was a CINA. The Department alleged that, after Mother’s arrest, a safety plan was created, with Mother’s input, for the care of the seven children. G.W.’s care was entrusted jointly to Father and Mr. C., who was identified as a godparent. 6 Father was unable to care for G.W. by himself because he was undergoing dialysis treatment for kidney disease.
The Department alleged that Mr. C. failed to take G.W. to a scheduled medical appointment on July 17, 2020. On July 23, 2020, the Department discovered that the “family home” where Mr. C. had been residing was “boarded up and closed.” The Department called Mr. C., who said that he was visiting family in Philadelphia, and had taken G.W. with him. G.W.’s medical appointment was rescheduled for July 29, 2020, and Mr. C. promised to take G.W. to the appointment. Mr. C. did not do as he promised, however, and told the Department that he would not return the child to Maryland unless Mother directed him to do so. The Department alleged that G.W. was in need of medical care and that there was “grave[] concern[]” for his safety.
On August 6, 2020, the Department filed a third amended CINA petition in which it alleged that, the day after the initial CINA petition was filed, Mr. C. took G.W. to a police station in Pennsylvania. G.W. was transported to a hospital and examined. The examination revealed that he only weighed 11 pounds, had “failure to thrive,” and had “a suspected femur and rib fracture.” There were no family members who were willing and able to care for G.W. at that time. G.W. was placed in the care of his current foster parent on August 1, 2020.
On October 7, 2020, the court issued an order declaring G.W. to be a CINA. The initial permanency plan was reunification with Father. Mother and Father were ordered to (1) participate in substance abuse assessments and comply with all recommendations; (2) undergo a psychological evaluation and comply with all treatment recommendations; (3) participate and complete parenting classes; (4) participate and complete anger management classes; and (5) participate and complete individual/ family therapy and comply with all treatment recommendations.
The court ordered supervised visitation during Mother’s incarceration only if “the facility allows for meaningful face-to-face contact.” Face-to-face visits could be “supplemented” with virtual visitation, if allowed by the facility.
e. Mother Pleads Guilty to Manslaughter
On July 19, 2021, Mother pleaded guilty to manslaughter and possession of a dangerous weapon with intent to injure.7 On August 20, 2021, she was sentenced to 10 years of incarceration, with all but eight years suspended. The sentence began to run on July 5, 2020, the date of her arrest.
f. Efforts to Place G.W. with a Relative
When G.W. first came into care in August of 2020, the Department explored G.W.’s maternal grandmother (“Grandmother”) as a potential placement, but she was ruled out at that time because she was homeless and living in a shelter. Father’s sister said that she was unable to be the primary caretaker but would be willing to help Father if reunification occurred. Mother did not provide the Department with any other relative resources.
After Father’s death, the Department attempted to contact Father’s sister to revisit the possibility of placement with her, but she did not respond to the Department’s letters or voice messages. The Department also contacted Grandmother to determine if she had acquired stable housing. Grandmother said that she was living with her adult daughter and that she was interested in being a resource.
In October 2021, the Department conducted a home assessment of the two-bedroom apartment Grandmother shared with her daughter. There were no safety issues observed.
Grandmother was not employed. She was physically disabled and received disability income. Her daughter worked full-time outside the home.
As part of the assessment process, Grandmother was asked about any physical limitations. Grandmother said that she had an inactive brain tumor that impacted her mobility, and that she needed a walker to walk long distances. The caseworker observed that Grandmother used a walker in the home and remained seated on it while her daughter showed the caseworker around the apartment. Grandmother was asked if she would be willing to sign a release
for her medical records, so that the Department could “clarify her medical condition and any limitations[,] in order to better evaluate her as a caregiver.” Grandmother agreed to sign a release, and the caseworker mailed the forms to her.
Grandmother had one visit with G.W. in December of 2021, which, according to the caseworker, “went pretty well.” The Department did not offer subsequent visits because Grandmother was not cooperating with the Department’s efforts to complete the home assessment process. Although she had initially agreed to sign a release for her medical records, she then indicated that she wanted to have them reviewed by her lawyer before signing. The caseworker made multiple attempts to contact Grandmother by phone and by text to follow up regarding the release. On February 24, 2022, Grandmother told the caseworker to stop contacting her, and said that she would be in touch after she reviewed the forms with her lawyer. Grandmother did not contact the Department again, nor did any lawyer acting on her behalf. On April 25, 2022, the Department sent Grandmother a letter stating that, because she had not provided the requested release, she had been denied as a relative resource. Grandmother did not respond, and has had no other contact with the Department since that time.
The Department was unable to locate any other relatives who were willing or able to be a placement resource. Sometime after July of 2022, Mother suggested placement with her friend, Ms. P. Ms. P. told the Department that she was willing to be a placement resource, but the social worker advised her that it was probably not an option because G.W.’s permanency plan at that point was adoption.
g. Reunification Services Unavailable at Correctional Facilities Due to COVID-19
According to the parties’ stipulation, service agreements were drafted by the Department, but the Department “confirmed that Mother could not receive services in the correctional facilities where she was incarcerated.” The only court-ordered service available to Mother was a parenting class, which she completed in November 2021. According to the testimony of the caseworker who was assigned to the case at the time of the TPR hearing, courtordered services were still unavailable at the correctional facility.
The Department sent Mother bi-monthly letters to keep her informed about G.W.’s health and well-being. In each letter, the Department reminded Mother of the services that she had been ordered to participate in and told Mother to contact the Department if she became eligible to enroll in programs offered in the correctional facility. In a letter to Mother dated November 3, 2021, the caseworker wrote:
I have made multiple attempts to contact your case manager, Ms. Pearson[,] but I have not heard back [from] her. Please ask her to give me a call or send me an email so we can share updates. I have also left a message for the case manager supervisor. I am interested in finding out more about programs offered at the facility and also to find out the current visitation policy and COVID-19 protocols for young children.
Mother participated in other programs that were available in the facility, including GED (General Educational Development) classes; a “woman empowerment” class; an “employment to success” course; and an “alternative to violence” class. She worked
as a food server at the facility. She told the Department that she was going to apply to be transferred to a different facility that offered a drug treatment program that would begin in April of 2023.
h. Visitation
The parties stipulated that, due to Mother’s incarceration and the COVID-related restrictions at the correctional facilities, Mother was unable to have face-to-face visitation with G.W. from her arrest on July 5, 2020, until June of 2022. As of June, 2022, the correctional facility allowed in-person visitation with restrictions. Visitors were required to be at least 12 years old or fully vaccinated.8
Mother had virtual visits with G.W. in May, June, September, and October of 2022.9 According to the caseworkers who observed the virtual visits, Mother made appropriate efforts to interact with G.W., but G.W. did not appear to recognize her. There has been no contact, virtual or otherwise, between G.W. and Mother since October of 2022.
i. Permanency Plan Changed to Adoption
On May 20, 2022, the court ordered that G.W.’s permanency plan be changed to adoption by a non-relative. The court ordered that Mother’s visitation “shall occur virtually[.]”
j. G.W.’s status
According to the testimony of the caseworkers assigned to the case, G.W.’s foster placement was “appropriate” for his needs. He had his own room, which was “very organized,” and ageappropriate clothes and toys. He attended a daycare program with an educational curriculum and was doing well. G.W.’s foster parent took him to parks and other outings. There were no concerns about his medical care. He had a speech delay which was improving with bi-monthly services.
G.W. had become “attached” to his foster parent, whom he referred to as “mom.” He immediately ran to her when he needed comforting after a minor fall during a home visit and became upset when she briefly left the room. His foster parent was willing to adopt him.
G.W. participated in monthly in-person visits with one of his half-siblings, who was also in the care of the Department. He engaged in bi-monthly virtual visits with the rest of his half-siblings. The caseworker who supervised the visits testified that, because of G.W.’s young age, he did not interact with the other children during the visits, but did “his own thing.”
k. Foster Parent’s Testimony
G.W.’s foster parent testified that she was willing to adopt G.W. She had been a foster parent for seven years, and had previously fostered three other children. When asked about her feelings for G.W., she said, “I love him, he’s a sweet little kid. He’s been with me for a couple of years, so I’ve seen him grow. . . . [H]e has a good personality. He’s sweet, he’s very sweet.”
l. Mother’s Testimony
Mother testified that she wanted to maintain her parental rights. She acknowledged that she “made a mistake,” but did not think it was “right” for her to be judged “on who [she is] as a mother . . . because of that.”
Mother asked the court to let her continue to have contact with
G.W., stating “it’s important to me.” She said, “it’s not like I’m going away for a lifetime I still have a second chance to come out and do what I’m supposed to do and be a mother to him.” Mother testified that she was currently eligible for parole in 2026, but that, if she continued to work in the facility, she could become eligible for parole in 2024. She asked the court to place G.W. with Grandmother until she was able to regain custody of him.
On cross-examination, Mother was asked about the circumstances that led to G.W.’s birth at home. Mother testified that she was not able to “make it to the hospital.” She said that hospitals in the surrounding area were not accepting new patients, but the court struck that statement on hearsay grounds.
On the second day of the hearing, just before closing arguments, counsel for Mother advised the court that Mother no longer wanted to participate in the hearing and wished to withdraw her objection to the termination of her parental rights. After engaging in a colloquy with Mother, the court stated that it was within her rights to choose not to participate in the hearing, but, because she had not consented to the termination of her parental rights, the hearing would proceed to its conclusion.10 Mother then left the courtroom and did not return.
The Juvenile Court’s Findings
At the conclusion of the hearing, the court summarized the history of the case and the evidence presented at the hearing, and rendered its findings and conclusions from the bench. The court analyzed all of the statutory factors set forth in Md. Code (1984, Repl. Vol. 2019), § 5-323(d) of the Family Law Article (“FL”) (discussed infra), many of them in detail.
The court expressly incorporated the stipulated facts into its decision. It found that the Department provided services to Mother before G.W. was placed into foster care, including placement with a godparent, making appointments for medical care, and providing transportation. The court noted that the Department explored Grandmother as a placement resource after placement with the godparent failed. As far as non-relative placement, the court found no evidence that Ms. P. took steps to become a placement resource or that she was interested in being a guardian or adoptive resource.
The court found that the Department investigated the availability of services where Mother was incarcerated, but that services had been discontinued because of COVID, as had visitation. The court expressly rejected Mother’s position that the Department failed to provide reasonable reunification services:
One of the overriding theories . . . that seemed to come through this case. . . was that the Department . . . should have tried harder[.] . . . They should have tried harder to connect with [Grandmother]. They should have tried harder with the Department of Corrections to ensure that there were visits. They should have tried harder to make sure that [Mother] was getting [court-ordered services] while she was incarcerated. I don’t find that is the standard, nor do I find that [the Department has] fallen short[.]
The court found that the Department made “more than reasonable efforts” in “very difficult circumstance[s]” to communicate with the correctional facility. The court observed that Mother “put herself in the position which then created the barriers for her[,]” but that it was not an “overriding factor[.]”
The court found that Mother had not fulfilled her obligations under the service agreement prepared by the Department because she had been unable to receive services. The court accepted that Mother had completed a parenting class as well as GED and other classes.
In addressing FL § 5-323(d)(2)(iv), which requires the court to consider “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[,]” the court noted that it was “not possible,” alluding to the fact that G.W. had already been in foster care for more than 18 months. The court found that it was not in G.W.’s best interest to extend his time in placement to allow Mother to receive services because there was no “ascertainable” date by which Mother would be released from incarceration and complete all court-ordered tasks so that G.W. could be returned to her.
In addressing FL § 5-323(d)(3)(i) (whether the parent has abused or neglected the child and the seriousness of the abuse or neglect), the court found that Mother neglected G.W., and that the neglect was serious. The court found that Mother failed to get appropriate pre- and post-natal care, and that G.W. was born prematurely and was underweight and malnourished after birth. The court did not believe Mother’s explanation as to why she did not go to the hospital when G.W. was born, stating that, although her testimony that area hospitals were not “accepting new patients” was hearsay, her suggestion that she would be turned away while in labor “belies logic.” The court found that Mother put G.W. “further in harm’s way” by choosing Mr. C. as the initial placement resource. The court also considered the circumstances that led to G.W. being placed into care, as reflected in the statement of probable cause that was admitted into evidence. The court said that, although the statute only requires consideration of a conviction for a crime of violence against another parent of the child, and Mr. D. was not G.W.’s parent, the court would still consider “the nature of . . . that violent action as . . . certainly weighing against [Mother’s] ability to provide proper care for [G.W.]” The court found that if domestic violence was involved, as Mother had “hinted,” she “took steps that were inappropriate[.]” The court stated that the Department was already involved with the family, and found that Mother had access to resources to help extricate herself and the children from a domestic violence situation. The court noted that, although Mother claimed that the knife did not penetrate Mr. D.’s body, she later observed him on the ground, unresponsive, but failed to call 911. The court remarked, “[i]t’s that part of the statement of [] probable cause that concerns me[,] . . . the callousness [with] which she allowed [Mr. D.] to essentially bleed out on her lawn.” The court found that Mother’s failure to summon medical help for Mr. D. was “consistent” with her failure to ensure that G.W. had proper medical care.
In addressing FL § 5-323(d)(4), which requires the court to consider the child’s emotional ties, the court found that G.W. was “certainly adjusted” to his current placement, and that it would be detrimental to him if he were removed from “the only home that [he] knows.” The court found that Mother’s contact with G.W. had been “minimal[,]” there was no parent/child relationship between them, and that terminating Mother’s parental rights would have a “de minimus [sic] impact” on G.W. The court found that G.W. did
not have regular contact with his half-siblings, but acknowledged that the sibling relationship was being “maintain[ed].”
After explaining its findings and their effect on its ultimate decision, the court found, by clear and convincing evidence, that Mother was unfit. The court also found that Mother’s incarceration and lack of progress in completing reunification services constituted exceptional circumstances that would make a continuation of the relationship detrimental to G.W. The court ultimately concluded that terminating Mother’s parental rights was in G.W.’s best interests, stating that “[i]t is patently unfair to [G.W.’s] future to be kept in limbo . . . until such time as [Mother] may be available.” As noted earlier in this opinion, on December 20, 2022, the court issued the First TPR Order, which memorialized the court’s decision and granted the Department’s petition for guardianship.
First Appeal and Proceedings on Remand
On January 23, 2023, Mother filed a notice of appeal from the First TPR Order. On March 15, 2023, while the first appeal was pending in this Court, Mother filed a motion to revise the First TPR Order based on assertions that her counsel had no record of receiving physical or electronic service of it. Mother urged the court to reissue the order to give her an opportunity to file a timely appeal. Following a hearing, the court denied the motion. Mother filed a timely appeal from the order denying the motion to revise, and the two appeals were consolidated in this Court.
In an unreported opinion, a panel of this Court dismissed the appeal from the First TPR Order as untimely, pursuant to the Department’s motion. But the order denying Mother’s motion to revise the judgment was vacated, and the case was remanded for further proceedings.
On remand, the juvenile court held a hearing, at which the parties consented to the entry of an order which vacated the First TPR Order. The court then issued the Second TPR Order, the terms of which are identical to the First TPR order, except for the addition of the following stipulated facts: (1) there had been no material change in circumstances since the TPR hearing in November 2022; (2) Mother remained incarcerated and had not visited with G.W., and (3) G.W. had remained in out-of-home placement with the same foster parent “without issue.” Mother filed this timely appeal. We shall provide additional facts as necessary.
DISCUSSION Standard of Review
Our review of a decision to terminate parental rights “involves three interrelated standards: (1) a clearly erroneous standard, applicable to the juvenile court’s factual findings; (2) a de novo standard, applicable to the juvenile court’s legal conclusions; and (3) an abuse of discretion standard, applicable to the juvenile court’s ultimate decision.” In re Adoption/Guardianship of C.A. & D.A., 234 Md. App. 30, 45 (2017) (citing In re Yve S., 373 Md. 551, 586 (2003)).
The juvenile court’s factual findings are not clearly erroneous if there is any “competent material evidence” in the record to support them. In re Ryan W., 434 Md. 577, 593-94 (2013) (quoting Figgins v. Cochrane, 403 Md. 392, 409 (2008)). “In making this decision, we must assume the truth of all of the evidence, and of the favorable inferences fairly deducible therefrom, tending to support the factual
conclusion of the trial court.” In re Adoption/Guardianship No. J970013, 128 Md. App. 242, 247 (1999) (quoting In re Adoption No. 09598, 77 Md. App. 511, 518 (1989)).
“[I]f it appears that the [court] erred as to matters of law, further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless.” In re Adoption/Guardianship of C.E., 464 Md. 26, 47 (2019) (second alteration in original) (quoting In re Adoption/Guardianship of Ta’Niya C., 417 Md. 90, 100 (2010)). “In reviewing whether the juvenile court abused its discretion[,] . . . [w]e are mindful that ‘to be reversed[,] the decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what the court deems minimally acceptable.’” Id. at 47-48 (quoting In re Adoption of Cadence B., 417 Md. 146, 155-56 (2010)).
Applicable Law
It is well-established that parents have a fundamental right to raise their children. C.A. & D.A., 234 Md. App. at 47; see also Santosky v. Kramer, 455 U.S. 745, 758-59 (1982). “Nevertheless, the fundamental right of a parent to raise [their] child ‘is not absolute.’” C.A. & D.A., 234 Md. App. at 47 (quoting In re Mark M., 365 Md. 687, 705 (2001)). “In deciding whether parental rights should be terminated, the juvenile court’s overriding consideration is the best interest of the child.” In re K.H., 253 Md. App. 134, 158 (2021). Although “[t]he law presumes that a child’s best interests are served by maintaining a parental relationship between the child and the child’s parents,” the presumption may be overcome if the Department establishes, by clear and convincing evidence, (1) “that the parent is unfit,” or (2) “that exceptional circumstances exist that would make continuing the parental relationship detrimental to the child’s best interests.” Id. (citing C.E., 464 Md. at 50); see also FL § 5-323(b).
The Maryland General Assembly created a list of factors that a court must consider in determining whether a parent is unfit, whether exceptional circumstances exist, and whether it is in the best interest of a child to terminate the relationship. In re Adoption/ Guardianship of Rashawn H., 402 Md. 477, 499 (2007). The factors are set forth in FL § 5-323(d), which 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.
