Burak v. Burak

Natasha Burak v. Mark Burak, et al., No. 97, September Term 2016. Opinion by Hotten,

J.

FAMILY LAW — CUSTODY — THIRD-PARTIES — PERMISSIVE

INTERVENTION

The Court of Appeals held that there is no procedural bar prohibiting a third-party from

seeking to intervene in a custody dispute between parents because Maryland Rule 2-214

allows any person to intervene in an action “when the person’s claim or defense has a

question of law or fact in common with the action.” Maryland Rule 2-214(b)(1). The

Court also held that because a third-party may only obtain custody of a child over the

child’s biological parents if the third-party can demonstrate that the parents are either unfit

or that exceptional circumstances detrimental to the child exist, the third-party seeking to

intervene in an existing custody action must make a prima facie showing in his or her

pleading that the parents are either unfit or that exceptional circumstances exist. See

McDermott v. Dougherty, 385 Md. 320, 325, 869 A.2d 751, 754 (2005). The Court

concluded that the Grandparents’ Motion for Permissive Intervention contained sufficient

factual allegations to make a prima facie showing that the parents may be unfit or that

exceptional circumstances existed.

FAMILY LAW — CUSTODY — THIRD-PARTIES — UNFITNESS

The Court of Appeals held that in determining whether a parent is unfit – sufficient to

overcome the presumption favoring parental custody in a third-party custody dispute – the

court may consider whether: (1) the parent has neglected the child by manifesting such

indifference to the child’s welfare that it reflects a lack of intent or an inability to discharge

his or her parental duties; (2) the parent has abandoned the child; (3) there is evidence that

the parent inflicted or allowed another person to inflict physical or mental injury on the

child, including, but not limited to physical, sexual, or emotional abuse; (4) the parent

suffers from an emotional or mental illness that has a detrimental impact on the parent’s

ability to care and provide for the child; (5) the parent otherwise demonstrates a

renunciation of his or her duties to care and provide for the child; and (6) the parent has

engaged in behavior or conduct that is detrimental to the child’s welfare. The Court

concluded that although several of the hearing judge’s findings that served as the basis for

his conclusion that the mother was unfit implicated several of the factors above, because

the majority of the hearing judge’s findings were not supported by the record and were,

therefore, erroneous, the hearing judge abused his discretion in finding that Petitioner was

an unfit parent.

FAMILY LAW — CUSTODY — THIRD-PARTIES — EXTRAORDINARY

CIRCUMSTANCES

The Court of Appeals held that the hearing judge erred in applying the seven factors

contained in Ross v. Hoffman, 280 Md. 172, 191, 372 A.2d 582, 593 (1977), to the facts in

the case at bar and, therefore, abused his discretion in concluding that exceptional

circumstances existed in this case. The hearing judge erred in finding that the “length of

time” the child at issue “had been away from” Petitioner was “whenever they were going

to do some tripping[]” because the first Hoffman factor only applies to circumstances where

a biological parent has given constructive custody of the child to a third-party over a long

period of time, and ample evidence was presented reflecting that Petitioner has been an

active custodian of the child since he was born. The hearing judge also erred in concluding

that the Grandparents had assumed care of the child “from the time of [his] birth[]” because

he ignored the facts presented at the hearing reflecting that Petitioner has been continuously

and actively involved in the child’s care since birth. The hearing judge also erred in

drawing the conclusion that if the child remained in Petitioner’s custody, he would likely

fail or continue to be in crisis because ample testimony presented indicated that Petitioner

was responsive to the child’s behavioral difficulties and was actively working with both

the child’s school and her own therapist to identify ways to help the child address his

behavioral issues. The hearing judge also erred in failing to make substantive factual

findings in regard to the third Hoffman factor, which considers the “possible emotional

effect on the child of a change of custody,” and the fourth Hoffman factor, which considers

the “period of time which elapsed before the parent sought to reclaim the child.” Hoffman,

280 Md. at 191, 372 A.2d at 593. The Court concluded that the hearing judge did not err

in finding that the child’s relationship with his Grandparents was “extremely strong” and

the Court deferred to the hearing judge’s determination that there was no “intensity or

genuineness” on Petitioner’s part in having custody of the child. See id. See McDermott,

385 Md. at 325, 869 A.2d at 754.

Circuit Court for Montgomery County

Case No. 112675-FL

Argued: June 2, 2017 IN THE COURT OF APPEALS

OF MARYLAND

No. 97

September Term, 2016

__________________________________

NATASHA BURAK

v.

MARK BURAK, et al.

__________________________________

Barbera, C.J.,

Greene,

Adkins,

McDonald,

Watts,

Hotten,

Getty,

JJ.

__________________________________

Opinion by Hotten, J.

Watts, J., joins in judgment only.

McDonald and Getty, JJ., dissent.

__________________________________

Filed: August 29, 2017

We consider whether the Circuit Court for Montgomery County properly

determined that the grandparents of a minor child may intervene in a custody action

between the child’s parents and whether the circuit court abused its discretion in concluding

that the mother was unfit and that “exceptional circumstances” existed in the present case

that were sufficient to overcome the constitutional presumption favoring parental custody

and authorized the circuit court to grant custody of the child to the grandparents pursuant

to the “best interests of the child” standard. We also consider whether the circuit court

properly excluded consideration of the grandparents’ financial resources in determining

child support and whether the amount of child support the circuit court required the mother

to contribute to the care of the child was correct.

Natasha Burak (“Petitioner”) and Mark Burak (“Father”) were married in October

2006, and had a child (“the Child”) two years later. From early 2009 until December 2012,

Petitioner, Father, and another woman – “M” – engaged in a polyamorous relationship and

illicit drug use. The parties scheduled their activities on a calendar kept by Petitioner and,

prior to engaging in any illicit activity, the parties would take the Child to his paternal

grandparents’ house. In 2011, Petitioner and Father purchased a marital home in Silver

Spring, Maryland with funds provided by Father’s parents – Gary and Martha Burak (“the

Grandparents”) – and sometime in 2012, M moved into the basement of the marital home.

Beginning in September 2012 and continuing until February 2013, the triad attended

couples counseling because Petitioner no longer wanted to engage in sexual relations with

M and she wanted M to leave the marital home. In December 2012, the sexual relationship

between Petitioner and M ended, but the two continued to have a non-sexual relationship

4

that included cooking together and sleeping in the same bed. On May 31, 2013, in response

to two violent incidents that occurred earlier in May 2013, Petitioner filed for and received

a Temporary Restraining Order (“TRO”) against Father. Father subsequently moved out

of the marital home and Petitioner filed a complaint for absolute divorce on July 11, 2013.

On January 14, 2014, a pendente lite consent agreement reached by the parties was

placed on the record. Pursuant to the agreement, Petitioner was granted custody of the

Child, but Father retained visitation rights that were supervised by the Grandparents.

Petitioner and Father were also required to undergo random drug testing and attend therapy.

Father passed all his subsequent drug tests, but Petitioner tested positive for marijuana in

one of the tests. On February 20, 2014, the custody evaluator issued her report,

recommending that Petitioner have custody of the Child with Father continuing to have a

right to visitation, both parties receive a mental health evaluation and a psychiatric

consultation, and both parties continue to be subject to random drug testing.

On April 24, 2014, the Grandparents filed a motion to intervene in the custody action

between Petitioner and Father, seeking custody of the Child in light of Petitioner and

Father’s illicit drug use and given the strong role that the Grandparents had played in the

Child’s life since birth. Petitioner opposed the Grandparents’ intervention, but the circuit

court granted the Grandparents’ motion on July 25, 2014. Also in July 2014, Petitioner’s

biological daughter’s adoptive family (“the Ks”)1 moved into the marital home with

Petitioner and the Child.

1

The Ks include Mr. and Mrs. K, and their biological daughter.

5

Beginning in May 2014, at the end of the Child’s kindergarten year, the Child began

exhibiting negative and disruptive behavior in class. The bad behavior continued through

the summer and into the start of the Child’s first grade year, when the Child began to leave

class without permission and exhibit bouts of anger. On September 4, 2014, the Child

kicked the assistant school principal and threatened to blow up the school. The school

contacted Petitioner and provided a referral to the Montgomery County Crisis Center

(“Crisis Center”).2 The Child was subsequently allowed to return to school after the

referral was completed.

Between September 15 and September 19, 2014, the circuit court held a custody

hearing. Thereafter, the circuit court issued an oral ruling, finding that both Petitioner and

Father were unfit parents and that exceptional circumstances existed in the case. The

circuit court granted physical and legal custody of the Child to the Grandparents at the

conclusion of the hearing but held that both Petitioner and Father retained the right to

visitation. The circuit court entered an interim order on September 30, 2014 that granted

physical and legal custody of the Child to the Grandparents, required Father to pay $500

per month in child support to the Grandparents, and stated a hearing would be set before a

magistrate to determine Petitioner’s child support obligations. On December 31, 2014, the

Grandparents filed a Motion for Child Support in the circuit court. After a hearing on

2

The Crisis Center provides crisis services, including emergency psychiatric

evaluations, full crisis assessments, and treatment referrals for both psychiatric and

situational crises. See DEP’T OF HEALTH & HUMAN SERVICES: 24 HOUR CRISIS CENTER,

https://perma.cc/ENB5-8LHY (last visited: June 23, 2017).

6

March 11, 2015, the magistrate issued recommendations for child support on March 24,

2015. The magistrate determined that the Grandparents were under “no legal obligation”

to contribute to the Child’s care, and recommended that Petitioner pay $1,467 per month

due to her adjusted gross income and due to the “extraordinary medical expenses” that were

claimed by the Grandparents for the Child’s psychiatric and psychotherapeutic care. The

magistrate also recommended that the interim order be modified to require Father pay $629

per month based on his unemployment benefits and due to the Child’s “extraordinary

medical expenses.” On May 26, 2015 the circuit court entered an order granting the

Grandparents’ motion and ordered Petitioner to pay $1,467 per month in child support and

increased Father’s child support obligation from $500 to $629 per month. On June 19,

2015, Petitioner appealed the circuit court’s decisions to the Court of Special Appeals. On

December 7, 2016, in a reported opinion, the Court of Special Appeals held, inter alia, that

(1) the circuit court did not abuse its discretion when it granted the Grandparents’ motion

for permissive intervention, (2) the circuit court did not abuse its discretion when it found

that exceptional circumstances existed in the case at bar; and (3) the circuit court did not

abuse its discretion in awarding child support to the Grandparents. See Burak v. Burak, et

al., 231 Md. App. 242, 150 A.3d 360 (2016).

For the reasons that follow, we shall reverse the judgment of the Court of Special

Appeals.

7

BACKGROUND

I. Custody Proceedings

On October 7, 2006, Petitioner and Father were married. In June, 2008, their child

was born. In late 2008, Petitioner and Father met M in their apartment complex and the

triad developed a friendship. Soon thereafter, Petitioner and Father approached M about

beginning a consensual polyamorous relationship with them, which commenced in early

2009.3 At the time the polyamorous relationship began, Petitioner informed M that she

had dissociative identity disorder (“DID”)4 and that, in addition to her main identity, she

also exhibited three alternate personalities named Morgan, Adrianna, and Lisa.5

Additionally, evidence was presented at the custody hearing indicating that, as part of the

3

Petitioner acknowledged that she consented to the polyamorous relationship “to

please [Father] at the time.” The record also indicates that Petitioner continued to have a

sexual relationship with an ex-boyfriend, and that they had sexual relations between three

and six times while Petitioner was also engaged in the polyamorous relationship with

Father and M.

4

The Diagnostic and Statistical Manual of Mental Disorders (“DSM-V”), states that

the defining feature of DID is the presence of two or more distinct personality states or an

experience of possession. Am. Psychiatric Ass’n, DIAGNOSTIC AND STATISTICAL MANUAL

OF MENTAL DISORDERS (5th Edition 2013), https://perma.cc/TW2S-7SEW (last accessed:

July 5, 2017). The DSM-V also explains that the overtness or covertness of these

personality states will vary as a function of “psychological motivation, current level of

stress, culture, internal conflicts and dynamics, and emotional resilience. Sustained periods

of identity disruption may occur when psychosocial pressures are severe and/or

prolonged.” Id. (citation omitted).

5

Father testified that a week before their marriage, Petitioner told him that she had

been diagnosed with DID and disclosed the identities of her three alter egos to him. Father

also stated that he had observed Petitioner shift into the different alter egos, with the most

frequent being Morgan whom he referred to as the “protector.” The record reflects that

Petitioner was never officially diagnosed by a therapist with DID.

8

parties’ couples counseling, see infra, Petitioner wrote a needs and wants list that reflected

her needs and wants as well as those of Morgan and Adrianna. Petitioner testified that

Father coerced her into writing Adrianna’s portion of the needs and wants list by

“threaten[ing] to take certain things away,” including taking away the Child. Petitioner

also acknowledged the existence of emails she wrote in 2006 that referred to Morgan, but

stated that Morgan was a nickname she had been given to her by friends and that she used

the name in role-playing activities she engaged in with Father. Another email from 2008

that was allegedly sent by Petitioner referenced that Adrianna was “refusing to come out[.]”

Petitioner testified she was not sure whether she wrote that email or not because Father had

access to the email account that the email was sent from.

In addition to the sexual relationship between Petitioner, Father, and M, the three

also used drugs together, including marijuana, mushrooms, ecstasy, and cocaine. The three

would schedule their drug use and sexual relations to allow Petitioner and Father to

coordinate childcare with the Grandparents in the Grandparents’ home. Testimony from

the custody hearing reflects that the drug use and sexual relations would occur “[a]nywhere

from every other weekend to once a month, to sometimes it would be a few months.”

Petitioner also maintained a calendar that recorded the parties’ drug and sexual relations

schedules.

On June 11, 2011, with money given to them by the Grandparents, Petitioner and

Father purchased a five-bedroom home in Silver Spring, Maryland. Sometime in 2012, M

moved into the marital home with Petitioner, Father, and the Child, and the parties

9

continued their polyamorous relationship and drug use.6 The parties also divided up

chores, M would sometimes babysit the Child while Petitioner and Father worked, and the

parties rotated cooking dinner.

Father testified that the marital relationship became increasingly strained during

2012, and that he and Petitioner engaged in verbal altercations that involved name-calling

and screaming. Between September 2012 and February 2013,7 Petitioner, Father, and M

participated in couple’s counseling.8 In December 2012, the sexual relationship between

Petitioner and M ended,9 but the couple continued having a relationship that included

6

The record indicates that the parties would sometimes smoke marijuana and

engage in sexual relations while the Child was in the house, but the Child was either asleep

or he was in his bedroom at the time of the activity. Father and M both testified that the

Child never walked in on the parties while they were using drugs or engaging in sexual

relations. M acknowledged, however, that the Child would sometimes come into the

bedroom when all three were in bed together and that the Child was aware of the parties’

various sleeping arrangements. M also acknowledged that the parties’ kept sex toys in the

marital home, but stated that they were confined to her bedroom in the basement, and that

the Child was supposed to knock before entering her bedroom.

