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Law Digest — Md. Court of Special Appeals — July 22, 2021

Maryland Court of Special Appeals

Family Law; Children in Need of Assistance: In a Child in Need of Assistance case, where the juvenile court considered the statutory factors of §5-525(f)(1) of the Family Law Article, taking into consideration the father’s past conduct, the children’s best interests, and the goal of achieving a timely, permanent placement for the children in ordering an amendment of the permanency plan to add a concurrent plan of placement with a relative for custody and guardianship, the juvenile court did not abuse its discretion in modifying a permanency plan. In re: D.M., J.M., No. 998, Sept. Term, 2020.

Insurance Law; Rules of construction: A fire escape that was physically attached to a building, including its attached ladder that descended onto a neighboring property a few feet away from the boundary of the premises, was unambiguously “at the premises” for purposes of a commercial property insurance policy. W.F. Gebhardt & Co., Inc. v. American European Insurance Co., No. 93, Sept. Term, 2020.

Family Law

Children in Need of Assistance

BOTTOM LINE: In a Child in Need of Assistance case, where the juvenile court considered the statutory factors of §5-525(f)(1) of the Family Law Article, taking into consideration the father’s past conduct, the children’s best interests, and the goal of achieving a timely, permanent placement for the children in ordering an amendment of the permanency plan to add a concurrent plan of placement with a relative for custody and guardianship, the juvenile court did not abuse its discretion in modifying a permanency plan.

CASE: In re: D.M., J.M., No. 998, Sept. Term, 2020 (filed May 25, 2021) (Judges ARTHUR, Shaw Geter & Ripken).

FACTS: Mr. M. was the father of nine-year-old D.M. and seven-year-old J.M. D.M. and J.M. first came to the attention of the Baltimore County Department of Social Services in August 2017 after their half-sibling, E.T., was born substance-exposed. At that time, D.M. and J.M. were six and four years old, respectively, and living in the care of their maternal grandmother. Both children had lived with their maternal grandmother for the majority of their lives, and the family continued living with her after J.M. was born in June 2013. Mr. M. lived with the children, their grandmother, and the children’s mother (“Ms. P.”) until he separated from Ms. P. in 2015.

After E.T.’s birth in August 2017, the Department of Social Services attempted to meet with Mr. M. and Ms. P. to determine a safety plan for D.M. and J.M. Mr. M. informed the Department that he was involved with his children but was unable to care for them because he was living in Pennsylvania and had a history of substance abuse. The parties agreed that D.M. and J.M. should be placed in temporary custody with their maternal grandmother.

On February 20, 2018, the Department petitioned the juvenile court to find that D.M. and J.M. were Children in Need of Assistance (“CINA”). On March 9, 2018, counsel for D.M., J.M., and their half-sibling filed an emergency request that the children be placed in shelter care with their grandmother, so that she would obtain the authority to make medical and educational decisions on their behalf. On that same day, the juvenile court placed the children in shelter care and granted their grandmother temporary, limited guardianship of the children.

On July 6, 2018, the juvenile court held a disposition hearing and found the children to be CINA because both parents had substance-abuse issues that prevented them from providing appropriate care. The court granted the Department custody of D.M. and J.M. and continued the placement with their grandmother. The court ordered that Mr. M. comply with various requirements, including the requirement that he participate in substance abuse treatment and submit to random drug testing. The court ordered a CINA review hearing date of December 7, 2018, and a permanency planning hearing date of May 6, 2019.

During the review period from July 6, 2018, through December 7, 2018, Mr. M. moved from Pennsylvania to Maryland. He informed the Department that he had attended a three-week drug-rehabilitation program from July to August 2018, but he did not provide the Department with requested documentation to confirm his attendance. Following his discharge from the program, Mr. M. lived with his family in Westminster and Baltimore and maintained weekly, supervised visits with the children. However, in October 2018, he was arrested and charged with possession of a stolen firearm and numerous drug-related offenses. After his arrest, Mr. M. stopped maintaining contact with the Department.

