author: Reed, J.

text:
    174 A.3d 468
    IN RE B.C. In re Adoption/Guardianship of B.C.
    No. 1744,
    No. 2342,
    Sept. Term, 2016
    Sept. Term, 2016
    Court of Special Appeals of Maryland.
    November 30, 2017

      Argued by Nenutzka C. Villamar (Paul B. DeWolfe, Public Defender on the brief) all of Baltimore, MD, for Appellant.
    Argued by Dorcey Berndt (Maryland Legal Aid, Towson, MD) Hubert K. Chang (Brian E. Frosh, Attorney General, Baltimore, MD) all on the briefs, for Appellee.
    Panel: Kehoe, Berger, Reed, JJ.
   Reed, J.

On September 16, 2016, the Circuit Court for Baltimore County, sitting as a juvenile court (“the juvenile court”), disestablished and terminated the presumptive paternity of G.C. (“Appellant”) to minor B.C. (“child” and “B.C.” interchangeably). The court’s decision followed from the Department of Social Services’ (“the Department”) filing of a motion for a finding of non-paternity. Prior to the Department’s motion, Appellant requested a paternity test that proved that he was not the child’s biological father. Subsequently, Appellant timely appeals two orders of the juvenile court, the order in the Child in Need of Assistance (“CINA”) proceeding, which excluded him as the presumptive father of B.C. and the order striking him as a party in the Termination of Parental Rights (“TPR”) proceeding. In doing so, he presents three questions for our review, which we have consolidated and rephrased for clarity as follows:

1. Did the juvenile court abuse its discretion where it determined it would be in the best interest of the child to deny Appellant paternity of B.C., at the request of the Department of Social Services, although he was married to the child’s mother at the time of his birth?
2. Did the juvenile court err where it excluded Appellant as a party in the termination of parental rights case based on the prior order disestablishing paternity?

For the reasons that follow, we answer Appellant’s questions in the negative and affirm the judgment of the juvenile court.

Factual and Procedural Background

B.C., a minor, was born to C.R. (“Mother”) in June of 2014, at Johns Hopkins Hospital. Shortly after his birth, it was clear to doctors that he had been exposed to cocaine in útero. B.C. remained in the hospital for two additional weeks following his birth, to detox and was subsequently sheltered by the Department of Social Services (“the Department”), on June 25, 2014. Although Appellant and Mother maintained from “the very beginning that Appellant was not biologically [B.C.j’s father,” he is named as B.C.’s father on his birth certificate by virtue of being married to Mother at the time of B.C.’s birth.

B.C. came into the Department’s care via a Shelter Care Order, and was placed in an agency foster home. On August 14, 2014, the juvenile court found B.C. to be a Child In Need of Assistance (“CINA”) because he had been born exposed to cocaine and neither his mother, his maternal grandmother, nor Appellant was able to provide him with appropriate care and supervision. Both Mother and Appellant were able to visit the child as supervised and arranged by the Department. At the permanency planning hearing, it was agreed that the final plan would be reunification with his parents. Although reunification was the ultimate goal, the Department had concerns that neither Appellant, nor C.R., was fit to parent the child. Accordingly, at the request of Appellant, B.C.’s permanency plan was changed to relative placement for adoption with Appellant’s niece (“Niece”) in North Carolina.

The arrangement for B.C. to stay with Niece was initially amenable to all parties; however, while B.C. was staying with Niece, Appellant “became threatening and said aggressive things to [her].” As a result of Appellant’s aggressiveness, Niece feared for the safety of her home and changed her address and phone number. Further, in June, Appellant brought mother, without Niece’s and the Department’s knowledge or permission, to visit the child. Niece objected to Appellant bringing C.R. because of her “unaddressed mental health.. .and substance abuse issues.” As a result of that visit, Niece refused Appellant any future contact with B.C. and precluded him from visiting with the child. During this time, Appellant was facing criminal charges in New York. It is unclear the nature of these charges but they range from drug charges and physical coercion. Appellant also had an open warrant for his arrest, to which it is unclear whether he has surrendered to the New York Police Department. After being barred contact with B.C., Appellant requested a paternity test, believing that if it was proven that he was not the child’s biological father, the child would be removed from Niece’s home.

A paternity test was conducted on February 19, 2016, and the test results confirmed what Appellant and mother had already known; that Appellant was not B.C.’s biological father. Shortly after taking the paternity test, Appellant was charged, arrested, and incarcerated in the state of New York. As a result of the genetic test’s findings, the Department filed a petition for guardianship of B.C., with the right to consent to adoption, and B.C. was returned from North Carolina to Maryland and placed with his original foster family. On September 16, 2016, the Department filed a Motion to Determine Exclusion of Paternity, which the juvenile court granted. Several months later, the Department filed a Judicial Notice of Paternity Exclusion and requested that Appellant be stricken as a party in the CIÑA and TPR proceedings; the juvenile court granted the motion on December 6, 2016.

The juvenile court conducted hearings on both of the Department’s motions. Appellant argued that although he was not the biological father of B.C., he should be recognized as B.C.’s father by virtue of having been married to the child’s mother at the time of the child’s birth, his name was on the child’s birth certificate, and he held himself out to be the child’s father. The juvenile court determined that Appellant had neither lived in the same household as the child, nor established a “bonded, dependent relationship parental in nature.” Accordingly, the juvenile court concluded that it was in the child’s best interest to exclude Appellant as a parent. It is from these orders that Appellant appeals.

Standard op Review

The fundamental right of a parent, to parent their child, without interference from the State, is protected by the Fourteenth Amendment to the U.S. Constitution. See Boswell v. Boswell, 352 Md. 204, 217-20, 721 A.2d 662 (1998)(“A parent has a fundamental right to the care and custody of his or her child. The United States Supreme Court has upheld the rights of parents regarding the care, custody, and management of their children... ”); see also, In re Mark M., 365 Md. 687, 705, 782 A.2d 332 (2001)(“A parent’s interest in raising a child is, no doubt, a fundamental right, recognized by the United States Supreme Court and this Court.”). This fundamental right cannot be infringed upon by the State, or any State agency, unless clearly justified. See In re Adoption/Guardianship No. 95195062/CAD In the Circuit Court for Baltimore City, 116 Md.App. 443, 696 A.2d 1102 (1997)(“Termination of parental rights, however, implicates the fundamental constitutional right to raise one’s own child. Because this right is ‘so fundamental... it may not be taken away unless clearly justified.’ ”) (internal citations omitted). Because the termination of parental rights is total, irrevocable, and leaves the parent with no right to visit or communicate with the child, it is held to three different, but interrelated, standards: (1) a clearly erroneous standard, applicable to the juvenile court’s factual finding; (2) a de novo standard, applicable to the juvenile court’s legal conclusion; and (3) “when the appellate court views the ultimate conclusion of the [juvenile court] founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the [juvenile court’s] decision should be disturbed only if there has been a clear abuse of discretion.” See In re Yve S., 373 Md. 551, 586, 819 A.2d 1030 (2003)(citing Davis v. Davis, 280 Md. 119, 372 A.2d 231 (1977)).

Moreover, when the Department seeks to terminate parental rights, without the consent of the parent, the standard is whether the termination of rights would be in the best interest of the child. In re Abiagail C., 138 Md.App. 570, 772 A.2d 1277 (2001). To determine what is in the child’s best interest, the court must consider the factors enumerated in Md. Code Family Law § 5-323(c). Additionally, when the child has been adjudicated CINA, the court must consider the factors set forth in FL § 5-323(d) as well. See In re Adoption/Guardianship No. T97086005, 358 Md. 1, 746 A.2d 379 (2000)(“The best interest of the child must be determined only after the court considers the required factors listed in F.L. § 5-[323](e) and (d).”). Because the trial court’s decision may forever deprive the parent of his or her fundamental parental rights, this Court must make express findings of fact respecting all of the applicable statutory factors of FL § 5-323.

In reviewing the juvenile court’s decision

[o]ur function ... is not to determine whether, on the evidence, we might have reached a different conclusion. Rather, it is to decide only whether there was sufficient evidence—by a clear and convincing standard—to support the chancellor’s determination that it would be in the best interest of [the child] to terminate the parental rights of the natural [parent]. In making this decision, we must assume the truth of all the evidence, and of all of the favorable inferences fairly deducible therefrom, tending to support the factual conclusion of the trial court.

In re Abiagail C., 138 Md.App. 570, 587, 772 A.2d 1277 (2001) (quoting In re Adoption No. 09598, 77 Md.App. 511, 518, 551 A.2d 143 (1989)). In reviewing the juvenile court’s decision, we must first determine whether the court considered the statutory criteria; second, whether its factual determinations were clearly erroneous; third, whether the court applied the law; and finally, whether it abused its discretion in making its determination. Id.

Discussion

I. September 15, 2016 Hearing Terminating Appellant’s Parental Rights

A. Parties’ Contentions

Appellant argues that the juvenile court abused its discretion when it determined that he was not B.C.’s presumptive father. First, he contends, because he was married to the child’s mother at the time-making him the presumptive father, was identified as the father on the child’s birth certificate, and no other individual claimed to be the child’s father the court abused its discretion in terminating his parental rights. Second, Appellant maintains that because it was not he that took legal action to disestablish his paternal rights, but the Department, that the Department acted outside of the scope of its authority and did not have standing to challenge Appellant’s paternity. Lastly, Appellant argues that even if the court had the authority to disestablish paternity, the court abused its discretion because it was not in the child’s best interest. We disagree.

