In re: G.T.

In re: G.T., No. 1160, September Term 2020. Opinion by Wells, J. CHILD CUSTODY – VISITATION – STANDARD OF REVIEW A three-tiered standard of review applies to child custody cases. Factual findings are examined under the clearly erroneous standard. If the court erred as a matter of law, further proceedings by the court will be required unless the error is harmless.

Finally, ultimate conclusions based on sound legal principles and factual findings that are not clearly erroneous are subject to an abuse of discretion standard of review. CHILD CUSTODY – VISITATION – FL § 9-101 AND COMAR 07.02.11.05 APPLICABILITY FL § 9-101 instructs courts when to award or deny visitation. Once the court has awarded visitation, FL § 9-101 is inapplicable to situations in which a child subsequently refuses to participate in the ordered visitation. Instead, COMAR 07.02.11.05 instructs the Department of Social Services to implement a visitation plan that refers the child to a therapist for assistance in resolving the issue rather than forcing the child to participate.

CHILD CUSTODY – VISITATION – BURDEN OF PERSUASION The parent seeking visitation has the burden of persuading the court that the requirements of FL § 9-101 that allow an award of visitation are met. Here, where the parent made no attempt to argue that the statute’s requirements were met, the juvenile court did not err by not awarding unsupervised visitation. CHILD CUSTODY – VISITATION – DELEGATION Courts may not delegate their authority to determine visitation to the child subject to the order or to a therapist. However, a court commits no error by taking into account the opinions of the child and therapist—and even placing great weight on such opinions—in making its decision, so long as it does not delegate its authority.

Circuit Court for Baltimore City Case No. 820253005 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1160 September Term, 2020 ______________________________________ IN RE: G.T. ______________________________________ Kehoe, Arthur, Wells, JJ. ______________________________________ Opinion by Wells, J. ______________________________________ Filed: May 26, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-05-26 09:57-04:00 Suzanne C. Johnson, Clerk On September 10, 2020, the Baltimore City Department of Social Services (“DSS” or “the Department”) filed a Shelter Care Petition for the appellant, G.T.1 The Department alleged that G.T.’s mother, Donna (“Mother”), had neglected, abused, or been unable or unwilling to give G.T. the proper amount of care and attention. On October 9, 2020, counsel for Mother requested that the court compel G.T. to participate in in-person visitation with her. A family court magistrate recommended that due to the COVID-19 pandemic, she would defer to DSS’s policy regarding in-person visitation and recommended that family therapy address the issue. The recommended order, however, was silent as to visitation.

On November 24, 2020, Mother filed an emergency motion for in-person visitation. A magistrate denied the request without a hearing on December 1, 2020. Counsel for Mother requested an immediate review of the magistrate’s recommendation. After a hearing, the circuit court denied Mother’s request for in-person visitation on December 8, 2020.

Although a contested adjudicatory hearing was scheduled for and took place on January 6, 2021, Mother, nonetheless, filed this appeal on December 10, 2020. Before this Court, Mother raises one question, which we have slightly rephrased and separated into two questions for clarity and organizational purposes:2 1 To protect the privacy of the appellant, a minor, we refer to her by her initials only. For this same purpose, we refer to her family members by either their first name or a random alphabetical letter only. 2 Mother’s verbatim question reads: 1. Did the juvenile court err in denying visitation to Mother? 1.

Did the circuit court’s decision to not force G.T. to participate in visitation with Mother violate Maryland Code (1984, 2019 Repl. Vol.), Family Law Article (“FL”), § 9-101? 2. Did the circuit court err by delegating its authority in determining whether visitation to Mother should be awarded? For the reasons that follow, we hold that the circuit court properly denied Mother’s request to force G.T. to participate in visitation with her.

We conclude that the court need not have satisfied the FL § 9-101 requirements, as Mother claimed, but the court nonetheless satisfied the statute’s factors. Further, the court did not delegate to G.T. or a family therapist the authority to determine whether Mother would be granted visitation or not. Accordingly, we affirm the judgment of the juvenile court. FACTUAL BACKGROUND A. G.T.’s Familial Relationship and Childhood G.T. was born to Mother and Father on June 20, 2013.