At the December 7, 2018, review hearing, Mr. M. agreed that the children should not be placed with him, but he requested unsupervised visitation. The court denied his request but continued to allow liberal, supervised visitation. The children’s maternal grandmother continued to have custody of the children and temporary, limited guardianship. The court ordered Mr. M. to maintain consistent contact with the Department, comply with substance-abuse treatment recommendations and submit to random drug screens, maintain stable, clean and hazard-free housing, and obtain gainful employment.

During the period from December 7, 2018, through May 6, 2019, when the next permanency planning hearing occurred, the Department reported that the children continued to thrive in their grandmother’s care. At the permanency planning hearing on May 6, 2019, the Department requested that the permanency plan be amended from reunification with a parent to a concurrent plan of reunification with a parent and placement with a relative for custody and guardianship or adoption. The juvenile court denied the Department’s request and continued the permanency plan of reunification.

At the next permanency plan review hearing, on October 11, 2019, the Department reported that D.M. and J.M. continued to thrive in the stability of their grandmother’s care. The Department also reported that their father had tested positive for cocaine and had refused a request to submit to a hair-follicle drug test, and had visited the children only “sporadically.” Mr. M. agreed to continue the commitment of D.M. and J.M. and to continue the guardianship with their grandmother, but argued for a continuation of the sole plan of reunification. A magistrate recommended the continuation of the sole plan of reunification. The Department filed exceptions to the refusal to recommend a concurrent plan.

On November 5, 2020, the juvenile court held the exceptions hearing and permanency plan review hearing that had been postponed for much of the year. At the hearing, the Department applauded the steps Mr. M. had recently taken but noted that the children remained CINA. As such, the Department requested that the court order a permanency plan of reunification concurrent with a plan of custody and guardianship or adoption by a relative. The juvenile court granted the Department’s exceptions in part, finding that it was in the best interests of the children to adopt a concurrent permanency plan of placement with a relative for custody and guardianship.

Mr. M. appealed to the Court of Special Appeals. The Department filed a motion to dismiss the appeal. The Court of Special Appeals denied the motion to dismiss and affirmed the order of the juvenile court.

LAW: Mr. M. first argued that the juvenile court failed to consider the requisite statutory factors of Maryland Code (1984, 2019 Repl. Vol), §5-525(f)(1) of the Family Law Article (“FL”), as required by Maryland Code (1974, 2020 Repl. Vol.), §3-823(e)(2) of the Courts and Judicial Proceedings Article (“CJP”). Under FL §5-525(f)(1), the court must consider: (i) the child’s ability to be safe and healthy in the home of the child’s parent; (ii) the child’s attachment and emotional ties to the child’s natural parents and siblings; (iii) the child’s emotional attachment to the child’s current caregiver and the caregiver’s family; (iv) the length of time the child has resided with the current caregiver; (v) the potential emotional, developmental, and educational harm to the child if moved from the child’s current placement; and (vi) the potential harm to the child by remaining in State custody for an excessive period of time. FL §5-525(f)(1)(i)-(vi).

Despite Mr. M.’s claims to the contrary, the transcript confirmed that the juvenile court did consider each of the six statutory factors, including the best interests of the children, in ordering the addition of the concurrent permanency plan. Thus, the court concluded it was in the children’s best interest to add a concurrent plan of placement with a relative for custody and guardianship.

Mr. M. further argued that the juvenile court abused its discretion in adding a concurrent plan of custody and guardianship to the existing permanency plan. Specifically, he contended that the juvenile court abused its discretion in neglecting to consider the evidence of his progress and his success in overcoming impediments to reunification. Mr. M. also asserted that the court abused its discretion by not considering the “hierarchy of placement options” of CJP §12-301, under which reunification with a parent or guardian has the highest priority.