Mother’s Contentions
Mother asserts that the court’s decision to terminate her parental rights was based on clearly erroneous findings. Her substantive arguments relate to the court’s findings with respect to the following factors: FL § 5-323(d)(1) (services offered by the Department to facilitate reunion of the child and parent); FL § 5-323(d)(2) (the results of the parent’s efforts toward reunification); FL § 5-323(d)(3) (“aggravating circumstances”); and FL § 5-323(d) (4) (child’s emotional ties with and feelings toward parents and siblings).
Mother further asserts that the court erred in terminating her parental rights because her incarceration and the COVID-related restrictions on services in the detention center and correctional facility deprived her of a meaningful opportunity to be reunited with G.W.
The Department and G.W., through counsel, maintain that the court appropriately considered the statutory factors and that its order should be affirmed.
Analysis
I. Services Offered by the Department to Facilitate Reunification
Mother contends that the court erred in finding that the Department made reasonable efforts to provide her with opportunities to visit with G.W. and participate in court-ordered reunification services. She claims that “evidentiary deficiencies” in the Department’s case, combined with the impact of the COVID-19 pandemic on reunification services in the correctional facility, compelled the court to find that the Department failed to make reasonable efforts. We disagree.
Pursuant to FL § 5-323(d)(1)(ii), the court is required to consider the “extent, nature, and timeliness of services offered by a local department to facilitate reunion of the child and parent[.]” “Implicit in that requirement is that a reasonable level of those services, designed to address both the root causes and the effect of the problem, must be offered[.]” Rashawn H., 402 Md. at 500.
“[R]eunification services need not be offered by [the Department] under every conceivable set of circumstances.” No. J970013, 128 Md. App. at 255 (citing In re Adoption/Guardianship
No. 10941, 335 Md. 99, 117 (1994)). “[R]eunification efforts must be judged within the context of the resources available to the agency, with the agency receiving the benefit of the doubt when resources are limited.” In re Shirley B., 419 Md. 1, 27 (2011) (quoting Kathleen S. Bean, Reasonable Efforts: What State Courts Think, 36 Univ. Tol. L. Rev. 321, 365 (2005)).
We perceive no clear error in the court’s finding of reasonable efforts on the part of the Department. Regarding visitation, it was stipulated that in-person visitation was not available to Mother at the correctional facility until June of 2022, and that G.W. did not meet age requirements once in-person visitation was resumed. Once the visitation order was changed to virtual visitation in May of 2022, monthly virtual visits were offered thereafter. Mother claims that the court’s finding was nonetheless erroneous because there was no evidence to explain why virtual contact was not offered earlier. Until May of 2022, however, the court’s order provided for virtual visitation only as a supplement to “meaningful face-toface” contact, which was not available. There was no evidence that Mother or G.W., through his counsel, requested virtual visitation before that time. Moreover, in the context of reasonable efforts, the stipulation provided that “[t]he Department repeatedly followed up with the correctional facilities to determine if visitation was allowed[.]”
Mother also argues that the Department’s efforts were patently unreasonable because it declined to allow G.W. to participate in a “baby bonding” program. According to the caseworker’s testimony, the program was not available until September of 2022. The Department recommended against the baby bonding program for then two-year-old G.W. because he had not had any physical contact with Mother since he was four months old. We do not agree with Mother than this evidence compelled the court to find that the Department failed to make reasonable efforts to provide visitation.
Regarding other reunification services, Mother urges that the court’s finding was erroneous because there was no evidence that the Department attempted to determine the availability of programming in the correctional facilities after its letter to Mother dated November 3, 2021. We perceive no error. The caseworker assigned to G.W.’s case at the time of the TPR hearing in November of 2022 testified that the court-ordered services were still unavailable at that time. Mother did not challenge this evidence, and she stipulated that there had been no material change of circumstances since November of 2022. Assuming the truth of this evidence, as we must, the record demonstrates that services remained unavailable when the Second TPR Order was entered in January of 2024.
Mother further asserts that the court erred in finding the Department’s efforts to be reasonable because there was no evidence that it attempted to provide Mother with virtual services. We are not able to conclude that the Department acted unreasonably in failing to arrange for a virtual psychological evaluation or therapy services as those tasks were to be completed only after Mother’s release from incarceration. Furthermore, the Department was “consistently” advised by the social worker at the correctional facility that substance abuse services were not available, which, it could be reasonably inferred, included virtual substance abuse programs.11
Mother argues that in addition to the “evidentiary deficiencies” in the Department’s case, the court failed to consider that the COVID-19 pandemic interfered with her ability to receive
reunification services. In support of this argument, she cites Matter of A.M., 485 P.3d 316 (Or. Ct. App. 2021), in which an order changing a permanency plan from reunification to guardianship was reversed because pandemic restrictions prevented the parents from receiving in-person training to address their child’s “serious and complicated” feeding disorder. Id. at 319. The court held that, because the parents’ inability to manage the child’s feeding issue was “[t]he specific impediment to reunification,” it could not conclude that the parents were afforded a “reasonable opportunity to become minimally adequate parents[.]” Id. In that case, although other children had been returned to the parents, the pandemic prevented the parents from receiving the in-person training necessary to address their three-year-old daughter’s feeding disorder. Id. We are not persuaded that the same logic applies in this case. Here, the “specific impediment” to reunification between Mother and G.W. was Mother’s incarceration, which could not be addressed with any level of services. See C.A. & D.A., 234 Md. App. at 55 (Where parent’s incarceration and impending deportation were the “primary obstacle” to parent’s ability to care for the children, which “no amount of services would have alleviated[,]” the court’s determination that the department’s provision of services was reasonable was not clearly erroneous.). Moreover, the evidence demonstrated that visitation and other reunification services were unavailable to Mother because of continuing restrictions imposed by the correctional facility. There was no evidence to suggest that the Department would not have been able to provide Mother with services had she not been incarcerated.
II. Mother’s Efforts Toward Reunification Goals
In discussing FL § 5-323(d)(2), which requires the court to consider “the results of the parent’s effort to adjust the parent’s circumstances, condition, or conduct,” the court stated:
Obviously [Mother] has not fulfilled her obligations under the [service] agreement. She has not received the services that were required in order for her to be able to move forward, that being the substance abuse treatment, the individual counseling[,] . . . the psychotherapy counseling[,] and the anger management program.
The court noted that it was “keenly aware” that services were stopped at detention centers and correctional facilities because of COVID.
To be sure, Mother made some efforts as contemplated by FL § 5-323(d)(2) during her incarceration. The court gave Mother credit for completing a parenting program and taking GED and other classes, and the court commented that Mother’s job as a food server was “certainly . . . an effort on her part.” Despite these efforts, the court noted that Mother’s incarceration as a result of committing a violent crime made it “impossible” for her to maintain regular contact with G.W. or to participate in services necessary for him to return to her care. The court did not err in concluding that additional services would not “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.” FL § 5- 323(d)(2)(iv). “A critical factor in determining what is in the best interest of a child is the desire for permanency in the child’s life.” In re Adoption/Guardianship of Jayden G., 433 Md. 50, 82 (2013). The Maryland Supreme Court has recognized that “‘[l]ong periods of foster care’ are harmful to . . . children and prevent them from reaching their full potential.” Id. at 83 (quoting
In re Adoption of Victor A., 157 Md. App. 412, 427 (2004)). “[T] he overriding theme” of FL § 5-343 “is that a child should have permanency in his or her life. The valid premise is that it is in a child’s best interest to be placed in a permanent home and to spend as little time as possible in foster care.” Id. at 84 (quoting No. 10941, 335 Md. at 106).
The 18-month limit set forth in FL § 5-323(d)(2)(iv) protects children from long and indefinite periods of foster care. Although a court may extend the 18-month time limit by making “a specific finding that it is in the child’s best interests to extend the time for a specified period[,]” FL § 5-323(d)(2)(iv), the court here found “no discernible time” period for G.W. to be returned to Mother’s care. The court appropriately considered not only that G.W. had been in care for more than three years, but that he would remain in care during Mother’s indeterminate incarceration. We discern no error in the court’s conclusion that “[i]t is patently unfair to the child’s future to be kept in limbo . . . until such time as his mother may be available.” See No. J970013, 128 Md. App. at 252 (“[I]ncarceration may indeed, under the facts of a particular case, be a critical factor in permitting the termination of parental rights[.]”). That determination is consistent with Maryland law that the child’s best interest is the “transcendent standard” that “trumps all other considerations.” Ta’Niya C., 417 Md. at 111-12.
III. Existence and Severity of Aggravating Circumstances
Mother argues that the court erred in concluding that Mother’s neglect of G.W. and her conviction for manslaughter weighed in favor of termination of her parental rights. She acknowledges that the basis for the CINA proceeding was her failure to get adequate pre- and post-natal care, and she accepts responsibility for placing G.W. in the care of Mr. C., who, she concedes, was “ultimately unsuitable[.]” She also accepts responsibility for causing the death of Mr. D. She argues, however, that the court erred in terminating her parental rights without allowing her to “make another arrangement for G.W.’s care.” This argument is unavailing. “Decisions relating to the children’s placement are not appropriate during a TPR determination, when the appropriate inquiry is whether the parent has the ability ‘to care for the child[ren] in a way that does not endanger the child[ren]’s welfare.’” K.H., 253 Md. App. at 156-57 (alterations in original) (quoting C.E., 464 Md. at 52.)12
In related arguments, Mother claims that the circumstances of her conviction, and the length of her incarceration, did not warrant the termination of her parental rights. We disagree. As the court noted, although Mother “hinted” that she acted in self-defense, she was already involved with the Department and arguably had access to resources to help extricate herself and the children from a domestic violence situation. Moreover, it was not inappropriate for the court to consider the violent nature of her actions, or her “callous[]” disregard for Mr. D.’s need for emergency medical assistance, especially in light of evidence that she had also failed to ensure that G.W. had proper medical care.13 With respect to the length of her incarceration, we have stated that “incarceration
may indeed, under the facts of a particular case, be a critical factor in permitting the termination of parental rights, because the incarcerated parent cannot provide for the long-term care of the child.” No. J970013, 128 Md. App. at 252. Here, the court made it clear that Mother’s incarceration would not, in and of itself, determine the outcome of the case, but that the length of her confinement, and the minimal contact with G.W. during that time, would have to be considered in reaching a conclusion as to what would be in G.W.’s best interest. It was not improper for the court to consider those factors in deciding whether it was in G.W.’s best interest to terminate Mother’s parental rights.
IV. G.W.’s Emotional Ties
Mother’s final contention is that the court “should have given less weight” to the lack of a parental bond because the pandemic “hindered [her] ability to access meaningful contact with G.W.”14 As an initial matter, it does not appear that the pandemic was the sole reason for the lack of contact in the three-and-a-half years between Mother’s incarceration in July of 2020 and the entry of the Second TPR Order in January of 2024. As stated earlier in this opinion, there was no evidence that, outside of correctional facilities, COVID-19related restrictions on visitation were still in effect past the initial lockdown phase. Indeed, it appears that the Department was trying to contact the social worker at the facility about the possibility of in-person visitation at least as early as November of 2021, which suggests that, but for Mother’s incarceration, she would have had an opportunity for “meaningful contact.”
The court commented that it was “a shame” that lack of contact, while not determinative in itself, would weigh against Mother, and that it would “minimize the lack of contact as being a fault factor with mom[.]” Based on the facts and circumstances of this case, however, it was not inappropriate for the court to consider the lack of a bond between G.W. and Mother in determining whether a termination of rights was in G.W.’s best interest. See In re Ashley S., 431 Md. 678, 712 (2013) (“[T]he task of the juvenile court is not to remedy unfairness to the mother, but to weigh any unfairness in light of the best interests of her children.” (citing Yve S., 373 Md. at 569)).
CONCLUSION
In this case, “‘the court . . . review[ed] all relevant factors and consider[ed] them together’” to determine what was in the best interests of the child, “without presumptively giving one factor more weight than another.” See In re Adoption/Guardianship of Jasmine D., 217 Md. App. 718, 736-37 (2014) (quoting In re Adoption/Guardianship No. 94339058/CAD, 120 Md. App. 88, 105 (1998)). Based on our review of the record, we conclude that there was no clear error in the court’s findings, no misapplication or misinterpretation of law, and no abuse of discretion in the ultimate decision that it was in the best interest of G.W. to grant the Department’s petition for guardianship and terminate Mother’s parental rights.
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Mother presents the following question in her brief: Did insufficient evidence support the juvenile court’s TPR decision, and as a result, did the court err as a matter of law and ultimately abuse its discretion when concluding that TPR was in G.W.’s best interests?
2 A “child in need of assistance” is “a child who requires court intervention because:
(1) The child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and (2) The child’s parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and the child’s needs.” Md. Code (1974, 2020 Repl. Vol.), § 3-801(f) of the Courts and Judicial Proceedings Article (“CJP”).
3 Although the written stipulation was entered into evidence, Mother disputed allegations that she “made statements of selfharm in front of her children; was abusing alcohol and sleeping all day; and was not meeting the children’s basic needs of care and supervision.” The court reserved judgment on this issue but did not return to it. This dispute is not material to the resolution of the appeal.
4 According to the parties’ stipulation, “[t]he CRICT team assists and makes referrals for additional community services when children are in the school system or involved with the Department of Juvenile Services, and the family is in need of extra support.”
5 Failure to thrive is “[a] medical and psychological condition in which a child’s height, weight, and motor development fall significantly below average growth rates.” Failure to Thrive, BLACK’S LAW DICTIONARY (12th ed. 2024).
6 Three of G.W.’s half-siblings were placed in care of their paternal grandmother, two were placed with godparents, and one was declared a CINA.
7 The parties’ stipulation incorrectly states that Mother pleaded guilty to second degree murder.
8 There is no information in the record regarding G.W.’s vaccination status.
9 A virtual visit scheduled for July of 2022 did not take place because of technical difficulties on the part of the correctional facility. A visit on August 18, 2022, did not go forward because the social worker at the correctional facility was unavailable.
10 In closing argument, counsel for Mother stated that the only reason Mother attempted to withdraw her objection to the termination of her parental rights was because of the “legal implications” of the finding, ostensibly referring to the effect that an involuntary termination of her parental rights over G.W. would have in a pending CINA proceeding involving another one of her children. The court replied that the statute governing guardianship proceedings did not contemplate the withdrawal of an objection at the conclusion of a guardianship hearing.
11 Mother also claims that the court’s finding was erroneous because there was no evidence that the Department helped her apply for an off-site drug program she expressed interest in. There was no evidence, however, that Mother needed assistance from the Department to effectuate entry into that program, or that the Department would have been able intervene in such a decision.
12 Even if we were to agree with Mother’s argument that a TPR court should be able to consider whether an incarcerated parent can arrange for the care of their child while they serve their sentence, our conclusion would be no different. Mother’s proposed arrangement was for G.W. be placed with Grandmother until she was released. Grandmother could not be approved as a placement resource, however, because she refused to complete the assessment process and terminated all contact with the Department. Moreover, contrary to Mother’s argument that she could arrange for Ms. P. to care for G.W., the evidence supports the court’s finding that Ms. P. had taken no steps to become a placement resource.
13 Mother asserts that it would be “illogical” to conclude that her “isolated” conviction warranted termination of her parental rights over G.W., but “did not warrant intervention” in her parental relationship with her other six children. This argument ignores the fact that, following Mr. D.’s death, another one of Mother’s children had been placed in the care of the Department and was still in foster care at the time of the TPR hearing. The other five children did not require court intervention because they were being cared for by their paternal grandmother and godparents.
14 Mother also contends that the Department “hindered” meaningful contact between her and G.W. As we concluded earlier in this opinion, however, the evidence supports the court’s finding that the Department made reasonable efforts to facilitate visitation.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Charles County Circuit Court’s award of sole legal custody and primary physical custody of the parties’ child to mother. The circuit court properly addressed the relevant factors in determining that it was in child’s best interest to award mother sole legal and primary physical custody, and the court’s findings were supported by evidence in the record.
a one week on/one week off basis.
A two-day merits trial was held on November 13, 2023 and January 3, 2024. Both parties were represented by counsel. The following facts were elicited at the trial: Mother resides with Child in Charles County in the home the parties acquired together. Mother testified that the parties plan to sell the home and she expects to move to Arlington, Virginia, or Prince George’s County, though her plans were not “concrete yet.” Mother works at PPG Industries in Washington, D.C., earning $70,000 per year. She works full- time from 6:30 a.m. to 3:30 p.m., and her father, Timothy Noell, takes care of Child while she is at work. Father resides in Silver Spring with his parents and three siblings. Father works remotely, earning a base annual salary of $50,000 and commissions of approximately $20,000 annually.
Father testified that the parties had discussed sharing custody on a fifty/fifty basis, splitting the week from Sunday to Wednesday and Wednesday to Sunday. He stated that the parties followed the fifty/fifty custody plan on only one occasion. Mother denied that the parties had reached an agreement on shared custody. Mother explained that she and Father split custody during the week of February 27, 2023 because they both had planned travel that week. Following their week of shared custody, the parties were unable to agree on a weekly custody arrangement.
Daniel Alegbeleye (“Father”), appellant, appeals from an order of the Circuit Court for Charles County awarding Libby Noell (“Mother”), appellee, sole legal custody and primary physical custody of the parties’ child. Father timely appealed the circuit court’s order and presents the following questions, which we have rephrased as follows:1
1. Whether the trial court abused its discretion in awarding Mother sole legal custody and primary physical custody of the child.
2. Whether the trial court erred by admitting evidence related to an alleged domestic violence incident.
For the reasons set forth below, we affirm the judgment of the circuit court.
BACKGROUND
The parties’ one minor child (“Child”) was born in 2022. The parties were never married and ceased living together on February 20, 2023. On March 3, 2023, Father filed a complaint for custody and child support, requesting joint legal custody with tie-breaking authority for medical and educational decisions, and shared physical custody. Mother filed an answer and countercomplaint, denying the allegations in the complaint, and requesting sole legal and primary physical custody. On August 21, 2023, a pendente lite hearing was held and the court awarded the parties joint legal and shared physical custody on
On January 12, 2024, the court, after a virtual hearing, placed its oral ruling on the record and entered a written order on March 4, 2024. The circuit court, determining that joint custody was not appropriate, set forth an access schedule for shared physical custody, and awarded Mother sole legal custody. The specific findings of the court will be reviewed in more detail in our discussion of the issues presented.