Both Appellees—the child and the Department (“Appel-lees”), respond that because Appellant is not B.C.’s biological father, he does not “have a basis for a finding of paternity under any statutory law in Maryland.” Moreover, Appellees contend that Appellant is not a de facto parent. Thus, the court properly exercised its discretion in disestablishing Appellant’s paternity.

B. Analysis

The Presumption of Legitimacy

In answering Appellant’s questions, we first turn to the presumption of legitimacy. Appellant suggests that the presumption finds its origins in the Magna Carta Libertatum. It is not quite that ancient; the presumption of legitimacy was first recognized in Goodnight v. Moss, 2 Cowp. 591, 98 Eng. Rep. 1257 (1777). The case, written by Lord Mansfield, sets forth the rule for which he is the namesake. He ruled:

The law of England is clear, that the declarations of a father or mother cannot be admitted to bastardize the issue born after marriage... it is a rule, founded in decency, morality, and policy, that they shall not be permitted to say after marriage that they have no connect, and therefore that the offspring is spurious; more especially the mother, who is the offending party.

Maryland courts have consistently followed Lord Mansfield’s rule. The Court of Appeals held in Dayhoff v. State, 206 Md. 25, 32, 109 A.2d 760 (1954):

In this state the accepted rule is that where a child is born of a married woman neither the husband nor the wife is a competent witness to prove non-access at a time when according to the laws of nature the husband could have been the father of the child...

See also, Sider v. Sider, 334 Md. 512, 526, 639 A.2d 1076 (1994)(“In Maryland, a child born to a married woman is presumed to be the offspring of the woman’s husband.”). The presumption has also been codified into Maryland law. See Md. Code Ann., Fam. Law (“FL”) § 5-1027(c) (“There is a rebutta-ble presumption that the child is the legitimate child of the man to whom its mother was married at the time of conception.”); See also, Md. Code Ann., Est. & Trusts, § 1-206(a) (“E.T.”)(“A child born or conceived during a marriage is presumed to be the legitimate child of both spouses... a child born at any time after his parents have participated in a marriage ceremony with each other, even if the marriage is invalid, is presumed to be the legitimate child of both parents.”)

Over time, the presumption has evolved and relaxed, allowing the presumption to be rebutted upon the showing of evidence that the child could not have possibly been the husband’s child by proving non-access; see FL § 5-1027(4) (“The court determines that the presumption.. .has been rebutted by testimony of a person other than the mother or her husband, both the mother and her husband are competent to testify as to the nonaccess of the husband at the time of conception.”); or by a showing of DNA evidence. See Turner v. Whisted, 327 Md. 106, 116, 607 A.2d 935 (1992)(“Where child is presumed legitimate, best interest of the child should be considered before ordering blood tests.”)(citing McDaniels v. Carlson, 108 Wash.2d 299, 738 P.2d 254 (1987); see also, Monroe v. Monroe, 329 Md. 758, 767, 621 A.2d 898 (1993)(“If it would not be in the child’s best interest to have the blood tests reveal that a man who has been a de facto father in the whole of the child’s life is not the biological father... that assessment may only be made by considering the entirety of the relationship between the child, the [mother] and [Mr. Monroe].”)

Additionally, the use of a man’s name on a child’s birth certificate creates yet another presumption of paternity. See FL § 5-3A-06(a)(3)(“Unless a court excludes a man as the father of a child, a man is the father if the man is named as the father on the child’s birth certificate and has not signed a denial of paternity.”).

In the instant case, Appellant was married to Mother at the time of the child’s birth. Further, Appellant’s name appears on the child’s birth certificate. Therefore, Appellant was the presumed father of the child prior to the court’s ruling disestablishing paternity. Appellant contends that although he knew he was not the child’s biological father, he has “held himself out openly as B.C.’s father,” and has “stood up and openly and notoriously from the time he knew of [the child’s] conception said ‘I will be your father.’ He stepped forward to do that, he wants to do that.”

Further, Appellant cites In re Thomas H., 381 Md. 174, 848 A.2d 652 (2004), as persuasive authority to show that the juvenile court abused its discretion in declaring the non-paternity of Appellant. In In re Thomas II., the appellant, Robert S., appealed an order that declared that Robert, the putative father, was not Thomas’ natural parent and dismissed his exceptions to the juvenile master’s recommendation that the child was a CINA. Thomas was alleged to be a CINA because Robert had sexually and physically abused the child. Moreover, it was found that Thomas’ parents were unable or unwilling to give him proper care and attention. During the CINA hearing, the child’s mother mentioned that she did not believe that Robert was Thomas’ father, but another man, Roy H. The court then recommended that a genetic test be conducted to determine whether Roy was the child’s father. The test proved that there was a 99.99% probability that Roy was the father. The Department treated this as proof that Robert was not the father and filed four motions to: have Roy declared as the father; add Roy to the CINA proceedings; remove Robert as the parent; and strike Robert’s exceptions. The appeal was ultimately dismissed by the Court of Appeals because there had been no appeal taken from the court’s determination.

Appellant does not appreciate a vital difference between In re Thomas H., and the instant case. In the former, Robert never asserted that he was not the child’s father and objected to the court’s order requiring blood testing. Here, Appellant himself raised the issue of B.C.’s paternity and obtained genetic testing in order to disrupt B.C.’s placement with Niece. Had Appellant not requested the paternity test, he would have remained the presumptive father pursuant to E.T. § l-206(a). The simple fact remains: the basis for the juvenile court in denying Appellant’s paternity rights over the child was based on his request, and subsequent undergoing of genetic testing, to prove that he was not the child’s biological father. We are not unsympathetic to Appellant’s desire to be in the child’s life, however, Appellant requested and subjected himself to the genetic testing and was not compelled to do so by the court or the Department.

Best Interest of a Child in Need of Assistance

As mentioned, the presumption of paternity may be rebutted after a proceeding showing that to disestablish parentage would be in the best interest of the child. See Sieglein v. Schmidt, 224 Md.App. 222, 243, 120 A.3d 790 (2015)(“in Maryland, the presumption of legal parentage established under [Md. Code, ET,] § 1-206 may only be rebutted after a showing that proceedings to disestablish parentage are in the best interest of the child”) (emphasis added). In this instance, the court’s ordering of a paternity test to determine whether the presumed father is the biological father, must be in the best interest of the child. See Kamp v. Department of Human Services, 410 Md. 645, 661, 980 A.2d 448 (2009)(quoting Evans v. Wilson, 382 Md. 614, 629, 856 A.2d 679 (2004))(“...prerequisite to ordering a blood or genetic test, the trial court should be satisfied that good cause for the testing has been shown, that ‘blood or genetic testing would be in the best interest of the child.’ ”)(emphasis added).

The Court of Appeals of Maryland, in Turner v. Whisted, 327 Md. 106, 114, 607 A.2d 935 (1992), described the criteria for determining the best interest of a child in paternity cases:

[Consideration of the stability of the child’s current home environment, whether there is an ongoing family unit, and the child’s physical, mental, and emotional needs. An important consideration is the child’s past relationship with the putative father. Finally, other factors might even include the child’s ability to ascertain genetic information for the purpose of medical treatment and genealogical history.

(internal citations omitted). Id. Moreover, the “father’s commitment to the responsibilities of parenthood and interest in establishing his status as the child’s natural father balanced against.. .the interest in protecting the integrity of the familial relationship already formed.” Kamp, 410 Md. 645 at 661, 980 A.2d 448. Maryland courts have held that where it is not in the best interest of the child, it will not disestablish the paternity of a presumptive or putative father. See Kamp, 410 Md. at 645, 980 A.2d 448 (the divorced father sought a finding of non-paternity of a child bom during his marriage, the Court of Appeals determined that a finding of non-paternity was not in the best interest of the child because the child lived with and was supported by the presumptive father for thirteen years); see also, Ashley v. Mattingly, 176 Md.App. 38, 932 A.2d 757 (2007)(presumptive father requests a DNA test to establish that he was not the biological father to relieve himself of child support obligations, this Court remanded the case because it was not determined whether it was in the child’s best interest to have a DNA test done); Miles v. Stovall, 132 Md.App. 71, 750 A.2d 729 (2000)(Former husband requested a DNA test to determine that he was not the biological father of a child born during his marriage, this Court reversed the proceeding allowing the father to submit to a DNA test).

When a child has been determined to be a CINA, and has been removed from the care of its biological parents, the court must determine a plan that would establish a sense of permanency in the child’s life. See In re Adoption of Jayden G., 433 Md. 50, 82, 70 A.3d 276 (2013)(“A critical factor in determining what is in the best interest of a child is the desire for permanence in the child’s life,”). Thus, when reunification with a parent is not viable, the next best thing is adoption. However, unless there is consent from the biological parent, there can be no adoption, and thus no permanency “until the natural parent’s rights to the child are terminated, which is done when the circuit court finds by clear and convincing evidence, after considering the statutorily enumerated factors that [TPR] is in the best interest of the child.” (internal quotations marks omitted). Id. at 85, 70 A.3d 276.