7

The parties’ stopped attending couple’s therapy in February 2013 when Father

stormed out of a session after Petitioner stated that she wanted M to move out of the marital

home and the therapist agreed.

8

Father only agreed to attend counseling if M could also participate.

9

At the custody hearing, an email was produced that was sent from Petitioner to M

with Father cc’ed on February 4, 2013. The email detailed the dates and times for

introductory courses on bondage discipline submission and masochism (“BDSM”). Father

testified that he, Petitioner, and M attended one of the introductory classes together and

that he and M attended a separate class with just the two of them. M stated that Petitioner

and Father were not really involved in BDSM activities together.

10

cooking, cuddling, watching television together, and sleeping in the same bed. Father and

M continued to have a sexual relationship.

On May 24, 2013, Father, Petitioner and M went to King’s Dominion. Near the end

of the day, an argument ensued between Petitioner and Father that involved screaming, and

devolved into violent actions taken by both parties.10 On May 30, 2013, the parties got into

another fight, and Petitioner testified that:

10

Petitioner and Father disagree regarding the circumstances of the fight.

Petitioner testified at the custody hearing that:

[Father] and I ended up getting into a fight at the end of the day that started

off in the car. I had gotten out of the car to stretch, because I had gone to the

car instead of being in the park. Since they had gone off and, and I mean they

by [Father] and [M], had gone off and done their own thing.

I had gotten out of the car to stretch, and [Father] basically got physical and

violent. Pushing me down to the ground to the point where I had to bite him

to get out. I had gone to close the car door without realizing that his hand was

in there. So it was a huge, big fight. [Father] had smacked me and then I had

gone to the other side of the car and gotten in. To where he was verbally

screaming at me. Telling me that, you know, he should have hit me harder

and that he didn’t really want me alive, to be honest.

* * *

Father testified at the hearing that:

We had a really good day up until the very end. I forget what the skirmish

was about. There was a disagreement. [Petitioner] walked off. [M] walked

off. I chased after [Petitioner]. We were supposed to meet at a certain spot,

if we got separated. She wasn’t there. I went back to the car and we had a, a

– I got in the backseat of the car. She was in the front seat in the driver’s seat.

We screamed at each other. We were cussing at each other. She got out of

the front seat of the car and said do not follow me. And walked beyond the,

the front of the car. I got out of the car to try to get into the driver’s side of

the car. It was my car.

(continued . . .)

11

[W]hen we went to go take [the Child] to daycare and go to work, since we

working together at the time, he, we were bickering most of the morning, and

then when we got into the car, on the way to daycare, he threatened to kill

me twice in front of my son. And then when I dropped [the Child] off, that’s

when the concern was raised by my son in regard to the arguments.

* * *

Father conceded that the two got into an “ugly and vicious[]” argument that morning, but

testified that “[i]t was no different from 10,000 other fights we’d had before[]” and he

stated that he never threatened to kill Petitioner. On the same day, in response to these two

incidents, Petitioner filed for and received a Temporary Restraining Order (“TRO”) against

Father in the Circuit Court for Montgomery County. On June 6, 2013, the circuit court

issued a Final Protective Order that found by clear and convincing evidence that Father

had assaulted Petitioner and ordered that Father not contact Petitioner or the Child for one

year, but also authorized supervised visitation at the Grandparents’ house.11 Father was

also ordered to vacate the marital home, which he subsequently did. M remained in the

house with Petitioner and the Child until the end of June 2013.

(. . . continued)

She turned and charged the car and slammed my door, slammed the door on

my arm. I was pushing the door back and forth with her and she bit me and I

smacked her.

* * *

11

The record reflects that on September 26, 2013, Father filed a Petition to

Modify/Rescind Protective Order, which was granted by the circuit court, after a hearing,

on November 15, 2013. On January 22, 2014, Father filed a Second Petition to

Modify/Rescind Protective Order, which was granted by the circuit court, after a hearing,

on March 7, 2014.

12

On July 11, 2013, Petitioner filed a Complaint for Absolute Divorce in the Circuit

Court for Montgomery County. On August 27, 2013, Father filed an Answer to Petitioner’s

Complaint for Absolute Divorce and a Counter-Complaint for Limited Divorce, or, in the

Alternative, Absolute Divorce, Custody, Child Support, Monetary Award, Attorneys Fees

and Other Relief. Petitioner filed an Answer to Father’s Counter-Complaint and sought an

emergency pendente lite hearing seeking temporary alimony, counsel fees and other relief.

On January 14, 2014, a pendente lite consent agreement reached by the parties was

placed on the record. 12 The agreement stated that: (1) Petitioner would maintain physical

custody of the Child; (2) Father was entitled to visitation with the Child on Tuesdays and

Thursdays after school until 8 p.m., with the Child to be picked up by the Grandparents;

(3) the Child would alternate weekends between Father and Petitioner from Saturday at

9:30 a.m. to Sunday at 7:30 p.m. with transportation to be provided by the Grandparents;

(4) Father and Petitioner were required to submit to random drug testing organized by the

Child’s Best Interest Attorney (“BIA”), the testing must be completed within 24 hours, and

the results had to be provided to the BIA; (5) Father and Petitioner were required to

continue with therapy and the parties agreed to attend therapy at least twice a month; (6)

the Child would continue participating in the Safe Start program;13 (7) Father would

12

On February 28, 2014, the circuit court entered a Consent Pendente Lite Order

that incorporated, but did not merge, the January 14 transcript reflecting the parties’

pendente lite agreement.

13

The Safe Start program is a twelve-week program that helps children in various

stages of separation, divorce, and domestic violence disputes. The program provides

(continued . . .)

13

continue to pay $500 per month in child support to Petitioner; and (8) attorney’s fees would

be deferred until the divorce merits hearing. On January 14, 2014, the BIA required both

Petitioner and Father to submit to a drug test. Father tested negative for all drugs, but

Petitioner tested positive for marijuana. Petitioner tested negative for all drugs on each

subsequent drug test, including a test she took on January 24, 2014 – 10 days after her

positive test.

On February 20, 2014, the Custody Evaluator issued her report, recommending that:

(1) both parties receive a mental health evaluation with a psychiatric consultation regarding

medication; (2) both parties receive a substance abuse assessment, including the possibility

of random drug testing as part of that assessment; (3) Petitioner have primary residential

custody of the Child because she expressed a desire to have custody, she was in therapy,

and because she had accommodations for him; (4) Petitioner have sole legal custody of the

Child; and (5) Father continue to have visitation with the Child, supervised by the

Grandparents. At the custody hearing, the Custody Evaluator acknowledged that Petitioner

told her that she had not used any drugs since the parties separated, but noted that Petitioner

subsequently tested positive for marijuana on her January 14, 2014, drug test. The Custody

Evaluator also acknowledged that Petitioner had not disclosed to her that she had been

abused as a child. The Custody Evaluator stated that in her report she was concerned about

(. . . continued)

education and counseling to help children deal with conflict resolution, fears, safety

planning, peer relations, self-esteem, and guilt reduction. See SAFE START KIDS GROUP

BROCHURE, https://perma.cc/2LYJ-GFUE (last visited: June 23, 2017).

14

Petitioner’s evasive and defensive responses to her questions, and that Petitioner lied to the

Evaluator. The Custody Evaluator also expressed concern that at the time she conducted

her report that she did not see additional signs of attachment between the Child and either

parent.

On April 24, 2014, the Grandparents filed a Motion for Permissive Intervention in

the custody dispute between Petitioner and Father, and attached a copy of their proposed

Complaint for Custody with the circuit court. The Motion stated that “[the Grandparents]

have been an important and regular presence in [the Child’s life.]” In their proposed

Complaint for Custody, the Grandparents further alleged:

6. Although [the Child] has “resided” with his parents, and now pursuant to

this Court’s Pendente Lite Order entered February 28, 2014, with

[Petitioner], the Co-Intervenors have acted in loco parentis for [the Child]

since his birth in 2008.

7. Since [the Child’s] birth, there have been significant periods of time when

[the Grandparents] have cared for [the Child] on a daily basis. At other times,

they have had [the Child] in their care for as many as five overnights per

week.

8. [The Grandparents] have been active participants in [the Child’s] pre-

school and elementary school activities, and have participated in parent-

teacher conferences for [the Child].

9. In addition to extensive hands-on care for [the Child], [the Grandparents]

have frequently paid for [the Child’s] work-related child care and other

activities.

10. [The Grandparents] have also been actively involved in [the Child’s] pre-

school and school activities. Likewise, [the Child’s] Grandparents have been

actively involved in arranging play dates and other activities for [the Child].

11. [The Child’s] Grandmother has often been responsible for taking [the

Child] to the doctor and other medical appointments, and is knowledgeable

about [the Child’s] health.

15

12. For the majority of [the Child’s] life, up until the entry of the Protective

Order, the [Grandparents] cared for [the Child] in order to accommodate the

needs and whims of [Petitioner] and [Father].

13. Over time, the [Grandparents] became aware that [the Child’s] parents

were abusing drugs while [the Child] was in their care. This fact led to an

even greater level of involvement by the [Grandparents] in order to protect

and shield [the Child] from his Parent’s behavior.

14. During the ongoing litigation, a custody evaluation was performed by the

Office of the Court’s Custody Evaluator. As part of that evaluation, the

parties were questioned about their past and ongoing drug use. [Petitioner]

reported to the custody evaluator that she was not using any type of

controlled dangerous substances, as indicated by the Custody Evaluator

during her oral report to the Family Division Master on February 20, 2014

(Docket Entry 98). Both parents were required to submit to drug testing

during [t]he course of the evaluation. [Petitioner’s] test was positive for

marijuana use, contradicting the representation that she was no longer using

drugs.

15. [Petitioner] also repeated[ly] states that her drug use was at the behest of

[Father], implying that on her own, and left to her own devices, she would

not engage in recreational or other illicit consumption of controlled

dangerous substances. The positive drug test during the evaluation, when

[Petitioner] was no longer under the influence and control of [Father]

diminishes the credibility of [Petitioner’s] statement regarding her

recreational drug use.

16. [The Grandparents’] concerns regarding the Parents’ fitness to have

custody of [the Child] is echoed by this Court’s sua sponte decision to order

a psychiatric evaluation of [Father] and [Petitioner] (Docket Entry 115).

17. [The Grandparents] are in good health and are physically and emotionally

capable of caring for [the Child] on a full time basis.

18. Extraordinary circumstances exist in this matter that warrant placing [the

Child] in the residential and legal custody of his paternal Grandparents.

19. [The Child’s] best interests will be advanced by placing him in the care

and custody of his paternal Grandparents.

* * *

16

The Grandparents’ Complaint requested the circuit court award primary residential

and legal custody to them. On May 21, 2014,14 Petitioner filed a Motion to Strike

Grandparents’ Motion for Permissive Intervention alleging that the Grandparents had no

legal or factual basis for seeking to intervene in the custody action and that the

Grandparents’ motion contained substantial factual errors that did not accurately reflect the

Grandparents role in the Child’s life since Petitioner and Father separated. On June 10,

2014, Father filed an Opposition to Petitioner’s Motion to Strike Grandparents’ Motion for

Permissive Intervention. On July 25, 2014, the circuit court denied Petitioner’s motion and

granted the Grandparents’ Motion for Permissive Intervention. The circuit court

designated the Grandparents as intervening counter-plaintiffs to the custody action. On

July 28, 2014, the Grandparents filed the Complaint for Custody that had been attached to

their motion for permissive intervention. On August 4, 2014, Father filed his Answer to

the Grandparents’ Complaint for Custody and on August 18, 2014, Petitioner filed her

Answer to the Grandparents’ Complaint.

In July 2014, Petitioner’s biological daughter and the Ks moved into the marital

home with Petitioner and the Child. The Ks also brought several dogs and between fifteen

and twenty-five guinea pigs.15 Petitioner and Father both acknowledged that the Child had

14

Father filed a Response to Grandparents’ Motion for Permissive Intervention on

May 2, 2014.

15

M testified at the custody hearing that the Ks lifestyle was unclean and that they

were hoarders, but acknowledged she had never been to the Ks home and that she had only

(continued . . . )

17

a close relationship with Petitioner’s biological daughter, but Father expressed concern

regarding the closeness of the Child to the Ks, whom the Child was not related to.16

On July 14, 2014, pursuant to the pendente lite agreement, the BIA requested

Petitioner take a random drug test, but Petitioner did not comply. The BIA also requested

that Petitioner take another random drug test on August 25, 2014, which Petitioner took on

August 26, 2014. The BIA testified, however, that Petitioner never signed a release to have

her drug test results sent directly to the BIA. Instead, the drug test results were sent to

Petitioner, who then gave them to the BIA.

On September 4, 2014, Petitioner filed an Emergency Motion to Postpone/Continue

Custody Trial Scheduled for September 15, Motion for Order Permitting Discovery, and

Motion to Expedite based on the intervention of the Grandparents in the custody action.

On September 9, 2014, the Grandparents filed a Response in Opposition to Petitioner’s

Emergency Motion to Postpone/Continue Custody Trial arguing that Petitioner had actual

knowledge of the Grandparents’ allegations since April 24, 2014 and, despite the

Grandparents’ offering themselves to be deposed, Petitioner’s counsel failed to schedule

any depositions. On September 10, 2014, Father and the BIA both filed Oppositions to

Petitioner’s Emergency Motion to Postpone/Continue Custody Trial, and on September 11,

(. . . continued)

heard that the Ks were hoarders from Petitioner and Father in prior conversations they had.

M did not provide any testimony regarding the cleanliness of the marital home before or

after the Ks moved in.

16

Father testified that the Child referred to the Ks biological daughter, who is not

related to the Child, as his sister and Father believed that this was confusing for the Child.

18

2014, Petitioner filed a Reply to the Grandparents’ Opposition. The circuit court denied

Petitioner’s Emergency Motion to Postpone/Continue Custody Trial and Motion for Order

Permitting Discovery on September 12, 2014.

Also on September 4, 2014, – the same day that Petitioner filed her Emergency

Motion to Postpone/Continue Custody Trial – an incident involving the Child occurred at

his school. Prior to the incident, the Child had been increasingly disruptive during school.

The Child’s school principal testified that beginning around May 2014, when the Child

was in kindergarten, he refused to leave the kindergarten classroom with the other students

to attend “specials[]”17 on several occasions and would walk around the room, push desks,

become angry and his behavior began to escalate. To address these behavioral concerns,

the school had the Child run errands when the other children left for specials and then he

would meet them in the specials classroom. Additionally, over the summer, the Child was

enrolled in a summer-long camp that had been paid for by Petitioner, but Petitioner testified

that the Child had to be pulled out of camp early due to behavioral problems he was

experiencing, in combination with him wanting to spend more time with the Ks’ children.

