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Law Digest — Md. Court of Appeals — Aug. 12, 2021

Maryland Court of Appeals

Criminal Procedure; Transfer to juvenile court: In determining a juvenile defendant’s amenability to treatment in the juvenile system, the trial court must determine what programs are available to the defendant in the juvenile and adult systems, whether the defendant would be willing to participate constructively in the juvenile program, and whether he or she would benefit from it in a way that would reduce the likelihood of recidivism better than anything available in the adult system, and, where the trial court looked at amenability to treatment solely in terms of whether the defendant was eligible for programs available in the juvenile system and gave little or no consideration to whether he was willing to participate in those programs and whether he could benefit from them, the court failed to apply the proper standards in considering the defendant’s motion to transfer to the juvenile court. Davis v. State, No. 51, Sept. Term, 2020.

Family Law; De facto parenthood: Where the conduct of one legal parent met the requirement that the parent consent to and foster the prospective de facto parent’s formation and establishment of a parent-like relationship with children, but the record demonstrated that the second legal parent did not expressly or impliedly consent to and foster the prospective de facto parent’s formation of parent-like relationship with the children, the first factor of the four-factor de facto parent test was not satisfied, and thus the trial court erred in concluding that the person was a de facto parent to the children and in granting that person joint legal custody and sole physical custody. E.N. v. T.R., No. 44, Sept. Term, 2020.

Criminal Procedure

Transfer to juvenile court

BOTTOM LINE: In determining a juvenile defendant’s amenability to treatment in the juvenile system, the trial court must determine what programs are available to the defendant in the juvenile and adult systems, whether the defendant would be willing to participate constructively in the juvenile program, and whether he or she would benefit from it in a way that would reduce the likelihood of recidivism better than anything available in the adult system, and, where the trial court looked at amenability to treatment solely in terms of whether the defendant was eligible for programs available in the juvenile system and gave little or no consideration to whether he was willing to participate in those programs and whether he could benefit from them, the court failed to apply the proper standards in considering the defendant’s motion to transfer to the juvenile court.

CASE: Davis v. State, No. 51, Sept. Term, 2020 (filed July 12, 2021) (Judges Barbera, McDonald, Watts, Getty, Booth, Biran & WILNER (Senior Judge, Specially Assigned)).

FACTS: On March 22, 2017, when he was just 16 years old, Howard Davis, along with two other young men, participated in an armed home invasion in Baltimore County. During that invasion, shots were fired, and one of the family members was grazed with a bullet and battered with the butt of an assault rifle wielded by Davis. For that activity, Davis was charged in a 14-count indictment that included two counts of attempted first-degree murder, home invasion, first-degree assault, use of a firearm in the commission of a crime of violence, and reckless endangerment. Upon his arrest, he was detained in the Charles H. Hickey School, a detention facility operated by the Department of Juvenile Services (“DJS”).

Because of Davis’s age and the nature of some of the offenses charged, the criminal division of the circuit court had exclusive original jurisdiction over Davis, subject to a transfer of that jurisdiction to the Juvenile Court division of the circuit court pursuant to Md. Code, §4-202 of the Criminal Procedure Article (“CP”). Davis moved for such a transfer (commonly referred to as a “reverse waiver”) and asked the court to order a study pursuant to CP §4-202(e). In anticipation of such a motion, four Reports were prepared for the court: a Reverse Waiver Report prepared by DJS case management specialists, a Mental Health Summary Form prepared by a Hickey mental health clinician, and a Detention Court Report and Detention Behavior Report prepared by Hickey case management specialists.

The Reverse Waiver Report, dated May 15, 2017, addressed the five statutory factors that the court would be required to consider in determining whether to transfer its jurisdiction, namely: (1) the age of the child; (2) the child’s physical and mental condition; (3) the child’s amenability to treatment in any institution, facility, or programs available to delinquents; (4) the nature of the offense(s); and (5) public safety. The Report gave Davis’s age and details about his physical condition, including that he had a heart murmur and seasonal allergies and that he had suffered from asthma in the past but had not had an attack for five years. His mother reported that Davis had become withdrawn and depressed recently and had been drinking and using unlawful drugs, which Davis admitted.