STANDARD OF REVIEW
The standard of appellate review of a circuit court’s child custody determination is as follows:
The appellate court will not set aside the trial court’s factual findings unless those findings are clearly erroneous. To the extent that a custody decision involves a legal question, such as the interpretation of a statute, the appellate court must determine whether the trial court’s conclusions are legally correct, and, if not, whether the error was harmless.
The trial court’s ultimate decision will not be disturbed unless the trial court abused its discretion.
The discretion to make custody decisions is vested in the trial court because the judge, unlike an appellate court, is in the best position to see the witnesses and the parties, hear the testimony, weigh the evidence, and determine the outcome that will serve the best interest of the child. In re Yve S., 373 Md. 551, 585-86 (2003). A court abuses its discretion “when no reasonable person would take the view adopted by the trial court,i or when the court acts without reference to any guiding
rules or principles, or when the ruling is clearly against the logic and effect of facts and inferences before the court.” Gizzo, 245 Md. App. at 201.
DISCUSSION
1. The trial court did not abuse its discretion in awarding Mother sole legal and primary physical custody
Father contends that the circuit court abused its discretion in awarding Mother sole legal custody and primary physical custody of Child. Father argues that “it would have been justifiably reasonable to award the parties joint legal and a form of shared physical custody.”
Father devotes a section of his brief to detailing evidence presented at the pendente lite hearing and disputing various findings of the court in the pendente lite and the exceptions hearings. Because the custody issues decided at the pendente lite hearing became moot upon the final determination of custody at the merits hearing, we will not address Father’s challenges to the circuit court’s pendente lite and exceptions rulings. See Cabrera v. Mercado, 230 Md. App. 37, 87 (2016) (explaining that any relief this Court could grant for alleged errors in the emergency temporary custody order would have no consequence where the final custody order is in place).
Mother asserts that the circuit court properly addressed the relevant factors in determining that it was in Child’s best interest to award Mother sole legal and primary physical custody, and the court’s findings were supported by evidence in the record.
In any child custody case, “[t]he best interest of the child standard is the overarching consideration[.]” Baldwin v. Baynard, 215 Md. App. 82, 108 (2013). For that reason, “[t]he 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.” Taylor v. Taylor, 306 Md. 290, 303 (1986).
In Montgomery County Department of Social Services v. Sanders, 38 Md. App. 406, 420 (1978), this Court set forth ten factors to be considered when making a custody determination: (1) the fitness of parents; (2) the character and reputation of the parties; (3) the desires of the natural parents and any agreements between the parties; (4) the potentiality of maintaining natural family relations; (5) the preference of the child; (6) any material opportunities affecting the future life of the child; (7) the age, health, and sex of the child; (8) the residences of parents and opportunity for visitation; (9) any length of separation from the natural parents; and (10) any prior voluntary abandonment or surrender.
In Taylor, the Supreme Court of Maryland provided additional factors with particular relevance to joint custody, some of which overlap with the Sanders factors: (1) the capacity of the parents to communicate and reach shared decisions affecting the child’s welfare; (2) the willingness of the parents to share custody; (3) the fitness of the parents; (4) the relationship established between the child and each parent; (5) the preference of the child; (6) any potential disruption of child’s social and school life; (7) the geographic proximity of parental homes; (8) demands of parental employment; (9) the age and number of children; (10) the sincerity of the parents’
requests; (11) the parents’ financial status; (12) any impact on state or federal assistance; (13) benefit to parents; (14) and any other relevant factors. Taylor, 306 Md. at 304-11.
In this case, the circuit court considered the relevant factors in light of the evidence presented. In regard to the capacity of the parents to communicate and reach shared decisions affecting the child’s welfare, the court found that “there is really no evidence of capacity [to communicate.]” The evidence showed that the parties “communicate through lawyers, sometimes through text, sometimes they don’t respond to each other, or one doesn’t respond to the other . . . [t]o the point where, for whatever reason, [Father] doesn’t meven feel that he can send a message that says basically . . . ‘[w]hen can I see my daughter?”’ The court found that “[t]here is a fundamental lack of trust here, and . . . the relationship . . . is characterized by high emotions.”
In considering the parents’ willingness to share custody, the court found that the parties had difficulty co-parenting. The court found that both parents seemed to have “the proper intentions” and both parents desired time with Child. There was no evidence that either parent was unfit or that the parties’ character and reputation were of concern.
The court found that there was no agreement between the parties regarding custody. The court observed that Child had the opportunity to have relationships with family members other than the parents, and Child’s material opportunities were “about the same” with both parents.
Regarding any potential disruption of Child’s social life, the court noted that although Child is not of school age, there could be disruption to Child’s social life if Child moved to Silver Spring because Child is often cared for by the maternal grandfather. The court noted that the grandfather, who testified at trial, had a positive relationship with Child. But we are not persuaded that the circuit court prioritized the grandfather’s bond to Child over Father’s bond as Father argues.
The court noted that Child was one year of age and far too young for the court to know Child’s desires. Regarding the demands of employment, the court noted that both parents were employed. Mother worked outside the home, returning home by 4:30 p.m., and Father’s work schedule was flexible.
With respect to the parents’ residences, the court noted that Mother’s residence in Brandywine was “a fit and proper place.”
The court appreciated that Child had been in the same home for most of her life, explaining that “less change, generally speaking, is a good thing[,]” and Child’s familiarity with that home was a strong factor in the court’s decision. The court characterized the environment of Mother’s home, consisting of Mother and Child, as “more conducive[,]” whereas Father had multiple people residing in his residence, and there was “clutter and mouse poison there.”
Father’s contention that the circuit court failed to consider Mother’s “strong desire to relocate out of the State of Maryland with [Child] and that the present location was subject to change” is not supported by the record. The court specifically considered the fact that Mother had indicated that she may want to move residences either to Prince George’s County or Arlington, Virginia, but had not made plans to do so. The court explained that “the proximity of the parental homes really is
one of the things that makes this case complex. This is a very close case.” In considering joint custody, the court expressed concern about a one-year-old child enduring long car rides between Charles County and Montgomery County, especially on a schedule that required multiple days of travel every week. The court also looked ahead to Child entering school, and noted that a week on/week off schedule would not be “doable” during the school year in light of the distances between the parties’ residences. Under the circumstances, the circuit court determined that a fifty/fifty custody arrangement was neither fair to Child nor in Child’s best interest.
The court awarded Father visitation with Child on alternating weekends. The court permitted, but did not require, additional weekday visitation for two hours every week at a location not more than ten miles from Child’s residence, in an effort to avoid the difficulties of Child enduring long car rides between residences in a single day.
The court thoroughly considered the Sanders and Taylor factors in determining the custody arrangement that was in Child’s best interests. While we recognize that no single factor in a custody determination is dispositive, the parties’ ability to communicate is “of paramount importance” in deciding whether to award joint custody. Reichert v. Hornbeck, 210 Md. App. 282, 306 (2013) (citing Taylor, 306 Md. at 303). Importantly, “[w]hen the evidence discloses severely embittered parents and a relationship marked by dispute, acrimony, and a failure of rational communication, there is nothing to be gained and much to be lost by conditioning the making of decisions affecting the child’s welfare upon the mutual agreement of the parties.” Taylor, 306 Md. at 305.
Father contends that “it would have been justifiably reasonable to award the parties joint legal and a form of shared physical custody.” The availability of a reasonable alternative, however, is not the applicable standard for setting aside the circuit court’s decision. In considering “close-call” cases such as this, we have explained:
“[W]here custody might well have been awarded to either parent, [it] aptly demonstrates the advisability of leaving to the [circuit court] the delicate weighing process necessary in child custody cases; to disturb the award here would require that we substitute our judgment for that of the [circuit court], and an appellate court sits in a much less advantageous position to assure that the child’s welfare is best promoted.”
McCarty v. McCarty, 147 Md. App. 268, 273 (2002) (quoting Davis v. Davis, 280 Md. 119, 131-32 (1977)).
To set aside the trial court’s award of sole legal custody and primary physical custody to Mother, we would have to conclude that the trial court’s decision was an abuse of discretion; that is, that it was “well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.” North v. North, 102 Md. App. 1, 14 (1994). The record before us provides no support for that conclusion. Rather the court’s evaluation of the evidence, and its consideration of the Sanders and Taylor factors, supports the court’s determination that awarding sole legal custody and primary physical custody to Mother was in Child’s best interest
and not an abuse of discretion.
2. The circuit court did not abuse its discretion in overruling Father’s objection to evidence related to an alleged domestic violence incident
On appeal, Father argues that the circuit court abused its discretion in admitting “highly prejudicial” evidence regarding an alleged domestic violence incident. He contends that the evidence was not relevant, and the foundational requirements for authentication of the evidence were not met. Father further asserts that he was prejudiced by Mother’s failure to produce photographs related to the incident in discovery.
Mother responds that Father’s arguments are without merit because Mother’s testimony sufficiently identified the date the photographs were taken, and contrary to Father’s assertion, the photographs were produced in discovery. Mother further contends that Father’s argument that she failed to comply with discovery is unpreserved because he did not raise the argument at trial.
Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Md. Rule 5-401. A ruling that evidence is legally relevant is a conclusion of law, which we review de novo. See Smith v. State, 218 Md. App. 689, 704 (2014). As to whether relevant evidence is unfairly prejudicial, we review a court’s determination for abuse of discretion. Id.; see, e.g., Webster v. State, 221 Md. App. 100, 113 (2015). As long as the trial court’s decision is reasonable, the appellate court will not disturb that decision on appeal. Peterson v. State, 196 Md. App. 563, 585 (2010).
At trial, Father’s counsel argued that evidence of the domestic violence incident was not relevant because it occurred prior to the birth of Child.2 The circuit court overruled Father’s objection, finding that the evidence was relevant to the parents’ ability to communicate and co-parent. We conclude that the evidence was relevant to the court’s custody determination and thus, it was within the trial court’s discretion to admit the evidence. See A.A. v. Ab.D., 246 Md. App. 418, 447 (2020) (holding in the context of a custody case that the trial court’s exclusion of evidence of the father’s past conduct precluded the trial court from properly assessing father’s fitness to have custody of his children).
Under Maryland Rule 5-901(a), authentication of evidence “is a condition precedent to its admissibility, and the condition is satisfied where there is sufficient evidence ‘to support a finding that the matter in question is what its proponent claims.’” Sykes v. State, 253 Md. App. 78, 91 (2021) (quoting Md. Rule 5-901(a)). “The process of authentication refers to ‘laying a foundation’ to admit ‘nontestimonial evidence [such] as documents and objects’ sufficient to establish ‘a connection between the evidence offered and the relevant facts of the case.’” Reyes v. State, 257 Md. App. 596, 629 (2023) (quoting Jackson v. State, 460 Md. 107, 115-16 (2018)). Under the pictorial testimony method of authentication, photographic evidence may be authenticated through the testimony of a witness with personal knowledge of the subject depicted. Id. at 630. When a party challenges the admission of evidence on
authenticity grounds, “we review the trial court’s decision for abuse of discretion.” Sykes, 253 Md. App. at 90.
Mother identified two photographs that she claimed had been taken on April 2, 2022, the day following the alleged domestic violence incident, depicting injuries to her eye and face. Father’s counsel objected to the admission of the photographs because there was no date or time on the photographs and “no chain of authentication[.]” The circuit court admitted the photographs over Father’s objection.
The photographs introduced into evidence were sufficiently authenticated by Mother’s testimony that the photographs of her face were taken on April 2, 2022. See Md. Rule 5-901(b) (1) (“Testimony of a witness with knowledge that the offered evidence is what it is claimed to be” satisfies the requirements for authentication.). Indeed, “[t]he standard for admissibility is low[.]” Reyes, 257 Md. App. at 630. We perceive no abuse of discretion in the circuit court’s admission of the photographs.
Father did not raise before the circuit court the argument now made on appeal that the photographs were not produced to him in discovery. Arguments raised for the first time on appeal are not preserved for review. See Klauenberg v. State, 355 Md. 528, 541 (1999) (“It is well-settled that when specific grounds are given at trial for an objection, the party objecting will be held to those grounds and ordinarily waives any grounds not specified that are later raised on appeal.”); Stewart-Bey v. State, 218 Md. App. 101, 127 (2014) (limiting appellate review to “the ground assigned” in the objection during trial (cleaned up)); Md. Rule 8-131(a) (“Ordinarily, the appellate court will not decide [an] issue unless it plainly appears by the record to have been raised in or decided by the trial court[.]”). In this case, Father did not argue before the circuit court that the photographs were not produced in discovery and we will not address that contention for the first time on appeal.
JUDGMENT OF THE CIRCUIT COURT FOR CHARLES COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 The questions as presented by Father are:
1. Whether the Trial Court abused its discretion in awarding Appellee sole legal custody and primary physical custody of the parties minor child rather than awarding shared physical custody.
2. Did the Trial Court erred [sic] by admitting into testimony and evidence unsubstantiated prejudicial claims/documents?
2 In his brief, Father incorrectly asserts that he objected to the relevance of the domestic violence incident on the basis that Mother had dismissed her petition for a protective order concerning the incident.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 06 MFLU Supp. 33 (2024)
Voluntarily impoverishment; standard Monica Gorman v. John Gorman
The Appellate Court vacated the Montgomery County Circuit Court’s finding that mother had voluntarily impoverished herself by leaving an executive position at a private company and going to work for the federal government at lower salaries. The circuit court erred when it did not consider the totality of the circumstances.
Mother filed an answer and counter-complaint. The circuit court conducted a three-day hearing in July of 2023. The court made an oral ruling and followed that up, one month later, with a written custody order, including a child support award. Mother noted a timely appeal of the circuit court’s determination that, by leaving New Balance and going to work for the federal government at lower salaries, she had voluntarily impoverished herself. She also appealed from the circuit court’s computation of her childcare expense.
DISCUSSION
In 2020, the Maryland General Assembly codified Maryland’s common law of voluntary impoverishment. The new law, like the common law before it, requires the circuit court to consider the “totality of the circumstances” in deciding whether a parent has voluntarily impoverished themselves. Because the circuit court here considered only the parent’s intent and did not consider the totality of the circumstances, we will vacate the prior decision and remand without affirming or reversing for the circuit court to conduct the proper analysis. Moreover, because the decision regarding voluntary impoverishment informs the entire child support analysis, we vacate that as well.
BACKGROUND
Our resolution of the issues obviates the need for a detailed recitation of the facts at this stage. Appellant Monica Gorman (“Mother”) and Appellee John Gorman (“Father”) were married in 2008 and resided together in Massachusetts. A child, E., was born in 2015. Mother worked as an executive at New Balance Athletics. In March of 2021, Mother, with E., left the family home and moved to Maryland. Although Mother could have continued to work for New Balance remotely, she instead accepted appointment to serve as a Deputy Assistant Secretary at the United States Department of Commerce at a lower salary. Approximately a year and a half later, she was asked to move to the White House where she continues to serve as a Special Assistant to the President of the United States at an even lower salary.
Father filed a complaint for absolute divorce in 2022 and
In 2020, after a comprehensive study, the Maryland General Assembly enacted new child support guidelines. Acts of 2020, chs. 383, 384 (H.B. 946, S.B. 847). As noted above, in this same legislation, the General Assembly, for the first time, codified Maryland’s common law of voluntary impoverishment. Id. This was accomplished in two separate sections of the Family Law (“FL”) Article. In the definition section of the subtitle, the legislature added a definition of the term: “Voluntarily impoverished’ means that a parent has made the free and conscious choice, not compelled by factors beyond the parent’s control, to render the parent without adequate resources.” FL § 12-201(q). The legislature then created a two-step process for resolving disputes about whether a parent is voluntarily impoverished. FL § 12-204(b)(2). The court must first “make a finding as to whether, based on the totality of the circumstances, the parent is voluntarily impoverished.” FL § 12- 204(b)(2)(i) (emphasis added). And then, “if the court finds that the parent is voluntarily impoverished,” it must then “consider the factors specified in [FL] § 12-201(m) ... in determining the amount of potential income that should be imputed to the parent.” FL § 12- 204(b)(2)(ii).1
We hold that the legislature, in enacting these two provisions, did not intend to change the common law regarding voluntary impoverishment.2 Specifically, when the legislature instructed circuit courts to consider the “totality of the circumstances” in § 12- 204(b)(2)(i) it did not just mean those circumstances listed in FL § 12-201(q) concerning the parent’s intent, but intended to include the common law factors that Maryland courts have always applied, namely:
1. [the parent’s] current physical condition;
2. [the parent’s] … level of education;
3. the timing of any change in employment or other financial circumstances relative to the divorce proceedings;
4. the relationship between the parties prior to the initiation of divorce proceedings;
5. [the parent’s] efforts to find and retain employment;
6. [the parent’s] efforts to secure retraining if that is needed;
7. whether [the parent] has ever withheld support;
8. [the parent’s] past work history;
9. the area in which the [parent] live[s] and the status of the job market there; and
10. any other considerations presented by ether [parent].
See e.g., Sieglein v. Schmidt, 224 Md. App. 222, 248 (2015)
(citations omitted); see also CYNTHIA CALLAHAN & THOMAS C. RIES, FADER’S MARYLAND FAMILY LAW (7th ed. 2021), at § 6-12.
Reviewing the transcript of the circuit court’s oral ruling and its written order, we observe that it considered only Mother’s intent in accepting her current position and none of the other factors required by Maryland law. This was an error of law and requires us to vacate the order and remand for the circuit court
to consider the totality of the circumstances before deciding whether Mother has voluntarily impoverished herself by accepting her country’s call to service. If, on remand, the circuit court finds again that mother has voluntarily impoverished herself, it must then consider all factors listed in FL § 12-201(m) to calculate her potential income rather than simply use her income at New Balance—two jobs ago—as a proxy.3
JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY IS VACATED. CASE REMANDED WITHOUT AFFIRMING OR REVERSING FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE EQUALLY DIVIDED.
