Attacking the pro se problem

Transcription

MFLU1114_Front_Layout 1 11/18/2014 10:31 AM Page 1
TheDailyRecord.com/Maryland-Family-Law
Attacking
the pro se
problem
Proposed legislation
would provide
counsel
in more
custody
disputes
Page 4
Del. Samuel I.
‘Sandy’ Rosenberg
November 2014 Vol. XXVI, No. 11
MFLU1114_Front_Layout 1 11/17/2014 1:31 PM Page 2
Vol. XXVI, No. 11
Table of Contents
3 Editor’s note
4 Cover story: Attacking the
pro se problem
In light of a recent task force report, lawmaker
intends to seek state funding to pay for counsel in
custody disputes.
11 East Saratoga Street
Baltimore, Maryland 21202
Main Number: 443.524.8100
Main Fax: 410.752.2894
7
• Appellate mediation is mostly a family-law affair
• Court of Special Appeals reissues decision in
third-party guardianship case as a reported
opinion
Suzanne E. Fischer-Huettner, Publisher
Barbara Grzincic, Esq., Editor
From the courts
10
Guest column
The most important advice for dealing with
checks is to deposit or cash them personally and
without delay, lawbiz.com’s Ed Poll writes in
“Coach’s Corner.”
Tracy Bumba, Audience Development Director
Justin Carson, Sales Manager
Erin Cunningham, Special Products Editor
11 Child advocacy
While placement in foster care can be difficult, it
can also give families the time, space and
resources they need to learn how to deal with
each other and their own feelings, Maryland Legal
Aid’s Meredith Esders writes.
Matthew Standerfer, Digital Manager
Katrina C. Kardys, Senior Graphic Designer
Maximilian Franz, Senior Photographer
12 Monthly memo
A University of Maryland sociologist makes a plea to
save marriage and divorce statistics from the federal
cost-cutter’s axe … Avvo Advisor enters the
Maryland family law marketplace … Law requiring
incompatible couples with children to finish a course
on divorce, before getting one, takes effect in
Oklahoma.
Alissa Gulin, Danny Jacobs,
Steve Lash, Esq. and Lauren Kirkwood
Contributing Writers
Maryland Family Law Update (USPS #014-143), published monthly, 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, 11 E. Saratoga
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13
Family law digest
17
Full Text Reported Opinions
25
Full Text Unreported Opinions
106 Case index
Cite as 9 Md. Fam. L.U. ___ (2014)
107 Topic index
2
Maryland Family Law Update: November 2014
Letter from the editor
Family law: Anywhere, any time
Make the most of your subscription
BY BARBARA GRZINCIC
If you’re reading this, you already know that family
law is not a static, Monday-through-Friday, 9-to-5 endeavor. Just as your clients need you when they need you,
you need information when you need it.
That’s why one of the changes we made this year —
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3
Cover story
Attacking the pro se problem
Proposed legislation would provide counsel in more custody disputes
BY STEVE LASH
Contributing writer
State-funded attorneys would
represent indigent parents in child
custody disputes in Baltimore,
Prince George’s County and the
lower Eastern Shore under legislation likely to be proposed during the
2015 General Assembly session.
The anticipated legislation was
spurred by a Maryland task force’s
recommendation calling on the state
to conduct a pilot project over the
next four years in those jurisdictions at a total cost of about $3.03
million.
“There is a fiscal impact, but at
the same time the existing situation
where people far too often are not
represented has a fiscal impact —
not only on the family but on the
state,” said Del. Samuel I. “Sandy”
Rosenberg, who expects to introduce the legislation.
“It’s also a matter of equity and
fairness,” added Rosenberg, a
Baltimore Democrat and task force
member. “There is a negative impact
on the individuals who are not represented. It’s just a matter of fundamental fairness that they have legal
counsel and their rights are represented.”
The Task Force to Study
Implementing a Civil Right to
Counsel in Maryland issued its
report Oct. 1. Under the task force’s
recommendation, the pilot program
would be implemented in the lower
Eastern Shore counties of
Dorchester, Somerset, Wicomico
and Worcester, as well as Baltimore
city and Prince George’s County.
The task force recommended
annual funding of $757,500 for the
pilot program in each of the next
4
MAXIMILIAN FRANZ
While the $3 million pilot program would have ‘a fiscal impact,’ Del. Samuel I. ‘Sandy’
Rosenberg says, there is also a fiscal impact from unrepresented litigants in family
law cases — ‘not only on the family but on the state.’
four years.
But Sen. Robert A. “Bobby”
Zirkin, a task force member, said he
would not support legislation calling
for state-supported counsel in child
custody cases without “full” legislative hearings that examine the scope
of the lawyer’s representation and
its fiscal impact on the state.
For example, family law cases are
seldom just about child custody, raising the issue of whether the state
would also underwrite the lawyer’s
representation on ancillary issues
such as child support, alimony and
the division of marital property. In
addition, child custody cases can last
years as the children reach the age of
FILE PHOTO
Family law attorney Mary Ellen Flynn says the scope of would be a concern for any lawyer hired solely to handle a custody dispute.
‘How much are you obligated to do?’ Flynn asked.
adulthood, said Zirkin, D-Baltimore
County, who abstained from the task
force’s recommendation.
“The devil is always in the
details,” said Zirkin, a member of
the Senate Judicial Proceedings
Committee.
“It’s a very complex issue,” he
added. “We’ll have a full open hearing. I’m not going to prejudge this or
any other matter.”
Family law attorney Mary Ellen
Flynn, who was not on the task force,
said the scope of representation is a
concern that could be largely resolved
by making it clear to the client and
with the consent of the court that the
attorney’s role is limited to the cusTheDailyRecord.com/Maryland-Family-Law
tody issue. However, a single custody
case can get very expensive, as child
psychologists and education consultants are often called to testify, said
Flynn, of Andalman & Flynn P.C. in
Silver Spring.
“How much are you obligated to
do?” Flynn asked.
“What is considered full representation of the client? I don’t have
any answers,” she added. “I’m just
raising the issues that people need
to think about.”
Supplementing Judicare
Under the task force recommendation, the pilot program would supplement the Judicare Family Law
Project, in which private lawyers
are paid a reduced fee — currently,
$80 an hour — to take high-stakes,
contested family litigation. Hours
are capped at 20, but if the attorney
is willing to work the next five
hours pro bono, and funds are still
available, the program may then pay
for up to an additional 10 hours.
A 2011 study found that contested child-custody cases handled by
attorneys in the Judicare Family
Law Project cost an average of
$1,046 per case, an amount that
Flynn called “very low bono” for
child custody lawyers.
See Counsel page 6
5
Counsel: Continued from page 5
“That comes nowhere near an
attorney’s time in any custody case,”
Flynn added.
The money for the statewide program comes out of the Maryland
Legal Services Corp.’s budget. In fiscal 2013, MLSC awarded $1.57 million in Judicare grants, the task force
report stated.
MLSC Executive Director Susan
M. Erlichman, a task force member,
noted in support of the recommendation that Maryland case law requires
that counsel be provided to indigent
people at initial bail hearings.
To a parent, having legal representation in a custody case is “as or
more important than if you are facing a weekend in jail,” she said, “The
right to be able to care for your child
is something that everyone can
appreciate the fundamental importance of.”
Erlichman said state-supported
counsel in child custody cases would
enable MLSC to channel more grant
money to other legal services, such
as those assisting low-income litigants in housing and landlord-tenant
issues.
“Certainly we would hope this
[funding] would be able to allow the
system to expand the good work that
is already being done,” she added.
“Family law is the largest, most significant area of need, closely followed by housing issues,” she said.
Meanwhile, just over 2,000
lawyers, or 5.6 percent of the
Maryland bar, say family law is their
primary practice area, the task
force’s report noted.
To beef up those ranks, the report
said, the state should support efforts
by the Pro Bono Resource Center to
expand its family law courses
statewide. Rather than paying a fee
to take the course, attendees could
accept a family law case pro bono,
the task force recommended, noting
a similar educational program run by
the Montgomery County Bar
Foundation.
In making its recommendation,
6
the task force noted that indigent
parents are provided a public
defender when they are at risk of
having their parental rights terminated due to abuse or neglect in
Children In Need of Assistance
cases.
“However, when a parent is similarly at risk of losing the ability to
care for a child because of contested
custody litigation, that same parent
is not entitled to a publicly funded
lawyer,” the task force report stated.
“Low-income parents must navigate
the courts on their own, and they do
so in record numbers.”
If Maryland does enact a statutory right to counsel in child-custody cases, it would not be the
first. New York law provides counsel to indigent parents “seeking
custody or contesting the substantial infringement of his or her right
to custody of such child, in any
proceeding,” including on appeal,
the report stated.
“There’s a need for it,” Flynn
said of state-supported counsel in
child custody cases. “The funding
of it may be the biggest obstacle.”
The task force also recommended state funding of $1.2 million in
each of the next four years, a total
of $4.8 million, to support existing
legal-assistance programs that provide counsel to low-income litigants in civil domestic-violence
cases. These groups include the
House of Ruth and the Women’s
Law Center.
The task force’s work is separate from the state Commission on
Child Custody Decision Making,
which has a statutory deadline of
Dec. 1 to issue its report to Gov.
O’Mal l ey and the Gen eral
Assembly. The commission’s mandate includes recommendations on
ways to make custody orders and
modifications fairer, more uniform
and equitable.
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From the courts
Appellate ADR:
Largely a family affair
BY STEVE LASH
Contributing writer
The family dispute was ugly,
with a mother suing her daughters
over a bequest from their paternal
uncle.
Pretrial settlement negotiations
went nowhere, fueling the animosity. A trial judge’s dismissal of the
case did not end the matter: the
mother filed an appeal.
But no appellate court ever
heard the case.
Instead, both sides were ordered
to attend appellate mediation
through the Court of Special
Appeals’ Alternative Dispute
Resolution Division.
The daughters’ attorney, who
recounted the story, said he was initially skeptical about being able to
get the parties into the same room,
let alone reach an agreement. But
even though he had won the case
below, attorney Mark A. Binstock
said that without a mediated solution the litigation would have been
endless.
Binstock called the appellate
mediation an unqualified success,
due in large part to the skill of the
division’s director, attorney-mediator Mala Malhotra-Ortiz, and retired
Montgomery County Circuit Judge
Ann S. Harrington, who served as
co-mediator.
Malhotra-Ortiz “was very good at
getting people to understand what
fights were worth fighting and what
they stood to gain by being reasonable versus being stubborn,” said
Binstock, of the Law Firm of Paley
Rothman in Bethesda.
Harrington and Malhotra-Ortiz
understood “where each party was
coming from” and “pointed out the
MAXIMILIAN FRANZ
Mala Malhotra-Ortiz, right, is the director of the Court of Special Appeals’ Alternative
Dispute Resolution Division, started by Court of Special Appeals’ Chief Judge Peter B.
Krauser, left.
strengths and weaknesses” of each
side’s case,” he added.
An agreement that had seemed
impossible at the outset was reached
in a day, Binstock said — though he
declined to disclose its contents.
Seventy-percent success rate
Appellate-level settlements have
been reached in 70 percent of the
cases that Court of Special Appeals
Chief Judge Peter B. Krauser has
ordered to mediation since the program’s start in February 2010, said
Malhotra-Ortiz. An additional 3 percent of the ordered cases have
resulted in “partial settlement,” in
which the issues or parties are narrowed before consideration by the
appellate court.
On average, 156 civil appeals
are ordered to mediation annually,
or about 10 to 15 percent of the
appellate court’s civil docket,
according to Judiciary statistics.
The mediation is free for the litigants.
The ADR Division screens about
1,100 civil appeals per year for
potential order to appellate mediation and makes its recommendations to Krauser, who issues the
orders.
The chief judge will not order a
case for mediation if it is “inappropriate” or if one of the parties is
strongly opposed to it, he said,
adding that the process is doomed
to fail in such instances.
See ADR page 8
7
ADR: Continued from page 7
Reluctance, however, is often
overcome, he said.
Malhotra-Ortiz acknowledged
that at first blush, appellate mediation might sound like an oxymoron.
After failing to reach agreement
before or during trial, why would
the parties be amenable to settlement on appeal? The winner below,
presumably, would have little to
gain; while the losing side — the
one who filed the appeal — might
view the Court of Special Appeals
as a venue for vindication, not compromise.
“On appeal, some of the parties
are a lot more entrenched,”
Malhotra-Ortiz said. “It’s ratcheted
up to another degree of animosity,”
she added.
And therein lies the challenge
for the mediators: To convey to the
winning side that a victory below
does not guarantee appellate success and to explain to the losing
side that a mediated resolution is in
their long-term interest.
Mediation provides “an opportunity to stop the train for just a
moment” and permit the parties to
talk, Malhotra-Ortiz said.
Key differences
An appellate mediation involves
two mediators: a staff attorneymediator in the ADR Division and a
retired judge.
The pair work as a team,
Malhotra-Ortiz said. In a typical
case, the retired judge might talk to
the parties’ attorneys about the procedural posture of the case, including what would likely happen if the
case is sent back to circuit court.
The attorney-mediator, meanwhile,
will convey to the litigants — so certain they are in the right — that the
outcome in court is not so clear cut.
“The judicial system isn’t all
about being heard,” Malhotra-Ortiz
said she tells the litigants. “It’s
about hearing admissible evidence.”
In mediation, unlike in the courtroom, the parties are expected to
8
tell the mediators information they
would never divulge to a judge,
such as the amount of money for
which they are truly willing to settle. The figure is kept confidential
but can assist the mediators in
reaching an agreement, she added.
Retired Howard County Circuit
Judge Diane O. Leasure, who has
served as a mediator, called appellate mediation “amazing” in that it
can resolve not only the issues on
appeal but matters yet unlitigated,
such as a brewing child custody dispute.
Without mediation, a family-law
appeal “could get into that vicious
cycle of never getting finality,”
Leasure said.
A subset of family-law appeals
— those involving Children in Need
of Assistance, termination of
parental rights or guardianship of
minors — are ineligible for appellate mediation, Krauser said.
Even so, family law appeals are
the kind most frequently ordered to
appellate mediation, making up 31
percent of the total so far, according
to Judiciary data. Seventy percent
of those cases resulted in full settlement and an additional 4 percent in
partial settlement. (Contracts, at 20
percent of the total, and personal
injury, at 17 percent, round out the
top three.)
Attorney Sally B. Gold said she
has recently resolved two familylaw cases through appellate mediation due in large part to the mediators’ desire to resolve all conceivable issues in the divorce, child custody and support litigation.
“They weren’t limiting themselves to the issues on appeal,” said
Gold, of The Law Offices of Sally B.
Gold in Baltimore. “The tone was
set so that we were going to resolve
it along the terms that we discussed, the comprehensive solution
that was put on the table. That
would not have happened without
the third-party [mediators] present.”
Family law cases are “particular-
ly intractable, but the people at the
Court of Special Appeals are particularly skilled,” Gold added.
Krauser, who brought appellate
mediation to Maryland as a pilot
project in 2010 after reviewing its
success in Arizona, said he’s satisfied that the program is meeting the
goal of taking work away from the
appellate court.
A successful mediation not only
eliminates the appeal in question,
but ensures the case will not return
after a remand to the circuit court,
Krauser said.
“We prevent cases from bouncing back and forth,” he added. “We
don’t see the case again on appeal.
We prevent bounce-back.”
Occasionally, attorneys will seek
mediation after arguing their cases
before the Court of Special Appeals
but before the judges have handed
down a decision.
“Sometimes after oral argument
the parties have no longer any illusions about the outcome,” Krauser
said. “They have a better grasp of
what is really at stake and what is
likely to be the outcome.”
[email protected]
Appellate mediation:
Types of cases referred
(% total and % fully settled)
Family law:
Contracts:
Pers. injury:
Real property:
Foreclosure:
Workers’ comp:
Estates & trusts:
Employment:
Administrative:
31
20
17
13
6
4
4
3
2
70
77
64
53
67
77
70
80
67
Source: Maryland Judiciary
From the courts
Surviving parent presumed
to be children’s guardian
Appellate panel reissues decision as a reported opinion
BY BARBARA GRZINCIC
Editor
Less than three months after
finding a judge erred in appointing
a guardian for two children while
their mother was alive and in possession of her parental rights, the
Court of Special Appeals has
decided to report its decision, giving it value as precedent.
The dispute over the fate of
Zealand and Sophia W. arose after
their father died in September
2012. Their father’s first cousin,
Conway Tattersall, filed a
guardianship action within a
week.
Tattersall, who lived in
Australia, sought to have family
friends appointed as the children’s
guardian. He alleged that Susan W.
was unfit to be their guardian;
that she had a history of alcohol
abuse and bulimia and that, as a
result, she had been denied custody and allowed only supervised
visitation.
The circuit court held an emergency hearing, appointed a Best
Interest Attorney and a temporary
guardian under Estates & Trusts
§13-702, ordered a custody evaluation and ordered Susan W. to pay
$5,000 toward the evaluator’s fee.
When Susan W. did not pay, the
court held her in contempt and
entered judgment against her for
the $5,000.
The Court of Special Appeals
vacated those decisions in August
and, on Oct. 29, reissued its opinion as a reported opinion.
Throughout the case, Tattersall
argued that ET §13-702 applied
because the children’s father was
dead and their mother was not
“acting as a guardian,” since she
had, at most, supervised visitation.
The appellate court, however,
agreed with Susan W. that the
Court of Appeals had settled that
question last year in another case,
In re: Adoption/Guardianship of
Tracy K.
In Tracy K., the child’s mother
was dead and he had lived with
his father until he was 15, at
which time he went to live with
his aunt. Over the father’s objection, the aunt sought to be
appointed guardian under ET §13702. She maintained that the
phrase “neither parent is serving
as a guardian” included circumstances in which “the parents are
not deceased and their parental
rights have not been terminated.”
The Court of Appeals rejected
that interpretation.
In Susan W.’s case, while her
custodial and visitation rights had
been limited, her “rights as a parent have never been terminated,”
retired Judge James P. Salmon
wrote for the Court of Special
Appeals. “Under such circumstances, section 13-702 of the
Estates & Trusts Article gave the
court no authority to appoint a
guardian of the person of her children.
“If, at the time of David W.’s
death, Mr. Tattersall, or anyone
else, had grounds to believe that
Susan W. was not a fit person to
have custody of her children, the
matter should have been brought
to the attention of the Department
of Health & Human Services for
Montgomery County, so that that
Department could attempt to
prove … that her parental rights
should be terminated and that the
Department should be appointed
the childrens’ guardian,” Salmon
wrote.
The appellate court rejected
Susan W.’s claim that the judge
lacked subject matter jurisdiction,
but did find that the court lacked
authority to appoint a guardian
under §13-702 where “(1) the children’s mother is alive; (2) mother’s
parental rights have never been
terminated; and (3) no testamentary appointment has been made.
Finally, because the court
lacked authority to appoint a
guardian in this case, “it follows
that the circuit court committed
error when it: (1) ordered Susan
W. to pay a third party $5,000 to
make a determination as to
whether someone, other than
Susan W., should be the guardian
of the children; and (2) holding
Susan W. in contempt for failing to
make the $5,000 payment.”
The reported opinion in In re:
Guardianship of Zealand W. and
Sophia W., CSA No. 1280, Sept.
Term 2013, filed Oct. 29, 2014, is
available on the court’s website
and will be printed next month in
Maryland Family Law Update.
[email protected]
9
Guest column
Coach’s Corner: Cash still rules
the payment roost
Systems of payment have
changed a lot over the years, and
this trend is likely to continue.
From cash/checks to credit cards,
cell phone payments, Bitcoin payments, etc., the world of paying bills
has expanded with each new technological advancement.
EDWARD
POLL
Dolan Media Newswires
Although it’s important for law
firms to keep up with the times and
be able to accept all safe forms of
payment, law firms are still largely
cash enterprises, whose clients pay
by personal or business checks that
physically must be deposited in the
firms’ bank accounts.
Understanding the most efficient,
financially resourceful ways to deal
with checks is important for the fiscal soundness of your law firm.
Personally depositing checks
The most important advice for
dealing with checks is to deposit or
cash them personally. This may
seem old-fashioned and inconvenient, but it has two benefits.
The first benefit is safeguarding
yourself against financial fraud by
ensuring that your cash receipts are
safe and secure. By going to the
bank in person, you confirm a chain
of possession for your receivables.
By handling deposits yourself, no
other person in your office can forget to make a deposit or lose track
of deposit receipts. Depositing
checks should be part of a system
of checks and balances that no
other person, or even several people
10
in collusion, can circumvent in handling funds and financial records.
A second advantage of personal
deposit is that it enables you to establish a better business relationship with
your bank. You become an individual,
not just a name or number. That can
have a variety of positive benefits,
beginning with the likelihood that if
an overdraft or check deposit problem arises, you can work out a solution with your personal contact at the
bank. That same contact may refer
business to you or be your ally in
seeking a loan or credit line.
“
Once you have
the client’s
check in hand,
never wait to
deposit it.
Making speedy deposits
The check deposit transaction is
the start of the entire cash management process, and the first rule of
cash management is to be prompt
and efficient in depositing checks
received from clients.
Once you have the client’s check
in hand, never wait to deposit it.
Otherwise, too many problems can
happen: the client may become
angry and stop payment, have insufficient funds when the check is
finally presented for clearance, or
become party to a lawsuit or other
proceeding in which financial assets
are attached. Family law practices
may be especially vulnerable, as
clients may file for bankruptcy after
a divorce to get rid of their debt.
Incomplete payments
Deposit all checks even if the
amount received does not match the
amount due per the statement. Make
a photocopy of the check. After making the deposit, call the client and ask
for an explanation of the difference.
You will ultimately reconcile the
amount paid with the amount due.
However, in the meantime, you will
have deposited and benefited from
the amount sent to you.
The only exception is when there
is a disputed claim and a check is
marked “paid in full” with the check
amount being less than the amount
owed.
Dealing with bank drafts
Another form of payment by
check is a bank draft. It can be
deposited into your account but
must be returned to the bank
account of the person who made
the draft to get approved before
cash can be placed into yours.
Banks can refuse any deposit and
may do so with a bank draft.
Cashing rather than depositing
the draft could be a solution. By
doing so, the liability for any dispute or failure to cover the draft is
on the account holder. Remember,
though, that the bank can assert
that it does not assume liability in
such instances.
Edward Poll, J.D., M.B.A., CMC, is a
law practice management thoughtleader and a frequent contributor to
The Dolan Company publications. His
website is at www.lawbiz.com.
Child advocacy
Placement in foster care can have
positive results: A case study
BY MEREDITH ESDERS
During a recent visit with an 11year-old client, I was struck by the
change I saw in this young girl I have
represented since her Child in Need
of Assistance case began more than a
year ago.
I first met this client the day after
she was removed from the care of her
mother and placed in foster care.
That day, and for several months
afterward, she was very angry. She
had a short fuse, used profanity, and
her caregiver reported that she could
quickly fly into a rage.
In my most recent visits, however,
I have seen a noticeable change in her
demeanor. She appears happier and is
able to express negative feelings
while remaining calm.
It made sense that she was angry:
She had been emotionally abused by
her mother, was blamed for tragic
events in her mother’s life and had
learned a maladaptive way of coping
and viewing the world as a result of
watching her mother solve problems
with violence. Despite the emotional
abuse she experienced, she loved her
mother and was sad about being separated from her and placed in foster
care.
After a brief period, the
Department of Social Services, which
had temporary custody of this child,
considered returning her to her mother’s care. The Department did not
believe she was in physical danger,
but much more work was needed to
repair the mother-child relationship
and the child’s emotional well-being,
The Department’s worker analyzed whether the continuing issues
could be worked on while the girl
was in her mother’s care. Based on
the child’s therapist’s recommendation, however, the Department ultimately agreed it was best not to
return her home. The court approved
that decision, determined the child
was in need of assistance and placed
her in the Department’s custody for
foster care placement.
The time the mother and child had
to be apart strengthened the family in
multiple ways. First, it allowed the
child to develop a relationship with
her therapist and receive the benefits
of therapy she needed to address
traumatic events she had experienced
and observed. This child had internalized the blame that her mother had
inappropriately placed on her and she
needed therapy to address negative
feelings she had developed about herself. She also needed to learn appropriate coping skills rather than the
maladaptive responses modeled by
her mother.
Second, the progress she made in
therapy was reinforced by her foster
parent. The foster parent underscored the coping skills the child was
learning and reminded her she did not
have to feel the blame she had internalized. This may not have been possible if the child had been in her
mother’s care, because her mother’s
distrust of therapists would have
interfered with the child’s relationship
with the therapist. Also, positive reinforcement at home would have been
minimal.
The mother and child had visitation that was supervised by the
Department caseworker. This
allowed them to maintain their bond,
but the presence of the caseworker
ensured the mother would not make
disparaging comments to the child.
Finally, the separation gave the
mother the time she needed to agree
to attend therapy to address her own
needs, which had prevented her from
properly caring for her child, so that
when the child returns to her mother’s care she will not be placed back
into the same emotionally abusive
environment.
Due to the progress of both mother and child, at the most recent hearing, the court authorized unsupervised visits in the mother’s home as a
stepping stone to the child’s eventual
return. The plan in this child’s case is
for her to return to her mother’s custody and to an environment better
suited to this child’s emotional needs.
This was a relatively low-risk case
which, if it had been reported after
the implementation of the
“Alternative Response” program,
would not have resulted in the child’s
removal because the child was not in
physical danger. Here, however,
placement of the child in foster care
was critical in allowing both the
mother and the child to recover.
Although separation from a parent
is difficult for the child and the family,
it can have the positive impact of activating services for the parents and
the child. Without the Department’s
placement of this child in foster care,
neither mother nor child would have
received needed services. These services are critical in reconstructing a
sustaining relationship between
mother and child, particularly in
cases of mental injury.
Any time an incident of abuse or
neglect is reported to the
Department, Department caseworkers should balance the potential
harm of removal against that of
remaining in the home. In striking
this balance, the Department should
take into consideration that, while it
is important never to unnecessarily
separate parents and children, it is
equally important to ensure the
child’s comprehensive well-being is
not lost, but is the determinative
factor in this process.
Meredith Esders is a staff attorney at
Maryland Legal Aid.
11
Monthly Memo
Save the stats!
Philip N. Cohen, the University of Maryland sociologist who put figures to the feeling we all had that
divorces decline with the economy (MFLU Sept. 2014) is
back — this time with a new study. And a plea.
Jennifer Jessup
Departmental Paperwork Clearance officer
Department of Commerce, Room 6616
14th and Constitution Ave. N.W.
Washington, D.C. 20230
Comments can also be sent via email to
[email protected]
— Barbara Grzincic
Talk is … well, $39
First, the study: Based on data from the Census
Bureau’s American Community Survey, Cohen looked at
the nation’s largest population centers and determined
where Millennials are most likely to get divorced.
Portland, Ore., took the top spot, while New York City
clocked in at #25; Baltimore came in at #14 and
Washington, D.C., at #22.
Ultimately, though, Cohen’s post on his Family
Inequality blog is all about the plea. The source for his
numbers is being threatened by the federal budget-cutting axe.
In a nutshell, the highly detailed ACS is also highly
expensive to administer. In hope of saving money by
streamlining the survey, the federal government has
identified seven questions that could be cut, “including
the ones I’ve been using here,” Cohen writes — marital
events, marital history and others.
And if that information goes, there’s no replacing it.
“Unfortunately, there is no legal or legislative mandate to collect this information down to the local level,
which is why it’s on the chopping block,” Cohen says.
“It’s just super interesting and important, not legally
required. So we need to communicate that up the chain
of command and hope they listen.”
If you feel like this is information worth knowing,
here’s your chance to tell the regulators so. The information about the planned cuts to the American Community
Survey was published in the Federal Register on Oct. 31.:
The comment period closes Dec. 30. Until then,
direct all written comments to:
12
Avvo, the legal forum and lawyer directory website,
has launched a new platform for lawyers to dispense
legal advice — all distilled into a 15-minute consultation.
Called Avvo Advisor, the service boasts attorneys in nine
practice areas across 15 states — including Maryland
family law — and charges users $39 to talk with a
lawyer over the phone for a quarter of an hour.
While many lawyers have questioned the time constraint and others have pointed out that their initial consultations are generally free, Evan Koslow, an Annapolis
family law attorney who signed up to join the Avvo
Advisor network, said part of the appeal for clients is
the ability to use the service at any time. “If you want to
speak to an attorney and it’s 7:30 at night, they might not
be at their office,” he said. “It gives you a little more
flexibility as a client looking for an answer.”
— Lauren Kirkwood
Learner’s permit?
Effective Nov. 1, Oklahomans who seek a divorce on
grounds of incompatibility, and who have children under
age 18, must complete a course that emphasizes the
effect of divorce on children and that reconciliation is
an option.
Oklahoma Rep. Jason Nelson, a co-author of the
measure, called it a small extra step and, at $15 to $60, a
minimal expense. The parties don’t even have to take
the course together.
“It seems like a small thing to ask people to do — to
take a course — when the challenges that come from
divorce are so permanent,” Nelson told the Tulsa World.
“By the same token, so is the harm done if they stay in a
violent home.”
Under the law, signed in June, the state’s
Administrative Office of the Courts is to track the number of divorces dismissed after the parties went through
the program, as well as the number of programs completed and the number of participants each fiscal year.
HT: Maryland Divorce Legal Crier, Thyden Gross and
Callahan LLP.
— Barbara Grzincic
Family Law Digest
T h e f u ll-text opinions that follow are
printed in chronological order by court and
status. Use this Topical digest or the indexes at the back of this issue to find those of
most interest to you.
might later grieve the loss of her relationship with her
birth mother, that was just one factor for the court to
consider in terminating parental rights; here, it was outweighed by the evidence that the child could not safely
live with either parent, had thrived in a three-year placement along with her birth sister, and would be devastated if separated from her birth sister. Page 72
REPORTED OPINIONS BY SUBJECT
ADOPTION/GUARDIANSHIP:
UNCHANGED PERMANENCY PLAN:
ALTERNATE TRIGGERS
In Re: Adoption/Guardianship of Quintline B. and
Shellariece B.
CSA No. 0092, Sept. Term 2014. Reported.
Opinion by Thieme, Raymond. G., Jr. (Retired, Specially
Assigned.) Filed Sept. 30, 2014.
Appeal from Montgomery County. Affirmed.
RecordFax #0930-01, 26 pages.
A change in a CINA permanency plan is not a condition
precedent to termination of parental rights, as the
Department’s duty to file for a TPR within 60 days is triggered whenever it “determines that adoption is in the child’s
best interests”; in this case, the TPR was properly granted
even though the judge in the separate CINA proceeding had
expressly rejected a change in permanency plan from reunification to adoption by a nonrelative. Page 17
UNREPORTED OPINIONS BY SUBJECT
TERMINATION OF PARENTAL RIGHTS:
BALANCING OF FACTORS
In Re: Adoption/Guardianship of Cayden T.S.
CSA No. 0084, Sept. Term 2014. Unreported.
Opinion by Kenney, James A., III (Retired, Specially
Assigned).
Filed Oct. 1, 2014.
Appeal from Frederick County. Affirmed.
RecordFax #14-1001-00, 34 pages.
Despite father’s recent sobriety and parenting classes,
the termination of his parental rights was supported by
the evidence, including testimony that father had failed
to take advantage of services offered by DSS and had
obtained housing where the boy would be banned; and,
assuming the court erred in allowing the LCSW to testify,
based on her observations, about the lack of a bond
between father and son, any such error would be harmless. Page77
CINA: MODIFICATION OF PERMANENCY PLAN:
GUARDIANSHIP WITH RELATIVE
In Re: Jazmine D. and Jeremiah D.
TERMINATION OF PARENTAL RIGHTS:
ATTACHMENT TO BIRTH MOTHER
In Re: Adoption/Guardianship of Caitlyn S.
Opinion by Krauser, C.J. Filed Sept. 30, 2014.
Although there was testimony that a 6-year-old child
Opinion by Nazarian, J. Filed Oct. 2, 2014.
Appeal from Baltimore City. Affirmed.
Although father had taken steps to connect with and
provide a stable home for his children, his mental health
condition made it impossible for him to act as a parent;
and, as the 4-year-old and 6-year-old children had been
placed with their aunt for their entire lives, the court did
not abuse its discretion by changing their permanency
plan to placement with a relative for custody and
guardianship. Page 88
13
CINA: MODIFICATION OF PERMANENCY PLAN:
LACK OF ADOPTIVE RESOURCE
In Re: Jeffrey H.
CUSTODY: MODIFICATION:
TIE-BREAKING AUTHORITY
Peter G. Schmidt v. Jessica D. Schmidt
Opinion by Graeff, J. Filed Oct. 8, 2014.
Appeal from Harford County. Affirmed.
CSA No. 2527 Sept. Term 2013. Unreported.
Opinion by Nazarian, J. Filed Sept. 17, 2013.
Appeal from Allegany County. Affirmed.
In changing the permanency plan for a special-needs
child from reunification to adoption, the juvenile court
was not required to wait for an adoptive resource to be
found; nor was the court required to consider the effect
of the new permanency plan on father’s ability to seek an
open adoption or post-adoption contact. Page 93
While mother’s temporary relapse into drug use constituted a material change in circumstances that justified
a change in the agreed-upon custody arrangement, her
relapse did not require the court to divest her of custody
as a matter of law, especially given her sobriety and
progress since the relapse; rather, it was within the
court’s discretion to increase father’s physical custody
and transfer tie-breaking authority to him. Page 40
CUSTODY: EVIDENCE:
CREDIBILITY DETERMINATION
Morgan Woods F/K/A Morgan Johnson v. Reginald
Johnson
Opinion by Meredith, J. Filed Sept. 19, 2014.
The trial judge did not abuse her discretion in finding
that the father was more credible than the custody evaluator, who relied heavily on an allegation of sexual abuse
by father that had been “ruled out” by state investigators;
who never observed the children in mother’s home; and
who sought to testify on issues related to child development and post-traumatic stress in which she was not
qualified as an expert. Page 46
CUSTODY: MODIFICATION:
PSYCHOLOGICAL REEVALUATION
Rebecca Hunter Thomas v. Carl F. Thomas
Opinion by Wright, J. Filed Oct. 8, 2014.
Appeal from Frederick County. Affirmed.
Where mother was denied custody based on an evaluation of Factitious Disorder by Proxy and later sought to
modify the custody order by showing she did not suffer
from that disorder, the evidence supported the court’s
determination that she had not shown a change in circumstances warranting modification of custody; the
court’s willingness to modify visitation, based on a psychological reevaluation, was neither proof of changed
circumstances nor a denial of due process. Page 98
14
DIVORCE: ALIMONY:
ABILITY TO BE SELF-SUPPORTING
Walter E. Buck, III v. Gabrielle B. Buck
Opinion by Wright, J. Filed Sept. 29, 2014.
Appeal from Cecil County. Affirmed.
The circuit court did not abuse its discretion in finding husband was able to support himself, awarding him
18 months’ rehabilitative alimony and denying him indefinite alimony, where (1) he left his job as a pilot shortly
before trial in order to pursue a second degree, and (2)
wife’s annual income, while 4.6 times higher than husband’s would be, was solely from interest on a trust fund
that was nonmarital property. Page 67
DIVORCE:
CUSTODY AND VISITATION: ALIMONY
Edward Calvello v. Emilie Calvello
CSA Nos. 2219, Sept. Term 2013 and 0007, Sept.
Term 2014. Unreported.
Opinion by Eyler, D.S., J. Filed Sept. 24, 2014.
Appeal from Baltimore City. Affirmed.
Given the husband’s abusive history and increasingly
bizarre behavior, it was not an abuse of discretion to deny
him any custody or visitation “at this time”; also, the parties’ standards of living were not unconscionably disparate
since husband’s imputed income would support the
lifestyle the couple experienced during marriage, when
wife supported the family while attending school; and
because wife’s income, while now 6.6 times higher than
husband’s, was offset by debt and expenses. Page 53
DIVORCE:
DELAY IN ISSUING OPINION:
COSTS AND FEES
Marc Stengel v. Susan Silesky F/K/A
Susan Stengel, et al.
Appeal from Charles County. Vacated and remanded.
In issuing a final protective order based on alleged
sexual abuse of a child, the trial court was entitled to
consider the witnesses’ credibility as well as the medical
reports in evidence; however, the court abused its discretion in reaching conclusions about the meaning of the
medical records that were wholly unsupported by the
records themselves, and in relying on those unsupported
conclusions as corroboration of the mother’s testimony.
Page 29
Opinion Nazarian, J. Filed Sept. 17, 2014.
Appeal from Baltimore County. Affirmed.
GUARDIANSHIP:
DISABILITY: EVIDENTIARY BASIS
Although Article IV, §23 of the Maryland Constitution
says circuit courts shall decide cases within two months
of trial, the provision is not mandatory and, given the
complexity of this case, a wait of nine months was not
grounds for reversal; nor did the court err or abuse its
discretion in finding husband was ‘driving the litigation’
and ordering him to pay the majority of fees for his wife’s
attorney, the custody evaluator and BIA. Page 25
DOMESTIC VIOLENCE:
FINAL PROTECTIVE ORDER:
CLEAR AND CONVINCING EVIDENCE STANDARD
Brendon Capoen v. Amanda Capoen
Opinion by Berger, J. Filed Sept. 17, 2014.
Andreas Konopka v. Adventist Healthcare Inc. and
Andreas Konopka v. Uma Ahluwalia
CSA Nos. 2502 & 2507 (Consol.), Sept.
Term 2013. Unreported.
Opinion by Kehoe, J. Filed Sept. 17, 2014.
Husband’s petitions for guardianship of his disabled wife and autistic adult son precluded his challenge to the sufficiency of evidence that they were
disabled; the court’s appointment of other guardians
was not precluded by a durable power of attorney
signed by wife, nor by the constitutional right to parent a minor child; and the appointments were supported by evidence that husband had neglected wife
and son’s needs and did not fully appreciate the
extent of son’s disabilities. Page 34
15
MFLU1114_Supplement_Layout 1 11/17/2014 1:43 PM Page 17
In The Court of Special Appeals: Full Text Reported Opinions
Cite as 11 MFLU Supp. 17 (2014)
Adoption/Guardianship: unchanged permanency plan:
alternate triggers
In Re: Adoption/
Guardianship of Quintline B.
and Shellariece B.
No. 92, September Term, 2014
Argued Before: Leahy, Reed, Thieme, Raymond. G., Jr.
(Ret’d., Specially Assigned), JJ.
Opinion by Thieme, J.
Filed: September 30, 2014. Reported.
A change in a CINA permanency plan is not a condition precedent to termination of parental rights,
as the Department’s duty to file for a TPR within 60
days is triggered whenever it “determines that adoption is in the child’s best interests”; in this case, the
TPR was properly granted even though the judge in
the separate CINA proceeding had expressly rejected a change in permanency plan from reunification
to adoption by a nonrelative.
On March 7, 2014, the Circuit Court for Montgomery
County, sitting as a juvenile court, terminated the
parental rights of Rose H. (hereinafter “mother”) and
Quintline B., Sr. (hereinafter “father”) to their children,
Quintline B., Jr. and Shellariece B., who were adjudicated children in need of assistance (“CINA”). Prior to the
Termination of Parental Rights (“TPR”) proceeding, on
October 8, 2013, the Montgomery County Department of
Health and Human Services (hereinafter “the
Department”) sought to change the children’s permanency plan in the CINA cases from reunification to adoption
by a non-relative. On October 30, 2013, the court rejected this recommended change and reaffirmed the plan of
reunification in an amended order. On September 10,
2013, the Department petitioned for guardianship of the
children with the right to consent to adoption. The children, through counsel, consented. Mother initially
objected, but later consented to a conditional termination of her parental rights in open court, on the record,
under oath, and represented by counsel. Father opposed
the petition for guardianship in Notices of
Objection/Request for Appointment of Attorney docketed on October 9, 2013. Father also moved to dismiss the
petition on December 20, 2013. On January 7, 2014,
father’s motion to dismiss was denied. Following a TPR
hearing on February 10, 11, and 12, 2014, the court terminated mother and father’s parental rights on March
Ed. note: Reported opinions of the state courts of appeal are
subject to minor editing by the courts prior to publication.
Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
7th. Father timely appealed and presents two questions
for our review, which we quote:
1. Did the court err by allowing the
Department to proceed with their Petitions
to Terminate Parental Rights where the
court-ordered permanency plan in the child
in need of assistance case was a sole plan of
reunification with the father?
2. Did the court err in terminating the father’s
parental rights?
For the reasons below, we affirm the court’s judgments in all respects.
Facts and Proceedings
Father’s History With the Department
Father has an older son, Landon,1 who was initially
found CINA in 1999 when both of his parents were
incarcerated. When Landon’s mother was released, the
case was closed. Landon was again found CINA in 2006
following allegations that father physically abused him.
The CINA court found that Landon’s mother had not
cared for him in two years, that father had a history of
violent behavior, that Landon was afraid of his father
and unwilling to return to his care, and that father had
abused cocaine in the past and refused to submit to a
drug screening. Landon’s permanency plan is Another
Planned Permanent Living Arrangement, and his case
remains open.
The Children’s CINA Proceedings
Born on October 2, 2009, Quintline tested positive
for cocaine at the time of his birth and he was placed
into emergency shelter care on October 5, 2009. Mother
admitted using cocaine on the day she gave birth to
Quintline. Quintline was found to be CINA on November
3, 2009 because both parents neglected him and were
unable or unwilling to give him proper care and attention.2
Quintline was initially placed in foster care, pending
placement with his maternal grandmother. In response
to an emergency motion filed by the Department, the
court found that because of “new information regarding
the health of [grandmother] that adversely affect[ed] her
ability to care for [Quintline],” it was detrimental to
Quintline’s well-being to place him with his grandmother, who also housed mother and father. On November
24, 2009, a merits hearing was held; the court continued
Quintline’s placement in foster care. The permanency
plan of reunification with mother and father was
17
affirmed at review hearings held on: April 9, 2010; July 2,
2010; and September 13, 2010. On March 23, 2011, the
court recommended a permanency plan of reunification
with father only.
Shellariece was born in 2010, placed in emergency
shelter care on December 8, 2010, and found to be CINA
on January 19, 2011. She was placed in the same foster
care home as Quintline. On November 4, 2011, the court
adopted the permanency plan of reunification with
father.
On July 28, 2011, the first combined permanency
plan review hearing was held and the court maintained a
permanency plan of reunification with father for both
children. The court maintained the same permanency
plan at subsequent hearings held on: January 18, 2012;
June 25, 2012; and December 19, 2012. At each of these
hearings, the Department recommended that the permanency plan remain reunification with father.
A change, however, occurred at the permanency
plan review hearing held on October 8, 2013, which had
originally been scheduled for March 18, 2013. At that
hearing, the Department requested that the court change
the permanency plan from reunification with father to
adoption by a non-relative because father’s housing and
employment situations were not stable, and because he
had not participated in any court-ordered drug screens,
nor had he made the children a priority in his life. In an
order dated October 30, 2013, the court rejected the recommendation, and reaffirmed the permanency plan of
reunification with father.
Parents’ Difficulties With Reunification
Mother and Quintline tested positive for cocaine on
the day he was born. Mother used cocaine earlier that
day.
Risa Boswell was one of the first Department social
workers assigned to the children’s cases. She testified
that, during her time working on the case, father was
bonded with the children, but significant issues needed
to be resolved. In particular, she was concerned about
father’s substance abuse, housing, and employment. In
addition, she felt he needed to complete courses in parenting and the abused persons program. Initially, in 2010,
father was good with the children when they visited,
playing with them, feeding them, and changing their diapers. Father attended the Avery Road treatment center
and was successfully discharged into an outpatient program. Upon his release from Avery Road, father became
noncompliant, refusing to attend Alcoholics Anonymous
and Narcotics Anonymous meetings. In addition, he
failed to submit to urinalysis on a continuous basis and
when random drug screens were done, he tested positive
for cocaine on three different occasions. He was subsequently discharged from the outpatient program.
Father attended Avery Road again, successfully completing that program in August 2010. He then attended
Second Genesis, which he successfully completed in
March of 2011, and then began living at Oxford House, a
sober living arrangement where he shared a house with
18
several other men. While at Second Genesis, he received:
individual, group, family, and trauma therapy; psychoeducation; anger management; domestic violence prevention training; addictions treatment; relapse prevention; and coping strategies. Father completed the
Responsible Father’s Program in 2011. Father also completed parenting classes at the YMCA and was employed
by Home Depot. Father and the children’s first foster
mother, Tangia Lu, sometimes had disagreements. Father
got angry at Lu when she reported to Boswell that father
was having problems. Lu reported that father had only
used one diaper for a “couple hour” visit when she had
packed several diapers for him to use, that he fed the
children junk food, and that he failed to feed them at all
on a three-hour visit. In addition, father also sometimes
failed to use car seats when picking up the children for
visits. On several occasions when the Department would
visit father when he was caring for the children, he did
not have diapers, the children were dirty, and not appropriately dressed. In addition, after an overnight visit with
father, Shellariece returned with a deep cut on her hand.
Mother lived at Avery House Halfway House for
Women and Children with Shellariece while getting treatment for substance abuse. She was dismissed because of
an altercation with a fellow resident. As a result, the permanency plan was changed from reunification with both
parents to reunification with father.
In February 2012, the Department transferred the
children’s cases to social worker Tania Butler. At this
time, father was only permitted weekend visitation with
the children. On a Wednesday, father contacted Butler
and indicated that he needed the Department to pick up
the children and put them in respite care because he had
had an altercation with his mother, with whom he
resided, and he did not feel comfortable leaving the children in her care. This incident showed that father was
keeping the children outside of his designated contact
time, in violation of the CINA order.3
In June 2012, Butler responded to a call about father
putting Quintline in danger. The Department received a
call indicating that father had held Quintline over the
balcony at his home, because the child would not stop
crying. Lu witnessed the incident. In response, Butler
made an unannounced visit to father’s home on the day
of the incident. When Butler confronted father about the
incident, he indicated that he was simply playing around,
and that he was “just kidding.” He also felt frustrated,
like people were out to get him. Father became angry
with Lu, because he believed she was the one who
reported the incident to the Department.
In November 2012, father brought the children to
spend the night with him at his girlfriend’s house. On
father’s birthday, when the children were in his custody
on an overnight visit, his girlfriend contacted him and
asked him to come over to her house, which she shared
with a roommate. Butler confronted father about the
incident. She explained that such a visit was not authorized and that father needed to provide the names of any
individuals who might spend the night with the children
for their safety. Father became irritated, and indicated
that it was “bullshit” that the Department should want to
know his girlfriend and his girlfriend’s roommate’s
names in order to perform background checks on them.
He refused to identify them. The rule regarding background checks had been explained to father several
times previously. Father indicated that the children had
shared a bed that night, and that they did not sleep with
him and his girlfriend.
Father was evicted from Oxford House in 2013 for
failure to pay rent. Prior to this, the Department had
attempted to provide him funds to prevent his eviction,
but father could not provide proof of his employment,
per Department rules. Following his eviction, father provided an address to the social worker in Landon’s case
who provided it to Butler. When Butler attempted to find
the apartment, she could not locate the particular number given and contacted father to determine which apartment was his. Father admitted that his things were at the
address he gave, but that he was homeless, living on the
streets.
Father was fired from his job at Home Depot for
falling asleep on the job and having an altercation with
his supervisor. He worked briefly at Frederick Safe
House fire protection company but failed to return to
work there, providing no explanation for his actions.
Father also claimed to work at Fort Detrick, but this
could not be proven.
In December 2012, father stopped participating in
urine screens. When Butler scheduled the tests for a
more convenient day for father, he still refused to participate.
On February 1, 2013, Quintline suffered seizures
while waiting for the bus at his daycare. He was taken to
Shady Grove Hospital where he suffered more seizures.
Quintline was transferred to Children’s Hospital in
Washington, DC, but father refused to meet him there to
sign papers to admit him to the hospital, because he was
meeting someone about the possibility of renting a room.
Butler testified that it took her over an hour-and-a-half to
get into contact with father during this incident. Father
finally provided verbal permission for Quintline’s admission into Children’s Hospital.
Butler remained concerned that father didn’t take
full responsibility for his parenting duties. At the time of
the TPR hearing in October 2013, father resided in a
homeless shelter. Father admitted to using cocaine and
alcohol in the months prior to the hearing.
The Termination of Parental Rights Proceeding
In July 2013, the Department requested that the
CINA court change the permanency plan from reunification to adoption by a non-relative; the court denied this
request and the permanency plan remained reunification
with the father. On September 10, 2013, prior to the
October 8, 2013 permanency plan review hearing, the
Department petitioned the court for guardianship with
the right to consent to adoption of the children. At the
October 8, 2013 permanency plan review hearing, the
CINA court reaffirmed the permanency plan of reunification with the father. Mother initially objected to the petition for guardianship, but later withdrew her objection
and consented to a conditional termination of her
parental rights in open court, on the record, under oath,
and represented by counsel. Father opposed the petition
for guardianship in Notices of Objection/Request for
Appointment of Attorney docketed on October 9, 2013.
On December 20, 2013, father also moved to dismiss the
petition. On January 7, 2014, father’s motion to dismiss
was denied. Following the TPR hearing on February 10,
11, and 12, 2014, the Circuit Court for Montgomery
County, sitting as a juvenile court, terminated mother
and father’s parental rights.
In its order terminating father’s parental rights, the
juvenile court made the following conclusions of law:
A. The Court’s charge in a Guardianship/TPR
matter is to balance the welfare and best interests of a child against the fundamental liberty
interest of the objecting parent. In re Samone H.,
385 Md. 282, 869 A.2d 370, 381 (2005); In re
Adoption No. 10941, 335 Md. 99, 642 A.2d 201
(1994).
B. In re Rashawn H., 402 Md. 477, 937 A.2d 177
(2007), discusses the implicit presumption that a
child’s best interest lies with a continuation of
the parental relationship. This presumption can
only be rebutted by clear and convincing evidence that the parents are unfit, or that exceptional circumstances exist that would make a
continuation of that relationship detrimental to
the best interest of the child.
C. The Court applies the clear and convincing
evidentiary standard to the totality of the evidence in determining whether to grant a
Guardianship/TPR petition. In carefully considering the statutory factors set forth in Md. Code
Ann., Family Law Article §5-323(d), primary consideration must be given to the health and safety
of the child, although all other factors enumerated therein are to be considered as well. The
statute does not require the court to find by
clear and convincing evidence that each of the
factors exists, nor does it require that all of the
factors be found to be applicable. If the Court is
persuaded by analysis of the applicable factors
that termination serves the best interest of the
child, the inapplicability of a factor will not preclude termination. In re Adoption of Amber R.,
417 Md. 701, 12 A.3d 130 (2011); In re Adoption
No. 2428, 81 Md. App. 133, 567 A.2d 139 (1989).
D. Finally, where the health and safety of [a]
child is of concern, the court may look to past
conduct to predict future conduct. In re
Nathaniel A., 160 Md. App. 581, 864 A.2d 1066,
1075 (2005); In re Dustin T., 93 Md. App. 726,
731, 614 A.2d 999 (1992).
19
E. For eight (8) years, the Department has
offered services to Father for his three children
under the Court’s jurisdiction. Focusing on the
past four (4) years, the lives of Quintline and
Shellariece, there has never been a point when
the Children would have been stable and secure
in his care and custody. Quintline, Jr. and
Shellariece have waited for four (4) and three
(3) years respectively for Father to become a
parent. He has not.
Over the years, the Children bonded with
Father and, with the Department’s support, Father
made progress towards reunification. He participated in and completed inpatient drug treatment,
and found stable housing and employment. To his
credit, Father consistently visited the Children.
The Department, the Court, and no doubt Father,
were hopeful that reunification would occur. His
visits moved from supervised, to unsupervised
day visits, to unsupervised weekend visits.
Housing for himself and the Children appeared as
the only obstacle. Then, in April, 2012, the web
began to unravel.
After an incident involving his mother, the
Department became aware that the Children were
having unauthorized visits with Father, coordinated with the Children’s first foster mother, Ms. [Lu].
Father’s mother began making allegations to the
Department that he was using drugs. In May, 2012,
Father fell asleep at his job, had a verbal altercation with his boss, and was fired. In June, 2012,
after a visit with Father, the Children were diagnosed with yeast infections because they were not
being kept properly clean. Shortly thereafter,
Father held Quintline, Jr. over a railing and threatened to drop him. In November, 2012, Father took
the Children to an unknown person’s home, which
he well knew was in direct violation of a Court
order. In January, 2013, Father was evicted from
his housing. He was ordered to participate in urine
screens and he did not comply. He admitted to
using drugs. He was not truthful to the
Department about most of these issues. He has
left himself with no options.
The Children, by contrast, have thrived.
They have made great strides and drastic
improvements in their development and behavior and are in a safe and consistent place. Their
foster parents have adjusted their lives to the
needs of the children. Michelle T. [current foster
mother] testified about the challenges of taking
on the responsibility for two children, and the
adjustments that are required and the compromises that have to be made. That is the role of a
parent. That is the role to which Mr. B. could not
accommodate.
The Children and Father are on different trajectories.
20
Father appeared to be close to reunifying
with the Children, with the only impediment
being appropriate housing for him and the
Children. Clearly, in hindsight, Father had and
continues to have many more issues than lack of
housing. He is unable to take care of himself. He
cannot provide a safe and stable [home] for his
children after four (4) years of Department intervention. The Court finds that Father is not a fit
parent for the Children and likely will not take
the steps to become a fit parent in the foreseeable future.
The Court is aware that there are challenges
ahead for the Children. However, they are best
served by having real permanency. The Children
have strong, loving relationships with their foster parents, Michelle T. And Ivette D. They have
strong bonds with each other. The Guardianship
Order will not affect those relationships.
F. The Court has made findings of fact pursuant
to the statutory factors found in §5-323(d). The
Court has weighed the evidence in its entirety,
including the credibility of the witnesses before
it. Taking all of the above into consideration, the
Court finds by clear and convincing evidence
that Father is unfit, that Father poses an unacceptable risk to the Children’s future safety, and
that it is in the Children’s best interest that the
parental rights of Quintline Lamonte B. and, by
consent, Rose Rebecca H., be terminated.
Discussion
Standard of Review
We utilize the following interrelated standards of
review in reviewing a court’s decision to terminate the
rights of a parent:
Namely, [w]hen the appellate court scrutinizes
factual findings, the clearly erroneous standard of
[Rule 8–131(c)] applies. [Second,] [i]f it appears
that the [court] erred as to matters of law, further
proceedings in the trial court will ordinarily be
required unless the error is determined to be
harmless. Finally, when the appellate court views
the ultimate conclusion of the [court] founded
upon sound legal principles and based upon factual findings that are not clearly erroneous, the
[court’s] decision should be disturbed only if there
has been a clear abuse of discretion.
In re Adoption/Guardianship of Jasmine D., 217 Md.
App. 718, 733, 94 A.3d 837, 846-47 (2014) (quoting In re
Adriana T., 208 Md. App. 545, 553–54 (2012)).
I.