Upon returning to school in late August, the Child’s behavior continued to escalate

and he began to leave class, run around the building, and show signs of anger.18 On the

17

“[S]pecials” refers to art, music, and physical education classes.

18

The principal of the school testified that

[The Child] continues to run around. He sometimes say[s] it’s a game, or

he’ll get very close to us and he gets very, he gets angry and he’ll, he’ll

squeeze his fists and his whole body tenses up and he clenches his teeth. And

(continued . . .)

19

afternoon of September 4, 2014, the Child’s behavior escalated to the point where he

kicked the assistant principal and he told the guidance counselor that he was so angry he

wanted to blow up the school, and he was going to make it bad for everybody at the school.

In response, the school determined that because the Child was showing such anger, was

not able to de-escalate, and made a threat against the school that a referral to the Crisis

Center was the appropriate course of action.

The school called Petitioner and asked her to come to the school to discuss the

Child’s behavior. Because the incident occurred on a Thursday near dismissal time, and

because Father had court-ordered visitation with the Child on Thursday evenings at the

Grandparents house, both Petitioner and the Grandmother arrived at the school around the

same time. The principal met with Petitioner alone, at her request, and they discussed how

the Child’s behavior had escalated throughout the day culminating in his becoming violent

and issuing a threat against the school. The principal explained that the guidance counselor

(. . . continued)

he’ll say, I don’t have to listen to you, you’re not the boss of me. I will give

him a direction, and I’ll say, you have a choice, you can return to your class,

or you can walk with me to the office. And he’ll say things like, or there’s a

third choice. And I’ll say no, you don’t have a third choice. These are the two

options. I’m not listening to you, you’re not the boss of me, I don’t have to

listen to you, I’m going to do what I want

So those are some of the experiences. When we’ve had in the counselor’s

office or in my office, again, he’ll show anger. He’ll not want to listen to us.

He has pushed furniture.

* * *

20

had a Crisis Center referral for the Child, and the principal encouraged19 Petitioner to take

the Child to the Crisis Center. The principal also told Petitioner that she needed to have

the Crisis Center complete the referral form and return the form to the school. After

meeting with the principal, Petitioner met with the guidance counselor and received the

Crisis Center referral. The guidance counselor explained to Petitioner that the school

prefers the student to go as quickly as possible to the Crisis Center after they are dismissed

from school.20 Petitioner did not take the Child to the Crisis Center and, instead, allowed

the Grandmother to take the Child with her for visitation. Petitioner did not tell the

Grandmother about the Child’s behavior or the Crisis Center referral she had just received.

Later that afternoon, Father learned of the Crisis Center referral from his attorney

and called the Grandparents to determine whether the Child had been taken in for an

assessment. The Grandmother did not know about the referral, but upon learning about it,

she took the Child to the Crisis Center where she met Father and the Crisis Center evaluated

the Child.21 Neither the Grandmother nor Father informed Petitioner that they had taken

19

The principal acknowledged at the custody hearing that she could not answer

whether she suggested or implied to Petitioner that Petitioner take the Child to the Crisis

Center immediately, but the principal also stated that she told Petitioner “[i]t’s very

important that [the Child] be seen by somebody. He’s making these types of threats to the

school, and to himself. We’re concerned about the safety of [the Child] and others.”

20

Petitioner testified that when she met with the guidance counselor, she was

directed to take the Child to the Crisis Center after he returned from visitation, because the

visitation was court-ordered and the guidance counselor did not want to interrupt what had

already been set up.

21

Petitioner testified at the custody hearing that she made arrangements to take the

Child to the Crisis Center after the Child returned from visitation. The record also indicates

(continued . . .)

21

the Child to be evaluated at the Crisis Center and they did not provide Petitioner with the

completed referral form. While the Child was at the Crisis Center, Petitioner attended the

Child’s back-to-school night, which the Grandfather also attended.

Petitioner testified that the Child did not return to school on Friday, September 5

because she had been referred to Children’s Hospital from the Crisis Center,22 and they had

not been “released from Children’s Hospital until 2:30 a.m. in the morning and the

attending pediatrician and the attending psychologist suggested that [the Child] should be

able to sleep in and have a day of rest at home.”23 A Crisis Center employee refuted some

of Petitioner’s testimony by stating that the Child had only been brought to the Crisis

Center once and it was the Child’s Grandmother who brought him in, with Father joining

them shortly thereafter. The record indicates that Petitioner did take the Child to Children’s

Hospital in Washington, D.C. the night of September 4, 2014 and that they arrived at the

hospital by 9:15 p.m. Petitioner stated that the Child was asked questions upon arriving at

the hospital and then they met with a psychiatrist, a pediatrician and a social worker. The

(. . . continued)

that the principal inferred from her conversation with Petitioner that Petitioner did not feel

she could take the Child to the Crisis Center until after the Child’s visitation with Father

was over. There is no evidence in the record, beyond Petitioner’s own testimony, that she

actually took the Child to the Crisis Center.

22

Petitioner testified that she had taken the Child to the Crisis Center between 8:30

and 8:45 p.m. on September 4, 2014.

23

Petitioner testified at the custody hearing that the principal had asked her to attend

back-to-school night so she allowed the Child to go with the Grandmother for visitation.

Petitioner’s testimony was refuted by the principal who stated she never told Petitioner it

was important for her attend the back-to-school night on September 4, 2014.

22

record also indicates that Petitioner testified that the Child returned to school on Monday,

September 8 and was present from the beginning of school until before lunch, but left due

to an issue with his health.24 The attendance records provided by the school indicated,

however, that the Child did not return to school until Tuesday, September 9.

The custody hearing in the present case was held from September 15 to September

19, 2014 and the circuit court issued its ruling orally on September 19. Petitioner’s

witnesses included Petitioner, the Custody Evaluator, Petitioner’s therapist, the Child’s

school principal, and the school guidance counselor. Father and the Grandparents’

witnesses included Father; both Grandparents; M; the psychologist who worked with

Petitioner, Father, and M in couple’s therapy; the Crisis Center employee who completed

the Child’s assessment; the Grandparents’ neighbor; and a member of the same church the

Grandparents attended.

In addition to the facts discussed, supra, testimony from the custody hearing

revealed that the Grandparents were heavily involved in the Child’s life. Prior to the

separation, the Child spent a substantial amount of time at the Grandparents’ house,

including several times a week and occasional weekends based on the drug and sexual

relations schedule organized by Petitioner, Father, and M. After the separation, the Child

continued to see the Grandparents regularly. The Child also had his own room at the

24

The school guidance counselor testified that on the morning of Monday,

September 8 Petitioner called her to tell her the Child had been aggressive toward her and

she felt it was unsafe for the Child to be at school.

23

Grandparents’ house where he kept his toys and books purchased for him by the

Grandparents.

The Grandmother noted in her testimony that she and the Grandfather were the

caretakers for the Grandfather’s bedridden father and for the first eighteen and a half years

of their marriage they drove to New Jersey every third weekend to help the Grandfather’s

mother care for the Grandfather’s father. The Grandmother also stated they cared for the

Grandfather’s mother in their own home while simultaneously caring for the Child, and

that the Grandfather’s mother suffered from a litany of ailments, including Alzheimer’s,

lymphoma, neuropathy, cataracts, and deafness.

Over the years, the Grandparents also involved the Child in a variety of activities,

including enrolling him in swimming lessons, arranging for the Child to attend Little

Gym,25 and taking him to church on Sundays. The Grandparents also took the Child on

day trips to Brookside Gardens and the county fair, and Petitioner allowed the Child to go

on several vacations with them, including, most recently, to the Outer Banks in the summer

of 2014. The record also reflects that although the Grandparents had previously taken the

Child to see family in Mississippi during the Child’s spring break in 2013, Petitioner

refused to allow the Child to go to Mississippi with them during his spring break in 2014.

The Grandparents would also participate in the Child’s doctor’s appointments, at times

25

The Grandparents arranged for the Child to attend Little Gym once a week from

September 2011 to February 2012. At Little Gym, the Child would do stretching activities,

tumbling, climbing, and balancing.

24

attending with Father and Petitioner, and sometimes taking the Child to the doctor’s

appointments alone.

When the Child was two years old, the Grandparents also gifted the Child with

tuition for one year at the Silver Spring Day School (“SSDS”),26 and provided daycare

during the afternoons while Petitioner and Father were at work. After the Child’s first year

at SSDS, Petitioner found and enrolled the Child in a different program through the

Montgomery County Childcare Association (“MCCA”), with financial contributions made

by the Grandparents. During that next year, the Child split time between SSDS and

MCCA, spending three days a week at MCCA and two days a week at SSDS. The

Grandparents volunteered their time approximately once a month as teaching assistants at

SSDS while the Child was enrolled there, and when the Child began attending MCCA, the

Grandparents continued to volunteer their time, reading and reciting poetry to the

children.27

26

The Silver Spring Country Day School is a yearly preschool program that runs

from 9:30 a.m. in the morning until initially noon, and after the enrollees adjust, to 1 p.m.

27

At the hearing, Petitioner testified that the Child repeatedly came home from the

Grandparents’ home with rashes or nosebleeds, but the Grandparents did not inform

Petitioner of the source of the problem. Petitioner acknowledged that the Child had

historically experienced nosebleeds. Petitioner also testified that after the separation, she

became concerned regarding aspects of the Child’s safety in the care of the Grandparents

and the Grandparents repeated failures to communicate with her regarding the Child.

Petitioner acknowledged, however, that after the separation she also stopped

communicating with the Grandparents regarding the Child’s care and medical needs.

25

The record from the custody hearing also reflected that Petitioner was a responsive

parent and actively sought to address the Child’s escalating behavior.28 The Child’s school

principal testified that beginning the second week of school, Petitioner asked questions

regarding the Individualized Education Plan (“IEP”) process as a way to address the

Child’s escalating behavior because she felt the Child needed more one-on-one or

individualized attention. Additionally, at the time of the custody hearing, the school was

evaluating how best to help the Child manage his behavior, and had implemented a

behavior contract to begin collecting data on the Child’s conduct.29 In addition to the

28

Father testified that Petitioner could not handle the Child when she was alone with

him and would become frantic if left alone with the Child for long periods of time. Father

also testified that he usually came home to Petitioner and the Child screaming at each other

and if he left, Petitioner would beg for him to hurry back as soon as possible. Father also

stated that Petitioner could not discipline the Child due to her previous childhood trauma,

and she had difficulty changing the Child’s clothes or bathing him.

M testified that she observed Petitioner yelling at the Child over seemingly minor

incidents such as forgetting to throw away the recycling materials. M also stated that

Petitioner and the Child would get frustrated with each other, Petitioner had issues

controlling the Child, the Child refused to listen to her, and that she needed help taking

care of him.

29

The principal explained:

[PRINCIPAL]: So [t]he first step in the process is calling a screening. So

what we do is we come to the table with parent input, teacher input, and

observation from another teacher in the building, and an educational

history. The special educator is involved in that screening meeting, and

at the table we decide the next steps. Whether we decide that we need

educational testing, psychological testing, or anything else.

[PETITIONER’S ATTORNEY]: And will that be for more than just whether

an IEP is appropriate or not?

(continued . . .)

26

evaluative process, Petitioner also requested that the Child be enrolled in the Linkages to

Learning program.30 The principal also testified that Petitioner attended almost every

(. . . continued)

[PRINCIPAL]: That is to determine the next step. So maybe –

[PETITIONER’S ATTORNEY]: Okay

[PRINCIPAL]: – it’s an intervention program. Maybe it’s a behavior

contract, maybe it’s further testing for the special education identification

process. But all of that is talked at, about at that table during the screening

meeting.

* * *

[PRINCIPAL, cont.]: – can I say – we have started the process of a behavior

contract. So with any interventions, that takes about six weeks to collect

that data. So we have started a behavior contract to, to collect data on his

work completion and following, excuse me, following directions and

remaining in his assigned location. So that data collection has just started

at the beginning of last week ….

* * *

[PETITIONER’S ATTORNEY]: And on this entire process you’re talking

about, you’ve had the discussion with [Petitioner]?

[PRINCIPAL]: We’ve discussed about the behavior contract.

* * *

[PETITIONER’S ATTORNEY]: And has [Petitioner] cooperated and

provided all the information and disclosures and signatures that’s

necessary?

[PRINCIPAL]: As far as I know, yes. I asked [the Child’s teacher], are the

contracts going home and coming back, and she said yes. And sometimes

there are notes from [the Child’s teacher], and I think [the Child’s teacher]

said sometimes there are notes from [Petitioner].

* * *

30

The school principal explained that the Linkages to Learning program is provided

to schools that have a high number of students living in poverty and provides wrap around

services for the student and the family. The program has a mental health provider, case

manager, and a coordinator so if the family is displaced the program can support the needs

of the family.

27

school function, she was very responsive when the school contacted her regarding the Child

and would come to the school when requested “[a]t the drop of a hat.”31 Petitioner’s

therapist also testified that approximately fifty percent of Petitioner’s treatment involved

answering Petitioner’s questions about parenting, and that Petitioner sought her advice and

referrals for a qualified therapist to help the Child.32 The record also indicates that

Petitioner paid for the Child’s before and after care at MCCA, totaling $405 per month,

and when the Safe Start program ended she sought to re-enroll the Child in the program

because she felt it was beneficial to the Child.

In their testimony, the Grandparents both acknowledged that Petitioner was

involved in the Child’s care. The Grandfather noted that although he had discussed getting

31

Petitioner’s responsiveness to the school was corroborated by the school guidance

counselor who testified that every time she had a concern with the Child and she called

Petitioner, Petitioner was “very responsive and ready to come up to school whenever need

be.”

32

The record indicates Petitioner and her therapist had located a child psychologist

they felt fit with the Child’s needs, and had planned to take the Child to be examined on

September 11, 2014. The appointment was cancelled because Father did not consent to the

Child being seen by that psychologist. Father stated that he refused to give his consent

because he felt the service recommended by the BIA – the National Family Resiliency

Center (“NFRC”) – was a better fit. The NFRC provides counseling and educational

programs to help children cope, heal, and navigate through divorce and other family

transitions. See NAT’L FAMILY RESILIENCY CENTER, https://perma.cc/4R2J-ECBD (last

visited: June 23, 2017). Father testified that he had repeatedly called the NFRC and had

spoken to the executive director twice. The BIA noted that, although she had provided the

contact information for the NFRC to Petitioner on July 30, 2014, Petitioner did not contact

the NFRC until August 28, 2014. Additionally, although the BIA presented evidence that

an appointment had been scheduled for the Child on September 9, 2014, Petitioner testified

that she never received notice that the appointment had been scheduled and, therefore, did

not take the Child in for the appointment.