FOOTNOTES
1 Although not required for the resolution of the instant appeal, we note that the factors that a circuit court must consider in determining “potential income” are:
(1) the parent’s employment potential and probable earnings level based on, but not limited to:
(i) the parent’s:
1. age;
2. physical and behavioral condition;
3. educational attainment;
4. special training or skills;
5. literacy;
6. residence;
7. occupational qualifications and job skills;
8. employment and earnings history;
9. record of efforts to obtain and retain employment; and
10. criminal record and other employment barriers; and
(ii) employment opportunities in the community where the parent lives, including:
1. the status of the job market;
2. prevailing earnings levels; and
3. the availability of employers willing to hire the parent;
(2) the parent’s assets;
(3) the parent’s actual income from all sources; and (4) Any other factor bearing on the parent’s ability to obtain funds for child support.
FL § 12-201(m).
2 In coming to this conclusion, we have reviewed the bill files for both House Bill 946 (2020) and Senate Bill 847 (2020),
which became Chapters 383, 384 (2020) after then- Governor Lawrence Hogan, Jr. allowed them to become law without his signature. We observe that in adopting these cross-filed bills, the General Assembly was principally concerned with the modification of the child support guidelines and there was little discussion of the codification of the common law of voluntary impoverishment. For example, the Floor Report from the House Judiciary Committee reported that the purpose of codifying the definition of voluntary impoverishment was “to promote transparency and limit improper determinations.” Floor Report, HB 946 (2020); see also Fiscal & Policy Note, HB 946 (2020). There was no suggestion in either of the bill files that the General Assembly’s intent was to change the common law test.
3 As a result of our holding vacating the circuit court’s finding that Mother had voluntarily impoverished herself, we must vacate the child support award as a whole. We also note that both Mother and Father have objected to the circuit court’s computation of Mother’s childcare expenses. Mother complains that by substantially reducing the childcare component, the circuit court failed to consider the “actual family experience” as is required by FL §12-204(g)(2). Father doesn’t appear to contest Mother’s point but argues instead (without having noted a cross-appeal) that Mother’s calculation of her actual childcare expenses includes payment to the nanny for time spent on things other than childcare. On remand, the parties will be permitted to make these arguments and, if the circuit court in the exercise of its discretion permits, produce fresh evidence relevant to this issue. The circuit court should then, in the context of a new child support order, consider Mother’s calculation of her childcare expenses anew.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Baltimore County Circuit Court’s finding that father’s two biological children were children-in-need-of-assistance. There was sufficient evidence that the children were subjected to a substantial risk of harm from mother, and that father was “unable or unwilling to give proper care and attention to the child[ren] and the child[ren]’s needs.”
also learned that the children were being left unsupervised with Mother in violation of the OCC. The Department removed the children and placed them in shelter care.
In July 2019, the juvenile court found J.P. and M.B. to be CINAs, but the court returned the children to Mother under an order of protective supervision.6 That order was rescinded in December 2019.
In March 2021, the Department received a report that Father applied for a protective order against Mother after he alleged that he “sustained black eyes as well as other injuries.” “Within that referral there were concerns noted about cognitive limitations for [Father] based on past traumatic brain injury (TBI) as well as ongoing mental health issues and noncompliance with medication management.” Moreover, the Department noted that “[t]here is also a documented history of [Father] being present for or participating in the maltreatment of the children in [Mother’s] home.”
In May 2021, Mother was seen, on camera, slapping M.B. during virtual learning. In August 2021, Mother called the Department and requested for J.P. to be removed “‘before she puts . . . hands on him.’” “However, after a few months, [Mother] advised that she did not want to be contacted by the Department again.”
This matter stems from a child-in-need-of-assistance (“CINA”) case in the Circuit Court for Baltimore County, sitting as a juvenile court. The appellant (“Father”) appeals from a March 2024 order, which determined that Father’s two biological children, five- year-old T.W. and two-year-old R.W., were CINAs and placed them in the custody of the appellee, the Baltimore County Department of Social Services (“Department”). The children’s mother (“Mother”) did not appeal that ruling. On appeal, Father presents one question for our review:
Whether the Court erred in its finding that [T.W. and R.W.] were in fact children in need of assistance and ordering a longer period in shelter?
For the reasons to follow, we shall affirm the judgment of the circuit court.
BACKGROUND
Over the past seven years, the Department intervened numerous times in response to allegations that Mother physically abused her children. In 2017 and 2018, Mother was named as the maltreator1 in several unsubstantiated2 abuse cases involving her sons, M.B.3 (born in October 2015) and J.P.4 (born in March 2011). “An Order of Controlling Conduct (OCC) was ordered, and the case was referred to Family Preservation Services.”
In August 2018, Mother was indicated5 for abuse of J.P. In that case, “[i]t was reported that [J.P.] was being tied up, with a belt, at night.” When Father was interviewed about that incident, he made the following statement to a police officer: ‘“we do feed them, but the only reason he be tied up at night is because he steals.’” Father later admitted to making that statement but said that he ‘“didn’t really mean it like that.”’ The Department
In January 2022, Mother was indicated for physical abuse of M.B. M.B. “reported that ‘maybe someone took a phone charger and wrapped it around their hand and kept whipping me with it.’” M.B. “had multiple loop marks on his back[.]”
In April 2022, the Department was notified that M.B. arrived at school “with a black eye and he was afraid to say what happened.” The Department noted: “It was further reported that [Mother had been] diagnosed with bipolar disorder and is ‘extremely violent’ toward the children.” The next day, the Department interviewed Mother, she confirmed her bipolar disorder diagnosis, denied committing abuse, but admitted that she “pops” J.P., M.B., and T.W. “with an open hand, on their arms and butt, as a form of discipline.” The Department filed a CINA petition but did not remove the children from Mother’s care. Mother received family preservation services for over a year before the case was dismissed in September 2023.
On October 30, 2023, the Department received a report that J.P. arrived at school wearing a face mask that covered “2 long scratches across his right cheek,” “a bruise above his eye and a bruise above his lip.” T.W. reported to a Department social worker that “‘mom punched [J.P.] in the face.”’ Ultimately, J.P. reported to the social worker: “‘I got in trouble with my mom and she started hitting me.”’ Based on that incident, Mother was criminally charged with two counts of second-degree child abuse and two counts of second- degree assault.
On November 3, 2023, the Department removed J.P. and Mother’s three younger children, M.B. (born in October 2015), T.W. (born in June 2018), and daughter R.W. (born in November 2021). The court issued a shelter care order7 on November 8, 2023.
The CINA adjudication hearings were held on March 18,
2024. Mother and Father agreed that the Department could prove the allegations in the Department’s second amended CINA complaint by a preponderance of the evidence, and the court sustained the allegations. After the disposition hearing, the court found that M.B., T.W., and R.W. were CINAs for the following reasons:
Mother physically abused sibling [J.P.] and there is a long history of suspected abuse and neglect. Interventions for the family have been unsuccessful in preventing continued abuse. There are concerns that [Father] . . . is not a protective factor against the abuse and has a long-standing volatile relationship with [Mother]. He also has mental health issues that need to be monitored and considered.
The court thus committed M.B., T.W., and R.W. to the Department’s custody. Father appeals the CINA finding as to his two children, T.W. and R.W.
We shall supply additional facts in our analysis as needed.
STANDARD OF REVIEW
In reviewing a juvenile court’s decision, an appellate court utilizes three different standards: When the appellate court scrutinizes factual findings, the clearly erroneous standard of Rule 8-131(c) applies. Second, if it appears that the court erred as to matters of law, further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless. Finally, when the appellate court views the ultimate conclusion of the court founded upon some legal principles and based upon factual findings that are not clearly erroneous, the court’s decision should be disturbed only if there has been a clear abuse of discretion.
In re Adoption/Guardianship of C.E., 464 Md. 26, 47 (2019) (cleaned up).
DISCUSSION
Father first argues that the court erred in issuing the November 8, 2023, order, which continued shelter care for T.W. and R.W. Father’s challenge to the shelter care order is moot. “Generally, a case is moot if no controversy exists between the parties or ‘when the court can no longer fashion an effective remedy.’” D.L. v. Sheppard Pratt Health Sys., Inc., 465 Md. 339, 351-52 (2019) (quoting In re Kaela C., 394 Md. 432, 452 (2006)). Shelter care is defined as “a temporary placement of a child outside of the home at any time before disposition.” CTS. & JUD. PROC. § 3-801(bb) (emphasis added). After disposition — when the children were determined to be CINAs — the children were no longer in shelter care. Because Father’s challenge to the shelter care order is moot, we shall not decide the merits of that claim.
Next, Father claims that the court erred in determining that T.W. and R.W. were CINAs. A CINA is defined as a “child who requires court intervention because: (1) The child has been abused [or] neglected . . . and (2) The child’s parents . . . are unable or unwilling to give proper care and attention to the child and the child’s needs.” CTS. & JUD. PROC. § 3-801(f). “Abuse” includes “[p]hysical or mental injury of a child under
circumstances that indicate that the child’s health or welfare is harmed or is at substantial risk of being harmed by: (i) [a] parent[.]” CTS. & JUD. PROC. § 3-801(b). “Neglect” is defined as “failure to give proper care and attention to a child by any parent . . . under circumstances that indicate: (i) [t]hat the child’s health or welfare is harmed or placed at substantial risk of harm[.]” CTS. & JUD. PROC. § 3-801(s)(1).
Father concedes that T.W.’s “safety and well-being w[ere] at issue, and it was the correct decision for the department to remove him from his mother’s care of November 3, 2024.” According to Father, however, the court erred because custody of T.W. should have been granted to Father instead of the Department. As for R.W., Father claims that she should not have been found CINA because the evidence before the court only established that Mother had “tapped” R.W. on the leg. We first review whether the first prong of the CINA definition was met, i.e., whether T.W. and R.W. required court intervention because they were abused or neglected within the meaning of CTS. & JUD. PROC. § 3-801(f). Courts need not wait until a child has suffered actual abuse or neglect but may intervene and find that a child is a CINA where there is sufficient evidence of “substantial risk of harm.” Tamara A. v. Montgomery Cnty. Dep’t of Health & Hum. Servs., 407 Md. 180, 184 n.1 (2009) (cleaned up). Indeed, “[i]n evaluating whether such a risk exists, the court has ‘a right—and indeed a duty—to look at the track record, the past, of [a parent] in order to predict what her future treatment of the child may be.’” In re J.J., 231 Md. App. 304, 346 (2016) (quoting In re Dustin T., 93 Md. App. 726, 735 (1992)), aff’d, 456 Md. 428 (2017). “That track record includes evidence that the parent has neglected the child’s sibling.” Id. Here, the evidence established that Mother had been named as a maltreator in numerous abuse reports and that she caused a sibling’s (J.P.’s) injuries in October 2023. Under these circumstances, there was sufficient evidence that T.W. and R.W. were subjected to a substantial risk of harm under CTS. & JUD. PROC. § 3-801(f). See also Tamara A., 407 Md. at 184 n.1. Thus, we find no error in the court’s determination that the first prong of the CINA definition was satisfied.
Next, we determine whether the court erred in determining that Mother and Father were “unable or unwilling to give proper care and attention to the child and the child’s needs.” CTS. & JUD. PROC. § 3-801(f)(2). At the time of the CINA hearing in March 2024, Mother had pending criminal charges against her for allegedly abusing J.P. In that criminal case, the pre-trial conditions required Mother to have no unsupervised contact with the children. As for Father, the juvenile court properly found that “[t]here are concerns that [Father] is not a protective factor against the abuse[,]” he “has a long-standing volatile relationship with [Mother,]” and “[h]e also has mental health issues that need to be monitored and considered.” Under those circumstances, the court properly found that Father was “unable or unwilling to give proper care and attention to the child[ren] and the child[ren]’s needs.” CTS. & JUD. PROC. § 3-801(f)(2).
Father argues that the court erred in considering the circumstances of his revoked request for a protective order against Mother. Father sought a protective order against Mother
based on the following circumstances: Father “alleged[ly] sustained black eyes as well as other injuries.” Despite that alleged violence committed by Mother, Father admitted that he “revoked [the protective order request] when he and [Mother] resolved their argument and began continuing their romantic relationship.” We find no error in the court’s consideration of those circumstances. Indeed, the court properly noted that Father has a “volatile relationship with [Mother].” The court also ruled that Father “is not a protective factor against the abuse[.]” That determination was supported by the record, regardless of the protective order request. For example, Father conceded that he was aware that J.P. “was being tied up, with a belt, at night.” The record does not show that Father took any action to protect J.P. from that abuse.
Father claims that the court improperly relied on hearsay in the form of a statement made by the paternal grandfather.
According to Father, “[t]he department has noted and testified to the paternal grandfather stating, ‘[Father] was timid[.’]” That statement was contained in the Department’s report, which was admitted without objection. Thus, any challenge to that statement is unpreserved for our review. Md. Rule 8-131(a).
Lastly, Father suggests that the court improperly considered his mental health conditions. It was undisputed that Father received mental health services for a traumatic brain injury and schizophrenia. The court noted that Father “has mental health issues that need to be monitored and considered.” In a nondiscriminatory manner, the court properly noted that it was aware of Father’s mental health conditions and treatment.
For all these reasons, the court did not err in determining that T.W. and R.W. were CINAs. Nor did the court err in committing the children to the Department’s custody.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 “‘Maltreator’ means an individual whom a local department has found responsible for indicated or unsubstantiated child abuse or neglect.” COMAR 07.02.07.02(B)(34).
2 “‘Unsubstantiated’ means a finding that there is an insufficient amount of evidence to support a finding of indicated or ruled out.” Md. Code, FAM. LAW § 5-701(aa).
3 M.B.’s father did not file an appeal.
4 After the shelter care hearing in November 2023, J.P. was placed in the custody of his father, E.P.
5 “‘Indicated’ means a finding that there is credible evidence, which has not been satisfactorily refuted, that abuse . . . did occur.” FAM. LAW § 5-701(m).
6 When determining the disposition of a CINA case, the court may “[p]lace a child under the protective supervision of the local department on terms the court considers appropriate[.]” Md. Code, CTS. & JUD. PROC. § 3-819(c)(1)(i).
7 “‘Shelter care’ means a temporary placement of a child outside of the home at any time before disposition.” CTS. & JUD. PROC. § 3-801(bb).
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Anne Arundel County Circuit Court’s order granting father visitation with the child without allowing mother to know the location of the visits. The child was four years old and there was no abuse by either parent.
opinion, but we will also include some additional facts to address Mother’s remaining two questions.
Mother and Father married in 2018, and a daughter was born to them the following year. On November 12, 2020, Mother filed a complaint seeking primary physical and sole legal custody of their daughter and child support. Father responded by filing an answer and a counterclaim for joint, physical and legal custody.
On August 9, 2021, when their daughter was around two years old, the circuit court entered a custody order, incorporating the parties’ “Parental Agreement” (the “Agreement”). The Agreement provided Mother with primary physical and sole legal custody of their child. The parties agreed to a tiered visitation schedule. Father was to have visitation at Mother’s home every Saturday from 8:30 a.m. to 2:00 p.m., and every other Friday and Sunday from 8:30 a.m. to 2:00 p.m., plus certain seasonal holidays. If and when Father acquired his own apartment and he provided to Mother the address, the opportunity to view the apartment, and the names of and the opportunity to meet Father’s roommates, Father could care for their child at his apartment, and, after six months, he could have overnight stays with the child. The Agreement also required Father to pay $1,000 a month in child support and an additional $200 a month toward arrearages until $3,000 had been paid.
This appeal originally came before us in 2023, when Amaka Ndubueze (“Mother” and appellant) appealed a judgment entered by the Circuit Court for Anne Arundel County granting she and Johnbosco Alaenyi (“Father” and appellee) an absolute divorce. As to custody of their minor child, Mother was granted primary physical custody, the parties to have joint legal custody with tie-breaking authority to Mother, and the court set forth the terms of Father’s visitation with the child.
Mother presented three questions on appeal. We agreed with Mother’s first question on appeal that the circuit court had erred in denying her motion to alter/amend the judgment on the ground it had been untimely filed.1 Accordingly, we reversed on the first question, remanded to the circuit court to rule on Mother’s motion, and stayed our proceeding on her remaining two questions pending resolution by the circuit court, which subsequently denied her motion.
We now have lifted our stay and address Mother’s remaining two issues, which we rephrase for clarity:
I. Whether the circuit court erred in granting Father visitation with the child without allowing Mother to know the location of the visits.
II. Whether the circuit court erred in denying Mother’s request for attorney fees because of discovery violations by Father.
Finding them without merit, we shall affirm the circuit court’s judgment.2
FACTUAL AND PROCEDURAL BACKGROUND
We shall restate many of the facts set forth in our first
The Agreement proved unworkable and both parties filed contempt petitions, which the court denied. Father then filed a complaint for absolute divorce and sought modification of the Agreement. Mother subsequently filed a motion to modify visitation and for child support. During litigation, the parties entered into a consent order to waive the division of marital property and alimony, and both parties filed motions to compel discovery.
A custody hearing was held on May 2, 2023, at which both parties testified. The court issued an oral ruling from the bench and a subsequent written order. The circuit court entered an absolute divorce on grounds of one year of separation. The court awarded Mother primary physical custody and joint legal custody of the child, with tie-breaking authority to Mother. Father was granted visitation every other weekend from Friday afternoon to Monday morning, and during stated seasonal breaks and holidays. Father was to pay Mother $1,188 in child support monthly. The court denied Mother’s request for attorney’s fees.
It is from the court’s ruling that Mother appeals. We shall provide additional facts below to address the questions raised by Mother.
DISCUSSION Standard of Review
We apply a three-part standard when reviewing child custody cases. In re Adoption of Cadence B., 417 Md. 146, 155 (2010) (citing In re Yve S., 373 Md. 551, 586 (2003)).
When the appellate court scrutinizes factual findings, the clearly erroneous standard ... applies. [Secondly,] if
it appears that the [juvenile court] erred as to matters of law, further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless. Finally, 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 [juvenile court’s] decision should be disturbed only if there has been a clear abuse of discretion. Id. (quoting In re Yve S., 373 Md. at 586). An abuse of discretion occurs when a “ruling is clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result, when the ruling is violative of fact and logic, or when it constitutes an untenable judicial act that defies reason and works an injustice.” Alexis v. State, 437 Md. 457, 478 (2014) (quotation marks and citation omitted).
I.