Where the fundamental right of parents to raise their children stands in the starkest contrast to the State’s effort to protect those children from unacceptable neglect or abuse, the best interest of the child remains the ultimate governing standard. In re Adoption of Jayden G., 433 Md. 50, 68 (2013). In this case, the juvenile court reasonably concluded that, despite the steps Mr. M. had taken towards reunification, it was in the children’s best interests to add a concurrent plan of placement with a relative for custody and guardianship. The court repeatedly acknowledged that Mr. M. had made significant progress within the past several months. Moreover, it found that because Mr. M. had been working “very diligently to improve his situation,” a concurrent permanency plan of adoption was not appropriate.

While acknowledging Mr. M.’s parental rights, the juvenile court appropriately focused its inquiry on the children, not the parent. In re Adoption of Ta’Niya C., 417 Md. 90, 116 (2010). In so doing, the court found that the children were thriving in their grandmother’s home. In view of the strong and stable bond between the children and their grandmother, and their success during their placement with her, the court reasonably concluded that it was in the children’s best interests to add a concurrent plan of custody and guardianship by their grandmother.

Mr. M. contended that if the court had focused its inquiry on his recent progress, it would have found that continuing the permanency plan of reunification would be in the children’s best interests. However, it has been long since settled that a parent’s past conduct is relevant to a consideration of his or her future conduct. In re Dustin T., 93 Md. App. 726, 731 (1992). The juvenile court had discretion to consider Mr. M.’s past conduct in concluding that a concurrent plan of reunification and placement with a relative for custody and guardianship would be in the children’s best interests. The court acted within its broad discretion and in the children’s best interests in ordering the addition of a concurrent plan of placement with a relative for custody and guardianship.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: As a threshold matter, the Department and the children moved to dismiss Mr. M.’s appeal, arguing that the order was not appealable because the addition of the concurrent plan did not materially impact or diminish Mr. M.’s ability to regain custody. However, under CJP §12-303(3)(x), an interlocutory order is immediately appealable if it deprives parents of the care and custody of their children or changes the terms of such an order. In a CINA case, an order amending a permanency plan of reunification with a parent to add a concurrent plan of placement with a relative for custody and guardianship is immediately appealable under §12-303(3)(x) because the addition of a concurrent plan of placement with a relative for custody and guardianship broadens the permanency plan and has the potential to deprive a parent of care and custody of their child.

  

PRACTICE TIPS: An initial permanency planning hearing, during which the juvenile court reviews or approves of a permanency plan, must be held no later than 11 months after the child enters out-of-home placement. The permanency plan is decided in a “descending order of priority”: (1) reunification with a parent or guardian; (2) placement with a relative for adoption or custody and guardianship; (3) adoption by a nonrelative; (4) custody and guardianship by a nonrelative; or (5) another planned permanent living arrangement. The juvenile court must review the permanency plan at a review hearing at least every six months until the child is no longer committed to the Department.

Insurance Law

Rules of construction

BOTTOM LINE: A fire escape that was physically attached to a building, including its attached ladder that descended onto a neighboring property a few feet away from the boundary of the premises, was unambiguously “at the premises” for purposes of a commercial property insurance policy

CASE: W.F. Gebhardt & Co., Inc. v. American European Insurance Co., No. 93, Sept. Term, 2020 (filed May 26, 2021) (Judges FADER, Kehoe & Friedman).

FACTS: W.F. Gebhardt & Co., Inc. was the owner of a four-unit apartment building located at 2709 N. Calvert Street (“the Premises”) in Baltimore. Upon acquiring the Premises in 1966, Gebhardt converted it from a single- to a multi-family dwelling and paid to construct a fire escape at the building’s rear. The fire escape ran from the roof down to a shared metal landing connecting its second-floor balcony with the second-floor balcony of the neighboring property at 2707 N. Calvert Street. The fire escape, which Gebhardt constructed with the agreement of the then-owner of 2707 N. Calvert Street, was physically attached to both buildings.

As originally constructed, the fire escape included a narrow ladder that descended from the second-floor landing directly into the backyard of 2707 N. Calvert Street, within a foot or two of the premises. In the late summer or fall of 2017, Gebhardt discovered that the ladder was missing. Gebhardt did not initially know who had removed the ladder or when it had been removed. In April 2018, Gebhardt sued both the current owner of 2707 N. Calvert Street, a limited liability company controlled by Emery Ayers Greenidge, who lived there along with her husband, and the previous owners, Damon Burton and Jessica Jones-Smith. Gebhardt sought to establish easement rights from the Greenidges to rebuild the ladder and to recover the cost of rebuilding the ladder from the culpable party.