Mother and Father have an older daughter, B.,3 born on July 22, 2010. B. does not live with either of her parents, but instead lives with a paternal cousin. Neither Mother nor Father have had custody of B. since 2011, two years before G.T. was born. Additionally, Mother has another daughter who was born on August 23, 2004 who also is not in Mother’s care.

Father and Mother ended their relationship after G.T.’s birth. 3 For the child’s privacy, we assign a random alphabetical letter as a pseudonym. 2 B. Mother’s Past Substance Abuse Problems and Recovery Efforts B. was born exposed to non-prescribed benzodiazepines, marijuana, and opiates. During her pregnancy with B., Mother tested positive for these drugs on at least nine occasions. Once B. was born, Mother continued to use drugs, as evidenced by a video presented to the Circuit Court for Baltimore County in which Mother can be seen snorting a white powdery substance from a table and Mother passing out with B. in her arms. An agent with the Baltimore County Department of Social Services also described a car accident that Mother caused because she was intoxicated.

B. was a passenger. Mother denied that B. was in the car but acknowledged the crash. These events led the circuit court to order B.’s sheltering. Because of Mother’s use of cocaine and abuse of prescription drugs such as Xanax, in February 2019, Mother was referred to drug rehabilitation treatment at the Recovery Network Organization.

When G.T. was six years old, Mother left G.T. home alone and overdosed. When it was time to register G.T. for kindergarten, Mother did not register G.T. until two months after the start of school. Once G.T. began kindergarten, her school reported that she was absent for an extensive amount of days and that when she did show up to school, she frequently wore the same clothing that had not been washed. Additionally, police received several calls that drug trafficking was occurring in Mother’s home.

Mother’s treatment at the Recovery Network initially appeared successful. She reached sobriety and was moved to the Marion House. However, after another resident at the Marion House accused Mother of relapsing, she was involved in an altercation with the 3 resident. Mother left the Marion House with G.T. that same day.

The Marion House referred Mother to inpatient treatment at Recovery Network, where she previously went to rehab before coming to the Marion House. C. Father’s Addiction and Domestic Violence Problems In addition to Mother, Father has likewise suffered from drug as well as alcohol addiction. Also, Father had exhibited a history of domestic violence. Mother has brought assault charges against Father in 2011 and was granted a protective order from him.

In 2017, Father was charged with violating the protective order against Mother. Father is also on probation for assault against his current girlfriend, Angela. He was charged with assault in February of 2020 and his trial was scheduled for October 2020. Additionally, Father has a history of domestic violence against a third woman.

Father currently rents a bedroom in a house, to which he has access to the common areas. Father’s girlfriend’s two children stay with Father and his girlfriend in the bedroom that he rents and sleep on a mattress that is stored in a closet. D. Events of September 9, 2020 When Mother left the Marion House, she checked into a room at a Motel 6 with G.T. Around midnight or the early morning of September 9, 2020, Mother left G.T. alone in the motel room. A stranger in an adjoining room and an employee at the motel supervised G.T. to ensure that she did not leave the premises.

When Mother had not returned for several hours, someone called the police. Mother arrived back at the motel around 9:00 a.m. visibly intoxicated. She said that she had gone to a McDonald’s restaurant to buy food for G.T. She explained her inebriated 4 state by saying that she had “accidentally” taken two Xanax pills while at McDonald’s and fell asleep; she could not remember where she slept. The following day, DSS filed a petition requesting shelter care for G.T. E. Emergency Shelter Hearing A magistrate with the Circuit Court for Baltimore City held an emergency shelter hearing for G.T. on September 10, 2020.

Mother did not make an appearance at this hearing, which was held virtually amid the COVID-19 pandemic. Later, Mother reported to the DSS case worker that she had been involved in an automobile accident and was in the hospital, and thus would be unable to make a virtual appearance at the emergency hearing. However, when the Department contacted the hospital to confirm Mother’s account, a hospital employee contradicted Mother, stating that while Mother had been a patient at the hospital, she had not been admitted as the result of a car accident. The hospital employee did not give the true reason Mother was at the hospital.

At the emergency hearing, DSS and counsel for G.T. argued that G.T. should be sheltered. Counsel for Father asked that shelter care be denied and that G.T. be placed in his care. The circuit court “determined that continued residence in the home is contrary to the welfare of [G.T.] and [that] it is not now possible to return [G.T.] to the home because [of] . . . Mother’s alleged substance abuse disorder and hospitalization and Father’s domestic violence history.” Accordingly, the court granted the Department’s request for shelter care and placed G.T. with a friend of Mother.