Mother contends that the circuit court erred in its visitation determination because she was denied certain “parental rights and requests[,]” specifically her “parental right to ascertain the whereabouts of my child when asked.” To support her contention, she argues that the circuit court overlooked evidence that Father violated the parties’ 2021 Agreement by not providing information about his schedule and insufficiently complied with verifying information about his roommate. She also broadly argues that the court gave “inadequate consideration [] to issues related to child pornography or pornography in general . . . despite their significance in this matter.” Additionally, she argues that Father’s testimony that he was a licensed nurse in Maryland was contradicted by “[n]ew evidence” that he possibly lived in Florida and was a practicing nurse in Florida. It appears that Mother raises Father’s possible ties to Florida to bolster the importance of her argument regarding her right to know their child’s whereabouts when the child is visiting Father. Father responds that Mother’s claim regarding his residence and nursing license are false and asks us not to disturb the circuit court’s ruling.
A non-custodial parent “has a right to liberal visitation with his or her child at reasonable times and under reasonable conditions, but this right is not absolute.” Boswell v. Boswell, 352 Md. 204, 220 (1998) (quotation marks and citation omitted). “Not only must access to the children be reasonable, but any limitations placed on visitation must also be reasonable.” Id. (citation omitted). In child visitation cases, the best interest of the child guides the trial court and our review and “is always determinative[.]” Santo v. Santo, 448 Md. 620, 626 (2016) (quotation marks and citation omitted). In making a custody or visitation determination, the court examines several factors and weighs the advantages and disadvantages of alternative environments. See Montgomery County Dep’t. of Social Services v. Sanders, 38 Md. App. 406, 420 (1977) (citation omitted) and Taylor v. Taylor, 306 Md. 290, 304–11 (1986).3
We find no error regarding the circuit court’s grant of visitation to Father. In its custody and visitation determination, the court considered the Sanders/Taylor factors, which Mother does not dispute. Among other things, the court noted that the parties’ child was now four years old and found that there had been no abuse of the child by either parent. Notably, the court’s
written visitation order provided, among other things:
5. PROMPT NOTICE. Each party shall promptly and fully disclose to the other party any event, which significantly affects the minor child’s health, education, behavior, or general welfare. *
9. ADDRESS AND PHONE NUMBERS. Each party shall keep the other party timely informed of the other’s residential address and work and home phone numbers. The court further ordered that “the parties shall have reasonable telephone access with the minor child at 6:00 p.m. during the evenings when the minor child is in the care of the other parent[.]”
We reject each of Mother’s arguments. Contrary to Mother’s argument, the court heard evidence and considered the parties’ breaches of the prior Agreement. The court noted that the Agreement proved unworkable and the parties were difficult –Mother was “unreasonable” and prevented Father from having overnights and Father “became frustrated and gave up[.]” The court specifically addressed allegations of pornography, stating that although Mother made allegations that Father has “looked at child pornography,” she failed to present any evidence to support the allegations, and any evidence that Father looked at pornography privately did not make him unfit to care for their child every other weekend. As to “new evidence” regarding Father’s residence and licensing, Mother has no right to introduce new evidence on appeal, and to the extent that we have any discretion to allow such new evidence, we decline to exercise it for it would undermine the finality of judgment, and unfairly burden Father and the judicial system. See In re Adoption/Guardianship of J.T., 242 Md. App. 43, 58 n.6 (2019), cert. denied, 466 Md. 317 (2019). See also Md. Rule 8-131(a) (“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[.]”).
II.
Mother argues that the circuit court erred in denying her request for $6,000 in attorney’s fees because of Father’s discovery violations. She argues that Father’s discovery filings were deficient and untimely, specifically his failure to provide information concerning his current employment and his alleged increased income, and this had a detrimental impact on her attorney’s ability to prepare for trial. Father responds that the circuit court properly applied the requisite statutory criteria to deny Mother’s request for attorney’s fees.
The awarding of attorney’s fees in the context of custody and visitation proceedings is governed by Md. Code Ann., Family Law (“FL”) § 12-103. That section provides, in pertinent part:
(b) Before a court may award costs and counsel fees under this section, the court shall consider:
(1) the financial status of each party;
(2) the needs of each party; and
(3) whether there was substantial justification for bringing, maintaining, or defending the proceeding.
See also Malin v. Mininberg, 153 Md. App. 358, 435 (2003) (a
court must consider three factors before awarding attorney’s fees: “(1) the financial status of each party; (2) the needs of each party; and (3) whether there was a substantial justification for bringing, maintaining, or defending the proceeding.”) (quotation marks and citations omitted). By using the word “may,” a trial court is permitted in its discretion to award attorney’s fees. Thornton Mellon, LLC v. Adrianne Dennis Exempt Trust, 250 Md. App. 302, 322 (2021), aff’d, 478 Md. 280 (2022). Mother’s argument relates to the first factor.
Here, the court denied Mother’s request for attorney’s fees, specifically hearing evidence on and reviewing each of the three statutory factors. Mother does not argue to the contrary. As to the first factor, the financial status of each of the parties, the court heard evidence that Mother has a master’s degree in information technology and works as a federal contractor, and that she is currently self-employed but not working. In its conclusion, the court noted that Mother’s current income is zero, but in 2021, she earned around $11,000 a month as an IT contractor. The court concluded from the evidence that Mother was not working “because she has enough money to try to make it till she gets another contract, which would make her more money than if she just took a” lesser paying job. As to Father’s income, the court noted that Father makes $7,186 a month as a registered nurse.
As to Mother’s argument regarding Father’s discovery failures as to his employment and financial status, Mother directs us to two pages of the May 2 hearing where she explains to the circuit court that Father, as of two years ago, was a correctional officer. Father, when asked by the court, testified that he is not a correctional officer but works as a nurse for
Davita Kidney Care. Mother also cites to a page where she alleges that the circuit court erred in not considering rental income Father receives from his roommate. We note that on that page, however, the circuit court advised Mother’s attorney that it could not consider rental income because she failed to ask Father on cross-examination how much Father receives from the roommate as rental income. The court stated: “It could be a dollar; it could be $100 or it could be $1,000.”
Without more, these two citations and bald assertions fail to show that the court was unable to determine Father’s financial status and fail to explain how Mother was prejudiced by Father’s alleged discovery violations. It is not our role to search the entire record to find evidence to support Mother’s generalized factual assertions or arguments. See Md. Rule 8-504(a)(4) (appellant’s brief “shall” contain relevant and material facts and “[r]eference shall be made to the pages of the record extract or appendix supporting the assertions”), Md. Rule 8-504(a)(6) (appellant’s brief “shall” include “[a]rgument in support of the party’s position on each issue” raised), and Md. Rule 8-504(c) (an “appellate court may dismiss the appeal or make any other appropriate order with respect to the case” for noncompliance with this Rule). See also Oak Crest Village, Inc. v. Murphy, 379 Md. 229, 241 (2004) (“‘[I]f a point germane to the appeal is not adequately raised in a party’s brief, the court may, and ordinarily should, decline to address it.’”) (quoting DiPino v. Davis, 354 Md. 18, 56 (1999)).
Under the circumstances, we find no abuse of discretion by the circuit court in denying Mother’s request for attorney’s fees.4
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID TWO-THIRDS BY APPELLANT AND ONE-THIRD BY APPELLEE.
FOOTNOTES
1 See Ndubueze v. Alaenyi, No. 546, Sept. Term 2023 (Md. App. Feb. 20, 2024).
2 Mother had been represented by counsel at all relevant times during this litigation, except on appeal and on remand to the circuit court. The Maryland Supreme Court has stated that although we shall liberally construe the contents of pleadings filed by pro se litigants, unrepresented litigants are subject to the same rules regarding the law, particularly, reviewability and waiver, as those represented by counsel. Simms v. State, 409 Md. 722, 731–32 n.9 (2009) (citation omitted).
3 In Sanders, we set out the following non-exclusive factors for a circuit court to consider in child custody determinations: 1) fitness of the parents; 2) character and reputation of the parties; 3) desire of the natural parents and agreements between the parties; 4) the ability to maintain natural family relations; 5) preference of the child; 6) material opportunities affecting the future life of the child; 7) age, health, and sex of
the child; 8) residences of parents and opportunity for visitation; 9) length of separation from the natural parents; and 10) prior voluntary abandonment or surrender. Sanders, 38 Md. App. at 420. In Taylor, the Maryland Supreme Court considered the following factors as relevant in making joint custody determinations: 1) capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare; 2) willingness of parents to share custody; 3) fitness of parents; 4) relationship established between the child and each parent; 5) preference of the child; 6) potential disruption of the child’s social and school life; 7) geographic proximity of parental homes; 8) demands of parental employment; 9) age and number of children; 10) sincerity of parents’ request; 11) financial status of the parents; 12) impact on state or federal assistance; 13) benefit to parents; and 14) other factors. Taylor, 306 Md. at 304–11.
4 Because Mother originally raised three questions, one of which we found to have merit, we divide the costs associated with the appeal as stated in our Mandate.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Frederick County Circuit Court’s entry of a protective order in favor of wife. The record did not support husband’s claim that he was denied due process or that he was denied the opportunity to present a defense.
hearing for 2:00 p.m. on September 5th.3 The District Court then transferred the case to the Circuit Court for Frederick County to hear the final protective order hearing.
On September 5th, Wife appeared at the final protective order hearing in the circuit court, but Husband was not present. A docket entry indicates that the court extended the temporary protective order because the “Resp[ondent was] not served.” The court then set a new date for the final protective order hearing for October 5th at 2:00 p.m.
On September 6th, Husband filed, in the circuit court, a motion to dismiss the case, citing “lack of subject matter jurisdiction[.]” The filing was stricken due to non-compliance with the Maryland Rules, but Husband re-filed the motion the next day. The court ordered that the motion be heard at the final protective order hearing.
Final Protective Order
Jerrod Fuller (“Husband”), the appellant, appeals from the entry, by the Circuit Court for Frederick County, of a final protective order sought by his then-wife, Emily Fuller (“Wife”), the appellee.1 He asserts that (1) he was “denied due process”; (2) he was “denied the opportunity to submit a response before, during and after the hearing”; and (3) there was “overreach by the judge who challenged [his] Motion to Dismiss.”2 Because we find no merit to his contentions, we shall affirm the judgment.
BACKGROUND
On August 28, 2023, Wife filed, in the District Court of Maryland, sitting in Frederick County, a petition for relief from abuse by Husband on behalf of herself and their four minor children. She alleged that the day before, Sunday, August 27th, Husband entered her separate residence without permission. Wife was able to leave with the children before Husband arrived. Husband then sent her a message claiming she had kidnapped the children and stating that “he would tell police to shoot [her].”
Temporary Protective Order
The District Court commissioner issued an interim protective order in the early morning of August 28th. The hearing for the temporary protective order was scheduled for the next day, August 29th, at 10:00 a.m., before the District Court.
At the ex parte hearing, the District Court granted Wife a temporary protective order to remain in effect through September 5, 2023, and scheduled the final protective order
On October 5th, Wife and her counsel appeared for the final protective order hearing. At first, Husband was not present; counsel advised that “[s]ervice is still not happening.” As a result, the court agreed to extend the temporary protective order further. But the transcript indicates that Husband was in the courtroom after a recess. The record reflects that Husband “appeared late” and was “served in open court” with the “Petition and Temporary Protective Order[.]”
A contested hearing was held on Wife’s request for a final protective order. The court first addressed Husband’s Motion to Dismiss “for lack of subject jurisdiction[.]” Husband asserted that Frederick County is “not in our jurisdiction.” When asked to explain, Husband stated: “[T]hat’s something I believe the [c]ourt is supposed to prove.” When the court noted that Wife allegedly resides in Frederick County, where the petition for protective order was filed, Husband asserted: “That has to be proven, if that can be proven to me we can proceed, but that needs to be proven.” Based on that, the court “reserve[d] on the jurisdiction issue.”
Before taking testimony, the court advised Husband of his right to assert his Fifth Amendment right not to testify. It also advised that he could elect to have a hearing or consent to the entry of the protective order without a finding of abuse. Husband did not want to consent to the entry of a protective order.
Husband expressed that he did not understand why he was there and wanted to know why there was “a [temporary] protective order on me when [Wife] has contacted me multiple times, not only after August 27th, the day of the incident, but also continuously after the protective order was in place? I have dates such as September, official evidence of email—[.]”
The court interjected that Husband was getting into whether the final protective order should be granted; it advised Husband that Wife would present evidence and he would have the chance to question witnesses “and then we’ll proceed from there.”
When Husband repeated that he did not understand, the
court asked whether he wanted an attorney to represent him, to which Husband responded: “I do not.” The court proceeded with the hearing.
Wife testified first. She stated that the parties married in 2014 and are the parents of four children, who, at the time of the hearing, ranged in age from three to eight. In June 2023, Wife left the marital home in Baltimore City and moved with the children to Frederick County. She testified that she moved following incidents of physical abuse by Husband.
Wife testified about the incident on Sunday, August 27th, that prompted the filing of the petition for protective order. Although the children had spent the summer in Frederick County and began school there on August 23rd, Husband told Wife that he intended to pick them up on Sunday, take them home to Baltimore City, and have them attend school there. Wife did not agree and told him that she preferred to wait and “do a custody hearing.”4 But at around 8:00 p.m., Husband advised Wife that he was on his way to her residence to retrieve the children. Wife protested that the children, already in bed, were prepared to go to school the next day in Frederick County, and they would be traumatized if woken up and dragged back to Baltimore City. But Husband responded that he would wake the children up one by one, that it would be fine, and that he was on his way to get them.
Wife then took the children to a hotel for the night because she was scared. She explained that a few weeks earlier, Husband had come to her Frederick residence with his teenage daughter who assaulted her. Husband chased Wife around the house and locked her in a room. At one point, she was holding one of her children and Husband “was pulling” the child from her arms, which resulted in Wife calling the police.
Wife also testified that, before her leaving the marital home in Baltimore City, Husband “was physically violent towards [her] and it was in front of the children.” She attributed an escalation in Husband’s behavior in the past year to certain events including the death of her father-in-law, Husband being robbed at gunpoint, and Husband’s 17-year- old son “sexually abusing” their “7-year-old[.]” She claimed that Husband’s physical abuse “went from being very sporadic to being almost like twice a week.” She stated that he was verbally and emotionally abusive. As a result, Wife was fearful for herself and their children.
At the hotel, when Wife was putting the children to bed at about 9:00 p.m., Husband sent Wife an email that read: Is this Emily Fuller?
Have you kidnapped my family?
I am here at [address omitted] and my Family is not here. The house is a mess and I am calling the cops reporting your kidnapping immediately!
They will trace you down I will tell them you are armed So they shoot you on site
YOU WILL NOT GET AWAY!!!
Have fun my love see you soon[.]
The email was admitted into evidence. Wife testified that when she received the email, she called the police, informed them of it, and advised that Husband was at her house.
According to Wife, the police responded to her home and confirmed that Husband was there. She said the police officer advised her to seek a protective order. Later that night, she received a call from another police officer telling her that Husband was at the police station and that “they just needed to verify that the children were okay.” She said that this officer also advised her to seek a protective order.
When Wife completed her testimony, the court asked Husband whether he had any questions for her. Husband replied: “I object to the entire statement that was made other than the email.” When asked again whether he had any questions for Wife, Husband replied: “I don’t want to go into it.” The court then asked a third time: “So you don’t want to ask her any questions?” Husband responded: “Not today.” The court confirmed: “You do not.” Husband answered: “No.”
When the court then asked Husband whether he wished to testify on his behalf, he replied that he had “a statement to make[.]” After being duly sworn, he testified that Wife, despite the temporary protective order, had contacted him multiple times via email. Husband offered for admission a copy of emails and texts between the parties spanning over 200 pages. In his view, these communications supported his position that he had never threatened her and that “every [word] spoken from me is out of love and out of care and out of concern. Nothing was directed toward [Wife], especially on August 27th.” He also testified that the communications “validate[] that this protective order is invalid, not needed and the things that [Wife] proclaimed is not actual reality. It’s not facts.” The emails and texts were admitted without objection.
On cross-examination, Husband did not answer any questions by Wife’s counsel and instead invoked his right against self-incrimination under the Fifth Amendment. The hearing concluded with no other witnesses.
The court then recessed to review the communications admitted into evidence. Upon returning to the bench, the court announced that it found that Husband had placed Wife in fear of imminent serious bodily harm, therefore entitling her to a final protective order.
The final protective order, effective through October 5, 2024, in pertinent part, provides that Husband shall not abuse or threaten to abuse Wife or contact or attempt to contact her. The order also awarded Wife custody of the parties’ children for the duration of the order and granted Husband supervised visitation with the children.
We shall provide additional facts as necessary in our discussion.
STANDARD OF REVIEW
A petitioner seeking a final protective order must show “by a preponderance of the evidence that the alleged abuse has occurred[.]” FL § 4-506(c)(1)(ii); C.M. v. J.M., 258 Md. App. 40, 56 (2023). “Preponderance of the evidence means more likely than not.” C.M., 258 Md. App. at 56–57 (cleaned up). When reviewing the issuance of a final protective order, we accept the trial court’s findings of fact unless they are clearly erroneous. See Md. Rule 8-131(c); Barton v. Hirshberg, 137 Md. App. 1, 21 (2001). We “must consider evidence produced at the trial in a light most favorable to the prevailing party
and if substantial evidence was presented to support the trial court’s determination, it is not clearly erroneous and cannot be disturbed.” Ryan v. Thurston, 276 Md. 390, 392 (1975). We defer to the trial court’s credibility determinations because it has “the opportunity to gauge and observe the witnesses’ behavior and testimony during the trial.” Barton, 137 Md. App. at 21 (citation omitted). “As to the ultimate conclusion, however, we must make our own independent appraisal by reviewing the law and applying it to the facts of the case.”
Piper v. Layman, 125 Md. App. 745, 754 (1999)
DISCUSSION
In an informal brief, Husband states that he “is appealing all judgements, decisions and orders on the dates held 9-52023, 10-5-2023[.]” He claims that (1) he was “denied due process”; (2) he was “denied the opportunity to submit a response before, during and after the hearing”; and (3) there was “overreach by the judge who challenged [his] Motion to Dismiss.” He requests that this Court “vacate the judgments” and direct that the parties’ children be returned to the parties’ “marital home to reunite with [him].” Although he mentions the September 5th hearing, his arguments center on the final protective order hearing on October 5th.
