B.G. v. M.R.

BARBERA, J. B.G., appellant, appeals from a judgment of the Circuit Court for Prince George’s County granting custody of his three biological children — Byron, Brittoney, and Brooke — to their maternal grandmother, M.R., appellee. Appellant presents six questions on appeal. 1 We, however, need only consider one: whether the court’s finding of “exceptional circumstances” to justify placing appellant’s children in the custody of a third party, appellee, can be upheld in light of the Court of Appeals’ recent decision, McDermott v. Dougherty, 385 Md. 320 , 869 A.2d 751 (2005). For the reasons we discuss below, we shall vacate the judgment and remand for further proceedings. FACTS AND PROCEEDINGS Appellant and F.G.

(hereinafter “mother”) were divorced on September 14, 2000. Under their divorce agreement, appellant and mother had joint custody of their children: Byron, born November 29, 1992; Brittoney, born December 17, 1993; and Brooke, born April 18, 1995 (hereinafter, “the children”). Appellant and mother alternated physical custody of the chil ⁵³⁶ dren each week. Regardless of who had physical custody of the children, appellee, the maternal grandmother, provided day care for the children each day before and after school while their parents were at work, as she had done before the parents’ divorce.

Appellee received $75.00 per week for her services. Appellant was diagnosed with human immunodeficiency virus (“HIV”). 2 Appellant did not take his medications consistently for quite some time after his diagnosis. 3 As a result, his health deteriorated. He was hospitalized in January 2000 with acute pancreatitis, and again in 2001 with a liver infection. Doctors subsequently changed appellant’s diagnosis to acquired immune deficiency syndrome (“AIDS”).

HIV is a retrovirus that infects a type of white blood cell known as the CD4+ lymphocyte. Commonly referred to as “helper T-cells,” CD4+ cells play an important role in helping the body fight viral, parasitic and fungal infections. See Bragdon v. Abbott, 524 U.S. 624, 634 , 118 S.Ct. 2196, 2203 , 141 L.Ed.2d 540 (1998) (summarizing natural course of untreated HIV disease). If a person infected with HIV does not receive appropriate treatment, the disease may progress, lowering the level of CD4+ cells in the person’s blood.

Id. If untreated, HIV disease progression leads to immune deficiency, making the infected individual vulnerable to certain opportunistic infections and possibly death. See Carlos del Rio & James W. Curran, Epidemiology and Prevention of Acquired Immunodeficiency Syndrome and Human Immunodeficiency Virus Infection, in Mandell, Douglas, and Bennett’s Principles and Practice of Infectious Diseases 1477, 1484-86 (Gerald L. Mandell et al. eds., Elsevier, Inc. 6th ed.2005) (1979). “HIV disease” is a term that describes all phases of HIV infection. Acquired Immune Deficiency Syndrome, or AIDS, is a term that refers to significant suppression of the immune system of a person with HIV....

See Ctrs. for Disease Control and Prevention, 1993 Revised Classification System for HIV Infection and Expanded Surveillance Case Definition for AIDS Among Adolescents and Adults, 41 (RR-17) Morbidity & Mortality Wkly. Rep. (1992). ⁵³⁷ Appellant was also hospitalized in August 2003 for eye surgery related to a retinal detachment caused by an infection. Complications from the eye infection caused appellant to become legally blind in his right eye. 4 Appellant has suffered from various other AIDS-related health problems, including, inter alia, jaundice, staph infections, problems with his hip, boils, and depression.

Despite his illness, appellant maintained employment with Verizon, where he had worked for 12 years, first as a service technician and then as a project manager until the spring of 2003. After being laid off, appellant collected unemployment, and eventually Social Security disability benefits. In August 2004, he was still looking for work, and planned to pursue a “Return to Work” program through the Social Security Administration. Sometime in 2003, mother apparently became concerned that appellant could not take care of the children because of his deteriorating health.

Appellant stopped seeing the children regularly in August 2003. At a time not clear from the record, mother filed a motion to modify custody. In early February 2004, the parties appeared in court on the motion. Mother was represented by counsel, and appellant appeared pro se.

At the hearing, appellant orally agreed to sign a consent order giving mother sole legal custody of the couple’s children. Appellant never signed the consent order. He later testified that, at the time of the hearing, he did not understand the difference between legal and physical custody. When he received the order from mother’s counsel, and learned that he would be giving sole legal custody — instead of physical custody — to his former wife, he refused to sign it, and he retained counsel. ⁵³⁸ On February 10, 2004, mother was murdered by her brother’s estranged wife, in the home mother was sharing with her brother.

The children, who recently had been residing exclusively with mother, were in the house at the time. Just after mother’s murder, Brittoney called appellee. Appellee came to mother’s house and accompanied the children to the hospital. Eventually, the sheriff released the children to appellee’s custody.