The State, in its capacity as parens patriae, has the inherent authority to care for children and persons with disabilities because they cannot care for themselves. A juvenile court has the same unique authority, and frequently exercises it in guardianship proceedings. See Wentzel v. Montgomery Gen. Hosp. Inc., 293 Md. 685, 702, 447 A.2d 1244 (1982). In CINA cases, that discretion is more proactive:

...particularly in a [CINA case], the court’s role is necessarily more pro-active. The juvenile court, acting under the State’s parens patriae authority, is in the unique position to marshal the applicable facts, assess the situation and determine the correct means of fulfilling a child’s best interest.

(internal quotation marks omitted). In re Najasha B., 409 Md. 20, 33, 972 A.2d 845 (2009). To that end, the court has the authority to determine an outcome as long as it is in the best interest of the child. In fact, if the juvenile court finds that after considering the factors that it is in the best interest of a CINA to determine parental rights, the juvenile court has the authority to grant the Department’s petition for guardianship, and the Department, by right may, consent to the adoption of the child. See In re Adoption/Guardianship Nos. J9610436 and J9711031, 368 Md. 666, 796 A.2d 778 (2002). Accordingly, we hold that the juvenile court did not abuse its discretion when it determined that disestablishing paternity of Appellant was in the best interest of the child. We shall explain.

Because B.C. is a CINA, we must look at both the factors for determining the best interest of the child as well as the factors enumerated for establishing whether the child is a CINA. First, we look at the stability of the child’s current home environment. B.C. has never lived with his biological mother and Appellant and currently resides with the foster family he was assigned shortly after his birth. Thus, the most stable home environment is not with Appellant, but with the child’s current foster family. Next, we explore the child’s past relationship with Appellant. The record has established that while Appellant has visited the child intermittently during the first year of his life, there has been no relationship established. The child is currently three, and as the child has asserted in his brief, would not “be able to pick him out if he walked through the door.” It is clear to this Court, that absent a few interactions, neither parent has had contact with the child over the course of the three years he was in foster care. Thus, Appellant does not have a prior relationship with B.C., which would tend to prove that living with Appellant would be in the child’s best interest.

Moreover, if we turn to our previous decision regarding Appellant’s de facto parent status, supra n. 4, it is clear that had there been some relationship established the juvenile court’s ruling would have been different. Because there has been no familial relationship between B.C. and the Appellant, we hold that disestablishing paternity was in the best interest of the child, regardless if no other person was willing to assume responsibility of the child. Further, a finding that it was not in the best interest of the child would not establish the permanency that the child requires as a CINA. Appellant has been incarcerated for a majority of the child’s life and there has been no evidence to suggest that Appellant is equipped to provide B.C. with the adequate care he needs. A finding showing that it was in the best interest of the child to disestablish paternity in this particular case is not an abuse of discretion.

Authority of the Department of Social Services

Appellant contends that even though he asked for, and submitted to a DNA test, “he did not take legal action to disestablish paternity.” As such, he argues, “the Department. . .lacked standing to challenge paternity.” Further, Appellant argues “to permit a local department of social services involved in a CINA matter to challenge the paternity of a child born into a marriage and who, therefore has a mother and legal father, is contrary to the legislative intent of paternity statutes.” Finally, Appellant maintains that his presence was an impediment to the efforts to have the child adopted.

Appellant cites a number of cases to show that it is uncommon for the Department to challenge the paternity of a child born in wedlock. The only case that Appellant cites where the department has requested a finding of non-paternity is In re Thomas H., which we have already determined is not parallel to the instant ease.

The Department has an ability to care for a child that has been adjudicated as a CIÑA. The Department has the responsibility to “ensure that reasonable efforts were made to prevent placement and achieve a permanency plan for the child.” Md. Code Regs. 07.02,11.05(C)(2)(2017). All of this is done consistent with the best interest of the child in mind. Id. Here, there are a number of factors that indicate that the Department acted in the best interest of the child: (1) B.C. was adjudicated as a CINA shortly after his birth, and neither parent opposed; (2) B.C. never lived with or was supported by Appellant during his three years of life; (8) Appellant requested the paternity test to rebut the presumption of paternity; and (4) even if Appellant had not requested a paternity test, and remained the presumptive father, the fact remains that he is unable to provide B.C. with the appropriate care that he requires, thus his rights would likely have been terminated in a TPR proceeding.

This Court is not suggesting that the Department has the authority to initiate a process to rebut the presumption of paternity vested in Appellant as a result of E.T. § l-206(a). Such an attempt would be improper, as it side-steps the procedural and substantive protections for parents in TPR proceedings, set forth in Family Law Article, Title 5, Subtitle 3. This Court is, however, holding that when a presumptive father proves that he is not the biological father of a child, and where it is in the best interest of the child to be adopted by a non-relative, the Department is allowed to file such a motion. We shall explain.

A CINA court’s authority to decide paternity derives from CJP § 3—822(e)(2), which authorizes the court “to make a finding of paternity in accordance with Title 5, Subtitle 10, Part VI [ (“Part VI”) ] of the Family Law Article.”

As the Court of Appeals noted in In re Thomas H., 381 Md. 174, 185, 848 A.2d 652 (2004), CINA courts have the power to determine paternity in order to identify the proper parties to the CINA proceeding. The plain language of § 3-822(e), indicates that a CINA court’s authority in this regard, must be exercised in accordance with the provisions of Part VI. Part VI of Subtitle 10, deals with orders to be entered after the court determines that the alleged father is, in fact, the father of the child.

When CJP § 3-822 and Part VI are read in conjunction, as they should be, it is clear that the primary purpose of § 3-822 is to authorize the court to identify the father in eases where paternity has not been acknowledged. Then, after having identified the father, to make appropriate provisions for child support. CJP § 3-822 is not a mechanism by which a Department of Social Services can initiate a paternity inquiry as a means of terminating the parental rights of an individual in Appellant’s situation, who is presumed to be the father of B.C., by virtue of his marriage to Mother at the time of the child’s birth, But this was not the situation confronted by the circuit court in this case.

By seeking genetic testing, Appellant undertook to rebut the presumption of paternity, which he enjoyed as a result of ET § 1—206(a). He was successful because the genetic testing proved, as he knew it would, that he was not B.C.’s biological father. Part VI provides for this scenario. CJP § 5-1039 states:

(a) If the court finds that the alleged father is not the father, the court may:
(1) retain jurisdiction; and
(2) on its own motion or otherwise, take any further proceeding that the court considers just and proper and in the best interests of the child,
(b) Under this seetion, the court may:
(1) enter an appropriate order against the mother for the support of the child;
(2) allow the impleader or joinder of any other alleged father; or
(3) consider any other matter that may be in the best interests of the child.

(emphasis added).

We hold that the court acted within the scope of its authority under § 5-1039 when it passed an order declaring that Appellant was not B.C.’s father.

Conclusion

Thus, this Court first holds that the juvenile court considered the statutory criteria in determining the child’s best interest. Second, we hold that none of the factual determinations were clearly erroneous. Third, we find that the court applied the law to Appellant’s case. Finally, we find that the court did not abuse its discretion in making its determination.

II. Termination of Parental Rights Hearing

A. Parties Contentions

Appellant contends that the juvenile court erred when it excluded Appellant as a party in the termination of parental rights case based on the September 15, 2016 hearing disestablishing paternity. Appellant further argues, “if this court agrees with the Appellant’s arguments in [the prior issue], it must vacate the order excluding Appellant as the father and not permitting him to participate in the guardianship proceedings.

Both Appellees contend that because the juvenile court did not err in disestablishing paternity of Appellant that the order excluding Appellant must stand. We agree.

B. Analysis

As we have previously held, the juvenile court neither abused its discretion nor erred when it disestablished paternity of Appellant based on the best interest of the child. As such, the court did not err when it excluded Appellant from the guardianship proceedings.

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

      . As with the initial plan, both parents were allowed "liberal and supervised [visitation with the child] as arranged by DSS.” Moreover, both parents were ordered that they should obtain and maintain gainful employment and provide evidence of an income sufficient to support the child. They both were to participate in substance abuse treatments. Mother was required to participate in mental health treatments.

      . See M.L.B. v. S.L.J., 519 U.S. 102, 118, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996)("the object of the [termination of parental rights] proceeding is 'not simply to infringe upon [the parent’s] interest,’ the court recognized, ‘but to end it;’ thus, a decision against the parent 'works a unique kind of deprivation.’ For that reason, '[a] parent’s interest in the accuracy and justice of the decision.. .is,. .a commanding one.' ”)(internal citations omitted),

      . One concern of the Appellant is that B.C. "will have one less resource for placement. He could not seek child support from the Appellant, inherit the Appellant's estate, or be eligible for the Appellant’s Social Security benefits.” Not so, there exists no law in Maryland that precludes a person from assigning his estate to a person who is a non-relative. Unfortunately, because B.C. is not the child of Appellant, he would not be a survivor of Appellant's Social Security Benefits. See Understanding the Benefits, Social Security Administration, https://www. ssa.gov/pubs/EN-05-10024.pdf (last visited, October 10, 2017)(Stating benefits can be paid to unmarried children that meet a certain criteria.)

