Basciano v. Foster

Decision Date01 November 2022
Docket Number1978-2021
PartiesJOHN BASCIANO v. WILLIAM R. FOSTER, ET UX.
CourtCourt of Special Appeals of Maryland

JOHN BASCIANO
v.

WILLIAM R. FOSTER, ET UX.

No. 1978-2021

Court of Special Appeals of Maryland

November 1, 2022


Circuit Court for Anne Arundel County Case No. C-02-FM-20-001874

Kehoe, Leahy, Friedman, JJ. [*]

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OPINION

LEAHY, J.

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In Conover v. Conover, the Court of Appeals first recognized de facto parenthood as "a viable means to establish standing to contest custody or visitation." 450 Md. 51, 59 (2016). Judge Adkins, writing for the Court, profoundly acknowledged that "[c]hild custody and visitation decisions are among the most serious and complex decisions a court must make, with grave implications for all parties." Id. at 54.

Appellant John Basciano ("Father") appeals from an order of the Circuit Court for Anne Arundel County establishing the appellees, Colleen Foster and William R. Foster (collectively, the "Fosters"), as de facto parents. The Fosters are the maternal grandparents of the only child between Father and their daughter, Katie Lynn Foster ("Mother").[1] The court granted Father and the Fosters joint legal custody of the minor child with tie-breaking authority to the Fosters, and primary physical custody to the Fosters. In the first of three issues raised in this appeal, we review whether the circuit court abused its discretion in finding that, despite the absence of consent by either of the child's parents, "exceptional circumstances" warranted granting the child's maternal grandparents de facto parenthood status under the test enunciated by the Court of Appeals in Conover.

Applying the holdings and the principles imparted in Conover and the Court's more recent opinion in E.N. v. T.R., 474 Md. 346 (2021), we hold that where a child's existing legal parents both do not consent to the formation of a parent-like relationship between the child and a third party, the third party has failed to establish a de facto parent relationship.

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Because neither Father nor Mother consented to the development of a parent-like relationship, de facto parenthood cannot be conferred on the Fosters under the first factor of the H.S.H.-K.[2] test adopted in Conover. See E.N., 474 Md. at 401 ("Read to its logical conclusion, to satisfy the first factor, where there are two legal parents, both parents must knowingly participate in consenting to and fostering the third party's formation of a parentlike relationship with a child."). We further conclude, however, that based on the circumstances in this case, the circuit court did not abuse its discretion in finding exceptional circumstances sufficient to award the Fosters third-party custody of their grandchild.[3]

BACKGROUND

Father and Mother, who never were married to each other, are the biological parents of their only child, C., who was born in January 2020.

On or about July 22, 2020, the Fosters were contacted by the Maryland Department of Human Services and were informed that Mother and Father had overdosed on heroin while caring for C., who was just six months old. Drugs and drug paraphernalia were found in several areas of the apartment.

C. was placed in the care of the Fosters, and the Anne Arundel Department of Social Services executed a safety plan. The Safety Plan reflected that C. "will remain in the care of maternal grandparents . . . due to parental drug use." It instructed that any visitation

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from Mother and Father "be supervised at all times" by the Fosters. The Safety Plan was signed by both the assessor and Mr. Foster. While Father was present when the Safety Plan was discussed, the Plan does not bear his signature. Both Mother and Father were arrested and charged with drug offenses and child endangerment.

Emergency Complaint for Custody

The Fosters filed a complaint for custody and motion for emergency and ex parte relief on July 27, 2020, and Mr. Foster appeared for an emergency hearing before a magistrate that same day.

At the hearing, Mr. Foster testified that, on the night of July 22, 2020, he was contacted by someone at the Maryland Department of Human Services, who informed him that his daughter had overdosed on heroin. Father also overdosed the prior night in the same apartment. Mr. Foster rushed to the apartment to pick up C. so that he would not be placed in foster care.

Mr. Foster explained that, after Mother had been sober for 11 months, the Fosters got Mother an apartment "on her own just a couple of days before this incident" and were unaware that Father "was in the area or in the apartment." Mr. Foster opined that Father is "a present danger to both my daughter and the baby. And every time he shows up, we have these kind of problems. So we had no idea that [Father] was involved until the police called us."