Going through the five factors, the circuit court found that Davis was 16 but less than a month away from his 17th birthday, that his physical and mental condition was good, and that his intelligence level was at least average. The crux of the issue for the court was a combination of the third, fourth, and fifth factors — amenability to treatment in the juvenile system, the nature of the crime, and public safety. Based on its assessment of these factors, the circuit court denied Davis’s Request to Transfer Jurisdiction to the Juvenile Court.

Following that ruling and facing trial in the criminal court, Davis entered a conditional plea of guilty to two counts of first-degree assault and the one count of use of a firearm during the commission of a crime of violence, subject to (1) the State’s dismissal, upon a finding of guilty, of the other counts and recommending a split sentence of actual incarceration with a cap of ten years, and (2) an understanding that the court had agreed to a cap of no more than ten years followed by a suspended portion of incarceration and a period of probation. The plea allowed Davis to file an appeal limited to pretrial issues litigated in the circuit court. The plea agreement was honored. Davis was sentenced to concurrent prison terms of 15 years, with all but ten suspended for the assault convictions and a concurrent term of five years, without parole, for the firearm offense. The sentencing judge recommended that Davis be admitted to Patuxent Institution for inclusion in its youth program, but this recommended admission did not occur.

Davis appealed his conviction to the Court of Special Appeals, which affirmed the judgment of the circuit court. Davis then appealed to the Court of Appeals, which reversed the judgment of the circuit court and remanded the case.

LAW: Davis argued that the trial court did not apply the proper legal standards in its assessment of his “amenability” to treatment as the term is used in CP §4-202(d). Davis complained that, in denying his motion to transfer, the trial court looked at amenability to treatment solely in terms of whether he was eligible for programs available in the juvenile system and gave little or no consideration to whether he was willing to participate in those programs and whether he could benefit from them.

As stated in Md. Code, §3-8A-03 of the Courts and Judicial Proceedings Article (“CJP”), among the purposes of the subtitle that governs delinquency proceedings is to provide for the care, protection, and wholesome mental and physical development of children coming within the provisions of this subtitle; to provide for a program of treatment, training, and rehabilitation consistent with the child’s best interests and the protection of the public interest; to conserve and strengthen the child’s family ties and to separate a child from his parents only when necessary for his welfare or in the interest of public safety; and to provide to children in State care and custody a safe, humane, and caring environment, access to required services, and provide judicial procedures for carrying out the provisions of the subtitle. Subsection (b) requires that the subtitle be liberally construed to effectuate those purposes. The considerations for waiver of Juvenile Court jurisdiction set forth in CJP §3-8A-06 most clearly, and the near identical considerations for transfer of criminal court jurisdiction set forth in CP §4-202(d) implicitly, must be construed in light of those purposes, particularly in defining the concept of amenability. Of the five considerations in that section, only “amenability to treatment in any institution, facility, or program available to delinquents” is not self-defining. “Amenability” is not defined in the Code or in the DJS regulations.

Black’s Law Dictionary (11th ed. 2019) defines “amenable” as “acknowledging authority; ready and willing to submit,” giving as an example “suitable for a particular type of treatment.” The Merriam-Webster Dictionary defines the term as “ready or willing to answer, act, agree, or yield; open to influence, persuasion, or advice; agreeable; submissive; tractable” and “capable of or agreeable to being tested, tried, analyzed, etc.” Webster’s New Universal Unabridged Dictionary (2nd ed. 1979) defines the word as including “willing to follow advice; open to suggestion; submissive.”

In Davis’s case, the trial court did mention amenability but made only two exceedingly brief comments regarding it: one, that DJS indicated it would need to conduct another evaluation; and two, that Davis would be eligible for behavioral modification. Notwithstanding the wealth of evidence regarding Davis’s amenability to treatment in the juvenile system contained in the Reports presented to the court and in the testimony of clinical psychologist Kristen Zygala and licensed social worker Jenna Conway, these comments were the entirety of the court’s assessment. Assessing amenability to treatment requires more.

