In re Adriana T.

HOTTEN, J. This appeal arises from a decision from the Circuit Court for Prince George’s County, sitting as a juvenile court, which ordered the termination of the parental rights of appellant— mother, Monet T. (“Mother”) for minor child, Adriana T. (“Adriana”). Mother apparently exhibited delusional behavior while in labor, and the Prince George’s County Department of Social Services (“Department”) authorized limited custody, and placed Adriana in foster care.

The Department filed a Child in Need of Assistance (“CINA”) petition, alleging that Mother was unable to care for the child. The court ordered that Adriana be placed in the Department’s temporary custody for continued foster care placement. Following a hearing, the court determined that Adriana was a CINA and permitted placement with a relative. The Department filed a Petition for Guardianship with the Right to Consent to Adoption, to which Mother filed an objection.

Adriana’s father, Detuan J. (“Father”), consented to the termination of his parental rights. Following a hearing on the petition, the court entered judgment terminating parental rights. Mother noted an appeal, and presents two questions for our consideration: 1.

Did the court err in permitting a social worker to testify by telephone when [appelleej-child had not complied with Md. Rule 2-513? 2. Did the court err in admitting irrelevant evidence? For the reasons outlined below, we affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND Mother, now thirty-seven years of age, has suffered from Delusional Disorder Persecutory Type since she was seventeen. 1 On December 20, 2001, Mother suffered from a psychi ⁵⁵⁰ atric episode and believed that her mother, Mary T.

(“Grandmother”) was complicit in a conspiracy against her. An argument ensued between Mother and Grandmother. Mother left Grandmother’s residence, but returned with a handgun. Mother fired two shots at Grandmother, striking her in the chest and abdomen, but Grandmother survived.

Mother was arrested and charged with several criminal offenses. 2 On June 16, 2003, Mother was found not criminally responsible and was committed to Perkins Hospital until her conditional release on March 26, 2007. 3 On November 25, 2009, Mother, who was pregnant, was admitted to the Prince George’s Hospital Center because of a preeclampsia diagnosis, 4 which posed a serious health risk to Mother and the unborn child. Mother disregarded the physician’s warning and left the hospital. On November 30, 2009, Mother returned to the hospital, but during labor, she again attempted to leave. However, she gave birth to Adriana, and ⁵⁵¹ was subsequently involuntarily committed to the hospital’s mental health unit until December 8, 2009.

The hospital sent a report to the Department, explaining that Mother was a risk to herself and to others, and recommended that she not be left alone with the baby. The Department’s child protective services investigator interviewed Mother to determine if she was capable of caring for Adriana. Due to Mother’s mental state and the inability to identify other relatives in the interim, the investigator issued a report of limited custody. 5 On December 7, 2009, Adriana was discharged from the hospital and placed in foster care. On December 8, 2009, the Department filed a CINA petition for Adriana. 6 On December 14, 2009, following a hearing which reflected Mother’s absence and Father’s concurrence with foster care, the juvenile court ordered that Adriana be placed in the temporary care and custody of the Department.

The court granted Mother and Father visitation rights, but ordered that visitation be supervised by the Department. 7 ⁵⁵² During a hearing on March 10, 2010, Mother contended that Adriana was not a CIÑA, and that based on her history of compliance with therapy and medication, she posed no danger to the child. Although the court found that Mother’s physicians indicated her return to therapy and compliance with her medication regimen, there were no mental health evaluations or laboratory results to confirm this. The court “[was] not willing to take a chance on Mother,” and determined that Adriana was a CIÑA and could be placed with a relative. 8 In May 2010, after the approval of the Interstate Compact for the Placement of Children (ICPC) process, 9 the Department placed Adriana with Grandmother, in North Carolina, where she currently resides. During this time, Ms. Joyce Trott (“Ms. Trott”), the North Carolina social worker, visited Grandmother’s residence once a month, monitored Adriana’s care, and provided reports to the Department.

On October 29, 2010, the Department filed a Petition for Guardianship with Right to Consent to Adoption. Father consented to the petition, but on December 16, 2010, Mother noted her objection. On April 8, 2011, the court determined that the matter was a contested guardianship, and ordered a hearing on the merits. On June 28, 2011, Adriana filed a motion to take Ms. Trott’s testimony by telephone. 10 On June 29, 2011, Mother filed a response, arguing that (1) the motion was not filed in a timely ⁵⁵³ fashion and it lacked the required contents, 11 which deprived her of the opportunity to depose, oppose, and contact the witness; (2) the court could not determine the witness’ demeanor and credibility; and (3) substantial prejudice would result because she would not have the opportunity for face-to-face cross-examination.