28

back-to-school items for the Child with Petitioner, she had “pretty much taken care of most

of those items.” The Grandmother testified that when the Child’s previous part-time

caretaker retired, Petitioner identified another part-time caretaker that the Child stayed with

two days a week. The Grandmother also acknowledged that Petitioner organized all the

Child’s doctor’s appointments and then coordinated the dates with the Grandparents. The

Grandmother also noted that although she and the Grandfather hosted several of the Child’s

birthdays, the parties were planned with Petitioner’s and Father’s input and Petitioner and

Father hosted, planned, paid, and prepared the Child’s fourth birthday party at the marital

home.33

The record also indicates that Petitioner was gainfully employed and worked a flex

schedule, but her hours were mostly Monday through Friday from 9:00 a.m. to 5 p.m.

Petitioner acknowledged that the Child gets off school at 3 p.m. and that when he is in her

care he goes to before- and after-care until she is able to pick him up. Petitioner testified

that she typically dropped the Child off in the morning between 7:45 and 8 a.m and would

pick him up anywhere between 5:30 and 6 p.m. on days that he was in her care. Petitioner

noted that on Tuesdays and Thursdays the Grandparents pick the Child up from school at

3:30 p.m. for court-ordered visitation and they drop him off at Petitioner’s home at 8 p.m.34

Petitioner testified that after the Child’s behavior on September 4th, she had been making

33

Despite the acknowledged role that Petitioner had in the Child’s life, the

Grandmother testified that she did not think that either Petitioner or Father was “prepared

financially, socially, morally, to raise [the Child] in a[n] environment that will help [the

Child] to be the person that he has the potential to be.”

34

The Grandparents also have visitation with the Child every other weekend.

29

it a priority for her to take the Child to school when school starts and pick him up when

school lets out so that he did not have to attend before- or after-care. Petitioner stated she

was able to adjust her schedule due to work-from-home opportunities, but that she did not

know whether she would maintain that schedule, she stated it would depend on the Child’s

needs.

At the conclusion of the custody hearing, the circuit court issued an oral ruling. The

hearing judge found that Father was an unfit parent and concluded that: (1) Father’s

commitment to remain drug free was not clear; (2) the Child could be exposed to the

polyamorous and sadomasochistic activities that Father continued to engage in; and (3) the

Child would continue to be exposed to violent fights between Father and Petitioner.

The hearing judge also found Petitioner was an unfit parent and that extraordinary

circumstances existed sufficient to rule that the Grandparents should receive both physical

and legal custody of the Child. In finding that Petitioner was an unfit parent, the hearing

judge concluded:

With respect to [Petitioner], she lied throughout this case. Now, you can

make an argument, was it [Petitioner] lying or was it Morgan or was it him –

I don’t know. But it was certainly the woman on the stand and it was certainly

the woman that had all these other incidents before. And she lied about drug

usage and testing. She said she was forced to have sex with [M]. That’s been

disproved. She lied about her different identities. That’s been disproved.

She’s been caught in all these lies. She lied about taking her son to school on

September 8th. And these are so many things that she’d have to – if she was

intelligent enough – think well, I’m going to get caught on those. I either took

the child to school on September 8th or I didn’t. And then she said, well, I

took him there for part time.

And somebody that continuously lies under oath and lies to the [BIA] and

doesn’t do all the things that the [BIA] wants her to do – once she’s under

the microscope, you’d say, wow, how could she ever be trusted at a later

30

date? And she’s under oath when she’s saying these things. She was forced

to take these drugs – I don’t find that at all. I find she clearly took the drugs

voluntarily. In fact, her husband was sending her some research on some of

these drugs. It seems like that was one of their big hobbies, finding new drugs

and new ways to trip or get high or hallucinate – all against the law, by the

way. All detrimental to the marriage, not to even mention what it does to

raising a child.

And whether or not she has [DID] or not, I don’t know. But I agree with

[Father’s attorney] that if she has it, it’s a big problem. If she doesn’t have it,

it’s a big problem. Because she’s acting as if she does. And she’s

impersonating several different people.

And one that was never rebutted – that Morgan might hurt the child. She

talked about visions of Morgan cutting the baby out of her stomach. And then

we hear these things that haven’t been rebutted with respect to that she

couldn’t see her son naked or in the shower, which is about as natural as

possible for a mom with a little guy, bathing him – even before they’re even

ready for showers. Weird, odd, bizarre, troubling – yes, all of the above.

And you throw in this other family living in her home? How thoughtful of

that is her son when she’s got also her own natural daughter and adoptive

mother there as well and then the little boy, [the Child], is calling both of

them his sisters. And then you’ve got the other two living in there. And then

you throw in all the animals. It’s about as chaotic as possible. And I know

full well why [Petitioner] didn’t want the [BIA], to see the inside of that

house. She probably would have got sick if she had walked in there. And

that’s where you’re raising a child and two girls and a little boy?

And there again, you would think – all right, here I am a mom or a dad. I’ve

got the court watching me. I’ve got the [BIA] – I want to do everything I

possibly can to at least fool people, even if I’m not sincere. But she did just

the opposite. It was business as usual with her. In fact, she made it worse.

Her selfishness was then passed on to [the Child] even more when he

couldn’t take the trip to Mississippi with his grandparents. And the

grandparents – she had no axe to grind with them.

And the incident on September 4 – well, there’s a total manifestation of how

much trouble this guy is in. Because it’s not typical. He’s in major, major

trouble when you’re threatening to blow up a school and punch a vice

principal at the age of six in the stomach? That’s unheard of. Those are the

kids that we send here to the Finan Center to give them intense examination

when they’re in the juvenile delinquent system. These are kids that probably

31

have little chance of making it, because they don’t have a family to go back

to for the most part.

And yes, on that day any mother worth her salt would tell first of all the

grandparents and do everything she could to address the problem. My son

did what? We’ve got to address this right now. But hand him off to the

grandmother and not say anything? That’s just bizarre. What kind of love

does she have for her son? What kind of interest does she have for the son?

It’s like my shift’s over, somebody else worry about it. I’ll punch out. I’m at

the factory. I didn’t finish what I was supposed to do today, but the next

worker can take over. Grandma can go take over. That’s the attitude she

displayed.

Then you add – and I don’t believe her also that she’s changed the work

schedule that she has, because I don’t believe anything else she said. So that

child is dropped off at 7:45 to 8:00 every morning and picked up 5:30 to 6:00.

If it is truly from 8:00 to 6:00, that’s ten hours a day for a kid that’s in major

crisis. I would like to think a parent would quit their job if they had to, to

deal with that problem with a child. It’s no different than if that child was in

the hospital with two broken arms, two broken legs, or in a coma. You have

to make adjustments.

I don’t see any tendency on either one of them – but we’re talking about the

mother – to make the adjustment that that child needs. That child is in the

mental emergency room or should be right now. And that’s the way she

should be addressing it. And most mothers would try to move heaven and

hell to help their child, to do everything they possibly could. But not say

anything? Now, I assume she went to Children’s [Hospital]. I don’t know

whether she went out to the county for that or not. But in any event, I don’t

think there was significant follow[-u]p. And anything she did do in the way

of getting some counseling or looking into anything else – I think she was

getting good instruction from her attorney, but obviously not following other

things. I think if left to her, she wouldn’t do anything. Just drop him off at

school, he runs around in school, he flips over wastepaper baskets, so what?

And another thing – she makes excuses for everything. Everybody – it was

somebody else’s fault for everything in her testimony. Never took the blame

for anything. And I heard from the grandparents all the things that I would

expect to hear from mom. I didn’t hear how she said, you know, I just love

to put him to bed at night. I like to tuck him in. I like to read him a story. We

take little walks together. I like to go through colors with him and numbers

with him. He loves to wear this particular sweatshirt. You didn’t hear any of

that. I didn’t see any really love or total attachment. I mean, this is her flesh

32

and blood, her own son. Most mothers would give up their lives for their

children in a tragedy. A child fell into a river, they’d dive in. I think in this

case, I don’t know what she’d do. She might leisurely walk over and make a

call. I don’t know. But what I’ve seen from the time this child was born, she’s

not even acting in the way a babysitter would act. Because if she were the

babysitter and she went to school on the fourth and the teacher told her what

happened or daycare provider, she’d be calling everybody she possibly

could. She’d be calling the mother, she’d be calling the father, she’d be

calling the grandparents. Did you hear – let me tell you what the principal

said. Schools can’t make you do anything now, because that’s the way the

system is. But certainly when they send a kid to the [C]risis [C]enter, it’s

major. It’s major.

So we’ve got a mother not only taking drugs – and I find that she still takes

them or she’s still ready to take them. And she has no appreciation what

they’ve done. I don’t find any evidence that she feels terrible about doing all

these sex things with her child in the house, because she blames it on her

husband. She blames [M] on her husband. She blames the drugs on her

husband. She blames the sex on her husband. She says this is a – everybody

is making up these personalities. When [the couple’s therapist] testified, who

did everything she could to help [Petitioner] – she even said that she had

personalities.

So I find that the mother is an unfit person to have custody of this little boy.

There’s no ifs, ands or buts. It’s not even a close call. It is overwhelmingly

strong and I don’t even know if I mentioned everything. But I adopt

everything that [Petitioner’s] attorney, the grandparents[’] attorney, and the

[BIA] have said as well. And they all take that position, and the [BIA], who

is independent here, makes that finding.

And I truly thin[k] [the Grandparents] are independent, too in finding that the

parents are unfit. I value their opinion because they’re older, they’re wiser,

they’re stable. And I think they really if anything would lean towards their

son or helping him out. But I think they were extremely objective because I

think their total focus is on their grandson.

* * *

In determining that exceptional circumstances also existed in this case, the hearing

judge found that:

33

So I’m also going to find – because this case cries out for it as well – I know

it’s an or, but the Court of Appeals and [Court of] Special Appeals, I don’t

know, one day they ma[y] wake up and say it should be and. I find that there’s

extraordinary circumstances that exist here which are significantly

detrimental to the child remaining in the custody of the mother and/or the

father. And I’ve given all those reasons – the drugs, the sex, the craziness in

the house, the different relationships, the lack of interest in the mother, the

mother lying – all of those things are factors for both.

So once I find that – oh also, factors laid out by the Court in [Ross v. Hoffman,

280 Md. 172, 372 A.2d 582 (1977)], exceptional circumstances, length of

time the child has been away from the biological parents – well, the child is

away whenever they were going to do some tripping. In fact, it was such a

big deal, she wrote it on her calendar. They spent more time it seems to me

on their sex and drugs and writing down stuff and going to [the couple’s

therapist] than they did on this little guy, [the Child].

So I’ve considered that. I’ve also considered the age of the child when the

care was assumed by the third party, which was from the time of birth,

basically. At least after mom went back to work after the first year. The

possible emotional effect on the child in a change of custody – the Court has

considered that. The period of time which elapsed before the parents sought

to reclaim the child – the Court has considered that. The nature and strength

of the ties between the child and the third party custodian – the Court has

considered that. And I find they’re extremely strong with the grandparents.

The intensity and genuineness of the parents’ desire to have the child – I

don’t find that there’s intensity and genuineness on the part of [Petitioner]. I

really don’t. It’s sad because she’s the mother. The stability and certainty as

the child’s future in the custody of the parents. Well, I think it’s clear. He

would continue with instability and he would certainly fail. He’d be in crisis.

He’d be out of that public school system probably for good.

Let’s look to the grandparents. So I find the exceptional circumstances exist.

* * *

Upon determining that exceptional circumstances existed in this case, the hearing

judge next considered the fitness of the Grandparents to have custody. The hearing judge

found that:

34

With the grandparents, there’s total stability. They’ve proven it over their life

and they’ve proven it with their testimony. I find them to be sincere, genuine,

rock-solid people, the kind of people that you want raising children.

I think they were outstanding grandparents, but now they’re going to be

asked to actually serve as parents. But it won’t be the first time. Because the

parents have relied on them to do a lot of the parenting things throughout this

little boy’s life. A lot of financial things … And the parents were just content

to let them do that. I don’t see any real pride there. You’d think at some point

you’d say, dad and mom, you’ve done enough. Or we need to do more.

You’ve got the grandfather – and I find the grandparents will give this little

boy the guidance he needs which he’s not getting from his mother. They’ll

give him the time that he needs. They have the time now. And he needs time.

Not only does he need time, he needs quiet time, which he won’t get with his

mother. Anything but – it’s chaotic, it’s bizarre, I’m sure it’s loud. And he’s

just – as I said, he just happens to be there along with everybody else.

His problems would be addressed with his grandparents, which are severe

problems. And we’ve already addressed how they’ve manifested themselves

to date.

They’ll also have – the parents will not have to use before and after care.

That’s a significant part. The more time this child spends with parents or

grandparents and the less time he spends with other people watching him, the

better. You can have the best before and after care program in the United

States. It’s not the same as a mom or a dad or a grandparent who actually is

really attached to the children. I don’t see any evidence that mom is either

able to or willing to completely change her schedule. She said she changed

it last week. I asked her what she’s going to do in the future. She doesn’t

know.

Now financially, she may not be able to do that. But that’s still a factor.

That’s ten hours a day. The[n] you add the time that when she gets home,

she’s got to fix dinner – if there [is] such a thing as a sit down dinner at that

house – and feed the dogs, clean up, and change her clothes – maybe do some

things on her own. Those all take time away from this little boy. He’s

neglected. There’s no doubt about it.

The grandparents have also added the religion to his life, which is not a must,

but it’s another piece of structure in his life which he likes. And they’re

raising him and he’ll learn good values and good morals in a Christian

church. I’m not saying it’s a must. It’s not a necessary. It’s not a major factor.

35

But it shows another time that they spend with him and they do that with him

every Sunday. And he likes it and I find that can only be helpful to him.

The [grand]parents don’t smoke dope, the [grand]parents don’t have all these

crazy things. They have time for this little guy. They’re well educated people.

They know what it takes to be a productive, happy, respectful young man.

They’re dealing with some really bizarre things right now with this little boy

acting up when he gets up. I suspect they know that there’s probably more of

that down the road. I think they have the wherewithal to deal with it, either

professionally or with themselves. They know what values are. They know

what morals are. They know what goals are. They know how important it is

to sit down with him and not just say do homework, but to teach him about

things. The grandfather has nice little things that he does with him. He likes

to build things. The grandfather is a pretty talented guy with an engineering

background. Those are all wonderful things for this little boy to learn.

The [grand]mother is a former math teacher – I thought the way she handled

that situation with [the Child] was exactly how a mother should handle it or

a well-intentioned and a hands-on grandmother. I think they will give him –

they will have the patience and understanding to deal with him as opposed to

bringing in two grandparents from Mississippi that never met him and say,

well, they’re the grandparents, they can take care of him. They know him

better than the mother does. They know this little boy better than the father

does. And they’re honest. And they’re willing to keep the parents in this little

boy’s life. They know it is important – at least until they prove that their

parental rights should be terminated – and we’re not there yet – and this case

should have been a CINA case from the start. But unless their parental rights

get terminated they’ll keep the mom and dad in their lives and do the best

they can.