As a threshold matter, we explain the issues not properly before us in this appeal. First, to the extent that Husband challenges the extension of the temporary protective order on September 5, 2023, such a challenge is moot. This is because the temporary protective order expired on October 5, 2023, and was supplanted by the final protective order.5 See Suter v. Stuckey, 402 Md. 211, 219 (2007) (“A case is moot when there is no longer an existing controversy when the case comes before the Court or when there is no longer an effective remedy the Court could grant.”).
Second, the portion of the final protective order pertaining to custody of the children for the duration of the order is not properly before us because a subsequent order by the circuit court dated March 28, 2024, in the parties’ divorce case, awarded Wife sole legal and physical custody of the children. See n.4, supra; FL § 4-506(j)(3) (“A subsequent circuit court order pertaining to any of the provisions included in the final protective order shall supersede those provisions in the final protective order.”).
I.
DUE PROCESS
Husband argues that the final protective order should be vacated because he was denied due process. As best we can discern, Husband bases his contention that he was denied due process on the following: he “was not aware of the protective order in the month of September. [He] was not served nor present for the first hearing on October 5, 2023 that was held before the 9 am scheduled hearing to [his] best belief. [He] was made aware of the protection order in October, also served minutes before the second hearing on October 5[,] 2023.”
At “[t]he core of due process is the right to notice and a meaningful opportunity to be heard.” Roberts v. Total Health Care, Inc., 349 Md. 499, 509 (1998). Due process “is a flexible concept that calls for such procedural protection as
a particular situation may demand.” Wagner v. Wagner, 109 Md. App. 1, 24 (1996). It “does not mean that a litigant need be satisfied with the result.” Id. at 23. Nor does it “require procedures so comprehensive as to preclude any possibility of error.” Id. at 24. “Stated another way, due process merely assures reasonable procedural protections, appropriate to the fair determination of the particular issues presented in a given case.” Id.
The statute for final protective orders provides in relevant part:
If the respondent appears before the court at a protective order hearing or has been served with an interim or temporary protective order, or the court otherwise has personal jurisdiction over the respondent, the judge: (i) may proceed with the final protective order hearing; and (ii) if the judge finds by a preponderance of the evidence that the alleged abuse has occurred, or if the respondent consents to the entry of a protective order, the judge may grant a final protective order to protect any person eligible for relief from abuse.
FL § 4-506(c)(1) (emphasis added). “A respondent under § 4-505 of this subtitle [temporary protective orders] shall have an opportunity to be heard on the question of whether the judge should issue a final protective order.” FL § 4-506(a).
The record does not support Husband’s claim that he was denied due process. The court followed the statutory procedure when it proceeded with the final protective order hearing. Husband appeared before the court on October 5th, and the court gave him the opportunity to be heard on whether a final protective order should be issued.
It is unclear what Husband means when he says that he was not served or present “for the first hearing on October 5, 2023 that was held before the 9 am scheduled hearing[.]” There was no hearing scheduled at 9:00 a.m. To the extent that “the first hearing on October 5” is a typographical error and Husband meant “September 5,” the original date of the final protective order hearing, there was no denial of due process.
At the September 5th hearing, it was noted that Husband was not present and had not been served. As a result, the court extended the temporary protective order and rescheduled the final protective order hearing for October 5th. This was apparently done to allow for service to be carried out. See FL § 4-505(c)(2) (“The judge may extend the temporary protective order as needed, but not to exceed 6 months, to effectuate service of the order where necessary to provide protection or for other good cause.”). By extending the temporary protective order, it appears the court was ensuring that Husband had notice and an opportunity to be heard on whether the final protective order should be granted. In other words, the extension of the temporary protective order aimed, in part, to safeguard due process rather than deny it.
Finally, we are not persuaded that Husband was unaware of a protective order in September. Communications admitted into evidence at the final protective order hearing on October 5th indicate that Husband was aware of the “domestic violence”
case against him. Although she did not appear to explicitly tell Husband that she had petitioned for a protective order and that the hearings related to temporary and final protective orders, Wife informed Husband on September 4th that there “is a hearing scheduled for 2 pm tomorrow [September 5]” and that Husband “should call the sheriff they have tried to serve you.” On September 6th, after the court extended the temporary protective order, Husband moved to dismiss the case for lack of jurisdiction. On September 7th, Wife advised Husband: “There is a court order in place. We can have it amended prior to October 5 but you need to accept service.”
On September 8th, Husband emailed Wife stating that he learned of the domestic violence case against him: I see a domestic violence case was formed against me. I’ve been asking you, what did you file and you will not tell me. I’ve asked you what is the filings about and you disregard my emails and texts. I’ve never been served. You telling me we have a hearing is not a form of being properly served. (Emphasis added). Husband followed up with another email asking Wife: “When did domestic violence [occur]? Where did Domestic Violence [occur]? Who performed Domestic Violence?
On September 24th, Wife emailed Husband: “You are refusing service and not showing up for court.” Husband responded, “I refused no service. No one ever visited me. Sweetheart[,] I consistently remind you we are not in that jurisdiction [Frederick County]. [Y]our a lawyer you should know that.” Although Husband may not have specifically known about the temporary protective order in September, he knew that there was a “domestic violence” case against him, that there was a court order in place, and that he had to be served. He also knew enough about the action to move to dismiss the case.
In any event, Husband learned about the temporary protective order on October 5th at the final protective hearing. He elected to proceed with a contested hearing even though he was offered the chance to obtain legal counsel. During the hearing, Husband was given the opportunity to be heard on whether a final protective order should be issued before the court granted it. For the reason stated, there was no denial of due process.
II.
OPPORTUNITY TO PRESENT DEFENSE
Husband asserts that he was “denied the opportunity to submit a response before, during and after the hearing[.]” He states that he “provided proof and objected to all claims submitted by [Wife], including false claims that also were unsubstantiated and dismissed by government agents.” But Wife, he maintains, “was allowed to defame [him] with the submission of the false claims.”
We are not persuaded that Husband was denied the opportunity to present a defense.
Before taking testimony at the final protective order hearing on October 5th, the court advised Husband that Wife would present evidence and he would have the chance to question witnesses. When Husband expressed that he did not understand, the court asked whether he wanted an attorney to
represent him, to which he responded: “I do not.”
During Wife’s testimony, when she purportedly made improper statements, Husband did not timely object to or move to strike her testimony; it was only after Wife completed her testimony that he objected to Wife’s entire statement. See Md. Rule 2-517(a) (“An objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent. Otherwise, the objection is waived.”). Nor did Husband test the veracity of her statements through cross- examination. When the court asked Husband whether he wished to ask Wife any questions, he affirmatively declined.
Husband was then given the opportunity to testify on his behalf and present a defense. The court admitted the only exhibit he offered, a packet of several communications that he maintained supported his position that he had never threatened Wife, that his words were “out of love and out of care and out of concern[,]” and that “this protective order is invalid, not needed and the things that [Wife] proclaimed is not actual reality.”
After the exhibit was admitted, the court inquired whether Husband had anything further to present, and he replied: “I do not.” Cross-examination of Husband was brief, as he invoked his privilege against self-incrimination under the Fifth Amendment. The court then recessed to review the exhibit submitted into evidence by Husband. In sum, the court gave Husband the opportunity to be heard before announcing its ruling.
The circuit court, in a bench trial, is “entrusted with making credibility determinations, resolving conflicting evidence, and drawing inferences from the evidence” and has the “ability to choose among differing inferences that might possibly be made from a factual situation[.]” Koushall v. State, 479 Md. 124, 149 (2022). The court apparently found Wife’s testimony credible in granting the final protective order. See Smith v. State, 415 Md. 174, 185 (2010) (“Because the fact-finder possesses the unique opportunity to view the evidence and to observe first-hand the demeanor and to assess the credibility of witnesses during their live testimony, we do not re-weigh the credibility of witnesses or attempt to resolve any conflicts in the evidence.”). Given the above, we find no merit in any contention that Husband was denied an opportunity to present a defense.
III.
MOTION TO DISMISS
Husband asserts that his rights were violated due to “overreach by the judge who challenged [his] Motion to Dismiss.” As we understand, Husband argues that the circuit court erred in effectively denying his Motion to Dismiss. Although he claimed below that the motion was based on a “lack of subject matter jurisdiction,” the actual basis was for improper venue.6 Husband states that he and Wife “were domiciled in Baltimore” and, therefore, “any action for a protective order is appropriate in Baltimore.” He claims that Wife changed her address after she had filed for a protective order. In other words, on appeal, he argues that Baltimore City, not Frederick County, was the appropriate venue for this
matter. We disagree.
“We review de novo the decision of the circuit court on a motion to dismiss for improper venue.” Halstad v. Halstad, 244 Md. App. 342, 348 (2020). A petitioner may file a petition for protective order with a commissioner if “neither the office of the clerk of the circuit court nor the Office of the District Court Clerk is open for business[,]” and the commissioner may issue an interim protective order. See FL § 4-504(a)(1), § 4-504.1(a), (b).
A commissioner is a judicial officer of the District Court of Maryland. See Md. Code, Courts & Judicial Proceedings (“CJP”) § 2-607(a)(1) (1973, 2020 Repl. Vol.) (“The administrative judge of each district, with the approval of the Chief Judge of the District Court, may appoint the number of commissioners necessary to perform the functions of the office within each county.”); Md. Rule 21-102(b) (“judicial officer” means “District Court commissioner”). “The District Court is a single unified court, divided into districts, with uniform statewide jurisdiction.”7 Brown v. State, 153 Md. App. 544, 576 (2003).
Wife filed the petition for protective order with a District Court commissioner on August 28, 2023, and the commissioner issued an interim protective order that morning. Several days earlier, Wife had filed a complaint in the Circuit Court for Frederick County in case number C-10-FM-23-001402, seeking sole legal and physical custody of the children. See n.4, supra; see also CJP § 6-202 (An action related to custody, maintenance, or child support may be brought in the count where “the father, alleged father, or mother of the child resides, or where the child resides[.]”). After issuing the interim protective order, the commissioner reviewed the District Court and circuit
court records for pending actions involving the parties. The commissioner reported in the case file that the custody action was pending in the circuit court.
After the District Court granted a temporary protective order on August 29th, it transferred the case to the Circuit Court for Frederick County under Maryland Rule 3- 326(c)(1). That Rule, in pertinent part, provides:
[A]fter entering a temporary protective order, the District Court, on motion or on its own initiative, may transfer the action to a circuit court for the final protective order hearing if, after inquiry, the District Court finds that (i) there is a pending action in the circuit court involving one or more of the parties in which there is an existing order or request for relief similar to that being sought in the District Court and (ii) in the interests of justice, the action should be heard in the circuit court.
In its transfer order, the District Court found that “there was a pending action in the circuit court involving one or more of the parties in which there is an existing order or request for relief similar to that being sought in these proceedings, and that it is in the interests of justice to transfer this action to the circuit court” under Rule 3-326(c)(1). Because there was a pending custody action in the Circuit Court for Frederick County seeking similar relief as the District Court case (i.e., custody), it was proper to transfer the District Court case to the Circuit Court for Frederick County for the final protective order hearing. Accordingly, the Circuit Court for Frederick County did not err when it effectively denied Husband’s Motion to Dismiss, and we perceive no “overreach” by the judge on this issue.8
JUDGMENT OF THE CIRCUIT COURT FOR FREDERICK COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 When the final protective order was entered, the parties were married. They are now divorced. See n.4, infra. Because they have the same surname, for clarity and ease of reading, we shall refer to Mr. Fuller as “Husband” and Ms. Fuller as “Wife.”
2 Husband is pro se, as he was in the circuit court. Wife had counsel in the circuit court and is pro se in this appeal. She did not file an appellee brief.
3 See Md. Code, Family Law (“FL”) § 4-505(a)(1) (1984, 2019 Repl. Vol.) (“If, after a hearing on a petition, whether ex parte or otherwise, a judge finds that there are reasonable grounds to believe that a person eligible for relief has been abused, the judge may enter a temporary protective order to protect any person eligible for relief from abuse.”).
4 We take judicial notice of the following. On August 16, 2023 (prior to filing the petition for a protective order), Wife filed a complaint in the Circuit Court for Frederick County in case number C-10-FM-23-001402, seeking sole legal and physical custody of the parties’ children. She later amended the complaint to include a request for absolute divorce. Following a hearing, the court, by order entered on March 28, 2024, granted Wife an absolute divorce and sole legal and physical custody. Husband was awarded supervised visitation with the children. Husband noted two appeals in the divorce/custody case, which are docketed in this Court as No. 2374, Sept. Term, 2023 and No. 489, Sept. Term, 2024. Case No. 2374-2023 was dismissed by this Court. Case No. 489-2023 is presently pending.
5 Even if not moot, we decline to address any challenge to the court’s entry of the extended temporary protective order on September 5, 2023. Husband did not present us with the transcript of that proceeding. See Kovacs v. Kovacs, 98 Md. App. 289, 303 (1993) (citations omitted) (“The failure to provide the court with a transcript warrants summary rejection of the claim of error.”). Nor did Husband adequately brief any such challenge. The Guidelines for Informal Briefs that were appended to the
briefing notice issued in this appeal provide, in relevant part, that the informal brief:
must identify issues that explain why the trial court erred or made a mistake in deciding the case and why the decision should be reversed or modified. The issues presented in the informal brief should be stated concisely with a description of the facts surrounding the issue and an argument supporting the resolution of the issue.
Guidelines for Informal Briefs (b)(2) (emphasis added). Husband’s informal brief does not articulate any arguments explaining why the court erred in extending the temporary protective order on September 5, 2023.
6 “Jurisdiction” “refers to the fundamental power of a court to decide a dispute, by virtue of the nature of the dispute (subject matter jurisdiction) and the connection between the defendant and the state (personal jurisdiction).” Sigurdsson v. Nodeen, 180 Md. App. 326, 342–43 (2008). In contrast, “venue” “does not concern the power of a court to decide an issue. It concerns the place, among courts having jurisdiction, that an action will be litigated.” Id. at 343.
7 Frederick County is part of District 11. See CJP § 1-602(11). The District Court of Maryland, sitting in Frederick County, is commonly known as the “District Court of Maryland for Frederick County.”
8 Even if, as Husband’s claimed below, Wife’s residency in Frederick County had to be proven to proceed with the final protective order hearing in the Circuit Court for Frederick County, the evidence established her residency there. Wife testified that she had left the marital home in June, moved to Frederick County, and enrolled the children in school there. Additionally, in an email dated June 4, Husband acknowledged Wife’s move to Frederick: “[Y] ou moved to Frederick and have enrolled our children in their public school.” Thus, the evidence demonstrated that Wife was residing in Frederick County when she filed the petition for protective order on August 28th.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Baltimore City Circuit Court’s award of sole legal custody and primary physical custody to mother. A reasonable factfinder could determine that it was in child’s best interest for mother to have sole legal custody and primary physical custody.
struggled with drug abuse and that Mother and Child were subjected to abuse from Father. Mother further indicated that she and Child were fearful of Father and his romantic partner (“Partner”).
In May of 2023, the court noted that the parties could not come to an agreement and the case would proceed to trial. The court subsequently entered multiple orders, including requirements that both parties undergo substance abuse assessments, mental health screenings, and a custody evaluation. The custody evaluation was completed in October of 2023, and in its final report, the evaluator recommended that Mother’s home serve as the “primary residence [for Child] so that schooling is not interrupted” and that “legal custody be shared, with neutral mediators to help the parents come to mutual decisions.”
Mother filed a counter-complaint in August of 2023, alleging that “recent events have shown that [Father] is unable to cope with the responsibility of caring for the child; that he is addicted to and possesses illegal drugs and is continually under the influence of drugs even when in the presence of the child.” Mother sought sole custody of Child.
A. Custody Trial
In this custody case, appellant Aurelio Barahona (“Father”), appeals an order granting Stacie Snyder (“Mother”) sole legal and primary physical custody of the parties’ minor daughter (“Child”), who was born in May of 2019. Following a trial on the merits in October of 2023, the Circuit Court for Baltimore City entered the Custody Order at issue. Father then filed a timely notice of appeal.1
ISSUES PRESENTED FOR REVIEW
Father presents the following issues for our review, which we have rephrased as follows:
I. Whether the court abused its discretion by improperly weighing the evidence and subsequently awarding sole legal custody and primary physical custody to Mother.
II. Whether the court improperly exhibited racial bias in awarding custody.
FACTUAL AND PROCEDURAL BACKGROUND
In February of 2023, Father filed a complaint seeking primary physical and sole legal custody of Child, subject to Mother’s supervised visitation. In his complaint, Father asserted that Mother had mental health diagnoses that prevented her from acting in the best interest of Child.
Mother subsequently filed an answer, requesting that the court dismiss or deny the complaint. Mother asserted that she is Child’s primary caretaker, that Father has continually
A trial on the merits was held in October of 2023. Father proceeded pro se, and Mother was represented by counsel. Father presented two witnesses during his case— himself and Partner—in addition to three exhibits. Those three exhibits included text messages between Mother and Father, a letter from Child’s school, and traffic citations issued to Mother.
As the first witness, Father began by testifying about his relationship with Child and Mother. He explained that he loves Child and “appreciate[s] her mother[, b]ut every child is entitled to both parents present.” Father alleged that Mother had stopped him from seeing his daughter, failed to inform him about Child’s doctor’s appointments, and did not provide Child’s school with Father’s information.
Father also asserted that Mother’s mental health is deteriorating such that Child “is suffering right now.” Father discussed at length his perceptions of Mother’s mental health, alleging that “she has a multitude of mental health issues and she’s not being treated right now.” Father asserted that as a result of Mother’s contended mental health issues, he was requesting “temporary full custody of [Child] while [Mother] gets a thorough mental health evaluation[.]” Father contended that this was necessary in part because Mother had been previously admitted to a hospital for mental health treatment.
The court inquired of Father when Mother’s prior hospitalization had occurred, and Father informed the court that it happened in 2019 following the birth of Child. In response, the court further inquired if anything more recent had happened, and Father indicated that he was not aware of any similar hospitalization or mental health crisis since 2019.