On July 6, 2011, the court granted Adriana’s motion. Additionally, over Mother’s objections, the court permitted Grandmother to testify regarding her medical recovery from the gunshot wounds that Mother inflicted. On April 2, 2012, the court ordered that Mother’s parental rights be terminated under § 5-323(d) of the Family Law Article. 12 Thereafter, Mother noted a timely appeal. STANDARD OF REVIEW In In re Adoption/Guardianship of Ta’Niya C., 417 Md. 90, 100 , 8 A.3d 745 (2010), the Court of Appeals outlined the standard in reviewing a juvenile court’s decision to terminate parental rights: Namely, [wjhen the appellate court scrutinizes factual findings, the clearly erroneous standard of [Rule 8-131(c) ] ⁵⁵⁴ applies.[ 13 ] [Second,] [i]f it appears that the [court] erred as to matters of law, further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless.

Finally, when the appellate court views the ultimate conclusion of the [court] founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the [court’s] decision should be disturbed only if there has been a clear abuse of discretion. Id. (quoting In re Yve S., 373 Md. 551, 586 , 819 A.2d 1030 (2003)) (citations omitted). The trial court is vested with broad discretion in determining the admissibility of evidence.

See Md. Rule 5-104(a). “Whether to admit lay opinion testimony is vested in the sound discretion of the trial judge.” Bey v. State, 140 Md.App. 607, 623 , 781 A.2d 952 (2001) (citation omitted). Specifically, the trial courts have wide discretion in permitting witnesses to testify by telephone. Audio tape: Hearing on the Notice of Proposed Rules Changes: held by the Court of Appeals on the 163rd Report (March 8, 2010). During the Court of Appeals’ hearing on Md. Rule 2-513, the Honorable Sally D. Adkins stated, “Obviously, this is going to be a discretionary decision by the trial courts.” The trial court abuses its discretion “ ‘where no reasonable person would take the view adopted by the trial court,’ ” or when the court does not refer to any guiding principles or rules.

In re Yve S., 373 Md. at 583 , 819 A.2d 1030 (quoting In re Adoption/Guardianship No. 3598, 347 Md. 295, 312-13 , 701 A.2d [¶] (1997)). “Questions within the discretion of the trial court are ‘much better decided by the trial judges than by appellate courts, and the decisions of such judges should only be disturbed where it is apparent that some serious error or ⁵⁵⁵ abuse of discretion or autocratic action has occurred.’ ” In re Caya B., 153 Md.App. 63, 74 , 834 A.2d 997 (2003) (quoting In re Adoption/Guardianship No. 3598, 347 Md. at 312 , 701 A.2d 110 ) (internal quotation omitted).

II

DISCUSSION A. Did the Trial Court Err in Permitting the North Carolina Social Worker to Testify By Telephone? Md. Rule 2-513 became effective on July 1, 2010. This rule permits telephone testimony in civil cases under certain conditions. See Reporter’s Note to Proposed Rule 2-513, Md. Reg., Yol. 37, Issue 3, Friday, January 29, 2010.

Our task is to determine whether the court erred in permitting Ms. Trott’s testimony by telephone. Md. Rule 2-513(b)(2) reads, in relevant part: When testimony taken by telephone allowed; applicability. A court may allow the testimony of a witness to be taken by telephone (1) upon stipulation by the parties or (2) subject to sections (e) and (f) of this Rule, [infra] on motion of a party to the action and for good cause shown. During trial, Mother avowed that Adriana failed to satisfy the “good cause” exception.