On February 12, 2004, appellee filed a complaint for custody and request for an emergency hearing, instituting the action sub judice. Appellant lived at an assisted living facility from January 2004 until April 2004. In April, appellant leased a two-bedroom apartment, where he was living at the time of trial. Appellant secured that apartment so he could have appropriate sleeping arrangements for his children.

The trial on the merits of appellee’s complaint was held on August 25, 2004. Appellee testified that she was 72 years old and had been married to her husband for 51 years. Mother was the youngest of appellee’s five children, and appellee has 13 grandchildren. Appellee lives with her husband and appellant’s children in a four-bedroom house.

The house was paid off approximately 10 years ago. Appellee had one heart attack in 1995, and one in 2003. 5 She has smoked for the last 50 years, and at the time of trial, smoked about half a pack of cigarettes per day. Appellee’s husband smokes as well, although no one smokes in their house. Appellant testified that in the past, his CD4 cell count had “been all the way down to 1,” and his viral load had “been so high that they couldn’t read it.” 6 According to appellant’s ⁵³⁹ medical records, as of February 5, 2004, his CD4 cell count was 9 cells/mm3 and his viral load was 2457 copies/mL.

As of August 4, 2004, appellant’s CD4 cell count was 186 cells/mm3 and his viral load was 156 copies/mL. Based on appellant’s low viral load and increased cell count, his condition appeared to be improving by the time of trial. At the conclusion of the evidence and after hearing counsel’s arguments, the court adjourned for the day. The next morning, the court delivered its findings and custody ruling.

The court first found that appellant was “not unfit”: After carefully listening to the testimony of the parties and their witnesses, and most importantly, after a thorough review of the medical records, the Court does not believe that as of this trial date, [appellant] is unfit because of his health. After he left the assisted living facility in April 2004, he has been taking his medications regularly, and the Court has accepted and gives great weight to ... a notarized affidavit from Dr. [C.G.], and that is dated August 25th, 2004, stating, among other things, that it is her opinion that [appellant’s HIV infection should not at this time have any medical effect on his ability to take care of his children. She goes on to say I am not able to make any determination about other factors that may impact on [appellant’s ability over time to provide for the care and support of his children.... Just as importantly, I have also reviewed all the medical records that have been submitted into evidence in this case.

And my conclusions are that only when [appellant] does not take his medication does he reach a stage where he cannot properly care for his children. He has been hospitalized ⁵⁴⁰ approximately three times since 2000. And it has only been, and those hospitalizations were only for a couple of days. He currently appears to be being treated regularly at the [ ] Hospital, and he is being monitored closely.

The Court can only conclude from the evidence that has been presented during this trial that he is not unfit to care for his children. The court found, however, that there were exceptional circumstances sufficient to rebut the presumption that the children’s best interests were best served in appellant’s custody. The court explained that finding as follows: [Listening carefully to the testimony, reviewing the evidence, the Court concludes that this case, indeed, has exceptional circumstances. [Appellee] has been more than the normal grandmother to Byron, Brittany [sic], and Brooke. She has served as the surrogate mother to these three children since their birth.

She has provided both preschool care and after school care to all three children. In fact, despite the fact that the natural mother was at one time living in Charles County, and [appellant] was living in Lanham, the children attended school [near appellee’s home], and have always attended these schools since they started school. And those schools are in close proximity to [appellee’s husband]’s house. And these children have never attended any other school.

Because this Court concludes that [appellee] has been there for these children since birth, not only as a grandmother, but as a surrogate parent, it is clear to this member of the bench that this is, in fact, unusual circumstances. It is also unusual circumstances that their mother ... was murdered six days after the hearing before Judge [Sherrie] Krauser, and which the grandmother was able and ready to step right in and raise these three children in her home. In other words, given the trauma that these three children observed and had to live through, they were able to move right into their grandmother’s home and not have to adjust to a home that they were not comfortable with. ⁵⁴¹ Therefore, the Court believes that [appellee] has successfully overcome the presumption that a natural parent has over someone considered a third party. The Court then found that it was in the best interest of the children to award custody of them to appellee.

We set forth here most of that extensive ruling: And I have gone through the custody factors one by one. And I will now review them. The first factor is the fitness of the parents. Now, when we say parents in here, I am including [appellee] and [her husband]. [Appellee] is 72 years old, and [her husband] is 75 years old.

They have been married for 51 years, and have had five children and thirteen grandchildren. The [bi-level] home that they have lived in for 37 years has been paid offf,] ... and appears to be adequate for the purposes of the three children.... Both [the husband] and [appellee] are retired, and thus able to provide full time [ ] attention to the children. [He] receives a retirement pension from the Post Office, and they both collect Social Security. In an in camera interview with the children, all three of them expressed great love and devotion to both their grandmother and their grandfather....