Although counsel for Mother states that “[o]n September 10, 2020, the [c]ourt . . . denied Mother any visitation with [G.T.,]” our review of the transcript from the shelter 5 hearing does not suggest that Mother was denied visitation at this stage. Indeed, the court’s order clearly states that “[the foster parent] shall . . . ensure that [G.T] is appropriately supervised at all times[,] ensure that [G.T.] have no unsupervised contact with the parents[, and] not allow [M]other to reside in her home or stay overnight in her home.” (emphasis supplied). While this language amounts to a denial of unsupervised visitation, we do not read this language or the court’s comments during the hearing to suggest that Mother was denied supervised visitation. Moreover, other than Mother’s assertion in her brief that “[o]n September 10, 2020, the [c]ourt . . . denied Mother any visitation with” G.T., Mother cannot identify anywhere in the record where the court denied her all visitation.

F. Denial of Mother’s Request to Force G.T. to Participate in Visitation and Appeal As noted, although Mother missed the emergency shelter-care hearing and was unrepresented, the court nonetheless awarded her supervised visitation, mandating that the foster parent “ensure that [G.T.] have no unsupervised contact with the parents.” Following this, visitation for Mother appears to have been first discussed at an adjudicatory hearing on October 9, 2020. At that time, counsel for Mother noted that Mother was currently receiving in-patient drug treatment at Recovery Network and would soon be finishing COVID-19 quarantining. Mother’s counsel requested that Mother be allowed in- person visitation with G.T. After counsel for DSS and counsel for G.T. reported that G.T. was unwilling to participate in either telephonic or in-person visits with Mother, they requested that no in-person visitation be scheduled at that time. Counsel for Mother then 6 asked the court to order family reunification therapy; counsel for G.T. asked that only individual therapy for G.T. be ordered.

The magistrate presiding at the adjudicatory hearing remarked that “first of all, the therapist is going to have to assess the situation and probably start with the individual” so that they can “let somebody get to know G[.T.] first and see where we are and what kind of help we can offer her. Then we’ll have kind of a better idea of how to proceed.” When counsel for Mother sought clarification on whether this meant that her request for in-person visitation would be granted, the Magistrate responded: Well, I guess we better now involve the therapist in helping us with that. You know, the therapist is going to need to kind of pursue the situation and see where we are, and then see what may work. So I don’t want to try to preempt what may go on with the therapy.

So, I’m going to say, if it develops into a problem, you can always file something and I’ll get you back on the calendar. On November 24, 2020, Mother filed an emergency motion for in-person parenting time, requesting that the magistrate “[o]rder supervised in-person parental visitation between Mother and [G.T.]” or “[a]lternatively, order supervised telephonic or remote parental visitation between Mother and [G.T.]” The magistrate recommended on December 1, 2020 that Mother’s motion be denied. On December 2, 2020, counsel for Mother requested immediate review of the decision, which was argued before a circuit court judge on December 8, 2020. It is this hearing and order that concerns our review.

At the December 8, 2020 hearing, counsel for Mother argued that (1) despite the fact that G.T. does not want to visit with Mother, G.T. is too young to make such a determination, (2) the court should not entirely rely on the therapist’s assumed 7 recommendation, and (3) that Mother has been taking positive steps to address her drug abuse problem. DSS responded that (1) G.T. has refused visitation, (2) that under Code of Maryland Regulation (“COMAR”) 07.02.11.05(C)(7)(c), the Department may not force children to participate in visitation but instead refers the matter to a therapist, and (3) that the therapist has not recommended visitation. Counsel for G.T. also requested that G.T. not be forced to participate in visitation, reiterating the Department’s arguments, but also arguing that a grant of visitation would be inappropriate under FL § 9-101(b). Counsel for G.T. contended that under that statute, no visitation should be granted unless the court finds that there is “no likelihood of further child abuse or neglect . . . [e]xcept that the [c]ourt may approve a supervised visitation arrangement that ensures the safety and physiological, psychological, and emotional well[- ]being of the child.” Because the court did not make findings with respect to future abuse or neglect, counsel for G.T. reasoned, the court could not award unsupervised visitation and, further, any award of supervised visitation would harm G.T.’s well-being.