Good cause permits the court to have “some discretion in enforcing the notice requirement, and allows a court, in certain circumstances, to avoid an unjust conclusion.” Prince George’s County v. Longtin, 419 Md. 450, 467 , 19 A.3d 859 (2011). Md. Rule 2-513(e) states: Good cause. A court may find that there is good cause to allow the testimony of a witness to be taken by telephone if: (1) the witness is otherwise unavailable to appear because of age, infirmity, or illness; (2) personal appearance of the witness cannot be secured by subpoena or other reasonable means; (3) a personal appearance would be an undue hardship to the witness; or ⁵⁵⁶ (4) there are any other circumstances that constitute good cause for allowing the testimony of the witness to be taken by telephone. In attempting to orient the Court of Appeals Standing Committee on Rules of Practice and Procedure [hereinafter “Rules Committee”], concerning proposed Md. Rule 2-513, the Honorable Paul E. Alpert, 14 speaking on behalf of the MSB A Judicial Administration Section, stated, “[telephone testimony would be allowed if the presence of a witness [was] not available because of financial limitations or because of personal availability.

To safeguard abuse of this procedure, the court must find good cause to allow it.” Court of Appeals Standing Committee on Rules of Practice and Procedure, Minutes of Meeting of November 16, 2007 at 12, 16. Adriana alleged that she possessed a lack of funds to finance Ms. Trott’s travel and hotel expenses, thereby satisfying the good cause exception pursuant to Md. Rule 2—513(e)(4). Md. Rule 2-513(c) reads: Time for filing motion. Unless for good cause shown the court allows the motion to be filed later, a motion to take the testimony of a witness by telephone shall be filed at least 30 days before the trial or hearing at which the testimony is to be offered.

Adriana’s motion was filed fourteen days prior to the first day of trial, and fifteen days prior to the date that the testimony was offered. As noted previously, during trial, Mother challenged the timeliness of the motion, alleging she was deprived of the opportunity to depose the witness because the motion failed to include the subject matter of the witness’ expected testimony. Additionally, she contended that she was unable to contact the witness because of Adriana’s failure to include the witness’ name, address, and telephone number. ⁵⁵⁷ During trial, the following colloquy indicated that there was good cause to permit the untimely motion: THE COURT: I’m saying for the factor of community adjustment, if I don’t grant this motion, then the only testimony will be from the grandmother. [DEPARTMENT’S COUNSEL]: That is correct, Your Honor. [ADRIANA’S COUNSEL]: Your Honor, I do know that Ms. Trott is the only unbiased resource that has monthly seen [Adriana]. THE COURT: I was trying to say that in a nice way— [THE COURT]:—that she’s more independent.

THE COURT: ... But, I’m saying it would have appeared then that the only source for that element will be someone who’s with the child every day in North Carolina. 'And then I don’t know if they have, I looked at his witness list. I don’t think there’s anyone else who’s going to be able to provide that to me. You agree?

Unless I let Ms. Trott testify. Furthermore, Mother acknowledged that Ms. Trott’s testimony was “material to the case as it [went] to some of the core issues that ... the [c]ourt must [have] examine[d] under the [termination of parental rights] statute. So, it [did] impact the case.” Hence, the court did not abuse its discretion in concluding that there was good cause to allow the motion to be filed after the deadline. The Rules Committee’s minutes read, in relevant part, as follows: Judge Alpert told the Committee that the 30-day period provided for in section (c) had been decreased from the initial time period suggested.

A lawyer may need time to prepare as to who the witnesses will be. The 30-day period [was] discussed before it was chosen. The [Committee] Chair [,the Honorable Joseph Murphy,] commented that ⁵⁵⁸ when one lawyer proposes to the other that a witness’s testimony be taken by telephone, the lawyer who has been asked may wish to do some investigation before deciding whether to agree to this----The Chair suggested that the time period could be changed to 15 days, but he expressed the opinion that the 30-day time period [was] not unreasonable. The [trial] court [could] allow the motion to be filed later, so that solve[d] the time problem....

Court of Appeals Standing Committee on Rules of Practice and Procedure, Minutes of Meeting of November 16, 2007 at 12, 25-26. Regarding the inability of Mother to depose Ms. Trott, although a thirty-day notice was not given, Mother had received Ms. Trott’s monthly reports to the Department, through their incorporation into the Department’s CINA review reports, which the court took judicial notice of at the onset of the hearing. Thus, Mother received notice of the content of Ms. Trott’s status reports and accordingly, was aware of what she would communicate through her testimony. Concerning Mother’s inability to contact Ms. Trott, the court willingly assessed the lack of the required contents and determined that Adriana’s failure to include the contents were immaterial: THE COURT: [I will] address each and every one of these elements or it will come back.