During cross-examination of Father, it was revealed that
Father had previously pled guilty to conspiracy to participate in a racketeering enterprise and had a history of drug abuse, although he denied active addiction or illicit drug use. Father also explained that he was unemployed, but due to disability benefits he received an income of $800.00 a month. Father further testified that he co-habitated with Partner, who was employed and assisted with household expenses. He noted that Partner had three minor children of her own who did not reside in the home but did visit occasionally.
Father additionally testified during cross-examination that he felt he could not trust Mother because Mother had made “false allegations” of sexual abuse against Partner and thus he would need a neutral party to conduct any exchange of Child. Father emphasized that he was not even comfortable exchanging Child in the parking lot of a police station. Father reiterated that he did not believe that he and Mother could communicate to effectuate Child’s interest unless Mother received mental health treatment, although Father admitted he had not been in contact with Mother for over a year.
Mother presented four witnesses: herself, her mother and Child’s maternal grandmother (“Grandmother”), Mother’s maternal aunt (“Aunt”), and a family friend (“Friend”). She also presented evidence including certificates of completion related to mental health, trauma informed care, and peer support coaching, as well as certifications related to her role as a peer recovery specialist with the Maryland Office of the Public Defender, and photos of the home in which she resided with Child and Grandmother.
Mother first called Aunt to testify. Aunt stated that both parties had struggled with drug addiction, but that Mother sought treatment and had no issues with drugs since the birth of Child. Aunt confirmed Father’s testimony that Mother had mental health challenges in the past and explained that Mother had been admitted to the hospital three years prior for postpartum anxiety but had not experienced a similar mental health crisis since. Grandmother and Mother similarly testified that Mother had been diagnosed with postpartum anxiety, among other diagnoses, but that Mother continues to receive treatment and take her prescribed medication.
Aunt also testified that Mother was the primary caregiver of Child, and that Father had disappeared for long stretches of time when Child was an infant. Aunt stated that during the entire course of Child’s life, Mother had been the better provider for Child. Similarly, Grandmother testified that Father had “[v]ery little” interaction with Child when Child was an infant.
Mother’s testimony reiterated that Father, although somewhat present during Child’s infancy, was not the primary caretaker. Mother also stated that when Child was 10 months old, Mother asked Father to leave the family home because “he was still getting high” and he subsequently “chose to leave instead of go to treatment.” At the conclusion of her testimony, Mother indicated that she believed that presently Father was incapable of having Child safely stay overnight at Father’s house. However, Mother noted it was in Child’s best interest to have some form of a relationship with Father. Mother did not believe that the two of them would be able to productively communicate to make decisions regarding Child’s best interest.
Notably, throughout the course of the trial, an allegation that Partner sexually abused Child by touching her inappropriately in November of 2022 was at issue. Child was taken to the hospital by Mother for an evaluation; however, the allegation was not corroborated by a medical assessment of Child and no legal action appears to have been taken regarding the allegation. Yet, Child Welfare Services did provide a safety plan to Mother as a result of the abuse allegation. While Child did not testify, Mother’s testimony and the custody evaluation report indicated that Child was uncomfortable and felt unsafe around Partner due to the alleged inappropriate touching and resulting events.
B. Findings and Order
After having heard the presentation of evidence, the court awarded sole legal custody to Mother. The court noted its consideration of the Sanders-Taylor factors, see infra Section I.A., concluding, largely based on the inability of the parents to communicate, that joint custody was not appropriate and that it would award sole custody to Mother due to Child thriving in her care.
The court also awarded Mother primary physical custody and Father access every other weekend from 9:00am to 7:00pm, indicating that Partner was not to be in the presence of Child. The court noted that, although there was an inconclusive investigation regarding the abuse allegations against Partner, Child believes the abuse to have occurred and “exhibits a lot of discomfort at the specter of being around [Partner].” Of additional concern to the court was that two of Partner’s own children were in the court-ordered custody of their grandmother and not Partner. This gave the court concern as no explanation had been provided as to the reason for that order. Thus, while explaining the award of custody, the court explained that it was in the best interest of Child to not be in the presence of Partner. Additional facts will be included as they become relevant to the issues.
DISCUSSION
I. THE COURT PROPERLY CONSIDERED THE SANDERS-TAYLOR FACTORS IN AWARDING CUSTODY.
Father contends that the court improperly weighed the evidence and thus the award of legal custody and primary physical custody should be vacated on three grounds. Father argues that (1) the court failed to properly consider the report prepared by the custody evaluator; (2) that the court did not adequately consider Mother’s multiple mental health diagnoses when determining the best interest of Child; and (3) that the court gave improper weight to the allegations of sexual abuse against Partner when making its custody determinations.
A. Standard of Review
When reviewing child custody determinations, we employ three interrelated standards of review. Gillespie v. Gillespie, 206 Md. App. 146, 170 (2012).
When the appellate court scrutinizes factual findings, the clearly erroneous standard of Rule 8-131(c) applies. Second, if it appears that the court erred as to matters of law, further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless. Finally, when the appellate court views the ultimate conclusion of the court founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the court’s decision should be disturbed only if there has been a clear abuse of discretion.
Id. (quoting In re Yve S., 373 Md. 551, 586 (2003)) (internal brackets omitted). Trial courts are vested with such broad discretion because a trial court “sees the witnesses and the parties, hears the testimony, and has the opportunity to speak with the child.” J.A.B. v. J.E.D.B., 250 Md. App. 234, 246–47 (2021) (quoting In re Yve S., 373 Md. at 587). A trial court therefore is in a superior position “to weigh the evidence and determine what disposition will best promote the welfare of the minor[,]” compared to the “appellate court, which has only a cold record before it[.]” Id. (citation omitted).
A trial court’s findings are “not clearly erroneous if there is competent or material evidence in the record to support the court’s conclusion.” Lemley v. Lemley, 109 Md. App. 620, 628, cert. denied, 343 Md. 679 (1996). “Additionally, all evidence contained in an appellate record must be viewed in the light most favorable to the prevailing party below.” Id. An abuse of discretion exists only where “no reasonable person would take the view adopted by the trial court or when the court acts without reference to any guiding rules or principles.” Santo v. Santo, 448 Md. 620, 625–26 (2016) (internal quotation marks, brackets, and citation omitted).
In all custody determinations, the paramount and overarching concern is “the best interest of the child.” Taylor v. Taylor, 306 Md. 290, 303 (1986). Although “[t]he best interest standard is an amorphous notion, varying with each individual case,” a fact finder should “evaluate the child’s life chances in each of the homes competing for custody and then [] predict with whom the child will be better off in the future.” Montgomery Cnty. Dep’t of Soc. Servs. v. Sanders, 38 Md. App. 406, 419 (1978). To accomplish this task, Maryland appellate courts have identified several factors for circuit courts to consider when determining child custody, collectively termed the Sanders-Taylor factors.2 See id. at 420; see also Taylor, 306 Md. at 304–11.
B. Analysis
Here, we cannot conclude that the court abused its discretion when it awarded sole legal and primary physical custody to Mother. The court acknowledged considering the Sanders-Taylor factors when coming to the custody determination and was particularly focused on the “capacity of the parents to communicate and reach shared decisions” which has been identified as one of the “the most important fact[s] in the determination of whether an award of joint legal custody is appropriate.’” J.A.B., 250 Md. App. at 256 (quoting Taylor, 306 Md. at 304). Based on the testimony and evidence presented, the court concluded that “there is no good way for these two individuals to communicate. And therefore, my
hands feel tied as far as I cannot do a joint custody[.]” This conclusion is amply supported by the testimony from Mother and Father wherein both parties note a lack of the ability to communicate albeit placing the fault on the other person.
During Mother’s testimony she said that “if the two of [them] ha[d] to make decisions about [Child] in the areas of health, education and religion” they would not be able to do so without argument. Mother also testified that her text messages to Father went unanswered. Further, during his testimony, Father likewise indicated that he did not believe that the two of them could communicate unless Mother received “mental help.” Father noted that Mother “doesn’t want to communicate. I’ve tried[.]”
Thus, the court determined that, because Mother and Father could not communicate effectively, it was in the best interest of Child to award legal custody to one parent and subsequently awarded sole legal custody to Mother. The court reasoned that Mother should have sole legal custody because “[b]y all reports [] the child has thrived under the care almost exclusively of [Mother] in this case[.]” The court’s reasoning is supported in the record by testimony from Grandmother and Aunt, as well as both Mother, and Father. Grandmother testified that Mother “is at my house every single day with the child. I do not babysit the child. She is there with the child every day.” Grandmother also testified that Mother is the one to make the meals for Child, get her on and off the school bus, and that Child has “lived with [Mother] her whole life.” Mother similarly testified that she has “a whole system that we have been put together for [Child] for her school clothes, for her nightly routines. . . . And, you know, we’ve worked extremely hard to . . . give her that stability with different tools and things[.]” Further, while Father testified about the financial resources he previously offered to provide for Child, such as paying for her to be enrolled in daycare, he acknowledged that his visits with Child have been limited.
In deciding to award primary physical custody to Mother, the court indicated that because Child “exhibits a lot of discomfort at the specter of being around [Partner,]” it is in Child’s best interest, that Partner is not around Child. However, Father was awarded access to ensure a continued relationship between Father and Child. The record supports the court’s conclusion that Child was uncomfortable around Partner, as well as the court’s conclusion that it is in Child’s best interest to award Mother primary physical custody. There was ample testimony and evidence upon which a reasonable fact finder could reach these conclusions, to include the custody evaluation report which noted that Child should be in Mother’s primary custody so as not to disrupt school. Additionally, Grandmother and Aunt both testified that Mother was the primary provider for Child. Further, Mother testified regarding the positive routine and environment she created for Child.
Thus, the court did not err in awarding sole legal custody and primary physical custody to Mother because a reasonable factfinder could determine that it was in Child’s best interest for Mother to have sole legal custody and primary physical custody. Nevertheless, we will address in turn each of Father’s contentions of error.
1. The custody evaluation report
Father contends that the court failed to take into consideration the report prepared by the custody evaluator and disregarded the report’s recommendation that “legal custody be shared, with neutral mediators to help the parents come to mutual decisions.” During the trial, the court acknowledged reading the evaluation and relied on aspects of the report in concluding that Child was uncomfortable around Partner due to the allegations of sexual abuse. Thus, the record illustrates that the court considered the custody evaluation, however based on all of the evidence, determined that the parents could not effectively communicate, making joint legal custody not feasible. As such, the court properly used its discretion to “engage[] in precisely the type of analysis we have explained is appropriate when evaluating the best interests of a child” and determined that joint legal custody was not appropriate. See J.A.B., 250 Md. App. at 258.
2. Mother’s mental health history
Father further asserts that the court erred when it awarded sole legal and primary physical custody to Mother who has “multiple severe mental health issues.” The trial court had the opportunity to hear from multiple sources regarding Mother’s mental health, evaluate her fitness as a parent, and subsequently determine what was in the best interest of Child.
Father testified extensively regarding his perception of Mother’s mental health, particularly regarding its impact on their ability to communicate and relationships with Child. However, on cross examination he admitted that outside of one incident he did not have any knowledge of Mother’s mental health status after 2021. Whereas, Grandmother and Aunt testified that Mother was diagnosed with postpartum anxiety when Child was an infant and was admitted to the hospital, but that nothing akin to that incident reoccurred in the years since. Similarly, during Mother’s testimony she explained that she has seen a “mental health doctor” for the last 10 years and that she “worked extremely hard to learn and educate [her] self to be able to deal with certain emotions, and . . . mental health issues[.]”
Having heard from multiple sources regarding Mother’s mental health and having its own opportunity to observe her behavior in court, the court applied the Sanders-Taylor factors, which include the fitness of the parents. The court determined that it was in the best interest of Child for sole legal custody and primary physical custody to be awarded to Mother. Here, there was evidence in the record acknowledging Mother’s prior mental health issues. However, at the time of the custody determination, the court concluded Mother was a mentally fit parent capable of providing care to Child. As this is well supported in the record, we cannot say the court abused its discretion by declining to find that her past mental health struggles impeded Mother’s ability to act in the best interest of Child as Father alleges. See Lemley, 109 Md. App. at 628.
3. The allegation of sexual abuse
Father additionally argues that the court improperly considered unsubstantiated allegations of sexual abuse against Partner in reaching the custody determination. But, in
making its custody decision, the court appropriately declined to determine the veracity of the allegations against Partner and noted that it was “not finding [Partner] guilty of any sexual molestation.” Instead, the court took great care to explain that it was not the truth of the allegations it was considering, but the effect of those allegations on Child, Child’s relationship with Father, and Child’s relationship with Partner.
These considerations by the court are relevant to multiple Sanders-Taylor factors, particularly, preference of the child and residences of parents and opportunity for visitation, as Father resides with Partner. See Sanders, 38 Md. App. at 420; Taylor, 306 Md. at 304–11. Thus, it was appropriate for the court to consider the effect of the allegations and their circumstances on Child when determining Child’s best interest.
Father has asked us to re-weigh the evidence at trial and examine the evidence favorable to him without deference to the circuit court’s determinations. That is not our role as an appellate court. Indeed, “trial courts are entrusted with ‘great discretion in making decisions concerning the best interest of the child.’” Gizzo v. Gerstman, 245 Md. App. 168, 200 (2020) (quoting Petrini v. Petrini, 336 Md. 453, 469 (1994)). The trial court’s custody determination was soundly based on factual findings that were not clearly erroneous. In arriving at the conclusion, the court explained its reasoning on the record, and specifically referenced the Sanders-Taylor factors.
As previously noted, there is ample evidence in the record by which a reasonable factfinder could determine that it was in Child’s best interest for Mother to have primary physical and sole legal custody, hence, the court did not abuse its discretion in making the custody determinations.
II. THE COURT DID NOT EXHIBIT RACIAL BIAS IN ITS CUSTODY DETERMINATION.
Father asserts that the court’s decision to award sole legal custody and primary physical custody to Mother was grounded in “Discrimination and Bias[.]” Father contends that he was not afforded a fair trial due to a statement made by the trial court in which the court informed Father that the custody decision was not based on race.
A trial judge “is presumed to know the law and apply it properly” such that it only considers the best interest of the child when making a custody determination. State v. Chaney, 375 Md. 168, 180 (2003) (quotations omitted); see Sanders, 38 Md. App. at 420. The Maryland Rules of Judicial Conduct require judges to “uphold and apply the law and [] perform all duties of the office impartially and fairly.” Rule 2.2 As such, the judge “shall not, in the performance of judicial duties, by words or conduct, manifest bias, prejudice or harassment based on upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation.” Rule 2.3. The court is thus not to be guided by any such beliefs related to the previously identified categories while assessing the SandersTaylor factors or when making a custody determination. See Azizova v. Suleymanov, 243 Md. App. 340, 347–48 (2019).
We have carefully reviewed the record for any indication that the court’s determination was motivated by racial bias. Here, the record does not support the contention that the
court discriminated against Father and awarded sole legal custody and primary physical custody to Mother on the basis of racial discrimination. Instead, the record evinces a situation wherein the court attempted to alleviate concerns raised by Father during the course of trial regarding potential racial bias. During the pendency of the trial, Father made numerous comments pertaining to the impact of race and racism within society and noted his concern that racism would taint any legal proceedings. The court responded in an attempt to allay these concerns with a single statement addressing the issue at
JUDGMENT
the close of the trial. In that statement the court specifically assured Father that it was not basing its determination on race; the court made no other statements related to race. Regardless of whether the court’s statement accomplished its intended goal of alleviating Father’s concerns regarding the fairness of the proceeding, there is nothing in the record by which we could conclude that the court’s statement indicates that it impermissibly awarded sole legal custody and primary physical custody to Mother due to racial bias against Father.
OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 We note that Mother did not file briefing materials in response to this appeal.
2 In Sanders, we set out the following non-exclusive factors for a circuit court to consider in child custody determinations: 1) fitness of the parents; 2) character and reputation of the parties; 3) desire of the natural parents and agreements between the parties; 4) the ability to maintain natural family relations; 5) preference of the child; 6) material opportunities affecting the future life of the child; 7) age, health, and sex of the child; 8) residences of parents and opportunity for visitation; 9) length of separation from the natural parents; and
10) prior voluntary abandonment or surrender. Sanders, 38 Md. App. at 420. We have stated that a trial court will generally not weigh any one factor to the exclusion of others. Id.
In Taylor, our Supreme Court reiterated the Sanders factors and added several other factors it viewed as relevant in making custody determinations: 1) capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare; 2) willingness of parents to share custody; 3) fitness of parents; 4) relationship established between the child and each parent; 5) preference of the child; 6) potential disruption of child’s social and school life; 7) geographic proximity of parental homes; 8) demands of parental employment; 9) age and number of children; 10) sincerity of parents’ request; 11) financial status of the parents; 12) impact on state or federal assistance; 13) benefit to parents; and
14) other factors. Taylor, 306 Md. at 304–11. The most important factor to consider in determining legal custody is the parents’ capacity to communicate and to reach shared decisions affecting the child’s welfare. Id. at 304.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 06 MFLU Supp. 52 (2024)
Hearing; missing transcript; child support Linda Ann Banks
The Appellate Court remanded the case to the Prince George’s County Circuit Court. Through no fault of mother, the record is incomplete because of the lack of the transcript of the Nov. 6, 2023, hearing. The circuit court must thus explain what occurred at the November 6 hearing and the reasons for its decision.
In July 2018, the circuit court entered an order establishing a custody arrangement for the Child and ordering Father to pay child support.
Five years later, in July 2023, Father filed a Motion to Modify Child Support (“Motion to Modify”). In October 2023, Mother filed a Counter-Complaint for Custody and Child Support (“Counter-Complaint”). A hearing before a magistrate was scheduled for Monday, November 6, 2023, at 9 a.m.
On Sunday, November 5, 2023, at 2:50 p.m., the day before the scheduled hearing, Mother filed a Motion to Request a New Hearing Date (“postponement request”) because the Child was ill and could not attend the hearing or be left alone. In her request, Mother stated that she had planned to bring a character witness and the Child, who was twelve years old, “so [the Child] could speak to the magistrate himself.” She explained that the Child had developed a fever the day before and continued to have a fever on Sunday. Mother requested that the hearing be rescheduled or, in the alternative, that the hearing be held remotely. Mother argued that granting a postponement would be in the Child’s best interest. The certificate of service on the motion indicated that Mother emailed Father a copy of the motion on Sunday.