They are, I find, very fit and proper people to have custody. We’ve got to

look for purposes of the three judge panel, tick off some factors on

[Montgomery County Dep’t of Soc. Servs. v. Sanders, 38 Md. App. 406, 381

A.2d 1154 (1977)], but the fitness – certainly they’re both very fit to have

custody. Now, their age is up there. It is. But there’s no indication that they

have any illness and they don’t have any illnesses to deal with.

One thing I was really impressed with, the [grand]mother said, we’re

caretakers, and they talked about the relative up in New Jersey, how they

made that commitment every second week or third week of the month.

* * *

36

What I’m saying is these people will do what it takes to do for this little boy.

And if the little boy does fail, it won’t be because he’s with his grandparents.

The character reputation of the grandparents I think is top drawer. The desire

of the grandparents to have custody is clearly there. I find that they really

want to have custody by default because they know that’s his only hope. The

preference of the child – I don’t consider that at age six. Opportunities for

the future – he’s got unlimited opportunities with his grandparents,

financially, educationally, medically, emotionally – all of the things that a

child needs to be successful, to be happy, to be healthy, to have friends –

they’ll make sure he gets on the right teams or clubs or activities. They’ll

find his interests. They’ll expose him to a lot of different things that little

boys need to be exposed to. And they’ll make the right selection. They’ll give

him the right guidance. They’ll do all the things that a good mom and good

dad should do.

The age and health of the child – well, fortunately, he’s not 16. He’s not

uncontrollable physically. He’s still easy to manipulate and you can use a lot

of psychological warfare on him, even though he’s got some problems. He’s

still a little boy and you can trick him, which is a good thing.

They’ll teach him respect for others, they’ll teach him how to act at school

and deal with other people, all the things that they know, because they know

from experience. Unfortunately, the mother and father don’t have that now.

And it might be the drugs. Maybe they will. I think dad wants to. Who knows

with mom, because she lied so much, who knows?

The residence of the [grand]parents – they’ve got a big house, nice house,

more than [the Child] needs. I mean, a little boy, you can put him on the floor

in the den. But he’s got his own little room, he has his own little things. He

can build things, he has a nice quiet place to do his homework. Where in the

lord’s name does he do his homework [at the marital home]? Is there any

homework? I don’t know. In the first grade, you don’t get much, but you will

later on, and there is some.

So under [Sanders] they fit all the categories. As I said, he’s six. And maybe

mom and dad later on will improve. Dad has made some great steps in it.

And I keep coming back to – hey, [Petitioner’s] kind of blasé about the whole

situation. It’s really interesting. And she turned on the very people that have

been such a rock solid financial benefit and such a great resource for their

son. I mean, they didn’t ask for money. They did all of these things because

they love their little grandson. And the thanks she gives them is well, I think,

37

you know, well they don’t use the right car seat. I mean, come on. Let’s find

something we can attribute blame to,

So if she had custody – [Petitioner] – I think the grandparents would be out

of the picture. There’s no doubt about it. And I think there would be a fight

over visitation with the father. And that would be one of the worst things that

could happen to this little guy. He needs those people. Thank [G]od for

grandparents in this case. And believe me, I lean heavily towards parents. I

know the grandparents do, too. In the order of things, that’s who should be

raising these guys. But fortunately, you folks are there.

* * *

The hearing judge subsequently awarded physical custody of the Child to the

Grandparents. The hearing judge granted visitation to Petitioner on every other weekend

from Saturday at 9:00 a.m. to Sunday at 7:00 p.m., with no overnights, but every other

Sunday of the visitation weekends, Petitioner’s visitation hours were modified to 12:30

p.m. to 7:00 p.m. so the Child could continue to attend church services with his

Grandparents. The hearing judge also stated he would not order drug counseling for either

Father or Petitioner, finding that if the parties “want to keep smoking dope and taking

hallucinatory drugs and having as many sex partners as you can – well, great. That’s your

life. But we’re not going to let it impact on this little guy. If you want to break the law, you

break the law.”

On September 30, 2014, the hearing judge entered an interim order granting sole

legal and physical custody of the Child to the Grandparents, with both parents retaining the

right to visitation. The interim order also required Father to pay child support in the amount

of $500 per month directly to the Grandparents, and stated a hearing would be set before a

magistrate to determine Petitioner’s child support obligations. On October 7, 2014, the

Grandparents filed an Emergency Motion to Modify and Limit Petitioner’s Access to the

38

Child, requesting the circuit court modify the Interim Order to grant the Grandparents

discretion in determining the frequency and duration of Petitioner’s access to the Child.

The circuit court held an emergency hearing regarding the Grandparents’ Motion on

October 17, 2014, and on October 28, 2014 issued a Second Interim Order granting the

Grandparents’ Emergency Motion and modified Petitioner’s rights to visitation.

On December 16, 2014, the circuit court entered a Final Order in the custody case that,

inter alia, outlined the visitation schedule for the Child during holidays and summer break,

and apportioned the payment owed to the BIA between Petitioner and Father. The Order

also stated that “this Court has considered the issues adjudicated, the claims brought, the

need to defend against those claims, and the financial status of the parties.” Also on

December 16, 2014, a notice was sent to the parties scheduling a hearing regarding child

support for March 11, 2014.

II. Child Support Proceedings

On December 30, 2014, the Grandparents filed a Motion for Child Support in the

circuit court seeking child support from both Petitioner and Father to cover the care of the

Child, including “extraordinary medical expenses” that ranged between $1,400 and $2,000

per month for the Child’s psychiatric care. On February 26, 2015, Petitioner filed a

Response in Opposition to the Grandparents’ Motion for Child Support. A hearing was

held on March 11, 2015, where a magistrate considered whether child support should be

paid by Petitioner and Father to the Grandparents for the care of the Child.35 On March

35

Father filed an Answer to the Grandparents’ Motion for Child Support on the

morning of the hearing – March 11, 2015.

39

24, 2015, the magistrate issued his findings of fact and conclusions of law regarding child

support. The magistrate acknowledged that an order titled “Final Order” had been entered

by the trial court on December 16, 2014, but concluded that, because the order did not

address child support, it could not be a final disposition of the case pursuant to both

Maryland Rule 2-60236 and our decision in Rohrbeck v. Rohrbeck, 318 Md. 28, 566 A.2d

767 (1989).37

36

Maryland Rule 2-602 states:

(a) Generally. Except as provided in section (b) of this Rule, an order or

other form of decision, however designated, that adjudicates fewer than

all of the claims in an action (whether raised by original claim,

counterclaim, cross-claim, or third-party claim), or that adjudicates less

than an entire claim, or that adjudicates the rights and liabilities of fewer

than all the parties to the action:

(1) is not a final judgment;

(2) does not terminate the action as to any of the claims or any of the

parties; and

(3) is subject to revision at any time before the entry of a judgment that

adjudicates all of the claims by and against all of the parties.

(b) When Allowed. If the court expressly determines in a written order that

there is no just reason for delay, it may direct in the order the entry of a

final judgment:

(1) as to one or more but fewer than all of the claims or parties; or

(2) pursuant to [Maryland] Rule 2-501(f)(3), for some but less than all of

the amount requested in a claim seeking money relief only.

37

In Rohrbeck, we stated that for a ruling to “constitute a final judgment, it must

contain the following three attributes: (1) it must be intended by the court as an unqualified

final disposition of the matter in controversy[;] (2) unless the court properly acts pursuant

to Maryland Rule 2-602(b)[,] it must adjudicate or complete the adjudication of all claims

against all parties[;] and (3) the clerk must make a proper record of it in accordance with

[Maryland] Rule 2-601.” Rohrbeck, 318 Md. at 41, 566 A.2d at 773. The magistrate

concluded that because the Final Order did not adjudicate the issue of child support

between the parties it could not be considered a final judgment.

40

The magistrate also rendered the following findings of fact and conclusions of law

in recommending that both Petitioner and Father pay child support to the Grandparents:

So, now having decided that child support to be paid by [Petitioner and

Father] were properly before me on March 11th, the questions to be answered

are as follows. What is the appropriate amount of child support? Two, how

is that amount of child support to be determined? And three, when do the

child support payments begin? Now, with regard to determining what the

appropriate amount of child support is, I first just want to note that under the

law, and we all know this, each parent has a legal obligation to financially

support their children. Section 5-203 of the Family Law Article specifically

provides that the parents of a minor child are jointly and sever[ally]

responsible for the child’s support and care, nurture, welfare, and education.

Then, in section 10-203 of the Family Law Article, it states a parent may not

willfully fail to provide for the support of his or her minor child.

And, these two statutory provisions that I’ve noted are supported by the Court

of Appeals in the [Drummond v. State to Use of Drummond, 350 Md. 502,

714 A.2d 163 (1998)] case … [where] the Court of Appeals stated, the duty

of parents to provide for the maintenance of their children is a principle of

natural law, an obligation laid on them, not only by nature itself, but by their

own proper act in bringing them into the world, by begetting them. Therefore,

they have entered into a voluntary obligation to endeavor as far as in them

lies that the life which they have bestowed shall be supported and preserved.

So, there’s no question that [Petitioner and Father] are obligated under the

law to financially support [the Child].

Now, with regard to the amount of child support, the question in my mind

was how was child support to be determined when the child has been placed

in the custody of a third party and not with one of the biological parents?

First, I note that Family Law Article section 12-202, which all the attorneys

are familiar with, which is the Maryland Child Support Guidelines, provides

that quote in any proceeding to establish or modify child support, the court

shall use the Child Support Guidelines. I could not find any case law, and

none was presented to me, establishing whether the guidelines must be used

in a case with facts such as the facts which are presented to me here.

However, there is case law which established that when a child is placed in

the custody of a government agency, the parents are still obligated to pay

child support, and the amount to be paid is to be established using the

Maryland Child Support Guidelines.

41

In a 1993 case, the Court of Special Appeals in [In Re Joshua W., 94 Md.

App. 486, 617 A.2d 1154 (1993)] noted that the General Assembly intended

that the Child Support Guidelines be used in all child support cases, including

those like the one in [Joshua] involving government-financed child care

when the child has not been placed in the custody of either of the biological

parents. The Court of Special Appeals in [Joshua] noted that the Child

Support Guidelines were most often used when one biological parent or the

other had physical custody. Dispute [sic] this emphasis on custodial and non-

custodial parents, and sole and shared physical custody in the guidelines,

there is nothing in the statute or its legislative history to suggest that the

General Assembly intended that Child Support Guidelines only be applied to

the usual child support cases. The Court of Special Appeals concluded that

the guidelines were to be used in all cases when child support was at issue.

And then, just recently, I guess nine years ago now, the Court of Special

Appeals decision was followed by the Court of Appeals in [In re Katherine

C., 390 Md. 554, 890 A.2d 295 (2006)]. So, I’m required to use the

guidelines.

The next question is when does the amount of child support begin for the

parents? Now, with regard to modification cases, it’s clear under Family Law

Article 12-104,[38] and basically it states that it has been shown that there has

been a modification of circumstances that are material. And then, the statute

clearly states that the amount of the new child support can only begin from

the date of filing. With regard to an initial filing or initial request for child

support, as would be the case with regard to [Petitioner], the [Grandparents]

argued that the court has the authority to make a child support award prior to

the date of the first pleading. And again, the first pleading in this case seeking

child support was December the 30th, 2014.

38

Family Law Article §12-104 states:

Modification of child support

(a) The court may modify a child support award subsequent to the filing of a

motion for modification and upon a showing of a material change of

circumstance.

Modification not retroactive

(b) The court may not retroactively modify a child support award prior to the

date of the filing of the motion for modification.

42

I was not able to find any case law or statutory authority to support the

[Grandparents’] position with regard to starting child support prior to the date

of the filing requesting the child support. I note that under [Family Law

Article] section 12-101(a)(3), it states that for any other pleading that

requests child support, the court may award child support for a period from

the filing of the pleading that requests child support. I could not find any

cases directly on point with this, but there is statements made in appellate

decisions, such as in [Krikstan v. Krikstan, 90 Md. App. 462, 601 A.2d 1127

(1992)], says it is within the discretion of the chancellor to determine whether

to make the award retroactive to the time of filing. And, I think that statement

suggests that we are not to go prior to the date of the filing. And, I think the

language in [Family Law §]12-101(a)(3) also supports that child support may

be awarded from the filing of the pleading.

Then, there was an argument made by counsel that if it was determined that

the guidelines would be the appropriate manner in which to determine the

amount of child support to be paid by the parties, that I deviate from those

guidelines. The attorneys know, this is well-stated or well-known, that the

amount of child support called for under the guidelines is presumed to be

correct. The presumption can be rebutted by evidence that the application of

the guidelines would be unjust or inappropriate in a particular case. And then,

if I am to deviate from the guidelines, I have to state what the amount called

for under the guidelines would be, and then also how the deviation benefits

the children.

So, those are the conclusions of law that I’m finding in this case.

* * *

The magistrate then assessed Petitioner’s and Father’s income and determined

Petitioner’s annual income from her employment at Direct Energy was $37,605.24 and her

actual monthly income was $3,134. The magistrate determined that Father was

unemployed, having previously worked at Geotech until he was laid off, and he received

$1,820 per month in unemployment benefits. The magistrate took judicial notice that

Father was under a separate child support order in the amount of $475 per month for

another child. The magistrate also acknowledged that the Child had been under the care of

43

both a psychiatrist and psychologist since 2014, and had been diagnosed with Attention

Deficit Hyperactivity Disorder (“ADHD”),39 an anxiety disorder, and operational defiant

disorder (“ODD”).40 The magistrate concluded – based on the psychiatrist’s testimony at

39

The DSM-V states that the essential feature of ADHD is “a persistent pattern of

inattention and/or hyperactivity-impulsivity that interferes with functioning or

development.” Am. Psychiatric Ass’n, DIAGNOSTIC AND STATISTICAL MANUAL OF

MENTAL DISORDERS (5th Edition 2013), https://perma.cc/J2MF-T7CC (last accessed: June

30, 2017). The DSM-V explains that:

Inattention manifests behaviorally in ADHD as wandering off task, lacking

persistence, having difficulty sustaining focus, and being disorganized and is

not due to defiance or lack of comprehension. Hyperactivity refers to

excessive motor activity (such as a child running about) when it is not

appropriate, or excessive fidgeting, tapping, or talkativeness …. Impulsivity

refers to hasty actions that occur in the moment without forethought and that

have high potential for harm to the individual (e.g., darting into the street

without looking). Impulsivity may reflect a desire for immediate rewards or

an inability to delay gratification. Impulsive behaviors may manifest as social

intrusiveness (e.g., interrupting others excessively) and/or as making

important decisions without consideration of long-term consequences (e.g.,

taking a job without adequate information).

* * *

Id.

40

The DSM-V states that the essential feature of ODD is “a frequent and persistent

pattern of angry/irritable mood, argumentative/defiant behavior, or vindictiveness[.]” Am.