In late 2018, Gebhardt learned through discovery that Burton/Jones-Smith had removed the ladder in February 2016, before transferring the property to the Greenidges. In 2017, Gebhardt later learned that the ladder had been destroyed. In September 2019, Gebhardt reached a settlement with Burton/Jones-Smith, whose insurance carrier paid $30,000 to resolve the claim.

American European Insurance Company (“AEI”) insured Gebhardt for the policy period March 5, 2015 through March 5, 2016 pursuant to Commercial Package Policy CPP 1900299. Under the Policy’s Building and Personal Property Coverage, AEI undertook an obligation to “pay for direct physical loss of or damage” to covered property at the Premises caused by or resulting from any covered cause of loss. The coverage form defined “covered property” by reference to three different types of property: (1) Building; (2) Your Business Personal Property; and (3) Personal Property Of Others.

Gebhardt submitted an insurance claim to AEI for the destruction of the ladder on November 5, 2018, which was shortly after Gebhardt learned when the ladder had been destroyed, but more than a year after Gebhardt had discovered that the ladder was missing, and approximately seven months after it brought suit against the Greenidges and Burton/Jones-Smith. On November 26, 2018, AEI denied coverage. AEI based its coverage decision on two Policy exclusions. First, AEI cited an exclusion for loss or damage caused by or resulting from “loss or use or loss of market.” Second, AEI cited an exclusion for “acts or decisions, including the failure to act or decide, of any person, group, organization or governmental body.” AEI asserted that this exclusion precluded any coverage for Gebhardt’s loss, which it concluded was due to the acts and decisions of Burton/Jones-Smith.

In January 2019, Gebhardt sued AEI in the circuit court for breach of contract. Following a bench trial, the circuit court ruled that AEI did not owe coverage because the ladder was not “at” the Premises. Gebhardt appealed to the Court of Special Appeals, which reversed the judgment of the circuit court and remanded the case.

LAW: Gebhardt argued that the circuit court erred in determining that the ladder was not “at the premises” when it was destroyed. As noted, the Policy required AEI to pay for direct physical loss of or damage to covered property at the Premises caused by or resulting from any Covered Cause of Loss.” AEI asserted that the circuit court was correct in determining that the meaning of “at,” in the phrase “at the premises,” was ambiguous because it could mean “in,” “on,” or “near”; and that the court properly resolved that ambiguity in favor of excluding the meaning of “near” because such a meaning would provide insufficient guidance for AEI to determine its coverage obligations. Gebhardt contended that “at” was unambiguous and that it applied to a ladder that was part of a fire escape that was physically attached to the building, even if the ladder ultimately descended onto the neighboring property. Gebhardt further argued that even if the term was ambiguous, extrinsic evidence favored its interpretation.

Traditionally, to supply contractual language with its ‘ordinary and accepted meanings,” courts consult the dictionary definition of such terms. Credible Behav. Health, 466 Md. 380, 394-95 (2019). According to the Merriam-Webster Collegiate Dictionary, “at” is “used as a function word to indicate presence or occurrence in, on, or near.” At, Merriam-Webster Collegiate Dictionary 77 (11th ed. 2014). The same dictionary defines “in,” when referring to location, as “used as a function word to indicate inclusion, location, or position within limits,” id. at 627, and “on,” when used in the same context, as “used as a function word to indicate position in contact with and supported by the top surface of,” or “in close proximity with,” or “the location of something,” id. at 865. The word “near” is defined as “at, within, or to a short distance.” Id. at 828. The word “at” thus encompasses several concepts, including an object that is within certain, specified boundaries (“in”), located upon a particular surface (“on”), or located within a short distance of something (“near”). That definition supported Gebhardt’s interpretation of the Policy as applying not only to outdoor fixtures that are in or on a covered premises, but also to fixtures that are in close proximity to it.