Father asserts that the court erred when it permitted
the Department to proceed with termination of his
parental rights where the permanency plan in the children’s CINA cases remained reunification with him. He
contends that his due process rights were violated in two
ways. First, because of the TPR, the Department and not
the Court, in effect, changed the permanency plan in the
children’s CINA case. Second, issues pending in the CINA
litigation were foreclosed upon by the granting of the TPR
without an opportunity for further review. In addition,
father
contends
that
interpreting
In
re
Adoption/Guardianship of Jayden G., 433 Md. 50 (2013)
(hereinafter “Jayden G.”) to require a TPR petition to be
heard when the permanency plan is reunification also violates his due process rights. The Department counters that
there are three ways to initiate a TPR proceeding: 1) when
a Department determines that adoption is in the child’s
best interests, they must file a TPR within 60 days; 2) the
Department shall file a TPR if a child has been in an out-ofhome placement for 15 of the most recent 22 months; and
3) when a CINA court changes a permanency plan to adoption. Because of this, the Department argues, the change of
permanency plan in a CINA case is not necessarily a condition precedent to the filing of a TPR. The children echo the
Department’s argument.
The above-mentioned case, Jayden G., 433 Md. 50
(2013), is instructive. In Jayden G., the Court of Appeals
decided whether a TPR proceeding should have been
stayed pending the resolution of an appeal of a change in
permanency plan from reunification to adoption by a
non-relative. Id. at 66. In that case, the CINA court
changed the permanency plan from reunification to
adoption by a non-relative. The mother appealed. Id. at
53. Pending the appeal, the Department filed a TPR petition. Id. Mother moved to stay proceedings in the TPR
case pending the resolution of her appeal on the change
of permanency plan. Id. The juvenile court granted the
TPR petition, which mother also appealed. Id. In the first
appeal, we vacated the change in permanency plan and
remanded for further proceedings. Id. In the second
appeal, we affirmed the termination of mother’s parental
rights. Id. at 65. Mother appealed this decision to the
Court of Appeals.
In its opinion, the Court of Appeals noted that “[t]he
role of parents in caring for their children is ‘established
beyond debate as an enduring American tradition,’” and
that there is “a presumption of law and fact — that it is
in the best interest of children to remain in the care and
custody of their parents.” Id. at 66-67 (quoting Wisconsin
v. Yoder, 406 U.S. 205, 232 (1972); In re
Adoption/Guardianship of Rashawn H., 402 Md. 477,
495 (2007) (hereinafter “Rashawn H.”)). That presumption, however, may be rebutted by “experience and reality.” Jayden G., 433 Md. at 67 (quoting Parham v. J.R.,
442 U.S. 584, 602 (1979)). The Court also noted that “in
contested adoption and TPR cases . . ., where the fundamental right of parents to raise their children stands in
the starkest contrast to the State’s effort to protect those
children from unacceptable neglect or abuse, the best
interest of the child remains the ultimate governing standard.” Id. at 68 (quoting Rashawn H., 402 Md. at 496).
In Jayden G., the mother sought a blanket rule requiring a stay in TPR proceedings where an appeal of the
change of permanency plan is pending. Id. The Court held
that a parent does have the right to appeal a change of permanency plan, but that right is not absolute and is limited
by the sound discretion of the court, taking into account
the best interests of the child in a given case. Id. at 69. A
parent may appeal an interlocutory order pursuant to
Maryland Code (1974, 2013 Repl. Vol.) Courts and Judicial
Proceedings (CJP) Article, Section 12-303(3)(x), where
that order “[d]epriv[ed] a parent, grandparent, or natural
guardian of the care and custody of his child, or chang[ed]
the terms of such an order[.]” The Court noted that there is
a difference between “[p]rohibited action by the trial court
that defeats the right of a party to prosecute an appeal”
and that “permitted action by the trial court that renders a
case moot.” Jayden G. 433 Md. at 74 (quoting In re
Deontay J., 408 Md. 152, 163 (2009)). In addition,
“[a]lthough ‘a CINA adjudication must precede a TPR
determination, it is a separate legal proceeding.”’ Id. at 75
(quoting In re Adoption/Guardianship of Cross H., 200
Md. App. 142, 150 (2011)).
In drawing a distinction between a CINA and a TPR
proceeding, the Court noted that the statutes governing
both proceedings are governed by two distinct portions
of the Code: the Courts and Judicial Proceedings (CJP)
Article governs CIN A proceedings; and the Family Law
(FL) Article governs TPR proceedings. Id. The court also
noted that the evidentiary burden in CINA cases is “preponderance of the evidence,” while “clear and convincing” evidence is required in TPR cases. Id. at 77.
Moreover, strict adherence to the Maryland Rules of
Evidence is not required in a permanency plan hearing,
while it is required in a TPR proceeding. Id.
Of greatest relevance to this case, Jayden G. discusses the ways TPR proceedings are initiated. The
Court enumerates three ways in which a TPR case may
be commenced. Id. at 78.
First, under CJP § 3-823(g), the Department is
required to file a TPR petition after a juvenile court finds
a permanency plan of adoption by a non-relative is in the
best interest of the child. That section provides:
(g) In the case of a child for whom the court
determines that the plan should be changed to
adoption under subsection (e)(1)(i)3 of this section, the court shall:
(1) Order the local department to file a petition for guardianship in accordance with Title
5, Subtitle 3 of the Family Law Article within
30 days or, if the local department does not
support the plan, within 60 days; and
(2) Schedule a TPR hearing instead of the
next 6-month review hearing.
Second, the Department must file a TPR petition
when a child has been in an out-ofhome placement for
15 of the most recent 22 months, according to FL § 5525.1(b), which holds:
(b)(1) Except as provided in paragraph (3) of
this subsection, a local department to which a
child is committed under § 5-525 of this subtitle
21
shall file a petition for termination of parental
rights or join a termination of parental rights
action that has been filed if:
(i) the child has been in an out-of-home
placement for 15 of the most recent 22
months[.]
Maryland Code (1984, 2012 Repl. Vol.) Family Law (FL)
Article § 5-525.1(b).
Finally, according to FL § 5-525.1(a), a child placement agency must file a TPR petition if it determines that
adoption is in the best interests of the child. It reads:
(a) If a child placement agency to which a child
is committed under § 5-525 of this subtitle determines that adoption of the child is in the best
interest of the child, the child placement agency
shall refer the case to the agency attorney within
60 days of the determination and the agency
attorney shall file a petition for termination of
the natural parent’s rights with the court within
60 days of receipt of the referral.
The existence of three different avenues to file a
TPR petition clearly indicate that the Legislature did not
intend that a change in permanency plan be the sole
means by which to sever a parent’s rights. Therefore, it
must also be assumed that the Legislature contemplated
situations in which a parent would not have the benefit
of appealing a change in permanency plan prior to the
initiation of a TPR proceeding.
We recall father’s contention that permitting the
Department to proceed with a TPR case without a change in
permanency plan violates his due process rights. We disagree. Here, both FL § 5-525.1(a) and FL 5-525.1(b) contemplate independent action on the Department’s or child placement agency’s part on behalf of the best interests of the
child. Neither statute requires a change in permanency plan
as a condition precedent to the filing of a TPR. Furthermore,
a parent’s right to appeal an interlocutory order changing
the permanency plan to adoption must always be balanced
against the best interests of the child. See Jayden G., 433
Md. at 72 (holding that although there is a right to appeal a
change in permanency plan, that right is not absolute and
does not require the stay of a TPR proceeding). The best
interests of the child is the transcendent principle in both
CINA and TPR proceedings.
Nonetheless, our case law has been clear and
consistent, that, even in contested adoption and
TPR cases (and in permanency plan proceedings
that may inevitably lead to a TPR case), where the
fundamental right of parents to raise their children
stands in the starkest contrast to the State’s effort
to protect those children from unacceptable
neglect or abuse, the best interest of the child
remains the ultimate governing standard.
Rashawn H., 402 Md. at 496. Considering the facts of the
present case, we are persuaded that the Department
believed it was acting in the children’s best interests when it
filed the TPR petition. Any deprivation of interlocutory judicial review because the Department proceeded with the
22
TPR in a manner other than through a change in permanency plan is incidental. The law permits the Department to file
a TPR when the permanency plan is not adoption by a nonrelative. Father’s right to raise the children must always be
balanced against the children’s best interests. We echo the
Court of Appeals in holding:
the parent has a right to appeal the plan changing the permanency plan from reunification to
adoption, but that right does not foreclose or
forestall the pursuit of other, overlapping statutory processes. It must coexist with the statutory provisions encouraging expediency in the resolution of TPR cases and the child’s paramount
need for permanency, which underlies our CINA
and TPR statutes.
Jayden G., 433 Md. at 72. The juvenile court was permitted to act upon the TPR petition, as evidenced by the
Court of Appeals holding in Jayden G. and by FL § 5525.1(a) and FL 5-525.1(b). Accordingly, this case is
among those where “permitted action by the trial court
. . . render[ed] a case moot.” Id. at 74 (quoting In re
Deontay J., 408 Md. at 163).
Father’s assertion that his due process rights would
be violated, if we were to hold that Jayden G. requires a
court to hear a TPR petition when the permanency plan
is reunification, is erroneous. In Jayden G., the Court of
Appeals held that a juvenile court may hear a TPR petition while the permanency plan remains reunification.
The Court explained:
Our rejection, on the one hand, of the Mother’s
argument that the juvenile court had to stay the
TPR proceedings and, on the other hand, the
Department’s argument that the juvenile court
was required to deny the motion, brings us to
the conclusion that the juvenile court was not
required to rule in any particular way. Rather, as
in many other contexts, the decision of whether
to grant the Mother’s motion to stay was within
the court’s discretion.
Id. at 82 (emphasis in original). Our holding here goes no
further than did the Court of Appeals in Jayden G.
Simply put, it was within the juvenile court’s sound discretion to consider or refuse to consider the TPR petition, notwithstanding a permanency plan remaining
reunification, and father’s due process rights were not
violated. See id. at 69 (holding that a parent’s right to
appeal the change of permanency plan is limited by the
sound discretion of the court, taking into account the
best interests of the child).
II.
Father’s second contention is that the TPR court
erred in terminating his parental rights. He asserts that
he worked diligently toward reunification, and had only
suffered recent setbacks. The Department counters that
there was clear and convincing evidence that terminating father’s parental rights was in the children’s best
interests. The children agree that the court properly terminated father’s parental rights.
In order to terminate a parent’s parental rights, the
State must prove by clear and convincing evidence that
such a termination was in the child’s best interests. In re
Priscilla B., 214 Md. App. 600, 622 (2013). As we noted
above, the parents’ role in raising their children is “established beyond debate as an enduring American tradition,”
and that there is “a presumption of law and fact — that it is
in the best interest of children to remain in the care and
custody of their parents.” Jayden G. 433 Md. at 66-67 (quoting Yoder, 406 U.S. at 232; Rashawn H., 402 Md. at 495).
This presumption, however, may be “rebutted only by a
showing that the parent is either unfit or that exceptional
circumstances exist that would make the continued relationship detrimental to the child’s best interest.” Rashawn
H., 402 Md. at 498. “[I]n contested adoption and TPR cases .
. . , w here the fundamental right of parents to raise their
children stands in the starkest contrast to the State’s effort
to protect those children from unacceptable neglect or
abuse, the best interest of the child remains the ultimate
governing standard.” Jayden G., 433 Md. at 68 (quoting
Rashawn H., 402 Md. at 496). In deciding whether to terminate a parent’s rights, courts are required to consider factors enumerated in FL § 5-323(d), which provides:
Except as provided in subsection (c) of this section, in ruling on a petition for guardianship of a
child, a juvenile court shall give primary consideration to the health and safety of the child and
consideration to all other factors needed to
determine whether terminating a parent’s rights
is in the child’s best interests, including:
(1)
(i) all services offered to the parent
before the child’s placement,
whether offered by a local
department, another agency, or a
professional;
(ii) the extent, nature, and timeliness of services offered by a
local department to facilitate
reunion of the child and parent;
and
(iii) the extent to which a local
department and parent have fulfilled their obligations under a
social services agreement, if
any;
(2) the results of the parent’s effort to
adjust the parent’s circumstances, condition, or conduct to make it in the child’s
best interests for the child to be returned to
the parent’s home, including:
(i) the extent to which the parent
has maintained regular contact
with:
1. the child;
2. the local department to
which the child is committed; and
3. if feasible, the child’s
2.
1.
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
the mother refused the level of drug treatment recommended by a qualified addictions specialist, as defined in § 5-1201 of
this title, or by a physician or psychologist,
as defined in the Health Occupations
Article;
(iii) the parent subjected the child
to:
1. chronic abuse;
2. chronic and life-threatening neglect;
3. sexual abuse; or
4. torture;
(iv) the parent has been convicted,
in any state or any court of the
United States, of:
a crime of violence against:
23
A. a minor offspring of the parent;
B. the child; or
C. another parent of the child; or
2. aiding or abetting, conspiring, or soliciting
to commit a crime described in item 1 of this
item; and
(v) the parent has involuntarily lost
parental rights to a sibling of the
child; and
(4)(i) the child’s emotional ties with and feelings
toward the child’s parents, the child’s siblings,
and others who may affect the child’s best interests significantly;
(ii) the child’s adjustment to:
1. community;
2. home;
3. placement; and
4. school;
(iii) the child’s feelings about severance of the parent-child relationship; and
(iv) the likely impact of terminating
parental rights on the child’s
well-being.
The juvenile court’s written order considered each of
the factors listed above. We find several of the court’s
findings of fact particularly persuasive. Appellant has
received services from the Department from the initiation of Landon’s CINA case, which began in 1999.
Though father has successfully completed drug and alcohol rehabilitation programs at Avery Road and Second
Genesis, substance abuse still remains a major concern.
He has evaded drug screens, and admitted to drinking
and doing drugs in the months prior to the TPR hearing.
Though father completed parenting courses, he still
failed to inspire confidence as a caretaker, failing to feed
the children on occasion and not taking responsibility to
provide diapers, wipes, and snacks for the children during visits. This indicated an expectation that others
would provide for the children, when it was his responsibility to do so. We find the incident where father held
Quintline over a second-floor railing particularly troubling. It indicates a lack of judgment, as well as a flippant attitude toward the seriousness of his family’s situation. This out-of-touch attitude again manifested itself
when father failed to accompany his son to Children’s
Hospital in Washington to sign admission papers after
Quintline suffered seizures. Rather, father preferred to
meet with a man about renting a room.
Housing has also been a major struggle and area of
concern for father. Over the span of this case, father has
shown himself to be itinerant. Such an existence is not in
the best interests of the children. Furthermore, at the
time of the TPR hearing, father resided in a homeless
shelter.
Father has also failed to hold down a steady job. He
24
has been fired from Home Depot for sleeping on the job,
was employed by a fire safety company for a short time,
and may have temporarily worked at Fort Detrick.
The TPR court found, and we agree, that the quality
of father’s visits with the children is an issue, not the
quantity. Quintline was in care for 52 months and
Shellariece for 38 months at the time father’s parental
rights were terminated. Father’s position now is actually
worse than it was when the children were put into care.
He remains unemployed, abuses drugs and alcohol, and
is now homeless, where he was not before.
The children are strongly bonded to one another and
their new foster parents, Michelle T. and Ivette D. They
are also bonded to father, and it is difficult to determine
how they might react to the severance of their relationship with him. The children are adjusting well and thriving at school. The foster parents provide good structure,
which is especially helpful to Quintline. Furthermore,
father even indicated that the ideal situation would be
for the foster parents to adopt the children and for him
to have liberal visitation with them.
The TPR court made the specific finding that it
would not be in the children’s best interests to extend
the foster period. We agree. For all the reasons discussed
above, we are persuaded that the Department demonstrated by clear and convincing evidence, that termination of the parent-child relationship is in the best interests of the children. We affirm.
JUDGMENTS OF THE CIRCUIT COURT FOR
MONTGOMERY COUNTY, SITTING AS A
JUVENILE COURT, AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
Footnotes
1. Landon shares a father with Quintline and Shellariece, but
they do not have the same mother.
2. Sections 3-801(f) and (g) of the Courts Article respectively
define “Child in Need of Assistance” and “CINA”:
§ 3-801.
(a) In this subtitle the following words have the meanings indicated.
***
(f)“Child in Need of Assistance” means a child who
requires court intervention because:
(1) The child has been abused, has been neglected,
has a developmental disability, or has a mental disorder; and
(2) The child’s parents, guardian, or custodian are
unable or unwilling to give proper care and attention
to the child and the child’s needs.
(g)“CINA” means a child in need of assistance.
Md. Code (1974, 2006 Repl. Vol., 2012 Supp.), § 3-801(f) of the
Courts and Judicial Proceedings (“CJP”) Article. See also Dept.
Of Human Res. v. Cosby, 200 Md. App. 54, 57 n.2 (2011), aff’d
425 Md. 629 (2012).
3. Further investigation revealed that Ms. Lu had gone out of
town without notifying the Department, and had arranged for
father and paternal grandmother to watch the children.
In The Court of Special Appeals: Full Text Unreported Opinions
Divorce: delay in issuing opinion: costs and fees
Marc Stengel
v.
Susan Silesky F/K/A Susan
Stengel, et. al.
Argued Before: Zarnoch, Nazarian, Salmon, James P.,
(Ret’d, Specially Assigned), JJ.
Opinion by Nazarian, J.
Filed: September 17, 2014. Unreported.
Although Article IV, §23 of the Maryland
Constitution says circuit courts shall decide cases
within two months of trial, the provision is not
mandatory and, given the complexity of this case, a
wait of nine months was not grounds for reversal;
nor did the court err or abuse its discretion in finding husband was ‘driving the litigation’ and ordering
him to pay the majority of fees for his wife’s attorney, the custody evaluator and BIA.
After separating from his wife, Susan Silesky (“Wife”),
Marc Stengel (“Husband”) filed a petition for divorce in the
Circuit Court for Baltimore County. After nearly three years
of protracted and highly contentious litigation, the circuit
court, in an order issued on September 26, 2013, granted
Wife an absolute divorce from Husband and resolved the
myriad custody and financial issues the parties had litigated. Among many other things, the circuit court ordered
Husband to pay most of the attorneys’ fees and costs Wife
incurred, as well as the substantial majority of the fees both
owed to the custody evaluator and the Best Interests
Attorney. Husband appeals from these three decisions and
argues that he was prejudiced by the length of time the circuit court took to make its decisions. We disagree and
affirm.
I. Background
Wife left the marital home in early December 2010.
Before pursuing litigation, Husband had his cousin reach
out to Wife to suggest mediation, and Wife declined. On
December 21, 2010, Husband filed a Verified Complaint for
Limited Divorce in the circuit court as well as an Ex Parte
Motion for Temporary Custody of Minor Children. Wife
responded with a Counter-Complaint for Absolute, or, in the
Alternative, Limited Divorce, Injunctive and Other Relief.
The parties also had a prenuptial agreement, the validity of
Ed. note: Unreported opinions of the states courts of
appeal are neither precedent nor persuasive authority. Rule 8-114. Unofficial publication of an unreported opinion does not alter the force of that rule.
See Nicholson v. Yamaha Motor Co., 80 Md. App.
695, 566 A.2d 135 (1989). Headnotes are not from
the courts but are added by the editors. Page numbers are from slip opinions.
which was never in dispute.
On December 22, 2010, the parties came to an agreement on Husband’s motion for temporary custody, and that
agreement was memorialized by the circuit court in a consent order that same day. Under the terms of the agreement,
Leon Berg was appointed as the Best Interests Attorney
(“BIA”) for the couple’s minor children and Dr. Kathleen
Killeen was tasked with conducting a full custody evaluation. After nearly eighteen months of litigation, on May 1,
2012, the parties reached an agreement on the issues of custody, visitation, and child support that they reduced to writing and that the circuit court issued as a consent order.
The remaining issues were tried beginning in July 2012.
The circuit court originally allotted three days for trial, but
the parties were unable to present their cases fully during
that time and the case was continued until the end of
November 2012. Before the case was continued, Husband
informed the circuit court that he would only need to call
one more witness. As the new trial dates approached, however, Husband subpoenaed more than fifteen witnesses. At
a hearing on November 26, 2012, the circuit court asked
Husband to make a proffer of the testimony each prospective witness would offer. After considering the proffers, and
noting that the remaining trial days were needed primarily
to take evidence on Wife’s financial condition, the court limited Husband to three additional witnesses. The remainder
of the trial took place later that week and concluded on
November 30, 2013.
The bulk of the trial testimony related to the parties’
finances. Husband portrayed himself as having few assets
and almost no income. Although he had held stock worth
approximately $33 million prior to the marriage, he testified
that the stock had depreciated in value and that he sold it
during the marriage for approximately $1,200,000 (he was
not certain how much money he received). His assets were
difficult to pin down: he acknowledged, for example, that
he owned approximately 1,300 domain names, but the parties disputed their value. At the time of trial, Husband also
owned a house valued at $375,000, yet encumbered by a
lien from his aunt, and a controlling interest in commercial
property located in Pennsylvania worth $750,000. Husband
indicated at trial that he no longer works due to a back disability, but receives approximately $1,900 each month in
Social Security disability benefits. Wife testified that she
earns a little more than $6,700 a month from her business,
which she owns, and that she owned a house worth
25
$270,000. Wife also possessed art that Husband characterized as extremely valuable and Wife as largely sentimental.
Both before and during the trial, Husband devoted
Herculean energy to investigating and attempting to prove
what he characterized as “transgressions” and “dishonesty”
on Wife’s part. Most notably, Husband installed video cameras all over the marital home (he claimed she knew about
them, she said most were hidden) and analyzed countless
hours of audio and video recordings in an effort to catch
Wife in misstatements about her finances and other matters.
Husband also compiled and analyzed extensive documentation, and even he acknowledges that the sheer volume of
material expanded the scope of discovery and the trial well
beyond what their assets and finances normally would
require.1
On September 18, 2013, more than nine months after
the trial had concluded, the circuit court called the parties
together and announced its decisions. Toward the end of the
hearing, the circuit court stated that it had reviewed the bills
for Wife’s attorneys’ fees “line by line” and “with an eye to
determining who was actually driving this litigation.” The
court then found on the record that most of the legal
expenses Wife incurred were “attributable to inappropriate
actions on the part of Husband.” The court rejected
Husband’s contention that he did not have the ability to pay,
finding that Husband owned several valuable properties and
that “I’m convinced there’s other money as well.” The circuit
court then awarded Wife $135,000 in attorneys’ fees. For the
same reasons, the court found that Husband was responsible for the greater majority of the fees charged by Mr. Berg,
the BIA, and Dr. Killeen, the custody evaluator, and ordered
him to pay $45,676 of the $57,095 owed to the BIA and
$39,856 of the $49,821 owed to Dr. Killeen. The circuit court
reduced its rulings to writing in a Judgment of Absolute
Divorce that it issued on September 26, 2013, and this
appeal followed.
II. Discussion
Husband’s brief lists four issues, but they boil down
readily to three. 2 First, and although Husband does not
challenge the amount of the attorneys’ fees Wife incurred or
the amounts owed to the BIA or to Dr. Killeen, he disputes
the portion of those fees that the circuit court allocated to
him. Second, Husband takes issue with the circuit court’s
decision to prohibit him from calling many of the witnesses
he had subpoenaed after the trial was continued. And third,
Husband contends that the circuit court erred in taking
longer than two months to decide the contested issues.
A. The Expense Awards Are Supported By Substantial
Evidence.
We begin by reviewing the circuit court’s award of
expenses. A circuit court’s award of expenses in a
divorce action is governed by Maryland Code (1984, 2012
Repl. Vol.), § 7-107 of the Family Law Article (“FL”),
which provides, in relevant part:
(a) In this section, “reasonable and necessary
expense” includes:
(1) suit money;
26
(2) counsel fees; and
(3) costs.
(b) At any point in a proceeding under this title,
the court may order either party to pay to the
other party an amount for the reasonable and
necessary expense of prosecuting or defending
the proceeding.
(c) Before ordering the payment, the court shall
consider:
(1) the financial resources and financial
needs of both parties; and
(2) whether there was substantial justification
for prosecuting or defending the proceeding.
(d) Upon a finding by the court that there was an
absence of substantial justification of a party for
prosecuting or defending the proceeding, and
absent a finding by the court of good cause to
the contrary, the court shall award to the other
party the reasonable and necessary expense of
prosecuting or defending the proceeding.
Id. In exercising its power to make an award of expenses
under this statute, “the circuit court is vested with a high
degree of discretion.” Reichert v. Hornbeck, 210 Md.
App. 282, 368 (2013). Our task in reviewing the circuit
court’s award of expenses is to evaluate the circuit
court’s “application of the statutory criteria set forth
above as well as the consideration of the facts of the particular case.” Petrini v. Petrini, 336 Md. 453, 468 (1994).
As an initial matter, Husband contends that the circuit
court erred in considering the $10,594.50 incurred by Wife in
legal fees for separate protective order matters in its attorneys’ fee calculations. He is right that the court may only
award expenses associated with “prosecuting or defending
the suit in which [the expenses are] granted,” Johnson v.
Johnson, 199 Md. 329, 339 (1952), and would have erred had
it awarded Wife money for legal expenses she incurred in
separate matters. Wife counters, however, that the court
only awarded fees and expenses she incurred in connection
with this case, and that the court’s reference to the fees she
incurred in the protective order cases merely recounted her
testimony.
We read the exchange the same way Wife does. It is true
that before ruling on the issue of attorneys’ fees, the circuit
court noted that “[Wife] had incurred legal fees from the
divorce case of $192,899.71 and from the Protection Order
matters of $10,594.50.” But when the statement is viewed in
context, we can see easily that the circuit court was merely
restating the relief Wife requested. From there, the court
then undertook a thorough analysis on the issue of attorneys’ fees and ultimately awarded Wife $135,000 in attorneys’ fees, which represents a little more than seventy percent of the legal fees Wife incurred in the divorce case
alone. We see nothing in the record suggesting that the circuit court included fees from the protective order cases in
its calculations, and the amount the court did award is
entirely consistent with its analysis of the statutory factors,
as we discuss next.
Husband argues next that the circuit court did not
balance the parties’ relative financial resources. He contends that she has greater resources than he does,
because (1) Wife earns more than $6,700 a month from
her business while he earns less than a third of that
through social security disability benefits; and (2) Wife
has substantial equity in her home. We disagree.
In fact, the circuit court did consider and balance
the financial resources of both Husband and Wife.
Before rendering its decision, the circuit court expressly
stated that “I must consider the financial resources and
financial needs of each party.” (Emphasis added) The
court walked through the substantial evidence elicited at
trial about the parties’ financial conditions, then found
that “the man [Husband] has access to funds.”
We do not disturb findings of fact unless they are clearly
erroneous and unsupported by “competent and material evidence.” L.W. Wolfe Enters., Inc. v. Md. Nat’l Golf, L.P., 165
Md. App. 339, 343 (2005) (citation omitted); see also Gen.
Motors Corp. v. Schmitz, 362 Md. 229, 233-34 (2001) (“The
appellate court 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.”) (citation omitted). And the evidence elicited at
trial amply supports the court’s conclusions: (1) Husband
held stock worth approximately $33 million prior to the
marriage, which he sold for approximately $1,200,000 during
the marriage; (2) Husband owned 1,300 domain names; (3)
Husband owned a house valued at $375,000; (4) Husband
testified that he held a controlling interest in commercial
property worth $750,000; and (5) Husband receives approximately $1,900 each month through social security disability
payments.
It is true, as Husband asserts, that the circuit court did
not say in so many words what weight it accorded to Wife’s
financial condition. But we presume that the circuit court
afforded proper weight to the evidence adduced at trial with
respect to Wife’s financial condition, see Bangs v. Bangs, 59
Md. App. 350, 370 (1984), and we can see from the record
that the court considered and made findings about Wife’s
financial condition. The court recounted the testimony that
Wife earned more than $6,700 a month from her business
and owned a house worth $270,000, awarded Wife $135,000
in attorneys’ fees, which only constituted seventy percent of
the legal fees Wife incurred during the parties’ divorce, and
ordered Wife to pay approximately twenty percent of the
expenses charged by Mr. Berg and Dr. Killeen. The court
obviously questioned Husband’s credibility and, more to the
point, concluded that the evidence painted an incomplete
(and undervalued) picture of Husband’s finances. The court
was required to ascertain and balance the parties’ relative
resources, not apply a rigid formula, and the court’s allocation tracks its overall conclusions about the parties’ assets
and income.
Husband next urges us to overturn the circuit court’s
award of expenses on the grounds that the circuit court
did not properly consider the extent to which Wife was
responsible for the scope of the litigation, a slightly difTheDailyRecord.com/Maryland-Family-Law
ferent way of arguing that Wife’s litigation positions were
not substantially justified. He argues that all of the litigation could have been avoided had Wife agreed to his
request for mediation, and Wife “continuously created
unnecessary litigation” (1) by not properly investigating
her claims; (2) by spending a substantial amount of time
eliciting testimony with respect to Husband’s non-marital
property; and (3) by acting deceitful during trial.
In evaluating “whether there was substantial justification for prosecuting or defending the proceeding,” the circuit court began by noting that Husband, through his cousin,
had offered to resolve his dispute with Wife through mediation, but that she declined Husband’s offer. So contrary to
Husband’s assertion, the court did consider Husband’s offer
of mediation. The court went on to say that it had reviewed
the bills “line by line” and it did so “with an eye to determining who was actually driving this litigation.” The court then
found that “of the almost $200,000 in legal bills, much is
attributable to inappropriate actions on the part of
[Husband],” and it supported its finding with several examples of Husband’s inappropriate behavior leading to unnecessary litigation expenses.
We find substantial evidence to support the circuit
court’s factual determination that Husband was the driving force behind the protracted litigation. See Gen.
Motors Corp., 362 Md. at 234 (“[I]f substantial evidence
was presented to support the trial court’s determination,
it is not clearly erroneous and cannot be disturbed.”).
There is no serious dispute that Wife incurred substantial legal expenses as a result of Husband’s ill-considered
decision to install surveillance cameras in the marital
home without Wife’s knowledge or consent and, more to
the point, from the overwhelming volume of data that
the cameras and Husband’s other investigatory tools
yielded (with negligible effect). The record fully supports
the circuit court’s conclusion that Husband’s inappropriate conduct was responsible for the greater majority of
the expenses rather than Wife’s unwillingness to mediate
or her decision to refute Husband’s allegations. And the
fact that the court ordered Wife to pay a portion of her
legal expenses and the collective costs demonstrates
that the court held her responsible as well, if perhaps not
to the degree Husband would prefer.
Finally, Husband contends that an expense award
totaling $174,532.00 “shocks the conscience.” However, by
Husband’s own admission, “the issues of the case at bar are
anything but uncomplicated and straightforward.” This case
required almost three years of highly contentious litigation
that culminated in six full days of trial. It took twenty pages
of the Record Extract to list all of the docket entries, and
that doesn’t begin to capture the volume of discovery or the
contentiousness infecting each stage of the case. It also
bears mentioning that Husband stipulated before the circuit
court that “Dr. Killeen’s fees and Mr. Berg’s fees [were] both
fair and reasonable and necessary,” and on appeal, Husband
does not challenge the hourly rate charged by Wife’s counsel
or the time Wife’s counsel spent on the case. Husband’s
grievance is really just a repackaged version of his argument
27
that the circuit court apportioned a disproportionate share
of these three balances to him, and we already have decided
that the court’s decisions fell well within its considerable
discretion.
B. The Circuit Court Did Not Err In Limiting
Husband’s Witnesses.
When the trial did not conclude after the originally
scheduled three days, the circuit court continued the case
until the end of November 2012. As the court discussed the
case with the parties at that point, Husband informed the
court that he planned to call one more witness for thirty
minutes of testimony. Despite that representation, Husband
subpoenaed more than fifteen witnesses for trial during the
interregnum. When the court learned of the subpoenas, it
asked Husband to provide a proffer of each prospective witness’s testimony. After considering the proffers, the court
prohibited Husband from calling all but three of the witnesses he had subpoenaed on the grounds that these witnesses
would be unable to testify about Wife’s financial condition,
the sole remaining issue left for trial. Husband asserts that
the circuit court erred in limiting the amount of witnesses
he could call without obtaining a proffer from each of the
witnesses as to their expected testimony. We disagree.
According to Husband, under the Court of Appeals’
decision in Rhoderick v. Rhoderick, 224 Md. 478 (1961),
the circuit court had the power to excuse the witnesses
he had subpoenaed “only after summoning the witnesses
to the hearing and obtaining a proffer from each witness
as to their expected testimony.” Husband appears to rely
on the following passage:
While it is generally held that a trial judge has
power to impose a limitation on the number of
witnesses called and to control their examination to some extent, we think that without compelling reasons a judge is without authority to
excuse a duly summoned witness before trial
without the knowledge or consent of the party,
or his counsel, summoning such witness at the
ensuing trial and to require that such party
make a proffer of the testimony the witness
would have given if present in lieu of having the
witness testify in person.
Id. at 481 (emphasis added) Under Rhoderick, then, the
court is not required to receive a proffer from each
prospective witness, but must afford an opportunity for
the “party [to] make a proffer of the testimony the witness would have given.” Id. (emphasis added) That is
exactly what happened here. Faced with what it
described as “a long, tortuous, unwieldy piece of litigation,” the circuit court properly exercised its discretion
to limit the number of witnesses Husband could call
after determining that most were not relevant to the sole
remaining issue for trial.
C. The Circuit Court Did Not Err Merely Because It
Took Nine Months To Render Its Decision.
Finally, Husband claims that the time lag between
28
the end of the trial and the circuit court’s decision violated Article IV, § 23 of the Maryland Constitution:
The Judges of the respective Circuit Courts of
this State shall render their decisions, in all
cases argued before them, or submitted for their
judgment, within two months after the same
shall have been so argued or submitted.
Id. The circuit court issued its decision on September 13,
2013, more than nine months after the trial concluded on
November 30, 2012. But although more than two months
obviously had passed, the Court of Appeals has held (as
Husband concedes) that “§ 23 of Art. IV of the Maryland
Constitution is not mandatory, but directory.” See, e.g.,
Pressley v. Warden of the Md. House of Corr., 242 Md. 405,
406 (1966). Even so, Husband urges us to reverse the circuit
court’s decision because, had he known the outcome sooner, he posits that could have better used the time to participate in therapy and otherwise attempt to persuade the court
to reunite him with his children. We appreciate Husband’s
frustration with the delay, but this was a difficult and contentious case with a voluminous record (that required
eleven volumes of Record Extract). In a perfect world, it
might have been decided sooner, but this is not a perfect
world, and it took time and care for the circuit court to
work through the issues and reach an appropriate set of
decisions, all of which we affirm today.
JUDGMENT OF THE CIRCUIT COURT
FOR BALTIMORE
COUNTY AFFIRMED. COSTS TO
BE PAID BY APPELLANT.
Footnotes
1. The parties, particularly Husband, dispute whether and to
what extent this expanded litigation was justified. As we
explain later, that dispute bears on the circuit court’s allocation
of responsibility for attorneys’ fees and the costs of the BIA
and custody evaluator.
2. Husband’s brief lists the following Questions Presented:
1. Were the required considerations of Ann. Code of Md.,
Family Law § 7-107(c) properly applied by the lower
court in determining the amount of attorney’s fees, best
interest attorney’s fees, and custody evaluator fees which
Appellant, Marc Stengel was ordered to pay?
2. Does an award of One Hundred Seventy Four
Thousand Five Hundred and Thirty Two Dollars
($174,532.00) in attorney’s fees, best interest attorney’s
fees, and custody evaluator fees shock the conscience
when considering the facts presented in the instant case?
3. Did the lower court err by preventing Appellant,
Marc Stengel, from calling key witnesses to testify on
his behalf?
4. Did the lower court err by taking over nine (9)
months to issue a verdict when Article IV, § 23 of the
Maryland Constitution states that all judges should
render their decisions within two (2) months of the
case being argued, as the unsettled nature of the parties’ situation led to the incursion of additional attorney’s fees by both parties?
Domestic violence: final protective order: clear and convincing evidence standard
Brendon Capoen
v.
Amanda Capoen
Argued Before: Woodward Wright, Berger, JJ.
Opinion by Berger, J.
In issuing a final protective order based on alleged
sexual abuse of a child, the trial court was entitled
to consider the witnesses’ credibility as well as the
medical reports in evidence; however, the court
abused its discretion in reaching conclusions about
the meaning of the medical records that were wholly
unsupported by the records themselves, and in relying on those unsupported conclusions as corroboration of the mother’s testimony.
This case reaches this Court on appeal from a final
protective order issued by the Circuit Court for Charles
County pursuant to Md. Code (1984, 2012 Repl. Vol.), §
4-506 of the Family Law Article (“FL”). The protective
order was issued at the request of Amanda Capoen
(“Mother”), appellee, on behalf of herself and minor
child Vincent Capoen (“Vincent”). Amanda sought an
order of protection against her husband and Vincent’s
father, Brendon Capoen (“Father”), the appellant.
Following a hearing, the circuit court ordered that
Father shall not: 1) abuse, threaten to abuse, and/or
harass Mother and/or Vincent, 2) contact or attempt to
contact Mother and/or Vincent, or 3) enter the residence
of Mother and Vincent. The order further provided that
“there is clear and convincing evidence that” Father had
committed “[s]tatutory abuse of a child (Sexual).” The
court granted custody of Vincent to Mother. Father did
not receive visitation.
On appeal, Father asserts that the circuit court’s
finding that there was clear and convincing evidence of
abuse was clearly erroneous. For the foregoing reasons,
we shall reverse the judgment of the Circuit Court for
Charles County.
Mother and Father are the parents of Vincent
Capoen, born July 13, 2011. On September 2, 2013,
Mother filed a petition for protection from child
abuse against Father, alleging that Father sexually
abused Vincent on September 1, 2013. The district
court issued an interim protective order, finding that
there were reasonable grounds to believe that Father
committed abuse of a child. The interim order
required that Father vacate the family’s home, not
abuse, threaten to abuse, and/or harass Vincent and
Mother, not contact or attempt to contact Vincent
and Mother, and not enter Mother’s residence. A temporary protective order was issued on September 3,
2013, extending the interim protective order until a
hearing could be held. The district court further
ordered the Charles County Department of Social
Services to conduct an investigation.
A hearing regarding Mother’s request for a protective order was held on September 16, 2013, in the
Circuit Court for Charles County. Mother testified
that on September 1, 2013, Mother, Father, Vincent,
and Mother’s parents and brother traveled to Ocean
City, Maryland for Labor Day weekend. Mother testified that on Sunday, September 1, 2013, she discovered Father and Vincent in the shower in their hotel
room. Mother explained that she saw Father “in the
shower with my son with his fingers in his rectum.
And it’s just, my son, this is just, I was, I was just a
mess.”
In addition to the shower incident, Mother testified that she observed other troubling incidents on
September 1, 2013. Mother testified that she saw
Father “put a yogurt melt on his tongue and st[i]ck it
inside [Vincent’s] mouth . . . twirling his tongue
around in [Vincent’s] mouth.” Mother further testified
that Father “continuously . . . check[ed] [Vincent’s]
diaper” by “putting his hands in his diaper inappropriately.” Mother described an incident at an arcade
where Father was sitting in a motorcycle video game
and “put [Vincent] on his private area and was . . .
moving around in a grotesque way, like grinding and
making noises, like it was a joke.” Mother testified
that she had observed recent changes in Vincent’s
behavior, such as screaming during diaper changes
and Vincent attempting to put his fingers in his rectum. Following the Ocean City incidents, Mother did
not immediately report the incident to her family or
29
authorities in Ocean City. Mother testified that
because she was afraid of Father, she waited to report
the incidents until the family returned home to
Charles County.
Mother explained that on September 3, 2013, after
filing a petition for protection from child abuse, she
took Vincent to Calvert Memorial Hospital and then to
Civista Medical Center.1 Vincent was examined at both
hospitals and medical records were entered into evidence. The medical report from Calvert Memorial
Hospital noted that Vincent was in “good general
health” and “in no acute distress” with “[n]o external
evidence of trauma,” but included a finding of “[m]ild
perirectal erythema.” 2 At Civista, Vincent received a
forensic pediatric sexual assault exam. The pediatric
sexual assault exam record noted a “Positive” finding
for trauma with respect to the anus. The positive finding was described as follows:
(penis - normal exam)
Cut @ 1200 o’clock. No bleeding. + redness
around anus.
Tender to touch anus area. [D]ecreased muscle
tone of anus.
Rectal vault empty.
Mother acknowledged that Vincent had been suffering from diarrhea at the time of the hospital visits.
A report prepared by social worker Emery Myers
from the Charles County Department of Social
Services was also entered into evidence. The report
described the allegations made by Mother and included the following three recommendations:
1. The parents could benefit from co-parenting classes.
2. Family and individual counseling is
recommended for Mr. and Ms. Capoen.
3. We are recommending an extended
forensic interview for Vincent Capoen.
The court also heard testimony from Vincent’s
maternal grandmother, Rose Lephew, and Vincent’s
maternal grandfather, David Lephew. Rose Lephew
corroborated Mother’s testimony regarding the yogurt
drop and arcade incidents. Rose Lephew further testified that she did not babysit Vincent in Ocean City on
the afternoon of September 1, 2013. David Lephew
similarly testified that he did not babysit Vincent in
Ocean City on the afternoon of September 1, 2013.3
Father testified that Vincent had “been battling
diaper rash since two days before [the family] left”
for the Labor Day weekend vacation and “had redness
in the area.” Father denied any inappropriate behavior towards Vincent. Father testified that on
September 1, 2013, after returning from the beach, he
brought Vincent in the shower with him. Father testified that Vincent and he were both “fully clothed in
our bathing suits” while in the shower. Father
explained that Mother took Vincent from the shower
and dressed him, after which Mother’s mother came
and took Vincent out of the room. According to
30
Father, after Vincent left with his grandmother,
Mother got into the shower with Father and they
engaged in sexual relations. Father testified that he
did not put a finger in Vincent’s anus or fondle
Vincent.
With respect to the yogurt drop incident, Father
testified that he placed a yogurt drop on his tongue
and wiggled his tongue. Father explained that he was
three feet away from Vincent at the time and that
Vincent thought it was funny. According to Father, he
“never once stuck [his] tongue in [Vincent’s] mouth.”
With respect to the arcade incident, Father testified
that he placed Vincent on his lap when he was playing
a racing game and that Vincent used the steering
wheel while they were playing the game. According to
Father, he did not bounce up and down with Vincent
on his lap. Regarding checking Vincent’s diaper,
Father explained that he checks the diaper by
“pull[ing] it back.” Father testified that he “d[oes no]t
put [his] hands in [Vincent’s diaper].”
Father further testified that Mother and he had
been involved in an argument shortly before the
Labor Day weekend vacation. Father testified that on
August 28, 2013, Mother and he engaged in an argument regarding missing Father’s mother’s birthday
over the holiday weekend. According to Father,
Mother “got irate” and left with Vincent. Father testified that Mother “threatened to take my son away
from me and I would never see him again.” Father did
not present additional witnesses, but counsel for
Father proffered that two friends and five family
members of Father’s would testify that they had
observed appropriate interactions between Father
and Vincent.4
The circuit court issued its ruling as follows:
There is compelling evidence here of sexual child abuse. It starts with the mother’s testimony, which is somewhat convoluted. But
she came across as a person who is being
truthful, who was extremely disturbed,
shocked at what she was seeing. It was corroborated by her mother and her father, who
also testified credibly. It’s corroborated by,
first of all, the evaluation at Calvert Memorial.
They were not prepared to do a sexual assault
exam, but the notations that they made were
not that nothing happened. There was redness
around the child’s rectum, not diaper rash.
Any nurse or doctor can diagnose diaper rash.
That’s not what they saw. And they recommended a followup with a forensic examiner.
Ms. Capoen did that at [Civista, which] is now
Charles Regional Medical Center, where they
have trained forensic nurse examiners.
The report from that examination is
damning. [Counsel for Mother] pointed out
the most incredible observation of decreased
muscle tone. This is not possible in a 2-yearTheDailyRecord.com/Maryland-Family-Law
old child unless someone has been grooming
that child bit by bit for sexual abuse. It does
not happen naturally. Add that to the redness
and the tear and you have a very clear picture
of sexual abuse.
I did not find Mr. Capoen’s testimony particularly credible. It seemed quite rehearsed,
too calm. And the argument was made that he
has no history of this. I would suggest maybe
none known. This is terrible news for his
friends and family. I realize that. But that’s the
reality that this Court is seeing.
Madam Clerk, Mrs. Capoen is the person
eligible for relief. They are married and
should — the order is on behalf of Vincent,
their child together. And there is clear and
convincing evidence of sexual child abuse.
Specifically, September 1st in Ocean City. He’s
put his fingers in the child’s rectum.
The court subsequently issued a written order, which
was consistent with its oral ruling.5
This timely appeal followed.
Standard of Review
The court is authorized to grant a final protective
order after a contested hearing upon a finding, by
clear and convincing evidence, that abuse occurred.
FL § 4-506.6 Section 4-501(b) of the Family Law Article
provides the following definitions of abuse:
(1)“Abuse” means any of the following acts:
(i) an act that causes serious bodily
harm;
(ii) an act that places a person eligible
for relief in fear of imminent serious
bodily harm;
(iii) assault in any degree;
(iv) rape or sexual offense under §§ 3303 through 3-308 of the Criminal Law
Article or attempted rape or sexual
offense in any degree;
(v) false imprisonment; or
(v i) stalking under § 3-802 of the
Criminal Law Article.
(2) If the person for whom relief is sought is a
child, “abuse” may also include abuse of a
child, as defined in Title 5, Subtitle 7 of this
article. Nothing in this subtitle shall be construed to prohibit reasonable punishment,
including reasonable corporal punishment, in
light of the age and condition of the child,
from being performed by a parent or stepparent of the child.
The burden of proof regarding allegations of
abuse is well established. W e have explained:
The burden is on the petitioner to show by
clear and convincing evidence that the alleged
abuse has occurred. See Ricker v. Ricker, 114
Md. App. 583, 586, 691 A.2d 283 (1997); FL §
4–506(c)(1)(ii). “If the court finds that the
petitioner has met the burden, it may issue a
protective order tailored to fit particular
needs that the petitioner has demonstrated
are necessary to provide relief from abuse.”
Ricker, 114 Md. App. at 586, 691 A.2d 283.
When conflicting evidence is presented, we
accept the facts as found by the hearing court
unless it is shown that its findings are clearly
erroneous. See Md. Rule 8–131(c); Riddick v.
State, 319 M d. 180, 183, 571 A.2d 1239 (1990).
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. See Aiken v. State, 101 Md. App.
557, 563, 647 A.2d 1229 (1994), cert. denied,
755 337 Md. 89, 651 A.2d 854 (1995).
Piper v. Layman, 125 M d. App. 745, 754-55 (1999).
Discussion
Father asserts that the circuit court’s finding of
sexual abuse was clearly erroneous and unsupported
by the evidence presented. Mother contends that
Father’s claim is not preserved for our review, and
further, that the circuit court’s findings were not
clearly erroneous.
We first address Mother’s contention that Father’s
claim is not preserved for our review. Ordinarily, in
order to preserve sufficiency of the evidence issues
for appeal, a party must make a motion for judgment
pursuant to Maryland Rule 2-5197 stating “with particularity all reasons why the motion should be granted.”
Gittin v. Haught-Bingham, 123 Md. App. 44, 48
(1998). Mother does not, however, point to any
authority requiring that a motion for judgment be
made to preserve an a sufficiency claim in cases
involving the issuance of protective orders, nor are
we aware of any such authority.
Indeed, a formal motion for judgment “is not necessary to preserve for appellate review a challenge to
the legal sufficiency of the evidence to support a verdict in a non-jury case.” Slick v. Reinecker, 154 Md.
App. 312, 349-50 (2003). We have explained that in
non-jury cases, “an automatic review of the legal sufficiency of the evidence is provided by Maryland Rule
8-131(c).”8 Id. at 349. Accordingly, we find no merit in
Mother’s preservation argument.9
Turning to the merits, we note that, as an appellate court, “we give due regard to the trial court’s
finding of facts, its resolution of conflicting evidence,
and its opportunity to observe and assess the credibility of witnesses.” Choi v. State, 134 Md. App. 311,
318-19 (2000). Furthermore, “this Court does not sit
as a second trial court, reviewing all the facts to
determine whether an appellant has proven his case.”
Lemley v. Lemley, 109 Md. App. 620, 628 (1996). “Nor
is it our function to weigh conflicting evidence. Our
task is limited to deciding whether the circuit court’s
31
factual findings were supported by substantial evidence in the record. And, in doing so, we must view
all the evidence in a light most favorable to the prevailing party.” Liberty Mut. Ins. Co. v. Maryland
Auto. Ins. Fund, 154 M d. App. 604, 609 (2004) (internal quotations and citations omitted).
At first glance, this case appears to involve a factual dispute of the classic “he said, she said” variety.
Mother testified that she personally observed Father
sexually abuse Vincent. Father, on the other hand,
testified that he did not abuse Vincent, and that
Mother had recently, following an argument, threatened to make sure that Father would not see Vincent.
The trial court was well within its discretion to conclude, as it did, that Mother “came across as a person
who is being truthful, who was extremely disturbed,
shocked at what she was seeing.” The trial court was
also entitled to conclude that Father’s testimony was
not particularly credible because it “seemed quite
rehearsed” and “too calm.”
The trial court was not entitled, however, to make
specific factual findings unsupported by the evidence
presented. When the trial court explained why it
found Mother’s testimony credible, it emphasized specific factual findings it had made based upon the medical records. First, the court found that the redness
around Vincent’s anus was not caused by diaper rash.
Second, the court found that decreased muscle tone
was caused by Vincent having been “groom[ed] . . . bit
by bit for sexual abuse.” These specific conclusions
were simply unsupported by the evidence presented.
With respect to the redness around Vincent’s
anus, the trial court emphasized that the medical
record from Calvert Memorial indicated that “[t]here
was redness around the child’s rectum, not diaper
rash.” The court commented that “[a]ny nurse or doctor can diagnose diaper rash” but “[t]hat’s not what
[the medical staff] saw.” Having reviewed the record
from Calvert Memorial, we note that the record made
reference to “rectal erythema,” or redness, but also
indicated that there was “[n]o external evidence of
trauma.” The medical record did not identify any
potential cause of the redness, nor did the medical
record indicate that the redness was caused by something other than diaper rash. We find the trial court’s
reading of the Calvert Memorial medical record somewhat problematic, given that nothing in evidence
demonstrated that any medical professional at
Calvert Memorial excluded diaper rash as the cause
of Vincent’s rectal erythema. Further, both parties
acknowledged that Vincent had been suffering from
diaper rash at the time the alleged abuse occurred.
With respect to the issue of decreased muscle
tone, the sexual assault exam record from Civista
included the following hand-written positive findings:
(penis — normal exam)
Cut @ 1200 o’clock. No bleeding. + redness
around anus.
Tender to touch anus area. [D]ecreased muscle
32
tone of anus.
Rectal vault empty.
The trial court emphasized that “[t]he report from that
examination [was] damning.” The court noted that there
was “the most incredible observation of decreased muscle tone.” The court found that the decreased muscle
tone was “not possible in a 2-year-old child unless someone has been grooming that child bit by bit for sexual
abuse.” The court further commented that decreased
muscle tone “does not happen naturally. Add that to the
redness and the tear and you have a very clear picture of
sexual abuse.”
To be sure, the medical record from Civista referred
to decreased muscle tone of the anus, as well as to a cut.
There is nothing in the record, however, that provides
any potential causes of Vincent’s cut or decreased muscle tone. The record is devoid of support for the trial
court’s conclusion that decreased muscle tone “does not
happen naturally.” The record similarly fails to provide
evidentiary support for the trial court’s conclusion that
decreased muscle tone is not possible unless a child has
been “groom[ed] . . . for sexual abuse.” Even when viewing the evidence in the light most favorable to Mother,
we are unable to say that the conclusions the trial court
drew from the medical records were supported by substantial evidence.10
The trial court was, of course, free to credit Mother’s
testimony and discount the testimony from Father, having had the opportunity to hear from the witnesses and
assess their credibility. The court explained, however,
that it found Mother’s testimony compelling specifically
because it was corroborated by the medical records
from Calvert Memorial and Civista, emphasizing that the
Civista report in particular was “damning.” The court,
however, drew conclusions from both medical records
that were not supported by the records themselves. We
cannot determine whether, had the trial court not relied
upon unsupported medical conclusions, it would have
found Mother’s testimony as compelling and reached the
same conclusion as to the sexual abuse finding.
Although the trial court was certainly entitled to
consider the credibility of the witnesses when determining the weight to afford a particular witness’s testimony,
the trial court did not have discretion to reach medical
conclusions wholly unsupported by the evidentiary
record. Because the trial court’s conclusions were
unsupported by the record, we hold that the trial court’s
factual finding that Father sexually abused Vincent was
clearly erroneous.11 Accordingly, we reverse the judgment of the Circuit Court for Charles County.12
JUDGMENT OF THE CIRCUIT COURT FOR
CHARLES COUNTY REVERSED. FINAL
PROTECTIVE ORDER ISSUED SEPTEMBER 16,
2013 VACATED. CASE REMANDED FOR
FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION. COSTS TO BE PAID BY
APPELLEE.
Footnotes
1. At the time of the hearing, the facility previously known as
Civista had been renamed the University of Maryland Charles
Regional Medical Center.
2. The definition of “erythema” is “abnormal redness of the skin
due to capillary congestion.” “Erythema,” MerriamWebster.com (Merriam-Webster 2014), http://www.merriamwebster.com/dictionary/erythema.
3. David Lephew and another witness, April Morrow, testified
regarding Father’s interactions with Vincent on other occasions. The court made clear that it was not interested in considering incidents other than those that occurred on September 1,
2013.
4. None of Father’s family members were present during the
alleged incidents of September 1, 2013.
5. In its written order, the court found that Father had committed sexual abuse of a child on September 2, 2013. This appears
to be an error and conflicts with the testimony presented as
well as with the trial court’s oral ruling finding that sexual
abuse occurred on September 1, 2013. The trial court made no
specific findings in either its oral ruling or written order
regarding the yogurt melt or arcade incidents.
6. Since the trial court entered its order in the present case, the
General Assembly has modified the standard of proof necessary for the issuance of a protective order. Instead of requiring
a finding, by clear and convincing evidence, that abuse
occurred, the legislature modified FL § 4-506 to require that the
court find abuse occurred by a preponderance of the evidence.
2014 Maryland Laws ch. 111, 112. The modified standard does
not take effect until October 1, 2014.
7. Maryland Rule 2-519 provides:
(a) A party may move for judgment on any or all of
the issues in any action at the close of the evidence
offered by an opposing party, and in a jury trial at the
close of all the evidence. The moving party shall state
with particularity all reasons why the motion should
be granted. No objection to the motion for judgment
shall be necessary. A party does not waive the right to
make the motion by introducing evidence during the
presentation of an opposing party’s case.
(b) When a defendant moves for judgment at the close
of the evidence offered by the plaintiff in an action
tried by the court, the court may proceed, as the trier
of fact, to determine the facts and to render judgment
against the plaintiff or may decline to render judgment until the close of all the evidence. When a
motion for judgment is made under any other circum-
stances, the court shall consider all evidence and
inferences in the light most favorable to the party
against whom the motion is made.
(c) A party who moves for judgment at the close of
the evidence offered by an opposing party may offer
evidence in the event the motion is not granted, without having reserved the right to do so and to the same
extent as if the motion had not been made. In so
doing, the party withdraws the motion.