To determine amenability to treatment, the court needs to know what treatment is or will be available to meet the child’s needs and address the child’s problems. Presumably, the State, through DJS or other entities, would have that information as part of a waiver/transfer study, even if it is in the form of options that may depend on further evaluations and the child’s progress. The court needs to determine whether those programs would, in fact, be available to the child, for if not, as to that child, they do not exist. Evidence that there were, in fact, DJS programs that could address Davis’s needs and problems was presented to the court in considerable detail and was not contradicted. Because the trial court did not consider amenability – the ultimate determinative factor that takes into account each of the other four factors – properly, it was necessary to remand the case for a new transfer hearing to apply the five considerations in CP §4-202.2(b).

Accordingly, the judgment of the Court of Special Appeals was vacated, and the case was remanded to that Court with instructions to remand the case to the circuit court for further proceedings.

COMMENTARY: Because more than three years had elapsed since the January 2018 hearing, Davis was now 20 years old, not 17. The jurisdiction of the Juvenile Court over him would end in less than a year. His physical and mental condition might have changed, and whether he remained a danger to public safety would have to be judged in the present, to determine what he had learned from three years in prison.

Davis conceded that he committed the offenses that brought him before the trial court and did not intend to seek a withdrawal of his guilty plea in that court or an adjudicatory hearing in the Juvenile Court. All he sought was to have the case transferred to the Juvenile Court for a disposition hearing. Upon remand to the circuit court for a new hearing on Davis’s transfer motion, if the circuit court denied David’s motion, the judgment of the criminal court would stand. If the court granted the transfer motion, it would vacate the current judgment and transfer the case for a disposition hearing in the Juvenile Court, to be guided by the findings that led the criminal court to transfer its jurisdiction. See CP §4-202.2(b) and (e).

  

PRACTICE TIPS: In criminal cases involving a juvenile, the welfare of the child and public safety are interrelated. In determining whether to transfer a child’s case to the juvenile court, the court must make an assessment of whether it is likely that the child would benefit from an available Department of Juvenile Services program better than he or she would from anything likely to be available in the adult system and whether that would reduce the likelihood of recidivism and make the child a more productive law-abiding person. These are quality assessments that can be based on evidence of how those programs or kinds of programs have worked with other children, from actual data or from reliable studies.

Family Law

De facto parenthood

BOTTOM LINE: Where the conduct of one legal parent met the requirement that the parent consent to and foster the prospective de facto parent’s formation and establishment of a parent-like relationship with children, but the record demonstrated that the second legal parent did not expressly or impliedly consent to and foster the prospective de facto parent’s formation of parent-like relationship with the children, the first factor of the four-factor de facto parent test was not satisfied, and thus the trial court erred in concluding that the person was a de facto parent to the children and in granting that person joint legal custody and sole physical custody.

CASE: E.N. v. T.R., No. 44, Sept. Term, 2020 (filed July 12, 2021) (Judges Barbera, McDonald, WATTS, Hotten, Getty, Booth  & Biran).

FACTS: E.N. was the biological mother of two minor children, G.D. and B.D. D.D. was the biological father of the children. The four lived together as a family until late 2009, when D.D. was incarcerated for drug offenses. Thereafter, the children lived with E.N. and E.N.’s mother, their maternal grandmother.

In late 2013, D.D. was released from prison and entered into a new relationship with T.R., to whom he was engaged at the time of the trial in this case. In 2015, D.D. and T.R. purchased a home together, and, later that year, the children moved in with the couple. The children lived with D.D. and T.R. until late 2017, when D.D. was incarcerated again for drug offenses, this time in a federal prison in Pennsylvania.

After D.D.’s incarceration, the children continued to live with T.R. In November 2017, while T.R. and the children were visiting the children’s paternal grandparents, E.N. arrived and sought the return of her children. E.N. was rebuffed by T.R., and law enforcement officers were called to the house. The children returned from the grandparents’ home to T.R.’s house the following day.