      . The Juvenile Court ruled that Appellant did not meet the Conover v. Conover, 450 Md. 51, 74, 146 A.3d 433 (2016), factors necessary to be considered a de facto parent. Under the de facto parent factors, Appellant must prove: (1) the biological parent consented to, and fostered, Appellant's formation and establishment of a parent-lilce relationship with the child; (2) Appellant and the child lived together in the same household; (3) Appellant assumed obligations of parenthood by taking significant responsibility for the child’s care, education, and development. This includes, contributing towards the child’s support, without expectation of financial compensation; and (4) Appellant has been in a parental role for a length of time sufficient to have established a bonded and dependent relationship, parental in nature.
      After applying the factors to Appellant's case, the court found: "[Appellant] and the child did not live in the same household for the majority of the minor child’s life;” “there’s no evidence that [Appellant] assumed any responsibility for the child's care, education and development including support;” “the [Juvenile] Court does not find that there has been a significant length of time to have established with the child a bonded, dependent relationship, parental in nature, and the Court in a light most favorable to [Appellant,] going to the de facto parent analysis doesn’t find that [Appellant] has met that analysis.

      . The court does not indicate whether Robert S. was married to the child's mother at the time of his birth. In fact, a court entered a consent order declaring Robert to be the child’s father.

      , A child is determined to be a CINA when the child has been abused, neglected, has a developmental disability, mental disorder; and the child’s parents, guardian, or custodian are unable, or unwilling, to give proper care and attention the child’s needs. See Md. Code Ann., Cts. & Jud, Proc. § 3-801(f). In the instant case, B.C. was determined to be a CINA shortly after his birth on August 14, 2014.

      . In his reply brief, Appellant asserts that the court’s order "delegitim-ized” B.C. and therefore violated public policy. We do not agree. Appellant delegitimized the child when he rebutted the presumption established by ET § 1-206(a) by proving that he was not B.C.'s biological father. The CINA court’s order excluding Appellant as B.C.’s father was nothing more than an acknowledgement of the legal consequences of the evidence presented to the court.


source: Caselaw Access Project

author: Raker, J.

license: Public Domain

text:
    174 A.3d 481
    Steven YOUNG v. STATE of Maryland
    No. 928,
    Sept. Term, 2016
    Court of Special Appeals of Maryland.
    December 1, 2017

      Argued by Douglas A. Penrose (Derek S. Hammond, Willkie Farr & Gallagher, LLP, Washington, D.C., Paul B. DeWolfe, Public Defender, Baltimore, MD) all on the brief, for Appellant.

      Argued by Gary E. O’Connor (Brian E. Frosh, Attorney General on the brief) all of Baltimore, MD, for Appellee.
    Panel: Wright, Graeff, Irma S. Raker (Senior Judge, Specially Assigned), JJ.
   Raker, J.

Appellant Steven Young appeals his convictions in the Circuit Court for Baltimore City for possession of heroin with intent to distribute, possession of oxycodone with intent to distribute, possession of methadone with intent to distribute, possession of alprazolam with intent to distribute, possession of heroin, possession of oxycodone, possession of methadone, and possession of alprazolam. He raises the following two questions for our review, which we have rephrased and reordered:

1. Did the circuit court err when it excluded appellant’s evidence of written prescriptions for controlled substances when appellant was charged with the unlawful possession of and possession with intent to distribute those controlled substances?
2. Did the circuit court err by admitting appellant’s post-arrest statements without holding a suppression hearing or ruling on appellant’s motion to suppress based on an allegedly unlawful arrest?

We shall hold that the trial court erred by excluding as hearsay evidence of written prescriptions. The motion to suppress was not preserved for our review. Accordingly, we shall reverse in part and affirm in part.

I.

By indictment filed in the Circuit Court for Baltimore City, appellant was charged with crimes related to controlled dangerous substances found in a police search of a house on May 28, 2014. The jury convicted appellant of possession of heroin with intent to distribute, possession of oxycodone with intent to distribute, possession of methadone with intent to distribute, possession of alprazolam with intent to distribute, possession of heroin, possession of oxycodone, possession of methadone, and possession of alprazolam. The circuit court sentenced appellant to four terms of incarceration of thirteen years, one for each count of possession with intent to distribute, to be served concurrently.

The following evidence was presented at trial: On May 28, 2014, Detective Manuel Larbi executed a search warrant at 2580 Marbourne Avenue in Baltimore (“the residence”). Detective Larbi had surveilled the residence for a number of weeks, and identified appellant in the warrant application as a person observed at the residence. The application, however, only sought to search the residence—the form space on the warrant stating “on the person of’ was left blank.

Immediately prior to executing the warrant, Detective Larbi conducted covert surveillance of the area around the residence, where he observed appellant and another man, Arnold Bowman, in the street working on a car. Their specific location was estimated to be anywhere from directly in front of the residence to two blocks away. Detective Larbi’s team pulled up next to appellant and Mr, Bowman. The police officers got out of their cars, handcuffed the two men, searched them, and walked them to the residence. The officers then brought the men into the residence to wait while the officers conducted their search. Inside the residence, officers found and detained appellant’s wife Angela Grubber. The officers advised all three persons of their rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Appellant told the officers “that he lived in the [residence]” and that he “did have some [drugs] in his bedroom.” In that bedroom, Detective Larbi found 32 pills of methadone, 7 pills of Xanax, and 3.5 grams of heroin. Detective Larbi also discovered in a kitchen cabinet downstairs 3 plastic bags each containing 100 oxycodone pills, another plastic bag containing 42 oxycodone pills, and $1,498 cash. When confronted with the drugs, appellant told Detective Larbi that he “sells some of it from time to time.”

The Statement of Probable Cause for appellant’s arrest listed appellant’s address as 504 Manor Road, Glen Bumie, MD 20160. The Statement was signed by Detective Larbi.

On July 30, 2015, appellant filed a Motion to Suppress Search and Seizure and Request to Examine Affiant, entitled a “Franks Motion.” The Motion challenged Detective Larbi’s Application for Search and Seizure Warrant for the residence based on the truthfulness and timeliness of Detective Larbi’s affidavit that he had observed appellant at the residence selling drugs to a confidential informant, He also challenged the later Statement of Probable Cause (supporting Detective Larbi’s arrest of appellant) as containing factual errors, including as follows:

“16. According to a witness, Rachel Ann Bunner, and the Defendant when the Police came to serve the Search Warrant, the Defendant was a quarter block down the road and across the street working on a vehicle, a Green Ford Explorer with Arnold Bowman. Police spotted the Defendant, stopped and searched both men, then handcuffed them and took them to 2580 Marbourne Avenue.
17. The Defendant is not an occupant of that dwelling, he does not live there, nor receive mail at 2580 Marb-ourne Avenue. The Defendant does not have telephone service there, his name is not on the BGE account or the Lease. In the Statement of Probable Cause Detective Larbi, under oath, put down Defendant’s address as 504 Manor Road, Glen Burnie, Maryland, but then alleged that the Defendant stated he lived at 2580 Marbourne Avenue.
18. Lastly, Detective Larbi claimed that the Defendant and Mr. Bowman failed to provide any prescriptions, that is false. The Defendant attempted to provide them to police during the incident and explained that he has valid prescriptions for Methadone, Xanax (alprazolam), and Percocet (a mixture of oxycodone and acetaminophen). The Defendant has also shown that his wife had valid prescriptions for Methadone, Xanax, and Percocet.”

The motion was followed by a Memorandum of Law in support of the unlawful seizure claim on September 18, 2015, the State’s Response on October 27, 2015, and appellant’s Reply on November 12, 2015.

On January 13, 2016, the State orally moved in limine to suppress any evidence concerning the written prescriptions claimed by appellant. The State argued that the prescriptions constituted inadmissible hearsay and could not be authenticated as business records. The judge granted the motion before the State could finish and did not invite appellant’s counsel to respond before moving on to the next motion. Appellant’s counsel did not object to the ruling. Following what appears to be a chambers conference, the hearing proceeded as follows:

“[THE STATE]: And, Your Honor, the State’s second motion that we spoke in chambers is the exclusion. State’s moving a motion in limine to exclude any prescription evidence as it is, number one, hearsay, and, number two, not admissible hearsay because it does not fall within the exception of 803(6).
Defense is trying to enter into evidence, number one, a prescription—an alleged prescription of the defendant and, number two, a prescription by his wife, Angela Grubber, who is not going to testify today. These are copies of alleged prescriptions. They are not certified. The doctor is not present. There’s no certification or authenticity and it’s excluded under 803(6). I do have a case, Bryant v. State, by the Court of Special Appeals where in a murder trial the defense tried to enter in a piece of paper that was the alleged toxicology report because it was murder. And the Court said it’s hearsay, number one, even if the defendant took the stand—
[THE COURT]: Yeah. I’m familiar with that law because I had the very same issues several times. Okay. The motion is granted.
That leaves us to—the speedy trial ...”

At the end of the day, the court postponed any hearing on appellant’s motion to suppress until the next morning, stating as follows:

“[THE STATE]: We still have—we still have the motion issue to resolve.
[THE COURT]: Yeah, yeah, yeah.
[THE STATE]: Maybe that first thing in the morning? The witness has been here all day. He’s waiting outside of the courtroom, but he’s the same witness who would testify tomorrow as well.
[THE COURT]: Who is it again?
[THE STATE]: It’s Detective Larbi.
[THE COURT]: Why can’t we take him real quick?
[DEFENSE COUNSEL]: No, because I’m going to be a long time with him. I cannot be restricted when I do cross-examination. I never know. I can tell you five minutes. It could be a half hour. I never know. It depends on what they bring out and what they don’t bring out. I mean there’s really no reason you can’t accommodate me knowing full well—
[THE COURT]: Which accommodation are you asking for that I’m not giving you?
[DEFENSE COUNSEL]: Recess until tomorrow.
[THE COURT]: Oh, okay.
[THE STATE]: If we recess until tomorrow, can we start the motion earlier?
[THE COURT]: Yeah. I’m thinking—
[THE STATE]: Like maybe start at 8:30 so at least we get the ball rolling.
[THE COURT]: Unfortunately, every Friday I have a prior commitment.
[THE STATE]: Tomorrow is Thursday.
[THE COURT]: I m normally here at 7:30 in the morning. Friday—
[THE STATE]: Tomorrow is Thursday.
[THE COURT]: Oh, good. I’m sorry. I got it all confused. It’s my age speaking. So Thursday—Thursday.
[THE STATE]: Can we bring him in here by 8:30? Can he be in here by 8:30?
[DEFENSE COUNSEL]: (indiscernible) It depends on the transportation.
[THE COURT]: All right. Well, that’s the decision. We’re going to start at 9:00. We’re going to start at 9:00.”