And I’m not going to leave anything out. So if there’s something missing and I feel it’s material, I will, also, delay this and take [Adriana’s counsel’s] suggestion and do it in two weeks if I’m not satisfied. Mother next asserts that it was necessary for the court to assess Ms. Trott’s demeanor and credibility. “If a party objects to the testimony, a court shall not allow the testimony of a witness to be taken by telephone unless the court finds,” among other factors, that “the demeanor and credibility of the witness are not ... critical to the outcome of the proceeding.” ⁵⁵⁹ Md. Rule 2—513(f)(3). During trial, Mother argued the following: ... [I]t has, the [c]ourt has the, it’s duty to determine the credibility of all witnesses and case law has in a variety of different cases said that it is absolutely preferred that witnesses be present for the [c]ourt to observe the demean- or of the witness as opposed to other means of providing that testimony....

In Phillips v. Venker, 316 Md. 212, 220 , 557 A.2d 1338 (1989), the Court of Appeals noted an unwillingness in conducting evidentiary matters by telephone because of the inability to ascertain the witness’ demeanor during testimony. However, the Rules Committee recommended a broadening of electronic means to utilize telephone testimony in certain judicial proceedings. See Proposed Rule 2-513, Md. Reg., Vol. 37, Issue 3, Friday, January 29, 2010. Since Md. Rule 2-513 is relatively new, we examine the development of the rule to obtain helpful background information.

The Rules Committee drafted subsection (f)(2) as follows: (f) When Testimony Taken by Telephone is Prohibited If a party objects, a court shall not allow the testimony of a witness to be taken by telephone if the court finds that: (2) the demeanor and credibility of the witness are or may be critical to the outcome of the proceeding Judge Adkins noted that the Committee’s wording indicated a presumption that telephone testimony was permitted. She further stated, “Well, I’m wondering if it should be, if the burden should be shifted a little bit, so that the judge should only do it if it makes certain findings.” The Court agreed, and decided to construct the letter of the rule such that it indicated “affirmative findings,” so the presumption was that telephone testimony was not permitted unless the court made specific findings. Thus, the wording was changed to the following: (f) When testimony taken by telephone is prohibited. If a party objects, a court shall not allow the testimony of a witness to be taken by telephone unless the court finds that: ⁵⁶⁰ (3) the demeanor and credibility of the witness are not likely to be critical to the outcome of the proceeding We have not found any Maryland case law on the specific issue, nor have the parties supported their contentions with case law.

While this issue is one of first impression in Maryland, several jurisdictions have undertaken consideration of the safeguards required under similar circumstances. Md. Rule 2-513 was modeled after a statute and rule in Oregon. Court of Appeals Standing Committee on Rules of Practice and Procedure, Minutes of Meeting of November 16, 2007 at 12, 18. Hence, we consult Oregon’s cases, in addition to other sister states, to determine the extent a witness’ credibility may be material, as well as the fair opportunity to cross examine witnesses who testify by telephone in civil proceedings.

In State v. Parker, 317 Or. 225 , 855 P.2d 636, 639 (1993), the Oregon Supreme Court resolved the conflict of whether the trial court erred in permitting the defendant’s expert to testify via telephone. There, the defendant was indicted for driving under the influence of intoxicants and for breaching the duty of a reasonable and careful driver. Id. at 637. The defendant motioned for a continuance because his initial expert was unavailable for trial.

Id. at 639. The court denied the motion, but permitted the telephone testimony from another expert witness. Id. The defendant averred that the court’s denial was prejudicial because he could not present demeanor evidence.

Parker, 855 P.2d at 639 . The Oregon court determined that the defendant had obtained three continuances and had adequate time to prepare for expert testimony. Id. As a result, the loss of demeanor evidence was not material, so there was no abuse of discretion.

See id. In Babcock v. Employment Div., 72 Or.App. 486 , 696 P.2d 19, 20 (1985), the plaintiff averred that the Employment Appeals Board violated Oregon’s statutes and rules when it conducted a telephone hearing in deciding to deny her unem ⁵⁶¹ ployment benefits. Specifically, the plaintiff asserted that the Administrative Law Judge (ALJ) could not adequately determine the witnesses’ demeanor and credibility. Id. at 21.