(d) In a jury trial, if a motion for judgment is made at
the close of all the evidence, the court may submit the
case to the jury and reserve its decision on the motion
until after the verdict or discharge of the jury. For the
purpose of appeal, the reservation constitutes a denial
of the motion unless a judgment notwithstanding the
verdict has been entered.
8. Rule 8-131(c) provides:
Action tried without a jury. When an action has
been tried without a jury, the appellate court will
review the case on both the law and the evidence. It
will not set aside the judgment of the trial court on
the evidence unless clearly erroneous, and will give
due regard to the opportunity of the trial court to
judge the credibility of the witnesses.
9. We further note that, on appeal, Father asserts that the circuit court’s specific evidentiary findings were not supported by
the evidence presented. To require Father to make such arguments before the trial court — before the trial court had even
issued its evidentiary findings — would have required that
Father be clairvoyant. Simply put, there was no way for Father
to anticipate, prior to the circuit court’s ruling, the alleged
errors of which he now complains.
10. The trial judge may have had outside knowledge of potential causes of decreased muscle tone which informed the
court’s conclusion. We cannot say whether or not Vincent’s
decreased muscle tone was, in fact, caused by sexual abuse.
We simply emphasize that there is nothing in the record to support such a conclusion.
11. This opinion does not suggest that there was insufficient
evidence presented from which the trial court could have made
a sexual abuse finding. Rather, we are constrained to reverse
based upon the specific, unsupported evidentiary findings
made by the trial court in this case.
12. We reach no conclusion whatsoever regarding whether
Father, in fact, sexually abused Vincent. Furthermore, this
opinion does not preclude in any way a determination of sexual abuse in any ancillary custody determination.
33
Guardianship: disability: evidentiary basis
Andreas Konopka
v.
Adventist Healthcare, Inc.
Andreas Konopka
v.
Uma Ahluwalia
Consolidated Cases
Argued Before: Eyler, Deborah S., Kehoe, Nazarian, JJ.
Opinion by Kehoe, J.
Husband’s petitions for guardianship of his disabled wife and autistic adult son precluded his challenge to the sufficiency of evidence that they were
disabled; the court’s appointment of other
guardians was not precluded by a durable power of
attorney signed by wife, nor by the constitutional
right to parent a minor child; and the appointments
were supported by evidence that husband had
neglected wife and son’s needs and did not fully
appreciate the extent of son’s disabilities.
This is a consolidated appeal of two judgments of
the Circuit Court for Montgomery County, the
Honorable Steven G. Salant presiding, entered in
related adult guardianship proceedings. In No. 2502,
September Term, 2013, Andreas Konopka, Ph.D.,
challenges the circuit court’s judgment appointing
Dana Lehrman as guardian of the person of Laurie F.
Fleischman, appellant’s spouse. In No. 2507,
September Term, 2013, appellant contests the
appointment of Uma Ahluwalia as guardian of the
person of Michael Konopka, appellant’s and Ms.
Fleischman’s adult disabled child.1
The appellees are (1) Adventist Healthcare, Inc.
(“Adventist”), the parent company of Shady Grove
Adventist Hospital, which filed the guardianship peti34
tion in Ms. Fleischman’s case; and (2) Ms. Ahluwalia,
who is the Director of the Montgomery County
Department of Health and Human Services (the
“Department”), the petitioner in Michael’s case.
Appellant presents four issues, which we have
reworded:
1. Was there a sufficient evidentiary basis for
the trial court to conclude that Ms.
Fleischman was disabled and in need of a
guardian?
2. Did the trial court err in disregarding the
terms of Ms. Fleischman’s durable power of
attorney designating appellant to be her
guardian of the person where there was no
evidence in the record that Ms. Fleischman
was incompetent when she signed the document?
3. Was there a sufficient evidentiary basis for
the trial court to conclude that Michael was
disabled and in need of a guardian?
4. Did the trial court err in appointing the
Department rather than appellant to be the
guardian of the person of Michael in deprivation of appellant’s constitutional right to
make decisions concerning the care, custody
and control of his child?
We will affirm the judgments of the circuit court.
Background
The facts are known to the parties and there is no
need for us to set them out in detail. Our summary is
based in part on the Statement of Facts in the
Department’s brief, which fairly describes, in the light
most favorable to the prevailing parties, the evidence
presented to the trial court.
Ms. Fleischman
On April 3, 2013, appellant was admitted to Shady
Grove after suffering a heart attack. He told hospital
staff that there were two members of his household
who were unable to care for themselves, specifically,
Ms. Fleischman, aged 59 at the time, who suffered
from multiple sclerosis and other disorders, 2 and
Michael, aged 21, who is autistic. Hospital staff, in
turn, notified the Department’s Adult Protective
Services (“APS”) unit.
An APS social worker contacted appellant at the
hospital. Appellant informed the social worker that
Ms. Fleischman had a “slight diaper rash.” Appellant
told the social worker that neither he nor his wife had
any family to call in case of an emergency and that
Ms. Fleischman did not have the physical or mental
capacity to know when and how to use the telephone.
He did not have any backup care plans for either his
wife or his son. Appellant stated his intention was to
bring his wife home after his recovery from his heart
attack.
When APS personnel arrived at the Konopka residence, they observed an odor of urine and rotting
food. The home was dirty and in disrepair, and full of
clutter and trash. APS personnel found Ms.
Fleischman to be immobile, very thin, and wearing an
adult diaper that was saturated with feces and urine.
They transported Ms. Fleischman to Shady Grove
Hospital where she was admitted with a diagnosis of
failure to thrive and listed in critical condition.
What appellant had characterized as Ms.
Fleischman’s “slight diaper rash” was, in fact, a series
of stage four decubitus ulcers3 that extended from her
pelvis through her buttocks and lower back. She
weighed 77 pounds at the time of admission. Her
treating physician in the Shady Grove Adventist emergency room, Dr. Ramani Nokku, M.D., testified at trial
that she was in poor condition with advanced multiple sclerosis, too weak to answer his questions, very
emaciated, and unable to move. At the time of her
hospitalization, Ms. Fleischman also had not been to a
dentist for at least three years, had not seen her neurologist in a year and a half, had not seen an ophthalmologist in about five years, although she had vision
problems that generally accompany multiple sclerosis, and had not seen a physical therapist for at least
four years.4
Ms. Fleischman eventually was discharged from
the hospital to a nursing home, where she currently
resides. Although her physical condition has
improved, her cognitive abilities remain significantly
impaired. Ms. Fleischman has also been diagnosed
with encephalopathy, a degenerative brain disease. A
psychiatric nurse at the nursing home described Ms.
Fleischman as being “very impaired cognitively. She’s
not able to answer most of the questions that we ask,
such things as where you are, what are you doing,
your name, your date of birth, your family members.”
She did not participate in physical activities and provided mostly monosyllabic responses to questions.
After moving to the nursing home, Ms.
Fleischman exhibited a loss of appetite and began to
lose weight. The nursing home staff noticed that the
weight loss occurred as visits with appellant
increased. The staff decided to restrict appellant to
supervised visits, after which her weight improved.
Appellant was angry and agitated during conversations with staff, and he was unhappy about the supervised visits.
At the conclusion of the APS investigation, the
Department found that Ms. Fleischman had been
neglected by appellant. Megan Walsh, a licensed clinical social worker with the Department’s APS unit,
explained the reasons for her conclusion:
I felt that [appellant’s] judgment was severely
impaired in his handling of her situation. . . .
She was extremely emaciated. She had been
77 pounds when she entered the hospital.
When she exited the hospital, she gained 20
pounds, which indicated to me . . . that she
had not been fed appropriately. There had
been no medical findings that would otherwise explain her extremely low weight. The
fact that [appellant] continued . . . to describe
the condition on [Ms. Fleischman’s] genitalia
and buttocks area as a slight diaper rash, that
it was normal [when] it was horrific to look
at. There was — the infectious disease doctor
said that he had never seen a condition that
bad. And [appellant] did not seem to think
that it was worth getting a medical opinion.
Michael
On the day that appellant was admitted to the
hospital, Judith Libert, a licensed clinical social worker with the Department, went to Michael’s school to
ensure he had a safe overnight placement. The school
had already secured an overnight placement for
Michael at a group home, and had prepared him by
telling him that he would be going there. Ms. Libert
coordinated with Ms. Walsh so that Michael could be
taken to his house to pack for his overnight stay.
Michael remained in the group home for a month
while appellant was hospitalized and admitted to a
rehabilitation facility for further recovery from his
heart attack.
Ms. Libert described Michael as “extremely disabled” by autism and having an “extremely low area
of intellectual functioning.” He has weak adaptation
skills. He responds to questions with simple words
and is unable to have a conversation. Michael
requires 24-hour supervision as well as “at-arm’s
length supervision,” meaning a responsible adult has
to be physically very close to him during the hours he
is awake. According to Ms. Libert, “Michael cannot
process any hazards in his environment. He cannot
read and interpret a stop sign. He cannot respond
appropriately to a red stoplight. He would step into
traffic. And he could not negotiate a hazardous environment.”
When Ms. Libert first began working with
Michael, he had not seen a doctor in about two-andhalf years and was slightly underweight. He also had
35
“very grossly overgrown ingrown toenails and a fungal infection on his feet.” Yet, Michael had full medical insurance coverage. After receiving medical
attention and the group home placement, Michael
adjusted well and had gained nine pounds.
Ms. Libert spoke with appellant on May 2, 2014 to
determine how he felt about Michael remaining in the
group home setting, where he was thriving. Michael
was eligible for permanent placement funding from
the State Developmental Disabilities Administration
(“DDA”), which is generally very difficult to obtain.
Appellant acknowledged that the DDA funding was “a
rare opportunity” but said that he intended to bring
Michael home because “now that Michael had turned
21 he could learn better than he had prior to turning
21; that he wanted to bring Michael home so that he
could teach him himself; and that his belief was that
if he was in a group home he’d just be sitting around
watching TV, he would not be doing anything. . . . He
believed that he was going to be bringing his wife out
of the nursing home, as well.” In Ms. Libert’s opinion,
appellant had “a very distorted perception of his son’s
capabilities.”
The Department found that appellant had neglected Michael by failing to provide his son with routine
medical care, and by unnecessarily restricting his diet
and maintaining an extremely unhealthy living environment. Appellant was not considered a suitable
caretaker because of what the Department termed his
“grossly inappropriate judgments” about his wife’s
condition, apparent inability to recognize a medical
emergency and act on it, and his failure to obtain
medical care for his wife and son.
The Guardianship Actions
In light of the facts set out in the previous paragraphs, the Department filed a petition for the
appointment of a temporary and permanent guardian
of the person and property of Michael. Adventist filed
a similar petition for Ms. Fleischman. Appellant filed
counter-petitions in each case for the guardianship of
the person and property of Ms. Fleischman and
Michael. In each of the counter-petitions, appellant
asserted that the subject of the petition, i.e., Ms.
Fleischman and Michael, respectively, were “disabled.” He requested that he be appointed as guardian
of the person and property in each case. The circuit
court appointed separate counsel for Ms. Fleischman
and Michael, and consolidated the actions for trial.
After a three-day trial, the circuit court granted the
petitions of Adventist and the Department and denied
appellant’s. Specifically, the circuit court found that
Michael and Ms. Fleischman were in need of
guardians and appointed Ms. Ahluwalia, the director
of the Department, as the guardian of the person for
Michael, and Dana Lehrman, Ms. Fleischman’s sister,
as the guardian of her person. The court also appoint36
ed a guardian of the property for both. Written orders
were entered November 13, 2013.
Appellant filed motions to alter or amend the
judgments, which the circuit court denied in an order
entered January 8, 2014. He then filed notices of
appeal on February 4, 2014. Subsequently, the circuit
court terminated the appointment of the guardian of
property.
Analysis
A guardianship is an exercise of an equity court’s
parens patriae authority “to protect those who,
because of illness or other disability, are unable to
care for themselves.” Kicherer v. Kicherer, 285 Md.
114, 118 (1979). Whether to appoint a guardian and
whom to appoint are matters that are “solely in the
discretion of the equity court.” Id. at 119. In Guidash
v. To m e , 211 Md. App. 725, 735-36 (2013), we
explained:
A court can abuse its discretion when it
makes a decision based on an incorrect legal
premise or upon factual conclusions that are
clearly erroneous. We review the contentions
that the circuit court erred as to matter of law
on a de novo basis. . . . [F]indings of fact by a
[court] are set aside only if they are clearly
erroneous.
****
Finally, in very rare circumstances, a
court can abuse its discretion by reaching an
unreasonable or unjust result even though it
has correctly identified the applicable legal
principles and applied those principles to factual findings that are not clearly erroneous. In
North v. North, 102 Md. App. 1, 648 A.2d 1025
(1994), Judge Wilner surveyed a number of
cases defining the concept of “abuse of discretion” and concluded:
The decision under consideration
has to be well removed from any center mark imagined by the reviewing
court and beyond the fringe of what
that court deems minimally acceptable. That kind of distance can arise
in a number of ways, among which are
that the ruling either does not logically follow from the findings upon
which it supposedly rests or has no
reasonable relationship to its
announced objective.
(Citations omitted.)
I. The Sufficiency of the Evidence and the Adequacy
of the Court’s Findings
As required by Md. Code Ann. (1974, 2011 Repl.
Vol.) § 13-705(c)(2) of the Estates and Trusts Article
(“ET”), the petitions filed by Adventist and the
Department were each accompanied by certificates of
two physicians describing the nature of the disabilities of the subject of the action. Appellant asserts that
the circuit court erred in failing to conduct an adequate evidentiary proceeding because none of the certifying physicians testified at trial. Additionally, he
contends that “while the Trial Court did make . . .
finding[s] that [Ms. Fleischman and Michael] were
‘disabled’ within the meaning of [ET] § 13-705(b), the
written order[s] suggest[ ] that the finding[s] [were]
based upon the parties’ agreement or stipulation.”
These contentions are unpersuasive.
There is no requirement that a certifying physician testify unless he or she is requested to do so by
either an interested person (such as appellant) or by
the attorney for the allegedly disabled person. See
Md. Rule10-205(b).5 No such request was filed in this
case. As a result, the case on which appellant relies,
In re Sonny E. Lee, 132 Md. App. 696 (2000), is of little assistance to him. In Lee, this Court held, in pertinent part, that when a petition sought an order
appointing a guardianship of the person, the trial
court is required to hold an evidentiary hearing on the
issue of disability. 132 Md. App. at 712. We further
held that the trial court in that case erred in refusing
to permit the certifying physicians to testify, even
though an interested party had requested that they do
so, and the physicians were available to testify. Id. at
714-15. Finally, we held that the certificates filed in
that case failed to meet the requirements of Rule 102026 because neither certificate contained any explanation of the medical condition giving rise to the disability. Id. at 716-17.
In contrast to Lee, the parties addressed the
issues of Ms. Fleischman’s and Michael’s disabilities
at the hearing, although, to be sure, the primary focus
of the proceeding was on who would be appointed as
guardian. The court’s focus is quite understandable in
light of the fact that all parties, including counsel for
Ms. Fleischman, Michael, and appellant himself, stipulated that the subjects of the proceedings were disabled. In addition to the physician’s certificates, and
the stipulation, there was significant additional evidence before the court as to disability, in the form of
the testimony of Dr. Nokku, the admitting physician,
two licensed clinical social workers, and a clinical
nurse specializing in psychiatry who evaluated Ms.
Fleischman.
Appellant also asserts that the court’s judgment is
defective because its written order refers only to the
parties’ stipulation. However, there is no requirement
that a trial court set out each and every step in its
decision-making process. D a v i d s o n v. S e n e c a
Crossing Section II Homeowner’s Ass’n, 187 Md.
App. 601, 628 (2009). Indeed,“[i]n reviewing a judgment of a trial court, the appellate court will search
the record for evidence to support the judgment and
will sustain the judgment for a reason plainly appearing on the record whether or not the reason was
expressly relied upon by the trial court.” Id. (quoting
Bereano v. State Ethics Comm’n, 403 Md. 716, 755
n.10 (2008) (internal citations and quotation marks
omitted).
Finally, and what is completely and independently
dispositive, appellant has affirmatively waived his
right to challenge the adequacy of the physician’s certificates because he relied on the same certificates in
his counter-petitions, and stipulated to the trial court
that Ms. Fleischman and Michael were disabled. It is
far too late in the day for appellant to take the position that there was any deficiency with the evidentiary basis for the trial court’s disability findings. See
Dashiell v. Meeks, 396 Md. 149, 170-71 (2006) (“[O]ne
who, without mistake induced by the opposite party,
has taken a particular position deliberately in the
course of litigation, must act consistently with it. . . .”
(citation and quotation marks omitted)); Kicherer,
285 Md. at 117 (“Put another way, as to related claims
adjudicated in the same action, one cannot ‘have his
cake and eat it too’ by accepting the rewards of those
portions of the decree he finds palatable while reserving the right to contest the ba lance.”) (citing
Silverberg v. Silverberg, 148 Md. 682, 689 (1925)).
II. The Guardians
Appellant also contests the trial court’s selection
of guardians of the person. He asserts that the court
should have appointed him as guardian of Ms.
Fleischman and Michael rather than Ms. Lehrman and
Ms. Ahluwalia. He bases his contention on ET § 13707(a), which dictates the priorities for court-appointed guardians. Before addressing his specific contentions, a very brief background discussion is useful.
A court’s authority to appoint a guardian for an
adult is contained in ET § 13-707.7 The statute sets out
a series of categories of possible guardians by order
of priority. As a general rule, a court must appoint the
person with the highest priority as listed in ET § 13707(a). However, ET § 13-707(c)(1) states: “For good
cause, the court may pass over a person with priority
and appoint a person with a lower priority.”
The trial court recognized that appellant had priority for the appointment as guardian for Ms.
Fleischman and Michael, but found that there was
good cause to pass over appellant as guardian for
both individuals. Appellant contends that the trial
court abused its discretion in failing to honor the
terms of a durable power of attorney (“DPA”) that Ms.
Fleischman signed in 2012. The DPA nominated appellant as Ms. Fleishman’s guardian. Appellant also
asserts that, when the trial court selected Ms.
Ahluwalia as Michael’s guardian, the court ignored
what appellant characterizes as his fundamental right
to raise Michael. We disagree with both contentions.
37
The Appointment of Ms. Lehrman as Ms.
Fleischman’s Guardian
The trial court appointed Dana Lehrman, Ms.
Fleischman’s sister, as guardian of her person.
Appellant contends that the trial court abused its discretion in doing so because it disregarded the terms
of the DPA executed by Ms. Fleischman in 2012 that
nominated appellant as guardian. Appellant points to
the fact that Alan Frankle, Esquire, the attorney who
prepared the instrument, testified that he did so only
after assuring himself that Ms. Fleischman had the
capacity to execute a power of attorney.
Ms. Fleischman’s mental capacity in 2012 is of
secondary importance. The terms of the power of
attorney do not control the trial court’s appointment.
“The guardian’s authority is not derived from the
ward, but from the appointing court for which the
guardian acts as agent.” Mack v. Mack, 329 Md. 188,
200 (1993). “In reality, the court is the guardian; an
individual who is given that title is merely an agent or
arm of that tribunal in carrying out its sacred responsibility.” Id. at 201. Ms. Fleischman’s nomination of
appellant as her guardian of choice was only that, a
nomination. The court itself has the discretion to
appoint the most appropriate individual as guardian.
Kicherer, 285 Md. at 119.
In the case before us, the trial court found that
there was good cause to pass over appellant as
guardian of Ms. Fleischman’s person because the evidence established that: (1) appellant had neglected
Ms. Fleischman, resulting in serious medical complications; (2) he refused to acknowledge any responsibility for his spouse’s dolorous condition, (3) he acted
inappropriately in his visits to his spouse; and (4) Ms.
Fleischman’s condition improved significantly when
the nursing home staff restricted appellant’s visitation
privileges. There was substantial evidence to support
each of the court’s findings and there is no basis for
us to conclude that the court abused its discretion in
passing over appellant in favor of Ms. Lehrman under
the circumstances.
The Appointment of Ms. Ahluwalia as Michael’s
Guardian
The trial court appointed Ms. Ahluwalia as the
guardian of Michael’s person. Appellant contends that
this appointment violates his fundamental right as a
parent to make decisions for the care, custody, and
control of his son. Appellant relies on cases that
stand for the proposition that parents have a fundamental right to raise their minor children, which
includes making decisions regarding their care. See
Troxel v. Granville, 530 U.S. 57, 66 (2000) (stating
that parents have a fundamental right to make decisions concerning the care, custody, and control of
their children); see also McDermott v. Dougherty, 385
Md. 320 (2005) (stating that parents are more entitled
to the custody of their natural children because they
38
have a fundamental right to raise their children).
The fundamental parental right at issue in Troxel,
McDermott and similar cases is not implicated in this
matter. The fundamental right at issue in those cases
was a parent’s fundamental right to raise their minor
children. S e e Tr o x e l , 530 U.S. at 60; s e e a l s o
McDermott, 385 Md. at 323. Michael is no longer a
minor. Appellant has not directed us to any case that
holds that an adult has an inherent, much less a constitutionally-protected, right to serve as a guardian of
the person of another adult and we know of none.
Assuming, solely for purposes of analysis, that
appellant has such a fundamental right, the trial
court’s decision would still stand. The constitutionally-based limitations on the state’s parens patriae right
to protect minor child have been discussed at length
in Maryland. See, e.g., In re Adoption of Jayden G.,
433 Md. 50 (2013); In re Adoption/Guardianship of
Rashawn H., 402 Md. 477 (2007). Maryland law limits
a parent’s fundamental right to raise their minor children when the exercise of that right interferes with
the child’s best interest. See Jayden G., 433 Md. at 67.
“[W]here the fundamental right of parents to raise
their children stands in the starkest contrast to the
State’s effort to protect those children from unacceptable neglect or abuse, the best interest of the child
remains the ultimate governing standard.” Id. (quoting Rashawn H., 402 Md. at 496).
Guardianship proceedings for disabled adults and
the panoply of judicial remedies available for the protection of minor children share one thing in common
— the protection of the ward is the paramount goal of
the court. Compare Jayden G., 433 Md. at 67 (“The
best interest of the child remains the ultimate governing standard[.]”); with Mack, 329 Md. at 203 (“A statutory preference in the appointment of a guardian,
although seemingly mandatory and absolute, is
always subject to the overriding concern of the best
interest of the ward.”) (emphasis added)). Any suppositional rights appellant may have as Michael’s
father, do not, under any circumstance, trump
Michael’s best interests.
There was ample evidence before the trial court
that Michael’s best interests are served by the
appointment of Ms. Ahluwalia. The evidence indicated that appellant did not fully appreciate the degree
of Michael’s disabilities and had neglected Ms.
Fleischman to her serious detriment. The evidence
also showed that Michael was malnourished and he
suffered from an untreated, painful foot condition.
The law does not require actual harm before intervening to protect an individual who cannot care for himself. See In re Nathaniel A., 160 Md. App. 581, 596
(2005) (A “ judge need not wait until the child suffers
some injury before determining that he is neglected. .
. . The purpose of the act is to protect children — not
to wait for their injury.” (internal quotation marks and
citation omitted)). The trial court did not abuse its
discretion in appointing Ms. Ahluwalia as guardian of
the person for Michael.
In conclusion, our review of the record leaves us satisfied that the trial court’s findings on the disputed factual issues were supported by substantial evidence and
that it correctly understood the applicable legal principles. In light of the circumstances, we cannot say that
the court abused its discretion in passing over appellant
in favor of the guardians it actually appointed.
THE JUDGMENTS OF THE CIRCUIT
COURT FOR MONTGOMERY COUNTY
ARE AFFIRMED. APPELLANT TO PAY
COSTS.
Footnotes
1. To avoid confusion, and for brevity’s sake, we will refer
to Mr. Michael Konopka as “Michael.”
2. Ms. Fleischman’s past medical history includes hypothyroidism, optic neuritis, depression and possible schizoaffective disorder.
3 . “ D e c u b i t u s u l c e r s ” a r e a l s o k n o wn as bedsores.
According to the National Pressure Advisory Council, a
“stage four” decubitus ulcer involves:
Full thickness tissue loss with exposed bone, tendon or muscle. . . . Category/Stage IV ulcers can
extend into muscle and/or supporting structures
(e.g., fascia, tendon or joint capsule) making
osteomyelitis or osteitis likely to occur. Exposed
bone/muscle is visible or directly palpable.
http://www.npuap.org/resources/educational-and-clinicalresources/npuap-pressure-ulcer-stagescategories/ (last visited August 18, 2014).
4. The evidence also established that Ms. Fleischman also
suffered from an untreated gynecological condition.
5. Rule 10-205(b) states in pertinent part:
Each certificate filed pursuant to Rule 10-202 is
admissible as substantive evidence without the
presence or testimony of the certifying health care
professional unless, not later than 10 days before
trial, an interested person who is not an individual
under a disability, or the attorney for the alleged
disabled person, files a request that the health care
professional appear to testify.
6. Rule 10-202 requires that each certificate include “a brief
history of the person's involvement with the disabled person,” and the person’s opinion of “the cause, nature, extent,
and probable duration of the disability.” When Lee was
decided these provisions were contained under Rule 10202(a)(1), but are now included under Rule 10-202(b).
7. ET § 13-707(a) states:
(1) A person, agency, or corporation nominated by
the disabled person if the disabled person was 16
years old or older when the disabled person signed
the designation and, in the opinion of the court, the
disabled person had sufficient mental capacity to
make an intelligent choice at the time the disabled
person executed the designation;
(2) A health care agent appointed by the disabled
person in accordance with Title 5, Subtitle 6 of the
Health — General Article;
(3) The disabled person’s spouse;
(4) The disabled person’s parents;
the will of a deceased parent;
(6) The disabled person’s children;
(7) Adult persons who would be the disabled person’s heirs if the disabled person were dead;
a person caring for the disabled person;
(9) Any other person, agency, or corporation considered appropriate by the court; and
(10) For adults less than 65 years old, the director
of the local department of social services or, for
adults 65 years old or older, the Secretary of Aging
or the director of the area agency on aging, except
in those cases where the department of social services has been appointed guardian of the person
prior to age 65. Upon appointment as guardian,
directors of local departments of social services,
directors of area agencies on aging, and the
Secretary of Aging may delegate responsibilities of
guardianship to staff persons whose names and
positions have been registered with the court.
39
Custody: modification: tie-breaking authority
Peter G. Schmidt
v.
Jessica D. Schmidt
Argued Before: Eyler, Deborah, S., Kehoe, Nazarian, JJ.
While mother’s temporary relapse into drug use
constituted a material change in circumstances that
justified a change in the agreed-upon custody
arrangement, her relapse did not require the court
to divest her of custody as a matter of law, especially given her sobriety and progress since the relapse;
rather, it was within the court’s discretion to
increase father’s physical custody and transfer tiebreaking authority to him.
Peter Schmidt (“Father”) and his ex-wife, Jessica
Schmidt (“Mother”), entered into a Consent Order in
2011 that, among other things, spelled out agreed
custody terms for their son, John (“Child”). The parties agreed to joint legal custody, a nd Mother
assumed primary physical custody and tie-breaking
authority in the event of disagreements about Child’s
upbringing. In the summer and fall of 2012, Mother
relapsed into substance abuse. Father filed a Motion
to Modify Child Custody (the “Motion”) in the Circuit
Court for Allegany County and sought sole legal custody and primary physical custody. After a trial, the
circuit court (adopting a master’s recommendations)
granted the motion in significant part: the court continued joint legal custody but shifted tie-breaking
authority to Father, ordered joint physical custody,
required that Mother submit to monthly drug testing,
and amended Father’s visitation schedule. Father
appeals and we affirm.
I. Background
Child was born on December 17, 2009, and his
parents divorced on February 3, 2012. On June 29,
2011, they entered into a consent order (the “2011
Order”) governing legal and physical custody:
• The parties shared joint legal custody;
• Mother had tie-breaking authority in the
event of disagreements;
• Mother had primary physical custody;
40
•
Father had visitation with Child every other
weekend Friday through Sunday, the interim
weekends Friday through Saturday, and two
evenings a week; and
• During the summers, Child spent two days
with Father, then three days with Mother.1
The parties followed this schedule without incident until October 9, 2012, when Mother filed a petition for contempt, in which she claimed Father had
refused to return Child to her. The following day,
Father filed the Motion, along with a request for
emergency hearing. He claimed a material change of
circumstances, specifically that (1) Mother had discontinued substance abuse treatment and had
relapsed; (2) Mother was using illegal drugs “to the
detriment of her judgment and the Child’s welfare”;
(3) Mother was “self-medicating” with bath salts2; and
(4) Mother’s “state of mind [had] deteriorated and
she suffer[ed] from, among other afflictions, delusions.” Mother did not oppose Father’s companion
motion, pursuant to Maryland Rule 2-423, to compel a
mental health examination.3
The master held a hearing over six days in spring
and summer of 2013 (the “Hearing”). At the Hearing,
Mother testified that she had not used any illegal or
controlled dangerous substances after June 29, 2011.
(She conceded that she’d taken bath salts on one
occasion in July 2012, but claimed they were legal at
the time.) She admitted to being a drug addict, but
said that she had been participating in Narcotics
Anonymous since October 2012.
Father testified about the two periods of time
that led him to seek custody: first, when Mother used
bath salts in July 2012, and second, when she tried to
wean herself off Suboxone too quickly over
Columbus Day weekend in October 2012. He recounted several incidents during these periods when
Mother appeared to be hallucinating, and he provided
a statement from Mother’s mother, Angie Fulton, who
recounted the specifics and opined that Child should
not remain in her daughter’s custody.
Ms. Fulton and her fiancé, Robert Rice, testified
(in unfavorable terms) about Mother’s struggle with
addiction and her ability to parent. Mr. Rice opined
that Child was not safe in Mother’s care; Ms. Fulton
recalled the Columbus Day weekend episode and testified that Mother
act[ed] totally irrational and [made] statements such as . . . [that t]here are tics on her
and she is burying them in the back yard. She
admits she is an addict and needs to see a
psychiatrist. . . . I once again, wholeheartedly
believe that she needs [to be] evaluated by a
mental health [practitioner.]
Both later disavowed these statements (they apparently had not appreciated that Father intended to use
them in a child custody hearing). But Ms. Fulton also
signed Father’s Petition for Emergency Evaluation on
October 9, 2012, and asserted there that Mother was
“screaming [and] yelling; acting erratic; making statements that she has buried tics in the backyard and is
planning on using a lamp cord,” among other things.
Ms. Fulton later suggested that she was “pressured”
to make those statements, but the master found both
Ms. Fulton’s and Mr. Rice’s attempts to repudiate their
earlier statements “not to be credible.”4
Father also testified about Mother’s behavior on
Columbus Day weekend. He said that Mother had
used bath salts that left her agitated and hallucinating. Over the course of the next week, Father refused
to return Child to Mother, and the two met the following week when Mother “declared herself clean,” told
Father she was attending Narcotics Anonymous, and
expressed the wish to “get things back on track.”
After the Columbus Day incident and their meeting,
the parties worked out a new arrangement: Mother
picked Child up from preschool, brought him to
Father’s house, and cared for him in the afternoons.
It’s not clear whether the parties formalized this
change in structure, but Mother, at least, viewed it as
temporary, and sought to resume following the terms
of the Consent Order when she picked Child up from
school on March 19, 2013.
Apparently Father acquiesced, although he didn’t
think Mother’s care for Child was ideal. Father
claimed that when Child stayed with Mother, he did
not get as much sleep, “said ‘No’ more often, [was]
tired, smelled of urine at school, napped later in the
day and had a more erratic sleep schedule.” Child’s
teacher, Sherry Van Meter, similarly testified that
“[o]n three recent occasions [Child] has been tired
and has fussed at the time he was dropped off at
school. On one occasion in March, Ms. Van Meter
noticed that [Child] smelled of urine after he had
spent time with [Mother].”
Janet Hendershot, Ph.D., the licensed psychologist who examined Mother and issued a report about
her mental health status, gave mixed (even contradictory) reviews of Mother’s mental stability and her
concomitant ability to parent:
[Mother has a] substantial impairment of
her ability to perceive people and events
realistically. Her poor reality testing is likely to detract from her ability to exercise
good judgment as a parent. In particular,
she may be prone to forming mistaken
impressions of what children’s behaviors
signify and to making ill-advised childcare
decisions without appreciating the consequences of those decisions. . . . [T]here is
some suggestion . . . of dysphoric mood and
negative cognitions of a type often associated
with a major depressive disorder or a chronic
disposition to becoming depressed. Such
emotional disturbance could lead to a lack of
energy and enthusiasm along with a degree of
discouragement and despondency that interfere with her ability to function effectively as
a parent. Her above average tolerance for
stress should help her remain calmer and
less flustered than most people in crisis situations. . . . Her thoroughness and adequate
attention to relevant considerations should
facilitate her being able to make appropriate
decisions as a parent. However, there is a
degree of impaired reality testing that may
interfere with her judgment on occasions, preventing her from anticipating the consequences of her actions and appreciating the
boundaries of appropriate behavior in a variety of situations. This is likely to occur primarily in situations that do not provide clear
and obvious clues as to what constitutes
appropriate behavior; and they are likely to
interfere with her functioning as a parent. . . .
Because of her apparent preference for
detached rather than intimate relationships,
she is less likely than most people to be a
n u r t u r a n t i n d i v i d u a l . . . . Therefore,
although not by nature a nurturant person,
she may be a caring person who is not indifferent to the best interests of others, including her children.
(Emphasis added.) The master noted that Mother had
not been “completely candid” about her prior drug
use with Dr. Hendershot, although Mother gave
detailed testimony about it at the Hearing when called
by Father as an adverse witness.
The Hearing testimony also revealed that Child
had developmental delays relating to speech and
“expressive language.” A licensed social worker,
Lizbeth Stakem, testified that she had visited Mother’s
home as part of the services Child received since
early 2012. Ms. Stakem testified that Ms. Schmidt’s
home was cluttered, and she was particularly disturbed by a rabbit that ran loose and left urine and
feces throughout the house. She also testified at the
Hearing that Child — then just over two-and-a-half
41
years old — left the home during her visit without
Mother noticing.
Margaret Brown, a special education instructor
who visited Mother’s house, provided similar testimony about its physical condition. When she assessed
Child at an October 2012 visit, she observed (according to the master) “that [Mother] was not feeling well;
[Mother] appeared shaky and was rocking back and
forth. [She] admitted to Ms. Brown that she was not
taking her medication as prescribed.” In spite of these
observations, Ms. Brown “did not feel that she had
observed any neglect worthy of reporting” (emphasis
added).
Mother called two friends to testify, and both
attested to her ability to parent. Mother had watched
Stephanie Wiseman’s child on occasion, and her longtime friend, Jennifer Roddy, “praised [Mother] as a
parent.” She also testified that Mother’s home was
“less cluttered and dirty since [Mother] has begun
dealing with her addictions.” Neither Ms. Wiseman
nor Ms. Roddy was aware that Mother used drugs
after she had Child.
Mother testified that when she and Father married, he knew about her struggles with addiction. She
also testified that she and Father eased into an
arrangement over the fall of 2012 under which she
took on more of Child’s care, and that she did not
know Father was seeking full custody, although she
seemed to understand that her drug use “negatively
affect[ed] her ability to take care of [Child].”
After reviewing the evidence presented at the
hearing, the master found in the written report
(which spanned nearly forty pages) that Mother’s
drug use constituted a material change of circumstance that “rendered her less able to provide proper
care and attention to [Child] on several occasions.”
(Emphasis added.) But the Master also concluded
that she had significantly improved her situation
since the drug use ended.5 The master recommended
modifications to the Consent Order, including a recommendation of joint legal and physical custody with
tie-breaking authority to Father, and Father filed
exceptions. He did not oppose the master’s proposed
findings of fact, but argued that the “totality” of the
evidence “lead[s] one to the conclusion that [Mother]
is unfit to have legal and physical custody of Child.”
The circuit court held a hearing on Father’s
exceptions on December 19, 2013. Counsel for Father
stressed the cluttered condition of Mother’s home and
argued that she was less able to care for Child, while
Father was in a better position to address Child’s
speech delays. Although Father did not have a specific proposal, his counsel suggested generally that the
court wait a period of some months before permitting
Mother to have overnight visits, after which the parties could return to court and revisit the issue if she
maintained her sobriety. Mother’s counsel argued that
42
the circuit court could not revisit the master’s report
and recommendations because Father had not
ordered the transcript of the Hearing before the master, leaving the court with no “basis to review the evidence.” Her counsel acknowledged that Mother had
hit a low on Columbus Day weekend 2012, but argued
that she had remained clean since that time and that
the drug testing recommended by the master would
ensure that she stay that way.
The same day, the circuit court denied Father’s
exceptions and adopted the master’s findings and recommendations. The modified Order did not change
either parent’s time with Child dramatically, but did
give Father substantially more decision-making
authority than he previously had:
• The parties continued to have joint legal custody of Child;
• Father now had tie-breaking authority in the
event of disagreements;
• Father and Mother shared physical custody;
• Father had Child every weekend (rather than
every other weekend);
• Father had one weeknight visit with Child
per week (rather than two), but for four
hours each visit instead of three;
• Summers were spent four days with Father,
then three days with Mother; and
• Mother was required to submit to monthly
urinalysis at her expense, and to provide the
results to Father (a new term); she had to
submit to blood testing, at his expense, upon
his request.
Father filed a timely notice of appeal.
I. Discussion
Although the parties, and especially the Child,
have experienced real difficulties in recent years, the
order before us was entered at a time of relative stability and hopefulness. The master’s decision, which
the circuit court adopted, recognized that the Consent
Order’s allocation of legal and physical custody
placed too much responsibility in the hands of
Mother. At the same time, both the master and the circuit court were persuaded that Mother had made
progress and that Child’s best interests were served
by a modified arrangement, one that relied more on
Father’s good judgment, rather than by removing
Mother from Child’s life, even temporarily. To be sure,
reasonable masters and judges could disagree about
precisely how to calibrate this balance. But Father
would have us substitute our judgment for the circuit
court’s on a wholesale basis, 6 and we are not convinced that this is the unusual case in which the circuit court abused its discretion in allocating legal and
physical custody as it did. We will do our best to
answer here the entirely reasonable questions
Father’s counsel asked (on Father’s behalf) at oral
argument, i.e., what logic led the master to the decision the circuit court adopted, and how do the undisputed facts support their decisions?
We answer these questions, of course, in the context of our role as an appellate court. When reviewing
a trial court’s custody determination, we first review
the trial court’s factual findings and reverse only if we
find clear error. In re Yve S., 373 Md. 551, 586 (2003).
Second, we review legal questions de novo and can
reverse errors of law if they are not harmless. Id.
Last, and most importantly for our purposes, we
review the overall child custody decision for an abuse
of discretion: “when the appellate court views the
ultimate conclusion of the chancellor founded upon
sound legal principles and based upon factual findings that are not clearly erroneous, the chancellor's
decision should be disturbed only if there has been a
clear abuse of discretion.” Id.; see also Beckman v.
B o g g s , 337 Md. 688 (1995), o v e r r u l e d o n o t h e r
grounds by Koshko v. Haining, 398 Md. 404 (2007).
Our job here is not to decide whether we would make
the same decision the circuit court did, or even
whether we think the court’s decision is right.
Instead, our job is to determine whether the circuit
court’s decision falls within the range of decisions a
reasonable judge could enter based on the record
before it.
Again, Father does not challenge the master’s factual findings, which the circuit court adopted — he
challenges the way the master and circuit court
applied those facts to the law. He contends that
Mother’s drug use after the entry of the 2011 Order
constituted a material change of circumstances, and
an important one: as a result of her drug use, she no
longer could care properly for Child. Father believed
the only way to “safeguard . . . Child from [Mother’s]
addictions, mental instability, poor judgment and
overall unfitness” was to “place [Child] in [Father’s]
permanent care.” He asserts that he immediately
addressed Child’s learning delays when he obtained
custody, that he “provides the better home,” and that
his “parenting skills have never been in questions
[sic].” He contrasts Mother’s behavior by pointing to
the condition of her home, her inability to “adher[e]
to a reasonable plan” for Child’s routine, and most
important, he claims that Mother “could not care for
[Child] while ‘high,’ hospitalized for an overdose, or
experiencing a mental break with reality.”
In response, Mother cites numerous factual findings by the master that, she says, support his recommendation to permit her to share legal custody with
Father.7 She argues as well that she has been committed to treatment since November 2012, that she has
been “clean and straight” since that time (and has
provided urinalysis test results to Father), and that
the circuit court’s decision properly accounts for the
possibility she might relapse.
Father mostly “won” below (to the extent this
case is at all about winning or losing) — he asked the
court to step in and give him greater physical and
legal custody, and he got the bulk of the additional
time and authority he requested — and Mother does
not challenge the new custody allocation. For us,
then, the question is whether the circuit court abused
its discretion in not awarding sole custody to Father,8
and we hold that the court’s decision to adopt the
master’s recommendation falls within the broad range
of discretion the law affords it. The Court of
Appeals’s decision in Taylor v. Taylor, 306 Md. 290
(1986), established the analysis for whether and when
joint legal custody is appropriate, and we recently
reiterated that a court should consider a variety of
factors in determining the best interests of the child,
which is the ultimate goal of this process:
In particular, the court must examine
“numerous factors” and weigh the advantages
and disadvantages of the alternative environments. [Montgomery Cnty. Dep’t of Soc.
S e r v s . v. S a n d e r s , 38 Md. App. 406, 420
(1978).] “The criteria for judicial determination includes, but is not limited to, 1) fitness
of the parents . . . 2) character and reputation
of the parties . . . 3) desire of the natural parents and agreements between the parties . . .
4) potentiality of maintaining natural family
relations . . . 5) preference of the child . . . 6)
material opportunities affecting the future life
of the child . . . 7) age, health, and sex of the
child . . . 8) residences of parents and opportunity for visitation . . . 9) length of separation
from the natural parents . . . ; and 10) prior
voluntary abandonment or surrender . . .” Id.
(internal citations omitted). “While the court
considers all the above factors, it will generally not weigh any one to the exclusion of all
others. The court should examine the totality
of the situation in the alternative environments and avoid focusing on any single factor
. . .” Id. at 421 (internal citations omitted).
Karanikas v. Cartwright, 209 Md. App. 571, 590, cert.
granted, 432 Md. 211, cert. dismissed, 436 Md. 73
(2013).
We take a two-step approach when reviewing the
trial court’s decision to modify custody. See Gillespie
v. Gillespie, 206 Md. App. 146 (2012). Similarly to this
case, Mr. Gillespie sought sole legal custody of his
children due to their mother’s deteriorating mental
health, which he argued constituted a material change
in circumstance. First, we explained that “[a] material change of circumstances is a change in circumstances that affects the welfare of the child,” and we
concluded that the worsening of mother’s mental
health (not her mental illness, which had existed
43
throughout the parties’ marriage) constituted a material change in circumstance because of its potentially
detrimental effect on the child. Id. at 171 (citing
McMahon v. Piazze, 162 Md. App. 588, 594 (2005)).
Second, we held that that material change in circumstances justified a modification of the custody agreement:
After hearing significant evidence and considering the best interests of the children, the
court reasonably concluded that the deterioration of Mother’s mental health had an
adverse [effect] on the children and that
reducing the amount of time the children
stayed at Mother’s home would be in their
best interests. We conclude that the circuit
court’s factual findings were not clearly erroneous, and the circuit court’s ruling was
founded upon sound legal principles. The circuit court’s decision was not “well removed
from any center mark imagined by the reviewing court and beyond the fringe of what that
court deems minimally acceptable.”
Id. at 175 (quoting In re Yve S., 373 Md. at 583-84).
We agree that Mother’s drug use constituted a
material change in circumstances, and that the impact
of her relapse (and the potential instability of her
ongoing sobriety) on Child justified a change in the
previously agreed custody arrangement. We disagree,
though, that Mother’s relapse required the court, as a
matter of law, to divest her of custody. The master
pointed to the July 27, 2012 bath salts incident and
the Columbus Day weekend 2012 incident as demonstrating the change in circumstances, but he then
found that Mother “is now involved in addiction treatment and mental health counseling.” The master then
went through the numerous factors that bear on a
court’s decision regarding legal custody based on
Taylor, noting along the way certain factors that
implicitly negatively affected Mother’s ability to parent: she was unemployed, she depended on Ms.
Fulton for housing, “[she] is a drug addict who may
be in remission,” and “she allowed her home to
become filthy, allowing a pet rabbit to roam freely in
the house.” But the master went on to find facts that
counseled in favor of allowing Mother to continue in
some custodial role: she was willing to share legal
custody, she “voluntarily entered addiction and mental health treatment,” and she had cleaned up her
home since the complaints about its condition. The
master also noted that Child “can maintain a close
relationship with both of his parents and his extended
family as long as he has frequent contact with both
parents.”
No one disputes that the incidents where Mother
exhibited delusional, erratic behavior correlated
directly to her use of illegal substances, and that
when she took drugs, her ability to care for Child
declined precipitately. The timing of these incidents
44
matters. Mother was enrolled in a Suboxone program
and undergoing regular urinalysis testing when the
parties entered into the Consent Order in June 2011.
She used amphetamines in March 2012, then abused
“bath salts” three months later, in June 2012. Then,
over Columbus Day weekend 2012, she suffered hallucinations that were likely the result of withdrawal
from Suboxone (and possibly because of further use
of bath salts) that required hospitalization. But that is
not the only period of time the master and the court
considered, and no one disputes that Mother has not
used drugs, and has been sober, since October 2012
— i.e., for nearly a year by the time of the master’s
report in September 2013, for well over a year by the
time the circuit court entered its Order in December
2013, and for nearly two years at this writing. By his
own account, Father “last observed [Mother] to be
delusional on Columbus Day weekend,” which suggests too that Mother has, at least for now, stayed the
course and continues to abstain from using illegal
substances.
The record also revealed that once Mother
stopped taking drugs, she could and did care for Child
competently. Father seemed to agree — after he
(quite reasonably) refused to return Child to Mother
after the Columbus Day incident, he agreed in March
2013 to resume their prior custody schedule. And
although Father and one of Child’s teachers suggested
in testimony before the master that Mother was not a
model housekeeper, no one suggested that Mother
was abusing or neglecting Child once she stopped her
drug use. So, for example, whereas Ms. Stakem had
observed poor conditions in the home in August 2012,
Ms. Brown testified that she did not see any
reportable problems when she visited Mother in
October of that same year.
The Court of Appeals directs us, and wisely so, to
orient our analysis on the child’s best interests going
forward: “It is their future which is involved; the past
is of interest only to the extent to which it may illuminate the path which lies ahead.” Raible v. Raible, 242
Md. 586, 594 (1966). In Raible, the Court held that the
chancellor focused properly on the mother’s ability to
“pull herself out of the spiritual morass into which
she had sunk, and it is her rehabilitation which the
Chancellor found to be determinative in deciding
what was best for her children.” Id. The same principle applies here to Mother, who proved to the master’s satisfaction that she was on the path to recovery,
at least to the extent that he and the court found that
Mother could share physical and legal custody of
Child in a manner that served Child’s best interests.9
Father views his parenting abilities as superior to
Mother’s. He testified that he “believes that he exercises better judgment than [Mother] because he has
the perspective to see the long-range implications of
decisions.” And although the master did not explicitly
make such a finding, we do not disagree — Father has
been a good, loving, and stable parent, and he has
stepped in (and stepped up) when Mother has fallen
down. But Father’s ability to parent better does not
compel the circuit court to take away Mother’s
chance to parent altogether. The court had the discretion to allow Mother to continue keeping Child
overnight, and its findings of fact relating to Mother’s
care backed up that decision. Again, she has not made
any missteps since the fall of 2012 when she stopped
using drugs. And although her parenting skills might
not be perfect (or even as good as Father’s), a lessthan- perfect parent is not an unfit parent. See In re
Barry E., 107 Md. App. 206, 220 (1995) (holding in the
context of a parent vs. foster parent dispute that
“[t]he fact that [a natural parent] has a mental or emotional problem and is less than a perfect parent or
that the children may be happier with their foster parents is not a legitimate reason to remove them from a
natural parent competent to care for them in favor of
a stranger”). Of course, Father’s assumption of tiebreaking authority gives him authority over important
child-rearing decisions that Mother previously had, so
he can bring his judgment to bear in Child’s favor in
very real ways, and the court’s requirement that
Mother submit to monthly drug testing should give
Father some additional peace of mind.
The law does not require masters or circuit courts
to connect each and every decision to a specific set of
facts from the record. Each child and family that
comes before the master and the court is unique, and
decisions about whether and how to allocate custody
between parents require judgment, as well as a measure of prediction. Up until Mother relapsed, Father
had agreed to share physical and legal custody with
her, and the court had endorsed that decision. There
is no doubt that as a result of Mother’s relapse in
2012, Child’s best interests required a change in the
custody arrangements, and specifically changes that
increased Father’s role in making important childrearing decisions. But although the law would have
allowed the circuit court to award sole legal or physical custody (or both) to Father, it had a broad range
of discretion to fashion an appropriate set of solutions for this child and this family, and we find that
the master’s recommendations and the court’s decisions here represent a proper exercise of that discretion.
ALLEGANY COUNTY AFFIRMED.
Footnotes
1. The Consent Order provided that once Child reached age
seven, the summer pattern would change to three days with
Father, then four days with Mother.
2. “Bath salts” is the street term for an amphetamine, typiTheDailyRecord.com/Maryland-Family-Law
cally methylenedioxy-pyrovalerone, that unfortunately
became popular in 2009 and 2010. Bath salts can be ingested orally, snorted, or (most perilously) injected. The most
common side effects include hallucinations, palpitations,
paranoia, panic attacks, and occasionally, violent behavior.
S e e g e n e r a l l y Timothy P. Stackhouse, R e g u l a t o r s i n
Wackyland: Capturing the Last of the Designer Drugs, 54
Ariz. L. Rev. 1105 (2012).
3. Maryland Rule 2-423 provides for a mental or physical
examination “[w]hen the mental or physical condition or
characteristic of a party or of a person in the custody or
under the legal control of a party is in controversy . . .” Id.
4. The master also found support for this conclusion in the
testimony of Father’s sister, Allison Schmidt-Woods. The
master noted that “she overheard Ms. Fulton admit to lying
during her testimony about [Mother’s] drug use, [and] not
informing the court truthfully about how bad the drug use
had been,” and that “Ms. Fulton’s testimony about her
daughter’s drug use (and her later denial of any conversation admitting to a lack of candor with the Court) is found
not to be credible.”
5. Broadly, the court appears to have taken the appropriate
language from Taylor v. Taylor, 306 Md. 290 (1986), and
Montgomery Cnty. Dep’t of Soc. Servs. v. Sanders, 38 Md.
App. 406 (1977), both of which we address in greater detail
below.
6. Father presents two issues on appeal:
1. Did the trial court commit a clear abuse of discretion in awarding the parties joint legal custody with tie-break authority to [Father] and, if
so, does the evidence warrant an award of sole
legal custody to [Father]?
2. Did the trial court commit a clear abuse of discretion in awarding the parties shared physical
custody of . . . Child and, if so, does the evidence
warrant an award of sole physical custody to
[Father] with an allocation of supervised visits
or, alternatively, unsupervised visits of short
duration with [Mother]?
7. She also continues to press the argument that Father’s
failure to order a transcript of the entire six-day hearing
before the master is fatal to this appeal, because without it,
we cannot adequately consider the entire record. We have
exercised our discretion to review the case on the merits,
however, and our decision obviates any further need to
address this contention.
8. Father also contends that the court reduced his visitation
with Child by exchanging one longer mid-week visit for two
shorter ones (yielding fewer weekday visit hours), while
giving him more weekend days and overnights and more
days in the summer. Mother disputes that Father’s visitation
has been reduced, but this is not a matter of math anyway.
We find that the reconfiguration of Father’s visitation
(which seems to net out to more time together) was a reasonable adaptation to Child’s school schedule, especially
since the parties had already agreed to adopt the four-dayswith-Father, three-days-with-Mother summer cycle in years
to come, and therefore we find no abuse of discretion in
that regard.
9. Notably, at oral argument Mother’s counsel asserted that
Mother had been “clean and sober” since the hearing, and
Father’s counsel did not disagree.
45
Custody: evidence: credibility determination
Morgan Woods
f/k/a Morgan Johnson v.
Reginald Johnson
Argued Before: Meredith, Arthur, Kenney, James A., III,
Opinion by Meredith, J.
The trial judge did not abuse her discretion in
finding that the father was more credible than the
custody evaluator, who relied heavily on an allegation of sexual abuse by father that had been “ruled
out” by state investigators; who never observed the
children in mother’s home; and who sought to testify on issues related to child development and posttraumatic stress in which she was not qualified as
an expert.
In this appeal, Morgan Woods (“appellant” or “Mother”)
challenges an order of the Circuit Court for Montgomery
County granting her ex-husband, Reginald Johnson
(“appellee” or “Father”), primary physical custody of the
parties’ two children; granting Father tie-breaking authority
should an impasse arise between the parties involving their
joint legal custody; and deferring a determination of child
support. Mother presents three questions (with a variety of
subparts) for our review.1
For the reasons that follow, we answer Mother’s questions in the negative and affirm the Circuit Court for
Montgomery County.
Facts and Procedural History
The parties to this case married on February 2, 2006,
and separated when Mother left the marital home on
August 1, 2012. The marriage produced two children — a
son, born on May 19, 2006, and a daughter, born on
November 16, 2007. On January 17, 2013, Father filed a
complaint for limited divorce based on voluntary separation; in the complaint, he asked, inter alia, to be awarded
sole legal and physical custody of the children, with reasonable visitation to Mother, and that Mother be ordered to pay
“child support in accordance with the Maryland Child
Support Guidelines.”
On February 5, 2013, there was an altercation between
Mother and Father at Father’s residence. Father filed a petition seeking an order against Mother for protection from
domestic violence. The District Court of Maryland for
46
Montgomery County granted Father a temporary protective
order pursuant to Maryland Code (1984, 2012 Repl. Vol.),
Family Law Article (“FL”), Title 4, Subtitle 5, and transferred the domestic violence action to the Circuit Court for
Montgomery County. On March 5, 2013, the court entered a
consent order, part of which provided that the domestic violence case would be dismissed. The consent order also provided, generally, that neither party would “harass[,] assault,
threaten or stalk the other,” and that Mother would stay
away from the marital home. It provided further that the
children would reside with Father, except for the following
visitation periods when they would stay with Mother: every
Thursday overnight, until school drop-off Friday morning;
every other weekend from Friday after school until Sunday
evening at 7 p.m. (except for a period from 9 a.m. until 2
p.m. on Sundays, when Father would take the children to
church). In addition, in weeks when Mother did not have
the children for the weekend, Mother was entitled to have
the children after school on Tuesdays until 7 p.m.
On March 29, 2013, Mother filed an answer to Father’s
complaint for divorce. The parties were ordered to attend
co-parenting skills enhancement sessions and to be
assessed by a custody evaluator. On May 21, 2013, Mother
filed a counterclaim for absolute divorce, custody, and
other relief; she contended that Father had committed adultery, and that her departure from the marital home on
August 1, 2012, was due to constructive desertion by Father.