On January 14, at 9:42 a.m., the jury was sworn, and, significantly, the court did not address the suppression motion. Appellant’s counsel did not mention the issue or request a hearing throughout the rest of the entire trial (nor did anyone else), and he did not object when the State introduced Detective Larbi’s testimony that included appellant’s statements.

As discussed supra, appellant was convicted and sentenced. This timely appeal followed.

II.

Before this Court, appellant argues that the trial court erred in excluding evidence of appellant’s prescriptions as hearsay. Appellant claims that he did not offer the prescriptions for the truth of any matter asserted in them, but as a legal defense based on the language of the statutes, Maryland Code Ann., Crim. Law §§ 5-601, 5-602 (2002; 2012 Repl. Vol., 2015 Supp.). Simple possession has a statutory exception for possession of prescribed medications, which the prescriptions could prove. The prescriptions, according to appellant, provided a defense to the intent to distribute charges because a prescription provides alternative explanations for possession of a prescribed drug besides selling it. The prescriptions were probative of the asserted legal possession of the drugs, not the truth of any matter asserted in them. If the prescriptions were hearsay, appellant continued, physician’s orders fall squarely within the Maryland Rule 5—803(b)(4) exception for statements “made for purposes of medical treatment.” Appellant argues also that the prescriptions should not have been excluded for lack of authentication because appellant had no chance to present evidence to meet that slight burden (requiring only a finding that the jury might find that the evidence is what its proponent claims).

Appellant argues that the court’s failure to hold a hearing or rule on his motion to suppress his statements constituted reversible error. Appellant filed a written motion five months before trial to suppress any evidence as the fruits of an illegal seizure, and renewed the motion during pre-trial proceedings. The trial court agreed to hold a hearing on the motion, but never held the hearing or ruled on the motion. Appellant says that he never waived his motion, and the court erred in never resolving it.

The State argues that the prescriptions question is not preserved for appellate review because there is no evidence of the prescriptions in the trial court’s record. Appellant did not proffer any copies of the prescription, nor any details such as the prescribing physician or amount of the prescriptions. The State maintains that the prescriptions were excluded properly as hearsay because they were introduced for the truth of the implied assertion that appellant and/or his wife had a medical condition that required the prescribed drugs. Even if the prescriptions could be admitted, says the State, appellant offered no evidence to meet even the slight standard required for authentication. Appellant did not make any effort on the record to argue that the prescriptions were admissible. Because appellant’s witness list did not offer any expert witnesses who could have authenticated the prescriptions, the State argues, it is reasonable to assume appellant had no evidence to authenticate them.

As to the trial court’s failure to hold a suppression hearing, the State argues that appellant failed to preserve his claim for our review by not objecting to or mentioning the omitted hearing to the trial court at any time after the trial commenced. Moreover and most significantly, during the trial, appellant did not object to the introduction of the statements he had sought to suppress when the State introduced that evidence at trial.

III.

A.

Before we address the trial court’s exclusion of the prescription evidence, we address the State’s preservation argument. Preservation is controlled by Maryland Rules, interpretations of which are classified as questions of law. Williams v. State, 435 Md. 474, 483, 79 A.3d 931, 936-37 (2013). We review the trial court’s interpretations of the rules as conclusions of law de novo, that is, without deference “to determine if the trial court was legally correct in its rulings on these matters.” Davis v. Slater, 383 Md. 599, 604, 861 A.2d 78, 80-81 (2004).

Rule 8-131 (a) restricts appellate review generally to subjects that “plainly appear[ ] by the record to have been raised in or decided by the trial court.” Rule 4-323(c) further defines this standard for rulings excluding evidence as follows:

“[I]t is sufficient that a party, at the time the ruling or order is made or sought, makes known to the court the action that the party desires the court to take or the objection to the action of the court.... If a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection at that time does not constitute a waiver of the objection.”

Finally, Rule 5-103(a)(2) requires, in order to overturn a ruling excluding evidence, that “the party is prejudiced by the ruling, and ... the substance of the evidence [being excluded] was made known to the court by offer on the record or was apparent from the context within which the evidence was offered.”

The trial court knew of appellant’s desire to introduce the written prescriptions. The State moved to exclude the prescriptions in limine and the trial court granted the State's motion immediately, without affording comment from appellant’s counsel. Without making an explicit objection, appellant made known to the trial court (as required by Rule 4-323(c)) his desire that the prescriptions be admitted in evidence. Appellant raised his defense that he and his wife had valid prescriptions for methadone, alprazolam, and oxycodone in his motion to suppress, and the trial court’s exclusion of the evidence makes clear that the trial court was well aware that appellant desired to introduce the prescriptions.

An objection or exception to the court’s ruling when the court granted the in limine motion was unnecessary—the court gave appellant no opportunity to object to the ruling at that time and counsel was not required to argue with or confront the court. The court ruled on the State’s motion without offering appellant’s counsel any opportunity to respond or to argue his position. In fact, the trial court did not let the State finish its argument before granting the motion and immediately moving on. While appellant could have objected and asked to return to the topic, Rule 4-323(c) does not require such a remedial measure to preserve the issue for appeal. Reed v. State, 353 Md. 628, 639-40, 728 A.2d 195, 201 (1999). Appellant made no explicit offer of proof on the record, but the substance of the prescription evidence is apparent from both the charges against appellant, as discussed infra, and appellant’s suppression motion. This apparent substance of the prescription evidence satisfies Rule 5-103(a)(2). Additionally, the court’s ruling on the motion satisfies Rule 8-131(a)’s second option for preservation, a decision by the trial court. We hold that the issue is preserved for our review.

B.

Unlike other evidence, a trial court “has no discretion to admit hearsay in the absence of a provision providing for its admissibility.” Bernadyn v. State, 390 Md. 1, 8, 887 A.2d 602, 606 (2005). Hearsay is thus an issue of law, not fact. Id. “Whether evidence is hearsay is reviewed de novo,” without deference to the trial court. Morales v. State, 219 Md. App. 1, 11, 98 A.3d 1032, 1038 (2014).

Maryland Rule 5-801(c) defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

We hold that the trial court erred in excluding the prescriptions. They were not hearsay and were authenticated potentially by appellant.

Apparently, appellant did not plan to introduce the prescriptions to assert the truth of any matter stated in the prescriptions, just their existence. Sections 5-601 and 5-602 of the Criminal Law Article, which appellant was convicted of •violating, read, in pertinent part, as follows:

“§ 5-601. Possessing or administering controlled dangerous substance.
(a) Except as otherwise provided in this title, a person may not;
(1) possess or administer to another a controlled dangerous substance, unless obtained directly or by prescription or order from an authorized provider acting in the course of professional practice; ...
§ 5-602. Distributing, possessing with intent to distribute, or dispensing controlled dangerous substance.
Except as otherwise provided in this title, a person may not:
(1) distribute or dispense a controlled dangerous substance; or
(2) possess a controlled dangerous substance in sufficient quantity reasonably to indicate under all circumstances an intent to distribute or dispense a controlled dangerous substance.”

(emphasis added). Section 5-601 applies only to drugs not obtained by a valid prescription. The statute does not require that the prescription be appropriate for a patient’s medical condition, or that appellant in fact suffered from any particular medical condition, but only that the prescription had been prescribed by “an authorized provider acting in the course of professional practice.”

The State’s analogy to State v. Bryant, 361 Md. 420, 428-29, 761 A.2d 925, 929 (2000) (holding that a written certification by the custodian of hospital records was insufficient to self-authenticate a toxicology report under Rule 5-902), which the trial court agreed with in granting the motion, was inapt. In that case, the report was not itself a defense to the charge, but was introduced by the State to prove the driver’s intoxication in a vehicular homicide, i.e., to prove the blood alcohol content asserted by the report. See id. at 431, 761 A.2d at 931. The State sought to authenticate the report as a hearsay exception for business records under Rule 5-803(b)(6). Id. at 425, 761 A.2d at 927. Bryant does not apply to prescriptions that are relevant to an element of the charge.