The Oregon court concluded that although the physicality of a witness was a clue to credibility, a witness’ assertion and how he or she asserted it was of equal and greater value. Id. “Beyond testing credibility by the inherent plausibility of a witness’ testimony ...,” the court concluded that the “audible indicia of a witness’ demeanor [was] sufficient” for the ALJ to find an adequate judgment concerning believability. Id. (citations omitted).

But see State ex rel. Juvenile Dep’t of Multnomah County v. Gates, 86 Or.App. 631 , 740 P.2d 217, 218 (1987) (“The opportunity to observe a witness is so critical to judicial control and effective cross-examination that its denial is manifestly prejudicial.”). In In re Juvenile Appeal (Docket No. 10155), 187 Conn. 431 , 446 A.2d 808, 812 (1982), the incarcerated father testified from prison relating to the termination of his parental rights. The father argued that the trial court erred because it could not assess his demeanor while testifying.

Id. The Supreme Court of Connecticut concluded that: We cannot, however, say that the lack of a visual image seriously disadvantaged the trial court in making its determination. The referee heard the [father’s] testimony directly and took the opportunity to ask several questions of his own. On this record, limiting the opportunity to assess the [father’s] demeanor to its auditory component seems to us to entail only the most marginal risk that the referee would be misled in evaluating the [father’s] credibility.

Id. In In re Megan L., 128 N.M. 618 , 995 P.2d 1060, 1062 (Ct.App.2000), the New Mexico Court of Appeals sought to determine whether the trial court abused its discretion in permitting telephone testimony during a termination of parental rights (“TPR”) proceeding. 15 The Children, Youth & Fam ⁵⁶² ilies Department (CYFD) received a referral that a child had been sexually abused by her stepfather. Id. CYFD filed a motion to terminate the parental rights, and sought to elicit telephone testimony of six CYFD witnesses. 16 Id. at 1063 .

Among other contentions, the mother asserted that the witnesses should have been personally presented because the court needed to evaluate their “demeanor, body language, and other physical aspects.” Id. at 1064 . Since the witnesses merely testified regarding the mother’s evaluation and the child’s behavior, the New Mexico court held that the mother failed to demonstrate that any of the witnesses’ credibility and veracity were critical issues requiring their personal presence. See id. at 1067-68 . In the case sub judice, when Mother’s counsel alluded to the court’s assessment of Ms. Trott’s demeanor and credibility, the following colloquy ensued: THE COURT: That probably is more important with respect to a witness other than a social worker.

Just your regular civilian witness. I think jurors more so than a judge need to look at their demeanor when they’re testifying. I don’t think that that [sic] criteria is actually applicable to this witness, per se. I just don’t think in the nature of her business that that [sic] would be a factor for me.

I mean, she’ll say what’s she’s going to say. I’m not going to say that her demeanor she— [MOTHER’S COUNSEL]: Certainly. THE COURT:—slides this way or slides this way [sic], or sits up or sits down ... Ms. Trott was involved in Adriana’s case since May 2010, and visited Adriana and Grandmother once a month.

On July 7, 2011, the following colloquy ensued during the hearing: ⁵⁶³ [ADRIANA’S COUNSEL]: And what have you observed about [Grandmother’s] case for Adriana? LMS. TROTT]: I think she has provided excellent care for her. She certainly has everything materially that she needs at her apartment.

When she talks to her, she has a firm but a gentle voice with her. She’s able to easily get her attention. Adriana is responsive. I don’t see any fear with Adriana.

And I think just as she’s getting to her age now she has a little gleam in her eye when she wants to do something or she knows she’s being, you know, corrected or something like that. Demeanor-based credibility is a witness’ outer appearance and mannerisms while testifying before the fact finder. State Bd. of Physicians v. Bernstein, 167 Md.App. 714, 759 , 894 A.2d 621 (2006). Credibility is at issue in any case concerning testimonial evidence.

Dpt. of Health & Mental Hygiene v. Shrieves, 100 Md.App. 283, 299 , 641 A.2d 899 (1994). For instance, the credibility of a witness in a criminal case is regularly a significant issue. Sivells v. State, 196 Md.App. 254, 278 , 9 A.3d 123 (2010), cert. granted 418 Md. 397 , 15 A.3d 298 (2011). Here, Ms. Trott was a disinterested party, who testified to Adriana’s general welfare during her placement with Grandmother.

Thus, we agree with the court that Ms. Trott’s