She requested sole legal and physical custody, and that
Father be ordered to pay child support.
Father filed an answer to the counterclaim on
September 3, 2013. A three-day custody trial took place on
November 19, 20, and 21, 2013. At the conclusion of trial,
the circuit court awarded Father primary physical custody
of the children. It awarded the parties joint legal custody,
with tie-breaking authority to Father. The trial judge commented, during her oral ruling: “I do think [Mother] needs to
have a lot more access to the children than what she’s been
having.” The court modified the current visitation schedule
to allow Mother to have the children overnight on
Tuesdays, and directed Father to also permit Mother to
have “liberal rights to visitation.” The court deferred ruling
on the question of child support until the final merits hearing on the divorce, noting that it did not believe it “really
ha[d] enough information” about the parties’ finances to
decide at that time.
In this appeal, Mother takes issue with the court’s
award of primary physical custody to Father, and argues
that the court based its ruling on incorrect credibility determinations. Mother contends that the court erred in its
assessment of the credibility of, and weight to give, the testimony of Father, and the report and testimony of the custody
evaluator. Mother further asserts that the court “erred in
[its] findings and conclusions regarding” Darryl Hooker, a
friend of Mother’s who was sometimes present in her home.
Mother further claims that the court erred by “entering a
vague custody order” regarding her “liberal rights to visitation.” Mother complains that the trial court abused its discretion in awarding legal custody tie-breaking authority to
Father. Finally, Mother contends that the court both erred
and abused its discretion by deferring the child-support
determination until the merits of the divorce were heard.
Standard of Review
In the case of Baldwin v. Baynard, 215 Md. App. 82
(2013), we summarized the standards of review applicable
to an appeal concerning child custody determinations:
[We review] child custody determinations utilizing
three interrelated standards of review. In re Yve S.,
373 Md. 551, 586, 819 A.2d 1030 (2003). The Court
of Appeals described the three interrelated standards as follows:
We point out three distinct aspects of
review in child custody disputes. 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. at 586, 819 A.2d 1030. In our review, we give
“due regard . . . to the opportunity of the lower
court to judge the credibility of the witnesses.” Id.
at 584, 819 A.2d 1030. We recognize that “it is within
the sound discretion of the [trial court] to award
custody according to the exigencies of each case,
and . . . a reviewing court may interfere with such a
determination only on a clear showing of abuse of
that discretion. Such broad discretion is vested in
the [trial court] because only [the trial judge] sees
the witnesses and the parties, hears the testimony,
and has the opportunity to speak with the child; he
is in a far better position than is an appellate court,
which has only a cold record before it, to weigh the
evidence and determine what disposition will best
promote the welfare of the minor.” Id. at 585–86,
819 A.2d 1030.
Baldwin, 215 Md. App. at 104-05.
“This Court may not set aside the factual findings of the
chancellor unless they are clearly erroneous, and absent a
clear showing of abuse of discretion, the decision of a trial
judge in a custody case will not be reversed.” Montgomery
County Dep’t of Social Services v. Sanders, 38 Md. App. 406,
419 (1978) (internal citations omitted). Deference is owed
by a reviewing court to the ability of the trial court to view
the witnesses and assess credibility. Id. at 418-19.
“Particularly important in custody cases is the trial court’s
opportunity to observe the demeanor and the credibility of
the parties and witnesses.” Petrini v. Petrini, 336 Md. 453,
470 (1994).
Our review is additionally guided by Maryland Rule 8131(c):
When an action has been tried without a jury, the
appellate court will review the case on both the law
and the evidence. It will not set aside the judgment
of the trial court on the evidence unless clearly
erroneous, and will give due regard to the
opportunity of the trial court to judge the
credibility of the witnesses.
(Emphasis added.) This Rule applies to child custody matters, as we made plain in Viamonte v. Viamonte, 131 Md.
App. 151 (2000), a case in which we also noted:
On the ultimate issue of which party gets custody
— the application of law to the facts — we will set
aside a judgment only on a clear showing that the
chancellor abused [her] discretion. [Davis v. Davis,
280 Md. 119] at 125, 372
A.2d 231 [(1977)].
Such broad discretion is vested in the
chancellor because only [s]he sees the witnesses and the parties, hears the testimony, and has the opportunity to speak with
the child; [s]he is in a far better position
than the appellate court, which has only a
cold record before it, to weigh the evidence and determine what disposition will
best promote the welfare of the minor.
Id. Such deference is necessary, lest we spend
judicial resources second-guessing the chancellor’s every decision.
Viamonte, 131 Md. App. at 158.
Discussion
I. The Court’s Credibility Determinations are Entitled
to Deference
The thrust of Mother’s arguments in support of her first
group of issues presented is that the trial court gave inadequate weight to the testimony of the custody evaluator, and
gave unwarranted weight to Father’s testimony and evidence. As we noted in Viamonte, supra, however, an appellate court does not “second-guess[ ] the chancellor’s every
decision.” In its ruling in this case, the court thoroughly
explained its reasons for its more favorable view of evidence which supported joint legal custody with Father having primary physical custody. Although the court declined to
47
adopt the evaluator’s recommendation on custody, the court
expressly stated: “I reviewed Ms. Elkinson’s report several
times.”
One focus of the custody evaluator’s negative view of
Father was Father’s elevated concern for the daughter’s
vaginal hygiene. Father testified that he had concerns about
the children’s hygiene when they would return from visits
with their Mother. The parties’ nanny, Megan Ohmart, provided some corroboration for Father’s testimony on this
point when she testified that the children would sometimes
return from a weekend visit with Mother wearing the same
clothes they had been wearing at the start of the visit, three
days prior.2 Father testified that there was an instance in
which his daughter returned from a visit to her Mother’s
with soreness and a yeasty discharge in her vagina, and
Father cleaned it with a Q-tip. He then took a photograph of
the child’s vagina “[t]o show documentation of the condition
she came back” in. Father testified that the child was not
aware he was taking a photograph and that he shared the
photograph only with his own attorneys. Father further
asserted that he had used a Q-tip to clean the child in this
manner only twice — on the instance in question, and “once
prior when she was a lot smaller.”
Prior to trial, the parties had been required to be evaluated by a court-appointed custody evaluator, Audrey
Elkinson. During Father’s intake interview, in the course of
describing his concerns about the children’s hygiene while
visiting their Mother, Father told Ms. Elkinson about having
to clean the child’s vagina with a Q-tip and having taken a
photograph to document it. Ms. Elkinson asked for the photograph, which led to Father being reported to Child
Protective Services for alleged sexual abuse. Following an
investigation by CPS, sexual child abuse was “ruled out”
based on Father’s lack of prurient intent, and Father was
counseled on using a different brand of soap — and not a Qtip — to clean his daughter. Despite the CPS investigation
having determined that Father had not committed sexual
child abuse against his daughter, the Q-tip usage was highlighted in Ms. Elkinson’s report and testimony. She testified
“[t]hat’s my major concern” when asked about any actions
of Father which she considered “harmful to the children.”3
Ms. Elkinson recommended in her evaluation report
that Mother be granted sole physical and legal custody, with
limited visitation permitted for Father, consisting of four
hours every other Saturday and four hours every other
Sunday. In other words, Ms. Elkinson recommended that
the children be removed from the physical custody of their
Father — with whom they had resided at the marital home
since Mother moved out — and placed in the sole physical
custody of Mother, who lived in a home Ms. Elkinson never
visited in Washington, D.C. This major change recommended by the evaluator may explain the trial judge’s comment
that the evaluator “seemed to . . . not really look at all of the
positive aspects as well as the negative aspects in a balanced way.” Ms. Elkinson observed Mother with the children on one occasion, for an hour at a playground. Ms.
Elkinson conceded in her testimony that she “did not see a
more accurate slice of life” with Mother than she did during
her two dinnertime visits to Father’s home. In her report,
48
Ms. Elkinson was critical of the parties’ son having eaten
with his hands on one of her visits to Father’s home, but
conceded that her interview with Mother’s brother revealed
that the children ate with their hands at Mother’s house, too.
Only the incident at Father’s house made it into the evaluator’s report, however. As noted, in her testimony, Ms.
Elkinson identified the Q-tip issue her “major concern” in
the case regarding Father’s harmful conduct, and she indicated in her report that she believed the child’s statements
— and disbelieved Father’s denials — that Q-tip usage was
ongoing.
Another aspect of Ms. Elkinson’s testimony that caused
the court to question the evaluator’s objectivity was Ms.
Elkinson’s negative comments about the parties’ nanny,
Megan Ohmart. Ms. Elkinson told the court: “I did not find
[Ms. Ohmart] to be credible.” But, after the judge heard Ms.
Ohmart testify, the court did find Ms. Ohmart a credible witness, whose testimony was more convincing on some issues
than Ms. Elkinson’s evaluation.
The court noted that the parties’ nanny had both positive and negative things to say about both parties. Ms.
Ohmart acted as the children’s live-in nanny from January
until July 2013. She testified about strengths and weaknesses of both parents, and about the children generally. The
court was within its discretion to find that Ms. Ohmart was a
credible witness, and to reject Ms. Elkinson’s opinion that
Ms. Ohmart was not credible.
Although Ms. Elkinson expressed little concern about
the unusual circumstances under which Ms. Ohmart was
hired by Mother, the court found that the incident “did not
show very good decision making on [Mother’s] part.” While
Father and the children were out of town for a Christmas
vacation at the end of 2012, Mother hired Ms. Ohmart from a
Craigslist ad, without performing a criminal background
check or ascertaining whether and to what extent Ms.
Ohmart had nannying experience, and Mother moved her
into Father’s home without ever consulting Father. When
Father and the children returned home from a Christmas
visit to Ohio, they were surprised to find someone they had
never met living in their house. Ms. Ohmart testified that she
was not aware that the owner of the house into which she
had moved, at Mother’s urging, was not aware that she had
been hired as a nanny to the children, and that she and
Father had “quite the awkward interaction at that point.”
Father did subsequently verify Ms. Ohmart’s references and
perform a background check, and let her stay on as nanny
for a period that ended up being over six months.
Mother’s subcontentions on the credibility issue include
assertions that the trial court “err[ed] in limiting the custody
evaluator’s testimony” and that it “erred in [its] findings and
conclusions regarding Darryl Hooker,” who did not testify,
but who was discussed in Ms. Elkinson’s report. As to the
former, Mother contends that the court “erred” in “refusing
to permit Ms. Elkinson to testify as to the impact of
[Father’s] vaginal cleaning on [the parties’ daughter].” The
colloquy giving rise to this contention was as follows:
[BY MOTHER’s COUNSEL]:Do you have any concerns about [Father’s] — what he says is care for
[the parties’ daughter’s] genitalia and how it might
impact [the parties’ daughter]?
[BY MS. ELKINSON]: I do.
Q And what are those concerns?
[BY FATHER’s COUNSEL]: Your honor, I’m going to
object to the basis of her expressing concerns
about, you know, how she feels this, you know, the
cleaning that may or may not be happening may or
may not impact the child. It’s all very speculative at
this point and she’s — hasn’t been made an expert
in child development. So I don’t see that she can
really speak to this.
[BY THE COURT]: I’m going to sustain.
[BY MOTHER’s COUNSEL]: Well, your honor, these
are the things that she relied upon in forming the
basis of her report. I can move on now.
[BY THE COURT]: Well, but the thing is, though, is
that if this was reported to CPS and they ruled out
any type of abuse and they’re the experts in that,
and I don’t see how — [Ms. Elkinson]’s not an
expert in child development or — so at this point
I’m going to sustain the objection.
[BY MOTHER’s COUNSEL]: Let me move on to
some other questions. . . .
(Emphasis added.)
On appeal, Mother argues that the court erred in “refusing” to permit Ms. Elkinson to testify to her “concerns” in
this regard. In the brief, Mother asserts that the fact “[t]hat
Elkinson was not specifically qualified as an expert on child
development was an insufficient reason for excluding this
testimony.” But this argument does not appear in the abovequoted colloquy; if anything, the most Mother argued at trial
was that, because Ms. Elkinson “relied upon” certain things
“in forming the basis of her report,” she should have been
allowed to opine as to the “impact” of something that Father
insisted was not happening.
But, regardless, the evaluator’s opinion on this point
was included in her report, which the court read several
times.4 In her report, Ms. Elkinson stated:
[Daughter] reported to both her mother and the
evaluator that her father continues to regularly
clean her vaginal area with a Q-tip. She appears to
be a credible historian. At five years old, she would
be too young to remember such details if they were
told to her by someone else and maintain a lie.
[Father] denied he is still cleaning [Daughter]’s vaginal area, although the child reports it is still happening. It is hard to understand why, after [Father] met
with staff at Child Welfare, which included Dr.
Shukat, a national expert in child sexual abuse,
who provided recommendations and specifically
told him to stop cleaning his daughter’s vagina with
a Q-tip, that he is still doing this. It is not normal
behavior and does not seem to make sense. It is
unclear whether his inability to comply with specific directions might be a function of his disabilities.
The obsessive-compulsive type of behavior may be
related to [Father]’s mental health issues, reflecting
symptoms of anxiety and depression. If in fact he is
he is actually conducting such behavior with
[Daughter], his denial is of concern as it suggests an
attempt to “cover-up” and acknowledgement that
he has been practicing unacceptable behavior.
Even if there is no intent to such behavior, and
[Father] does not derive sexual gratification from
cleaning [Daughter]’s vagina with a Q-tip, as
deemed by Child Welfare Services, the experience
of trauma inflicted on [Daughter] is the same.
Consequentially, if [Daughter] found herself in a situation faced by the potential for sexual abuse, she
would be less able to assess the dangers based on
her real life experiences. [Daughter] is at risk for
experiencing any of the physical or emotional consequences associated with sexual abuse, such as:
depression, anxiety, sexual or relationship problems, and dissociation.
Similarly, with respect to Mother’s effort to have Ms.
Elkinson express expert opinions about Father’s PTSD and
the GAF assessment performed by the Department of
Veteran’s Affairs, the court specifically refused to accept Ms.
Elkinson as an expert in post traumatic stress disorder.
Despite this ruling, Mother’s counsel sought to elicit expert
testimony from Ms. Elkinson about a Global Assessment of
Functioning performed on Father. When Father’s counsel
objected that Ms. Elkinson should not be permitted to testify about “the meaning of this test,” which was not discussed
in the evaluator’s written report, the trial court sustained the
objection, but did not strike any testimony. Given the trial
court’s ruling that Ms. Elkinson was not an expert in post
traumatic stress disorder, we perceive no abuse of discretion in the court’s ruling sustaining the objection to expert
testimony about an assessment that was performed in connection with the disability rating that was made by the
Department of Veterans Affairs. We see no merit in this
argument.
We are also mindful of what this Court said in Walker v.
Grow, 170 Md. App. 255, 276 (2006):
Even if a witness is qualified as an expert, the fact
finder need not accept the expert’s opinion. To the
contrary, “‘an expert’s opinion is of no greater probative value than the soundness of his [or her] reasons given therefor will warrant.’” Surkovich v.
Doub, 258 Md. 263, 272, 265 A.2d 447 (1970) (quoting Miller v. Abrahams, 239 Md. 263, 273, 211 A.2d
309 (1965)). The weight to be given the expert’s testimony is a question for the fact finder. “The trier of
fact may believe or disbelieve, accredit or disregard, any evidence introduced. We may not —
and obviously could not — decide upon an
appeal how much weight must be given, as a
minimum to each item of evidence.” Great
Coastal Express, Inc. v. Schruefer, 34 Md. App. 706,
725, 369 A.2d 118 (1977) (citations omitted). Accord
Edsall v. Huffaker, 159 Md.App. 337, 342, 859 A.2d
274 (2004).
(Emphasis added.)
49
Mother also argues in her brief that the trial court
“erred in her findings and conclusions regarding Darryl
Hooker.” This contention appears to relate to one basis the
trial court offered for not relying upon Ms. Elkinson’s recommendation as heavily as Mother believes the court
should have. In this regard, the trial court, in its oral ruling,
stated:
[BY THE COURT]: You know, I was struck by the
fact that Ms. Elkinson kept harping on
[Father’s] poor decision making when, you
know, both sides had made poor decisions in
this case. I mean, certainly, [Mother] bringing Ms.
Ohmart into the home not no [sic] mention that she
acknowledged that she did not let [Father] know
that she was bringing — I can’t imagine how Ms.
Ohmart felt when she comes out of her room and is
confronted by [Father] and how [Father] felt when
Ms. Ohmart comes out of her room and he’s confronted with a stranger in his house. I thought he
was very credible when he testified about his shock
when that happened. And Ms. Ohmart was very
credible as well when she testified about how
shocked she was.
I don’t really know why [Mother] would have
made that decision. To me that did not show very
good decision making on her part. I also felt that
the way the kids testified about Mr. Hooker, and the
fact that he’s in the house. [The parties’ son] telling
Ms. Elkinson, you know, “My mom and Mr. Hooker
is going to make meals for us.” To me that implies
much more familiarity. That even if it’s not a sexual
relationship, it’s still a relationship. And Ms.
Elkinson didn’t even touch upon whether or not
that is a good idea to, when you have your child,
you’re breaking up with the child’s father to all of a
sudden introduce another male into the mix and
whether that could affect, you know, because, certainly, [the parties’ daughter] and her drawing
talked about Mr. Hooker being there and. You
know, so there’s just a lot of this murkiness, I think,
in this evidence as to both parents. I think, both
parents have strengths and both parents have
weaknesses.
(Emphasis added.)
Mr. Hooker did not testify. He was mentioned in Ms.
Elkinson’s report and in her testimony. He was described as
one of the three persons shown in a drawing of the family
by the daughter. The court’s comment, quoted above, about
Mr. Hooker’s presence in Mother’s house clearly played no
material role in the custody ruling, and, even if it was inaccurate to characterize Mr. Hooker’s involvement as the “sudden introduc[tion]” of “another male into the mix,” it was
not error to find that he had a relationship with Mother and
had a level of familiarity that made a strong impression
upon the daughter. Mother’s appellate contention in this
regard again asks this court to second-guess the trial court
regarding the weight of the evidence, which we will not do.
Mother also directs our attention to a number of conflicting statements made by Father, and she urges us to con50
clude that the “trial court erred in finding Mr. Johnson’s testimony credible.” The argument misapprehends our role as
an appellate court. The evaluation of the credibility of witnesses and the weight to be accorded their testimony is
quintessentially the function of a trial court. On appeal, we
must consider all evidence in the record and all inferences
therefrom in a light most favorable to the prevailing party.
The fact that there may be some evidence in the record that
does not support the trial judge’s findings of fact is of no
consequence on appeal if there is any evidence in the record
that supports the trial judge’s conclusion when viewed in a
light most favorable to the prevailing party. The alleged contradictions highlighted by Mother in her brief do not establish that the trial court’s findings were clearly erroneous.
Finally, Mother asserts that the judge erred in stating,
during the oral ruling, “I don’t agree that Mr. Johnson’s judgment is impaired. I don’t think there was any evidence that
was presented as to that.” This comment, made during the
course of an oral opinion that fills 20 pages of transcript,
was not a clearly erroneous finding of fact even if it was
hyperbole to say that there was not “any evidence presented
as to that.” In context, it is clear to us that the court was simply finding unpersuasive the evidence Mother relied upon to
support her claim that Father’s mental condition should disqualify him from continuing to have primary physical custody of the children. Such a view of the evidence was not
clearly erroneous.
II. The Court’s Custody Determinations were not an
Abuse of Discretion
As the Court of Appeals noted in Taylor v. Taylor, 306
Md. 290, 303 (1986):
[I]n any child custody case, the paramount concern
is the best interest of the child. As Judge Orth pointed out for the Court in Ross v. Hoffman, 280 Md.
172, 175 n.1 (1977), we have variously characterized
this standard as being “of transcendent importance” and the “sole question.” The best interest of
the child is therefore not considered as one of
many factors, but as the objective to which virtually
all other factors speak.
In Montgomery County v. Sanders, 38 Md. App. 406
(1977), our predecessors noted that, in matters of child custody, a chancellor’s determination of a child’s best interests
often requires judicial prognostication:
Unfortunately, there is no litmus paper test that
provides a quick and relatively easy answer to custody matters. Present methods for determining a
child’s best interest are time-consuming, involve a
multitude of intangible factors that ofttimes are
ambiguous. The best interest standard is an amorphous notion, varying with each individual case,
and resulting in its being open to attack as little
more than judicial prognostication. The fact finder
is called upon to evaluate the child’s life chances in
each of the homes competing for custody and then
to predict with whom the child will be better off in
the future. At the bottom line, what is in the child’s
best interest equals the fact finder’s best guess.
What critics of the “judicial prognostication”
overlook is that the court examines numerous factors and weighs the advantages and disadvantages
of the alternative environments. See Chapsky v.
Wood, 26 Kan. at 655, 40 Am.Rep. at 325. The court’s
prediction is founded upon far more complex
methods than reading tea leaves. The criteria for
judicial determination includes, but is not limited
to, 1) fitness of the parents, Cornwell v. Cornwell,
244 Md. 674, 224 A.2d 870 (1966); Barnard v.
Godfrey, 157 Md. 264, 145 A. 614 (1929); 2) character and reputation of the parties, Hoder v. Hoder,
245 Md. 705, 227 A.2d 750 (1967); 3) desire of the
natural parents and agreements between the parties, Breault v. Breault, 250 Md. 173, 242 A.2d 116
(1968); McClary v. Follett, 226 Md. 436, 174 A.2d 66
(1961); Colburn v. Colburn, 20 Md.App. 346, 316
A.2d 283 (1974); Davis v. Jurney, 145 A.2d 846
(D.C.Mun.App.1958); 4) potentiality of maintaining
natural family relations, Lippy v. Breidenstein, 249
Md. 415, 240 A.2d 251 (1968); Melton v. Connolly,
supra; Piotrowski v. State, 179 Md. 377, 18 A.2d
199 (1941); 5) preference of the child, Ross v. Pick,
199 Md. at 353, 86 A.2d at 469; Young v. Weaver, 185
Md. 328, 44 A.2d 748 (1945); United States v. Green,
26 Fed.Cas. No. 15256, pp. 30, 31-32 (C.C.R.I.1824);
6) material opportunities affecting the future life of
the child, Thumma v. Hartsook, supra; Butler v.
Perry, supra; Cockerham v. The Children’s Aid
Soc'y of Cecil County, 185 Md. 97, 43 A.2d 197
(1945); Jones v. Stockett, 2 Bland. 409 (Ch.1838); 7)
age, health and sex of the child, Alden v. Alden, 226
Md. 622, 174 A.2d 793 (1961); Cullotta v. Cullotta,
193 Md. 374, 66 A.2d 919 (1949); Piotrowski v.
State, supra; 8) residences of parents and opportunity for visitation, Rzeszotarski v. Rzeszotarski,
296 A.2d 431, 440 (D.C.App.1972); 9) length of separation from the natural parents, Ross v. Hoffman,
supra; Melton v. Connolly, supra; Powers v.
Hadden, 30 Md.App. 577, 353 A.2d 641 (1976); and
10) prior voluntary abandonment or surrender,
Dietrich v. Anderson, supra; Davis v. Jurney,
supra.
Id. at 419-20.
With respect to joint legal custody, the Court of
Appeals, in Taylor v. Taylor, 306 Md. 290 (1986), held that
“the authority to grant joint custody is an integral part of the
broad and inherent authority of a court exercising its equitable powers to determine child custody.” Id. at 298. The
Taylor Court also identified several factors for a trial court
to consider when tasked with determining custody. The
Court described these as “the major factors that should be
considered in determining whether joint custody is appropriate,” but it also “recognize[d] that none has talismanic
qualities, and that no single list of criteria will satisfy the
demands of every case.” Id. at 303.
The so-called “Taylor factors” are: 1) capacity of the
parents to communicate and to reach shared decisions
affecting the child’s welfare; 2) willingness of parents to
share custody; 3) fitness of parents; 4) relationship established between the child and each parent; 5) preference of
the child; 6) potential disruption of the child’s school and
social 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. Id. at 304-11.
Here, the trial court gave consideration to the relevant
factors and Mother does not claim otherwise in her brief.
Rather, Mother’s principal argument in support of her contention that the court abused its discretion in its custody
award in favor of Father is that the court erred in its credibility findings and the weight it gave the evidence in the
record. As discussed at length above, however, an appellate
court does not second-guess a trial court’s credibility determinations or its evaluations of the evidence. We detect no
abuse of discretion in the trial court’s award to Father of primary physical custody and tie-breaking authority should an
impasse arise in the parties’ joint legal custody.
Mother also asserts in her brief that the court “erred in
entering a vague custody order,” but Mother does not represent that an actual controversy has arisen between the parties regarding differing interpretations of the custody order.
It appears that the trial court was not asked in any postjudgment motion to make the visitation schedule less vague.
Unless we were to strike the language that Mother considers overly vague, there is no way that we could clarify on
appeal what the trial judge intended. Until the trial court has
been asked to resolve an actual dispute about the amount of
unscheduled visitation Father allows Mother to have, there
is no controversy about this point which is ripe for appellate
review.
III. The Trial Court Neither Erred nor Abused its
Discretion in Deferring on the Child-Support Issue
At the conclusion of the court’s oral opinion, the following colloquy occurred between the trial court and Mother’s
counsel:
[BY THE COURT]: . . . All right? Any other questions?
[BY MOTHER’s COUNSEL]: Just child support,
your honor. Are we going to maintain the current amount until the court can decide that?
[THE COURT]: Well, I think, with the child support,
I mean, there was a sworn testimony about the tenant. But I don’t think that I — because I went back
through my notes and that’s why I asked about the
financial statement. I don’t know what the mortgage is. You know, I don’t know — I mean, usually,
for a child support, you have a little bit more
financial information. I didn’t really get that
much from either side. And we could have a further hearing if you can’t work that out or you
could just submit.
I mean if you are in agreement that — because
the amount of money that [Father] made from his
real estate isn’t very much. But if that’s included in
this income — I mean, I don’t know. I don’t know
51
what your position is. And he did say that he has
and still continued to do that a little. I don’t think
I have enough information to really decide.
And I think, actually, this was really set more — I
think this was just a custody case. I don’t think it
was child support. But if it is child support, then I
would just defer it to the final [hearing on the
merits]. And then, hopefully, at that point the judge
will have a lot more information about the parties’
financial situation. And I think, we’ll be able to
make more of a decision.
(Emphasis added.)
No objection was lodged to the court’s statement that it
did not feel it had enough financial information to decide on
child support at that time and that it would defer the question until the final merits hearing on the divorce.
Nevertheless, on appeal, Mother contends that the trial
court “erred and abused its discretion in deferring the calculation of child support to the divorce merits hearing.”
Father asks this Court to dismiss Mother’s appeal on
this point because it is now moot, was not a final ruling by
the court, and, in the alternative, that any error was harmless. Father represents in his brief:
Approximately six months after the custody
trial, the trial court entered the Judgment of
Absolute Divorce on May 28, 2014, which incorporated, but did not merge, the parties’ Separation
and
Property
Settlement
Agreement
(“Agreement”). The Agreement contained an agreement regarding child support whereby [Mother]
would pay [Father] $700 per month in child support, commencing on June 1, 2014. The Agreement
does not account for any retroactive child support
or adjustments; it is a reasonable assumption that
the parties waived any claim for credit of retroactive support for the period of November 2013
through June 2014, as the circuit court case is now
closed.
Father included the Agreement in the appendix to his brief.
In her Reply Brief in this Court, Mother argues that the
appeal as to this issue is not moot because, she asserts,
between the entry of the trial court’s order in this matter on
March 11, 2014, and the date of the execution of the
Agreement on May 5, 2014, Mother “overpaid child support.”
Therefore, Mother argues, this Court “can afford relief
including but not limited to a modification of the support
award” to account for the period of time between March 11,
2014, and May 5, 2014.
The Agreement of May 5, 2014, is silent as to any
overpayment issue. The first page of the Agreement
recites that it was the “desire of the parties hereto to
adjust, terminate and make a full and complete settlement of all matters relating to the . . . financial obligations arising out of their marital relationship. . . .” It was
“THEREFORE, agreed . . . in full, complete and final settlement of any interest whatsoever of each party in the
property, estate or interest of the other,” that they would
settle all such claims — including child support — upon
52
the terms set forth in the Agreement. The closing paragraphs of the Agreement represent that the Agreement
“contains the entire understanding between the parties.
No modification or waiver of any of the terms of this
Agreement shall be valid unless made in writing and
signed by the parties.” We agree with Father’s assertion
that no claim for reimbursement of child support payments made by Mother prior to May 5, 2014, survived the
execution of the Agreement. We reject Mother’s argument to the contrary.
MONTGOMERY COUNTY AFFIRMED.
Footnotes
1. Mother’s questions presented, as stated in her brief, are:
I. Did the trial court abuse its discretion in awarding
primary physical custody to the Appellee?
A. Did the trial court err in finding Mr. Johnson’s
testimony to be credible?
B. Did the trial court err in finding that Mr.
Johnson’s judgment was not impaired and in
finding that no evidence regarding Mr. Johnson’s
judgment was presented?
C. Did the trial court err in failing to rely on or give
more weight to the report and recommendations
of the custody evaluator, Audrey Elkinson?
i. Did the trial judge err in limiting the custody
evaluator’s testimony?
ii. Did the trial court err in finding that the custody evaluator’s report was not balanced?
iii. The trial court erred in her findings and conclusions regarding Darryl Hooker.
D. Did the trial court err in entering a vague custody
order?
II. Did the trial court abuse its discretion in awarding
legal custody tie breaking authority to the Appellee?
III. Did the trial court err or abuse its discretion in failing to calculate child support?
A. The trial court erred in finding that this was not a
child support case.
B. The trial court erred in finding that [it] did not
have sufficient information before [it] to calculate child support.”
2. Although the transcripts indicate that the nanny’s last name is
spelled “Omart,” and that is how the custody evaluator spelled her
name in the custody evaluator’s report, Megan Ohmart spelled her
own last name on the record at trial as “Ohmart,” and that is the
spelling we will use.
3. Although Mother argues in her Reply Brief that the trial
court failed to fulfill its obligation to make a specific finding
under FL § 9-101 relative to child abuse, Mother concedes that
this argument was not made to the trial judge. It is not preserved.
4. Moreover, Ms. Elkinson was not offered as, or recognized by
the court to be, an expert in child development. Consequently,
it was not error for the court to conclude that her opinion
regarding child development would not assist the court in
understanding the evidence. See Maryland Rule 5-702.
Divorce: custody and visitation: alimony
Edward Calvello
v.
Emilie Calvello
Edward Calvello
v.
Emilie Calvello
Consolidated Cases
Argued Before: Eyler, Deborah S., Woodward, Wright, JJ.
Opinion by Eyler, Deborah S., J.
Given the husband’s abusive history and increasingly bizarre behavior, it was not an abuse of discretion to deny him any custody or visitation “at this
time”; also, the parties’ standards of living were not
unconscionably disparate since husband’s imputed
income would support the lifestyle the couple experienced during marriage, when wife supported the
family while attending school; and because wife’s
income, while now 6.6 times higher than husband’s,
was offset by debt and expenses.
In the Circuit Court for Baltimore City, Edward
Calvello, Jr., the appellant, and Emilie Calvello, the
appellee, were divorced after 14 years of marriage.1 The
court granted Emilie sole legal and physical custody of
the parties’ two minor children. It did not award Edward
any visitation. The court denied Edward’s requests for
alimony, use and possession of the marital home, attorneys’ fees, and a monetary award. It awarded each party
a share of the other party’s retirement account. The
court also ordered real property owned by the parties
sold, with the proceeds to be divided equally.
Edward filed motions for a new trial and to alter or
amend the judgment. Both motions were denied. He
appeals, 2 presenting seven questions for our review,
which we have rephrased and reordered:
I. Did the trial court err by admitting into evidence at the merits hearing a Final
Protective Order?
II. Did the trial judge deprive Edward of his
right to a fair trial by failing to maintain an
unbiased temperament?
III. Did the trial court err by denying Edward’s
request to call Gregory Hynes as a witness
and to order Emilie to produce her email
correspondence with Gregory Hynes?
IV. Did the trial judge err by sua sponte
reopening the case after the close of all the
evidence to take additional testimony?
V. Did the trial judge err by denying Edward’s
requests for alimony, a monetary award,
and attorneys’ fees?
VI. Did the trial court err by ordering Edward
to undergo an involuntary psychiatric evaluation?
VII. Did the trial court err by denying Edward
any visitation with the minor children?
For the reasons to follow, we shall affirm the judgment of the circuit court.
Edward and Emilie met in 1996, when he was 38 and
she was 19. At that time, Edward was employed at Bryn
Mawr College, in Pennsylvania, as an inventory manager,
and also worked numerous odd jobs, including a job at a
horse stable. He was married and had two sons, then ages
13 and 9. He and his wife divorced that same year.3
Emilie was enrolled as an undergraduate student at
Bryn Mawr. She played on the school’s basketball team.
Edward played on a faculty and staff basketball team.
Edward’s team sometimes would play pick-up games with
Emilie’s team. Edward offered Emilie a job helping him at
the horse stable in the mornings, which she accepted. She
also babysat for his sons on many occasions. By the time
Emilie graduated from Bryn Mawr, in the spring of 1997,
she and Edward were romantically involved.
After graduation, Emilie took a position as a chemist
for DuPont Pharmaceuticals, in Wilmington, Delaware, at
an annual salary of $60,000. She and Edward continued dating. She lived in Delaware and he lived with his sons in a
house in Bryn Mawr (“the Bryn Mawr home”), which he
owned free and clear.
In the Fall of 1998, Emilie and Edward became engaged
to marry. That same year, Emilie was accepted into medical
53
school at Johns Hopkins University (“JHU”). At Edward’s
suggestion, she deferred her admission for one year, due to
the upcoming wedding.
The parties were married on October 30, 1999.
Thereafter, they lived together in the Bryn Mawr home until
September of 2000, when Emilie moved to Baltimore City to
begin medical school at JHU. She paid for school and supported herself with student loans. She rented an apartment
in a house in the Guilford neighborhood of the city. Edward
remained in the Bryn Mawr home with his sons. Emilie
made frequent trips to Pennsylvania to see Edward and his
sons.
In June of 2001, the parties jointly purchased a house at
2116 Kentucky Avenue, near Lake Montebello in Baltimore
City (“the Kentucky Avenue home”). They paid the $165,000
purchase price in cash, with $130,000 they had saved during
the first year of their marriage and $35,000 loaned to them
by Emilie’s parents.4 At first, Emilie lived in the Kentucky
Avenue home by herself. Later she found roommates from
medical school.
A little over two years later, on July 24, 2003, Emilie
gave birth to the parties’ first child, Ramiro. She took six
months’ leave from medical school to stay home with
Ramiro. Less than a month later, Edward was laid off from
his position at Bryn Mawr College. He and his younger son,
then age 16, moved to Baltimore to live with Emilie and
Ramiro. Edward made frequent trips to Pennsylvania, lasting days to weeks. As we shall explain, Edward did not
secure any employment for the remainder of the parties’
marriage.
After Emilie returned to medical school, in January of
2004, Edward stayed home with Ramiro. He began to work
on plans for an extensive home renovation. The renovation
plans did not go smoothly. For example, soon after Edward
moved into the Kentucky Avenue home, he tore out the furnace. He then determined that he and Emilie could not
afford to replace it. For the remainder of the parties’ marriage, the house was without central heat.5 Edward started
kitchen renovations by tearing out all the appliances and
plumbing in the kitchen. For five years, the parties did not
have a working kitchen. They cooked using a toaster and a
microwave while the kitchen was being renovated in fits
and starts. The third floor of the home was a rental unit and
was heated with a gas fireplace. The parties rented this unit
to tenants throughout most of their marriage.
In June of 2004, Emilie took leave from medical school
to pursue a master’s degree in public health, also at Johns
Hopkins University. She incurred additional student loans to
pay for this program. She chose this path because her
course work schedule would be lighter than in medical
school, allowing her to spend more time at home with
Ramiro. Around this time, Emilie begged Edward to seek
employment, but he refused even to discuss the matter with
her. The family ended up on food stamps and receiving aid
from the government Women, Infants, and Children program (“WIC”).
Emilie earned her master’s degree in May of 2005. A little over a month later, on June 30, 2005, she gave birth to the
parties’ second son, Sereno. She again took six months’
54
leave to stay home.
In January of 2006, Emilie returned to medical school.
She received her medical degree in May of that year. She
was accepted into residency programs in emergency medicine at Yale, Harvard, and The Johns Hopkins Hospital
(“JHH”). Yale was Emilie’s first choice, but Edward told her
that he and the children would not move to Connecticut.
Emilie elected to enter the JHH residency program. She
began that program, a three-year undertaking, in June of
2006, earning approximately $40,000 annually. Edward continued to stay home with Ramiro and Sereno.
In August of 2006, Edward had the Bryn Mawr home
titled in his and Emilie’s names, as tenants by the entireties.
The parties subsequently refinanced this property, taking
out a home equity line of credit (“HELOC”). The Bryn Mawr
home was rented throughout most of the marriage, with
rental income to the parties averaging about $950 per
month. The monthly payments on the HELOC were $335.
In January of 2007, Ramiro entered daycare full-time. In
June of 2007, when he was two years old, Sereno also began
attending daycare on a full-time basis. Even though both
children were being cared for all day outside the home,
Edward did not seek employment.
Meanwhile, the parties’ marriage was steadily deteriorating. From the outset, Edward had been very controlling
and jealous of Emilie. He frequently interrogated her about
her relationships with male colleagues and friends.
Edward’s jealousy increased when, in April of 2007,
Emilie told him she was having an extramarital affair with
an attending physician at JHH. The next month she ended
the affair, which had lasted about three months. The parties
sought marital counseling. Edward demanded access to
Emilie’s e-mail accounts and the right to interrogate her at
any time about her whereabouts and her contacts with male
colleagues and friends. She acceded to these requests in an
effort to save their marriage. Edward began taking “notes”
about Emilie’s activities in a notebook and would frequently
stay up all night writing about her.
In June of 2007, Edward made an unannounced visit to
the Director of Emergency Medicine at JHH and informed
him about Emilie’s affair with the attending physician. Soon
thereafter, the attending physician’s employment was terminated by JHH.
In June of 2009, Emilie completed her residency at JHH
and accepted a position at Howard County General Hospital
(“HOGC”) as a clinical instructor and clinician. She worked
there until August of 2010, earning an annual salary of
$125,000. During that time, Ramiro and Sereno were
enrolled full-time at the Baltimore Christian School, a private elementary school.
Edward continued to check Emilie’s e-mails and text
messages, despite Emilie’s having asked him to stop. She
changed her e-mail passwords. Nevertheless, in January
of 2010, Edward learned through Emilie’s e-mails that
she was planning to meet with the attending physician
with whom she had had the affair because he had contacted her to tell her his father had died. Emilie did not
tell Edward about the planned meeting because she
knew he would not approve. She went to the meeting,
and when she returned home Edward confronted her,
telling her he knew where she had gone and giving her
details. He told her he had learned about the meeting by
reading copies of e-mails she had exchanged with the
physician that were in a packet of information he
claimed was left on their front porch by an unknown person. Edward did not show Emilie the packet. He also
told her that in 2007, after he learned of her affair, he had
received an anonymous note directing him to go to see
the Director of Emergency Medicine to tell him about
the affair. He did not show Emilie this note. Emilie
believed Edward and was concerned that someone was
stalking her. She asked him to look into getting a security camera for their home.
Shortly thereafter, Emilie traveled to Haiti to help with
relief efforts following the massive earthquake that hit Port
Au Prince on January 12, 2010. While there, she met a nurse
named Gregory Hynes. Hynes lived and worked in
Colorado. After Emilie returned from Haiti, she and Hynes
communicated by e-mail on occasion about the situation in
Haiti and their professional lives.
In September of 2010, Emilie accepted a new position
at the University of Maryland (“UM”) as an assistant professor and clinician, at an annual salary of approximately
$204,000. UM had contracted with Catholic Relief Services
(“CRS”) to provide medical professionals to assist in the
continuing recovery effort in Haiti. Emilie was chosen for
the CRS team and returned to Haiti that month. While there,
she reported to the Director of Health for CRS. She continued to work in Haiti through mid-November of 2010. During
that period, she returned home every two weeks to see
Edward and the children.
In early November of 2010, Hynes came to Haiti. He told
Emilie that Edward recently had come to Colorado to visit
him. Edward had told Hynes that he was in Colorado visiting family. Edward gave Hynes a picture from his and
Emilie’s wedding with an attached Bible verse about “love
and fidelity.” He also gave Hynes a bottle of root beer and
some chocolate candy purchased at a convenience store.
Emilie was alarmed by Hynes’s revelation because she
knew that Edward did not have any family in Colorado. She
also was concerned because Edward was supposed to be
watching the children while she was in Haiti. She called
Edward, but he refused to discuss the matter at all. He
would not acknowledge that he had gone to Colorado. (He
later admitted doing so during a marital counseling session.)
Also in early November of 2010, Edward traveled to
Haiti, unannounced, to see Emilie.6 Emilie had told Edward
he could not visit her in Haiti because the security situation
in Port Au Prince was volatile and CRS had told her it would
be a “huge liability” for the organization if family members
came to visit. Nevertheless, Edward showed up at a hotel on
the coast of Haiti where Emilie and her colleagues were
staying and meeting about their planned response to a
cholera outbreak. She and her group were eating dinner.
Emilie got up to go to the bathroom and when she emerged
from the bathroom, Edward stepped out from behind a
pole. She was shocked to see him there. Her immediate concern was “where were the children.” Edward told her that
he’d left the children with “their teachers at school.”
When Emilie did not return from the bathroom for a
long time, Laura Cabahug, one of her colleagues, soon
became concerned. She went to look for Emilie and found
her speaking to Edward nearby. Cabahug tried to speak to
Edward, but he was “acting very strangely and irrationally.”
Based on things Edward said, it was apparent to Cabahug
that he had been in the coastal town for many hours and
had been surreptitiously watching Emilie and the medical
team. Edward’s behavior made Cabahug fearful for Emilie’s
safety. Cabahug also was disturbed by Emilie’s weak and
passive demeanor in Edward’s presence.
Ultimately, it was decided that Edward would spend the
night at the hotel. Emilie stayed in Cabahug’s room and
Edward was in the room next door. Emilie agreed to go see
Edward at 3:00 a.m. to talk to him before her group departed for Port Au Prince. While in the room with Edward, she
briefly fell asleep in his bed. According to Emilie, when she
awoke, Edward tried to force her to perform oral sex. She
refused. Cabahug then interrupted them and Emilie left with
Cabahug.
Upon returning to Port Au Prince with the medical
team, Emilie was housed in a secret location at CRS’s direction. CRS moved Emilie from location to location for several
days because Edward was constantly contacting CRS and
members of the medical team to try to locate her.
Ultimately, CRS asked Emilie to leave because her presence
on the team was becoming unmanageable due to Edward’s
behavior.
Emilie returned to Baltimore, removed the children
from school, and went to a “safe house” with them for a
short period of time. In early December of 2010, she and
Edward spoke at length and set some “ground rules” for
their relationship. Emilie then moved back into the
Kentucky Avenue home with Edward and the children. She
asked Edward to move out, but he refused. He told her he
would take the children if she ever left him. His behavior
remained erratic. Emilie had stopped sharing a bed with
Edward and, on occasion, would awake to find him standing over her, watching her sleep.
Also in December of 2010, Edward showed Emilie what
he claimed to be a typed copy of another letter he supposedly had received from an unknown person. According to
Edward, the original letter was handwritten and was left on
their porch along with a typewriter. He used the typewriter
to type a copy of the letter. He no longer had the original letter or the typewriter, however. He showed Emilie the typed
letter, which said that her “deception, manipulation, arrogance are out of control” and that she needed to get help.
The letter went on to detail Emilie’s “life story over the last 4
years,” including her affair with the JHH attending physician
in 2007, and stated that she currently was involved in an
extramarital affair with Hynes.7
On or about February 5, 2011, Emilie moved out of the
Kentucky Avenue home and into a one-bedroom apartment
in Baltimore. Edward refused to allow her to see the children unless she came to the Kentucky Avenue home. In July
of 2011, someone broke into Emilie’s apartment and stole
her personal journals, several books on the subject of
55
divorce, and journals about Ramiro and Sereno that she had
started keeping when they were born.
In September of 2011, Emilie rented a much larger twobedroom apartment in the Roland Park neighborhood of
Baltimore City. On an evening shortly after she moved to her
new apartment, she went to the Kentucky Avenue home to
put the children to bed. Edward was there as well. While
there, Emilie fell asleep in bed with one of her sons. When
she awoke, Edward was gone and her keys were missing
from her purse. Emilie suspected that Edward had taken
her keys to make a copy of the key to her new apartment.
When Edward returned home, he said he had gone to Home
Depot to get something, but denied having made a copy of
her key. Emilie could see the outline of a key in his pants
pocket, however. She reached toward his pocket and he
grabbed her wrist, twisting it, and forcing her to the ground.
He then berated her, telling her that this was all her fault.
Emilie left the Kentucky Avenue home and went to
Cabahug’s house. Cabahug convinced her to go to the police
station to file a petition for a protective order. Once at the
police station, Emilie changed her mind because she did not
want Edward to be arrested.
The next month, Edward showed Emilie a mailing supposedly sent to him by an anonymous person. It was postmarked in Northern Virginia. The mailing contained a packet with excerpts of e-mails between Emilie and the JHH
attending physician and between Emilie and Hynes, and a
picture of Emilie and Hynes together. It was entitled,
“Doctor’s & Nurse’s without boundries.”
In January of 2012, Edward claimed to have received
another piece of correspondence from the anonymous person. It stated, “Your wife went to Cincinnati Ohio to visit
Charles and Lenore Hynes, parents of Greg [Hynes] on Dec
19 2[0]11. Your 4 sons, her sister’s 2 sons, you, Mike,[8] Greg
will be hurt. Prepare! My family was hurt terribly. ps She had
adulterous sex with freshly divorced Greg.” Edward told
Emilie the packet included Emilie’s personal journal, which,
as mentioned, had been stolen from her apartment in July of
2011. Edward refused to give the journal to Emilie, however.
On April 4, 2012, Emilie filed a complaint for absolute
divorce on the ground of a one-year voluntary separation.
She asked the court to award joint legal and shared physical
custody of the minor children, award child support, order
the sale of the Kentucky Avenue home and the Bryn Mawr
home, and otherwise equitably distribute the parties’ marital
property.
Just over two weeks later, seven of Emilie’s friends and
family members each received identical letters in the mail.
The letter, which was not signed, stated:
Dr[.] Calvello is a serial relationship killer Warning
Mike, her husband & children, Greg, her sister &
children will be hurt
My family has been devastated
She is a danger to other families
On the reverse side of the letter was the same picture of
Emilie with Hynes that had been attached to the previous
letter. The letters were sent to Emilie’s father, sister, three of
her friends, a couple with whom Hynes was friends, and
56
Edward.
On May 1, 2012, Emilie filed in the District Court a petition for protection from domestic violence. A temporary
protective order was entered that same day. On May 8, 2012,
Edward consented to the entry of a final protective order
effective for 12 months. The order later was extended by
consent through November 8, 2013. The terms of the order
granted use and possession of the Kentucky Avenue home
to Edward. Edward was ordered to communicate with
Emilie only in writing, unless Emilie consented to in-person
communication, and only about matters pertaining to the
children. The order set out a custody and visitation schedule
with the children to reside with Edward Monday through
Wednesday each week, with Emilie Friday through Sunday
each week, and with the parties to alternate Thursday
nights. Beginning June 11, 2011, the custody schedule
changed so that Emilie had the children Monday and
Tuesday, Edward had them Wednesday and Thursday, and
the parties alternated weekends. Finally, the order provided
that each party would have two consecutive weeks with the
children during the summer and Emilie’s parents also would
have a two-week vacation with the children.
On July 25, 2012, Emilie filed an amended complaint for
divorce. As relevant here, she asked for sole legal and physical custody of the children.
On August 9, 2012, Edward filed a countercomplaint for
divorce on the grounds of adultery and desertion. He sought
sole legal and physical custody of the children; pendente lite
alimony; rehabilitative and/or indefinite alimony; child support, with Emilie to pay for health insurance for the children
and for him; use and possession of the Kentucky Avenue
home; a monetary award; and attorneys’ fees and costs.
On September 24, 2012, the parties entered into a consent pendente lite custody and visitation order that incorporated the same schedule set forth in the Final Protective
Order. Emilie agreed to pay the costs of private school
tuition, extracurricular expenses, and uniform expenses for
the children; and to pay the mortgage, property taxes, insurance, gas, electric, telephone, and water bills for the
Kentucky Avenue home. Edward agreed to continue collecting rent from the tenants leasing the rental unit at the
Kentucky Avenue home and the tenants leasing the Bryn
Mawr home; to pay the HELOC on the Bryn Mawr home;
and to provide Emilie with an accounting of all rents collected and expenses paid.
A merits hearing was held on eight days over a ninemonth period in 2013: March 4, March 5, March 7, July
22, July 23, July 24, December 3, and December 5. On the
first three hearing days, Emilie testified in her case,
called Edward (adversely), and called three other witnesses: Cabahug; the children’s pediatrician; and a friend
who had lived in the third floor apartment of the
Kentucky Avenue home for a period of time. Edward
called one witness out of order, a friend who had lived in
the Lake Montebello neighborhood during the early
years of the parties’ marriage.
Emilie, who was 37 years old at the time of trial, testified that her relationship with Edward was her first romantic relationship. When they married, she and Edward
ascribed to very conservative Christian beliefs.9 One of the
tenets of her religion was that a wife should submit to her
husband as head of the household. She explained that,
because of these beliefs, she did not question decisions
Edward made or his authority over their home. Although
Emilie was dissatisfied with the marriage from the start, she
also was committed to making it work. She testified that she
and Edward pursued marital counseling throughout much
of their marriage. As Edward became more and more controlling, however, she became fearful of him.
Emilie testified that she and Edward never agreed that
he would stay home as a caregiver for their children. On the
contrary, Edward’s failure to obtain employment outside the
home was a constant bone of contention between them.
Once the children were in daycare full time, in June of 2007,
Emilie expected Edward to look for a job. He refused to do
so, and also refused to discuss the matter with her whatsoever.
Emilie did not dispute that Edward was a loving parent
to their children, but expressed concern that, since their
separation, he had been using the children against her, passing messages through them, and using custody exchanges at
the children’s school, which was directly across the street
from the Kentucky Avenue home, as an opportunity to
harass her.
Cabahug testified primarily about Edward’s unannounced visit to Haiti in 2011 and her concerns about his
erratic behavior. The pediatrician testified that he never had
had any concerns about Emilie’s or Edward’s parenting or
discipline of the children and that both children were
healthy. Emilie’s friend and former house mate testified that
she was a good mother. She also testified that Edward frequently failed to supervise the children closely during the
time period she lived in the home — which was between
June 2010 and January 2011.
The next three hearing days were in July of 2013. The
majority of these hearing days were devoted to Edward’s
direct examination. He also called five witnesses, including
his older son from his first marriage; his older son’s wife; the
current tenants at the Kentucky Avenue home; and friends.
Edward, who was 57 years old at the time of trial, testified that he and Emilie had a relatively happy marriage, but
that Emilie chose to have extra-marital affairs that caused
tension and distrust. He claimed that she had had an emotional affair with a man she had met on a trip to Israel during the first year of their marriage. He disputed that her
affair with the JHH attending physician had lasted just three
months. According to Edward, while the sexual relationship
was short-lived, Emilie maintained intimate contact with her
paramour through e-mails until February of 2010. Edward
maintained that, shortly thereafter, Emilie pursued a relationship with Hynes.
Edward testified that, despite Emilie’s infidelity, he
remained committed to making their marriage work. He
denied trying to control her and stated that he never had
tracked her whereabouts or surreptitiously obtained her email passwords. He claimed that he accessed her e-mail on
their family computer with her knowledge because she did
not attempt to conceal them. He could open her account
and view her e-mails without entering a password. He
acknowledged reading certain text messages on Emilie’s
cell phone without her knowledge.
Edward further testified that, even before they married,
he and Emilie had planned for him to stay home with their
future children. Emilie’s work schedule and international
travel made this a necessity, according to Edward. He disputed that Ramiro and Sereno had entered full-time daycare
in 2007, testifying that Ramiro was in half-day preschool at
that time and Sereno only was enrolled for a few hours a
day. He acknowledged that both boys were enrolled in
school full-time once they entered kindergarten, however.
They currently were attending the St. Francis of Assisi
School, a private Catholic school located directly across the
street from the Kentucky Avenue home. Ramiro was in the
fifth grade and Sereno was in the third grade.
Edward has a high-school degree and a degree from
Williamson Trade School, in power plant technology. He
stated that he renovated the Kentucky Avenue home
throughout most of the parties’ marriage. He disputed that
the home was in a state of disrepair or that he failed to complete the home renovations in a timely matter. He described
numerous renovations he made to the home over 12 years,
including a full kitchen renovation, renovations to the living
room and dining room, and landscaping. He contracted with
Amish carpenters to assist with some of this work, driving
them to and from Pennsylvania to complete the projects.
Edward denied having written or mailed any of the
anonymous letters he claimed to have received during the
course of the marriage. He also denied having made copies
of the keys to either of Emilie’s apartments or to having
entered Emilie’s apartment surreptitiously to steal her journals and books about divorce.
Edward’s other witnesses testified that he was a loving
and involved father and that he was the primary caregiver
for the children during most of the parties’ marriage.
On July 24, 2013, which was the last hearing day in July,
Emilie moved to modify the existing pendente lite custody
and visitation order so she would have physical custody of
the children Monday through Thursday night and on alternating weekends. The court permitted Emilie to testify
about the motion to modify. She explained that on May 31,
2013, she had moved from her apartment in Baltimore City
to a house in Howard County, which she was renting for
$3,500 a month. She had chosen to move for two reasons.
First, she was concerned that Edward was surveilling her
apartment in Baltimore and making it a point to be present
at the boys’ current school or outside of the Kentucky
Avenue home whenever she picked up the boys from
school. She thought putting distance between them would
be beneficial.
Second, she was unhappy with the quality of the education the boys were receiving at their private religious school
in Baltimore and thought they would do better in a public
educational setting. The nearby public schools in Howard
County had significantly better standardized test scores
than the boys’ current school. Emilie also explained that it
would be difficult for her to afford to continue paying the
57
boys’ private school tuition of $1,400 per month because of
her dramatic increase in rent. For these reasons, she asked
the court to modify the existing custody order to give her
physical custody during the school week, which would
allow her to enroll the boys in public school.
Edward testified in opposition to the motion for modification. He took the position that the boys were thriving in
their current school and they had bonds with friends and
teachers there. He explained that he also believed they benefited from the religious education they were receiving. He
acknowledged that he volunteered at the boys’ school on
Monday afternoons, which was one of the days that Emilie
picked them up, but claimed that he had made a point of
keeping his back to her when she arrived. He denied watching her from the Kentucky Avenue home or otherwise monitoring her whereabouts.