The United States Court of Appeals for the District of Columbia Circuit addressed a similar issue in U.S. v. Bruner, 657 F.2d 1278 (D.C. Cir. 1981). John Bruner and Carl Lynch were two of seven men convicted of unlawful distribution of a controlled substance, interstate travel in aid of a racketeering enterprise, and conspiracy to distribute narcotic drugs. Id. at 1282-83. The group flew women from Washington, D.C,, to other cities, where the women would visit local doctors to acquire prescriptions for the weight-loss drug Preludin and the pain reliever Dalaudid and fill them at local pharmacies. Id. at 1283. Couriers would then pick up the drugs from the women and return the drugs to Washington. Id. The government’s evidence included approximately five thousand prescriptions from Dr. Gus Bashien, who had knowingly written prescriptions for the conspiracy. Id. Defendant Lynch objected to the prescriptions as inadmissible hearsay. Id. The court rejected his assertion, reasoning as follows:

“In our view, the prescriptions were not admitted to prove the truth of the assertions they contained, and are, therefore, not hearsay. They were not offered to prove Dr. Bashien’s or any of his patients’ addresses. Nor were they offered to prove the doctor believed that the patient needed the drug prescribed, which is an assertion probably intended by the doctor when he wrote the prescriptions. They were offered in evidence to show they were used to obtain drugs.”

Id. at 1284.

Section 5-602 charges of possession with intent to distribute could also be impacted by appellant’s prescription evidence even though the statute does not include a specific prescription exception. To be convicted, a violator must “possess a controlled dangerous substance in sufficient quantity reasonably to indicate under all circumstances an intent to distribute or dispense a controlled dangerous substance.” While possession of 342, 42, or even 7 pills, and the packaging of said pills, may suggest strongly that the drugs are not for personal use, we cannot as a matter of law say that possession was for distribution, as opposed to the trier of fact making that determination.

Valid prescriptions provide the basis of a statutory defense to the charges for possession of and possession of with intent to distribute methadone, alprazolam, and oxycodone. Introducing them for such purpose, when properly authenticated, is not hearsay. We hold that the trial court erred in excluding them as hearsay.

IV.

We turn to appellant’s second issue—whether the trial court erred in not holding a hearing on his pre-trial motion to suppress. We hold that appellant did not preserve this issue for our review.

We note at the outset that the record before us is not as clear on this issue as it should be. Appellant filed a pre-trial motion, captioned an Omnibus Motion, requesting, inter alia, “all evidence be suppressed because of an unlawful search or seizure.” Later, he filed a “Motion to Suppress Search and Seizure and Request to Examine Affiant (Franks Motion).” In his second motion, he alleged that “[ajccording to a witness, Rachel Ann Bunner, and the Defendant when the Police came to serve the Search Warrant, the Defendant was a quarter block down the road and across the street working on a vehicle, a Green Ford Explorer with Arnold Bowman. Police spotted the Defendant, stopped and searched both men, then handcuffed them and took them to 2580 Marbourne Avenue.”

In his memorandum of law, appellant argued that because the search warrant was for a particular house and not for any individual or named person, the detective lacked the authority to stop, search and arrest appellant, who was not at the house when police executed the search warrant. He requested a hearing on the motion. The State responded in writing, stating that appellant “is specifically referred to in the second paragraph of the affidavit,” which established probable cause to seize him prior to entry into the residence.

The trial court appears to have addressed appellant’s motion on several occasions. The record colloquy on the first day of trial indicates that the judge and counsel met in chambers and discussed the pending motion, although no one put a summary of the chambers conference on the record. When the court asked about Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the prosecutor told the court, “I believe we litigated that issue, ... the only remaining motion was the factual dispute as to the location as to challenging the arrest and the probable cause of Mr. Steven Young; whether the factual discrepancy between the two blocks or in front of 2580 Marboume Avenue is left.” At the end of the first day of trial, the court inquired about pre-trial motions, the prosecutor reminded the court of the outstanding motion that needed to be resolved, and the court was available to hear the motion “real quick.” Following defense counsel’s objection to a “real quick” hearing, the court agreed to proceed the next morning.

As we now know, the next morning, the search and seizure motion never came up and was never mentioned—not by the court, the prosecutor, nor, significantly, defense counsel. At trial, when Detective Larbi testified about the fruits of the arrest, ie., appellant leading officers to drugs that he claimed to possess and incriminating statements made by appellant that he “sells [drugs] from time to time,” defense counsel remained silent and never objected to the admission of that evidence. We hold that appellant has affirmatively waived any objection to the admissibility of this evidence.

Because it is not crystal clear what appellant is arguing before this Court, we shall first address briefly the procedure entitling a defendant to a so-called Franks hearing attacking a search warrant. If appellant is arguing that he was entitled to a Franks hearing, his argument fails because he never met his burden entitling him to a hearing on the validity of the search and seizure warrant beyond the four corners of the warrant. Moreover, as we shall explain infra, the record indicates that any Franks issue was resolved apparently during a chambers meeting, off the record, with the court and counsel.

As Judge Charles E. Moylan, Jr., explained cogently in Fitzgerald v. State, 153 Md.App. 601, 642, 837 A.2d 989, 1012 (2003), “a Franks hearing is a rare and extraordinary exception 1) that must be expressly requested and 2) that will not be indulged unless rigorous threshold requirements have been satisfied.” The United States Supreme Court set out “a formal threshold procedure before a defendant will be permitted to stray beyond the ‘four corners’ of a warrant application to examine live witnesses in an effort to establish that a warrant application was tainted by perjury or reckless disregard of the truth.” Id. at 643, 837 A.2d at 1012. Before a defendant may have a hearing, that defendant must make a substantial preliminary showing that the warrant affidavit included a false statement, made either knowingly and intentionally or with reckless disregard for the truth. Id., 837 A.2d at 1012. For this showing, “[affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.” Franks, 438 U.S. at 171, 98 S.Ct. 2674. If such intentional or reckless falsity is established in a hearing, a court must find that the alleged false statement was necessary to the finding of probable cause in order to suppress evidence resulting from the warrant. Id. at 156, 98 S.Ct. 2674. The Court of Appeals, in McDonald v. State, 347 Md. 452, 471, 701 A.2d 675, 684 n.11 (1997), explained as follows:

“Franks v. Delaware set out a procedure, requiring a detailed proffer from the defense before the defendant is even entitled to a hearing to go behind the four comers of the warrant. Under Franks, when a defendant makes a substantial preliminary showing that the affiant intentionally or recklessly included false statements in the supporting affidavit for a search warrant, and that the affidavit without the false statement is insufficient to support a finding of probable cause, the defendant is then entitled to a hearing on the matter. The burden is on the defendant to establish knowing or reckless falsity by a preponderance of the evidence before the evidence will be suppressed. Negligence or innocent mistake resulting in false statements in the affidavit is not sufficient to establish the defendant’s burden.”

In the event that appellant is claiming he was entitled to a Franks hearing, he is wrong because his arguments fail to satisfy the threshold requirements to entitle him to such a hearing. First, he has not made a substantial preliminary showing that the affiant intentionally or recklessly included false statements in the supporting affidavit for the search warrant. In fact, he never even claims intentional or reckless falsehood, which is the entire basis for a Franks motion. Second, bare allegations in a motion without affidavits or the like are insufficient to satisfy the stringent threshold requirement which must be met before a defendant may go beyond the four corners of a warrant. Appellant offers no witness testimony or other evidence to claim that Detective Larbi’s affidavit for the search warrant was knowingly or recklessly false. He speculates that the affidavit’s evidence might be stale and merely disputes Detective Larbi’s report of a confidential informant buying drugs from appellant.

Moreover, and dispositive of the issue, as reflected in the quoted colloquy, the record suggests that the parties resolved any Franks issue in chambers. It appears that all that remained on any pre-trial motion was a factual dispute between the State and appellant as to whether his arrest was lawful.

We turn to the remaining portion of appellant’s motion: the legality of his arrest. There is no dispute that after the first day of trial and the parties’ agreement to address the motion the next day, no one mentioned the outstanding motion again. There is no explanation on the record as to why defense counsel did not address the motion first thing the next morning. Most significantly, counsel did not object when the incriminating evidence, arguably the fruit of an illegal arrest, was introduced by the State into evidence.

Procedurally, appellant was entitled to a hearing on his motion to suppress fruits of an illegal arrest. The court offered him a hearing, but then agreed to defer the hearing to the next morning. While it was incumbent upon the court to address the motion and to hold a hearing, when the court failed to do so, it was incumbent upon defense counsel to raise the issue and bring it to the court’s attention. Then, When the State offered the evidence, appellant remained silent. Maryland Rule 5-103(a)(1) allows an admission of evidence to be an appealable error only if “a timely objection or motion to strike appears of record.” A contemporaneous objection to the admission of evidence is required. Malarkey v. State, 188 Md. App. 126, 156, 981 A.2d 675, 693 (2009). Here, there was no objection.

Counsel cannot stand silent and invite error. The right to a ruling on a pending motion “carries with it a commensurate responsibility [to bring the motion] to the attention of the trial court.” White v. State, 23 Md.App. 151, 156, 326 A.2d 219, 222 (1974). Appellant had to remind the court if he still desired a hearing on his motion, because failing to object to a court’s decision not to rule on a motion waives the right to appeal that motion. Malarkey, 188 Md.App. at 156, 981 A.2d at 693. In Malarkey, the judge explicitly reserved on each of three motions for judgment of acquittal and never ruled on any of them. Id. at 155, 981 A.2d at 692-93. The defendant never objected or otherwise claimed an entitlement to a ruling on his motions, even as the case went to the jury. Id. at 155-56, 981 A.2d at 692-93. Like appellant, the defendant’s failure to bring the question to the court’s attention waived his right to appeal it. Id. at 156, 981 A.2d at 693.