In February 2018, T.R. filed in the circuit court a complaint for custody, seeking sole legal and physical custody of the children. E.N. filed a countercomplaint, seeking sole legal and physical custody of the children. Despite expressly determining that E.N. did not consent to or foster the children’s relationship with T.R. or even know T.R., the circuit court concluded that T.R. was a de facto parent of the children. The circuit court granted joint legal custody of the children to T.R. and E.N., with tie-breaking authority awarded to T.R., and granted sole physical custody of the children to T.R., with visitation for E.N., the children’s biological mother.

E.N. appealed to the Court of Special Appeals, which affirmed the circuit court’s judgment. The Court of Special Appeals held “that a de facto parent relationship may be established by the conduct of only one legal parent” even where there are two extant legal parents and that a de facto parent has an equal fundamental constitutional right with the legal parents concerning the care, custody, and control of a child. E.N. appealed to the Court of Appeals, which reversed the judgment of the Court of Special Appeals.

LAW: E.N. contended that a fit legal parent is entitled to custody of her children over a third party asserting de facto parentship where the objecting fit legal parent neither consented to nor fostered the de facto parentship formed on account of the other legal parent. E.N. argued that a legal parent has a fundamental, constitutional right to the care and custody of the parent’s child, such that the parent is entitled to raise the “child without being subjected to litigation brought by the government or a third party unless the legal parent is unfit or exceptional circumstances make custody with the parent detrimental to the best interests of the child.” E.N. asserted that both the circuit court and Court of Special Appeals incorrectly applied the multi-factor test for de facto parentship set forth in Conover by concluding that a de facto parent relationship may be established by the conduct of only one legal parent where there are two legal parents.

The term “de facto parent” means “parent in fact” and is used to describe a party, other than a child’s legal parent, i.e., biological or adoptive parent, who claims custody or visitation rights based upon the party’s relationship with a non-biological, non-adopted child. Conover v. Conover, 450 Md. 51, 62, 68 n.12 (2016). In Conover, a case involving only one biological parent, the Court of Appeals recognized de facto parenthood in Maryland and adopted a four-factor test set forth by the Supreme Court of Wisconsin in In re Custody of H.S.H.-K., 533 N.W.2d 419, 421, 435-36 (Wis. 1995). Conover, 450 Md. at 85. Under this test, a person seeking de facto parent status must prove the following when petitioning for custody of or visitation with a child: (1) that the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child; (2) that the petitioner and the child lived together in the same household; (3) that the petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation; and (4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature. Conover, 450 Md. at 74.

It is well established that the right of parents to direct and govern the care, custody, and control of their children is a fundamental right protected by the Fourteenth Amendment of the United States Constitution. Conover, 450 Md. at 60. Maryland has consistently echoed the Supreme Court, declaring a parent’s liberty interest in raising a child a fundamental one that cannot be taken away unless clearly justified. In re Yve S., 373 Md. 551, 566 (2003). Where the dispute is between a fit parent and a private third party, the rights of parents to custody of their children are generally superior to those of anyone else.” Conover, 450 Md. at 60. As such, a third-party seeking custody or visitation must first show unfitness of the natural parents or that extraordinary circumstances exist before a trial court could apply the best interests of the child standard. Id. at 61.

The de facto parenthood test set forth in Conover measures the relationship between the putative de facto parent and the child – a relationship formed with the biological parent’s knowledge and consent – without reference to the parent’s characteristics or the relationship’s origins.” In re Yve S., 373 Md. at 574.  The relevant concepts of consent generally fall into two categories: express consent and implied consent. “Express consent” is consent that is clearly and unmistakably stated, whereas “implied consent” is consent inferred from one’s conduct rather than from one’s direct expression. Express Consent, Black’s Law Dictionary (11th ed. 2019); Implied Consent, Black’s Law Dictionary (11th ed. 2019).

