B. O. v. S. O.
| Decision Date | 08 September 2021 |
| Docket Number | No. 1202, Sept. Term, 2020,1202, Sept. Term, 2020 |
| Parties | B. O. v. S. O. |
| Court | Court of Special Appeals of Maryland |
Argued by: Pamela S. West (P.S. West, Attorney at Law, LLC, Kensington, MD), on brief, for Appellant.
Argued by: Alice V. Mutter, Maryland Legal Aid, Rockville, MD, for Appellee.
Panel: Kehoe, Wells, Alexander Wright, Jr. (Senior Judge, Specially Assigned), JJ.
This appeal concerns appellant, B. O.’s ("Aunt"), attempt to obtain custody of K, a boy born on January 18, 2017, to appellee, S. O. ("Mother"), and L. R. ("Father").1 After the parties filed an extensive number of pleadings and participated in several hearings regarding K's custody, the Circuit Court for Montgomery County ultimately awarded custody to Mother and Aunt appealed.2
For the reasons that we discuss, we shall affirm the judgments. Specifically, we hold that the court did not abuse its discretion in finding that Mother was entitled to custody because Aunt could not prove that she was K's de facto parent, nor could Aunt prove that Mother was unfit to parent K. Despite Aunt's protests to the contrary, the court did not need to conduct a best interest of the child analysis because Aunt could neither prove de facto parentage nor could she overcome the presumption that Mother was fit. The court did not abuse its discretion in refusing to grant Aunt's motion to strike Mother's post-trial affidavits because they were not ex parte communications, as Aunt contended. And, Aunt could not show that the affidavits influenced the court's decision. The court properly denied Aunt's Motion in Limine to strike witness Shanie Yates’ testimony because Aunt's basis to exclude that testimony was that Ms. Yates failed to appear for a deposition. But the record shows that Aunt failed to properly serve Ms. Yates with a notice of the deposition. As a result, Ms. Yates had no notice of the deposition and was not obligated to appear. Aunt was properly excluded from further custody proceedings because she has no constitutional right to parent K after she could not prove de facto parenthood or that Mother was unfit. Finally, in determining whether Mother was likely to neglect or abuse K in the future under Family Law § 9-101, the court was within its discretion to order the local Department of Social Services to perform a follow-up assessment of K and Mother. In so doing, the court did not transform the proceedings into a CINA hearing, as Aunt contends.
S. O. ("Mother") is the biological parent of K, the minor child who is the focus of this case. She is also the mother of two other children who are not involved in these proceedings. Mother is a resident of Prince George's County, Maryland. B. O. ("Aunt") is a Montgomery County resident. While Mother was pregnant with K, L. R., K's father was arrested for committing multiple murders and is serving multiple life sentences.
Aunt cared for K when he was a few months old after he was removed from Mother's custody due to child neglect and domestic violence. On March 16, 2017, Aunt filed a protective order against Mother on behalf of K in Prince George's County. Mother contested the order. The order was granted for one year based on a finding of neglect. The order expired in 2018. Despite the protective order's expiration, K continued to live with Aunt up and until the trial court awarded temporary custody to Mother on December 4, 2020.
In May 2017, Mother enrolled in a substance use program run by Fields and Fields.4 While the protective order was in place, Mother saw K at Aunt's sole discretion, usually on the weekends.
At trial, Mother testified that she began living in the Fields and Fields residential addiction treatment program in January 2019 and continued to reside there until spring 2020. Once Mother moved into the Fields and Fields facility, K began spending overnights with Mother. The trial court found that K continued to primarily reside with Aunt while Mother lived at Fields and Fields, despite Mother testifying that K lived with her at Fields and Fields from January 2019 to July 2019.
On January 2, 2019, Aunt filed a new protective order against Mother on behalf of K in the Circuit Court of Prince George's County. The court entered a temporary protective order on January 2, 2019 but denied a final protective order on January 9, 2019 because Aunt failed to appear.
Following a visit to Kings Dominion amusement park in July 2019, which all parties attended, Aunt filed several protective order petitions alleging that Mother had abused K. On July 10, 2019, Aunt filed a protective order petition against Mother on behalf of K in Prince George's County. The court granted the temporary protective order that day but did not enter a final protective order one week later because Aunt did not meet the statutory burden of proof.
On July 17, 2019, the same day the final protective order was denied in Prince George's County, Aunt filed an identical petition for protection on K's behalf in the Montgomery County District Court. That court issued a temporary protective order. At the final hearing on July 24, 2019, the court dismissed the petition based on res judicata . On the same day that the District Court dismissed the petition, Aunt filed for emergency custody in the Circuit Court for Montgomery County. It is that case which forms the basis of this appeal.
Mother filed a petition for protection against Aunt on July 9, 2019 before Aunt initiated the July 2019 custody filings. At trial, Mother testified that she had applied for public benefits for K in Maryland but was denied them because Aunt was already receiving public benefits for K in the District of Columbia. Mother informed the authorities in the District of Columbia that K did not live there and the authorities in the District subsequently terminated K's benefits, raising Aunt's ire against Mother.
After the termination of benefits, Mother testified that Aunt made several threats against her. At trial, Mother testified about Aunt's repeated abuse towards her as a child and how Aunt had assaulted Mother as an adult. Aunt consented to an order of protection. The protective order did not involve custody. On July 26, 2019, Mother filed criminal kidnapping charges against Aunt after Aunt refused to return K after the expiration of the temporary protective order. The State entered those charges nolle prosequi on September 16, 2019.
At trial, Mother testified that she was asked to leave Fields and Fields due to the constant police presence caused by Aunt and Aunt's counsel sending the police to the facility. After she left Fields and Fields in February 2020, Mother moved into the home of Shanie Yates’ uncle in Greenbelt, Maryland, but did not tell Aunt. Mother testified that Aunt refused to allow her to see K unless Mother revealed where she was living. Mother explained that because there was still an active protective order between Aunt and Mother, she felt uncomfortable providing Aunt with the address. In the spring of 2020, Mother moved in with the parties’ mother, C. O., in Clinton, Maryland. Mother moved in with C. O. because Aunt refused to let Mother see K. Once Mother moved in with C. O., K began spending time with both Aunt and Mother under the pendente lite access order. Mother was living with C. O. at the start of the trial.
At the end of the trial on November 10, 2020, the court set a hearing for the ruling on December 1, 2020. Between the close of the evidence and the court's ruling, Mother filed two affidavits with the court because Mother was asked to leave C.O.’s home and Aunt was withholding access to K.
On December 1, 2020, the court concluded that Aunt did not meet her burden of proving she was a de facto parent or that Mother was unfit, thus the court awarded custody of K to Mother. Following Md. Code Ann., Fam. Law Article ("FL") § 9-101, the court ordered the Prince George's County Department of Social Services ("DSS") and/or the Montgomery County DSS to assess whether K was a Child in Need of Assistance (CINA) and submit a full report. While the court acknowledged that Mother had made positive strides since the 2017 finding of neglect, a further assessment was necessary to ascertain any possibility of future neglect to comply with the requirements of FL § 9-101.
On December 21, 2020, the court reviewed the report provided by DSS and a memorandum from Mother's attorney that provided updates regarding Mother's employment and housing and K's daycare situation. Before awarding full custody to Mother, the court considered all the evidence as well as testimony from Mother regarding her current circumstances.
This Court reviews "both the law and evidence" when reviewing actions tried without a jury. Rule 8-131(c). We "will not set aside the judgment of the trial court on the evidence unless clearly erroneous." Id. Custody decisions are reviewed for abuse of discretion, but if...
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