Psychiatric Ass’n, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (5th

Edition 2013), https://perma.cc/HET6-RJ57 (last accessed: June 30, 2017). The DSM-V

also states that:

The symptoms of [ODD] may be confined to only one setting, and this is

most frequently the home. Individuals who show enough symptoms to meet

the diagnostic threshold, even if it is only at home, may be significantly

impaired in their social functioning. However, in more severe cases, the

symptoms of the disorder are present in multiple settings. Given that the

pervasiveness of symptoms is an indicator of the severity of the disorder, it

is critical that the individual’s behavior be assessed across multiple settings

and relationships.

(continued . . .)

44

the March 11 hearing – that the Child would need long-term psychiatric and

psychotherapeutic care. The magistrate acknowledged that the Child was covered, at no

additional cost, under the Grandparents family health insurance plan, but that the

Grandparents paid out-of-pocket for the Child to see both the psychiatrist and psychologist

outside of the Grandparents’ insurance plan in the amount of $1,312.50 per month.

Based on these factual findings, the magistrate concluded that:

I believe that the Maryland Guidelines are required to be used in this case. I

believe that the child support to be ordered can only be from the date of filing

for the child support by the [Grandparents] on December the 30th, 2014, with

regard to the amount to be paid by [Petitioner] and with regard to the

modification of the amount previously ordered to be paid by [Father]. Using

the guidelines and the facts that I found based upon the evidence, the amount

(. . . continued)

* * *

There are several key considerations for determining if the behaviors are

symptomatic of [ODD]. First, the diagnostic threshold of four or more

symptoms within the preceding 6 months must be met. Second, the

persistence and frequency of the symptoms should exceed what is normative

for an individual’s age, gender, and culture. For example, it is not unusual

for preschool children to show temper tantrums on a weekly basis. Temper

outbursts for a preschool child would be considered a symptom of [ODD]

only if they occurred on most days for the preceding 6 months, if they

occurred with at least three other symptoms of the disorder, and if the temper

outbursts contributed to the significant impairment associated with the

disorder (e.g., led to destruction of property during outbursts, resulted in the

child being asked to leave a preschool).

The symptoms of the disorder often are part of a pattern of problematic

interactions with others. Furthermore, individuals with this disorder typically

do not regard themselves as angry, oppositional, or defiant. Instead, they

often justify their behavior as a response to unreasonable demands or

circumstances. Thus, it can be difficult to disentangle the relative

contribution of the individual with the disorder to the problematic

interactions he or she experiences.

* * *

Id.

45

of child support called for under the guidelines would be $1,467 per month

by [Petitioner], and $629 per month by [Father]. I’m handing out now to the

attorneys the child support worksheet which I used.

Now, I considered a deviation from the guidelines. The only evidence that

the guidelines amount would be unjust or inappropriate is that the guidelines

call for a significant amount from both [Petitioner’s] monthly adjusted actual

income and [Father’s] monthly adjusted actual income. The amount called

for under the guidelines would be 47 percent of [Petitioner and Father’s]

monthly adjusted income, and that is significant. But I note that to deviate

from the guidelines would mean that the cost for providing for [the Child]

would fall to the [Grandparents] who have no legal obligation to financially

support [the Child], and I will not do this.

* * *

The magistrate subsequently entered his recommendation that Petitioner be

obligated to pay child support to the Grandparents in the amount of $1,467 per month, with

arrearages in the amount of $4,401. The magistrate recommended the arrearages be repaid

at a rate of $25 per month until paid in full. In regard to Father, the magistrate

recommended that the interim order be modified to reflect that Father pay child support to

the Grandparents in the amount of $629 per month, with arrearages in the amount of

$3,387. Similarly as to Petitioner, the magistrate recommended the arrearages be repaid at

a rate of $25 per month until repaid in full. The magistrate also recommended that Father

provide the Grandparents with information about his attempts to locate full-time

employment every 60 days, commencing on the 60th day from the entry of the magistrate’s

order until he finds full-time employment.

On April 4, 2015, Petitioner filed Exceptions to the Magistrate’s Recommendations

Concerning Findings of Fact and Conclusions of Law challenging: (1) the magistrate’s

finding that the Final Order entered on December 16, 2014 was not a final judgment and

46

considering the merits of the Grandparents’ Motion for Child Support; (2) the magistrate’s

finding of “extraordinary medical expenses” in light of the fact the Grandparents had an

insurance plan that covered the psychological and psychiatric care for the Child and no

explanation was provided for why the Child was seeing a psychiatrist and psychologist that

were not covered under the Grandparents insurance plan; (3) the magistrate’s determination

that the Grandparents were similarly situated to a guardian appointed by a government

agency and that they were under no legal obligation to support the Child; and (4) the

magistrate’s determination that Petitioner should pay $1,467 per month or 47 percent of

her monthly income in excess of federal and state mandates. On May 26, 2015, the circuit

court denied Petitioner’s Exceptions and granted the Grandparents’ Motion for Child

Support in accordance with the magistrate’s recommendations.

On June 19, 2015, Petitioner filed a timely Notice of Appeal to the Court of Special

Appeals. On December 7, 2016, in a reported opinion, the Court of Special Appeals held,

inter alia, that: (1) the circuit court did not abuse its discretion when it granted the

Grandparents’ motion for permissive intervention; (2) the circuit court did not abuse its

discretion in finding Petitioner was unfit; (3) the circuit court did not abuse its discretion

when it found that exceptional circumstances existed in the case at bar; and (4) the circuit

court did not abuse its discretion in awarding child support to the Grandparents. 41 See

Burak v. Burak, et al., 231 Md. App. 242, 150 A.3d 360 (2016).

41

The Court of Special Appeals also considered the following issues in its opinion:

(1) whether the circuit court abused its discretion by soliciting expert testimony during a

hearing in an “unorthodox manner;” (2) whether the circuit court erred in permitting the

(continued . . . )

47

On March 3, 2017, we granted Petitioner’s petition for writ of certiorari to address

the following questions:

(1) May grandparents intervene in a custody dispute between parents to seek

custody of their grandchild before there has been an adjudication of the

unfitness of the custodial parents?

(2) May the “exceptional circumstances” test set forth by this Court in Ross

v. Hoffman, 280 Md. 172, [372 A.2d 582] (1977), be used to take custody

away from a biological parent with whom the child has lived for his entire

life?

(3) May a parent be required to pay child support to grandparents and, if so,

may child support be awarded without consideration of the financial

resources of the grandparents?

STANDARD OF REVIEW

We have held that, regardless of whether a party seeks to intervene as of right or

permissively, the decision to allow a party to intervene “is dependent upon the individual

circumstances of each case and rests in the sound discretion of the trial court, which, unless

abused, will not be disturbed on appellate review.” Md. Radiological Soc., Inc. v. Health

Services Cost Review Comm’n, 285 Md 383, 388, 402 A.2d 907, 910 (1979) (quoting

NAACP v. New York, 413 U.S. 345, 365-66, 93 S. Ct. 2591, [2606-03] (1973)).

In In re Yve S., 373 Md. 551, 819 A.2d 1030 (2003), we established that there are

three distinct aspects to our review in child custody disputes. We held that

When the appellate court scrutinizes factual findings, the clearly erroneous

standard of [Maryland Rule 8-131(a)] applies. [Second], if it appears that the

(. . . continued)

Grandparents to intervene in the parties’ divorce property distribution hearing; and (3)

whether the circuit court erred in awarding Father with “contributions made towards

maintenance of the family home.” Because those issues were not raised on appeal before

this Court we do not address the lower Court’s holdings regarding those issues.

48

[hearing 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

[hearing court] founded upon sound legal principles and based upon factual

findings that are not clearly erroneous, the [hearing court’s] decision should

be disturbed only if there has been a clear abuse of discretion.

Id. at 586, 819 A.2d at 1051 (citations omitted). We also concluded that

[I]t is within the sound discretion of the [hearing court] to award custody

according to the exigencies of each case, and as our decisions indicate, 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

[hearing court] because only he [or she] sees the witnesses and the parties,

hears the testimony, and has the opportunity to speak with the child; he [or

she] 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 at 1051 (citations omitted).

DISCUSSION

I. Grandparents’ Intervention

Petitioner argues that her fundamental constitutional rights were violated when the

circuit court allowed the Grandparents to intervene in the custody dispute between her and

Father, prior to a finding of either parental unfitness or the existence of exceptional

circumstances. Petitioner notes that in McDermott v. Dougherty, 385 Md. 320, 869 A.2d

751 (2005), we held that, in third-party custody disputes, the circuit court “must first find

that both natural parents are unfit to have custody of their children or that extraordinary

circumstances exist which are significantly detrimental to the child” before the circuit court

may consider the best interests of the child standard. See id., at 325, 869 A.2d at 754.

Petitioner contends, however, that we did not address the question of whether the required

49

preliminary finding of parental unfitness should occur in a separate proceeding or hearing

and did not consider the rule in the context of third-party intervention in parental custody

disputes. In Petitioner’s view, allowing third-parties to intervene in a parental custody

dispute without a prior finding of parental unfitness or extraordinary circumstances violates

the fundamental liberty interest of parents in raising their children without the interference

of the State. Petitioner contends that in the case at bar, the Grandparents were permitted

to intervene in the custody action on the basis of a general allegation of extraordinary

circumstances and by suggesting in their motion for intervention that they were concerned

about the fitness of the parents.

Petitioner notes that in Blixt v. Blixt, 774 N.E.2d 1052 (Mass. 2002), a

Massachusetts case addressing grandparent visitation, the Supreme Judicial Court of

Massachusetts required that petitions filed by grandparents seeking visitation with their

grandchild were required to be pled with specificity and verified in order to safeguard the

parents’ constitutional right to be free from interference in their parental decisions. See id.

at 1066. Petitioner contends that depriving a parent of custody is a far greater impingement

on parental rights, and yet, the circuit court in this case allowed the Grandparents to

intervene in the custody action without requiring any specific allegations that supporting

the claim that Petitioner was an unfit parent.

Petitioner avers that if third-parties are permitted to intervene in custody disputes

between parents prior to a finding that both parents are unfit then: (1) there is an increased

likelihood that the third-party will become a proxy for one of the parents in the custody

dispute; (2) the third-party’s claims will add to the already considerable cost and strain of

50

custody litigation; and (3) there will be an increased likelihood of bias and unfairness in

determining the outcome of the custody dispute.

Petitioner contends that allowing third-party intervention into custody disputes

encourages third-parties to serve as proxies, especially in circumstances where it becomes

evident that one of the parents will not be granted custody, which Petitioner avers occurred

here. Petitioner argues that allowing this type of proxy role in custody disputes may: (1)

cause harm to parent-child relationships; (2) violate the constitutional rights of the parents;

and (3) cause an increase in frequency, cost, and stress of custody litigation – which itself

constitutes an unconstitutional burden on a parent’s fundamental right to raise their

children. See McDermott, 385 Md. at 422, 869 A.2d at 811 (citing Parham v. J.R., 442

U.S. 584, 602, 99 S. Ct. 2493, 2504 (1979)); see also Major v. Maguire, 128 A.3d 675,

687 (N.J. 2016) (concluding in a grandparent visitation case that “[b]y virtue of its capacity

to intrude upon the privacy of both parent and child and consume scarce resources, the

parties’ litigation may itself infringe on the parent’s due process right to autonomy, and

cause harm to the child[.]”); Glidden v. Conley, 820 A.2d 197, 206 (Vt. 2003) (recognizing

that a parent’s constitutional right to raise a child can be implicated by burden of litigation

domestic relations proceedings).

Petitioner also argues that allowing third-parties to intervene prior to a finding of

unfitness facilitates biased and unfair findings based on subjective considerations made by

the hearing judge. Petitioner notes that in McDermott we cited approvingly a New Jersey

Supreme Court case, Watkins v. Nelson, 748 A.2d 558 (N.J. 2000), where the New Jersey

court expressly declined to adopt a test that would assess whether “the child’s growth and

51

development would be ‘detrimentally affected’ by placement with a parent.” See

McDermott, 385 Md. at 375-81, 869 A.2d at 783-87 (quoting Watkins, 748 A.2d at 565-

68). Among the flaws the Watkins Court found in such an approach, was that “[t]he use of

such a standard to decide custody disputes between a fit parent and a third party will evolve

into a ‘fitness contest’ whose outcome will depend on the whims of the trial court.” Id. at

380, 869 A.2d at 786 (quoting Watkins, 748 A.2d at 568). Petitioner also notes that the

Watkins Court expressed concern that without sufficient protection of parental rights, “a

judge may take children from their parents because the judge personally [disapproves of]

the parents.” Id. at 379, 869 A.2d at 786 (quoting Watkins, 748 A.2d at 567). In adopting

the rule that a third-party must first rebut the presumption favoring parental custody by

“proof of gross misconduct, abandonment, unfitness or the existence of ‘exceptional

circumstances,’” the Watkins court concluded that it wanted to “minimize judicial

opportunity to engage in social engineering in custody cases involving third parties.”

Watkins, 748 A.2d at 559, 567.

In contrast to Petitioner’s arguments, the Grandparents aver there was no procedural

bar to their filing a motion to intervene in the custody action, because Maryland Rule 2-

214 allows a person to intervene in an action “when the person’s claim or defense has a

question of law or fact in common with the action.” Maryland Rule 2-214(b)(1). The

Grandparents acknowledge that Maryland Rule 2-214 also requires the court to consider

“whether the intervention will unduly delay or prejudice the adjudication of the rights of

the original parties” and that there are certain procedural requirements the person seeking

to intervene must follow, but argue that they complied with the procedural requirements

52

and Petitioner was not unduly prejudiced. See Maryland Rule 2-214(b)(3), (c).42 The

Grandparents aver that Petitioner’s main argument is that we should read a preliminary

step into Maryland Rule 2-214 that would require an initial judicial determination of

unfitness or exceptional circumstances before a third-party would be permitted to

intervene. The Grandparents note, however, that the underlying purpose of Maryland Rule

2-214 “is to promote judicial economy in litigation.” See Md. Rules Commentary, Rule 2-

214 at 199. The Grandparents contend, therefore, that requiring the initial step that

Petitioner seeks would be in contravention of the purpose of the permissive intervention

rule.

The Grandparents argue that the main flaw in Petitioner’s argument is her

misreading of the plain language in McDermott. They contend that McDermott did not

contemplate a separate or bifurcated proceeding to determine whether a parent is fit or that

exceptional circumstances exist. Rather, the Grandparents argue that the “first” language

in McDermott is intended to instruct hearing courts that, prior to evaluating the best

interests of the child, it must first determine that the third-party has been elevated to the

same constitutional level as the parent. See In re Rashawn H., 402 Md. 477, 495, 937 A.2d

42

Maryland Rule 2-214(c) states that:

(c) Procedure. A person desiring to intervene shall file and serve a motion

to intervene. The motion shall state the grounds therefor and shall be

accompanied by a copy of the proposed pleading, motion, or response

setting forth the claim or defense for which intervention is sought. An

order granting intervention shall designate the intervenor as a plaintiff or

defendant. Thereupon, the intervenor shall promptly file the pleading,

motion, or response and serve it upon all parties.