The court granted the motion to modify. It found that
the modification would be in the best interests of the children because the public school nearest Emilie’s house in
Howard County had better test scores than the school they
were attending; it was more affordable for Emilie, who was
solely responsible for school costs; and it would put an end
to Edward’s being present during Emilie’s school pick-ups,
which the court found Edward used to attempt to intimidate
and control Emilie. That same day, the court entered a modified pendente lite order in keeping with its oral ruling. The
court also advised the parties that the merits hearing would
start up again in late November or early December, with
notices to be forthcoming.
On July 29, 2013, the court notified the parties that the
merits hearing was scheduled to continue on December 3, 4,
and 5, 2013.
On December 3, 2013, Edward failed to appear for the
hearing. His attorney represented to the court that he had
spoken to Edward the day before and Edward had been
planning to attend. That morning he had received a telephone message from Edward in which he said that he had
had a “personal emergency” because “someone very close
to him passed away,” the funeral was that morning in
Pennsylvania, and he was on his way there. Edward’s attorney had called Edward in response to the message. Based
upon their conversation, Edward had decided to turn
around and was currently on his way to court. He expected
to arrive by noon.
Emilie’s counsel argued that the court should hold
Edward in contempt for his failure to appear and order him
to pay her attorney’s fees for the morning. She pointed out
that the “only thing [left] to do . . . [was] to cross-examine
[Edward]” and suggested to the court that Edward’s
absence likely was a “strategic move” to avoid having the
case come to a close. Emilie’s counsel explained that she
needed to cross-examine Edward about “financial issues
because he’s requesting alimony and attorney’s fees” and
about the custody issues.
The court found that Edward’s absence was willful and
was disruptive to the court proceedings because the case
could not go forward without him at that juncture. On that
basis, the court found Edward to be in direct criminal contempt and ordered him to pay $300 for every hour he was
58
absent, which was the hourly rate that Emilie’s lawyer proffered to the court that she was charging. The court denied a
request by Edward’s lawyer to convert the criminal contempt into a civil contempt.
After a brief recess, Emilie’s lawyer decided to forego
cross-examination of Edward and move forward with other
evidence. Edward’s lawyer objected to the hearing proceeding in Edward’s absence and asked the court to stay the
hearing for a few hours so Edward could attend. The judge
denied the request, but stated that she would “not necessarily fine [Edward] $300.00 an hour” if the hearing could move
forward without him.
As soon as the court ruled, Edward’s lawyer sought to
call Hynes as a witness to corroborate the adultery grounds
alleged in the countercomplaint. Emilie’s counsel opposed,
noting that Hynes was not on Edward’s witness list and had
not been subpoenaed to testify. Edward’s counsel responded that Hynes was on Emilie’s witness list, so she could not
argue unfair surprise, and was present outside the courtroom. The court questioned the necessity of presenting evidence on adultery given that, by then, the parties had been
separated for more than two years, which itself was a
ground for absolute divorce. The court denied the request to
call Hynes as a witness based on lack of notice. The court
also found that Edward would not be prejudiced by the ruling because there already had been considerable testimony
about Emilie’s adulterous relationship with Hynes.
At that point, Edward’s lawyer declined to call any
other witnesses and rested his case.
Emilie was recalled briefly on rebuttal. She testified that
upon reviewing bank records of the parties’ joint checking
account that Edward had produced in discovery, she discovered that Edward had made large cash withdrawals from
that account on numerous occasions, beginning during her
residency. The withdrawals, which occurred several times
each month, were often for $600 or $700. She had had no
knowledge of these withdrawals or their purpose. Emilie’s
counsel moved the bank records into evidence without
objection.
Counsel gave their closing arguments. The judge directed them and the parties to return on December 5, 2013, at
2:00 p.m., at which time she would render her decision. The
hearing was adjourned at 1:00 p.m. Edward had not
appeared.
When the court reconvened, on December 5, 2013,
Edward was not present. The judge inquired as to his
whereabouts and Emilie’s lawyer asked to address the
court. Emilie’s lawyer stated that, about two hours earlier,
Emilie had received a telephone call from a detective with
the Baltimore City Police Department (“BPD”) who was
concerned for her safety. The detective told Emilie that
Edward had “surfaced in Ohio” claiming to have been
abducted on his way back to Maryland from Pennsylvania
two days earlier. The detective was on his way to court to
“tell us what was going on.” In light of these events, Emilie’s
lawyer asked the court to consider “suspend[ing]” any
award of visitation to Edward or ordering that it be supervised “until such time as [Edward’s] located” and possibly
until after he could undergo a psychiatric evaluation.
Emilie’s lawyer proffered that she was considering filing an
emergency petition for evaluation herself.
The court asked Edward’s lawyer if he wished to “say
anything on the record.” He responded that he wished to
“reserve all possible rights for [Edward] in this proceeding.”
Right at that time, two BPD detectives arrived and the
court advised that it would “swear them in and . . . take
some information.” Edward’s lawyer replied, “I understand,
Your Honor.” Detective Anthony Forbes took the witness
stand and was questioned by the court. He testified that at
9:30 that morning, he received a telephone call from an officer with the Ohio State Police Department informing him
that Edward was at a police station in Ohio and was claiming to have been abducted on Tuesday, December 3, 2013,
from Baltimore City, and driven by his abductor to Ohio.
Edward had told the police in Ohio that his abductor had
shown him a picture of the man Emilie allegedly was having
an affair with (i.e., Hynes). The car that Edward claimed to
have been abducted in belonged to him, and had blankets,
pillows, a cooler, and other amenities inside it. The Ohio
State Police thought that Edward was unstable and were
concerned that he might have hurt Emilie. They had Edward
in custody and wanted the BPD to check on Emilie’s welfare.
BPD officers immediately went to the Kentucky Avenue
home to check on Emilie, but there was no response. They
contacted the Ohio State Police again and were advised that
Edward, on the advice of counsel, would not speak to them
any more and was planning to return to Baltimore. The BPD
officers learned that Emilie worked at UMD. Through that
channel they were able to contact her by telephone and
learned that she was in court. They had come to the courthouse to see her, to make sure she was all right. In short, the
Ohio State Police officers had been worried that Edward
had murdered Emilie, and needed BPD officers to visualize
her before they would release Edward.
Emilie’s lawyer asked Detective Forbes one question.
Edward’s counsel declined to question him.
Counsel for the parties, Detective Forbes, and the court
then had a long discussion on the record, during which the
court expressed concern that Edward was “unstable” and
that Emilie and the children were in danger. The judge noted
that she already had prepared a 40- page opinion to read
into the record, but would “have to change it now — given
the neuroticism of [Edward’s] behavior, and the volatility,
and the dangerousness of this situation, not only to [Emilie],
but to the children.” Edward’s counsel noted an objection to
the court’s altering its opinion based upon the testimony of
Detective Forbes.
After an additional lengthy discussion, the judge read
her opinion into the record, making some alterations based
on the information disclosed by Detective Forbes that morning. The court largely credited the testimony of Emilie and
her witnesses and rejected the testimony of Edward and his
witnesses. The court’s findings were as follows:
Edward had a “very controlling” personality; he “hardly
listened to [Emilie]” and insisted that everything be “done
his way”; he “incessantly questioned” Emilie about male colTheDailyRecord.com/Maryland-Family-Law
leagues; and “eavesdropped on her telephone conversations.” Edward’s “erratic behavior, insecurity, and suspicion
of [Emilie]” were “staple[s] of the marriage.” Edward was
the author of all the letters he claimed to have received from
an anonymous person or people during the marriage and of
the letters sent to Emilie’s friends and family. Edward made
a copy of the key to Emilie’s apartment in September of
2011, after they separated, and assaulted her when she tried
to get the copied key from his pocket. Edward monitored
Emilie’s electronic communications throughout the marriage, without her consent or knowledge, and continued to
do so after they separated.
Edward was uninvolved in child-rearing for the first six
months of Ramiro’s and Sereno’s lives because, after each
child was born, he made frequent trips to Pennsylvania.
Even after Emilie returned to work six months after the
birth of each child, she continued to bear a large part of the
responsibility for managing household affairs. Edward made
slow progress on his planned renovations to the Kentucky
Avenue home. The house still did not have central heat and
the kitchen renovation project, which finally was completed
in 2010, had taken five years.
Emilie “begged” Edward to find employment in 2004,
when they were forced to apply for food stamps and WIC
aid to support their family. At that time, Emilie was in
school and the parties had no source of income. Edward
refused to seek employment, telling Emilie that he did not
want to work for anyone else and would not discuss the
matter. By June of 2007, both children were in daycare fulltime. Emilie was earning just $40,000 a year as a medical
resident, and Edward still was not employed.
Emilie had an affair with the JHH attending physician
for three months in 2007; she told Edward about it; and she
ended the affair. Edward’s controlling behavior and jealousy
increased markedly after Emilie’s affair.
Once Emilie earned her medical degree and began
working at HCGH in June of 2009, the parties had to start
paying off her huge student loan debt. Emilie again begged
Edward to seek employment, but he refused to discuss the
matter with her. In 2010, Edward’s behavior became increasingly erratic. He secretly monitored Emilie’s e-mail correspondence and learned about her meeting with the JHH
attending physician; became suspicious that she was having
an affair with Hynes; traveled to Colorado to see Hynes and
deliver a strange package to him; and then traveled to Haiti
unannounced to track Emilie. This was also the year that
Edward started to claim that he had received the anonymous letters, which, as mentioned, the court found he had
authored. The “anonymous” letters became increasingly
threatening over the course of 2010.
The court granted Emilie a divorce based upon a separation of more than 12 months. It then turned to the issue of
marital property. We shall discuss the court’s findings and
determinations about the equitable distribution of the property, infra. Suffice it to say the court awarded each party an
interest in the other party’s retirement account and ordered
the sale of the Kentucky Avenue home, but declined to grant
a monetary award.
59
On the issue of alimony, the court reviewed the factors
in Md. Code (2012 Repl. Vol., 2013 Supp.), section 11-106(b)
of the Family Law Article (“FL”), incorporating by reference
her analysis of the monetary award factors as relevant, and
denied Edward’s request for alimony. The court also denied
Edward’s request for attorneys’ fees. We shall discuss these
rulings in more detail in our discussion of the issues presented.
The court awarded Emilie sole legal and physical custody of the children and denied any visitation to Edward. We
shall discuss the court’s findings in this regard as well. The
court did not award any child support.
On December 9, 2013, the court entered a memorandum opinion and order consistent with its bench ruling.
Three days later, the court granted Edward’s attorney’s
motion to strike his appearance.10
On December 16, 2013, Edward, now pro se, filed a
motion for new trial. In it, he recited the circumstances of
his alleged abduction to Ohio and asked the court to grant
him a new trial so he could finish presenting his case.
On January 6, 2013, Edward filed a notice of appeal
from the judgment of absolute divorce and, through new
counsel, filed a motion to revise or to alter or amend the
judgment.
Emilie opposed both post-judgment motions. By order
of February 3, 2014, the court denied the motions. On March
4, 2014, Edward filed a second notice of appeal. As noted,
his two appeals have been consolidated by this Court.
We shall include additional facts in our discussion of
the issues.
Discussion
I.
Admission of Final Protective Order
Edward contends the trial court erred by admitting into
evidence the Final Protective Order that Emilie obtained
against him because it was inadmissible pursuant to FL section 7-103.1.11 Emilie responds that this issue is not preserved for review because the Final Protective Order was
admitted without objection. She further responds that, even
if the issue were preserved for review, it lacks merit,
because the Final Protective Order was admissible in evidence with respect to custody and visitation. Finally, she
maintains that, if the court erred, any error was harmless.
We agree that this issue is not preserved for review.
Emilie’s counsel moved the introduction of the Final
Protective Order into evidence on the first day of trial.
Edward’s counsel responded, “No objection, Your Honor.”
The court then admitted the Final Protective Order into evidence.
Having failed to object to the admission of the Final
Protective Order, Edward may not be heard to complain on
appeal that it was admitted in error. 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.”); Md. Rule 8-131(a) (“Ordinarily, the
appellate court will not decide any [non-jurisdictional] issue
60
unless it plainly appears by the record to have been raised in
or decided by the trial court.”); Scott v. Prince George’s
County Dep’t of Social Servs., 76 Md. App. 357, 384 (1988)
(“counsel must bring his or her client’s position to the attention of the trial court so that it can pass upon and possibly
avoid or correct any errors in the proceedings”). We decline
to address this unpreserved issue.
II.
Bias
Edward contends the trial judge failed to maintain
an unbiased temperament during the nine-day trial and
that her bias in favor of Emilie deprived him of a fair
trial. Specifically, he asserts that the trial judge
“label[ed]” the parties early on as a “domestic violence
abuser” (Edward) and a “victim” (Emilie) and viewed all
of the evidence through that prism.
Emilie responds that this issue also is not preserved
for review because Edward never objected to any statements made by the judge, nor did he make any argument
during the trial that the judge was depriving him of a fair
trial. She asserts that, even if the issue is preserved, the
few isolated statements Edward complains about did not
amount to bias. Moreover, Edward has not shown any
prejudice flowing from the alleged bias.
We agree with Emilie that this issue, like the last, is
not preserved. At no time during the merits hearing did
Edward’s counsel argue that the trial judge was not
maintaining an unbiased temperament. We recognize the
difficulty faced by trial counsel who needs to make a
record on the issue of bias but does not want to alienate
the trial judge, especially when the trial judge is the finder of fact. See Braxton v. Faber, 91 Md. App. 391, 405
(1992) (describing the “Hobson’s Choice” faced by trial
counsel). Nevertheless, in order to ensure that the judge
is made aware of the objection to his or her conduct of
the trial at a time when the judge can remedy any real or
perceived bias, trial counsel must bring these concerns
to the attention of the court and request a remedy. Id. at
408-09. In the instant case, Edward’s counsel did not
object at any time to the trial court’s conduct of the trial
and never suggested that the trial judge was behaving in
a biased manner. For this reason, we decline to consider
this contention of error.
III.
Denial of Request to Call Hynes As a Witness And
of Oral Motion to Compel
Edward contends the trial court erred when, on
December 3, 2013, it denied his counsel’s request to call
Hynes as a witness to corroborate the adultery count in
his countercomplaint and denied his counsel’s oral
motion to compel Emilie to produce e-mails she had
exchanged with Hynes. Emilie responds that the court
acted within its broad discretion to decline to permit
Edward to call a witness he did not disclose on his witness list and to deny the oral motion to compel.
Moreover, she asserts that Edward has not shown any
prejudice flowing from these rulings.
As discussed above, December 3, 2013, was the last
evidentiary hearing day, and the one Edward did not
appear for because he supposedly decided to travel to
Pennsylvania for a funeral. The trial was still in Edward’s
case, and all that was left was his cross examination. In
Edward’s absence, his counsel sought to examine Hynes
and to compel Emilie to produce e-mail correspondence
between her and Hynes.
The only possible purpose for Edward’s lawyer to
call Hynes to testify was to put on proof of adultery.
Emilie already had admitted in her testimony to having
been sexually involved with the JHH attending physician
and with Hynes. The court made clear that there was no
need for Edward to put on further evidence of adultery.
Moreover, the court pointed out that, with respect to
grounds for divorce, the evidence as presented established a separation for sufficient time to grant an
absolute divorce. And Hynes was not on Edward’s witness list and Edward had not filed a motion to compel
production of the e-mails (or shown that they had not
been produced after a proper request). Under the circumstances, the trial court did not err or abuse its discretion in denying Edward’s lawyer’s request to call
Hynes as a witness or his oral motion to compel.
We further note that, in its opinion, the court in fact
found that Emilie had been unfaithful to Edward during
their marriage. Although the court could have granted
the divorce on the ground of adultery, it chose instead to
grant it on the ground of a separation for the requisite
period of time. That choice was not a result of lack of
proof of adultery. Thus, even if the trial court erred or
abused its discretion in not allowing Edward’s lawyer to
call Hynes to testify, and in not granting the oral motion
to compel — and it is clear the court did not err or abuse
its discretion — it would have made no difference in the
outcome of the case.
IV.
Reopening the Case
Edward contends the trial court erred by sua sponte
reopening the evidentiary record on December 5, 2013,
to take testimony from Detective Forbes. Emilie
responds that the trial court did not abuse its discretion
by reopening the case to take additional evidence that
was relevant to deciding the best interests of the minor
children in this custody dispute.
We disagree that the court sua sponte reopened the
case. Emilie’s counsel proffered to the court that a BPD
detective had very recent information he wished to provide to the court bearing on Edward’s current mental
state and on the safety of Emilie and the children; and
that the detective was on his way to the court to provide
that information. While Emilie’s counsel did not expressly move to reopen the case, it was implicit in her proffer
that she was asking the court to permit Detective Forbes
to give testimony about information that was highly relevant to the issues before the court for decision. The trial
court reasonably treated this as a request for the court to
reopen the evidentiary record to take additional testimoTheDailyRecord.com/Maryland-Family-Law
ny before rendering its decision. The trial court is vested
with broad discretion to grant a request to reopen a case
to take additional evidence. See, e.g., Gillespie-Linton v.
Miles, 58 Md. App. 484, 499-500 (1984). The trial court
plainly did not abuse its discretion by allowing a police
officer to testify about very recent alarming behavior by
Edward that had a direct bearing on issues before the
court, particularly its determination as to the best interests of the minor children.12
V.
Monetary Award, Alimony, and Attorneys’ Fees
Edward contends the trial court erred by denying his
requests for a monetary award, alimony, and attorneys’
fees. He asserts both that the court made certain clearly
erroneous factual findings and that it abused its discretion in weighing the relevant statutory factors.
Emilie responds that the trial court did not make any
clearly erroneous factual findings or commit any clear
error and that its findings amply supported its decisions
not to grant a monetary award, not to order Emilie to
pay alimony, and not to order attorneys’ fees.
A. Monetary Award
We review the court’s determinations as to which
property is marital and nonmarital and the value of that
property for clear error. Innerbichler v. Innerbichler,
132 Md. App. 207, 229 (2000). We will not disturb these
findings unless they are clearly erroneous. Noffsinger v.
Noffsinger, 95 Md. App. 265, 285 (1993). “When the trial
court’s findings are supported by substantial evidence,
the findings are not clearly erroneous.” Innerbichler, 132
Md. App. at 230. “With respect to the ultimate decision
regarding whether to grant a monetary award and the
amount of such an award, a discretionary standard of
review applies.” Id.
In the instant case, the court found that the following items of marital property were jointly titled: the
Kentucky Avenue home, with a net value of $309,000,
and the Bryn Mawr home, with a net value of $142,500;13
furniture valued at $7,000; tools valued at $5,000; a 1997
Honda Civic valued at $600; a 2005 Honda Civic valued at
$2,324; and a retirement account with a negative balance
of $5,000. It found that three items of marital property
were titled in Edward’s name: a 1989 Honda Civic with
no value; a Roth IRA with a balance of $4,000; and a
Citizens retirement account with a balance of $3,000.
One item of property that was part marital and part nonmarital was titled to Edward: a TIAA-CREF retirement
account with a balance of $67,930. Items of marital property titled in Emilie’s name were: two checking accounts
with a total balance of $12,126.53; a Roth IRA with a balance of $4,000; a JHU 403B account with a balance of
$37,282.47; and a “JH EMS” 401(k) account with a balance of $26,978.56. The court found that Emilie had significant student loan and credit card debt in her name.
The trial court turned to the relevant factors in FL
section 8-205(b)14 and found that Emilie’s “contributions
to the marriage were far more substantial than
61
[Edward’s].” It noted that Emilie was the primary wage
earner and “took responsibility for the care of the children.” The court found that when Emilie traveled
abroad, Edward frequently “pawn[ed] the responsibility
of childcare onto relatives or teachers.” Moreover, once
the children both were in full-time daycare in June 2007,
Edward did not seek out employment or otherwise make
any meaningful contributions to the marriage.
The court found that both parties contributed equally to the acquisition of the Kentucky Avenue home, but
that Emilie had been solely responsible for the costs of
that home since the parties separated; that there was no
evidence that either party contributed nonmarital funds
to the purchase of that property; and that the evidence
bearing on the acquisition of the parties’ retirement
accounts was slight. It noted that it would not be awarding alimony and would be ordering the sale of the
Kentucky Avenue home. It further noted that Emilie and
Edward both were healthy and that Edward was nearly
twenty years older than Emilie.
After considering these factors, the court decided
that it would be “fair and equitable to make the following
adjustments of the parties’ equities and rights” in the
marital property: title to the 2005 Honda Civic would be
transferred to Emilie; title to the 1997 Honda Civic would
be transferred to Edward; the Kentucky Avenue home
would be sold, with the net proceeds to be divided equally; the parties would divide all jointly titled personal
property; the parties would retain all funds in bank
accounts titled in their names and Emilie would be
responsible for the Citizen’s account with a negative balance; and the parties would retain their own Roth IRA
accounts. The court granted Emilie a 50% share of the
marital portion of Edward’s TIAA-CREF retirement
account on an if, as, and when basis; and granted
Edward a 50% share of the marital portion of Emilie’s
UM 403B and her JHH 401(k) accounts on an if, as, and
when basis. The parties were directed to prepare and
submit qualified domestic relations orders to effectuate
these rulings.
Edward asserts that the court erroneously “found” in
its recitation of facts that the cash used to purchase the
Kentucky Avenue home came entirely from Emilie’s
salary at DuPont and a loan from her parents. He maintains that this finding is contradicted by Emilie’s own
testimony.15 In the section of the opinion valuing and distributing marital property, however, the court found that
the parties equally contributed to the acquisition of the
marital home. We perceive no error in this finding.
We also perceive no error in the court’s finding that
Emilie was the primary wage earner in the family and
took a significant role in managing the household. To be
sure, Edward disputed Emilie’s testimony to this effect,
and there was other witness testimony supporting
Edward’s position. Nevertheless, it is the province of the
trial court to assess credibility and to weigh the evidence. The trial court clearly found Emilie to be a much
more credible witness than Edward. Moreover, the court
62
noted that the witnesses presented by Edward had limited knowledge about the parties’ home life and therefore
it accorded little weight to their testimony. We will not
disturb these findings on appeal.
The trial court did not clearly err in any of its factual
findings and did not abuse its discretion in declining to
grant a monetary award to Edward. The court determined that the jointly titled marital property would be
divided equally, i.e., consistent with title, except that the
automobiles would be transferred each to the parties
and Emilie would be responsible for the $5,000 joint
retirement account debt. Because the court did not have
jurisdiction to order the sale of the Bryn Mawr home,
that jointly titled asset will continue to generate income,
until it is sold by consent of the parties or Pennsylvania
court order, and Edward will receive that income. The
individually titled marital property was divided by title;
that titled to Emilie exceeded that titled to Edward by
about $9,000. Emilie had no nonmarital property, however, while a large portion of Edward’s TIAA-CREF pension
was nonmarital. Thus, in real terms, Edward benefited
more from the equal division of the marital portions of
the retirement accounts than Emilie did. Moreover,
Emilie is solely responsible for the large student loan
debt; and some of that debt was incurred for living
expenses enjoyed by Edward who, as the court put it,
chose not to be employed for most of the marriage.
Given the court’s nonclearly erroneous findings that
Edward did not contribute to the welfare of the family,
financially or otherwise, the court’s distribution of the
marital property on an almost equal basis was not an
abuse of discretion.
B. Alimony
“[I]n reviewing an award of alimony we defer to the
findings and judgments of the trial court. We will not disturb an alimony determination unless the trial court’s
judgment is clearly wrong or an arbitrary use of discretion.” Ridgeway v. Ridgeway, 171 Md. App. 373, 383-84
(2006) (internal citations omitted).
The trial court found that Edward had the ability to
be self-supporting given that he had been employed at
Bryn Mawr for 21 years and “fully supported himself
prior to the marriage”; he did not have any health problems or physical disabilities; and he was “currently
unemployed by choice.” The court further found that
Edward did not require any training or education to find
suitable employment, and that Edward was “readily
employable in the service industry.” The court emphasized that Edward had had many years in which to “better his circumstances” if he had wanted to do so. He
chose, however, not to pursue education, training, or
employment.
In assessing the parties’ standard of living during the
marriage, the court found the evidence overwhelming
that they lived “frugally” because Edward did not work
and, until 2009, Emilie was in school with no income or a
low income. The court noted that, although the parties’
economic circumstances improved in June of 2009, when
Emilie took the position at HCGC, and in 2010, when she
accepted her current position at UM, the parties nevertheless continued to live frugally because they had one
income and were paying Emilie’s student loans and other
debt, as well as the boys’ private school tuition.
The court found that it would be a “financial hardship” for Emilie to pay alimony. It explained that,
although her salary was high, she had “substantial debt
and expenses” and her financial statement showed that
she had been operating “on a deficit” for some time.
Some of her current expenses would be alleviated by the
sale of the Kentucky Avenue home, but she still would be
responsible for all of costs for the children, her student
loan debt, and the costs of her current household.
Turning to the parties’ financial needs and assets, the
court found that Emilie earned a net salary of $11,502
per month and had expenses that exceeded this income
each month (although some of them, including the boys’
private school tuition and the mortgage on the Kentucky
Avenue home, would be eliminated by virtue of the
court’s other rulings). The court found Edward’s financial statement, which listed monthly expenses totaling
$7,115, and monthly income comprised only of rental
income from the Kentucky Avenue and the Bryn Mawr
homes, to be somewhat unreliable. The court noted that
Emilie had paid all of the expenses associated with the
Kentucky Avenue home and the children’s expenses
since the parties’ separation.16
In light of all of these factors, especially Edward’s
“choice to remain unemployed, the parties’ modest standard of living, and the parties’ financial needs and
resources,” the court denied Edward’s request for alimony. It further found that Edward’s request for Emilie to
pay for his health insurance and medical expenses was
not “mandated by law or warranted” under the facts of
this case.
Edward contends the trial court erred in denying his
request for alimony, both rehabilitative and indefinite.
The court’s finding that Edward did not require any
training or education to find suitable employment supported its decision to deny rehabilitative alimony.
Edward argues that the evidence was plain that his
income and Emilie’s income were and would continue to
be unconscionably disparate and on that basis the court
should have awarded him indefinite alimony. The court
found that Edward had an earning potential of $30,000 a
year and that Emilie was earning more than $200,000 per
year. This evidence did not mandate an award of indefinite alimony. The decision whether to grant an award of
indefinite alimony on the ground that post-divorce standards of living of the parties will be unconscionably disparate is not strictly a function of the ratio of the parties’
post-divorce incomes. Although that is relevant, it must
be viewed in the context of the standard of living the
parties shared during the marriage. The trial court’s finding that the parties lived a “frugal” lifestyle throughout
their marriage was supported by competent and material
evidence. The parties lived in a house with no central
heat and for years did not have a functional kitchen.
While Emilie was pursuing her medical and public health
education the parties had virtually no income except for
loans, and had to resort to public assistance. The family
of four lived on Emilie’s $40,000 a year salary during her
residency. The parties had modest vehicles and had little
in the way of personal property. Emilie’s income
increased significantly after her residency, but she had
tremendous debt and Edward insisted upon remaining
unemployed, so their lifestyle did not improve.
Although Edward had chosen not to take any steps
to obtain employment during the marriage, his 20 plus
year employment history made him “readily employable”
in the service industry at a level of income that would
result in a standard of living that would not be a significant deviation from the standard of living of the parties
throughout the marriage. Viewed in that context, the difference in income of the parties post-divorce would not
produce an unconscionably disparate standard of living.
We perceive no abuse of discretion in the court’s decision to deny Edward’s indefinite alimony request.
C. Attorneys’ Fees
We review a court’s decision to grant or deny a
request for attorneys’ fees for abuse of discretion. Meyr
v. Meyr, 195 Md. App. 524, 552 (2010). The court found
that Edward had incurred approximately $70,000 in
attorneys’ fees. The court rejected as not credible his testimony that he borrowed money from his sister to pay
these expenses. The court noted that other evidence
showed that Edward’s sister had limited means and
could not have afforded to pay the fees. The court found
it more likely that Edward had secreted away marital
funds from his cash withdrawals from the parties’ joint
checking account and had used some of those funds to
pay his attorneys’ fees.17
The court further found that Emilie had substantial
justification to bring and maintain the divorce action and
that Edward had drawn out the proceedings unnecessarily and had used the proceedings to continue his campaign of harassment. It also found that Edward had sufficient funds to pay the fees and denied his request. The
court’s findings were supported by substantial evidence
and were not clearly erroneous. The court did not abuse
its discretion in denying Edward’s request for attorneys’
fees.
VI.
Involuntary Psychiatric Evaluation
Immediately after the trial court gave its oral ruling
from the bench, Emilie’s lawyer presented the court with
a completed petition for emergency evaluation pursuant
to Md. Code (2009 Repl. Vol., 2013 Supp.) section 10-620
et seq. of the Health General Article (“HG”). HG section
10-622 allows a medical professional, police officer, or
“[a]ny other interested person” to file a petition to compel an individual to be evaluated at an emergency facility
if the petitioner has reason to believe the individual
“[h]as a mental disorder” and “presents a danger to the
63
life or safety of the individual or of others.” If the petitioner is a lay person, as was the case here, he or she
must “present the petition to the court for immediate
review.” HF § 10-623(a). If the court finds “probable
cause to believe that the emergency evaluee has shown
the symptoms of a mental disorder and that the individual presents a danger to the life or safety of the individual or of others,” it shall grant the petition. HG § 10623(b). Once a petition has been granted, the police may
detain the individual and transport him or her to an
emergency facility for evaluation by a medical professional within six hours, at which time the individual may
be released; be voluntarily admitted to a mental health
facility; or be involuntarily admitted to a mental health
facility if he or she meets the statutory criteria for involuntary admission. HG § 10-624.
In the instant case, the court agreed to rule on the
petition based upon the testimony given earlier that day
by Detective Forbes. Edward’s lawyer did not object to
this manner of proceeding. The court then heard argument on the emergency petition and granted it, ordering
that Edward be taken into police custody and transported to the nearest emergency facility for evaluation within
six hours of arrival. Emilie’s lawyer was listed as the
“contact person” on the emergency petition.
In his brief, Edward states that as a result of the
emergency petition, he was admitted to the inpatient
psychiatric unit at Sinai Hospital for ten days.
Edward argues that the court erred in delegating its
authority to speak to hospital personnel to Emilie’s
lawyer; that hospital personnel did in fact speak to
Emilie’s lawyer; and that, as a direct result of that conversation, hospital personnel decided to hold Edward
involuntarily for another eight days. Emilie responds that
this issue is not properly before this Court for review
because the emergency petition was docketed as a separate case from the divorce action and Edward did not
challenge his involuntary commitment or pursue an
appeal in that case as provided under the Health General
Article. See generally HG § 10-631 et seq. (governing
hearing rights and judicial review rights of individuals
involuntarily committed). We agree that, although evidence heard in this divorce action formed the basis for
the grant of the petition, the involuntary commitment,
and whatever complaints Edward has about how the
commitment was carried out and how much time he
spent at Sinai, were subject to challenge in the commitment case, not this case. Accordingly, the issue is not
properly before us in this appeal.
VII.
Visitation
On the issues of custody and visitation, the court
found Emilie to be a fit and proper custodian for the children; that the children would “benefit substantially from
being in her care”; and that they would have many
opportunities presented to them by “living primarily with
her and in attending public school in Howard County.”
64
The court found that Emilie’s work schedule at UM
would not affect her ability to provide appropriate care
for them. The court emphasized that the reason Emilie
had amended her complaint to seek sole legal and physical custody of the children was that she was fearful that
Edward would attempt to alienate the children from her.
The court found that Edward had exhibited “alarming behavior” with the “most alarming behavior” having
occurred in the last days of the merits hearing. The court
expressed concern that Edward’s erratic behavior had
increased as the merits hearing came closer to a conclusion. The court had “serious concerns about the stability
of [Edward’s] mental health” and worried that he might
be homicidal, based on the notes he sent to Emilie and
his recent behavior.
The court accorded little weight to the testimony of
Edward’s witnesses that he was a fit parent; it found that
those witnesses, who included neighbors and tenants,
really didn’t “know him so well.” The court found that
Edward’s “alarming and dangerous behavior towards
[Emilie] and his use of the children to manipulate
[Emilie]” amounted to abuse under FL section 9-101.1,18
and was a fact the court was required to consider in
deciding the issues of custody and visitation. The court
found further that Edward had been “abusive and [was]
unable to relate to [Emilie] in a healthy manner.” It
opined that Edward had “attempted to control [Emilie]’s
actions and movements”; that his “jealousy” was “unparalled”; and that he was “obsessed” with her. The court
found that Edward had stalked Emilie, even when she
traveled abroad; had “trespasse[d] upon her digital privacy”; and had “compile[d]” the results of his trespasses by
cutting and pasting them together. The court found as a
fact that Edward had attempted to force Emilie to perform oral sex on him when she was in Haiti. It further
found that Edward had stalked Hynes, going to his home
in Colorado unannounced and delivering a letter to him.
Finally, the court found that Edward’s “threatening
behavior” was “escalat[ing]” and at the time of the ruling
he posed an “extreme risk to [Emilie] and the minor children.” For all of these reasons, the court found that it
would be in the best interests of Ramiro and Sereno for
Emilie to have sole legal and physical custody and for
Edward to be denied visitation rights “at this time.”
Edward contends the court abused its discretion by
denying him all visitation with the children — supervised
or unsupervised. He emphasizes that there was no evidence presented that he ever had abused or neglected
Ramiro or Sereno and, in fact, much of the evidence was
to the contrary. Emilie responds that the court made
non-clearly erroneous factual findings that Edward
posed a serious risk to the safety of the minor children
and that the denial of visitation was “warranted by
exceptional circumstances.”
“Although the right of visitation is not an absolute
right, it is an important natural and legal right. It must
yield to the best interests of the child, but it would only
be in an exceptional case and under extraordinary cirTheDailyRecord.com/Maryland-Family-Law
cumstances that the right of visitation will be denied.”
Shapiro v. Shapiro, 54 Md. App. 477, 482 (1983). In light
of these principles, we have upheld the complete denial
of visitation to a non-custodial parent only in the most
extreme circumstances. See, e.g., Painter v. Painter, 113
Md. App. 504 (1997) (father’s severe emotional and physical abuse of the minor children and their mother justified denial of visitation); see also Hanke v. Hanke, 94
Md. App. 65, 70-71 (1992) (vacating order granting
overnight visitation to a father alleged to have sexually
abused a minor child); John O. v. Jane O., 90 Md. App.
406, 435 (1992) (upholding a visitation order restricting
visitation to prohibit father alleged to have sexually
abused minor child from having overnight visits with the
child).
In the instant case, the court found from competent
and material evidence in the record that Edward had
abused Emilie by harassing her, threatening her with
what he claimed to be anonymous letters that in fact he
had written, and stalking her. The court found that the
“anonymous” letters were threatening; that Edward is
obsessed with Emilie and tracks her movements and
communications, compiling them by cutting and pasting
them together and comparing them to her journals,
which he stole from her apartment; that he spies on
Emilie, even when she is in other countries; and that his
stalking and other improper behavior have interfered
with her work.
“Abuse” as used in FL section 9-101.1, means “an act
that places a person eligible for relief [under the
Domestic Violence subtitle] in fear of imminent serious
bodily harm,” and “stalking under § 3-802 of the Criminal
Law Article.” See FL section 4-501(b). The court’s finding
that Edward’s behavior toward Emilie constituted abuse
was not in error.
The court also expressed extreme concern and
alarm about Edward’s behavior during the last days of
the merits hearing. In particular, the information
Detective Forbes testified to was shocking. Edward
appeared at a police station in Ohio early on December
5, 2013 (the last day of the hearing), and reported that he
had been abducted on December 3, 2013, in Baltimore
City, and forced to drive west until he ended up in Ohio.
He showed the police officers in Ohio a photograph of
Hynes, identifying him as the man his wife was having an
affair with. The police searched Edward’s car and found
nothing to support his claim of having been abducted.
Edward’s behavior was so strange and unstable that the
police in Ohio suspected he might have killed Emilie,
which is why they would not release him from custody
until BPD officers actually saw Emilie in person and
could verify her well-being.
The circumstances that existed when the court
entered its order denying Edward any visitation indeed
were exceptional and extraordinary. Instead of appearing at trial, as he was supposed to do, Edward drove to
Ohio and reported a preposterous tale of being abducted
to police there that was bound up in his obsession with
Emilie’s involvement with Hynes. He clearly was unstable and the police in Ohio suspected that he was dangerous, and perhaps had murdered his wife. Although there
was no evidence that Edward ever had physically
harmed the children, the “anonymous” letters he showed
Emilie and that he sent to her family and friends contained threats to harm the children; and he had stalked,
harassed, and assaulted Emilie. The trial judge had a
legitimate concern not only for Emilie’s safety, but for
the safety of the children. And the entire “abduction”
story showed that Edward was unstable and unpredictable. Until there was a demonstrated change in circumstances, to one in which the children’s safety could
be ensured in a supervised setting, the court was justified in restricting all visitation “at this time.” Although a
visitation ruling resulting from a merits hearing is not
temporary, and custody and visitation cases, unlike child
welfare cases, do not involve post-judgment review hearings, the court’s “at this time” language left the door
open for it to consider visitation upon a showing of
material change in circumstances, i.e., a circumstance in
which Edward had stabilized and was not engaging in
bizarre behaviors..
VII.
Denial of Motion for New Trial and Motion to Alter or
Amend
Finally, Edward contends the trial court erred by
denying his motions for a new trial and to alter or amend
the judgment of absolute divorce.
The court did not abuse its discretion by denying
Edward’s motion for a new trial. In that motion, which
Edward filed pro se, he laid out in great detail his absurd
story of having been lured to Pennsylvania by a stranger
who had videos of his (Edward’s) past encounters with
the JHH attending physician and Hynes, and of events in
Haiti, that Edward needed for trial; then being abducted
by the stranger at gunpoint and forced to drive to Ohio;
and then being given pictures of his sons, Hynes’s birth
certificate, and a bottle of wine, “compliments from your
wife and her boyfriend and the people who didn’t want
you at your trial.” The trial judge did not abuse her discretion in denying the new trial request based on this
senseless account of events.
Edward’s motion to alter or amend was filed more
than ten days, but less than 30 days, after the entry of the
judgment of absolute divorce and thus the court treated
it as a Rule 2-535 motion to revise. In his motion, Edward
made the same arguments he has made in the instant
appeal. He also argued that the trial court erred by finding him in direct criminal contempt for his failure to
appear on December 3, 2013. The court granted Edward
a hearing on the issue of the contempt finding, but otherwise denied the motion to revise. The court has broad
discretion whether to exercise its revisory power and we
perceive no abuse of that discretion by the court in
declining to exercise it here.
65
JUDGMENT AFFIRMED.
COSTS TO BE PAID BY THE APPELLANT.
Footnotes
1. For ease of discussion, we shall refer to the parties by their
first names.
2. Edward filed two notices of appeal in the circuit court, one
within 30 days of the entry of the judgment of absolute divorce
and a second within 30 days of the denial of his motions for a
new trial and to alter or amend. The appeals have been consolidated by this Court.
3. Edward and his wife had been separated for some time. His
wife had given birth to a son by another man during the marriage and later moved out of their home.
4. They agreed to repay the loan, plus 21.2% of the value of the
home that had accrued, whenever they sold it.
5. The parties relied on oil-filled space heaters and on a gas
stove on the third floor of the home to keep warm. In 2010,
they had two gas fireplaces installed on the first and second
floor of the Kentucky Avenue home.
6. This was not the first time Edward had followed Emilie without her permission to the site of a work-related trip abroad.
The first occasion was in June of 2000, less than a year into the
parties’ marriage. Emilie had traveled to Guatemala to work as
a medical volunteer. Edward flew there without warning to
“interrogate” her about her relationships with male colleagues
on the trip.
7. Emilie does not dispute that she had an affair with Hynes.
The two are presently engaged to be married.
8. “Mike” is the first name of the attending physician at JHH
with whom Emilie had had an affair.
9. Edward was a practicing Mormon; by the time he and Emilie
married, he had adopted her protestant Christian beliefs.
10. Edward’s attorney had made an oral motion to strike his
appearance in court on December 5, 2013. The court directed
him to give Edward notice and held the motion sub curia for
the five-day notice period required by Rule 2-132(b).
11. FL section 7-103.1 states that “[a]n order or decision in a
proceeding under [the Domestic Violence subtitle] of this article is inadmissible as evidence in a proceeding under [the
divorce] title.”
12. We note, moreover, that Edward’s counsel did not expressly
object to Detective Forbes being allowed to testify.
Nevertheless, the trial court seemed to presume that Edward’s
counsel, by asking to reserve all of his client’s rights, had noted
his “objection” to the court’s hearing from Detective Forbes.
13. Although the court found that the Bryn Mawr home was
marital property, it determined that it could not order that
property to be sold because it was not located in Maryland.
The court noted in its ruling that it assumed that Edward
would continue to receive rental income from the property; it
did not order Edward to split the rental income with Emilie. As
mentioned, at the time of the trial, the rental income was $950
per month and the monthly HELOC payments were $335, for a
net rental income of $615 per month.
14. The factors a court must consider, if relevant, are:
(1) the contributions, monetary and nonmonetary, of
each party to the well-being of the family;
(2) the value of all property interests of each party;
(3) the economic circumstances of each party at the
66
time the award is to be made;
(4) the circumstances that contributed to the
estrangement of the parties;
(5) the duration of the marriage;
(6) the age of each party;
(7) the physical and mental condition of each party;
(8) how and when specific marital property or interest in the pension, retirement, profit sharing, or
deferred compensation plan, was acquired, including
the effort expended by each party in accumulating the
marital property or the interest in the pension, retirement, profit sharing, or deferred compensation plan,
or both;
(9) the contribution by either party of property
described in § 8–201(e)(3) of this subtitle to the acquisition of real property held by the parties as tenants
by the entirety;
(10) any award of alimony and any award or other
provision that the court has made with respect to family use personal property or the family home; and
(11) any other factor that the court considers necessary or appropriate to consider in order to arrive at a
fair and equitable monetary award or transfer of an
interest in the pension, retirement, profit sharing, or
deferred compensation plan, or both.
FL § 8-205(b).
15. Emilie testified that she remembered using money she
saved during the first year of the parties’ marriage, while she
was working at DuPont, toward the purchase price. She
acknowledged that she was able to save this money because
the parties were paying their living expenses from Edward’s
salary.
16. For example, Edward claimed $2,582 in monthly expenses
associated with the Kentucky Avenue home, $1,218 per month
in automobile expenses, and $640 per month in recreational
expenses for the children, including camp and music lessons
that Emilie was paying pursuant to the pendente lite order.
17. In her closing argument, Emilie’s lawyer explained that
Edward’s cash withdrawals from the joint checking account,
which started around the time he began to suspect that Emilie
was having an affair and ended when they separated, totaled
nearly $245,000, and cast doubt on his contention that he
lacked sufficient funds to pay for his attorneys’ fees or to support himself.
18. FL section 9-101.1 provides, in relevant part:
(b) In a custody or visitation proceeding, the court
shall consider, when deciding custody or visitation
issues, evidence of abuse by a party against:
(1) the other parent of the party’s child;
(2) the party’s spouse; or
(3) any child residing within the party’s household, including a child other than the child who is the
subject of the custody or visitation proceeding.
(c) If the court finds that a party has committed
abuse against the other parent of the party’s child, the
party’s spouse, or any child residing within the party’s
household, the court shall make arrangements for
custody or visitation that best protect:
(1) the child who is the subject of the proceeding; and
(2) the victim of the abuse.
Divorce: alimony: ability to be self-supporting
Walter E. Buck, III
v.
Gabrielle B. Buck
Argued Before: Krauser, C.J., Wright, Reed, JJ.
Opinion by Wright, J.
The circuit court did not abuse its discretion in
finding husband was able to support himself, awarding him 18 months’ rehabilitative alimony and denying him indefinite alimony, where (1) he left his job
as a pilot shortly before trial in order to pursue a
second degree, and (2) wife’s annual income, while
4.6 times higher than husband’s would be, was solely from interest on a trust fund that was nonmarital
property.
This appeal results from an Opinion and Judgment of
the Circuit Court for Cecil County dated October 3, 2013,
granting appellee, Gabrielle B. Buck (“Wife”), an absolute
divorce from appellant, Walter E. Buck, III (“Husband”),
and awarding alimony, a monetary award, and attorney’s
fees. Husband filed this timely appeal, presenting the following questions:
I. Did the circuit court err in failing to award
Husband indefinite alimony?
II. Did the circuit court err in awarding Husband
$3,000 dollars per month in alimony?
III. Did the circuit court err in failing to award counsel fees to Husband?
We answer all the questions presented above in the
negative and affirm the circuit court’s decision for the reasons stated below.
Facts
Husband and Wife began dating when they were
teenagers. They were married on May 29, 1979, which was
Wife’s twenty-first birthday. The couple has two emancipated children, Frank W. Buck, age 21, and James I. Buck, age
19.
Wife is the beneficiary of two trust funds established by
her grandfather, Donaldson Brown. From the first trust
fund, she receives an income and has the right to request
discretionary payments from the principal. Wife does not
receive distributions from the second trust fund. The first
trust fund is valued at approximately $15,000,000.00 and
produces income for the Wife of approximately $350,000.00
per year; the second trust is valued at approximately
$8,000,000.00. During the marriage, the couple’s income was
such that they were able to take flying lessons, go on three
to four vacations a year, keep horses and show dogs, and
maintain eleven other residences and properties around the
country. During most of their marriage, the parties lived on
Mt. Ararat Farm which Wife inherited from her father.
Husband has no ownership interest in the farm although he
asserts that since the death of his father-in-law, he has managed the farm. After the death of his father-in-law, Husband
did not receive monetary compensation for any of his work
on the farm. Husband also testified that he had represented
his family on various committees, which communicated
with the trustees, and had visited a ranch in Texas operated
by the trusts. He also testified that he accompanied representatives of the trust on at least one visit to forestry property in Alabama, owned by the trusts.
Husband is a trained, licensed pilot. He had done contract work through the years for various entities, and he
was most recently employed by Flight Safety as an instructor with an annualized salary of $75,000.00 per year.
Husband ended his employment with Flight Safety in
August of 2013 because he really did not like working in an
indoor job, and he also wanted to be able to finish his
Master’s degree in agriculture at the University of West
Virginia. He was on full scholarship. It would be a year
before he earned the degree.
Both parties testified that they have not had marital
relations for over ten years, and that they have not shared a
bedroom for that period of time.
On January 5, 2009, a Final Protective Order was
entered by consent against Husband by the District Court of
Maryland for Cecil County, in favor of Wife and the parties’
two sons, resulting in Husband leaving the marital home.
Thereafter, Husband returned to the marital home but when
he returned is in dispute.
On November 2, 2011, Wife filed a Complaint for
Absolute Divorce alleging desertion and constructive desertion. The Complaint does not set forth a date when the
alleged grounds arose. Almost a year later, on August 31,
2012, Husband filed a Counter Complaint for Limited
Divorce and Alimony, alleging desertion and constructive
desertion, which also does not set forth the date when the
alleged grounds arose.
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On November 28, 2012, Wife filed an Amended
Complaint for Absolute Divorce, alleging adultery and voluntary separation for more than twelve months, and Limited
Divorce, alleging desertion. On April 10, 2013, Husband filed
a Second Amended Counter Complaint for Absolute/Limited
Divorce, alleging desertion, constructive desertion, and
adultery. Neither the Second Amended Complaint nor the
Second Amended Counter Complaint set forth a date of separation.
On the day of trial, Husband requested a postponement
arguing that neither party had grounds for an absolute
divorce, and that the trial should be postponed until after
March 2014, which is one year after Wife moved out of the
marital home and which he contends is the date of actual
separation.
Before the trial began, Wife moved to file a Second
Amended Complaint alleging a one-year separation pursuant to Md. Code (1984, 2012 Repl. Vol.), Family Law
Article (“FL”) § 7-103.1 The circuit court granted the complaint pursuant to Maryland Rule § 2-341(b).2
Discussion
I. Indefinite Alimony
Husband contends that the circuit court erred when it
failed to award him indefinite alimony. Husband avers that
the court issued its opinion not to award him indefinite
alimony “without explanation,” and he contends that the
court was in error for failing to consider the potential
unconscionable disparity between the parties as a result of
its failing to award indefinite alimony.
Wife responds that the trial judge properly found no
basis for indefinite alimony. Wife contends that the trial
judge did discuss the ability of Husband to find another job,
the standard of living during the marriage, as well as, the
disparity issues between Husband and Wife with the understanding that the marriage’s finances were funded primarily
by Wife’s trust fund.
“An alimony award will not be disturbed upon appellate
review unless the trial judge’s discretion was arbitrarily used
or the judgment below was clearly wrong.” Tracey v.
Tracey, 328 Md. 380, 385 (1992) (citing Brodak v. Brodak,
294 Md. 10, 28-29 (1982)). “This standard implies that appellate courts will accord great deference to the findings and
judgments of trial judges, sitting in their equitable capacity
when conducting divorce proceedings.” Id. (citation omitted). The Court of Appeals has stated, “[t]he determination
of whether an unconscionable disparity exists, according to
section 11-106(c) of the Family Law Article, is a finding of
fact, reviewed under a clearly erroneous standard.”
Solomon v. Solomon, 383 Md. 176, 196 (2004) (citation omitted). As provided in Maryland Rule 8-131(c), an appellate
court “will not set aside the judgment of the trial court on
the evidence unless clearly erroneous, and will give due
regard to the opportunity of the trial court to judge the credibility of the witnesses.” Md. Rule 8-131(c).
Alimony is governed by FL § 11-101, et seq., which provides in pertinent part:
(a) Court to make determination. —
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(1) The court shall determine the amount of and
the period for an award of alimony.
(2) The court may award alimony for a period
beginning from the filing of the pleading that
requests alimony.
(3) At the conclusion of the period of the award of
alimony, no further alimony shall accrue.
(b) Required considerations. — In making the determination, the court shall consider all the factors
necessary for a fair and equitable award, including:
(1) the ability of the party seeking alimony to be
wholly or partly self- supporting;
(2) the time necessary for the party seeking alimony to gain sufficient education or training to
enable that party to find suitable employment;
(3) the standard of living that the parties established during their marriage;
(4) the duration of the marriage;
(5) the contributions, monetary and nonmonetary,
of each party to the well-being of the family;
(6) the circumstances that contributed to the
estrangement of the parties;
(7) the age of each party;
(8) the physical and mental condition of each
party;
(9) the ability of the party from whom alimony is
sought to meet that party’s needs while meeting
the needs of the party seeking alimony;
(10) any agreement between the parties;
(11) the financial needs and financial resources of
each party, including:
(i) all income and assets, including property that
does not produce income;
(ii) any award made under §§ 8-205 and 8-208 of
this article;
(iii) the nature and amount of the financial obligations of each party;
and
(iv) the right of each party to receive retirement
benefits; and
(12) whether the award would cause a spouse
who is a resident of a related institution as defined
in § 19-301 of the Health-General Article and from
whom alimony is sought to become eligible for
medical assistance earlier than would otherwise
occur.
(c) Award for indefinite period. — The court may
award alimony for an indefinite period, if the court
finds that:
(1) due to age, illness, infirmity, or disability, the
party seeking alimony cannot reasonably be
expected to make substantial progress toward
becoming self-supporting; or
(2) even after the party seeking alimony will have
made as much progress toward becoming self-supporting as can reasonably be expected, the respective standards of living of the parties will be
unconscionably disparate.
FL § 11-106.
“The law, however, favors rehabilitative alimony over
indefinite alimony. An alimony award should reflect the disparity of each spouse becoming self-supporting and the
undesirability of alimony as a lifetime pension. Thus, indefinite alimony should be awarded only in exceptional circumstances.” Roginsky v. Blake-Roginsky, 129 Md. App. 132,
142 (1999) (citations omitted). The modern view is that the
dependent spouse “should be required to become self-supporting, even though that might result in a reduced standard
of living.” Tracey, 328 Md. at 391 (citing Holston v. Holston,
58 Md. App. 308, 321 (1984)).
In the present case, the circuit court did state that it
found “no basis for indefinite alimony.” However, contrary
to Husband’s contention, this statement comes in the context of a discussion about the alimony award during an
exhaustive exploration of the factors outlined in FL § 11106(b). The first relevant finding was that “Husband has the
ability to be self-supporting.” Husband’s income of
$75,000.00 would be 25% of Wife’s annual income of
$350,000.00. A court may award alimony for an indefinite
period in two exceptional circumstances: if, “due to age, illness, infirmity, or disability, the party seeking alimony cannot reasonably be expected to make substantial progress
toward becoming self- supporting,” FL § 11-106(c)(1); or if,
“even after the party seeking alimony will have made as
much progress toward becoming self-supporting as can reasonably be expected, the respective standards of living of
the parties will be unconscionably disparate.” FL § 11106(c)(2). The spouse seeking indefinite alimony bears the
burden of proof as to the existence of the prerequisites to
entitlement to such an award. Thomasian v. Thomasian, 79
Md. App. 188, 195 (1989); see also Francz v. Francz, 157 Md.
App. 676, 692 (2004). In order to exercise its discretion to
award indefinite alimony on the ground of “unconscionable
disparity,” under § 11-106(c)(2), the equity court must find
that, even though the party seeking indefinite alimony can
make substantial progress toward becoming self-supporting, at the time that maximum progress reasonably is
expected, the standards of living of the parties will be
unconscionably disparate. Blaine, supra, 336 Md. at 64. See
Roginsky, 129 Md. App. at 141-42; Francz, 157 Md. App. at
692.
The circuit court went on to discuss how Husband
could be self-supporting but voluntarily quit a job, where he
made $75,000.00 a year with full medical benefits, only
weeks before trial. The court also explained that due to the
couple’s dependency on Wife’s trust throughout their marriage, Husband retained his entire salary during the marriage as well as his own inheritance and other assets. While
Wife will, through her non-marital inheritance, have more
assets than Husband, this Court discussed in Holston, 58
Md. App. at 321, that the “concept of alimony as a lifetime
pension enabling the dependent spouse to maintain an
accustomed standard of living has largely been superseded
by the view that the dependent spouse should be required to
become self-supporting, even though that might result in a
reduced standard of living.”
Husband cites several cases discussing awards of indefinite alimony based on large discrepancies in income.
Simonds v. Simonds, 165 Md. App. 591 (2005) (remanding
an award of rehabilitative alimony where the husband
earned over $200,000.00 per year and the wife had an earning capacity of $45,000.00 per year to consider the issue of
an unconscionable disparity); see, e.g., Kelly v. Kelly, 153
Md. App. 260, 279 (2003) (denying indefinite alimony where
appellant’s income was 30 percent less required the trial
court to at least discuss the unconscionable disparity issue);
Lee v. Lee, 148 Md. App. 432, 448-49 (2002) (finding that
indefinite alimony had been properly granted in cases where
one spouse’s income ranged from 22.7% to 43% of the other
spouse’s income). However, Husband’s reliance on these
cases is misplaced. In Karmand v. Karmand, 145 Md. App.
317, 336 (2002), this Court stated:
A mere difference in earnings of spouses, even if it
is substantial, and even if earnings are the primary
means of assessing the parties’ post-divorce living
standards, does not automatically establish an
“unconscionable disparity” in standards of living.
To constitute a “disparity,” the standards of living
must be fundamentally and entirely dissimilar.
Moreover, as the statute makes clear, before such a
disparity in standards of living will permit an award
of indefinite alimony, it must be “unconscionable.”