The other definition on which the circuit court relied was from the fourth edition of Black’s Law Dictionary, which defined “at” as “a term of considerable elasticity of meaning, and somewhat indefinite.” With respect to location, the definition provided that the word “means ‘near’ or ‘near to,’ and involves the idea of proximity.” At, Black’s Law Dictionary 159 (4th ed. 1968). That definition was entirely consistent with the definition from Merriam-Webster and supported the conclusion concerning the meaning of the word.

After reviewing those two dictionary definitions, the circuit court apparently concluded that the definition of “at,” by including the concepts “in,” “on,” and “near,” was ambiguous because it was unclear which of those concepts might apply. This interpretation was a misreading of the definition, which incorporates all of those concepts. That the word is broad enough to encompass multiple concepts is a feature of its meaning, not an inherent ambiguity. See Fister ex rel. Estate of Fister v. Allstate Life Ins., 366 Md. 201, 217-18 (2001).

The general grant of coverage for covered property at the Premises applied not just to the Policy’s Building coverage, but also to its Your Business Personal Property coverage. To that extent, it was notable that the latter coverage expressly extended to personal property “located in or on the building described in the Declarations or in the open (or in a vehicle) within 100 feet of the described premises.” It could be presumed that the contrasting use of the broader term “at” in the general coverage grant was intentional, which counseled against interpreting that term as synonymous with “on.”

AEI contended that the Policy’s express application to personal property located within 100 feet of the Premises in the Your Business Personal Property coverage section, with no similar provision applied to fixtures in the Building coverage section, favored its interpretation that the Building coverage was limited to fixtures that were “on” the Premises. That interpretation ignored the structure of the coverage grant. The general grant of coverage applied to “Covered Property at the Premises.” The Policy then defined the three particular types of property” to which that general grant applied. That the Policy included additional limitations or specificity could not be reasonably be read to restrict the general grant of coverage that applied to all three. AEI’s proposed interpretation would require narrowing the general coverage grant by replacing the word “at” with the narrower word “on,” in spite of the Policy’s separate and presumably purposeful use of that distinct term in other places.

Furthermore, the context of the contract was building coverage that expressly applied to “outdoor fixtures” of a commercial property that was used for multi-family rental housing in an urban setting. In that context, it was difficult to conceive of a reasonable interpretation of “at the Premises” that would not apply to a fire escape that was owned by the insured, was physically attached to the roof and second floor of the premises, had a final ladder that descended to the ground within feet of the premises, and was necessary to the operation of the premises as multi-family residential housing. For these reasons, the circuit court erred in adopting an overly restrictive interpretation of “at” as synonymous with “on.” Based on the unambiguous terms of the Policy, the fire escape ladder was “at the premises” and, therefore, AEI owed coverage unless precluded by an applicable exclusion.

Accordingly, the judgment of the circuit court was reversed, and the case was remanded for further proceedings.

COMMENTARY: Even if the phrase “at the Premises” were ambiguous, warranting a consideration of extrinsic evidence, the final conclusion would remain the same. Neither party presented any evidence concerning the negotiation or drafting of the policy language. In the absence of any extrinsic evidence weighing in favor of AEI’s interpretation of the Policy, Gebhardt’s reasonable interpretation would prevail. Thus, if it were found that the phrase “at the premises” was ambiguous because it could reasonably be interpreted to include or exclude the fire escape ladder, the Policy would still be interpreted against AEI.

  

PRACTICE TIPS: In applying the objective theory of contract interpretation, courts look to dictionary definitions to identify the common and popular understanding of the words used in the contract as evidence of what a reasonable person in the position of the parties would have understood those terms to mean. Such definitions are thus useful in determining whether the language of a contract is unambiguous. Extrinsic evidence, by contrast, is evidence that reflects on the parties’ subjective intent in entering the contract, which is appropriately considered only for the purpose of resolving an ambiguity in the contract.