53

177, 188 (2007). The Grandparents also argue that bifurcating the preliminary inquiry

from the best interest analysis would be difficult because many of the facts that establish

the initial inquiries would necessarily be used to address the best interest of the child

analysis. The Grandparents contend that Petitioner’s argument favoring a preliminary

proceeding also has a logical flaw because if the court was to determine in the initial

proceeding that both parents were unfit, the court would have no ability to act immediately

to protect the minor child.

The Grandparents also aver that Maryland has a well-established history of

permitting third-parties to participate in custody litigation. See De Angelis v. Kelley, 184

Md. 183, 40 A.2d 332 (1944) (acknowledging that a third-party has a right to participate

in custody litigation); Ross v. Pick, 199 Md. 341, 86 A.2d 463 (1952) (“Pick”) (holding

that there is a prima facie presumption that a child should be in the care and custody of

parents, and the burden is on the third-party to overcome the presumption). The

Grandparents note that in Ross v. Hoffman, 280 Md. 172, 372 A.2d 582 (1977)

(“Hoffman”), we concluded that

[w]hen the dispute is between a biological parent and a third party, it is

presumed that the child’s best interest is subserved by custody in the parent.

That presumption is overcome and such custody will be denied if (a) the

parent is unfit to have custody, or (b) if there are such exceptional

circumstances as make such custody detrimental to the best interest of the

child. Therefore, in parent-third party disputes over custody, it is only upon

a determination by the equity court that the parent is unfit or that there are

exceptional circumstances which make custody in the parent detrimental to

the best interest of the child, that the court need inquire into the best interest

of the child in order to make a proper custodial disposition.

54

Id. at 178-79, 372 A.2d at 587; see also McDermott, 385 Md. at 374, 869 A.2d at 783. The

Grandparents contend that these cases establish that they had the ability to initiate their

own custody case naming Petitioner and Father as defendants and that, had they done so,

the case would have likely been consolidated with the pending custody action between

Petitioner and Father, pursuant to Maryland Rule 2-503.43

We hold that there is no procedural bar preventing a third-party from seeking to

permissively intervene44 in an existent custody action as long as he or she can make a prima

43

Maryland Rule 2-503 states, in relevant part:

(a) Consolidation.

(1) When Permitted. When actions involve a common question of law or

fact or a common subject matter, the court, on motion or on its own

initiative, may order a joint hearing or trial or consolidation of any or

all of the claims, issues, or actions. An action instituted in the District

Court may be consolidated with an action pending in a circuit court

under the circumstances described in [Courts & Judicial Proceedings]

Article §6-104(b). The court may enter any order regulating the

proceeding, including the filing and serving of papers, that will tend

to avoid unnecessary costs or delay.

(2) Verdict or Judgment. In the trial of a consolidated action, the court

may direct that joint or separate verdicts or judgments be entered.

(b) Separate Trials. In furtherance of convenience or to avoid prejudice, the

court, on motion or on its own initiative, may order a separate trial of any

claim, counterclaim, cross-claim, or third-party claim, or of any separate

issue, or of any number of claims, counterclaims, cross-claims, third-

party claims, or issues.

The Grandparents note that both matters would have raised common questions of fact and

law because both dealt in the same subject matter – the custody of the Child.

44

Grandparents and other third-parties seeking to intervene in a custody action

between a child’s biological parents do not have the right to intervene in the custody action

(continued . . .)

55

facie showing that the parents are either unfit or that exceptional circumstances exist and

that the child’s best interests would be served in the custody of the third-party.45

(. . . continued)

As a matter of right. As we stated in McDermott,

Where the [custody] dispute is between a fit parent and a private third party,

however, both parties do not begin on equal footing in respect to rights to

“care, custody, and control” of the children. The parent is asserting a

fundamental constitutional right. The third party is not. A private third party

has no fundamental constitutional right to raise the children of others.

Generally, absent a constitutional statute, the non-governmental third party

has no rights, constitutional or otherwise, to raise someone else’s child.

McDermott, 385 Md. at 353, 869 A.2d at 770 (emphasis added). Thus, a third-party does

not have “an unconditional right to intervene as a matter of law” in a custody dispute

between a child’s parents, and may only do so if they satisfy the pleading requirements for

permissive intervention as modified by this opinion. See Maryland Rule 2-214.

45

In Koshko v. Haining, 398 Md. 404, 921 A.2d 171 (2007), a case addressing

grandparents’ right to visitation, we concluded that

if third parties wish to disturb the judgment of a parent, those third parties

must come before our courts possessed of at least prima facie evidence that

the parents are either unfit or that there are exceptional circumstances

warranting the relief sought before the best interests standard is engaged.

Id. at 440, 921 A.2d at 192. We also explained in a footnote that

[a]t any evidentiary hearing on a petition, the petitioners must produce

evidence to establish their prima facie case on the issue of either parental

unfitness or exceptional circumstances as well as evidence sufficient to tip

the scales of the best interests balancing test in their favor. We appreciate

that there may be circumstances where evidence proffered for the satisfaction

of a threshold element also may have relevance in the determination of the

best interest standard. We do not intend to foster a “trial within a trial.” At

the end of the day, petitioners, in order to be successful, must shoulder the

burdens to adduce at least a prima facie case on both the

unfitness/exceptional circumstances standard and the best interests standard.

(continued . . .)

56

Specifically, a third-party seeking to intervene in a custody dispute must include detailed

factual allegations in his or her pleading that, if true, would support a finding that both

biological parents are either unfit or that exceptional circumstances exist and that the best

interests of the child would be served in the custody of the third-party. See Maryland Rule

2-214(c) (requiring a party seeking to intervene in a cause of action to “state the grounds”

upon which they are seeking to intervene). We note that, in third-party custody disputes,

a third-party can only prevail in obtaining custody of a child if he or she overcomes the

presumption that the child’s best interest is served by being placed in the custody of the

parent, by showing that the parents are either unfit or there are exceptional circumstances

that would make custody with the parent detrimental to the best interests of the child. See

McDermott, 385 Md. at 374, 869 A.2d at 783; Hoffman, 280 Md. at 178-79, 372 A.2d at

587. The parties acknowledge the presumption favoring parental custody exists because

“the Due Process Clause of the Fourteenth Amendment protects the fundamental right of

parents to make decisions concerning the care, custody, and control of their children.”

Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 2060 (2000); see also McDermott,

385 Md. at 326, 869 A.2d at 754 (concluding that Troxel’s plurality holding that parents

(. . . continued)

Id. at 445 n. 23, 921 A.2d at 195 n. 23. We also acknowledged “that the standards and

processes relevant to all manner of custody and visitation determinations are nearly

identical.” Id. at 442-43, 921 A.2d at 194. Quoting our decision in Boswell v. Boswell,

352 Md. 204, 721 A.2d 662 (1998), we also recognized that “‘the case law discussed in

this opinion concerning custody determinations, and the principles governing such

situations, are equally applicable to visitation proceedings.’” Id. (quoting Boswell, 352

Md. at 236, 721 A.2d at 677). Thus, our own precedent provides support for adopting this

initial pleading requirement in custody actions where a third-party seeks to intervene

57

have a fundamental right to make decisions regarding their children is “instructive”)

(citation omitted).

Accordingly, we hold that for a third-party to have standing to intervene in a custody

action, he or she must plead sufficient facts that, if true, would support a finding of either

parental unfitness or the existence of exceptional circumstances and demonstrates that the

best interests of the child would be served in the custody of the third-party. We conclude

this additional pleading requirement is necessary to balance the constitutional right a parent

has over the care and custody of their children with the reality that circumstances exist

where the presumption favoring parents is overcome and the child’s best interests are

served in the custody of third-parties. This additional pleading requirement will also aid

the circuit court in determining whether intervention would “unduly delay or prejudice the

adjudication of the rights of the original parties[]” because the hearing judge will be

required to determine, prior to the third-party’s intervention, whether the proposed

intervenor has alleged sufficient facts in its pleading that, if true, would overcome the

constitutional presumption favoring parental custody. See Maryland Rule 2-214(b)(3).

We also conclude that a preliminary hearing is not the appropriate forum for a court

to make an ultimate determination as to whether a parent is unfit or that exceptional

circumstances exist in a third-party custody dispute. McDermott states that “the trial court

must first find” that the parents are either unfit or that extraordinary circumstances exist

“before a trial court should consider” the best interests of the child standard. McDermott,

385 Md. at 374-75, 869 A.2d at 783. By referencing the court charged with making the

fitness or exceptional circumstances determination as the “trial court[,]” McDermott

58

indicates that the assessment should occur at the custody merits hearing, not in a

preliminary proceeding. Additionally, as the Grandparents argue, having a preliminary

proceeding in advance of the custody merits hearing would likely result in redundancy in

the proceedings because facts presented at the preliminary hearing regarding parental

fitness or exceptional circumstances may well be relevant to the court’s determination at

the custody hearing regarding the best interests of the child. Accordingly, we conclude that,

in third-party custody disputes, the circuit court is not required to hold a preliminary or

separate proceeding to determine whether a parent is fit or whether exceptional

circumstances exist prior to the custody merits hearing. The hearing judge may assess the

parents’ fitness and determine whether exceptional circumstances exist at the custody

merits hearing as long as he or she makes that determination prior to assessing the best

interest of the child.

In the case at bar, Petitioner argues that the Grandparents’ motion for permissive

intervention was insufficient because it contained only a general allegation of extraordinary

circumstances and expressed their concern regarding the fitness of the parents. We

disagree. We note Maryland Rule 2-214(c) requires the Grandparents to attach their

proposed Complaint for Custody to their Motion for Permissive Intervention. As noted,

supra, in their proposed Complaint, the Grandparents alleged that: (1) although the Child

resided with Petitioner, the Grandparents “have acted in loco parentis” with the Child since

birth; (2) the Child has spent significant periods of time with the Grandparents – up to five

overnights per week; (3) the Grandparents have actively participated in the Child’s

schooling, paid for the Child’s child care, organized activities and play dates for the Child,

59

and helped take the Child to doctor’s appointments; (4) the Grandparents became

increasingly aware of Petitioner and Father’s abuse of drugs while the Child was in their

care; (5) Petitioner informed the Custody Evaluator that she was not using drugs, but then

subsequently tested positive for marijuana in a mandatory drug test; (6) evidence indicated

Petitioner lied about being coerced into using drugs by Father – as evidenced by her

positive drug test post-separation; and (7) the circuit court sua sponte required both parents

to submit to psychiatric evaluations. We conclude these allegations are sufficient to make

a prima facie showing that either Father or Petitioner or both were unfit and that there may

have been exceptional circumstances that existed in this case. Accordingly, we hold the

circuit court did not err in allowing the Grandparents to intervene in the custody dispute

between Petitioner and Father.

II. Unfitness

a. Appealability

We note that Petitioner did not independently appeal the unfitness issue decided by

the Court of Special Appeals to this Court, but rather, incorporated the argument into her

argument regarding permissive intervention. See supra. We also note that the

Grandparents did not address the circuit court’s unfitness finding in their brief. The brief

exclusively addressed Petitioner’s argument regarding the circuit court’s grant of their

motion to intervene in the custody action. The unfitness issue was, however, raised and

argued before the Court of Special Appeals, which concluded that the circuit court did not

err in finding Petitioner to be an unfit parent, and Petitioner raised the issue in her petition

for a writ of certiorari, albeit, again, it was incorporated into her intervention argument.

60

We also note that both sides argued the issue extensively before us at oral argument on

June 2, 2017. We conclude that the issue of Petitioner’s fitness as a parent was, therefore,

sufficiently preserved for our review. See Maryland Rule 8-131.46

b. The Circuit Court’s Finding That Petitioner Was Unfit

46

Maryland Rule 8-131 states, in relevant part, that

(a) Generally. The issues of jurisdiction of the trial court over the subject

matter and, unless waived under [Maryland] Rule 2-322, over a person

may be raised in and decided by the appellate court whether or not raised

in and decided by the trial court. Ordinarily, the appellate court will not

decide any other issue unless it plainly appears by the record to have been

raised in or decided by the trial court, but the Court may decide such an

issue if necessary or desirable to guide the trial court or to avoid the

expense and delay of another appeal.

(b) In Court of Appeals – Additional Limitations.

(1) Prior Appellate Decision. Unless otherwise provided by the order

granting the writ of certiorari, in reviewing a decision rendered by the

Court of Special Appeals … the Court of Appeals ordinarily will

consider only an issue that has been raised in the petition for certiorari

or any cross-petition and that has been preserved for review by the

Court of Appeals. Whenever an issue raised in a petition for certiorari

or a cross-petition involves, either expressly or implicitly, the

assertion that the trial court committed error, the Court of Appeals

may consider whether the error was harmless or non-prejudicial even

though the matter of harm or prejudice was not raised in the petition

or in a cross-petition.

* * *

Cf. State v. Parker, 334 Md. 576, 596-97, 640 A.2d 1104, 1114 (1994) (concluding that

the use of the term “ordinarily” in Maryland Rule 8-131(b) “implies that this Court

possesses the discretion to consider issues that were not necessarily raised in the petition

or order for a [w]rit of [c]ertiorari.”) (citing State v. Bell, 334 Md. 178, 188, 638 A.2d 107,

113 (1994)), with, Holbrook v. State, 364 Md. 354, 375, 772 A.2d 1240, 1252 (2001)

(declining to consider petitioner’s claim that reckless endangerment convictions should

merge with an arson conviction as a matter of “fundamental fairness” when the argument

was neither raised in petitioner’s petition for writ of certiorari nor was it argued before the

Court of Special Appeals).

61

Petitioner argues that much of the evidence the hearing judge relied on in finding

her unfit came from Father and M, prejudicial witnesses, who testified about events that

occurred several years prior to the parties’ separation and the custody hearing. Petitioner

also contends that the hearing judge failed to explain why, if Petitioner was such an unfit

parent, the Child was described at the hearing as a bright, well-adjusted student throughout

kindergarten, prior to the Grandparents’ intervention. Petitioner acknowledges that she

tested positive for marijuana in one of her drug tests, but contends the hearing court did not

allow her to challenge the accuracy of the result and that, even if she had smoked marijuana,

the General Assembly has decriminalized it. See Criminal Law Article §5-601. Petitioner

also concedes that the Child began exhibiting behavioral problems at the end of his

kindergarten year, but notes that there was no evidence or expert testimony presented at

the custody hearing regarding the cause of the Child’s behavioral difficulties. Petitioner

also avers that, in considering the Crisis Center incident, the hearing judge ignored the

testimony from the school principal and guidance counselor stating that Petitioner

responded promptly to their request to discuss the incident and that she was generally a

responsible and responsive parent. Petitioner contends the hearing judge also made

unsupported conclusions about her emotional attachment to the Child, including his finding

that:

I didn’t hear how she said, you know, I just love to put him to bed at night. I

like to tuck him in. I like to read him a story. We take little walks together. I

like to go through colors with him and numbers with him. He loves to wear

this particular sweatshirt. You didn’t hear any of that. I didn’t see any really

love or total attachment. I mean, this is her flesh and blood, her own son.