(Emphasis in original).
On the issue of possible “disparity,” the circuit court
found that the parties’ standard of living was “[t]hat the parties enjoyed a very good although not elaborate standard of
living.” There is no dispute that the parties’ standard of living during the marriage was based entirely on the income
generated by Wife’s trust fund. There is no indication that
the parties invaded the trust to support their lifestyle.
Though Husband earned a salary on the farm during the
early years of the marriage, once Wife took sole ownership
of the farm in 1992, all of the parties’ expenses were paid by
Wife’s trust.
Our previous discussion of pre-marital and marital standards of living is particularly relevant:
In the majority of unconscionable disparity cases in
which awards of indefinite alimony have been
affirmed or denials of awards of indefinite alimony
have been reversed for abuse of discretion, the
standard of living that the parties experienced
during the marriage was not one that either had
experienced before it, and it was established over
time during the marriage, with joint contributions, often with one spouse working and the other
attending or raising the children and, therefore,
out of the workforce. The standard of living of each
party prior to the marriage is a relevant consideration. Because a court is required to consider each
and every relevant factor, a gross disparity with
69
respect to standards of living after divorce might
not be justified when the joint enterprise of marriage produced the high standard of living enjoyed
by the parties during their marriage, but it might be
justified when the disparity in the standard of living
pre-existed the marriage. We make it clear, however, that all factors relevant to whether unconscionable disparity exists must be considered.
Roginsky, 129 Md. App. at 147-48 (emphasis added). This
case is not one where there was joint contribution of the
parties that established the wealth of Wife and the resultant
benefits to the standard of living during the marriage.
Husband relies on Long v. Long, 129 Md. App. 554
(2000), for the proposition that the circuit court should not
have imputed income to Husband, as Husband is currently
unemployed. In Long, this Court found that it was improper
to impute income to a 52- year-old wife who suffered from
agoraphobia and had long been absent from the job market.
Id. at 582. Husband avers that “[w]ith the exception of a few
jobs as a pilot [Husband] has not worked outside of the farm
in over thirty years.” The court relied on the record which
showed Husband had a job as a pilot only three weeks
before trial making $75,000.00 a year. Husband also had substantial investments and income-producing real property.
During the marriage, the couple lived off of Wife’s inheritance, allowing Husband to retain all of these assets for his
own benefit.
The circuit court did not err in finding that Husband,
who had held a well-paying position mere weeks before the
trial, was capable of being self-supporting. While Wife will
have more assets than Husband due to her inheritance, that
fact alone does not necessitate Husband receiving indefinite
alimony. See Ware v. Ware, 131 Md. App. 207, 232 (2000)
(“The dominant message of Roginsky v. Blake-Roginsky is
that a finding of mathematical disparity will not automatically trigger an award of indefinite alimony and that the trial
judge must carefully consider all of the twelve factors
spelled out by [FL] § 11-106(b) that are pertinent to a particular case. The interplay of these factors may frequently have
a strong bearing on whether a particular disparity can fairly
be found to an unconscionable disparity.”).
The circuit court did not err in finding, through a consideration of the statutory factors, Husband’s ability to be
self-supporting. Husband put forth no persuasive argument
as to why he should benefit from the largess of Wife’s grandfather indefinitely.
II. Rehabilitative Alimony
Husband contends that the circuit court abused its discretion when it only awarded him $3,000.00 a month in rehabilitative alimony. Husband avers that, due to the vast disparity in the parties’ incomes, he should have received a
greater award. Husband further contends that the court’s
award of alimony is contrary to its findings of fact.
Wife responds that the circuit court did not abuse its
discretion in awarding Husband $3,000.00 a month in alimony. Wife contends that the court properly recognized that
Husband had given up employment with an annual salary of
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$75,000.00 as well as pursuing an advanced degree that he
could use to become self-supporting.
In Blaine, supra, 336 Md. at 74, the Court of Appeals
explained that appellate review of the amount of alimony
itself is under an abuse of discretion standard. Ware, 131
Md. App. at 227. Absent an abuse of discretion or legal error,
we will not disturb the circuit court’s decision. Tracey, 328
Md. at 385. See also North v. North, 102 Md. App. 1, 13-14
(1994) (discussing the definition of abuse of discretion). To
the contrary, “appellate courts will accord great deference
to the findings and judgments of trial judges, sitting in their
equitable capacity, when conducting divorce proceedings.”
Ware, 131 Md. App. at 227 (citation and emphasis omitted).
Husband relies on Turner v. Turner, 147 Md. App. 350
(2002), arguing unpersuasively that the facts in Turner are
“strikingly similar to the facts in Buck,” for the proposition
that the discrepancy in income between Wife and Husband
warrants a higher alimony award. In Turner, we held that,
as a consequence of the dissolution of marriage, Mrs. Turner
“lost her career path” because she and her husband had
been in a business together and thus, she deserved a higher
alimony award. Id. at 393.
Husband also cites Solomon, supra, 383 Md. at 199, for
the proposition that his monthly rehabilitative alimony
award is insufficient. In Solomon, Mr. Solomon attempted to
distinguish Turner, arguing that, unlike in Turner, Mrs.
Solomon did not contribute to the success of his business
and thus, her alimony payments should be distinguished
from those awarded in Turner. Id. The Court of Appeals
noted that, based on the record, Mrs. Solomon, working to
her reasonable potential, could earn approximately
$25,000.00 per year. Id. at 200. The combination of her predicted earnings and $60,000.00 in annual indefinite alimony
yielded her a yearly income of approximately $85,000.00. Id.
Mr. Solomon, on the other hand, has a guaranteed annual
salary of $1,050,000.00. Id. After paying $60,000.00 in yearly
alimony, his yearly income would be $990,000.00, and Mrs.
Solomon’s annual income, therefore, was approximately 8.5
percent of Mr. Solomon’s adjusted income. Id. The Court of
Appeals concluded that, compared to the 35 percent differential in Turner, the post-divorce disparity of income and
standard of living present in Solomon was far greater. Id.
Although Mrs. Solomon did not play a direct role in making
any financial contribution to her family, she maintained the
household so that Mr. Solomon was free to work and earn a
sizable income.
However, unlike Turner and Solomon, Husband here
did not contribute at all to Wife’s income, as Wife’s income is
entirely non-marital property and is limited to what the trust
provided as yearly income. See Rosenberg v. Rosenberg, 64
Md. App. 487, 512 (1985) (classifying the remainder interest
in trusts as “non-marital assets, because they were acquired
by gift”); see also Innerbichler v. Innerbichler, 132 Md. App.
207, 227 (2000) (“If a property interest cannot be traced to a
nonmarital source, it is considered marital property.”)
(Emphasis added and citations omitted).
The trial judge reviewed the factors set forth in FL § 11106(b), thoroughly. As we discussed, supra, the circuit court
found that Husband had the ability to be self-supporting and
that the time necessary for him to gain sufficient employment and training would be minimal. The court explained
that given Husband’s work history weeks prior to trial as a
pilot and his degree in agriculture, as well as, his pursuit of a
second degree at West Virginia University with a full scholarship, indicates that he should have the ability to get a job
within an eighteen-month period of time. The court further
noted that the couple had a “very good, not elaborate” standard of living, and the court further explained how both parties had the ability to continue those lifestyles based on their
respective assets.
Husband contends that the circuit court erred in failing
to consider his involvement in the farm and in matters of
family finance. However, the court specifically addressed
this issue, finding:
The farm has always operated at a significant loss
and at one time the Internal Revenue Service took
the position that the farm is a hobby and therefore
not entitled to the tax benefits of a working farm. In
connection with this dispute, the Husband made a
detailed affidavit, which was prepared by the parties’ accountant setting forth his duties with regard
to the operation and management of the farm. This
was accepted and the tax issue was resolved favorably to the parties. There was also undisputed testimony that the Husband had represented the parties
in connection with an easement, which brought in
approximately $3,000,000.00. There was also undisputed testimony that the Husband was the
spokesperson for the farm’s interest at various
planning meetings for the county and the towns of
Perryville and Port Deposit. There was also undisputed testimony that Husband was chosen to represent the family’s interest in various meetings
regarding the family’s trust, although he has no
property interests in the trust. It is also un-contradicted that the Husband visited some of the land
holdings of the trusts with representatives of the
trustee.
The court clearly considered evidence about Husband’s
involvement with the farm and took them into account in
making the award consistent with the other FL § 11-106(b)
factors.
Finally, on this point, in Dave v. Steinmuller, 157 Md.
App. 653, 673 (2004), this Court affirmed the circuit court’s
judgment to deny indefinite alimony and the monetary
award in a case where Wife had an investment portfolio that
was considered non-marital property. The court awarded
Husband a portion of Wife’s pension and deferred compensation plan (which were martial assets); a monetary award
of $24,397.00; rehabilitative alimony of $27,000.00 per year
for two years; and a portion of his attorney’s fees. Id. at 657.
Husband appealed claiming that the court erred in not granting him indefinite alimony and “in the amount of alimony
ordered.” Id. at 658 (emphasis added). Like the case at bar,
in Dave, Husband was in his mid-fifties, had an advanced
degree, and expertise and experience that would allow him
to be hired in his field. Id. at 674. Furthermore, in Dave,
Wife’s source of income was not marital property. Id. at 671.
In this case, the court did not abuse its discretion in
making the decision to grant Husband $3,000.00 a month for
18 months where Wife’s entire income is non-marital property.
III. Attorney’s Fees
Husband contends the circuit court erred in failing to
award counsel fees to him where he had “substantial justification for seeking alimony and had a financial need for such
an award.” Husband further avers that there is a huge disparity between the parties’ income and assets which the
court should have considered in determining expenses. Wife
responds that the court did not abuse its discretion in failing
to award counsel fees to Husband.
“The standard of review for the award of counsel fees
and costs in a domestic case is that of whether the trial
judge abused his discretion in making or denying the
award.” Steinhoff v. Sommerfelt, 144 Md. App. 463, 487
(2002) (citations omitted); see also Gillespie v. Gillespie,
206 Md. App. 146, 176 (2012); Meyr v. Meyr, 195 Md. App.
524, 552 (2010) (“award of counsel fees is reviewed under
the abuse of discretion standard”); Frankel v. Frankel, 165
Md. App. 553, 590 (2005); Ledvinka v. Ledvinka, 154 Md.
App. 420, 432 (2003). Thus, “[a]n award of attorney’s fees
will not be reversed unless a court’s discretion was exercised arbitrarily or the judgment was clearly wrong.” Petrini
v. Petrini, 336 Md. 453, 468 (1994) (citations omitted).
Husband reiterates his arguments regarding Wife’s
financial status, as compared to his own, and discusses the
actions of Wife during the divorce process that made the
legal fees more extensive. However, the court was aware of
these facts and circumstances and thus, awarded Husband
$3,000.00 a month in rehabilitative alimony as well as
$47,725.00 in marital property, in addition to his ability to
retain all revenue from his inheritance and investments. The
record indicates that Husband and Wife both have assets
with which to pay their respective counsels, and the court,
therefore, did not abuse its discretion in finding each party
responsible for his or her own attorney’s fees.
FOR CECIL COUNTY AFFIRMED.
Footnotes
1. FL § 7-103(a)(4) provides that the court may decree an
absolute divorce on the following ground: “12-month separation, when the parties have lived separate and apart without
cohabitation for 12 months without interruption before the filing of the application for divorce.”
2. That rule states: “A party may file an amendment to a pleading after the dates set forth in section (a) of this Rule only with
leave of court. If the amendment introduces new facts or varies
the case in a material respect, the new facts or allegations shall
be treated as having been denied by the adverse party. The
court shall not grant a continuance or mistrial unless the ends
of justice so require.” Md. Rule § 2-341(b).
71
Adoption/Guardianship: termination of parental rights:
attachment to birth mother
In Re: Adoption/Guardianship
of Caitlyn S.
Argued Before: Krauser, C.J., Wright, Hotten, JJ.
Opinion by Krauser, C.J.
Although there was testimony that a 6-year-old
child might later grieve the loss of her relationship
with her birth mother, that was just one factor for
the court to consider in terminating parental rights;
here, it was outweighed by the evidence that the
child could not safely live with either parent, had
thrived in a three-year placement along with her
birth sister, and would be devastated if separated
from her birth sister.
Sharee S. and Fred M. appeal from an order, issued by
the Circuit Court for Montgomery County, sitting as a juvenile court, terminating their parental rights to their daughter, Caitlyn S. The sole issue on appeal is whether the juvenile court erred in so ruling, notwithstanding testimony
from social workers that, in the future, Caitlyn might be
adversely affected by the termination of her relationship
with her biological mother, Ms. S.1 Finding no error, we
shall affirm the order of the juvenile court.
Background
Since 2008, the Montgomery County Department of
Health and Human Services/Child Welfare Services (the
“Department”) has received numerous reports regarding
Ms. S.’s apparent inability to care for her two children,
Caitlyn S. and Ashley S.2 In September of that year, the
Department received reports that Ms. S.’s daughter, Caitlyn,
then seven months old,3 was being left alone with her nineyear-old sister, Ashley, in the family home after school
hours and on weekends. The Department further learned
that Ashley was referred to “the Crisis Center” after exhibiting “excessive sadness and homicidal expressions” at
school. Although Ms. S. followed the school’s recommendation to take Ashley to the crisis center, she did not stay
there long enough for Ashley to be examined.
In May 2009, Ashley reported to school officials that
she was afraid of Ms. S. and that she did not want to go
home because Ms. S. had “hit her with a belt and closed fist
on her stomach and arm.” School officials noticed that
Ashley had marks on her left arm. Furthermore, Ms. S.,
72
according to Ashley, had also hurt Caitlyn by hitting her on
the legs and slamming her down on the bed.
One month later, in June 2009, Ms. S. signed a “safety
plan,” prepared by the Department, in which she agreed to
have Ashley assessed for therapeutic needs and to refrain
from administering “physical discipline” to her children. Ms.
S., however, failed to follow through with Ashley’s therapeutic assessment.
Then, in December 2010, Ashley disclosed to officials
at her school that people from her “Mother’s job [were] following the family”; that the family was “hiding” from those
people; that the family sometimes stayed overnight in
hotels rather than in their home because people were purportedly “monitoring” and “following” them; that her
Mother always pulled the blinds down everywhere the family stayed; and that her Mother habitually refused to answer
telephone calls because they were purportedly “strange
calls.” The school thereafter contacted the Department and
had a social worker interview Ashley.
Angered that the Department had interviewed Ashley
in her absence, Ms. S. called the Department the following
day. While Ashley listened in on the call, Ms. S. accused the
Department of conspiring against the family based on their
socioeconomic status. Ms. S. then visited the Department
and demanded that an employee there re-interview Ashley
with Ms. S. present.
Following that incident, from mid-January until early
February 2011, Ashley did not attend school, and Caitlyn
missed daycare for three weeks. During that time period,
the Department was unable to contact Ms. S. Apparently,
Ms. S. had taken the children to visit family members in
South Carolina, New Jersey, and New York. Upon the family’s return, Ms. S. could not explain to the Department the
reasons for this unanticipated trip.
When the family returned from the trip, the
Department petitioned the juvenile court to adjudicate
both girls “children in need of assistance” (“CINA”) and
place them in shelter care. On February 7, 2011, the children were removed from Ms. S.’s care, and, three days
later, the juvenile court placed them in shelter care.
After a hearing on the Department’s CINA petition the
juvenile court, in May 2011, adjudicated both Caitlyn
and Ashley children in need of assistance and committed them to foster care. Both girls have remained in foster care since February 2011 and have been with their
current foster parent, Andrea W., since April 2011.
Ms. S. appealed the juvenile court’s CINA finding, and,
in an unreported decision, this Court affirmed the juvenile
court’s finding that Ashley was a CINA but reversed the
juvenile court’s finding that Caitlyn was. In re Ashley S. and
Caitlyn S., No. 637, Sept. Term 2011 (filed Nov. 28, 2011).
In January 2012, after the juvenile court received this
Court’s mandate, the Department filed a new CINA petition
and a request for shelter care. The juvenile court again
declared Caitlyn to be a CINA, finding that Ms. S. was evasive on the stand; that she gave conflicting answers regarding her physical address and the location of her personal
belongings and those of Caitlyn’s; that she refused to answer
proper questions on the stand and exhibited “bizarre and/or
illogical reasoning,” which “revealed an inability to report
accurately, or to grasp reality”; that she repeatedly responded to questions about where she was living and about her
income with the rehearsed, mechanical phrase, “I will have
to provide that information at a later date”; that her testimony was not credible; that she forced both children to travel
from hotel to hotel, believing that people were “following
the family,” thereby frightening the children; that her behavior at the CINA hearing “revealed similar paranoia” and her
overall demeanor had led the juvenile court to believe that
Ms. S. had mental health problems that were hampering her
ability to care for Caitlyn; and, finally, that she refused to ask
for much needed help in caring for Caitlyn. Thus, it was
unsafe, the court concluded, for Caitlyn to be returned to
Ms. S.’s care. Consequently, Caitlyn remained with Ms. W.
during the new CINA proceedings and thereafter. Although
Caitlyn had been with Ms. W. for approximately a year at
that point, the permanency plan for Caitlyn was reunification with Ms. S.
Ms. S. did not appeal the second CINA finding, and, six
months later, at a review hearing held in July 2012, the court
ordered that Caitlyn’s permanency plan be changed from
reunification with Ms. S. to adoption by a relative or non-relative.
One month later, in August 2012, Caitlyn’s biological
father, Mr. M., contacted the Department, claiming that he
was unaware of Caitlyn’s existence until April 2012, when he
was contacted by the Child Support Enforcement
Administration. The juvenile court, however, found that,
contrary to Mr. M.’s assertions of ignorance, he knew of
Caitlyn’s existence well before April 2012.
After Mr. M. submitted to DNA testing, which established that he was Caitlyn’s biological father, he began visitation with Caitlyn. When the visits began, the Department
had in its possession a “family finding report” (“FFR”) that
revealed that Mr. M. had an extensive criminal history, a history which included several domestic violence crimes. It
appears that the Department, overlooked the criminal history, as it requested that the permanency plan be changed
from adoption to reunification with Mr. M. In December
2012, the juvenile court accepted that recommendation and
changed the permanency plan accordingly.
It was not until early 2013, that the Department, after
completing an extensive criminal background check, realized the full extent of Mr. M.’s criminal history (although this
information was available to the Department in the FFR).4
The background check revealed inconsistencies between
Mr. M.’s representations about his work, places of residence,
and criminal history, inconsistencies that caused the
Department to harbor serious doubt as to his viability as a
safe placement for Caitlyn. Consequently, at the July 2013
permanency plan review hearing, the court changed the permanency plan back to one of adoption. Five months later, in
December 2013, the juvenile court reaffirmed the permanency plan of adoption at yet another review hearing. The
Department, thereafter, filed a petition for termination of
parental rights, in the hope that Caitlyn’s foster parent, Ms.
W., could eventually adopt her. The two-day termination
hearing was held on January 14 and 15, 2014.
The Termination of Parental Rights Hearing
At the time of the termination hearing, Caitlyn was
about to turn six years old, and she and Ashley had been living with Ms. W. in a three bedroom suburban home for
almost three years. Mr. M. was incarcerated at the time of
the hearing, and, although he was not then present, he was
represented by counsel.
Ms. W. testified that over the previous three years, she
and the girls had become a “family” — eating dinner together most nights; engaging in daily routines for school, homework, and play; taking vacations together; and visiting with
Ms. W.’s extended family. According to Ms. W., Caitlyn,
though shy, had made friends and had played well with
other children. In fact, since her residing with Ms. W. had
begun, Caitlyn had played a sport every season or had participated in an extracurricular activity. Specifically, she
played soccer, took swimming and gymnastics lessons, and
completed an after-school science program at her elementary school. Ms. W. testified that, if the court terminated
appellants’ parental rights to Caitlyn, she intended to adopt
Caitlyn as well as Ashley.
Stephanie Madrigal, an expert witness in social work,
was the social worker assigned to Caitlyn’s case since April
2011. Ms. Madrigal outlined her experiences with Ms. S.
throughout the case. According to Ms. Madrigal, Ms. S.’s visits with Caitlyn were “inconsistent,” as she was often late or
missed visits. And, despite a court order to undergo a psychological evaluation and Ms. Madrigal’s assistance with
procuring a psychologist, Ms. S. was never psychologically
evaluated. It appeared that Ms. S. was not interested in the
Department’s goals and court orders, but rather, seemed to
have her own “agenda.” Moreover, Ms. S. refused to sign service agreements, and, in general, refused to be a parent to
Caitlyn or to participate consistently in Caitlyn’s life.
Furthermore, Ms. S. relocated in 2011 and refused to tell the
Department or the court where she lived. Consequently, Ms.
Madrigal was never able to conduct a home visit in order to
ascertain whether Caitlyn, if returned to Ms. S., would be living in a safe environment.
Ms. Madrigal also outlined her experiences with Mr. M.
She did not believe Caitlyn would be safe under his care.
During one of his visits with Caitlyn, Mr. M. complained that
Caitlyn exhibited sexual behavior. Mr. M. suggested that the
behavior likely resulted from exposure in Caitlyn’s foster
home, such as inappropriate movies or television shows, or
73
the fact that Caitlyn was living with her older sister, Ashley.
This was of concern to Ms. Madrigal because Caitlyn had
never before exhibited that type of behavior, and when the
Department supervised visits between Mr. M. and Caitlyn
more closely, such behaviors were non-existent. Thus, the
Department discounted Mr. M.’s complaints about Caitlyn’s
behavior.
Overtime, Mr. M.’s visits with Caitlyn became sporadic; Mr. M.’s work caused him to spend long periods of
time away from Maryland, rendering him unable to visit
with Caitlyn. Moreover, over the course of the case, Mr.
M. had been incarcerated four times, had lied to the
Department about his work status, and had been inconsistent with visits. Also, like Ms. S., Mr. M. would not sign
a service agreement, though one was presented to him.
Moreover, when Mr. M. visited with Caitlyn, his focus
was not on Caitlyn and her needs, but on himself and his
needs. Thus, Ms. Madrigal believed Mr. M. could not create a safe and nurturing environment for a young child.
Dara Goldberg, a clinical social worker assigned to
Caitlyn’s case since August 2012 and an expert in psychotherapy and social work, testified about her experiences with Caitlyn and her opinion of Caitlyn’s relationship with each person in both Caitlyn’s foster and biological families. As for Caitlyn, when Ms. Goldberg initially
met her, she was a very talkative, engaging, and happy
child. In December 2012, however, after the court
changed the permanency plan to reunification with Mr.
M., Cailtyn’s behavior dramatically changed. She would
refuse to attend therapy sessions with Ms. Goldberg;
when she did attend, she would refuse to engage with
Ms. Goldberg or would fail to make eye contact; she was
“clingy” to the staff at her daycare; and she generally
regressed to behaviors below her developmental level.
Caitlyn’s dramatic regression in behavior, an apparent reaction to the permanency plan change, led Ms.
Goldberg to diagnose Caitlyn to a “reasonable degree of
social work certainty” with “adjustment disorder,” which
Ms. Goldberg described as a manifestation of psychological distress due to an environmental change. This disorder hampered Caitlyn’s ability to function in daily living
between December 2012 and March 2013, the time period following the change of the permanency plan from
adoption to reunification with Mr. M. But, when Caitlyn’s
life was routine and consistent, without major changes
or disruptions, her “adjustment disorder” did not
adversely affect her daily functioning.
In contrast, Ms. Goldberg described the relationship
between Ms. W. and Caitlyn as “very positive.” Caitlyn
spoke positively of Ms. W. and always appeared to be
well cared for. Ms. Goldberg believed that Caitlyn had
consistently experienced a “sense of unconditional love”
from Ms. W., and Ms. Goldberg noticed that Caitlyn generally refered to Ms. W. as “mom.” Moreover, Ms. W. was
always engaged and interested in what Ms. Goldberg had
to say about Caitlyn’s mental health.
As for Caitlyn’s biological mother, Ms. S., Ms.
Goldberg believed that Caitlyn and Ms. S. had “some
level of a bond” in their relationship, although Ms.
74
Goldberg never met Ms. S. Caitlyn never initiated conversation about Ms. S., and anytime Ms. Golderg asked
Caitlyn about Ms. S., Caitlyn responded with a one-word
answer. Nonetheless, Ms. Goldberg believed that overall,
Caitlyn regarded visits with Ms. S. as “positive” experiences.
As for Mr. M., Ms. Goldberg had never met him but
viewed the relationship between him and Caitlyn as
“mixed.” Sometimes, Caitlyn looked forward to visits
with Mr. M., and, at other times, she refused to visit with
him. Ms. Goldberg opined that Mr. M.’s incarceration was
detrimental to maintaining trust in his relationship with
Caitlyn because “[i]f he comes and goes with some
unpredictability, that can be incredibly detrimental for
Caitlyn.” According to Ms. Goldberg, “young children
thrive on . . . that sense of predictability, who is going to
be there for me, no matter what.”
As for Caitlyn’s sister, Ashley, Ms. Goldberg testified
that Ashley and Caitlyn had a “very strong relationship.”
Caitlyn always talked highly of Ashley, and indeed,
Ashley was Caitlyn’s role model. Ashley, Ms. Goldberg
opined, has always been, and will likely always be, an
“incredibly important” person in Caitlyn’s life. Over the
course of the Department’s involvement with the case
and throughout Caitlyn’s childhood, Ashley, Ms.
Goldberg said, has been the “one consistent figure in
Caitlyn’s world.” According to Ms. Goldberg, “Ashley has
served as an attachment figure for Caitlyn.” Ashley and
Ms. W., she continued, “are the two most significant figures in [Caitlyn’s] world.”
With respect to the effect that terminating parental
rights would have on Caitlyn, Ms. Goldberg opined:
I think in the here and now, if visitations
with both parents were stopped, I’m not sure
that there would be a significant effect in
Caitlyn’s day- to-day.
However, as she gets older, I do believe that
this is going to come up. It’s going to be something that’s — that [Ms. W.] and Caitlyn are going
to be talking about throughout her older childhood, adolescence and perhaps until adulthood.
Mabilia Rastello, an expert in social work and psychotherapy who had been working with Caitlyn since
November 2012, also testified. With respect to the psychological effect that terminating parental rights would
have on Caitlyn, she expressed the opinion, to a “reasonable degree of professional certainty,” that:
It would be a loss for Caitlyn most certainly. Her
birth mother was her primary attachment figure.
But since coming into [foster] care, I’ve seen
Caitlyn thrive. And I think she’s developing a
strong attachment and bond with her foster
mother. And I think she has — she sees her as
her now her [sic] primary attachment figure.
***
I think she will grieve the loss of that relationship with her birth mother, but I also think that
she is in a position where she has great strength
and coping skills and is in a very strong and supportive environment where she can work
through that grief in a healthy way.
Ms. Rastello continued that, if Ms. W. were to adopt
both Caitlyn and Ashley, the girls would experience “a
sense of permanency that up until this point, they [have
not had].” She emphasized that, “having that [sense of
permanency] would be incredibly important to their
sense of overall well being.”
At the conclusion of all the evidence, the juvenile
court found “by clear and convincing evidence that [Ms.
S. and Mr. M. were] unfit, that [they] pose[ed] an unacceptable risk to Caitlyn’s future safety, and that it [was]
in Caitlyn’s best interest that the parental rights of [Ms.
S. and Mr. M.] be terminated.”
Discussion
Our review of the juvenile court’s decision to terminate parental rights implicates three “different but interrelated standards.” In re Adoption/Guardianship of
Ta’Niya C., 417 Md. 90, 100 (2010). They are:
[w]hen the appellate court scrutinizes factual
findings, the clearly erroneous standard of [Rule
8–131(c)] applies. [Second,] [i]f it appears that
the [court] erred as to matters of law, further
proceedings in the trial court will ordinarily be
required unless the error is determined to be
harmless. Finally, when the appellate court
views the ultimate conclusion of the [court]
founded upon sound legal principles and based
upon factual findings that are not clearly erroneous, the [court’s] decision should be disturbed
only if there has been a clear abuse of discretion.
Id. (internal citations and quotations omitted).
When deciding whether to terminate parental rights,
a parent’s fundamental rights to custody of his or her
child “must be balanced against the fundamental right
and responsibility of the State to protect children, who
cannot protect themselves, from abuse and neglect.” In
re Adoption/Guardianship of Amber R., 417 Md. 701,
709 (2011) (quoting In re Adoption/Guardianship of
Rashawn H., 402 Md. 477, 497 (2007)). Heeding the
importance of balancing those rights, a juvenile court
may terminate parental rights only “upon a showing
either that the parent is unfit or that exceptional circumstances exist which would make continued custody with
the parent detrimental to the best interest of the child.”
Id. (quoting In re Rashawn H., 402 Md. at 495). Overall,
“the best interest of the child remains the ultimate governing standard.” Rashawn H., 402 Md. at 496.
Section 5-323 of the Family Law Article provides
guidelines to our courts in determining the best interest
of the child. Md. Code, Fam. Law (“FL”) § 5-323 (1984,
2012 Repl. Vol.). Subsection (d) of that statute requires
the court to “give primary consideration to the health
and safety of the child” and prescribes several factors for
the juvenile court’s consideration.5 Of those factors, Ms.
S. and Mr. M. direct our attention to only the last factor:
“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.” FL § 5323(d)(4)(i). They complain that the juvenile court did
not focus on Caitlyn’s health and safety with regard to
terminating the relationship but, instead, on the parents’
shortcomings.
On the contrary, the juvenile court thoroughly considered each section 5-323(d) factor in a twenty-six-page
memorandum opinion. As for the last factor, concerning
Caitlyn’s emotional ties, the evidence supported the
court’s finding that Caitlyn was closely tied to, and wellbonded with, her sister, Ashley, as Ashley was often
Caitlyn’s caretaker while Caitlyn was in Ms. S.’s care.
Furthermore, Ms. Goldberg testified that Ashley has
been the only constant person in Caitlyn’s life, and that,
together, Ashley and Ms. W. were the two most important people to Caitlyn. Moreover, Caitlyn has adjusted to
her community and, since her life with Ms. W. had begun,
has participated in Girl Scouts, soccer, swimming, gymnastics, and an after-school science program. And, at the
time of the hearing, Caitlyn had been living with Ms. W.
for approximately three years — more than half of
Caitlyn’s life.
In sum, the testimony demonstrated that Caitlyn
thrived in her foster care environment; that she was
distressed about the idea of living with Mr. M.; that
she had a loving and caring relationship with Ms. W.,
and that Ms. S.’s parental rights to Ashley had already
been terminated. Ms W. testified that she planned to
adopt both Caitlyn and Ashley. The evidence clearly
supported that separating the sisters would devastate
Caitlyn, especially given Caitlyn’s “adjustment disorder.”
As for Caitlyn’s relationships with her biological parents and the psychological impact of separating her from
them, the court referred to Ms. Goldberg and Ms.
Rastello’s testimony regarding the impact of terminating
parental rights upon Caitlyn. The testimony showed, and
the court found, that:
Ms. Goldberg testified that terminating [Ms. S.’s]
rights would likely not have a traumatic impact
on Caitlyn right now, but as she moves through
childhood and into adulthood, she may well confront the psychological impact of the termination of parental rights. Ms. Rastello testified that
although Caitlyn will grieve the loss of relationship with [Ms. S.], Cailtyn has great coping skills
and reliable people around her to help her deal
with the grief in a healthy way.
The psychological effect of termination, however,
was one of many factors under the court’s consideration.
Indeed, the evidence strongly demonstrated, and the
juvenile court found, that Caitlyn could not safely live
with either biological parent. As to Ms. S., the court still
did not know where she lived. Moreover, Ms. S., who had
habitually left her children unattended and moved them
from place to place believing that someone was “followMaryland Family Law Update: November 2014
75
ing the family,” had not yet completed a psychological
evaluation, despite a court order requiring her to do so.
As for Mr. M., the evidence clearly showed that he had
trouble telling the truth; that he had a history of domestic violence; and that he was then, and numerous times
throughout the case, incarcerated and unavailable to
care for Caitlyn.
Thus, the court did consider Caitlyn’s health and
safety alongside the factors prescribed in section 5323(d) of the Family Law Article in finding Ms. S. and
Mr. M. unfit and in finding it to be in Caitlyn’s best
interest to terminate their parental rights.
Accordingly, the court did not abuse its discretion in
terminating Ms. S.’s and Mr. M.’s parental rights.
ORDER OF THE CIRCUIT COURT FOR
MONTGOMERY COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANTS.
Footnotes
1. Mr. M. adopts Ms. S.’s appellate brief, and Ms. S.’s brief
focuses only on the termination of her relationship with
Caitlyn.
2. Ashley is not a subject of this appeal. Sharee S.’s and
Ashley’s biological father’s (someone other than Fred M.)
parental rights to Ashley were terminated in 2013.
3. Caitlyn was born on February 8, 2008.
4. The background check occurred in response to Mr. M.’s
request for unsupervised weekend visits with Caitlyn.
5. Subsection (d) of section 5-323 of the Family Law Article
provides:
(d) Except as provided in subsection (c) of this
section, in ruling on a petition for guardianship of a
child, a juvenile court shall give primary consideration to the health and safety of the child and consideration to all other factors needed to determine
whether terminating a parent’s rights is in the
child’s best interests, including:
(1)(i) all services offered to the parent before the
child’s placement, whether offered by a local
department, another agency, or a professional;
(ii) the extent, nature, and timeliness of services offered by a local department to facilitate
reunion of the child and parent; and
(iii) the extent to which a local department
and parent have fulfilled their obligations under a
social services agreement, if any;
(2) the results of the parent’s effort to adjust the
parent’s circumstances, condition, or conduct to
make it in the child’s best interests for the child to
be returned to the parent’s home, including:
(i) the extent to which the parent has maintained regular contact with:
1. the child;
2. the local department to which the child is
committed; and
3. if feasible, the child’s caregiver;
(ii) the parent’s contribution to a reasonable
76
part of the child’s care and support, if the parent is
financially able to do so;
(iii) the existence of a parental disability that
makes the parent consistently unable to care for
the child’s immediate and ongoing physical or psychological needs for long periods of time; and
(iv) whether additional services would be likely to bring about a lasting parental adjustment so
that the child could be returned to the parent within an ascertainable time not to exceed 18 months
from the date of placement unless the juvenile
court makes a specific finding that it is in the
child’s best interests to extend the time for a specified period;
(3) whether:
(i) the parent has abused or neglected the
child or a minor and the seriousness of the abuse
or neglect;
(ii) 1. A. on admission to a hospital for the
child’s delivery, the mother tested positive for a
drug as evidenced by a positive toxicology test; or
B. upon the birth of the child, the child
tested positive for a drug as evidenced by a positive toxicology test; and
2. the mother refused the level of drug
treatment recommended by a qualified addictions
specialist, as defined in § 5-1201 of this title, or by
a physician or psychologist, as defined in the
Health Occupations Article;
(iii) the parent subjected the child to:
1. chronic abuse;
2. chronic and life-threatening neglect;
3. sexual abuse; or
4. torture;
(iv) the parent has been convicted, in any state
or any court of the United States, of:
1. a crime of violence against:
B. 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;
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.
Adoption/Guardianship: termination of parental rights:
balancing of factors
In Re: Adoption/Guardianship
of Cayden T.S.
Argued Before: Krauser, C.J., Wright, Kenney, James A.,
III., (Ret’d, Specially Assigned), JJ.
Opinion by Kenney, J.
Filed: October 1, 2014. Unreported.
Despite father’s recent sobriety and parenting
classes, the termination of his parental rights was
supported by the evidence, including testimony that
father had failed to take advantage of services
offered by DSS and had obtained housing where the
boy would be banned; and, assuming the court erred
in allowing the LCSW to testify, based on her observations, about the lack of a bond between father and
son, any such error would be harmless.
Appellant, Anthony S. (“Mr. S.”), is the father of
Cayden T.S., who was born on March 9, 2012 and is a
child in need of assistance (“CINA”).1 He appeals the
decision by the Circuit Court for Frederick County, sitting as a juvenile court, to terminate his parental rights.2
He raises only one question for our consideration: “[d]id
the trial court err in terminating Mr. S.’s parental rights?
We answer that question in the negative and affirm the
judgment of the juvenile court.
Facts and Legal Proceedings
On August 20, 2013, the Frederick County
Department of Social Services (“DSS”) filed a Petition
for Guardianship with the Right to Consent to Adoption
for Cayden. In support of that petition, DSS stated that it
received a report on March 29, 2012 that Mr. S. and Ms.
T. were observed in a parking lot under the influence
and that Cayden, who was not quite three weeks old,
was with them. The police responded and reported that
Ms. T. possessed “baggies with a scant amount of a
white powdery substance, and [Mr. S.] had a prescription bottle with a substance that was noted per field test
to be heroin.” Mr. S. admitted that he used heroin the
previous day, and he was charged with CDS possessionnot marijuana. A Safety Plan was initiated with the provisions that the parents would not use illegal drugs and
would submit to random urinalysis, and that Mr. S.
would not be with Cayden unsupervised. On May 18,
2012, DSS received a second report that Ms. T. had been
arrested in the company of Mr. S. and with Cayden in
the vehicle. She possessed a “baggie containing an offwhite rock-like substance” and drug paraphernalia.
After an Adjudicatory Hearing on June 25, 2012,
Cayden was found to be a CINA as a result of Mr. S.’s
and Ms. T.’s “substance abuse issues,” and because
“Cayden was born having been drug exposed (cocaine)
in utero and exhibited symptoms consistent with withdrawal.” According to DSS, it had made reasonable
efforts to assist Mr. S. in achieving reunification, including: a referral to parenting class, referrals to substance
abuse treatment providers, weekly visitation, transportation to visitation and treatment providers, substance
abuse screening services, a referral for mental health
treatment, and a referral to services to obtain housing
and for emergency care.
At the time DSS filed the petition for guardianship,
Mr. S. was residing at Olson House, which is a halfway
house, and lacked stabling housing or a plan for stable
housing. DSS also noted that the parents’ visitation had
been decreased due to their lack of involvement and
because “their bond with Cayden [had] not been developed.” Mr. S. missed “nearly one third” of his visits
because he was incarcerated, and “no-showed” for
“nearly one quarter of his visits,” from the time Cayden
was placed in shelter care to the filing of the petition for
guardianship.
On July 22, 2013, Cayden’s permanency plan was
changed to adoption. He had been in foster care since
he was nine weeks old, and, according to DSS, he was
doing well in his placement. He received occupational
therapy and other services through the Infants and
Toddlers program due to his intrauterine drug exposure.
On September 12, 2013, Ms. T. objected to the
guardianship petition. Cayden, through his attorney,
consented on September 13, 2013, and, on October 1,
2013, Mr. S. objected, indicating that he would finish his
parenting class in two weeks, had a full-time job, was
almost finished with his group treatment, was living
with mother, and had been sober for nine months.
A termination of parental rights (“TPR”) hearing
was held on February 10 and 11, 2014.3 DSS indicated
that Mr. S. has “made great progress in his life in, in gaining sobriety,” but explained that “[t]he problem is that
while Cayden was in foster care Mr. S. was continuing to
use drugs, he was committing crimes and getting incarMaryland Family Law Update: November 2014
77
cerated. He was incarcerated on two occasions in the
first year of Cayden’s foster care life” in August 2012 and
January 2013. While incarcerated, he was “unavailable to
visit or to establish a relationship with his son,” and
Cayden was unable “to develop an emotional bond with
him[.]” According to DSS, Cayden had developed “a
strong emotional bond with his current foster mother
and his broth — his foster brother with whom he lives
and he has lived since April of last year[,]” which at the
time of the hearing had been 10 months.
Because TPR decisions are so fact intensive, we will
summarize the testimony given before the juvenile court.
Mr. S.’s testimony
Mr. S. testified at the hearing that Cayden had been
placed in foster care for 21 months because of his “active
addiction.” Between May and August of 2012 he was
“using heroin, pills, [and] coke.” He had been referred to
substance abuse treatment and parenting classes, but he
did not go. He was arrested in August of 2012 and was
incarcerated for one month. When he was released, he
used drugs until he was arrested again in January of 2013
because he “stole [his mother’s] jewelry behind her
back.” He pled guilty to theft scheme and possession
with intent to distribute fake CDS. As a result of his participation in Drug Court, his sentencing has been continually postponed.
Mr. S. testified that Drug Court is a “very intense
drug program. It has three different phases. The first
phase is a minimum of sixth months, second phase is a
minimum of four, and then the last phase is a minimum
of five.” He had completed the first phase, which
involved outpatient treatment and counseling. At the
time of the hearing he was in phase two, which is “normal day living” but he was obligated to complete urinalysis, 40 hours of community service, maintain stable
employment and housing, and meet with his counselor
once every two to three weeks.
Between 2012 and 2013, he had transient housing,
living between his mother’s house and a friend’s house.
From June 2013 until about two and a half weeks prior
to the hearing, he lived at Olsen House, which provided a
structured environment to “help [him] get the services
[he] need[ed] . . to get back into the community.” He currently lives in his apartment with his girlfriend, Sarah
Trap.4 Mr. S.’s lease was admitted into evidence and stated that “[t]he premises will be used solely for residence
purposes and be occupied by no more than two persons,
including children. The following persons[, Mr. S. and
Ms. Trap,] and no other except for after-born children
are authorized by the landlord to reside at premises[.]”
Notwithstanding the lease condition, Mr. S. testified that
Cayden would be allowed to live at the apartment and
the landlord could come in and testify to that.
From September 2012 to January 2013, when Mr. S.
was employed by Buffalo Wild Wings, he did not provide
any financial support to Cayden. At the time of the hearing, he was employed by Steve’s Welding Service, and
78
had been employed there since August 2013. He testified
that he works anywhere from 40 to 80 hours a week. He
acknowledged that he had not provided any financial
support directly to Cayden, but had put his earnings
towards the apartment so Cayden can have his own
room and that he has ordered a toddler bed. He also gave
Cayden Christmas gifts. If Cayden was returned to his
care, Sabrina McNulty would watch Cayden while he
was at work. He did not know whether Ms. McNulty was
licensed or certified in childcare.5
Mr. S. testified that he initially was given visitation
three times a week when Cayden was first removed, but
he missed visits due to his drug addiction. He understood that his bond with Cayden was not as strong as it
could have been if he had not missed his visits. When he
was incarcerated for 5 months beginning in January
2013, he only saw Cayden when DSS would bring him,
which was once a month.
According to Mr. S., he believed it is in Cayden’s best
interest to live with him and that he can provide for him
and is ready to parent. He completed parenting class
around two months prior to the hearing. He testified that
he would like more time with Cayden because he currently only receives visitation once a week, so it is difficult for Cayden to bond with him. He testified that
Cayden knows who he is and calls him “Daddy.”
Asserting that DSS had never conducted a bonding evaluation with an expert observing him with Cayden, he
believed that his bond with Cayden is greater than he is
“being given credit for.”
Lorraine Knuty’s Testimony
Mr. S.’s mother, Lorraine Knuty, testified that Mr. S.
is doing well in his substance abuse treatment and rehabilitation, and her relationship with him is “a lot better.
Where [she] had no relationship a year ago[, she] ha[s] a
wonderful, wonderful relationship with him now.” She
had visited Cayden two or three times, the most recent
visit being in July 2013. To her, Cayden “[s]eems to be
doing fine. He’s very attentive with [her].” Since Mr. S.
has been off drugs, she has not seen him act inappropriately with Cayden, and “[i]ts very clear” that they love
each other. Ms. Knuty testified that she would assist Mr.
S. in learning additional parenting skills, and that other
family members, including a daughter-in-law and
cousins, 6 “would be available to assist [Mr. S.] in his
efforts towards unsupervised visits and reunification.”
Heather Chorney’s Testimony
Heather Chorney, Cayden’s case worker from May
2012 to February 2013, testified that she has been
employed by DSS for ten years as a social worker. She is
a “licensed graduate social worker,” and was qualified
“as an expert in social work with specific expertise in
child welfare.” Ms. Chorney testified that Cayden was
offered services through the Infants and Toddlers program because of his exposure to drugs and she referred
the parents for services including: substance abuse treatment, parenting classes, housing assistance, cab transTheDailyRecord.com/Maryland-Family-Law
portation to and from visitation, and that they were invited to all medical appointments.
The first month Cayden was in care, Mr. S. was
referred to Allied Counseling for drug treatment. He
attended his first evaluation and was recommended for
inpatient treatment, but he did not participate. He also
was referred for random urinalysis, but did not participate. When he was released from his incarceration in
August 2012, he was again referred to Allied Counseling.
Mr. S. attended a second evaluation and was recommended for intensive outpatient treatment, but again he
did not participate. Mr. S. attended Cayden’s medical
appointments and “one to two sessions” of Infant and
Toddlers, but was incarcerated shortly after Cayden
started the program.
Mr. S. originally had scheduled visitation three times
a week, but he regularly missed one visit a week; he did
not have visits with Cayden while incarcerated in August
2012. When visitation resumed in September, Mr. S. was
given two visits a week, which he attended regularly.
According to Ms. Chorney, Mr. S. acted appropriately
during the visits.
Heather Strosnider’s Testimony
Heather Strosnider, a licensed graduate social worker and Cayden’s caseworker from February 2013 to June
2013, also testified as an expert in social work. She testified that in April 2013, a family involvement meeting was
held.7 At the time, both Ms. T and Mr. S. were incarcerated. Ms. T. participated in the meeting by phone but Mr.
S.’s detention center could not accommodate his phone
participation in the meeting. They did not reschedule the
family involvement meeting because, according to Ms.
Strosnider, they “had all the parties that need[ed] to participate.”8 Ms. Strosnider testified that DSS was not able
to offer Mr. S. any services while he was incarcerated,
but he participated in Project 1039 through the detention
center. Cayden and Mr. S. had visits once a month, but
the visits “were difficult” because “the detention center
[was] not set up to have a small child visiting.” Mr. S.
held Cayden and tried to “interact with him,” but, at that
point, she did not believe Cayden recognized Mr. S.
Jessica Williams’s Testimony
Jessica Williams, a licensed graduate social worker
and Cayden’s caseworker since June 2013, also testified
as an expert in social work. She testified that Mr. S. visits
Cayden “fairly regularly.” When he previously attended
visits with Ms. T., he would take a passive role. When he
began having visits with Cayden without Ms. T., “it would
be 10 to 15 minutes where he would play with Cayden
before he would start looking at this phone or just
become distracted otherwise.” The visits were an hour
long, so for the remainder of the 45 minutes, “Cayden
would play in the room and Mr. S. would look up periodically at him but he’d be engaged mostly in looking at his
phone.” When asked whether Cayden was ever in danger
during those visits, Ms. Williams testified that there was
a time when Mr. S. was distracted and Cayden was
“jumping off furniture” and “one incident where [Ms.
Williams] had to go in and take a pen because [Cayden]
was poking it really close to his face.” Mr. S.’s response
to that incident was that DSS should not have provided
Cayden with the pen if it was dangerous. In Ms.
Williams’s view, Mr. S. “doesn’t appear to have a good
grasp of where Cayden is developmentally,” and, while
he can “articulate some of the concepts he’s heard in parenting classes,” she doesn’t “see him use those in practice.”
Ms. Williams was concerned that if Mr. S. was with
Cayden unsupervised, “Cayden would not be safe” based
on her observation that, during visits, “Mr. S. appears to
be distracted in other conversations or his phone or
whatever it might be, or parallel play, and he’s not really
paying attention to what Cayden is doing and that’s in a
controlled environment in the DSS room.” Since she
addressed the issue with him, Mr. S. is less likely to take
out his cell phone, but he “still becomes very distracted
with parallel play where Cayden wants to play with
something else and Mr. S. is engaging with another
toy[.]” Twice she has “offered to sit in the visits and offer
in the moment coaching with Mr. S.,” which he “said he
wanted to think about[,]” but there has been no further
response. She has also given suggestions related to discipline, to which Mr. S. “has been resistant.” Thus, she
“would be very concerned about Cayden spending any
length of time unsupervised with Mr. S. at this point.”
DSS did not conduct a formal bonding assessment.
When asked about Mr. S. and Cayden’s bond, Ms.
Williams testified:
I would say it’s, it’s not very significant. Just
from what I’ve seen is that Cayden, he doesn’t
dislike the visits with Mr. S., but he appears
ready to go at the end of the visits. He’s often
pointed at the door, he’s asked for mommy, he’s
said where’s [Ms. Williams]. He wants to, he’s
tried to leave the room even during the visits. So
he doesn’t seem very engaged with [Mr. S.].
As to Cayden, he is doing well in his current foster home.
“He appears to be close with his foster mother. He’s
always seemed happy . . . in the home, which is a safe
and . . . an appropriate environment for him.” Ms.
Williams testified that the foster mother meets his medical and social needs and that Cayden seems “welladjusted.” Based on her observations, Ms. Williams
believed it would be “in Cayden’s best interest to remain
in the foster home” where he is and that it should “be a
permanent placement.”
Lauren C.’s Testimony
Cayden’s foster mother, Lauren C. (“Ms. C.”) testified
at the hearing that Cayden had first been placed with her
in March 2013; he was returned to his former foster parents for a short time10 and then placed back with her in
April 2013. She would like to adopt Cayden. She has a
five year old son and he and Cayden interact like siblings. Cayden refers to her as “Mama” and she believes
that she has a strong bond with him. Cayden also has a
79
relationship with her family and calls her parents “grandma and grandpa.” He also spends time with his former
foster parents and refers to them as “grandma and grandpa” as well. She believed that if Cayden left her care he
would feel “scared,” and “abandoned,” and that “the
world he understands and knows” would be disrupted.
When asked whether she observes changes in Cayden
after visitation, Ms. C. testified that there are weeks
when she sees no difference, and other weeks when
Cayden is “clingy.”
The Juvenile Court’s Ruling
In an oral ruling on February 11, 2014,11 the circuit
court found that it was in Cayden’s best interest to terminate the parental rights of Mr. S. finding that he was unfit
and that exceptional circumstances existed that made
the continuation of the parent-child relationship detrimental to Cayden’s best interests. The court explained
[T]his is not the mere passage of time if I were
to contin [sic], deny this petition to allow the
case to go forward in a CINA case to see how
Mr. S. continues to do in drug treatment court.
Mr. S. is a drug addict. I am very very pleased
that Mr. S. is doing well as he is in drug treatment court, but let’s not, ah, forget to look at the
big picture. He is a drug addict who has pled
guilty to two felonies, the sentencing for which
has been postponed to see if he can continue to,
um, successfully participate in drug, in drug
treatment court. [Cayden] was born on March
9th, 2012. Thereafter he was subjected to neglect
by his parents who continued to use drugs in his
presence, to continue to fail to provide him with
care because they were drug addicts. That
resulted in the necessity of the removing that
child from their home in May of 2012. Thereafter
in August of 2012 Mr. S. was incarcerated. From
January, he got out of jail, lived with his mom
and then got kicked out, became incarcerated
again on January of 2013 through June of 2013.
Six months of his child’s life incarcerated. . . .
[O]bviously from January to June of 2013 he was
not able to care for his child, he was not able to
meaningfully, in any meaningful way engage in
an appropriate parent/child relationship with
Cayden. When he was released in June that’s
when he entered drug treatment court having
pled guilty on June 10th, 2013. . . . Then he went
into the Olson House, a halfway house. No ability to care for a child while living in that house.
Some ability obviously to be involved in some
way with his child’s visitation and, trying to
maintain a relationship. But once again this is
not a time when he was able provide care for his
child. . . . He has been promoted or advanced
from phase one of drug treatment court to phase
two of drug treatment court. . . . By his own testimony phase two is gonna last another year.
Once again, this is not near — merely the pas80
sage of time that concerns the Court. It is his
ability to become the type of parent which
would result in Cayden’s best interest.
***
Once again, just a few weeks ago, today being
February 11th, he was advanced to phase two by
his testimony, and that’s at least another year.
Thereafter he’s got phase three. So I am looking
at a passage of time that could exceed one third
of this child’s life.
***
Now I am hopeful that Mr. S. will continue, continue to be successful in Drug Court. He’s gonna
be provided a diff, additional growth opportunities, strengthening his sobriety. Those obligations are gonna have to be undertaken by him.
But this is a process and as the state, as [DSS]
has argued he’s not yet demonstrated his ability
to remain sober in the community, to re, to be a
law- abiding productive member of society. He’s
got an opportunity to do that. But it’s not, but we
are not there yet. He has just within the last 10
days moved into an apartment. . . . That lease I
reviewed said no more than two people can live
there. He’s living there with his girlfriend, who is
also sober, who has been sober for five months,
not a very long time, whose children are also
children in need of assistance. He has identified
a non-licensed day care provider who could provide care for his child. That provider is also in
recovery. Once again, thereafter, after phase two
is over, which he just entered in January, he
must complete phase three. And this child is . . .
23 months old and has not been cared for his by
his father or by his mother for 21 months. Nearly
his whole life. . . . Everything this child knows is
not about mom, is not about dad. I have no
doubt he recognizes them and knows them. But
that’s not the bond, that’s not the parental bond
that the child[ ], ah, deserves.
Distinguishing In re Adoption/Guardianship of Amber
R., 417 Md. 701 (2011), the court explained:
This is not just a situation where failure to get
drug treatment. I’m I’m, pleased that Mr. S. is
getting drug treatment. But let’s not overlook the
reality of the Drug Court program. He has pled
guilty to distribution of fake CDS. He has not yet
been sentenced for that. He has pled guilty to
theft scheme of property having a value of
$1,000 to under $10,000. If he flunks out of Drug
Court it is not just the situation where he is likely to continue to use drugs, it is the situation
where he’s gonna be facing 10 years in the
Division of Correction for possession with the
intent to distribute fake CDS. So this is not simply the case of someone abusing drugs, not
being able to control it. This is someone who has
been involved in serious criminal behavior and
is hopefully that he will avoid sentencing on
those charges if he is successful.
The court also found that “there was a significant
amount of visitation, scheduled visitations which were
not taken advantage of by the parents.” Mr. S.
wasn’t offering any nurturing to the child. He
wasn’t offering financial care for the child. . . .
And in the CINA case he has not yet convinced
the Court, the juvenile court in the CINA case
that there would be no further likelihood of
abuse or neglect if his visitation went to unsupervised visitation.
***
[T]he father said he wasn’t provided that opportunity [to be involved with the caregiver]. I, I just
simply find that hard to believe. Half of the
Infant and Toddlers, um, sessions were through
the foster parent and the parents were invited to
attend all Infant and Toddler sessions.
***
What’s going on here is two parallel tracks. A
track for Mr. S. to be involved in his drug treatment and then what is in Cayden’s best interest
and his natural and family developments. He has
not developed a meaningful parental relationship with the father. . . . Whether additional services would be likely to bring about a lasting
parental adjustment within 18 months from the
date of placement. We are well beyond 18
months. We are at 21 months. . . . I find no reason why it would be in Cayden’s best interest to
extend that period of time to provide other services. [DSS] has provided services, offered services which were not taken advantage of. Drug
Court is providing services. Yes, they are being
taken advantage of, but it leaves Mr. S. quite
frankly in limbo working day by day, one day at
a time to maintain his sobriety and stay out of
prison, and I hope he’ll be successful with that,
but I cannot see how it could provide Cayden
with any benefit.