When using the H.S.H.-K. test, where a child has only one legal parent, it is not necessary to find that the existing legal parent is unfit or that exceptional circumstances exist because, if the existing parent’s conduct shows that the parent fostered and consented to the formation of the putative de facto parent’s relationship with the child, nothing more need be shown with respect to the parent. The circumstances are clearly different where, as here, a child has two existing legal parents with equal constitutional parental rights. For the well-being of children and family relationships in Maryland, before establishing de facto parenthood where there are two existing legal parents, both parents must be shown to have consented to a third party’s formation of a parent-like relationship with a child or, in the alternative, that one or both parents are unfit or exceptional circumstances exist.

In the present case, in the absence of E.N.’s consent either express or implied to the formation of a parent-like relationship between T.R. and her children, the first factor of the H.S.H.-K. test was not satisfied. G.D. and B.D., the minor children, had two existing biological parents: E.N. and D.D. As to D.D., the record established that D.D. did not expressly seek de facto parenthood status for T.R. The record revealed that D.D. sought for T.R. to have custody of the children via legal guardianship – an arrangement that requires the consent of both parents – while he was incarcerated in federal prison for drug offenses.

Insofar as D.D. was concerned, T.R. satisfied the first factor of the H.S.H.-K. test by demonstrating that D.D.’s conduct met the requirement that he consent to and foster her formation and establishment of a parent-like relationship with the children. As such, were D.D.  the only legal parent of the children, the analysis of the first factor of the H.S.H.-K. test would be complete. However, it was undisputed that the circuit court found that E.N. did not expressly or impliedly consent to or foster T.R.’s parent-like relationship with the children. Although E.N. knew that D.D. had a “romantic partner,” E.N. did not “positively identify” her, know her, or even meet her until November 2017. During the time period that the children lived with D.D. and T.R., E.N. visited the children on at least one occasion. Moreover, the circuit court determined that this case did not involve a voluntary abandonment or surrender of the children on either parent’s part. Thus, the record demonstrated, as the circuit court found, that E.N. did not impliedly consent to and foster T.R.’s formation of a parent-like relationship with the children.

In sum, under the first factor of the test for establishment of de facto parenthood (whether the biological or adoptive parent consented to, and fostered, a petitioner’s formation and establishment of a parent-like relationship with a child), where there are two legal (biological or adoptive) parents, the prospective de facto parent must demonstrate that both legal parents consented to and fostered such relationship, or that the non-consenting legal parent is unfit or exceptional circumstances exist. Accordingly, the judgment of the Court of Special Appeals was reversed. The case was remanded to the Court of Special Appeals with instruction to remand to the circuit court for that court to vacate the judgment awarding joint legal custody and sole physical custody to T.R.

COMMENTARY:  It is without doubt that the best interest of the child standard governs all determinations with respect to children. See, e.g., Conover, 450 Md. at 60. In this case, a determination in keeping with the best interest of the child was ensured by permitting de facto parenthood to be established either through the consent of both legal parents or a showing of unfitness or exceptional circumstances. Because exceptional circumstances may be demonstrated even in the presence of two fit legal parents, where the consent of one parent is absent, a trial court will necessarily be in a position to review the facts and circumstances that are unique to each case and make a determination as to a prospective de facto parent’s standing.

DISSENT: The best interests of G.D. and B.D. were not furthered by the Court’s holding allowing E.N., who voluntarily absented herself from the children’s lives for more than two years and who was not an active parent to the children when they lived with her before then, to sever T.R.’s parental-type bond with the children. T.R. formed that bond with the consent of their father and gave the children love and stability, and T.R.’s bond with G.D. and B.D. was a relationship that should not be ignored. As such, the consent of one legal parent should be sufficient to establish the necessary “consent” under the first part of the H.S.H.-K. test.

  

PRACTICE TIPS: In determining whether to award joint custody to two parents, one of the factors a trial court is to consider, in addition to the capacity of the parents to communicate and reach shared decisions affecting the child’s welfare, is the fitness of the parents. The psychological and physical capabilities of both parents must be considered, although the determination may vary depending upon whether a parent is being evaluated for fitness for legal custody or for physical custody. A parent may be fit for one type of custody but not the other.