Most mothers would give up their lives for their children in a tragedy. A child

fell into a river, they’d dive in. I think in this case, I don’t know what she’d

62

do. She might leisurely walk over and make a call. I don’t know. But what

I’ve seen from the time the child was born, she’s not even acting the way a

babysitter would act. Because if she were the babysitter and she went to

school on the fourth and the teacher told her what happened or daycare

provider, she’d be calling everybody she possibly could. She’d be calling the

mother, she’d be calling the father, she’d be calling the grandparents. Did

you hear – let me tell you what the principal said.

Petitioner also notes that the hearing judge stated that he found Petitioner “to be a

very dishonest witness, and I’ll tell her. She may be a good mother and a lot of good

qualities. They didn’t all come out.” In Petitioner’s view, the hearing judge’s concession

that “[s]he may be a good mother” should have ended the inquiry regarding her fitness as

a parent. Petitioner argues that it is precisely this type of subjective assessment – or judicial

“social engineering” – that the Watkins Court, see supra, was concerned about in refusing

to adopt the “detrimentally affected” test. Petitioner contends that this case demonstrates

why a court’s finding of parental unfitness should be based on objective, rather than

subjective, criteria – such as the specific criteria contained in the Termination of Parental

Rights statute. See Family Law Article (“Fam. Law”) §5-323(d).47

47

Fam. Law §5-323(d) states:

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

(continued . . .)

63

(. . . continued)

obligations under a social services agreement, if any;

(2) the results of the parent’s effort to adjust the parent’s circumstances,

condition, or conduct to make it in the child’s best interests for the child

to be returned to the parent’s home, including:

(i) the extent to which the parent has maintained regular contact with:

1. the child;

2. the local department to which the child is committed; and

3. if feasible, the child’s caregiver;

(ii) the parent’s contribution to a reasonable part of the child’s care and

support, if the parent is financially able to do so;

(iii) the existence of a parental disability that makes the parent consistently

unable to care for the child’s immediate and ongoing physical or

psychological needs for long periods of time; and

(iv) whether additional services would be likely to bring about a lasting

parental adjustment so that the child could be returned to the parent

within an ascertainable time not to exceed 18 months from the date of

placement unless the juvenile court makes a specific finding that it is

in the child’s best interests to extend the time for a specified period;

(3) whether:

(i) the parent has abused or neglected the child or a minor and the

seriousness of the abuse or neglect;

(ii) 1. A. on admission to a hospital for the child’s delivery, the mother

tested positive for a drug as evidenced by a positive toxicology test’

or

B. upon the birth of the child, the child tested positive for a

drug as evidenced by a positive toxicology test; and

2. the mother refused the level of drug treatment recommended by

a qualified addictions specialist, as defined in §5-1201 of this

title, or by a physician or psychologist, as defined in the Health

Occupations Article;

(iii) the parent subjected the child to:

1. chronic abuse;

2. chronic and life-threatening neglect;

3. sexual abuse; or

4. torture;

(iv) the parent has been convicted, in any state or any court of the United

States, of:

1. a crime of violence against:

A. a minor offspring of the parent;

B. the child; or

(continued . . .)

64

We note that determining whether a circuit court erred in finding a biological parent

“unfit” in a third-party custody dispute is an issue of first impression for this Court.

Considering the issue necessarily requires a nuanced understanding of precisely what the

term “unfit” means within the context of Maryland family law. We observe, however, that

our precedent provides no such clear definition. The only decision from this Court that

provides any definition for the word “unfit” in the custody context is In re Rashawn H.,

402 Md. 477, 937 A.2d 177 (2007), a termination of parental rights (“TPR”) case that states

“[i]n a custody case, unfitness means an unfitness to have custody of the child, not an

unfitness to remain the child’s parent[.]” Id. at 498, 937 A.2d at 190 (emphasis in original).

The Rashawn Court’s definition clarifies that an “unfitness” determination in a custody

dispute is distinct from an “unfitness” finding in the TPR context, but does not provide a

clear definition of “unfitness” for our purposes. While Petitioner argues that we should,

(. . . continued)

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 towards 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.

65

nonetheless, adopt the criteria contained in Fam. Law §5-323(d) to inform our

consideration of “unfitness” in the custody context, the Rashawn Court expressly states,

[t]he deficiencies that may properly lead to a finding of unfitness or

exceptional circumstances in a custody case will not necessarily suffice to

justify a TPR judgment. For one thing, those deficiencies may be temporary

and correctable – sufficiently severe to warrant denying custody or visitation

at a particular point in time, but with the understanding that the custody or

visitation decision is subject to reconsideration upon a showing of changed

circumstances. As noted, however, a judgment terminating parental rights,

once enrolled, is not subject to discretionary reconsideration based merely on

the parent’s changed circumstances.

Id. Thus, although we agree with Petitioner that the criteria for determining whether a

parent is “unfit” in a third-party custody dispute requires clarity, we decline to adopt the

objective criteria contained in Fam. Law §5-323(d). Instead, we look to other jurisdictions

that have previously considered whether a parent is “unfit” in the custody context to

determine the appropriate factors a court must consider.

The most recent set of cases we could locate discussing “unfitness” in the third-

party custody context come from the Supreme Court of Alabama and the Supreme Court

of Mississippi, both decided in 2003. In Ex Parte N.L.R., 863 So.2d 1066 (Ala. 2003), the

Supreme Court of Alabama considered a case where the maternal grandmother was granted

temporary custody of two minor children after she intervened in the parents’ child support

and visitation litigation seeking custody of the children. Id. at 1066. As relevant to the

case at bar, the Supreme Court of Alabama explained that:

The prima facie right of a natural parent to the custody of his or her child, as

against the right of custody in a nonparent, is grounded in the common law

concept that the primary parental right of custody is in the best interest and

welfare of the child as a matter of law. So strong is this presumption, absent

a showing of voluntary forfeiture of that right, that it can be overcome only

66

by a finding, supported by competent evidence, that the parent seeking

custody is guilty of … misconduct or neglect to a degree which renders that

parent an unfit and improper person to be entrusted with the care and

upbringing of the child in question.”

Id. at 1068-69 (quoting Ex Parte Terry, 494 So.2d 628, 632 Ala. 1986) (internal quotation

marks omitted) (emphasis added).

In In re Custody of M.A.G., 859 So.2d 1001 (Miss. 2003), the Supreme Court of

Mississippi considered a case where a child was placed in the custody of third-parties after

the child’s father was arrested for the murder of the child’s mother. Id. at 1003. All charges

against the father were subsequently dropped, but the third-party custodians, nonetheless,

sought permanent custody of the child, alleging that the father was an unfit parent. Id. At

the custody trial, the court found that the father was an unfit parent because the testimony

reflected that: (1) the father abused drugs and alcohol before he was incarcerated, and

continued to do so after he was released from prison; (2) he had abused the mother; (3) he

provided little moral leadership to his family; (4) he was convicted of public drunkenness

after he was released from prison; (6) he bathed with his girlfriend while the child was in

the house; and (7) the child witnessed the father’s nephew having sex with his girlfriend.

Id. In considering the trial court’s unfitness finding, the Supreme Court of Mississippi

explained that “this Court has ruled that unfitness may be shown by[:] (1) abandoning the

child; (2) behaving so immorally as to be detrimental to the child; or (3) being unfit

mentally or otherwise to have custody of the child.” Id. at 1004 (quoting Carter v. Taylor,

611 So.2d 874, 876 (Miss. 1992); see also Westbrook v. Oglesbee, 606 So.2d 1142, 1144-

67

45 (stating the same). The Court then considered the merits of the father’s challenge of the

finding of unfitness, and concluded the trial court did not err because

[t]here was substantial evidence of drug and alcohol abuse- at times in the

presence of [the child]. There were errors of judgment by [the father] such as

renting a horror movie to watch with his son when the six-year-old [child]

thought [the father] had killed his mother and brother with a baseball bat.

There was evidence of drunken driving by [the father] with [the child] in the

car. [The father] exposed [the child] to sexual situations. [The father]

threatened and abused [the mother]. [The father] was involved in sexual

relationships with married women – once in the presence of her husband –

and was promiscuous. [The father] never reported his live-in girlfriend and

their five-month-old son missing after they were killed.

Id. at 1004.

In a 1994 case decided by the Supreme Court of Oklahoma, the Oklahoma Court

considered the circumstances where the paternal grandmother of a child sought to gain

custody of the child by intervening in the parents’ divorce proceeding. McDonald v.

Wrigley, 870 P.2d 777, 778 (Okla. 1994). The trial court granted temporary custody to the

grandmother, but later dismissed the proceeding for lack of jurisdiction. Id. The

grandmother appealed, and Supreme Court of Oklahoma held that

[i]n order for third persons to deprive a parent of custody of his [or her]

children, some inability on the part of the parent to provide for the child’s

ordinary comfort, intellectual or moral development must be shown.

Evidence of unfitness must be clear and conclusive and the necessity for

depriving the parent of custody must be shown to be imperative. In a divorce

case, the district court may award custody to a third person if both parents

are found to be unfit. If a parent is not found to be unfit, is able to care for

his [or her] children and desires to do so, he [or she] is entitled to custody as

against others who have no permanent or legal right to custody.

Id. at 779-80 (quoting Haralson v. Haralson, 595 P.2d 443, 445 (Okla. 1979)) (footnotes

omitted). The McDonald Court also determined that

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[t]he [parents’] unfitness may not be demonstrated by a mere comparison

between what is offered by the competing parties, but only by a showing that

the parents cannot reasonably be expected to provide for the child’s ordinary

comfort or intellectual and moral development. Such order must be a product

of a hearing of which the parent had notice with the opportunity to be heard.

The order must include the conditions found by the trial court to constitute

the parental unfitness. This is so that the parent knows what, if corrected,

would amount to a change of condition in the eyes of the court.

Id. at 781 (internal citations omitted). The McDonald Court concluded that all grandparent

custody actions – absent a final termination order pursuant to its version of a termination

of parental rights proceeding – may be considered temporary and that “[d]uring the child’s

minority the doors to the courthouse will remain open to the parent who would show that

the conditions underlying the declaration of unfitness have been corrected.” Id. at 782.

In another decision published in 1994, the Supreme Court of North Carolina

considered a case where adoptive parents filed a lawsuit seeking custody of a minor child

over the child’s biological parents, after the adoptive parents’ initial attempt to adopt the

child was voided by the Supreme Court of North Carolina and the child was subsequently

placed in the custody of the local department of social services that then placed the child

with the adoptive parents. Petersen v. Rogers, 445 S.E.2d 901, 902 (N.C. 1994). At trial,

the court ordered that the child be returned to the biological parents and the court denied

the adoptive parents’ request for custody. Id. On appeal, the Court of Appeals of North

Carolina observed that

[t]he [Supreme Court of North Carolina’s] examination [in Jolly v. Queen,

142 S.E.2d 592 (N.C. 1965)] of the paramount custody right of the mother

of an illegitimate child illustrates the strength of natural parents as against

others: Although a trial court “might find it to be in the best interest of a

legitimate child of poor but honest, industrious parents” that his [or her]

custody be given to a more affluent person, such a finding “could not confer

69

a right as against such parents who had not abandoned their child, even

though they had permitted him to spend much time” with the more affluent

person. Instead, “parents’ paramount right to custody would yield only to a

finding that they were unfit custodians because of bad character or other,

special circumstances. So it is with the paramount right of an illegitimate’s

mother.”

Id. at 904 (quoting Jolly, 142 S.E.2d at 596). The Petersen Court concluded that because

there was no finding that the biological parents had neglected their child’s welfare in any

way, their “paramount right to custody” of the child prevailed. Id. at 905.

In an Arkansas case that was decided in 1990, the Supreme Court of Arkansas

considered the result where a custody dispute arose between the child’s biological mother

and the child’s maternal grandmother. Schuh v. Roberson, 788 S.W.2d 740, 740 (Ark.

1990).48 At the custody trial, the juvenile court ultimately granted custody in favor of the

maternal grandmother. On appeal, the Schuh Court determined that

[c]ourts are very reluctant to take from the natural parents the custody of their

child, and will not do so unless the parents have manifested such indifference

to its welfare as indicates a lack of intention to discharge the duties imposed

by the laws of nature and of the state to their offspring suitable to their station

in life.

48

In Schuh, the court originally awarded temporary custody of the child to the

child’s biological mother in the mother’s divorce proceeding. Schuh, 788 S.W.2d at 740.

Before the custody was finalized, however, the maternal grandmother intervened in the

case and was awarded temporary custody. Id. Shortly thereafter, the court discovered that

the child was illegitimate and the court subsequently vacated its custody order. Id. at 741.

The mother brought new proceedings seeking to establish paternity and obtain custody of

the child, and the maternal grandmother again intervened. Id. After procedural delays that

reformulated the custody process in Arkansan courts, the case was transferred from the

county court to a juvenile judge and, after a hearing, permanent custody of the child was

awarded to the maternal grandmother. Id.

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Id. at 741 (quoting Parks v. Crowley, 253 S.W.2d 561, 563 (Ark. 1952)).49 The Schuh

Court subsequently remanded the case to allow the hearing judge to consider the issue of

the mother’s fitness as a parent. Id.

In a 1981 case decided by the Supreme Court of Georgia, the Georgia Court

considered a case where the father of two minor children brought an action against the

children’s’ paternal aunt who had been granted temporary custody and the children’s

biological mother who was the legal custodian of the children. Carvalho v. Lewis, 274

S.E.2d 471, 472 (Ga. 1981). In vacating the lower court’s grant of custody to the paternal

aunt, the Carvalho Court first acknowledged that in custody disputes between a parent and

49

In Parks, the Arkansas Court considered a case where the paternal grandparents

of a child refused to return the child to the custody of the biological mother due to concerns

that the child was endangered in the mother’s home. 253 S.W.2d at 562. The mother sought

custody, and the trial court subsequently granted custody to the paternal grandparents due

to its finding that the mother “was addicted to drink and frequent profanity to such an extent

as to make her unfit to have the custody of the child.” Id. On appeal, the Parks Court

determined that

[i]n considering this case, we do not lose sight of the fact that we are dealing

with the welfare of a little girl of the tender age of five years when obviously

she is most in need of the loving care of her real mother unless the mother is

so depraved morally or otherwise as would render her unfit to have her child.

While [the third-parties] have had her custody for most of her life, however,

when the real mother shows that she is entitled to [c]ustody, we must know,

human nature being what it is, that the love and attachment of this little girl

for her grandparents (appellees) cannot have become so deep rooted and

attached that it could not, within a very short time, be transferred to her real

mo

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