***
I find by clearly and convincing evidence that
this child knows . . . Mr. S. and knows that he’s
his dad. I think that is the extent of this child’s
emotional bond to father. . . . I do not find by
clear and convincing evidence that his child has
a significant bond with his . . . father. On the
contrary, I find that . . . the child has a . . . significant bond with his foster mother. I find that he
has a significant bond with his foster brother.
His daycare providers provide him security. . . .
The child has a bond with his prior foster parents who have been described to the Court and
the Court finds are in the role of surrogate
grandparents. . . . They provide joy and security
for the child and that child has adjusted
extremely well to his home, to his community, to
his placement, to his daycare. Once again, this is
not just about the bond. . . . This, not one factor
here stands alone. The entire picture comes
together to convince this Court by clear and convincing evidence that Mr. S. is an unfit person to
remain in the parental relationship with his
child. . . . I find that exceptional circumstances
here exist. This child has been in care 21 out of
23 months of his life. I find that Mr. S. is a participant in Drug Court. If he flunks out he’s not just
looking at a life of not being clean, not being
sober, not having a good life. He’s looking at a
substantial sentence. I find that prior to going
into Drug Court, which was . . . more than six
months after the child was in care, he failed to
perform or take advantage of those services
offered by [DSS].
On March 5, 2014, Mr. S. filed a timely appeal to this
Court.
Discussion
Mr. S. argues on appeal that the juvenile court erred
in determining that he was unfit because it
erroneously concluded that [DSS] provided reasonable efforts and erred by failing to credit the
father for his progress. The court also inappropriately considered an opinion of an[ ] individual, who was an expert in social work, on the
issue of bonding where no foundation was laid
to qualify her opinion; and by comparing the
father-son relationship to the foster care
provider’s relationship with Cayden.
He contends that “the court placed undue significance
on [his] conduct during the first ten months of where he
partially complied [with DSS], and not the last 11 months
of sobriety and steady and significant improvements.” He
argues that DSS “did not make reasonable efforts
throughout the case” because “[t]he agency failed to
offer [him] new services after he was released from
incarceration, which would realistically assist him with
reunification.” Mr. S. further asserts that he “was unfairly
criticized for being unable to properly implement the
parenting skills that he learned in class, while watching
Cayden. [DSS] testified that they were aware of the
shortcomings but [did] not provide referrals to assist.”
According to Mr. S., DSS’s “disinterest was clear throughout the case. The agency did not include him at the family involvement meeting on April 2, 2013, even though he
was incarcerated and wished to participate by phone.”
Mr. S. also contends that “the court erred by concluding that [he] and [Cayden] were not bonded based
on viewing a one minute video, which did not show any
remarkable conduct, and the opinion of a social worker,
who did not provide a scintilla of evidence to show that
she was qualified to assess the bond between the father
and son.” (Emphasis in original). According to Mr. S., the
caseworker’s opinion was based “on the fact that Cayden
separated easily from his father after visits and no other
information. This conclusion cannot be considered
harmless as they formed a substantial basis for the
court’s ruling.”
81
In addition, Mr. S. argues that the court’s “concerns
about the lease and his potential child-care provider”
should not “have foreclosed reunification. [He] testified
that the language of the lease was not intended to
exclude [Cayden], a position that could be readily verified and is supported by logic, given that the lease
expressly permitted them to have a new child live them.”
Moreover, “the concerns about the child-care provider
should not have impacted his ability to reunify” because
DSS “could investigate this individual and approve or
disapprove of her home.” If the child-care provider was
“determined to be unsuitable” Mr. S. “could have found
another provider[.]”
He also argues that the “court erred by allowing the
passage of time to constitute exceptional circumstances.” Moreover, the court erred in calculating how
long it would take for Mr. S. to complete drug court stating that “phase 2 is going to last another year” when Mr.
S. actually testified that phase 2 would take at least 4
months. “[P]hase three would be an additional five
months” so Mr. S.’s “potential minimum completion time
was eight months and the court’s position that phase
two, alone, would take a year was material error.” 12
Relying on In re Adoption/Guardianship of Alonza D.,
412 Md. 442, (2010), he argues that the length of time a
child has been in foster care along with the child’s bond
with a foster parent is not sufficient to warrant termination. And, citing In re William B., 73 Md. App. 68 (1987),
“drug abuse alone cannot be a reason to terminate
parental rights.”
According to Mr. S., the court’s concern about “a
potential relapse and ensuing incarceration do not support a finding of exceptional circumstances.” He asserts
that “[s]ubstance abuse by parents, should not pose a
barrier to reunification where the parent is in active
recovery,” and “the court’s concern about a future incarceration did not constitute an exceptional circumstance
where the father was eight months into the fifteen month
drug court program with no errors” because, citing In re
Adoption/Guardianship Nos. CAA92–10852 and
CAA92–10853, 103 Md. App. 1 (1995), “incarceration is
not a disability that mandates termination.”
DSS responds that “there was clear and convincing
evidence both of Mr. S.’s unfitness and exceptional circumstances to justify a TPR judgment.” (Emphasis in
original). As to Mr. S.’s argument that the court “focused
too heavily on Cayden’s first 12 months in foster care,
and not enough on Mr. S.’s more recent 9 months of participation[,]” DSS points out that the court “could not
ignore Cayden’s entire life history, nor overlook the reality of the drug court program” and that Mr. S. had pled
guilty to distribution of fake CDS and had not yet been
sentenced. Moreover, Mr. S.’s choices in the “most recent
nine-month period . . . reveal numerous and troubling
poor parenting choices.” Mr. S. failed to provide financial
support “despite long periods of employment,” and
“failed to heed the advice of social workers . . . or incorporate parenting strategies he should have learned in
82
parenting class.” He “complained that he has been
unable to bond with Cayden because he has limited visitation” but he could have participated in Infants and
Toddler’s “where he could easily have increased his contact both with Cayden and Cayden’s foster mother, but
did not.” In addition, Mr. S. has “chosen to lease an apartment that explicitly forbade him from having Cayden live
with him.” He lives with his girlfriend who had been
sober only five months and whose own children are in
foster care, and his proposed daycare provider has been
sober for only 14 months. According to DSS, “[b]ased on
the totality of the evidence, the court found that these
factors, taken together offered little evidence to find that
Mr. S. had made any lasting parental adjustment to safely
parent Cayden.”
DSS asserts that the court “[i]n accordance with its
statutory obligation,” considered what is in Cayden’s
best interest, and that “Mr. S. continued to exhibit unsafe
parenting even when supervised” and “failed to convince
the juvenile court . . . that he was ready for unsupervised
visitation let alone reunification.” In considering
“whether additional services would likely bring about a
lasting parental adjustment,” the court, according to
DSS, “appropriately . . . declined to find that extending
the time for [DSS] to provide additional services would
be likely to bring about a lasting adjustment” because
the case was “beyond the 18 months contemplated by
the statute.” (Internal citations omitted).
With respect to Ms. Williams’s testimony about
Cayden’s bond with his father and foster mother, DSS
argues that “no party objected to her admission as an
expert” in regard to bonding, and that the issue is not
preserved for appeal. But, even if it is, “the admission of
an expert will not be disturbed on appeal unless clearly
erroneous.” Comparing Ms. Williams’s training to that of
a licensed clinical social worker who was qualified to
testify as to bonding in Tatianna B. 417 Md. 259, 268
(2010), it maintains that Ms. Williams had the “requisite
knowledge, skill, experience, training, and education to
be qualified as an expert.” In addition, Ms. Williams “possessed direct knowledge and observation of Cayden’s
treatment and mental health history and thus was
uniquely useful to the juvenile court as either a lay or
expert witness.” Additionally, the court’s own findings
based on viewing the video that was submitted by Mr. S.
“were in line with Ms. Williams’ observations[.]”
A termination of parental rights implicates a fundamental liberty interest and constitutional right of a parent to raise his or her child, and “may not be taken away
unless clearly justified.’” In re: Adoption/Guardianship
No. 95195062, 116 Md. App. 443, 454 (1997) (quoting In
re: Adoption/Guardianship No. 10941, 335 Md. 99, 112
(1994)). Our appellate courts have long recognized the
gravity of a decision to terminate one’s legal status as a
child’s parent. Id. On the other hand, a parent’s fundamental right to raise his or her children “‘must be balanced against the fundamental right and responsibility of
the State to protect children, who cannot protect themselves, from abuse and neglect.’” Amber R., 417 Md. at
709 (quoting In re Adoption/Guardianship of Rashawn
H., 402 Md. 477, 497 (2007)). Therefore, parental rights
can be terminated if the State demonstrates by clear and
convincing evidence that the parent is either unfit or that
exceptional circumstances exist that would make a continued relationship with the parent detrimental to the
best interests of the child. Id.
As termination of parental rights involves two
strong, but often competing, interests — that of the
parent and that of the child — the General Assembly
has established a detailed statutory scheme to guide
and limit a court in determining a child’s best interest,
which is the overarching standard. Id. The State bears
the heavy evidentiary burden of proving by clear and
convincing evidence that termination of the parent’s
rights serves the best interests of the child. In making
decisions concerning the best interest of the child,
however, the juvenile court is “‘endowed with great
discretion.’” Id. at 713 (quoting Petrini v. Petrini, 336
Md. 453, 469 (1994)).
In reviewing a juvenile court’s decision with regard
to a termination of parental rights, “our function . . . is
not to determine whether, on the evidence, we might
have reached a different conclusion.” In re
Adoption/Guardianship No. J970013, 128 Md. App.
242, 247 (1999) (internal citation omitted). In these
cases, therefore, “‘the greatest respect must be accorded [to] the opportunity the [trial court] had to see and
hear the witnesses and to observe their appearance
and demeanor.’” In re Adoption/Guardianship Harold
H., 171 Md. App. 564, 570 (2006) (quoting No. J970013,
128 Md. App. at 247-248). Our role is to “‘ascertain
whether the [court] considered the statutory criteria,
whether its factual determinations were clearly erroneous, whether the court properly applied the law, and
whether it abused its discretion in making its determination.’” In re Cross H., 200 Md. App. 142, 155 (2011)
(quoting In re Adoption/Guardianship/CAD No.
94339058, 120 Md. App. 88, 101 (1998)).
FL §5-323 enumerates specific factors a juvenile
court must consider in any TPR proceeding. In pertinent
part, the statute states:
§5-323. Grant of guardianship — Nonconsensual.
***
(b) Authority. — If, after consideration of factors as required in this section, a juvenile
court finds by clear and convincing evidence that a parent is unfit to remain in a
parental relationship with the child or that
exceptional circumstances exist that would
make a continuation of the parental relationship detrimental to the best interests of
the child such that terminating the rights of
the parent is in a child’s best interests, the
juvenile court may grant guardianship of
the child without consent otherwise
required under this subtitle and over the
child’s objection.
***
(d) Considerations. — Except as provided in
subsection (c) of this section, in ruling on a
petition for guardianship of a child, a juvenile court shall give primary consideration
to the health and safety of the child and
consideration to all other factors needed to
determine whether terminating a parent’s
rights is in the child’s best interests, including:
(1) (I) all services offered to the parent
before the child’s placement, whether
offered by a local department, another
agency, or a professional;
(ii) the extent, nature, and timeliness of services offered by a local department to facilitate reunion of the child and parent; and
(iii) the extent to which a local department
and parent have fulfilled their obligations
under a social services agreement, if any;
(2) the results of the parent’s effort to
adjust the parent’s circumstances, condition, or conduct to make it in the child’s
best interests for the child to be returned to
the parent’s home, including;
(I) the extent to which the parent has maintained regular contact with:
1. the child;
2. the local department to which the
child is committed; and
3. if feasible, the child’s caregiver;
(ii) the parent’s contribution to a reasonable part of the child’s care and support, if
the parent is financially able to do so;
(iii) the existence of a parental disability
that makes the parent consistently unable
to care for the child’s immediate and ongoing physical or psychological needs for long
periods of time; and
(iv) whether additional services would be
likely to bring about a lasting parental
adjustment so that the child could be
returned to the parent within an ascertainable time not to exceed 18 months from the
date of placement unless the juvenile court
makes a specific finding that it is in the
child’s best interests to extend the time for
a specified period;
(3) whether:
(I) the parent has abused or neglected the
child or a minor and the seriousness of the
abuse or neglect;
(ii) 1.A. On admission to a hospital for the
child’s delivery, the mother tested positive
for a drug as evidenced by a positive toxicology test; or
83
B. Upon the birth of the child, the child
tested positive for a drug as evidenced by a
positive toxicology test; and
2. The mother refused the level of drug
treatment recommended by a qualified
addictions specialist, as defined in §5-1201
of this title, or by a physician or psychologist, as defined in the Health Occupations
Article;
(iii) the parent subjected the child to:
1. chronic abuse;
2. chronic and life-threatening
neglect;
3. sexual abuse; or
4. torture;
(iv) the parent has been convicted, in any
state or any court of the United States, of:
1. a crime of violence against:
B. 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;
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.
***
(f) Specific finding required. — If a juvenile court
finds that an act or circumstances listed in subsection (d)(3)(iii), (iv), or (v) of this section
exists, the juvenile court shall make a specific
finding, based on facts in the record, whether
return of the child to a parent’s custody poses
an unacceptable risk to the child’s future safety.
The statutory scheme requires the court to consider
and make specific findings with respect to the factors
enunciated in FL §5-323(d), and, mindful of the presumption favoring a continuation of the parental relationship,
determine if the findings suffice to show either an unfitness of the parent or constitute exceptional circumstances that would make a continuation of the parental
84
relationship detrimental to the best interest of the child.
Ta’Niya C., 417 Md. at 102.
As required, the juvenile court in this matter did consider the §5-323(d) factors and enunciated those findings
on the record. With regard to FL §5-323(d)(1), the services offered to the parent and the extent to which DSS
and the parent fulfilled their obligations under service
agreements, the Court of Appeals in In re Rashawn H.,
402 Md. at 500, explained, “[t]he statute does not permit
the State to leave parents in need adrift and then take
away their children[;]” however, “[t]here are some limits
. . . to what the State is required to do.” The State “must
provide reasonable assistance in helping the parent to
achieve those goals, but its duty to protect the health
and safety of the children is not lessened and cannot be
cast aside if the parent, despite that assistance, remains
unable or unwilling to provide appropriate care.” Id.
Here the court found
Well, I’m not sure [DSS] offered services prior to
placement, but certainly long prior to the filing
of the petition for the termination of parental
rights [DSS] did in fact offer services. Those services included substance abuse evaluations and
treatment. Those services included mental
health treatment. Those services included parenting classes. I find that Mr. S. only did the parenting classes once he got into Drug Court. . . .
Housing vouchers and shelters, shelter was
offered to the parents by [DSS] Visitation was
offered to the parents.
The court’s finding that DSS provided services was not
clearly erroneous based on the caseworkers’ testimony
of the services offered to Mr. S. Mr. S.’s argument that
DSS was disinterested in helping Mr. S. throughout the
case because of one caseworker’s comment that they
“had all the parties they needed” for the family involvement meeting, as well as his argument that DSS failed to
continue to provide services after the first nine months
to help him learn how to apply what he learned in parenting class is without merit. Mr. S. was invited to participate in the family involvement meeting; however, he
was incarcerated and the detention center could not
accommodate his participation. As Ms. Strosnider testified, the meeting was about Cayden’s placement, and
that DSS did not wait until June 2013 for Mr. S., who
could participate by telephone as did Ms. T., to be
released from incarceration does not show a “disinterest
[to help Mr. S.] throughout the case.” Furthermore, Ms.
Williams testified that on two different occasions she
“offered to sit in the visits and offer in the moment
coaching with Mr. S.” which he never took advantage of.
She also testified that she offered suggestions for discipline, but Mr. S. was “resistant to that offer.” Mr. S. was
also provided the opportunity to participate in Cayden’s
Infants and Toddler’s class, but he only attended “one to
two sessions.”
As for findings with respect to FL §5-323(d)(2), the
parent’s effort to adjust his circumstances to make it in
the child’s best interest to be returned to the parent’s
home, including the extent to which the parent maintained contact with DSS, the child, and the child’s caregiver, the court found that Mr. S. had visitation
one time per week and he’s not shown that he
knows how to handle it, handle the child during
visitation. It’s a one hour visit and he can only,
only hold it together for 15 minutes.
Furthermore, he can’t figure out how to redirect
a child or handle the child who’s two years old
now, who’s gotta be a squirmy worm and picking
up everything in the room, and doesn’t know
how to handle, handle when there was a dangerous situation. . . . I don’t find that his contact has
always been appropriate and once again I must
state that it continues to be unsupervised, the
juvenile court and the CINA matter not having
extended it to unsupervised visitation.
The court also found that Mr. S. had not kept in regular
contact with DSS and the child. Mr. S. claimed that he
did not have the opportunity to keep in contact with the
caregiver, which the court found “hard to believe”
because “[h]alf of the Infant and Toddlers . . . sessions
were through the foster parent and the parents were
invited to attend all Infant and Toddler sessions.” The
court also found, based on Mr. S.’s own testimony, that
he had “been working 40 hours a week making 12 . . .
dollars an hour since August 2013” but had not “provided
any financial support.” The court found that additional
services would not be likely to bring about a lasting relationship within 18 months from the date of placement
because the case was already at 21 months and that it
was not in the child’s best interest to extend the period
of time. Although Mr. S. has been taking advantage of
some services through Drug Court, the court noted that
he is working “one day at a time to maintain his sobriety
and stay out of prison.”
The court’s conclusions regarding Mr. S.’s adjustment of his circumstances to make it in the best interest
of the child to return to his parents was also supported
by the evidence and was not erroneous. Mr. S. testified
that he had not provided any financial support to
Cayden, and despite his efforts in completing parenting
classes, he is still making what DSS calls “troubling parenting choices.” Mr. S.’s lease, which he argues the court
erred in interpreting to mean that Cayden could not live
with him, clearly states that “no others, except after-born
children, are authorized by Landlord to reside within
premises.” The language of the lease is not ambiguous,
so the court did not err in finding that Mr. S. chose to
reside in an apartment that would not, at least at the
time of the hearing, accommodate Cayden. If Cayden
was permitted to reside in the apartment, as Mr. S. suggests, he had the burden of production, which he failed
to meet by not calling the landlord as he said he could
do. See Amber R., 417 Md. at 720 (“A party that bears the
burden of production on any issue, however, merely
bears the burden of going forward with the evidence . . .
[which] is usually cast first upon the party who has
pleaded the existence of the fact.” (Internal quotation
and citation omitted)). Additionally, the court’s characterization of Mr. S.’s decision to use a non- licensed daycare provider was not clearly erroneous, nor was it the
deciding factor in finding Mr. S. unfit to parent. As the
court recognized and explained, “not one factor stands
alone. The entire picture comes together to convince this
court that by clear and convincing evidence that Mr. S. is
unfit.”
See
In
re
Adoption/Guardianship No. A91-71A, 334 Md. 538, 552-53 (1994)
(“if the trial court determines, by clear and convincing
evidence based on the totality of the circumstances, that
it is in the best interest of [the child] to terminate [the
parent’s] rights to the child, then the adoption petition
may properly be granted. . . . .” (internal citation omitted)).
Finally, in addressing FL §5-323(d)(4), the child’s
emotional ties to the parent, the child’s adjustment to his
community, home, placement and school, the child’s feelings about severance of the parent-child relationship,
and the likely impact of terminating the parental relationship on the child’s well-being, the court noted that
Cayden “knows Mr. S. and knows that he’s his dad. I
think that’s the extent of this child’s emotional bond[.]”
The court observed and commented that in the video
“the grandmother was prompting the child on several
occasions to identify who the man in the picture was,
being the father. Child appeared to me to be, ah, yeah,
knew it was daddy, but equally as interested in showing
how he could count and whatever he had spilled on his
pants.” Mr. S. argues that the court erred in making a
determination about the parent-child bond based on this
video but, it was Mr. S. who introduced the video into
evidence and the court’s decision was not solely based
on the video. The court, weighed what was presented to
it and found that it did not establish a bond beyond
Cayden merely identifying Mr. S. Rather, the court found
that Cayden “has a significant bond with his foster mother” and his foster brother, and “a bond with his prior foster parents” and that he is well adjusted to his placement.
The court’s finding that Cayden had no “significant
bond with his . . . father” but had “a significant bond”
with his foster mother, Ms. C., was not clearly erroneous
based on the unobjected to testimony of the caseworkers. See In re Matthew S., 199 Md. App. 436, 462 (2011)
(citing Brown v. State, 373 Md. 234, 242 (2003) (“failure
to object [to the admission of evidence] results in the
non-preservation of the issue for appellate review”)).
But, even if the issue had been preserved for our
review, we perceive no abuse of discretion13 in permitting the testimony. Maryland Rule 5-702 states that
Expert testimony may be admitted, in the form
of an opinion or otherwise, if the court determines that the testimony will assist the trier of
fact to understand the evidence or to determine
a fact in issue. In making that determination, the
85
court shall determine (1) whether the witness is
qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular
subject, and (3) whether a sufficient factual
basis exists to support the expert testimony.
Here, Mr. S. argues that Ms. Williams was unqualified to
give her opinion about Cayden’s bond with Mr. S. and
Ms. C. In In re Samone H., 385 Md. 282, 313 (2005), the
Court of Appeals commented on “whether a social worker's testimony on ‘bonding’ should be considered as factual or as expert opinion.” The Court noted that this
Court
had
previously
held
in
In
re
Adoption/Guardianship Nos. 2152A, 2153A, 2154A,
100 Md. App. 262 (1994) that a
‘social worker was competent to testify as a lay
witness “about the behavior of the children that
she heard and saw first hand . . . which were factual matters compared to evaluative opinions,
but limited the social worker so that she would
not be ‘permitted by the trial court to express
any expert opinion about the adjustments of the
children to their foster homes.’
Samone H., 385 Md. at 314 (quoting Nos. 2152A, 2153A,
2154A, 100 Md. App. at 276). The In re Samone H. Court
pointed out that “[v]arious of our sister states have
determined social worker’s testimony about bonding to
be equivalent to expert testimony when it was evaluative
in nature.” Id.14 Samone H. considered a social worker’s
testimony about his or her observations regarding the
bond between the parent and child or the caregiver and
child in the context of whether the court could still order
an independent bonding evaluation and if an order denying such an evaluation was an appealable interlocutory
order. Id. at 315 (“Whether social workers testify about
their observations regarding the bond between the parent or caregiver and child as a fact witness, or give an
evaluation about the state of a bond between the parent
or caregiver and the child as an expert, the court in its
discretion may order an independent medical examination[.]” Ms. Williams was a licensed graduate social
worker who was qualified as an expert in social work
based on her education and experience. Accordingly,
admission of her impression of a bond between Cayden
and Mr. S. and between Cayden and Ms. C. that was
based on her personal observations of Cayden with each
of them was not, in our view, an abuse of discretion.
Moreover, we note that the court did not rely simply on
Ms. Williams’s failure to observe “anything that seemed
to suggest” to her “that Cayden is particularly bonded
with Mr. S.” In our view, that impression was, at most,
minimally evaluative and consistent with the court’s own
observations. In sum, even if improperly admitted as an
expert opinion (we do not think it was), it was, in light of
all the evidence regarding Cayden’s relationship with Mr.
S, harmless.
Although it was not required once unfitness was
established, the court did not err in finding that excep86
tional circumstances existed in this case. In In re
Adoption of K’Amora, No. 2213, Sept. Term 2013,___ Md.
App. ___ (filed August 1, 2014), slip op. 19, we explained
that the statute “does not define ‘exceptional circumstances,’ and no published decision of this Court or the
Court of Appeals has found exceptional circumstances
in a TPR case independently of unfitness.” And, in
Alonza D., 412 Md. 442, the Court of Appeals reversed a
termination order, holding that, standing alone, the
length of time a child was in placement could not justify
termination based on exceptional circumstances.
(“Passage of time, without explicit findings that the continued relationship with [the father] would prove detrimental to the best interests of the children, is not sufficient to constitute exceptional circumstances.” Id. at 463
(footnote omitted)).
When deciding whether exceptional circumstances
exist, a court is to consider a parent’s “behavior and
character.” See No. A91–71A, 334 Md. at 563 (examining
“exceptional circumstances” in the context of a father’s
challenge to the adoption of his child by a third party
and the attendant termination of his parental rights). The
Court of Appeals suggests in that case that exceptional
circumstances could exist when a parent’s behavior does
not rise to the level of unfitness, but nonetheless contributes to a broader picture that could justify termination.
Here, the court’s finding that exceptional circumstances existed was not based merely on the fact that
Cayden had “been in care 21 out of 23 months of his life.”
It was a factor considered along with Mr. S.’s unfitness
including the fact that he had at a minimum of eight
months left in drug court, and if he failed, was “looking
at a substantial sentence.” The court also considered
that Mr. S.’s “fail[ure] to take advantage of services”
offered by DSS and the overall uncertainty of when, if
ever, Mr. S. would be able to maintain a meaningful
parental relationship with Cayden.
Mr. S. correctly asserts that drug abuse alone is not a
reason to terminate parental rights, see William B., 73
Md. App. 73, and that incarceration is not a disability
that mandates termination, Nos. CAA 10852 and 10853,
103 Md. App. 10, but these are still factors to be considered if it “affects [a parent’s] ability to provide ordinary
care and attention . . . and [termination] is necessary for
[the child’s] welfare.” William B., 73 Md. App. at 73.
Based on the evidence presented, the court concluded
that it was in Cayden’s best interest to terminate Mr. S.’s
parental rights. In light of all the circumstances, we are
not persuaded that that decision constituted an abuse of
discretion.
JUDGMENT AFFIRMED;
Footnotes
1. Md. Code (1974, 2013 Repl. Vol.), §3-801(f) of the Courts &
Judicial Proceedings Article, defines a “Child in need of assisTheDailyRecord.com/Maryland-Family-Law
tance” as “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.”
Cayden was adjudicated a CINA on June 25, 2012.
2. Cayden’s mother, Makayla T. (“Ms. T.”), adopted the Brief
filed by Mr. S. but did not appeal the termination of her
parental rights.
Cayden, through counsel, adopted the position taken in
DSS’s brief, that is, that the termination of Mr. S.’s parental
rights should be affirmed.
3. Ms. T. testified at the hearing and indicated that she was not
in a position to currently care for Cayden because she was
incarcerated for robbery and would need to complete “substance abuse treatment, remain sober, [find] adequate housing,
and employment.” The court found her unfit and that exceptional circumstances existed that warranted her termination of
parental rights.
4. Ms. Trap has two children, who at the time of the hearing
were in foster care. Ms. Trap also had substance abuse issues,
but, according to Mr. S, she has been “clean” for five months.
5. Sabrina McNulty, Mr. S.’s proposed childcare provider also
testified. She met Mr. S. through a twelve step program, and
they have known each other for over six months. She has been
sober for “14 and a half months.” She was not a licensed childcare provider, but she was “looking into it” and could be available “24/7" for both day and evening to care for Cayden.
6. None of the family members identified by Ms. Knuty had
been investigated by DSS.
7. The family involvement meeting was held to discuss a placement change because Cayden had been in foster care for 9
months at that point. At the meeting, DSS approved the placement change but Ms. T. did not. Mr. S. was notified of the placement change after the meeting was held.
8. Ms. Strosnider did not explain what she meant by that statement.
9. Project 103 is a substance abuse treatment program.
10. Cayden was removed because Ms. T. had “protest[ed],” a
change in his placement.
11. The circuit court filed an order terminating both parents’
rights on February 12, 2014.
12. Appellant testified to a possible minimum of 15 months to
complete the Drug Court program. He points to the court’s ref-
erence that phase two, to which he has now risen, and its conclusion that it would take “another year” when it only required
a minimum of four months. In context, it may be that the court
conflated phase 2 and phase 3, which together was a minimum
of nine months. In any event, it is clear from its oral ruling that
the court was more concerned with the uncertainty of successful completion and that it was not merely the passage of time
to do so that concerned it.
13. “[T]he admissibility of expert testimony is within the sound
discretion of the trial judge and will not be disturbed on appeal
unless clearly erroneous.” In re Adoption of Tatianna B., 417
Md. 259, 263 (2010) (quoting Blackwell v. Wyeth, 408 Md. 575,
618 (2009)).
14. The Court in Samone H. cited the following examples from
sister states where social workers were permitted to give evaluative testimony regarding a child’s bond:
In re Luke M. et al., 107 Cal.App.4th 1412, 132
Cal.Rptr.2d 907, 917 (2003) (considering social
worker's testimony, “it would be detrimental for [the
children] to live with [the biological father] in Ohio
because they were bonded with [the foster parents],” to be evaluative in nature); In the Interest of
S.O. et al., 483 N.W.2d 602, 604 (Iowa 1992) (determining that social worker’s testimony was evaluative when she described the bond between the
mother and her two older daughters as unhealthy);
In re the Adoption of M.T.S., 489 N.W.2d 285, 287
(Minn.App.1992) (qualifying two social workers as
experts to testify about the child’s bond with the
natural parents); In the Matter of Amanda
Broadway, 191 Or.App. 78, 81 P.3d 99, 103 (2003)
(viewing social worker’s testimony that the “mother
and her children had a ‘strong attachment’ to each
other” as evaluative in nature); Roberts v. Roberts,
835 P.2d 193, 195 (Utah App.1992) (considering a
social worker’s testimony regarding the “strength of
[mother's] bond with the children” as evaluative in
nature); In re D.C., 163 Vt. 517, 659 A.2d 1145, 1148
(1995) (treating social worker’s testimony that “taking a special needs child from the family with which
the child had bonded would have negative therapeutic implications for the child” as appropriate expert
testimony).
385 Md. at 314.
87
CINA: modification of permanency plan: guardianship
with relative
In Re: Jazmine D. And
Jeremiah D.
Argued Before: Woodward, Nazarian, Salmon, James P.,
Although father had taken steps to connect with
and provide a stable home for his children, his mental health condition made it impossible for him to
act as a parent; and, as the 4-year-old and 6-year-old
children had been placed with their aunt for their
entire lives, the court did not abuse its discretion by
changing their permanency plan to placement with a
relative for custody and guardianship.
Julius D. (“Father”) appeals from the decision of
the Circuit Court for Baltimore City to change the
permanency plan for his two children (together, the
“Children”) from reunification concurrent with placement with a relative for custody and guardianship to
a plan aimed solely at placement with a relative for
custody and guardianship. We affirm.
I. Background
Jazmine D. (“Daughter”) was born on April 15,
2007, the d aughter of Father and Jamie C.
(“Mother”).1 Both parents struggle with mental health
challenges, including bi-polar disorder.2 Five months
after she was born, the circuit court placed Daughter
in shelter care after determining that her continued
residence in her home would be contrary to her welfare. The parents admitted that their mental health
issues inhibited their ability to provide continuous
care for Daughter, and they agreed to allow Daughter
to be placed with Mother’s aunt, Dale M. (“Aunt”). On
May 2, 2008, the court found Daughter to be a Child
in Need of Assistance (“CINA”) and granted limited
guardianship for medical, educational, and out-ofstate travel purposes to the Baltimore City
Department of Social Services (“DSS”) and Aunt.
Prior to this finding, Father was without stable
housing and agreed that Daughter should remain in
Aunt’s care, and he had supervised visits with
Daughter. On June 3, 2008, Father entered into a ser88
vice agreement with DSS and agreed to seek suitable
housing.
At a review hearing on July 22, 2008, the court
reordered the commitment established at the prior
hearing and established a permanency plan of reunification by July 22, 2009.
At another review hearing on February 2, 2009,
the court retained the same commitment and permanency plan, but pushed back the implementation date
to February 2, 2010. The court found that Father was
in compliance with his service agreement with DSS:
he visited Daughter monthly, attended his mental
health therapy, and completed an anger management
program. At the time of the review hearing, though,
Father still needed employment and stable housing.
Father’s second child with Mother, Jeremiah D.
(“Son”), was born on August 18, 2009. Son was placed
in shelter care with Aunt on August 21, 2009 due to
his parents’ mental health issues and their failure to
take their medication consistently. Six months later,
the circuit court found that Son was a CINA and
granted limited guardianship for medical, educational, and out-of-state travel purposes to DSS and Aunt.
The court also found that Father had frequently
engaged in supervised visits with Son, complied with
his therapy and medication obligations, and entered
into a new service agreement with DSS that (newly)
required him to enroll in and complete parenting
classes.
On the same day as Son’s CINA adjudication, the
circuit court also reviewed Daughter’s permanency
plan and Father’s compliance with his prior service
agreement. The court mentioned Father’s mental
health diagnoses and acknowledged his compliance
with the therapy and medication regimen. The court
found that Father had obtained employment, but
lived in transitional housing inappropriate for the
Children. The court also found that Father had been
making consistent weekly supervised visits with
Daughter since September 2009. Daughter’s permanency plan was changed to reunification concurrent
with placement with a relative for custody and
guardianship, and the court set a new implementation date of January 14, 2011.
On June 7, 2010, the court established a permanency plan for Son of reunification and set an implementation date of June 7, 2011. The court also noted
Father’s regular visits with Son and his compliance
with the January 2010 service agreement.
Father later moved into a two-bedroom apartment, and on November 4, 2010, a DSS Home Health
report indicated that Father’s home met basic health
and sanitation needs for the Children.3 On December
10, 2010, the circuit court ordered Father to undergo
a clinical evaluation to assess his ability and fitness
to parent the Children.4
The Court Medical Service performed a psychological evaluation of Father on May 18, 2011. The
evaluation consisted of an interview, a battery of psychological tests, and observation of Father by the
administering psychologist during the interview and
testing. 5 While noting that Father, with assistance
from a local nonprofit organization, was able to care
adequately for himself, the evaluation also found that
Father’s cognitive limitations inhibited his capacity to
provide adequate care to the Children. Based on
Father’s limited understanding of and ability to apply
parenting techniques, the evaluation recommended
against Father having care of the children without
considerable assistance or supervision.
Father sat for a second psychological evaluation
that spanned two days, March 31, 2012 and April 24,
2012. As in the first evaluation, Father was interviewed, observed during the interview, and subjected
to an array of psychological tests.6 The second evaluation also produced a written opinion concluding that
Father did not possess the capacity to adequately
take care of Children. This conclusion was based on
Father’s difficulty navigating life outside of his structured work environment, and an inability to care adequately for himself when coping in a broader context.
On March 21, 2013, the court held another review
hearing on the concurrent permanency plan. At this
hearing, DSS sought to change the permanency plan
from its concurrent aims to the sole object of placing
the Children with a relative (Aunt) for custody and
guardianship. Father opposed this petition and asked
the court to leave the reunification aspect of the permanency plan intact. Both Aunt and the DSS social
worker assigned to the Children testified on behalf of
DSS, whereas Father and an expert in the area of
forensic psychology7 testified on Father’s behalf.
After the March 21, 2013 permanency plan review
hearing, the court issued an order rejecting DSS’s proposal to eliminate reunification from the permanency
plan. The court acknowledged that the psychological
evaluations of Father revealed that “he is not able to
independently adequately care for his children.”
However, the court also found that Father had put
forth considerable effort toward his ability to live
independently and demonstrated potential for further
improvement in this ability:
The Court is not persuaded that the Father
will not continue to make significant
progress, if provided the appropriate support
and assistance. The Court is also mindful that
as Father progresses, the children will also
grow a little older and become less fragile.
As such, the court was not ready at that point to discount reunification as “a reasonable and viable plan
for the children.” The court also ordered DSS to “set
up a schedule of weekly supervised visits with the
Father” and evaluate the Children’s “paternal grandmother to determine if she [was] an appropriate
resource to supervise some of the visits” and ordered
Father to “adjust his work schedule to accommodate
[the] weekly visits.”
At the next permanency plan review hearing on
November 21, 2013, the court heard arguments from
both parties, testimony from the social worker
assigned to the case, and Aunt. The social worker testified that she had experienced difficulties in arranging for Father to have visits with the Children at the
agency office, and that her inability to connect with
Father led to a three-month gap in visits. There had
also been some dispute with Father about the site of
the visits, which DSS was unwilling to hold at his
house, and his request that DSS pay for a third party
to supervise visits there. Additionally, the social
worker testified that Father had not completed all of
the elements of his service agreement, which required
him to maintain weekly contact with the children,
complete a parenting class, attend the Children’s medical appointments, and visit with the Children. Aunt
testified that Father visited the Children once or
twice a month at her house, depending on his work
schedule. When asked about Father’s capacity to parent the Children, Aunt expressed concerns with
Father’s mental health and gaps in his attentiveness
during visits. She also mentioned problems with his
residence and the inconsistent nature of his visits
with the Children. Father chose not to testify at the
hearing, but he introduced into evidence a copy of the
certificate he received for completing the parenting
class requested by DSS.
After hearing arguments from the parties, the
court changed the permanency plan to placement
with a relative for custody and guardianship and eliminated the concurrent goal of reunification. 8 And in
the course of Father’s counsel’s closing argument, the
court expressed specific reservations about Father’s
ability to parent the Children independently that we
will recount in the Discussion that follows. The court
noted at the close of this hearing that it needed to
review and receive an updated guardianship and custody study before finalizing the custody award, but it
entered the following written order:
The Court having considered the evidence
presented by the parties, it is therefore
89
ordered by the Circuit Court for Baltimore
City, Juvenile Causes Division:
That the current general order of commitment of [the Children] be continued.
Limited guardianship of [the Children] for
medical, dental, educational, psychiatric/psychological and out-of-state travel purposes is granted to [DSS] and/or [Aunt].
The permanency plan for [the Children] until
this hearing has been reunification and placement with a relative for custody and guardianship.
Effective today the permanency plan is
changed to placement with a relative for custody and guardianship. The implementation of
the permanency plan shall be achieved by
11/21/14.
The Court made the following determinations:
Continuation of the commitment is necessary and appropriate.
[DSS] has complied with the permanency
plan.
The progress toward alleviating or mitigating the problems leading to commitment is adequate.
***
DSS to produce a custody and guardianship
study.
Father will have weekly visits supervised half
by DSS and half by [Aunt].
The court will address reasonable efforts finding at the next hearing.
At a follow-up hearing on December 18, 2013, the
court received the updated documents, heard further
argument from counsel, then made some additional
findings:
All right. Thank you. Based upon the information [received] by the Court today and also
noting father’s objection, the Court will today,
enter — the court will find, obviously, that it’s
in the children’s best interest, that custody
and guardianship be granted to [Aunt].
***
So, it’s going to be, what the Court’s going to do,
and it is what the Court thinks is appropriate in
this case. [¶] Is that, this will be a case of, under
the custody and guardianship statute. So, pursuant to 388.19.2,[9] the Court is ordering custody
and guardianship to [Aunt] — of the children to
[Aunt]. [¶] And then pursuant to subsection D,
the Court is ordering joint legal custody as to
both [Aunt] and the children’s father. Whereas,
[Aunt] will have the physical custody, obviously,
of the children.
The court also ordered liberal supervised visitation.
Father filed notices of appeal on December 3,
2013 and December 19, 2013.
90
II. Discussion
On appeal, Father argues that the circuit court
erred in changing the permanency plan.10 We review
the decision of the circuit court to change the permanency plan to custody and guardianship with Aunt for
an abuse of discretion. In re Ashley S., 431 Md. 678,
704 (2013). Our deference reflects the reality that
“[t]he [circuit] court ‘is in the unique position to marshal the applicable facts, assess the situation and
determine the correct means of fulfilling a child’s best
interests.’” In re Shirley B., 191 Md. App. 678, 718
(2010) (quoting In re Adoption/Guardianship Nos.
J9610436 and J9711031, 368 Md. 666, 696 (2002)).
That discretion is not absolute, however — the court
abuses its discretion “where no reasonable person
would take the view adopted by the [circuit] court, . .
. or when the court acts without reference to any
guiding rules or principles.” In re Caya B., 153 Md.
App.
63,
74
(2003)
(quoting
In
re
Adoption/Guardianship No. 3598, 347 Md. 295, 312
(1997)) (internal quotation marks omitted). And
although we understand Father’s frustration — we
can see he has worked hard to comply with the terms
of his service agreements and that he has made
progress — we find no abuse of discretion in this
case.
“‘The permanency plan is an integral part of the
statutory scheme designed to expedite the movement
of Maryland’s children from foster care to a permanent living, and hopefully, family arrangement.’” In re
Yve S., 373 Md. 551, 581 (2003) (quoting In re Damon
M., 362 Md. 429, 436 (2001)). Within eleven months of
identifying a child as a CINA, the court must hold a
hearing to evaluate a permanency plan recommended
by DSS and determine the plan that is in the best
interests of the child. See Md. Code (2006, 2013 Repl.
Vol.), § 3-823(a) to (e) of the Courts and Judicial
Proceedings Art. (“CP”); see also Md. Code (1984,
2012 Repl. Vol.), § 5-525(f) of the Family Law Art.
(“FL”). The statute directs the court to select a permanency plan that serves the best interests of the
child. CP § 3-823(e)(1)(i) identifies placement options
and delineates the order in which the court must consider them, with reunification with a parent receiving
the highest priority (listing here only the top two):
At a permanency planning hearing, the court
shall:
(i) Determine the child’s permanency plan,
which, to the extent consistent with the best
interests of the child, may be, in descending
order of priority:
1. Reunification with the parent or guardian;
2. Placement with a relative for:
A. Adoption; or
B. Custody and guardianship under § 3819.2 of this subtitle[.]
Id. In addition to the baseline priority for reunification, CP § 3-823(e)(2) directs the court to consider
the factors enumerated in FL § 5-525(f)(1) when
determining what permanency plan is in the child’s
best interests:
(i) the child’s ability to be safe and healthy in
the home of the child’s parent;
(ii) the child’s attachment and emotional ties to
the child’s natural parents and siblings;
(iii)the child’s emotional attachment to the
child’s current caregiver and the caregiver’s
family;
(iv) the length of time the child has resided with
the current caregiver;
(v) the potential emotional, developmental, and
educational harm to the child if moved from
the child’s current placement; and
(vi) the potential harm to the child by remaining
in State custody for an excessive period of
time.
FL § 5-525(f)(1). These factors allow the court to
focus on “the child’s present well-being and the likely
effect of a change of placement or remaining in foster
care.” In re Jayden G., 433 Md. 50, 75 (2013).
Once a permanency plan is ordered, the court
reviews the plan to ensure that it remains consistent
with the child’s best interests. These review hearings
take place every six months, CP § 3-823(h)(1)(i), or
upon the request of a party or a motion from the
court. CP § 3-823(c)(1). At a permanency plan review
hearing, the court must make findings that:
(i) Determine the continuing necessity for and
appropriateness of the commitment;
(ii) Determine and document in its order
whether reasonable efforts have been made
to finalize the permanency plan that is in
effect;
(iii)Determine the extent of progress that has
been made toward alleviating or mitigating
the causes necessitating commitment;
(iv) Project a reasonable date by which a child in
placement may be returned home, placed in a
preadoptive home, or placed under a legal
guardianship;
(v) Evaluate the safety of the child and take necessary measures to protect the child; and
(vi) Change the permanency plan if a change in
the permanency plan would be in the child’s
best interest.
CP § 3-823(h)(2); see also In re Jayden G., 433 Md. at
55. Review hearings allow the court to monitor the
implementation of a permanency plan and evaluate
“‘whether [the plan] still serves the best interest of
the child or needs to be changed to accomplish that
goal.’” In re Shirley B., 191 Md. App. at 707-08 (quoting In re Ashley E., 158 Md. App. 144, 161 (2004),
aff ’d, 387 Md. 260, 287 (2005)). There is no strict
deadline for implementation of a plan, but the statute
mandates that “[e]very reasonable effort shall be
made to effectuate a permanent placement for the
child within 24 months after the date of initial placement.” CP § 3-823(h)(3).
The permanency plan identifies the “[s]ervices to
be provided by the local social service department
and commitments that must be made by the parents
and children.” In re Damon M., 362 Md. at 436. By
deciding on a permanency plan, the court “‘sets the
tone for the parties and the court’ and ‘provides the
goal toward which [they] are committed to work.’” In
re Jayden G., 433 Md. at 55 (quoting In re Damon M.,
362 Md. at 436). Compliance with the plan by the parties involved is expected, and the plan “may not be
changed without the court first determining that it is
in the child’s best interest to do so.” In re Damon M.,
362 Md. at 436.
To be sure, the statutory framework presumes
that a plan of reunification with a parent is in the best
interests of the child, and all other options, including
placement with a relative for custody and guardianship are secondary. CP § 3-823(e)(1)(i); see also FL §
5-525(f)(2). This presumption towards reunification is
strong; “absent compelling circumstances to the contrary, the plan should be to work towards reunification.” In re Cadence B., 417 Md. 146, 157 (2010); see
also In re Yve S., 373 Md. at 582. A permanency plan
of reunification reflects, “on the part of the court and
. . . the parent, an expectation — more than a hope —
that the parent will regain custody.” In re Damon M.,
362 Md. at 436. However, “if there are weighty circumstances indicating that reunification with the parent
is not in the child’s best interest, the court should
modify the permanency plan to a more appropriate
arrangement.” In re Cadence B., 417 Md. at 157 (citing In re Adoption/Guardianship of Rashawn H.,
402 Md. 477, 496 (2007)).
We cannot say that the circuit court abused its
discretion by finding those weighty circumstances in
this case.
The record demonstrates that the
court struggled, and appropriately so, with the tension between, on the one hand, Father’s diligent
efforts to comply with his service plan and address
his challenges and, on the other, Father’s undeniable
limitations and the Children’s developmental delays.
The court recognized that Father had made strides,
but, in the course of the November 21, 2013 hearing,
recognized that real barriers to full reunification
remained:
THE COURT: Right. . . . I just don’t want you
to think that the court thinks that the visits
were not appropriate. I think the concern had
been — well, two fold. One, is just the level of
supervision that’s necessary for — I mean,
[Daughter’s] a little older now, but at least for
91
[Son]. You know, there’s just — you got to pay
attention to things. And especially in light of
[Son’s] condition. I mean, he’s a little bit
older, too. But apparently . . . he’s not functioning necessarily as a regular four year old.
I mean, he doesn’t even walk like a four year
old. He’s still toddling. You got to worry about
him bumping into stuff and things like that
that you might not normally have to worry
about a four year old, but much less that
[F]ather needs to be watching out for.
So I don’t think anyone said that [F]ather has
been inappropriate. I even heard testimony
that [F]ather has appropriately redirected the
children on occasions[.] [Aunt] said do this,
you have to listen. Taking a toy from your sister or brother, that’s not nice. You should, you
know. So I’ve heard it all.
***
THE COURT: [W]hat is happening is he’s having meaningful interaction with his children
on a regular basis, but he’s not parenting
them. And he has had no meaningful involvement with . . . the core . . . parenting things.
He’s not had any meaningful involvement with
the schools. He’s not had any meaningful
involvement with the doctors.
It sounds like [Son’s] situation is a little bit
complicated. . . . I mean, obviously we’ve seen
far more complex and complicated things in
this court, but at the same time, if you couple
that with . . . [Father] dealing with his own
developmental or cognitive issues, I think
that, you know. I will hear you, I guess, or
hear your argument on the lack of that sort of
meaningful involvement and/or your client’s . .
. inability to be able to articulate what those
things are and how he would handle them. I
mean, those are just . . . core things that the
court is worried about.
[COUNSEL FOR FATHER]: And —
THE COURT: Unless you’re asking then that
he just be able to have unsupervised visits.
Not so much that he be able to have custody.
The court’s conclusions followed a comprehensive process of evaluating Father’s fitness to parent
the Children, both clinically and practically, and the
court reviewed the results of these efforts carefully
over a long period of time. This is not a situation
where the court woodenly accepted DSS’s recommendations against reunification — to the contrary, the
court had required DSS six months earlier to try again
and try harder to afford Father a meaningful opportunity to be a full-time parent. But the Children had, at
the time of the orders before us, been in supervision
for more than six and four years, respectively — their
92
entire young lives —and we cannot fault the circuit
court for determining that they would achieve the
permanency they deserve via guardianship with their
Aunt rather than through reunification with their
Father.
FOR BALTIMORE CITY AFFIRMED.
Footnotes
1. Mother has not been involved in these proceedings for
some time, did not participate in the hearings at issue, and
is not a party to this appeal.
2. In addition to bi-polar disorder, Father has a history of
other mental health issues, including schizoaffective disorder and depression.
3. The parties agreed to consolidate Son’s and Daughter’s
cases on December 9, 2010.
4. During 2011, the permanency plan was reviewed twice by
the circuit court. On February 23, 2011, the court granted
custody and guardianship of the Children to Aunt, effectively eliminating the permanency plan and the reunification
objective under the plan. However, Father filed timely
exceptions to this decision that the court sustained, and the
court reverted to the concurrent permanency plan. In support of its decision, the court cited Father’s independent
lifestyle and his demonstrated capacity to learn and grow as
a parent (based on his interactions with the son of a woman
with whom he was living and in a relationship).
Additionally, the court recognized deficiencies in the
amount of support provided him by DSS and specified in its
order the particular efforts DSS would need to fulfill regarding the reunification objective of the permanency plan.
5. In the May 18, 2011 psychological evaluation, Father
underwent the following psychological tests: Sentence
Completion Task; Wechsler Adult Intelligence Scale-IV;
Wide Range Achievement Test-IV; Symptom Assessment-45;
Child Abuse Potential Inventory; Instrumental Activities of
Daily Living Scale; and Mini Mental State Exam.
6. In the second psychological evaluation, Father underwent the Beck Depression Inventory-II; Beck Anxiety
Inventory; MMPI-2; and MCMI-III.
7. This expert criticized aspects of the methodology and
results of the psychological evaluations performed on
Father.
8. Before reaching that conclusion, the court affirmatively
“ruled out” the Department’s argument that Father was a
risk to abuse the children sexually, allegations that had
been investigated extensively and that, in the court’s view,
had been refuted.
9. This appears to be a reference to a section of the Family
Law Article, but we cannot tell with precision from the transcription which section(s).
10. As phrased by Father, the Question Presented on appeal
is:
Did the trial court err by granting the great aunt
custody and guardianship when the father was able
to parent his children and was compliant with all
recommendations and orders?
CINA: modification of permanency plan: lack of adoptive resource
In Re: Jeffrey H.
Argued Before: Eyler, Deborah S., Graeff, Reed, JJ.
Opinion by Graeff, J.
In changing the permanency plan for a specialneeds child from reunification to adoption, the juvenile court was not required to wait for an adoptive
resource to be found; nor was the court required to
consider the effect of the new permanency plan on
father’s ability to seek an open adoption or postadoption contact.
This appeal arises from a Child in Need of
Assistance (“CINA”) proceeding in the Circuit Court
for Harford County. In July 2012, Jeffrey H. was
declared a CINA and placed in the custody of
appellee, the Harford County Department of Social
Services (the “Department”). On October 2, 2013, the
Master recommended that Jeffrey’s permanency plan
be changed from reunification with his biological parents to adoption. Jeffrey’s father, Nathaniel E. H.,
appellant, filed exceptions to the recommendations.
On March 25, 2014, the court denied Mr. H.’s exceptions and ordered that Jeffrey’s permanency plan be
changed to adoption.
On appeal, Mr. H. asserts two questions for our
review, 1 which we have consolidated and rephrased
as follows:
Did the juvenile court abuse its discretion in
changing Jeffrey’s permanency plan to adoption?
For the reasons set forth below, we shall affirm
the judgment of the circuit court.
Factual And Procedural Background
On July 23, 2012, the Department filed a petition
requesting that Jeffrey be declared a CINA and
placed in a foster home for a 30-day Shelter Care
period. At that time, four- year-old Jeffrey, who is
autistic, lived with his Mother, Michelle R., in a dilapidated 40- year-old trailer. Mr. H., a registered sex
offender, was incarcerated for violating his probation
for a fourth degree sexual assault conviction.
The Department had provided services to Ms. R.
since December 2011, after it investigated allegations
that she was unable to care for Jeffrey due to probTheDailyRecord.com/Maryland-Family-Law
lems with mental illness and substance abuse. Ms. R.
received treatment for both issues, but she made little progress over the next seven months. Ms. R. tested positive for marijuana and cocaine several times,
and she admitted to cooking cocaine and prostituting
herself in her grandmother’s trailer while Jeffrey and
her grandmother were in the next room. In addition,
Ms. R. was involved in several domestic altercations
with her boyfriend.
On July 18, 2012, Ms. R. arrived at a group therapy session extremely intoxicated. On July 20, 2012,
the Department removed Jeffrey from Ms. R.’s home,
and after the court granted the Department’s petition
for shelter care, Jeffrey was placed in foster care.
On August 22, 2012, the juvenile court held a
hearing to determine whether Jeffrey should remain
in foster care. The court determined that Jeffrey
should continue in his current placement, and it
established a permanency plan of reunification with
his parents.2
Ms. R. contacted Jeffrey’s case worker for the
first time on September 17, 2012. She began weekly
visits with Jeffrey beginning on September 20, 2012,
under the condition that she submit to a breathalyzer
test prior to the visit to demonstrate that she was not
intoxicated. She also successfully completed a parenting skills course in October, 2012. Ms. R. continued her weekly visits without incident through
November 9, 2012, after which time she relapsed and
began drinking again. Ms. R. was not in contact with
Jeffrey’s case worker again until December 3, 2012,
and over the next 13 months, her contact with both
Jeffrey and the Department was sporadic.
Mr. H. was released from incarceration in early
October 2012. He began visiting with Jeffrey on
October 12, 2012, but he did not consistently appear
for his scheduled visitations. Mr. H. was not engaged
with Jeffrey at his visits, and, for the most part, he
would “sit and observe Jeffrey without minimal interaction.” He also tested positive for cocaine immediately following one session with Jeffrey. Mr. H.’s
inconsistent visits ended when he was arrested on
March 25, 2013, for driving without a license.
Because this arrest constituted a violation of his probation, he was sent back to jail. He is scheduled to be
released on September 25, 2015.
93
On February 13, 2013, the juvenile court held a
periodic hearing regarding Jeffrey’s CINA status. Both
Ms. R. and Mr. H. attended the hearing. The
Department recommended, and the court agreed, that
Jeffrey’s permanency plan should remain reunification.
A second periodic hearing was scheduled for June
26, 2013. The parties agreed to postpone the hearing
because Mr. H. was not transported to the courthouse
by the Harford County Detention Center.
The rescheduled hearing was held on October 2,
2013, with all parties present. At this hearing, the
Department recommended that Jeffrey’s permanency
plan be changed to adoption by a non-relative. The
Department contended that, due to the many disruptive issues in Ms. R’s life, Mr. H.’s incarceration, both
parents’ sporadic contact with Jeffrey, and Jeffrey’s
particular need for routine and stability, adoption was
now a preferable option. Jeffrey had adjusted to his
placement “remarkably well,” and he had “formed
affectionate bonds” with his foster family. Jeffrey’s
foster family, however, did not believe they could be
an adoptive resource for Jeffrey due to his autism and
their worry that they would not be able to meet his
future needs. The Department stated that it had made
several attempts to place Jeffrey with a potentially
permanent adoptive resource, but it had been unable
to locate one.
Counsel for Mr. H. argued that Jeffrey’s permanency plan should be left as reunification until an
adoptive resource was found for Jeffrey. Counsel
noted that it might be difficult to locate such a
resource for Jeffrey because of his autism, and she
contended that nothing in the case had changed that
would warrant a modification of the permanency
plan.