Even if both the court and counsel erred, the deciding factor in this case is counsel’s utter silence when the State introduced the incriminatory evidence, ie., the fruits of the search and the incriminatory statements. Appellant was beyond question required to make a contemporaneous objection when the State offered the evidence to “afford the trial court an opportunity to cure or correct the error.” Malarkey, 188 Md.App. at 157, 981 A.2d at 693. He failed to do so.

By failing to bring to the court’s attention the failure to hold the hearing before commencement of trial, or even at any time during the trial, and, significantly, by failing to make a contemporaneous objection to the admission of the evidence when offered by the State, appellant has waived the failure to hold a hearing for our review.

V.

We remand for a new trial on the six charges that were affected by the error of excluding appellee’s prescription evidence: possession of oxycodone with intent to distribute, possession of methadone with intent to distribute, possession of alprazolam with intent to distribute, possession of oxyco-done, possession of methadone, and possession of alprazolam. We affirm the convictions for possession of heroin with intent to distribute and possession of heroin.

JUDGMENTS OF CONVICTIONS FOR POSSESSION OF OXYCODONE WITH INTENT TO DISTRIBUTE, POSSESSION OF METHADONE WITH INTENT TO DISTRIBUTE, POSSESSION OF ALPRAZOLAM WITH INTENT TO DISTRIBUTE, POSSESSION OF OXYCO-DONE, POSSESSION OF METHADONE, AND POSSESSION OF ALPRAZOLAM IN THE CIRCUIT COURT FOR BALTIMORE CITY REVERSED. CASES REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION AND A NEW TRIAL ON THE SPECIFIED COUNTS. JUDGMENTS OF CONVICTIONS FOR POSSESSION OF HEROIN WITH INTENT TO DISTRIBUTE AND POSSESSION OF HEROIN AFFIRMED. COSTS TO BE PAID BY MAYOR AND CITY COUNCIL OF BALTIMORE.

      . Detective Larbi placed the men "in front of” and "two houses down from” the residence in the Statement of Probable Cause and his trial testimony, respectively. Another witness, speaking at different times, placed the men half a block away, and two blocks away, from the residence.

      . At sentencing, the possession charges were merged for sentencing into the charges that included intent to distribute. Therefore the sentence was based on the four intent-to-distribute charges.

      . Unless otherwise indicated, all subsequent statutory references herein shall be to Maryland Code Ann., Criminal Law Article.

      . The Rule states as follows:
      "RULE 5-803. HEARSAY EXCEPTIONS: UNAVAILABILITY OF DECLARANT NOT REQUIRED The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
      * * *
      (b) Other Exceptions.
      ⅜ ⅜ ⅜
      (4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of medical treatment or medical diagnosis in contemplation of treatment and describing medical history, or past or present symptoms, pain, or sensation, or the inception or general character of the cause or external sources thereof insofar as reasonably pertinent to treatment or diagnosis in contemplation of treatment.”

      . Rule 4-323(c) covers "Objections to Other Rulings or Orders.” Sections (a) and (b) deal with objections to the admission of evidence, and (c) can be presumed to cover all other objections. Appellant is challenging the suppression of evidence, not its admission, leaving this question under the rules prescribed by section (c).

      . In addition to appellant’s failure to make a contemporaneous objection, any error by the trial court to hold a hearing was rendered harmless by appellant's failure to object when the incriminating evidence was introduced. Davis v. State, 8 Md.App. 327, 329, 259 A.2d 567 (1969).


author: Friedman, J.

text:
    174 A.3d 493
    Sang Ho NA v. Malinda GILLESPIE
    No. 1919,
    Sept. Term, 2016
    Court of Special Appeals of Maryland.
    December 1, 2017

      Argued by Kelly A. Powers (Stephen J. Cullen, Leah M. Hauser, Miles & Stockbridge PC on the brief) all of Baltimore, MD, for Appellant.
    Argued by Alisa G. Cummins (Jennifer 0. Bradbury, Law Offices of Alisa G. Cummins PC on the brief) all of Ellicott City, MD, for Appellee
    Panel: Meredith, Berger, Friedman, JJ.
   Friedman, J.

This appeal concerns the circuit court’s denial of Sang Ho Na’s Motion to Enforce Mediated Settlement Agreement following the parties’ voluntary, private mediation to determine custody of their daughter. Na argues that the circuit court erred when it denied his Motion to Enforce Mediated Settlement Agreement. Additionally, Na argues that the circuit court erred by ordering him to pay $85,000 in attorney’s fees to Malinda Gillespie, and in awarding primary physical custody to Gillespie with visitation to Na.

For the reasons that follow, we affirm the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

Na and Gillespie are the unmarried parents of a daughter, born in July 2014. Na regularly visited the child, but she resided exclusively with Gillespie until November 20, 2015, when Na filed a Complaint for Custody and Other Relief in the Circuit Court for Howard County. Gillespie counterclaimed for custody, and on December 1, 2015 she filed a Request for Emergency Ex Parte Relief. An emergency pen-dente lite hearing was held that resulted in a temporary order granting joint legal custody to the parties with primary physical custody to Gillespie and visitation to Na until a full merits hearing could be held.

Prior to the merits hearing, the parties attended voluntary, private mediation. On the day of mediation, the parties, their counsel, and the mediator signed an Agreement to Mediate, by which they agreed to maintain the confidentiality of statements made and documents created during the mediation. The parties then proceeded with approximately nine hours of mediation. Meanwhile, outside, a snowstorm developed. Due to the snow, the parties ended their mediation session without reducing any agreed-upon terms to writing. It is undisputed that counsel for both parties agreed to work toward drafting an outline of the various terms discussed during the mediation with the ultimate goal of submitting a consent order to the court. The parties disagree, however, on the extent to which any final agreement was reached on all of the disputed issues.

In the days following mediation, counsel for the parties exchanged a number of emails regarding the preparation of a final written order. In her emails to Na’s counsel, Gillespie’s counsel maintained the position that the parties had not “close[d] the loop on all items” and that the terms needed “some more specificity.” Na’s counsel, however, believed that the parties had reached a binding, enforceable settlement agreement during mediation. Ultimately, counsel exchanged contrasting drafts, but the parties were unable to agree on a final consent order. Due to these continued disagreements, Na filed a Motion to Enforce Mediated Settlement Agreement (“Motion to Enforce”), which Gillespie moved to dismiss.

On April 26, 2016, the Circuit Court for Howard County held a hearing on the Motion to Enforce, and both sides gave oral argument regarding whether the parties had reached a binding, oral settlement agreement during mediation. Na also sought to introduce documents and testimony from the attorneys and the mediator who participated in the mediation to prove the existence, and the terms, of the parties’ alleged settlement agreement. Gillespie’s counsel objected, arguing that the confidential nature of the mediation barred any evidence of statements or documents made during the conference. The circuit court agreed with Gillespie, stating:

One of the fundamental principles that makes mediation work is the concept of confidentiality [—] that I can say anything in my mediation with my opponent and it can’t be used against me in court ... [t]hese parties walked into that mediation with that expectation ... I find that anything that came out of the mediation that was not a written agreement is inadmissible and therefore I have to grant the motion to dismiss.

The circuit court found that the Agreement to Mediate prohibited any discussion of the contents of mediation, and therefore the evidence Na wished to present was inadmissible. As a result, the court denied Na’s Motion to Enforce.

The court then held a three-day merits hearing, at the end of which it awarded the parties joint legal custody and primary physical custody to Gillespie with visitation to Na. The circuit court also ordered Na to pay $85,000 of Gillespie’s attorney’s fees. Na timely noted this appeal.

DISCUSSION

I. Denial of the Motion to Enforce Mediated Settlement Agreement

In reviewing the denial of a motion to enforce a settlement agreement, we review the circuit court’s factual findings for clear error and its legal conclusions de novo. Eastern Envtl. Endeavor, Inc. v. Indus. Park Auth. of Calvert Cnty., 45 Md.App. 512, 518-19, 413 A.2d 1355 (1980).

Na challenges the circuit court’s denial of his Motion to Enforce on the grounds that the court improperly denied him the opportunity to present evidence to prove that he and Gillespie had in fact come to a final agreement on all the disputed issues related to custody of their daughter. Na argues that because the parties opted for voluntary, private mediation, none of Maryland’s mediation confidentiality statutes or rules apply, and that, as a result, he is entitled to prove the existence of the parties’ settlement agreement through testimony regarding the mediation discussions. Gillespie responds that even though the parties voluntarily attended mediation, Maryland law protecting confidentiality of mediation and the plain language of the parties’ Agreement to Mediate require that all communications arising out of the parties’ mediation remain confidential. Thus, Gillespie contends, any evidence offered by Na regarding the mediation is barred.

We conclude that both parties are partially correct, as we shall explain in the sections that follow. Na is correct that no Maryland statute or rule protecting mediation confidentiality applies to the voluntary, private mediation in this case. The parties’ Agreement to Mediate, however, constitutes a binding contract to maintain the confidentiality of all communications and documents related to their mediation. Therefore an evi-dentiary hearing, as Na requests, would be futile because all of the evidence that he wishes to offer is inadmissible. We explain.