It was brought out in testimony that [appellee] has suffered two heart attacks, but she appears to me to certainly have all of her facilities. And she appears to have recovered satisfactorily, or at least she believes that she has. ... [Appellant] is also a fit person to raise his children. In my discussions with the children, they all expressed great love for him, but were worried about his illness.... They stated that he takes his medications all the time, and I am quoting the children, “because he wants to take care of us.” I can’t think of a better reason to take your medications.

The children did not express any negative thoughts or issues at all about their father. We discussed his driving, and the children inform me he has special mirrors on his car because of his eyesight. They like going to the park with ⁵⁴² him, they like watching TV with him, movies and sometimes with Byron ... they play golf. The next factor I am going to discuss is the character and reputation of the parties.

The Court was extremely impressed that none of the children expressed any alienation at all from either the father or the grandmother or grandfather. It is clear that both parties have tried hard and have not tried to influence these children as to what they should say or what they want them to say. The next factor I have to look at is the desire of the natural parents and any agreement between them. The natural father, [appellant], did, on February the 4th, 2004 consent to giving sole legal custody and primary physical custody to his former wife, [mother]. [7] During the marriage to [mother], the natural father, [appellant], apparently did not object to the grandmother caring for the children before and after school, even after the parties were divorced.

The next factor is the potential for maintaining natural family relations. The strength of both [appellee] and [appellant] is they both have very strong family support. [Appellant] has brothers and sisters who have helped look after him and visit him regularly. Byron, Brittany [sic], and Brooke enjoy the relationships with their cousins on [appellant]^ side, and there is frequent visitation. [Appellee] has five married children and thirteen grandchildren, and they are all frequent guests in her home. The children, again, express great love and affection for their cousins, and they very obviously have strong ties to their aunts and uncles. [Appellee] stated in her testimony that if ⁵⁴³ she gets custody, [appellant] can have visitation whenever he wants.

The Court concludes that both parties would encourage continuing these relationships with the extended family. But given the circumstances of [appellant], the Court believes that [appellee] would be more likely to encourage these continuing relationships than would [appellant]. The other factor the Court considers is what is known as preference of the children.... [A]U three children expressed great love and affection for their father and for their grandparents. When asked their preference, Byron stated he hadn’t really thought about it.

And the two girls basically stated that they liked their present arrangements as they are living with their grandparents. The Court believes that given the trauma that these children underwent regarding the murder of their mother, the Court believes that the one thing that these children need most in their life is stability. They have basically lived with the grandparents since birth, and undisputedly since their mother’s death. To change their primary residence at this stage, the Court believes would be unsettling to say the least.

Now, I am going to discuss the maternal [sic] opportunities affecting the future life of the children. As a result of their mother’s demise, the three children are receiving SSI benefits in the approximate amount of $3000. [Appellant] also receives SSI benefits as a result of his disability from AIDS. [Appellant] is presently unemployed and is looking for a position. [Appellant] does not pay child support, but none is being requested and does not appear to be needed, given the children’s SSI benefits. Because Byron needs help in his reading skills, [appellee] has enrolled him for the past summer into the Sylvan Learning Center.... ⁵⁴⁴ The next factor I will discuss is the age, health in general of the children. Byron [ ] is 11 years old, Brittany [sic] is 10 years old, and Brooke is 9 years old.

All appear to be physically healthy.. .. Their emotional difficulties involving the traumatic demise of their mother is being handled by a therapist on a weekly basis.... The children appear to be mostly healthy, despite this event, and are apparently doing well in school.... I next reviewed the factor of the residence of the parents and the opportunity for visitation.

The grandparents have lived in their house for 37 years. It is a home that these children are comfortable with since their infancy. It appears to be adequate for their needs, even when additional grandchildren visit or spend the night.... [Appellant] has been living in an apartment since April 1st, 2004, and it has two bedrooms. The children immensely enjoy the visits with their father, and they do these visits every other weekend....

The next factor is the length of separation between the parents. Essentially, the three children have never had a separation from their grandparents.... On the other hand, [appellant] shared custody with [mother] on alternating weeks[,][and] ... [appellant] acknowledged that from October 2003 through December 2003, he [had] very little contact with the children because of his illness. ... He has also had little to no contact with the children when he was in the assisted living facility from January to March.

The next factor was whether there was a previous voluntary abandonment or surrender of custody of the children, and I think that has already been previously discussed. Weighing these factors, the Court finds that both [appellee’s husband] and [appellee] are fit and proper persons to have custody of the three children. However, due to unusual circumstances, and weighing the factors, the Court concludes that it is in the best interest of these children to ⁵⁴⁵ remain with [appellee] in order to provide the children the [ ] stability that they need. And I will grant [appellee] sole legal custody with reasonable and liberal rights of