The magistrate found that extraordinary circumstances existed and recommended granting temporary custody of C. to the Fosters on July 27, 2020. Specifically, the magistrate found:

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The Plaintiffs (maternal grandparents) were given physical custody of the infant minor child when the Defendant (mother) overdosed on heroin and was taken to the hospital on Thursday night. The mother's current drug abuse makes her incapable of caring for the child. The Defendant (father) overdosed on Wednesday night, after checking himself out of a drug treatment program. It is believed that the father supplied the mother with her drugs.

A circuit court judge entered an order ratifying the magistrate's findings and recommendations that same day. The court's order also directed the Fosters to serve the complaint for custody and summons on Mother and Father.

Father and Mother were served with process on August 14 and 20, respectively. Father then filed an answer to the complaint on October 2, 2020. He alleged that he did not supply drugs to Mother and was "getting help for [his] addiction" by completing a "30-day rehab" and participating in an outpatient program. Mother answered the complaint on January 6, 2021.

After Father's counsel entered an appearance, Father filed an amended answer. Among other things, he alleged that, "after the overdose incident on July 23, 2020, [Father] immediately sought the proper help and treatment necessary to live a sober life in order to be the best parent he can be for the minor child. [Father] has continued in his treatment and will likewise continue such treatments and therapies for the foreseeable future." Father requested that the court award him "sole physical and legal custody of the minor child" or, in the alternative, "determine a graduated access plan between the [Fosters], [Father], and the minor child where the end result awards primary physical custody to [Father]."

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Parenting Plan

On May 25, 2021, the Fosters and Father "reached a temporary agreement regarding access" with C., titled "Parenting Plan - Overnight Visitation Stipulation." At the time, Father was living with his parents. The Parenting Plan, signed by Father and his parents and approved by the Fosters, required Father, among other things, to maintain "active membership in a state certified drug recovery program" and provide documentation of this status to the Fosters every 30 days. The Plan required Father to submit to a hair follicle drug test and undergo a urinalysis every seven days and provide those results to the Fosters. The Plan further required Father to "continue with psychotherapy and/or medication management [], follow recommended treatment, and comply with prescription medication requirements." Every 21 days, Father was obligated to provide a letter from his psychotherapist or "medication management doctor" stating whether he is following recommended treatment and "is a present risk to harm himself or third persons."

Father's parents, the Bascianos, agreed to report Father's "behavior honestly and accurately prior to and during overnight visitation" and to "request that [Father] immediately vaca[te] their residence if drug intoxication and/or mental health episodes are witnessed or even suspected." They also agreed to supervise C., and that "at no time shall [Father] or any third party be left alone unsupervised" with C.

The court ratified the parties' agreement into a pendente lite order regarding visitation on the same day.

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Custody Evaluation

On May 26, 2021, the court ordered a custody evaluation. As explained below, the court-appointed custody evaluator appeared at the custody hearing and presented her findings and recommendations. Her report was admitted into evidence.

Merits Trial

The case proceeded to a one-day trial on December 15, 2021.

The Fosters' Case-in-Chief

Following opening arguments, counsel for the Fosters called Heather Szymanski, a special educator with the Anne Arundel County Public Schools. Ms. Szymanski was assigned to work with C. twice a month through the Infants and Toddlers Program and focused on "building basic play skills and social interaction and communication." She explained that she had "definite concerns of autism and his social interaction" and that "communication would be the biggest concern[] right now." Ms. Szymanski recommended that C. move to a "more intensive program" focused on autism. Because the program was weekly, C. would not be able to attend the program during weeks that he was with Father and his parents in New Jersey.

Ms. Szymanski then testified that C. was "showing a five[-]month development" in communication at his initial testing when he was actually 16-months old. According to Ms. Szymanski, it was "extremely important for [C.] to receive services and to get the type of services that he needs" because, to a child who may have autism, such services make "a huge difference for what the outcome looks like . . . when they start kindergarten." On cross-examination, Ms. Szymanski did not have enough knowledge of New Jersey's

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programs to opine whether they were similar to Maryland's but agreed that the coaching model employed at the County was "widely...

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