The Master agreed with the Department, stating
that he was “persuaded that adoption is the most
appropriate and best hope for this child to have a permanent living situation.” The Master also stated that
changing Jeffrey’s plan would smooth the future path
for Jeffrey’s adoption, as the formalities of terminating Mr. H.’s parental rights could be dealt with prior
to finding an adoptive resource f or Jeffrey.
Consequently, the Master recommended that Jeffrey’s
permanency plan be changed to adoption and that the
Department move forward with a termination of
parental rights (“TPR”) proceeding against Mr. H.
Both Ms. R. and Mr. H. filed exceptions to this
determination. Mr. H. contended that the court’s recommendation essentially made Jeffrey a “legal
orphan” because it separated him from any family
until an adoptive resource was found. Mr. H. also
argued that, should his parental rights be terminated
before an adoptive resource was found for Jeffrey, he
would be denied the opportunity to participate in
“meaningful Mediation regarding after adoption contact.” Ms. R. joined in Mr. H.’s contentions.
94
On January 7, 2014, the juvenile court attempted
to hold a hearing on the exceptions, but Ms. R. failed
to appear. Counsel for Ms. R. informed the court that
she had not been in contact with Ms. R. for “some
time.” The court continued the exceptions hearing.
On January 23, 2014, after the court issued a body
attachment for Ms. R., she appeared before the court.
At that time, she consented to the termination of her
parental rights and withdrew her exceptions.
On March 25, 2014, the juvenile court held a hearing on Mr. H’s exceptions. Counsel for Mr. H. argued
that Mr. H. “would like for [Jeffrey] to have some contact with his family,” and a permanency plan of adoption would prevent that. Counsel contended that not
having a legal parent was not in Jeffrey’s best interest, and she stressed that Mr. H. wanted to have an
opportunity to mediate with any adoptive resource
found for Jeffrey. Counsel admitted, however, that
there was no statutory requirement that an adoptive
resource be in place prior to changing the permanency plan to adoption. Counsel requested that the court
keep Jeffrey’s permanency plan as reunification or
change it to another planned permanent living
arrangement (“APPLA”).
The court overruled the exceptions, stating that,
under the “unique circumstances of this case,” a permanency plan of adoption was in Jeffrey’s best interest. It emphasized that there was no statutory requirement that an adoptive resource be in place prior to
changing a permanency plan. The court also explicitly
rejected Mr. H.’s contention that giving Jeffrey the
status of a “legal orphan” was not in Jeffrey’s best
interest. Following this ruling, an order was entered
changing Jeffrey’s permanency plan to adoption.
Standard Of Review
On review of a circuit court’s decision regarding a
change of a permanency plan, this Court employs
three related standards:
First, we review factual findings under the
clearly erroneous standard. Second, we
review purely legal questions de novo, requiring further proceedings except in cases of
harmless error. Finally, we review “the ultimate conclusion of the [juvenile court] founded upon sound legal principles and based
upon factual findings that are not clearly erroneous” for a “clear abuse of discretion.”
In re Joy D., 216 Md. App. 58, 74 (2014) (quoting In
re Adoption/Guardianship of Cadence B., 417 Md.
146, 155 (2010)) (internal citations omitted).
Discussion
Mr. H. contends that the juvenile court erred in
changing Jeffrey’s permanency plan to adoption for
two reasons.3 First, he argues that changing the permanency plan to adoption was not in Jeffrey’s best
interest because the Department has been unable to
find an adoptive resource due to Jeffrey’s special
needs. Second, he contends that the court erred in
changing Jeffrey’s permanency plan to adoption
before an adoptive resource was found because this
“effectively denied [him] the opportunity to participate in a meaningful mediation regarding [an] ‘open
adoption’/‘after adoption contact agreement.’” We will
address each of these arguments, in turn.
I.
Mr. H. argues that it was “premature to change the
permanency plan to [a]doption” when no adoptive
resource had been located. He asserts that it is not in
Jeffrey’s best interest to be made a “legal orphan, and
lose what family he has, before another family is
located to adopt him,” and that, by making him a legal
orphan, Jeffrey will be set “on a course to drift alone
later on in his life (after he ages out of foster care),
unattached from a biological or adoptive family.”
The Department contends that the juvenile court
“acted within its broad discretion in changing
Jeffrey’s permanency plan to adoption because it provided him with his greatest opportunity for achieving
permanence.” Arguing that reunification with Mr. H.
was not an option, given that “Mr. H. is incarcerated,
is a registered sex offender, has not demonstrated a
bond with Jeffrey, and has a history of drug abuse,” it
contends that changing Jeffrey’s permanency plan to
adoption increases the possibility that he will be
adopted because it imposes more responsibility on,
and more opportunities for, the Department to place
Jeffrey with an adoptive family, including the use of a
nationwi de search tool, AdoptUsKids. The
Department asserts that changing the permanency
plan did not mandate that Jeffrey be made a “legal
orphan,” but rather, it sought to give Jeffrey his best
chance to find a permanent home.
Counsel for Jeffrey argues that the juvenile court
properly exercised its discretion in determining that
it was in Jeffrey’s best interest to change his permanency plan to adoption. Noting that Jeffrey’s mother
had consented to the termination of her parental
rights, that his father was incarcerated, and that neither parent had visited him with any regularity, counsel argues that Jeffrey “cannot wait indefinitely for
his parents to be able to properly parent him while
they meanderingly navigate their own chaotic lives.”
The Court of Appeals discussed the law governing
permanency plans in some depth in Shirley B., 419
Md. 1 (2011). The permanency plan is part of a statutory framework for helping children at risk:
In CINA cases where a child had been
removed from the family home, a juvenile
court is required to periodically conduct “a
permanency planning hearing to determine
the permanency plan for a child[.]” Md. Code
(1974, 2006 Repl. Vol., 2009 Supp.), § 3-823(b)
of the Courts and Judicial Proceedings
(“CJP”) Article. Thereafter, the court must
review the child’s permanency plan “at least
every 6 months until commitment is rescinded
. . . .” CJP § 3-823(h)(1)(iii). As we stated in
[In re] Yve S.,
The permanency plan is an integral
part of the statutory scheme designed
to expedite the movement of
Maryland’s children from foster care
to a permanent living, and hopefully,
family arrangement. . . . Services to be
provided by the local social service
department and commitments that
must be made by the parents and children are determined by the permanency plan.
373 Md. [551,] 581 [(2003)] (quoting In re
Damon M., 362 Md. 429, 430-31 n.1 (2001)). It
is the court’s “responsibility [to] determin[e]
the permanency plan . . . and [to] justify [ ] the
placement of children in out of home placements for a specified period or on a long-term
or permanent basis. . . .” Id. at 577.
Shirley B., 419 Md. at 19.
In a permanency plan proceeding, the “best interests of the child” are the primary consideration. Id. at
21. The court must consider the following factors in
determining what is in the best interests of the child:
(i) the child’s ability to be safe and
healthy in the home of the child’s parent;
(ii) the child’s attachment and emotional
ties to the child’s natural parents and siblings;
(iii) the child’s emotional attachment to
the child’s current caregiver and the caregiver’s family;
(iv) the length of time the child has
resided with the current caregiver;
(v) the potential emotional, developmental, and educational harm to the child if
moved from the child’s current placement;
and
(vi) the potential harm to the child by
remaining in State custody for an excessive
period of time.
Md. Code (2012 Repl. Vol.) § 5-525(f)(1) of the Family
Law Article (“FL”).
The court may establish the following types of
permanency plans, in descending order of priority:
1. Reunification with the parent or guardian;
2. Placement with a relative for:
A. Adoption; or
B. Custody and guardianship under §
3-819.2 of this subtitle;
3. Adoption by a nonrelative;
4. Custody and guardianship by a nonrelative
under § 3-819.2 of this subtitle; or
5. Another planned permanent living arrangeMaryland Family Law Update: November 2014
95
ment that:
A. Addresses the individualized needs
of the child, including the child’s educational plan, emotional stability,
physical placement, and socialization
needs; and
B. Includes goals that promote the
continuity of relations with individuals who will fill a lasting and significant role in the child’s life
CJP § 3-823(e)(1)(i).
The court is required to review the child’s permanency plan periodically until commitment is rescinded. CJP § 3-823(h)(1)(iii). At each hearing, the court
shall:
(i) Determine the continuing necessity for
and appropriateness of the commitment;
(ii) Determine and document in its order
whether reasonable efforts have been made to
finalize the permanency plan that is in effect;
(iii) Determine the extent of progress that
has been made toward alleviating or mitigating the causes necessitating commitment;
(iv) Project a reasonable date by which a
child in placement may be returned home,
placed in a preadoptive home, or placed
under a legal guardianship;
(v) Evaluate the safety of the child and
take necessary measures to protect the child;
and
(vi) Change the permanency plan if a
change in the permanency plan would be in
the child’s best interest.
CJP § 3-823(h)(2).
Although reunification with the parent or parents
is presumed to be the optimal result for children, that
presumption can be rebutted “if there are weighty circumstances indicating that reunification with the parent is not in the child’s best interest.” In re Adoption/
Guardianship of Cadence B., 417 Md. 146, 157
(2010). “In other words, the child’s best interest
remains the ‘transcendent standard in adoption, thirdparty custody cases, and TPR proceedings.’” Id.
(quoting In re Adoption/Guardianship of Ta’Niya C.,
417 Md. 90, 112 (2010)).
Mr. H. does not dispute that the juvenile court
considered each of the articulated factors under FL §
5-525(f)(1). Nor does he challenge any of the court’s
factual findings. Rather, he asserts that the court’s
ultimate conclusion caused Jeffrey to “lose [his] family,” and it is not in Jeffrey’s best interest to linger in
foster care without any legal parents.
The Department does not dispute that it is not in
Jeffrey’s best interest to linger in foster care. It
argues, however, that changing Jeffrey’s permanency
plan to adoption will increase Jeffrey’s chance to
move out of foster care and obtain stability in his life.
96
As both the Department and counsel for Jeffrey
note, the Department has a duty to make all reasonable efforts to finalize a permanency plan. FL § 5525(e)(4). Thus, prior to March 25, 2014, when the
permanency plan was reunification, the Department
made numerous (and largely unsuccessful) attempts
to assist Jeffrey’s parents to provide a suitable home
for Jeffrey. Although the Department notes that it
made “several referrals to various treatment foster
care agencies in an attempt to locate a pre-adoptive
home for Jeffrey” after Ms. R. indicated that she
believed adoption may be Jeffrey’s best option, the
Department’s primary focus with a permanency plan
of reunification was trying to assist Jeffrey’s parents
to reunify with Jeffrey.
Now that the permanency plan has been changed
to adoption, the Department must employ its
resources to find a permanent adoptive home for
Jeffrey. As an example of the resources it utilizes, the
Department refers us to Code of Maryland
Regulations 07.02.12.03(F)(3), which provides that,
“[w]hen difficulty in locating an appropriate adoptive
family for a child is anticipated, the child shall be listed with . . . AdoptUsKids, and other adoption
exchanges.” AdoptUsKids is a national database
administered by the United States Children’s Bureau,
which seeks to “raise public awareness about the
need for foster and adoptive families; and to support
States, Territories, and Tribes in their efforts to find
families for children in foster care . . . and to assist
with placements across county and state boundaries.”
About U S , A DOPTUSKIDS , http://www.adoptuskids.org/
about-us (last visited Oct. 1, 2014). Because Jeffrey
does not have an adoptive resource in place, he will
be listed with AdoptUsKids and thereby receive
nationwide exposure to potential adoptive families.
As counsel for the Department noted at oral argument, Jeffrey should be given the opportunity to be
on a path leading to permanence in his life. The circuit court did not abuse its discretion in concluding
that a permanency plan of adoption was in Jeffrey’s
best interest.
II.
Mr. H. next argues that the juvenile court committed error in changing Jeffrey’s permanency plan to
adoption before an adoptive resource was found
because this “effectively denied [him] the opportunity
to participate in a meaningful mediation regarding
[an] ‘open adoption’/‘after adoption contact agreement.’” He contends that, although the Department
has indicated that it will undertake mediation with
him to negotiate an open adoption or after-adoption
contact agreement, any such agreement would not be
binding on Jeffrey’s future adoptive parents because
they will not have been parties to the contract.
The Department responds in several ways. First,
it notes that the primary concern with regard to a perTheDailyRecord.com/Maryland-Family-Law
manency plan is the best interest of the child, not fairness to a parent. Thus, it asserts, the court was not
required to consider whether Mr. H. would have the
opportunity to engage in mediation as part of its permanency plan determination. Second, it notes that Mr.
H.’s parental rights have not yet been terminated, and
it argues that he may still have the opportunity to participate in a mediation prior to the termination of his
parental rights trial.
Mr. H. cites no authority to support a holding that
a juvenile court is required to consider a parent’s
access to mediation as part of its permanency plan
determination. Indeed, in setting a permanency plan,
the primary concern is the best interests of the child.
In re Ashley S., 431 Md. 678, 712 (2013). When considering a permanency plan for a child, “the task of
the juvenile court is not to remedy unfairness to the
[parent], but to weigh any unfairness in light of the
best interests of [the] children.” Id.
Here, as we have discussed, the court did not
abuse its discretion in concluding that it was in
Jeffrey’s best interest to change his permanency plan
to adoption. The court was not required to consider
the impact this would have on Mr. H.’s opportunity to
participate in future mediation regarding a post-adoption agreement with adoptive parents prior to the termination of his parental rights. Mr. H. states no
grounds for relief in this regard.
JUDGMENT OF THE CIRCUIT
COURT FOR HARFORD COUNTY
AFFIRMED. COSTS TO BE PAID
BY APPELLANT.
Footnotes
1. Mr. H. set forth his questions presented as follows:
1.
Did the Trial Court err in finding it to
be in the best interest of Jeffrey H. to
change his Permanency Plan to
Adoption given that the Local
Department has continuously tried,
and failed, to locate an adoptive
resource because of the special needs
of this particular Respondent?
2. By changing the Permanency Plan for
Jeffrey H. to Adoption, without having
identified an Adoptive Resource, did
the Trial Court effectively deny
Appellant Nathaniel E. H. the opportunity to participate in meaningful
Mediation regarding “open adoption”/“after adoption contact agreement” in this case?
2. Pursuant to Md. Code (2012 Repl. Vol.) § 5-525(c)(2) of
the Family Law Article, if an out-of-home placement (such
as foster care) is created for a child, the Department must
establish a permanency plan for the child that is in the
child’s best interests. As the Cour t of Appeals has
explained:
[T]he permanency plan is an integral part of the
statutory scheme designed to expedite the movement of Maryland’s children from foster care to
permanent living, and hopefully, family arrangement. It provides the goal toward which the parties
and the court are committed to work. It sets the
tone for the parties and the court and, indeed, may
be outcome determinative. Services to be provided
by the local social service department and commitments that must be made by the parents and children are determined by the permanency plan.
In re Adoption/Guardianship of Cross H., 431 Md. 371, 379
(2013) (quoting In re Damon M., 362 Md. 429, 436 (2001)).
3. “A change in a permanency plan to eliminate reunification with a parent is appealable as an interlocutory order.”
In re Ashley S., 431 Md. 678, 702 n.15 (2013).
97
Custody: modification: psychological reevaluation
Rebecca Hunter Thomas
v.
Carl F. Thomas
Argued Before: Eyler, Deborah S., Woodward, Wright, JJ.
Opinion by Wright, J.
Where mother was denied custody based on an
evaluation of Factitious Disorder by Proxy and later
sought to modify the custody order by showing she
did not suffer from that disorder, the evidence supported the court’s determination that she had not
shown a change in circumstances warranting modification of custody; the court’s willingness to modify
visitation, based on a psychological reevaluation,
was neither proof of changed circumstances nor a
denial of due process.
of legal custody?
3. Did the court improperly delegate its authority to the Best Interest Attorney by allowing
her to have continued, unfettered discretion
over additional visitation?
4. Was it a violation of [Mother’s] fundamental
due process rights to deny [Mother] access
to her children’s educational and medical
records, as well as records critical to her
request to demonstrate a material change in
circumstances and modify the custody and
visitation orders?
5. Did the court err when it ordered [Mother],
sua sponte, to submit to a psychological
evaluation?
We answer “no” to all five questions and affirm the
judgment of the circuit court.
Facts
Appellant, Rebecca Hunter-Thomas (“Mother”),
appeals from several orders of the Circuit Court for
Frederick County that, collectively, denied her
amended counter-petition for custody and visitation,
for contempt, and for further relief, through which
she requested joint legal and physical custody and
unsupervised visitations. In pertinent part, the circuit
court dismissed Mother’s request to change legal custody by order filed on April 25, 2013, pursuant to a
motion to dismiss filed by appellee, Carl F. Thomas
(“Father”). On September 6, 2013, the court denied
Mother’s motion to change physical custody finding
that she “ha[d] not proven a change in circumstance.”
Mother appealed from that order on October 2, 2013.1
Following a review hearing on October 9, 2013,
the circuit court, on October 21, 2013, ordered
Mother to submit to a psychological evaluation.
Mother appealed from that order on October 31,
2014. Thereafter, this Court consolidated both
appeals into the present case.
Questions Presented
Mother asks the following questions, which we
have modified slightly:2
1. Was it reversible error to deny modification
of physical custody?
2. Was it reversible error to deny modification
98
The parties had three children during their marriage: twin daughters, Rachel and Savannah (born
12/22/2002), and a son, Haven (born 12/16/2004). On
June 27, 2007, Father filed a complaint for limited
divorce which was amended into a complaint for
absolute divorce on December 20, 2007. On January
25, 2008, the circuit court appointed Julia MartzFisher as the Best Interest Attorney (“BIA”) for the
children. On August 28, 2008, the court granted the
BIA’s “consent motion for [Father] and [Mother] to
have psychological test and family evaluation.” After
the custody evaluation was filed with the court on
April 13, 2009, the court awarded sole legal and physical custody of the children to Father on April 16,
2009.
On June 15, 2009, the court entered a judgment of
absolute divorce and order for custody granting
Father an absolute divorce from Mother and granting
Father sole legal and physical custody of the children
with Mother having unsupervised visitation rights.
Following another custody evaluation filed on April
15, 2011, the court held a hearing on April 27, 2011, at
which time the parties placed an agreement3 on the
record modifying the June 2009 order, in pertinent
part, as follows:
Sole legal and physical custody of minor chilTheDailyRecord.com/Maryland-Family-Law
dren to [Father]. Visitation between [Mother]
and children to be supervised at the visitation
center . . . every Sunday beginning 5/8/11 1-3
pm to be supervised by staff. No other contact
between [Mother] and children is allowed.
A consent order reflecting the parties’ agreement was
entered on May 13, 2011.
After the custody and visitation order was modified, Mother sought a psychiatric evaluation from Dr.
Joanna Brandt. Dr. Brandt interviewed Mother for
three hours and forty-five minutes on May 9, 2011,
and for one hour on July 7, 2011. In addition, Dr.
Brandt reviewed several other court documents, medical records, and the children’s educational records as
well as conducted interviews of individuals who previously had contact with Mother.
In a letter dated July 12, 2011, Dr. Brandt submitted her evaluation to Mother through counsel. Dr.
Brandt concluded that Mother “has an atypical presentation of Factitious Disorder by Proxy,” also
known as Munchausen Syndrome by Proxy, which she
described, in pertinent part, as follows:
The essential feature is the deliberate production or feigning of physical or psychological signs or symptoms in another person who
is under the individual’s care. Typically the
victim is a young child and the perpetrator is
the child’s mother. The motivation for the perpetrator’s behavior is presumed to be a psychological need to assume the sick role by
proxy.
As a result, Dr. Brandt recommended:
— The next intervention should be treatment
for [Mother] with a goal of improving her
insight into her illness, behavior, and its
impact on her children, so that she can have a
safe role in their lives.
— [Mother’s] current treatment has been hampered by the fact that her therapist has no
objective information about what has been
occurring. [Mother] is unable to provide that
information because of her lack of insight.
— Further treatment should be intensive psychotherapy with a provider skilled in dealing
with patients who have severe symptoms such
as those exhibited by [Mother]. Arrangements
should be made for the therapist to have
access to the historical information listed
above as well as ongoing information from
another objective source. . . .
— With progress in therapy and improvement
in insight, [Mother] should be considered for
an increased role with her children.
In closing, Dr. Brandt noted that “[t]he opinions stated in this report are held to a reasonable degree of
medical certainty and are based on the information
available at the time of the evaluation.” Dr. Brandt
also added that “[i]f further information becomes
available, [she] may revise [her] opinions.”
On August 8, 2011, the parties “reached a pendente lite agreement as to visitation”4 which:
ORDERED, that a Status Hearing is scheduled
for January 10, 2012 at 8:30 a.m.; and it is further
ORDERED, that [Mother’s] visitation with the
minor children shall be limited to two (2)
hours on Sundays or Thursdays (if Sundays
are a conflict) at the Supervised Visitation
Center or on Saturdays if the private supervisor requests it and [Father] approves; and it is
further
ORDERED, that private supervised visits may
be up to four (4) hours provided there is a
scheduled approved event; and it is further
ORDERED, that visitation exceeding two (2)
hours must be approved by the Best Interest
Attorney and she will be notified by counsel
for [Mother] and Diana Schofield or any other
supervisor of said activity . . . .
Following a status conference in January, 2012,
the court scheduled a review hearing for June 5, 2012,
which it later removed from the docket. Instead, the
court set the matter for a merits hearing to begin on
September 5, 2012. Pursuant to a motion to postpone
filed by the BIA, however, the court delayed the merits trial but held a child support hearing on the scheduled September 5th date.
On September 10, 2012, Mother filed an amended
counter-petition for shared custody and visitation, for
contempt, and for further relief. 5 The matter finally
proceeded to a merits hearing beginning on April 16,
2013. Mother presented, among others, the testimony
of Dr. Aaron Heaton, Dr. Eric Mart, and Dr. James
Childerston.
Dr. Heaton, a psychologist who was received as
an expert in child development, 6 testified that based
upon his evaluation of Mother, he had no “concern in
terms of a serious psychiatric condition.” Dr. Heaton
stated, however, that he did not have an opportunity
to observe Mother interact with the minor children
and, therefore, his assessment was based on his
observation of Mother alone. On cross-examination
by the BIA, Dr. Heaton made “very, very clear” that
the records he reviewed with regard to the diagnosis
of factitious disorder by proxy were “only the information” that was “self-provid[ed]” by Mother.
Dr. Mart, another psychologist, was heard without
objection as an expert in the areas of forensic psychology, child and adult psychology, and factitious
disorder by proxy. Before presenting his opinion
regarding Mother, Dr. Mart made clear that he had not
met Mother or any of her treating psychologists and,
therefore, Dr. Mart’s comments were “limited to the
documentation” he reviewed. Dr. Mart testified that
he “had trouble figuring out what . . . about [Mother]
constituted factitious disorder by proxy” because Dr.
Brandt did not include a “bill of particulars” in her
99
report.
Dr. Childerston, Mother’s treating psychologist,
was heard as an expert in the areas of psychology,
psychotherapy, and assessment. Dr. Childerston testified that he began psychotherapy treatments with
Mother on July 27, 2011, and saw her “essentially
once a week” for a total of 73 visits. When asked
about Dr. Brandt’s diagnosis of Mother, Dr.
Childerston stated that he “disagree[d] with any
aspect . . . of a characterization that there is factitious
disorder by proxy.” When asked if Mother “derives
unconscious gratification from being the only caregiver able to identify the special needs of her children
and to provide them with specialized support,” Dr.
Childerston opined that it “may have been true at the
time [of Dr. Brandt’s evaluation].” According to Dr.
Childerston, Mother has “improved significantly.” He
further testified:
I believe her identity has expanded well
beyond that of being the sole provider of the
care for her children. . . . I believe that she’s
in a much better position to . . . be able to
view the, the natural development of her children in a positive and healthy manner without
any tendency to distort it.
***
I believe that she has demonstrated, you
know, enough improvement psychotherapeutically that she is, certainly should be considered for a much larger and expanded role
with her children.
(Emphasis added).
On April 24, 2013, at the close of Mother’s case,
Father moved to dismiss Mother’s petition for contempt and her requests to change legal and physical
custody.7 The circuit court granted Father’s motion to
dismiss as to contempt and legal custody but denied
the motion as to physical custody. The court
explained:
I find no evidence whatsoever which would
justify even in the best interest, taken in the
best interest of [Mother] to change legal custody . . . noting as [the BIA] pointed out that
there is no evidence of alienation of the children.[8] In fact quite to the contrary. They seem
to be bonded with their mom which is the evidence presented on the videos. I am not, I’m
going to reserve on the motion as to physical
custody because it’s so intertwined with
access . . .
The hearing continued on May 1, 2013; June 25,
2013; June 26, 2013; and August 14, 2013. On August
21, 2013, the circuit court announced its ruling, the
pertinent parts of which are included here:
The short answer is that there were absolutely no material change of circumstances
proven. The only conceivable change is
whether [Mother] suffers from or has the
100
diagnosis of atypical factitious disorder by
proxy,
sometimes
called
atypical
Munchauser’s [sic] by proxy, whether or not
that was an accurate diagnosis. And that’s not
really a change because she was diagnosed
and in any event we have proceeded as if she
had it. But as a fact finder I do not accept Dr.
Childerston’s conclusions nor Dr. Heaton’s
conclusion that the diagnosis is incorrect, and
really and the status of this case the burden
was on [Mother] to show that. I do accept Dr.
Brandt’s report and testimony through her
deposition and despite being repeatedly
pressed she did not waiver [sic] from that
very diagnosis and therefore I find no material
change in circumstances which would warrant a change in physical custody. . . .
That does not address the visitation issue.
Because the one thing that everybody was
clear of, clear with, and the only thing that
they probably all agree on is that the current
arrangement is not working. I do find that
therefore the visitation needs to be addressed.
I find it’s not in the best interest of the children to continue with the two hours per week
at the visitation center, and that’s through no
fault of the visitation center. They are incapable of providing the necessary therapeutic
visitation. It’s been over two years since we’ve
addressed really the visitation and [Mother]
needs to progress. I note the report of Ms.
Mallory that . . . now the part I’m referring to
is that we need to have an expansion. She, she
uses an additional one to two times per month
using therapeutic supervised visitations and
she gave various recommendations. I note Dr.
Brandt’s addendum or letter to [Mother’s
counsel] under date of June 3rd, 2012. “With
progress in therapy and improvement in
insight [Mother] should be considered for an
increased role with her children.” The therapy
that she’s in with Dr. Childerston does not
specifically address atypical Munchauser’s
[sic] by proxy or factitious disorder by proxy.
And that’s because he has found that she does
not suffer or he does not make that diagnosis.
However I do find that it has, his therapy has
been of assistance to [Mother]. The problem
is, you know, we’re, we are doing therapy,
we’ve made progress, we see the children
with . . . their mom, through those videos.
What do we do now? Nobody as [the BIA]
pointed out has told me or given any suggestion to the future other than the fact that the
visitation center is not where they should be.
I think that we need to progress on the area of
expanding her visitation and I want a concrete idea from each party and the children by
next week, and if you’re all available I want to
do it next Wednesday the 28th at 10:00
because I want to do it sooner rather than
later. . . .
On August 28, 2013, the circuit court held a hearing on the parties’ plans for visitation, after which it
ruled:
I’ve already accepted Dr. Brandt’s report. You
[Mother’s counsel] don’t have to agree with it.
You don’t agree with it. But it’s my recollection in regarding reports that Dr. Brandt has
not seen [Mother] for over two years. I believe
that the report of July of 2012 was in response
to Dr. Childerston and that she did not see
[Mother] since the summer . . . 2011.
Spring/summer 2011. [Mother] is gonna object
and that’s fine. I want her to see . . . Dr.
Brandt, ASAP, but within the next 30 days for
reevaluation. I want Dr. Brandt to have seen
her after, even though I have found that Dr.
Childerston’s therapy has not been exactly or
even not been what this Court envisioned nor
Dr. Brandt envisioned, I do believe that it may
have had some effect on [Mother’s] ability to
visit with the children and . . . I’m therefore
gonna be looking for what Dr. Brandt says. . . .
On August 29, 2013, the circuit court continued the
hearing to discuss the particulars of Mother’s supervised visitation with the children. Thereafter, the
court orally ruled that Mother would be allowed to
have supervised visitation every Saturday from 2-5
p.m. for the next four Saturdays. A review hearing
was set for September 25, 2013.
On September 6, 2013, the court entered the following in writing:
ORDERED, that [Mother’s] motion to
reconsider this Court’s prior denial of her
request to change legal custody is denied; and
it is further
ORDERED, that [Mother] has failed to
prove a material change in circumstances as
to the custody of the parties’ minor children .
. . , and therefore [Mother’s] motion to change
physical custody is denied; and it is further
ORDERED, that [Mother’s] request for
unsupervised visitation . . . is denied.
During the review hearing on September 25, 2013,
Mother’s counsel informed the circuit court that Dr.
Brandt had declined to perform another evaluation of
Mother. Thereafter, the court continued Mother’s
supervised visitation but set another review hearing
for October 9, 2013.
After the October 9, 2013, review hearing, the circuit court allowed Mother’s supervised visitation to
continue but declined to expand access and directed
that “any potential supervisors must come before
Court.” On October 21, 2013, the court ordered that
John Lefkowits, Ph.D., “is appointed as Evaluator to
perform an assessment of [Mother], and determine if
[Mother] meets the criteria for a DSM[9] diagnosis, to
include current psychological, emotional and interpersonal functioning and whether or not this may
impact parenting.” The court ordered Mother to pay
all costs associated with the evaluation and to cooperate and comply with all of the Evaluator’s requests.
In addition, the court ordered that the Evaluator be
provided with several documents, including previous
evaluations by Dr. Brandt and Dr. Mart and Mother’s
physical and mental health records. Finally, the court
directed the Evaluator to submit a written report and
testify at the subsequent review hearing, then scheduled for December 11, 2013. Because Mother filed an
appeal to this Court on October 31, 2013, the matter
was stayed in circuit court.
Additional facts will be provided as they become
relevant to our discussion, below.
Discussion
I.
Physical Custody
Mother argues that the circuit court erred when it
denied her request for joint physical custody and
unsupervised visitation “given that there was manifest
evidence of a material change in circumstances.”
Mother contends that, because the court “expressly
stated that it was modifying the visitation schedule
based on its finding that the then-current schedule
was no longer in the best interests of the children,”
then the court “did find a material change in circumstances” sufficient to modify physical custody.
(Emphasis in original). Alternatively, Mother avers
that “[t]here was no evidence presented that [she]
still has a serious psychiatric condition” and, therefore, she “should have been awarded joint physical
custody and/or expanded and unsupervised visitation.”
In response, Father and the BIA argue that the circuit court acted properly in denying Mother’s requests
for physical custody and for unsupervised visitation.
Specifically, Father contends that the court “did not
err when it found a material change in circumstances
to warrant a modification of visitation without modifying physical custody,” nor did it err “when it was
not persuaded by [Mother’s] witnesses.” And, according to the BIA, the court properly relied on Dr.
Brandt’s evaluation in reaching its decision.
When deciding whether modification of custody is
warranted, the court performs a two-step analysis:
First, unless a material change of circumstances is found to exist, the court’s inquiry
ceases. In this context, the term “material”
relates to a change that may affect the welfare
of a child. See McCready v. McCready, 323
Md. 476, 593 A.2d 1128 (1991). Moreover, the
circumstances to which change would apply
would be the circumstances known to the
trial court when it rendered the prior order. If
the actual circumstances extant at that time
101
were not known to the court because evidence relating thereto was not available to the
court, then the additional evidence of actual
(but previously unknown) circumstances
might also be applicable in respect to a
court’s determination of change. If a material
change of circumstance is found to exist, then
the court, in resolving the custody issue, considers the best interest of the child as if it
were an original custody proceeding. . . .
[B]oth steps may be, and often are, resolved
simultaneously.
Wagner v. Wagner, 109 Md. App. 1, 28-29 (1996).
“For cases involving the custody of children generally, our precedents establish a three part review of
the decisions of the lower courts, addressing the findings of fact, conclusions at law, and the determination
of the court as a whole.” In re Yve S., 373 Md. 551,
584 (2003). In sum:
When the appellate court scrutinizes factual findings, the clearly erroneous standard
of [Md. Rule 8-131(c)] applies. If it appears
that the chancellor 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 chancellor founded upon sound legal
principles and based upon factual findings
that are not clearly erroneous, the chancellor’s decision should be disturbed only if
there has been a clear abuse of discretion.
Sider v. Sider, 334 Md. 512, 534 (1994) (quoting Davis
v. Davis, 280 Md. 119, 125-26 (1977)); accord Yve S.,
373 Md. at 584-86. “Additionally, the trial court’s
opportunity to observe the demeanor and credibility
of the parties and witnesses is of particular importance.” Wagner, 109 Md. App. at 40 (citing Petrini v.
Petrini, 336 Md. 453, 470 (1994)). Thus, “the chancellor’s decision is unlikely to be overturned on appeal.”
Id. (citations omitted).
In this case, the most recent consent order
addressing physical custody was entered on May 13,
2011, when Mother agreed to grant sole custody to
Father. Additional evidence of actual circumstances
extant at the time that the consent order was rendered was presented to the court on or about July 12,
2011, when Mother submitted Dr. Brandt’s evaluation.
Thus, the circumstances to which material change
would apply are the circumstances known to the
court at that time. See Wagner, 109 Md. App. at 28. In
other words, in order to modify physical custody,
there must be a change in Mother’s psychological
health — compared to what Dr. Brandt found in 2011
— that would affect the children’s welfare.
In its analysis, the circuit court correctly noted
that “[t]he only conceivable change is whether
[Mother] suffers from or has the diagnosis of atypical
102
factitious disorder by proxy . . . [a]nd that’s not really
a change because she was diagnosed and in any event
we have proceeded as if she had it.” The court went
on to say that it did not accept Mother’s experts’ conclusions and, as a result, found that there was “no
material change in circumstances which would warrant a change in physical custody.”
Based upon the record, we cannot say that the
circuit court erred or abused its discretion in reaching this conclusion. Although Mother’s first expert,
Dr. Heaton, testified that he had no “concern in terms
of a serious psychiatric condition,” he admitted that
he never observed Mother interact with the children
and made “very, very clear” that the records he
reviewed with regard to the diagnosis of factitious
disorder by proxy were “only the information” that
was “self-provid[ed]” by Mother. Similarly, the second
expert presented by Mother, Dr. Mart, made clear that
he had not met Mother or any of her treating psychologists and, therefore, Dr. Mart’s comments were “limited to the documentation” he reviewed. Lastly,
Mother’s third expert, Dr. Childerston, acknowledged
that, at the time of Dr. Brandt’s evaluation, Mother
may have “derive[d] unconscious gratification from
being the only caregiver able to identify the special
needs of her children and to provide them with specialized support.”
The Court of Appeals has made clear the following:
In Maryland, resolving child custody questions is a function of the equity courts. The
jurisdiction of a court of equity includes the
custody, maintenance, visitation and support
of a child. The court may direct who shall
have the custody of a child, decide who shall
be charged with its support and maintenance,
and determine who shall have visitation
rights. This jurisdiction is a continuing one,
and the court may from time to time set aside
or modify its decree or order concerning the
child.
Ross v. Hoffman, 280 Md. 172, 174 (1977) (citation
omitted). As Maryland courts have stated time and
time again:
[In a bench trial], the trial court is not
only the judge of a witness’s credibility, but is
also the judge of the weight to be attached to
the evidence. It is thus plain that the appellate
court should not substitute its judgment for
that of the trial court on its findings of fact
but will only determine whether those findings are clearly erroneous in light of the total
evidence.
In re Anthony W., 388 Md. 251, 279 (2005) (quoting
$3,417.46 U.S. Money v. Kinnamon, 326 Md. 141,
149 (1992)). “The rationale behind the clearly erroneous standard is settled. The trial judge is physically
present during the testimony and is able to observe
matters not usually reflected in a cold record, such as
the demeanor and credibility of witnesses.” Id. at 278
(citation omitted). As the trial judge in this case held
numerous hearings over a span of several months, we
certainly would not substitute our judgment for the
circuit court’s, especially when there was sufficient
evidence to support the judge’s findings.
Mother contends that, because the circuit court
expanded supervised visitation, then it must have
found a material change in circumstances enough to
warrant a change in physical custody or to initiate
unsupervised visitation. This argument is without
merit. As we previously stated, “the term ‘material’
relates to a change that may affect the welfare of a
child.” Wagner, 109 Md. App. at 28 (citation omitted).
In this case, the court increased Mother’s supervised
visitation from two to three hours after finding that
Dr. Childerston’s therapy “has been of assistance” and
that, based on the videos of the children with Mother,
progress had been made. While such “progress” may
have amounted to a material change sufficient to warrant an expansion of supervised visitation, it was certainly reasonable for the circuit court to find that the
progress did not amount to a material change sufficient to warrant a modification of physical custody or
to initiate unsupervised visitation.10 To grant Mother’s
requests, there must be a change that may affect the
children’s welfare should the children be left alone
with Mother for extended periods of time, such as a
psychological evaluation concluding that Mother no
longer suffers from the condition that Dr. Brandt
detailed.
For these reasons, we uphold the circuit court’s
decision denying Mother’s requests for physical custody and unsupervised visitation.
II.
Legal Custody
Next, Mother challenges the circuit court’s ruling
which, in essence, denied her request to modify legal
custody. According to Mother, there was “sufficient
evidence of her willingness . . . and her mental fitness
and capability to effectively co-parent.” She also contends that the court’s finding that there had been “no
alienation” was clearly erroneous because Father
“consistently alienated” Mother from the children.
During the proceedings below, Mother argued that
there was a material change in circumstances
because she was actively being alienated from the
children. The circuit court, however, disagreed and
found that “there is no evidence of alienation of the
children.” In large part, the court based its finding on
“the evidence presented on the videos,” which
showed that the children “seem to be bonded with
their mom.”
Again, we emphasize that “[i]n a bench trial, the
trial court is not only the judge of a witness’s credibility, but is also the judge of the weight to be attached
to the evidence.” In re Anthony W., 388 Md. at 279
(citation omitted). Here, the trial judge chose to give
more weight to video evidence rather than testimony
that was presented in court. We cannot, on appeal,
substitute our judgment. Therefore, we affirm the circuit court’s ruling.
III. Best Interest Attorney
Mother argues that the circuit court erred when it
allowed the BIA “to approve increased visitation” in
the August 8, 2011, pendente lite consent order.
According to Mother, the provision constituted an
“improper delegation” of the court’s authority.
Moreover, Mother asserts that “[t]he BIA failed in her
obligations to the children and [Mother], likely
because a demonstrated bias towards [Father] permeated her judgment.”
In response, the BIA contends that “the trial court
did not delegate its authority to determine visitation,
the parties did.” Father, on the other hand, argues
that this issue is not properly before this Court
because the August 2011 pendente lite order has
since been modified. Alternatively, Father avers that
the circuit court did not delegate its authority to a
non-judicial person. We agree with Father that this
issue is not properly before us.
The relevant provision of the August 2011 pendente lite order states:
ORDERED, that visitation exceeding two
(2) hours must be approved by the Best
Interest Attorney and she will be notified by
counsel for [Mother] and Diana Schofield or
any other supervisor of said activity. . . .
Father correctly notes that on August 29,
2013, the circuit court ruled that Mother
would be allowed to have supervised visitation every Saturday from 2-5 p.m. (three
hours) for the next four Saturdays. That
arrangement was allowed to continue as per
the court’s announcements during the subsequent review hearings on September 25, 2013
and October 9, 2013. Mother contends that the
August 2011 provision was implicitly incorporated in the August 29, 2013 order; however,
that cannot be the case as the provision lists
conditions for visits lasting more than two
hours, while the August 29, 2013 ruling explicitly states that three-hour visits would be permitted notwithstanding the BIA’s recommendation. Mother’s contention, therefore, has no
merit.
In a footnote, Mother asserts that the August 2011
provision still applies and is appealable because “the
court did not modify or even refer to this provision in
its written order” following the August 29, 2013 hearing. Citing In re Justin D., 357 Md. 431, 445 (2000),
Mother notes that, “[b]ecause it is the written order
that constitutes the judgment of the court . . . , the
order itself must be clear and must express the
court’s decision.” Although it is true that “opportuniMaryland Family Law Update: November 2014
103
ties for error and confusion may be minimized if judgments are rendered in writing,” the Court of Appeals
has previously indicated that Md. Rule 2-601 “‘does
not require a written order to be signed, even in complex decisions.’” Davis v. Davis, 335 Md. 699, 714-15
(1994) (quoting Rohrbeck v. Rohrbeck, 318 Md. 28, 46
n.7 (1989)) (emphasis in original). Rather, Md. Rule 2601, which governs the “Entry of Judgment,” only
requires a separate document and a docket entry. See
Taha v. S. Mgmt. Corp., 367 Md. 564, 570 (2002).
Here, during the hearing on August 29, 2013, the
circuit court orally ruled:
All right then. In this case I will prepare and if
you, if you don’t have it it’s still in effect
‘cause you’re hearing it orally, that for the
next four weeks [Mother] will visit with the
three children, Saturday, August 31st,
September 7th, September 14th and
September 21st from two to five p.m.’
The court clerk then docketed that Mother would
“visit with children every sat. [sic] from 2-5pm for the
next 4 saturdays [sic].” That same day, the trial judge
signed an order denying, among other things,
Mother’s request for unsupervised visitation, and the
order was docketed on September 6, 2013. The
requirements of Md. Rule 2-601, therefore, were satisfied. As the judge’s oral ruling and the subsequent
docket entry clearly expressed the court’s decision,
the August 29, 2013 ruling effectively replaced any
previous pronouncements regarding visitation.
IV. Children’s Records
Next, Mother argues that the circuit court violated her due process rights and committed reversible
error when it denied her “meaningful access to her
children’s records.” Specifically, Mother believes that
she should have been given access to “educational
records to substantiate her claim that she had not
overstated her children’s developmental disorders.” A
review of the relevant proceedings is helpful in reaching our decision.
On June 1, 2012, Mother entered a line submitting
subpoenas and affidavits and requesting certain documents from Father. Subsequently, Father filed a
motion to quash the subpoena with regard to the children’s school records. A motions hearing was held on
August 28, 2012, at which time the circuit court ruled
as follows:
In this case I’m granting and denying
[Father’s] motion in part. I don’t know quite
how we’re gonna work this. We don’t have the
immediate pendency of the trial so we have
some time. And I do believe [Mother’s counsel] is entitled, subject to some restrictions to
these records, and his suggestion of a protective order is appropriate.
Accordingly, the court directed Father’s counsel to
draft a protective order stating that the school
104
records “would be provided to the Court for relevance,” and the court would “review them and then
they’ll be released to all Counsel with a protective
order” that prevents the records from being disclosed
to third parties. When asked whether everyone was in
agreement with this ruling, Mother’s counsel and the
BIA both said, “Yes.”
It is unclear what happened thereafter — whether
Father’s counsel submitted the protective order or
whether the circuit court received the educational
records and performed an in camera review. There is
nothing in the 71-page docket to indicate that these
events certainly took place, and Mother makes no
mention of it in her brief, other than to allege that the
court never provided her with the records at issue.11
In any event, Mother was not deprived of her due
process rights. “Generally, procedural due process
requires notice and some form of hearing or opportunity to respond if one is to be deprived of a property
right by governmental action.” V N A H o s p i c e o f
Maryland v. Dep’t of Health & Mental Hygiene, 406
Md. 584, 603-04 (2008) (citations omitted). Here, the
circuit court sent notice of a motions hearing, heard
Mother’s argument regarding Father’s motion to
quash, and even denied Father’s motion in part, all the
while garnering Mother’s assent. Mother was, therefore, given the process that she was due.12
V.
Psychological Evaluation
Finally, Mother argues that the circuit court committed error when it, sua sponte, ordered her to submit to a
psychological evaluation. Mother again claims that her
due process rights were violated as “she was not afforded the opportunity to be heard and increased visitation
was contingent on this evaluation.” In addition, she contends that “the court disregarded the evidence regarding
[her] mental fitness and limited finances.”
In response, both Father and the BIA contend that
there was no error. Notably, Father correctly points out a
very important distinction, namely that the circuit court
ordered a reevaluation and not a new “psychological
evaluation sua sponte, and without notice,” as Mother
alleges.
In 2011, Mother, on her own accord, sought a psychiatric evaluation from Dr. Brandt, thus eliminating the
need for any party to move for such an evaluation pursuant to Md. Rule 2-423.13 Thereafter, during the review
hearings that followed, the circuit court made clear its
intent to have Mother reevaluated. As the BIA correctly
notes, this issue was discussed over the course of several hearing dates, at which time Mother, through counsel,
was afforded multiple opportunities to respond. In fact,
during the hearing on September 25, 2013, it was
Mother’s counsel who informed the circuit court that Dr.
Brandt had declined to perform another evaluation, thus
indicating that Mother had notice of the court’s intent to
have a new evaluation performed. We, therefore, find no
merit in Mother’s contention that she was denied due
process.
The Court of Appeals has previously stated that the
trial court is vested with discretion to determine whether
mental condition is material to the issues of a case.
Roberts v. Roberts, 198 Md. 299, 302-03 (1951). In addition:
A chancellor may also, within the exercise
of his discretion, impose such conditions upon
the custodial and supporting parent as deemed
necessary to promote the welfare of the children. Kruse v. Kruse, 179 Md. 657, 664, 22 A.2d
475 (1941) cited in 27B C.J.S. Divorce § 308, p.
441 (1959). We will affirm the imposition of such
a condition so long as the record contains adequate proof that the condition or requirement is
reasonably related to the advancement of a
child’s best interests. Deckman v. Deckman, 15
Md. App. 553, 568, 292 A.2d 112 (1972).
Kennedy v. Kennedy, 55 Md. App. 299, 310 (1983). In this
case, there is adequate proof that a reevaluation of
Mother would aid the court in determining whether
increased contact with Mother would be in the children’s
best interests.14 Thus, we see no abuse of discretion on
the circuit court’s part. See Wilson v. N.B.S., Inc., 130 Md.
App. 430, 454-55 (2000) (the court has “authority to order
a party . . . to pay the cost of the examination or costs
associated with it” and “[t]he court’s decision in that
regard is a matter of discretion . . . subject to review for
abuse”).
For all of the foregoing reasons, we affirm the circuit
court’s judgment.
FOR FREDERICK COUNTY AFFIRMED.
Footnotes
1. Mother asserts — and we agree — that her appeal of the circuit court’s decision regarding legal custody was timely
because “the request to modify legal custody was in the same
petition as the request to modify physical custody [and] therefore, any appeal prior to the final order would have been premature.”
2. We have abbreviated Mother’s first, second, and fifth questions by omitting her reasoning for the arguments that she
advances for those issues.
3 .Mother later testified that she entered into the consent
agreement because she “didn’t think [she] had any other
choice.”
4. In her brief, Mother alleges that “at the time of signing the
Consent Order, [she] believed her visitation rights would
increase over time, . . . and that understanding was fundamental to her initial consent to the arrangement.”
5. This filing amended Mother’s counter motion for contempt
and show cause, which she had filed on March 27, 2012, in
response to a request for emergency hearing filed by Father on
March 20, 2012.
6. Based on the 13-page voir dire examination transcript, it is
unclear whether Dr. Heaton was also received as an expert in
child and adult behavior.
7. “Although verbally styled as a motion to dismiss, the thrust
and timing of [Father’s] motion sought relief akin to a motion
for judgment.” Faulk v. Ewing, 371 Md. 284, 305 (2002).
Accordingly, “we shall not elevate form over substance in the
context of the record of this case.” Id.
8. Arguing in favor of Father’s motion to dismiss, the BIA had
stated:
[I]t sounds to me like [Mother’s counsel’s] main argument is that the children were alienated and, and that
is the change in circumstances. The videos that were
shown to you, Your Honor, quite frankly are the greatest evidence that the children are not in fact alienated.
9. “The Diagnostic and Statistical Manual of Mental Disorders
(DSM) is the standard classification of mental disorders used
by mental health professionals in the United States.” American
Psychiatric Association, DSM, http://www.psychiatry.org/practice/dsm (last visited September 3, 2014).
10. As stated above, the term “material” has to relate to “a
change that may affect the welfare of a child.” Wagner, 109 Md.
App. at 28 (citation omitted). The decisions are separate.
11. “‘[W]e cannot be expected to delve through the record to
unearth factual support favorable to [the] appellant.’” Rollins v.
Capital Plaza Assocs, L.P., 181 Md. App. 188, 201 (2008) (quoting von Lusch v. State, 31 Md. App. 271, 282 (1976), rev’d on
other grounds, 279 Md. 255 (1977) (internal quotation omitted)).
12. To the extent that Father failed to file the protective order
as he had been instructed, or that the circuit court failed to
provide Mother with any records that it may have had in its
possession, we agree with the BIA that “the appropriate remedy would have been to request relief from the trial court,
through a motion to compel or otherwise.” See Md. Rule 2-432
(governing “Motions upon Failure to Provide Discovery”).
13. Md. Rule 2-423, entitled “Mental or Physical Examination of
Persons,” states:
When the mental or physical condition or characteristic of a party or of a person in the custody or under
the legal control of a party is in controversy, the court
may order the party to submit to a mental or physical
examination by a suitably licensed or certified examiner or to produce for examination the person in the
custody or under the legal control of the party. The
order may be entered only on motion for good cause
shown and upon notice to the person to be examined
and to all parties. It shall specify the time and place,
manner, conditions, and scope of the examination and
the person or persons by whom it is to be made. The
order may regulate the filing and distribution of a
report of findings and conclusions and the testimony
at trial by the examiner, the payment of expenses, and
any other relevant matters.
14. “For good cause, the court may hold a case open for a reasonable period to consider additional evidence, not available at
trial but which the court finds necessary to a proper decision.”
Frase v. Barnhart, 379 Md. 100, 121 (2003). The court, however, should refrain from “mak[ing] findings that would dictate a
particular result and then subject the favored party to conditions inconsistent with that result and to continuing review
hearings.” Id.
105
Case Index
Brief
Full Text
Walter E. Buck, III v. Gabrielle B. Buck (Md.App.)(Unrep.) . . . . . . . . . . . . . . .14 . . . . . . . . . . . .67
Edward Calvello v. Emilie Calvello (Md.App.)(Unrep.) . . . . . . . . . . . . . . . . . .14 . . . . . . . . . . . .53
Brendon Capoen v. Amanda Capoen (Md.App.)(Unrep.) . . . . . . . . . . . . . . .15 . . . . . . . . . . . .29
In Re: Adoption/Guardianship of Caitlyn S. (Md.App.)(Unrep.) . . . . . . . . . . .13 . . . . . . . . . . . .72
In Re: Adoption/Guardianship of Cayden T.S. (Md.App.)(Unrep.) . . . . . . . . .13 . . . . . . . . . . . .77
In Re: Adoption/Guardianship of Quintline B. and
Shellariece B. (Md.App.)(Rep.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10/14 . . . . . . . . . .17
In Re: Guardianship of Zealand W. and Sophia W. (Md.App.)(Rep.) . . . . .8 . . . . . . . . . . .12/14
In Re: Jazmine D. and Jeremiah D. (Md.App.)(Unrep.) . . . . . . . . . . . . . . . . .13 . . . . . . . . . . . .88
In Re: Jeffrey H. (Md.App.)(Unrep.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 . . . . . . . . . . . .93
Andreas Konopka v. Adventist Healthcare Inc. consol. w/
Andreas Konopka v. Uma Ahluwalia (Md.App.)(Unrep.) . . . . . . . . . . . . . . . .15 . . . . . . . . . . . .34
Peter G. Schmidt v. Jessica D. Schmidt (Md.App.)(Unrep.) . . . . . . . . . . . . . .14 . . . . . . . . . . . .40
Marc Stengel v. Susan Silesky F/K/A
Susan Stengel, et al. (Md.App.)(Unrep.) . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 . . . . . . . . . . . .25
Rebecca Hunter Thomas v. Carl F. Thomas (Md.App.)(Unrep.) . . . . . . . . . . .14 . . . . . . . . . . . .98
Morgan Woods F/K/A Morgan Johnson v.
Reginald Johnson (Md.App.)(Unrep.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 . . . . . . . . . . . .46
106
Topic Index
Brief
Full Text
Adoption/Guardianship: Termination of parental rights: Attachment to birth mother
In Re: Adoption/Guardianship of Caitlyn S. (Md.App.)(Unrep.) . . . . . . . . . . . . . . .13 . . . . . . . .72
Adoption/Guardianship: Termination of Parental Rights: Balancing of factors
In Re: Adoption/Guardianship of Cayden T.S. (Md.App.)(Unrep.) . . . . . . . . . . . . .13 . . . . . . . .77
Adoption/Guardianship: Unchanged permanency plan: Alternate triggers In Re:
Adoption/Guardianship of Quintline B. and Shellariece B. (Md.App.)(Rep.) . . . . . .10/14 . . . . . .17
CINA: Modification of permanency plan: Guardianship with relative
In Re: Jazmine D. and Jeremiah D. (Md.App.)(Unrep.) . . . . . . . . . . . . . . . . . . . . .13 . . . . . . . .88
CINA: Modification of permanency plan: Lack of adoptive resource
In Re: Jeffrey H. (Md.App.)(Unrep.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 . . . . . . . .93
Custody: Evidence: Credibility determination Morgan Woods F/K/A
Morgan Johnson v. Reginald Johnson (Md.App.)(Unrep.) . . . . . . . . . . . . . . . . . . .14 . . . . . . . .46
Custody: Modification: Psychological reevaluation
Rebecca Hunter Thomas v. Carl F. Thomas (Md.App.)(Unrep.) . . . . . . . . . . . . . . . .14 . . . . . . . .98
Custody: Modification: Tie-breaking authority
Peter G. Schmidt v. Jessica D. Schmidt (Md.App.)(Unrep.) . . . . . . . . . . . . . . . . . .14 . . . . . . . .40
Divorce: Alimony: Ability to be self-supporting
Walter E. Buck, III v. Gabrielle B. Buck (Md.App.)(Unrep.) . . . . . . . . . . . . . . . . . . .14 . . . . . . . .67
Divorce: Custody and visitation: Alimony
Edward Calvello v. Emilie Calvello (Md.App.)(Unrep.) . . . . . . . . . . . . . . . . . . . . . .14 . . . . . . . .53
Divorce: Delay in issuing opinion: Costs and fees
Marc Stengel v. Susan Silesky F/K/A Susan Stengel, et al. (Md.App.)(Unrep.) . . . . . .15 . . . . . . . .25
Domestic violence: Final protective order: Clear and convincing evidence standard
Brendon Capoen v. Amanda Capoen (Md.App.)(Unrep.) . . . . . . . . . . . . . . . . . . . . . .15 . . . . . . . .29
Guardianship: Disability: Evidentiary basis
Andreas Konopka v. Adventist Healthcare Inc. consol. w/
Andreas Konopka v. Uma Ahluwalia (Md.App.)(Unrep.) . . . . . . . . . . . . . . . . . . . . .15 . . . . . . . .34
Guardianship: Third-party petition: Surviving parent
In Re: Guardianship of Zealand W. and Sophia W. (Md.App.)(Rep.) . . . . . . . . .8 . . . . . .12/14
107
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