Linda Banks (“Mother”) appeals from three orders entered by the Circuit Court for Prince George’s County: (1) an order ruling that her request to postpone a hearing before the magistrate was moot; (2) an order adopting the magistrate’s proposed order that granted a motion to modify child support filed by Julian Irwin Brown, Jr. (“Father”) and dismissed a counter-complaint for custody and child support filed by Mother; and (3) an order denying Mother’s exceptions to the magistrate’s proposed order.
In an informal brief, Mother raises four issues that we have rephrased and consolidated as follows:1
1. Did the circuit court err or abuse its discretion in ruling that Mother’s request to postpone the hearing before the magistrate was moot?
2. Did the circuit court err or abuse its discretion in granting Father’s motion to modify child support and dismissing Mother’s counter-complaint for custody and support?
3. Did the circuit court err or abuse its discretion in denying Mother’s exceptions?
For reasons to follow, we are unable to address Mother’s issues because the record is incomplete. Accordingly, we remand the case to the circuit court for further proceedings consistent with this opinion.
BACKGROUND
Mother and Father are the parents of a minor child (“Child”).
The hearing before the magistrate proceeded on the morning of November 6, and Mother did not appear. As we explain later, the transcript of the November 6 hearing was not included in the record, so it is unclear whether the magistrate was aware that Mother had filed the postponement request, what Father represented at the hearing in that regard, and how the magistrate addressed Mother’s absence or resolved the motion, if at all. The record only reflects that, at 2:09 p.m. that same day, the circuit court issued an order ruling that the postponement request was “moot.”
On November 13, 2023, the magistrate issued a proposed order to grant Father’s Motion to Modify and dismiss Mother’s Counter-Complaint without prejudice. It read:
The above-captioned matter was scheduled for a hearing before the Family Magistrate on November 06, 2023, on [Father’s] Petition to Modify Child Support filed on July 26, 2023, and [Mother’s] Counter Complaint for Child Support filed on October 16, 2023.
Present at the hearing: [Father] without counsel[.]
IT IS HEREBY ORDERED, that [Mother’s] Counter Complaint for Child Support filed on October 16, 2023, be and is hereby dismissed without prejudice.
IT IS FURTHER ORDERED, that [Father’s] Petition to Modify Child Support filed on July 26, 2023, be and is hereby granted.
AND IT IS FURTHER ORDERED, that
The Consent Custody, Access and Child Support Order dated June 20, 2018, be modified to the extent that [Father] is directed to pay to [Mother] the sum of $506.00 per month as child support for the minor child . . . commencing August 1, 2023. Said payments are to be made directly between the parties.
Both parties are required to notify the [c]ourt in writing within 10 days of any change of address or employment so long as the support order remains in effect. Failure to do so may result in a fine not to exceed $250.00, and may result in the obligor not receiving notice of proceedings.
Failure to comply with the above paragraph of this Order shall subject the obligor to a penalty not to exceed $250.00.
The obligor shall make all payments until the wage withholding is in effect and payments are being withheld by the employer.
This case be and hereby is closed for statistical purposes only. PAYMENTS ARE TO CONTINUE.
Date Judge
/s/
Magistrate, Thomas J. Rogers, Jr.
All testimony, Family Magistrate’s findings of fact, conclusions of law, and Recommendations were electronically recorded and said recording is made a part of the court file for a period of two (2) years. The Family Magistrate makes recommendations in the form of a final Order. Pursuant to Maryland Rule 9-208(f), the parties are advised that if written exceptions are not filed on or before November 16, 2023, the attached Order will be submitted to the Court for approval. If exceptions are filed, a copy must be mailed or personally delivered to the opposing party or their attorney if they are represented. (Emphasis added).
Again, because the hearing transcript was not included in the record, we do not know what evidence was presented, the arguments Father made, the magistrate’s findings, or the reasons for the recommended rulings in the proposed order. Furthermore, the docket entries do not indicate that the magistrate prepared and filed written recommendations with a brief statement of his findings, so we are unaware of any findings that may have been made. See Md. Rule 9-208(e) (1) (“Except as otherwise provided in section (d) of this Rul [contempt proceedings], the magistrate shall prepare written recommendations, which shall include a brief statement of the magistrate’s findings and shall be accompanied by a proposed order.”).
On November 15, 2023, Mother filed exceptions to the magistrate’s proposed order. Maryland Rule 9-208(g)(1) sets out the requirements for the excepting party. In pertinent part, the rule requires the excepting party to order a transcript of “so much of the testimony as is necessary to rule on the exceptions,” arrange for payment, and file a certificate of compliance confirming that these steps have been completed. It further provides that the transcript shall be filed within 30 days or longer (but not exceeding 60 days after the exceptions are filed) as the magistrate may allow. Id. “For good cause shown, the court may shorten or extend the time for the filing
of the transcript. The excepting party shall serve a copy of the transcript on the other party. The court may dismiss the exceptions of a party who has not complied with this section.” Id.
The docket entries do not indicate that Mother filed a certification of compliance showing that she had ordered the transcript of the November 6 hearing. Nor was there any indication that she requested an extension of time to file the transcript with the circuit court. On December 20, 2023, the circuit court signed the magistrate’s proposed order.
The court also denied Mother’s exceptions without explanation.2
On January 17, 2024, Mother noted a timely appeal of the court’s orders.
Incomplete Record on Appeal
While Mother’s appeal was pending, a record of the circuit court proceedings was transmitted to this Court; however, the transcript of the November 6 hearing was not included. On April 3, 2024, this Court issued a show cause order for Mother to explain why her appeal should not be dismissed due to failure to order the transcript.3
Mother explained that she attempted to obtain the transcript but could not do so because the transcriber could not find an audio recording of the hearing. She emailed the circuit court’s Office of the Court Reporters and the transcriber (Amicus Transcription, LLC) about the transcript. These communications indicate that on November 15, 2023, the day she filed her exceptions, Mother ordered the transcript of the November 6 hearing for her exceptions. In her request, she specified that she needed the transcript by December 1, 2023. There were various email exchanges between Mother and the transcriber over the next month about the status of completing the transcript. Ultimately, on January 22, 2024, the transcriber issued a letter to Mother explaining: “After numerous attempts to secure the audio for transcription from Prince George’s County Circuit Court, I have been unable to obtain it. Therefore[,] a transcript is unable to be produced. A refund of the estimated cost has been refunded to your credit card.”
On May 3, 2024, this Court issued an order indicating that the show cause order had been satisfied and that Mother’s appeal shall proceed. In addition, this Court ordered the circuit court to produce, within 15 days, either an audio recording of the hearing or a written statement indicating that such a recording could not be produced.4 The court did not respond.
On June 6, 2024, this Court entered an order stating that the circuit court had not responded to our previous order and that Mother’s appeal should proceed without a hearing transcript. We noted further that “[s]hould the Panel assigned to consider this appeal later determine that it cannot decide the appeal without transcripts, the appeal may be dismissed or remanded for further proceedings at that time.”
DISCUSSION
Our analysis and answer to Mother’s questions depend on our independent review of the record. See Md. Rule 8-131(c) (“When an action has been tried without a jury, an appellate
court will review the case on both the law and the evidence.”). If this Court concludes that the substantial merits of a case cannot “be determined by affirming, reversing or modifying the judgment, or that justice will be served by permitting further proceedings, the Court may remand the case to a lower court.”
Md. Rule 8-604(d)(1).
A.
Postponement Request
As to the first issue, Mother argues that the court erred or abused its discretion in denying her request to postpone the November 6 hearing due to the Child’s illness. Preliminarily, we note that the court’s order did not explicitly state that the postponement request was denied; the word “moot” was stamped on the postponement request. Clearly, however, the postponement request was not granted; the November 6 hearing proceeded in Mother’s absence.
Under Maryland Rule 2-508(a), a court “may continue or postpone a trial or other proceeding as justice may require.”
“The determination of whether justice requires a continuance ‘lies within the sound discretion of the trial judge.’” Att’y Grievance Comm’n of Md. v. O’Neill, 477 Md. 632, 661 (2022) (quoting Touzeau v. Deffinbaugh, 394 Md. 654, 669 (2006)).
We review the court’s decision for abuse of discretion, and we will reverse “only in ‘exceptional instances where there was prejudicial error.’” Serio v. Baystate Properties, LLC, 209 Md. App. 545, 554 (2013) (citation omitted). “A court abuses its discretion when ‘no reasonable person would take the view adopted by the trial court or when the court acts without reference to any guiding rules or principles.’” In re K.L., 252 Md. App. 148, 185 (2021) (citation omitted).
Regarding a court’s exercise of discretion when faced with a postponement request in the context of a child custody case, this Court’s decision in In re McNeil, 21 Md. App. 484 (1974), is instructive. There, the issue was whether a juvenile court abused its discretion in denying a mother’s postponement request and proceeding with an exceptions hearing in her absence. Id. at 496. The mother’s minor children had initially been committed to the care and custody of the Department of Social Services (the “Department”), but the mother later filed a petition to have the commitment order revoked. Id. at 486. A magistrate held a hearing on the mother’s petition and subsequently recommended revoking the commitment and returning the children to their mother. Id. After the Department filed exceptions, the matter was set for a hearing before the juvenile court. Id. At the beginning of that hearing, the mother’s counsel informed the juvenile court that the mother could not attend because one of her children was sick. Id. at 486–87. For that reason, and additional reasons related to the availability of some of the mother’s witnesses, counsel requested a continuance. Id. at 486–88. The juvenile court denied the request and proceeded with the hearing in the mother’s absence. Id. at 488. The juvenile court ultimately dismissed the mother’s petition. Id. at 493.
On appeal, we held that the juvenile court had abused its discretion in denying the mother’s postponement request. Id. at 500. In so doing, we noted that there was “no right more fundamental to any parent than to be given a reasonable
opportunity to be present at any judicial proceeding where the issue is whether or not the parent should be permitted to have custody of its child.” Id. at 496. In light of that fundamental right, we found it difficult to conceive how the juvenile court could “proceed with the hearing not only in the absence of [the mother], but without making a realistic inquiry into the circumstances of her absence, or ascertaining whether she had been guilty of a pattern of unconcern.” Id. at 498.
We explained that while certain extenuating circumstances may justify a court’s decision to hold a custody hearing in a parent’s absence, none of those circumstances were present in that case, and “[t]here certainly was nothing of an emergency nature about the hearing[.]” Id. at 499. We concluded that the case was “one of those exceptional instances where refusal to grant a continuance was so arbitrary as to constitute a denial of due process.” Id.
Reaser v. Reaser, 62 Md. App. 643 (1985), is also instructive, although not related to child custody. There, the wife, in a divorce proceeding, requested that the trial be postponed so that she could obtain counsel. Id. at 645. The court denied the request, and the case proceeded to trial. Id. at 646. After the court entered judgment and the wife appealed, we reversed, holding that the court had abused its discretion in denying the wife’s postponement request. Id. at 650. In reaching that decision, we noted that the court had failed to give any reason for denying the continuance request. Id. Further, there did not appear to be any emergency situation necessitating the case to proceed immediately. Id.
In the instant case, the circuit court did not give a reason for ruling that Mother’s postponement request was moot. One possible explanation is that the postponement request was filed over the weekend before the Monday morning hearing on November 6, and it might not have been brought to a judge’s attention in time. Another possibility is that the magistrate might have become aware of the postponement request and dealt with it upon realizing that Mother did not appear at the hearing.5 The problem is that we do not have the transcript of the November 6 hearing, so we cannot tell if the magistrate was aware of the Mother’s postponement request or if the magistrate made a realistic inquiry into the circumstances of Mother’s absence. See McNeil, 21 Md. App. at 498. Additionally, because we do not have the transcript, we cannot tell if any emergency necessitated the case to proceed immediately. See id. at 499; Reaser, 62 Md. App. at 650. For the reasons stated, we cannot address the first issue without the transcript and an explanation from the circuit court for why it ruled that the postponement request was moot.
B.
Adopting Magistrate’s Proposed Order & Denying Mother’s Exceptions
Separately, the circuit court did not provide a reason for adopting the magistrate’s proposed order and denying Mother’s exceptions. To the extent that the court considered the magistrate’s findings that were purportedly placed on the record, we do not have the transcript of the November 6 hearing to evaluate those findings. Without the transcript and an explanation from the court as to why it adopted the
magistrate’s proposed order and denied Mother’s exceptions, we cannot evaluate either decision.
C. Limited Remand
Ordinarily, when a transcript necessary to determine an appeal is omitted from the record, this Court has the discretion to dismiss the appeal. See Town of Cheverly Police Dep’t v. Day, 135 Md. App. 384, 391 (2000). But dismissal is not appropriate if the lack of a transcript “was caused by the act or omission of a judge, a clerk of court, the court reporter, or the appellee[.]” Md. Rule 8-602(c)(3).
When the lack of a transcript is not the fault of the appealing party, our appellate courts have remanded the case without affirming or reversing to allow the court to address what transpired so that we could properly evaluate the parties’ claims. See, e.g., King v. State Roads Comm’n of State Highway Admin., 284 Md. 368 (1979); Dishman v. Dishman, 59 Md. App. 435 (1984); see also Md. Rule 8-604(d)(1).
In King, the appellant established an error in the method of jury selection utilized in that case. 284 Md. at 371–72. The Supreme Court of Maryland held that it was appropriate to remand the case for the limited purpose of determining whether the appellant had timely objected to utilizing that method, a fact that the transcript failed to disclose. Id. at 374–75. The Court instructed the trial court on what it needed to do on remand:
On remand, if, after considering the record, the arguments of counsel, any trial notes he retained, or any other legitimate source, the trial judge's recollection is refreshed to the extent that he can certify as to what occurred with regard to the alleged objection, the following action should take place: If the court finds the petitioners did not make a timely objection, as specified by this opinion, the judgments previously recorded on May 4, 1978, should be re-entered; however, if it finds such an objection was registered before the jury was impaneled, a new trial should be provided.
On the other hand, if the trial judge is unable to reach a conclusion as to whether a timely objection was made, then, in that event, a new trial should be conducted. Id. at 375.
In Dishman, this Court remanded a civil contempt case involving nonpayment of child support because the transcript
of a hearing, during which the appellant purportedly was advised of his right to counsel and waived it, was missing through no fault of the appellant. 59 Md. App. at 442. Relying on King, this Court remanded the case “for certification by the trial court as to what transpired.” Id. The Court directed the trial court on remand to consider the record. Id. at 442–43. If, after this review, the trial judge could recall and certify what occurred and, as a result, make a finding as to whether there was an intelligent, voluntary, and knowing waiver, the judge should proceed to do so. Id. If the judge found such a waiver, the judge “should certify the facts to us so that we can review the case.” Id. at 443. However, a new hearing should be conducted if the judge could not conclude whether such a waiver was made. Id.
In the instant case, the record is incomplete because of the lack of the transcript of the November 6 hearing, but through no apparent fault of Mother. In this case, as in King and Dishman, we find that justice will be served by permitting further proceedings. See Md. Rule 8-604(d)(1). Accordingly, we remand the case to the circuit court with orders structured as follows:
1. We direct the magistrate to certify what occurred as to (a) whether the magistrate addressed Mother’s absence and postponement request at the November 6 hearing, and if so, how; and (b) the evidence presented at the hearing and the magistrate’s findings and recommendations as to Father’s Motion to Modify and Mother’s Counter- Complaint.
2. If the magistrate is able to provide the certification based on his recollection of the hearing, then we direct the magistrate to prepare and file written recommendations to include a certification of what transpired regarding Mother’s absence and postponement request (if anything at all), a summary of any arguments, a summary of the evidence presented, and findings made on the record on November 6. In that case, we further direct the circuit court to explain (a) why it ruled that Mother’s postponement request was moot,
(b) why it adopted the magistrate’s proposed order, and (c) why it denied Mother’s exceptions.
3. If the magistrate is unable to certify what transpired at the November 6 hearing, then a new hearing on the merits of Father’s Motion to Modify and Mother’s Counter-Complaint should be conducted.6
CASE REMANDED TO THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY, WITHOUT AFFIRMANCE OR REVERSAL, FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION; COSTS TO BE PAID ½ BY APPELLANT AND ½ BY APPELLEE.
FOOTNOTES
1 Mother phrased the issues as:
Issue 1: The court erred and abused its discretion when it denied my motion for sole custody without rescheduling the hearing due to my ill son, effectively denying me the ability to argue my case.
Issue 2: The court erred and abused its discretion when it denied my motion for sole custody.
Issue 3: The court erred and abused its discretion when it reduced the child support by 50%.
Issue 4: The court erred and abused its discretion when it denied my November 2023 Petition for Exceptions without reason or explanation. I would like the Appellate Court of Maryland to consider my Petition for Exceptions and its exhibits.
2 No hearing was scheduled on Mother’s exceptions; neither party requested one. See Md. Rule 9-208(h)(1) (“The court may decide exceptions without a hearing, unless a request for a hearing is filed with the exceptions or by an opposing party within ten days after service of the exceptions.”).
3 It is the appellant’s responsibility to order the transcript. See Md. Rule 8-411(a)(2) (“the appellant shall order in writing from the court reporter a transcript”
of any portion of any proceeding necessary for the appeal).
4 Maryland Rule 8-414(a) provides, “On motion or on its own initiative, the appellate court may order that a material error or omission in the record be corrected.” (Emphasis added). The Court’s order to correct the record may “direct the clerk to take any additional action to implement the correction.” Md. Rule 8-414(c).
5 See Md. Rule 9-208(b)(5) (“Subject to the provisions of an order referring a matter or issue to a magistrate, the magistrate has the power to regulate all proceedings in the hearing, including the power to: . . . continue . . . the hearing, as required[.]”).
6 We assume that the reason the circuit court did not respond to this Court’s June 6, 2024, order is because it could not find the audio recording of the November 6, 2023 hearing. If the court is able to locate the recording on remand, we direct the court to transmit a copy of the recording to this Court. In that case, we still direct the magistrate to “prepare written recommendations, which shall include a brief statement of the magistrate’s findings[.]” Md. Rule 9-208(e)(1). The circuit court must still explain (a) why it ruled that Mother’s postponement request was moot, (b) why it adopted the magistrate’s proposed order, and (c) why it denied Mother’s exceptions.