For these reasons, counsel for G.T. argued, “visitation is not in the best interest of G[.T.]” In response to the above arguments, the court orally ruled that the magistrate’s recommendation that G.T. not be forced to visit with Mother was reasonable: [E]verything that the Court has heard today[ illustrates] basically that [G.T.] does not wish to see or talk to Mother at this time. Although the Department has attempted to coordinate visitation, [G.T.] is not willing or refuses to participate in visitation at this time. Now, I think there[ are] two parts, two different things. If this were a case where the child has not stated a position about visitation and the Department was not doing its part, as in trying to coordinate or facilitate visitation, then, [counsel for Mother], the Court believes that you 8 would have, for lack of a better word, a valid gripe.

Because then it would be the Department failing to perform the duties as required. But in this case, it is [G.T.] who refuses to have visitation or participate in visitation with Mother. * * * Counsel stated that [G.T.] had just begun individual therapy to address her mental health needs and visitation would be inappropriate and not serve [G.T.’s] best interest. While both counsel for [G.T.] and the Department have stated that [G.T.] does not want to see or have visits with Mother, the Court does find that if the therapist believes that it[’]s inappropriate, that the Court should not force the Respondent to participate in visitation. Further, pursuant to COMAR Regulation 7.02.11.05, the Department cannot force a child to participate in said visitation.

Therefore[,] the ruling of the Magistrate shall stand. I mean, the Court would note that in prior orders it does [address] visitation with Mother . . . Additionally, since there has not been any [FL §] 9-101 findings regarding abuse and neglect, the Court is not inclined to do so at this juncture or can[]not. But primarily the Court is upholding the ruling of Magistrate Brown because the child does not wish to see Mother at this time.

But we can remain hopeful that therapy can address these issues and hopefully they can move toward visitation and reunification. Two days after this ruling, counsel for Mother appealed to this Court. DISCUSSION I. THE CIRCUIT COURT WAS NOT REQUIRED TO BUT NONETHELESS SATISFIED FL § 9-101 The first issue is whether the circuit court was required to satisfy FL § 9-101 when it denied Mother’s emergency motion for in-person visitation. We hold that given the facts of this case, the court was not required to satisfy FL § 9-101.

Regardless, we hold that FL § 9-101’s requirements were satisfied and find no error. 9 A. The Parties’ Contentions In her brief, Mother begins her argument by citing FL § 9-101 and argues that “[c]ourts are only (sic) required by statute to deny custody or unsupervised visitation unless the court makes a specific finding that there is no likelihood of further child abuse or neglect. . . . Thus, courts have a higher degree of responsibility only where abuse is proven.” Mother continues by arguing that the statute, although comprised of restrictive language, “still allows for the court to fashion a visitation arrangement for, presumably, any parent.” Pointing out that FL § 9-101 requires denial of visitation only if a likelihood of future abuse or neglect is found by the court, Mother contends that the court here “made no such finding that [Mother] would perpetrate abuse or neglect on her child” and that “there is no evidence for the Court to assume that future abuse or neglect was likely.” The Department responds by explaining that when a Maryland court “has reasonable grounds to believe that a parent has neglected a child, it is required to deny visitation to that parent unless there is ‘no likelihood of further neglect’ but ‘may approve a supervised visitation arrangement that assures the safety and the physiological, psychological and emotional well-being of the child.” (emphasis supplied by DSS). DSS argues that there was no abuse of discretion here because Mother entirely failed to meet her burden in persuading the court that there was no likelihood of future abuse or neglect. Counsel for G.T. argues that FL § 9-101 is entirely inapplicable here.

G.T.’s counsel reasons that because the court found on September 10, 2020 that contact between G.T. and her parents was to be supervised, and because the absence of visitation arises solely from G.T.’s refusal to engage in visitation with Mother, the court never denied visitation but 10 instead denied Mother’s request to force G.T. to participate in visitation. Instead, G.T.’s counsel reasons that the proper inquiry is a determination of whether it is in G.T.’s best interests to force her to participate in visitation. Counsel for G.T. argues that it is not in G.T.’s best interest to be compelled to participate in visitation with Mother.