A. Maryland Mediation Rules and Statutes

The parties spend most of their efforts fighting about the applicability vel non of several statutes and rules regarding confidentiality in mediation, none of which are directly applicable to the voluntary mediation at issue in this case. Na contends that because these rules do not, by their terms, apply to voluntary, private mediations, he is entitled to present evidence of mediation communications that would otherwise be confidential. Gillespie argues that even though the confidentiality rules for court-ordered mediations do not literally apply to voluntary mediations, they are nonetheless instructive and should be construed broadly. She suggests that, in accordance with Maryland’s policy of encouraging voluntary settlement of lawsuits, parties who voluntarily agree to mediate should be entitled to similar confidentiality protections as those parties who are referred to mediation by a court.

We agree with Na that Maryland’s statutes regarding confidentiality in court-ordered mediations do not apply here. First, Title 17 of the Maryland Rules provides detailed rules governing confidentiality in Alternative Dispute Resolution, including mediation. By their express terms, however, these rules apply only when the matter is referred by a court to mediation, not, as here, where the parties undertake it voluntarily. Md. Rule 17-101(a). Second, the Maryland Mediation Confidentiality Act, Title 3, Subtitle 18 of the Courts and Judicial Proceedings Article, provides another set of rules governing confidentiality of mediation. Md. Code Cts. & Jud. Proc. (“CJ”) § 3-1801, et seq. Though this Act applies to all mediations ordered by administrative agencies or courts, it only applies to private mediations when the mediator certifies in writing that he or she will follow the Maryland Standards of Conduct for Mediators, which did not occur in this case. CJ § 3-1802. Third, Maryland Rule 5-408 is a rule of evidence which makes settlement negotiations inadmissible in many situations. In this case, however, Rule 5-408 doesn’t apply because the parties do not dispute the “validity, invalidity, or amount of a civil claim in dispute.” Md. Rule 5-408(a). Therefore, none of these laws make the content of this mediation confidential. But, that does not mean the opposite is necessarily true.

Gillespie argues that even if the laws and rules referenced by Na don’t apply, they reflect a policy in favor of mediation confidentiality. See Gen. Motors Corp. v. Lahocki, 286 Md. 714, 410 A.2d 1039 (1980) (discussing Maryland’s public policy in favor of compromise and settlement). While there is some attraction to this view, it is dangerous for courts to ignore the plain words of exclusion in a statute or rule. If the law says confidentiality doesn’t automatically apply in a certain situation, it is difficult for us to say that it does apply. Perhaps the exclusion was the compromise that allowed the bill to pass. Fortunately, however, we need not resolve this question because here the parties themselves have contracted to maintain confidentiality.

B. The Agreement to Mediate

The circuit court found that the terms of the parties’ Agreement to Mediate clearly reflected an understanding that all parties involved in the mediation would be bound by confidentiality. Based on this understanding, the circuit court denied the Motion to Enforce because to prove his claim, Na would necessarily have to present confidential evidence. Na argues that, although the Agreement to Mediate addressed the confidential nature of the mediation discussions, its terms do not preclude him from presenting evidence on the content of mediation to prove that the parties reached a final settlement. We agree with the circuit court that the Agreement to Mediate constitutes an enforceable contract, by which the parties clearly and unambiguously agreed to keep the content of mediation confidential.

Maryland law recognizes the freedom of parties to contract as they see fit. Nesbit v. Gov’t Employees Ins. Co., 382 Md. 65, 76, 854 A.2d 879 (2004) (“As a general rule, parties are free to contract as they wish”) (cleaned up). “Under the principles of freedom of contract, parties have a broad right to construct the terms of contracts they enter into as they wish.” Willard Packaging Co. v. Javier, 169 Md.App. 109, 122, 899 A.2d 940 (2006). Parties who voluntarily engage in mediation, such as Na and Gillespie, therefore, are free to define the governing terms—including the scope of confidentiality—of their mediations by contract. Long v. State, 371 Md. 72, 74, 807 A.2d 1 (2002) (quoting Slice v. Carozza Properties, Inc., 215 Md. 357, 137 A.2d 687 (1958) (“the written language embodying the terms of an agreement will govern the rights and liabilities of the parties”)).

To determine whether the confidentiality provisions of Na and Gillespie’s Agreement to Mediate are binding and enforceable, we apply the standard rules of contract interpretation. Maryland follows the objective approach to contract interpretation. Ocean Petroleum, Co. v. Yanek, 416 Md. 74, 86-87, 5 A.3d 683 (2010). This means that “the true test of what is meant is not what the parties to the contract intended it to mean, but what a reasonable person in the position of the parties would have thought it to mean.” Id. (cleaned up). Under this standard, unless a term is ambiguous, the court gives effect to the language of the contract, as written. Cochran v. Norkunas, 398 Md. 1, 16, 919 A.2d 700 (2007).

In this case, the parties’ Agreement to Mediate stated, in pertinent part:

The parties and attorneys whose signatures appear below agree that all proceedings at their mediation conference and at any subsequent mediation conference, including any statement made or document prepared by any party, attorney or other participant ... are confidential and shall not be disclosed in any subsequent proceeding or document ... As used herein, the phrase “document prepared by any party, attorney or other participant” shall not be deemed to apply to any settlement agreement that may result from their mediation conference, and this agreement shall not apply to any such settlement agreement. The parties agree not to subpoena the mediator or any documents prepared for mediation ... In no event will a mediator voluntarily testify on behalf of a party. The mediator will preserve and maintain the confidentiality of all written and oral communications made in connection with or during a mediation conference.
No party shall be bound by anything said or done at the mediation conference unless a settlement is reached. If a settlement is reached, it shall be binding upon all parties to the agreement.

(Emphasis added). The express language in this one-page Agreement to Mediate is unambiguous and should be applied as written. Neither party to this appeal challenges the terms of the Agreement to Mediate as ambiguous, nor do they allege that the Agreement is unenforceable. Because the plain language of the parties’ Agreement to Mediate represents a clear intent by all parties to maintain the confidentiality of their discussions, documents, and communications, the Agreement constitutes a binding, contractual confidentiality agreement. B & P Enterprises v. Overland Equipment Co., 133 Md.App. 583, 604, 758 A.2d 1026 (2000) (“The clear and unambiguous language of a written agreement controls.”); Hartford Acc. and Indem. Co. v. Scarlett Harbor Assoc. Ltd. P’ship, 109 Md. App. 217, 291, 674 A.2d 106 (1996). We must therefore consider the admissibility of Na’s proposed evidence in light of the Agreement to Mediate’s express terms. Smelkinson Sysco v. Harrell, 162 Md.App. 437, 447, 875 A.2d 188 (2005) (“Parties are held to the express terms of their contract.”).

Na offers several examples of documentary and testimonial evidence that he contends would prove that the parties reached a binding settlement agreement at the close of mediation. First, Na subpoenaed the mediator to testify at the hearing, despite a line in the Agreement to Mediate stating “the parties agree not to subpoena the mediator.” Even if the mediator wished to testify without a subpoena, the Agreement to Mediate forecloses that option. It provides, “in no event will a mediator voluntarily testify on behalf of a party.” Second, Na contends the parties’ mediation counsel could testify as to what happened at mediation. Again, this proposal conflicts directly with the terms of the Agreement to Mediate, which prohibit an attorney from disclosing statements made in mediation at any subsequent proceeding. Finally, Na offers a written “terms sheet” as proof of the finalized terms of the parties’ settlement agreement. This terms sheet, however, was prepared by Gillespie’s attorney during mediation and supplemented with handwritten notes by Na’s counsel. This document is confidential under the Agreement to Mediate, as well, because “any document prepared by any party, attorney or other participant ... [is] confidential.” In sum, all of Na’s proposed evidence is inadmissible pursuant to the confidentiality provisions of the Agreement to Mediate.

Although the admission of any of the proffered evidence tending to establish the terms of the alleged settlement would violate the Agreement to Mediate, Na nevertheless contends that he is entitled to an evidentiary hearing. Na argues that our cases require that where parties dispute the existence of a binding settlement agreement, the trial court must hold an evidentiary hearing. He provides some cases in support of his argument, although none involve facts sufficiently similar to this case. See David v. Warwell, 86 Md.App. 306, 318, 586 A.2d 775 (1991) (holding that a plenary hearing is required to enforce a motion to enforce a settlement agreement if the parties contest the existence of an agreement) (emphasis added); Litzenberg v. Litzenberg, 57 Md.App. 303, 312, 469 A.2d 1279 (1984) (the formality of a proceeding to enforce a settlement agreement “depends upon the complexity of the dispute” and can range from a “summary” proceeding to a “plenary” proceeding). We are not persuaded. We do not think there is a rule that makes evidentiary hearings mandatory. Moreover, we hold that even if an evidentiary hearing is often appropriate when parties dispute the existence of a settlement agreement, on the facts of this particular case, such a hearing would be futile. An evidentiary hearing, therefore, is not required here.

The confidentiality provisions in the Agreement to Mediate render an evidentiary hearing on Na’s Motion to Enforce purposeless. We have already demonstrated that any testimony or investigation by the trier of fact into the content of the alleged settlement terms would necessarily involve discussing the confidential communications between the parties and their attorneys during the mediation. At the circuit court’s hearing on the Motion to Enforce, counsel for Na, himself, illustrated this issue. He argued “my view is there’s a settlement and that settlement is enforceable and the only way to determine what those terms are is to take evidence about the terms.” The Agreement to Mediate clearly and unambiguously prohibits disclosure of “any statement made or document prepared by any party, attorney or other participant” in the mediation. Therefore, even if Na were granted an evidentiary hearing to prove the existence of a settlement agreement, the evidence he wishes to present would be wholly inadmissible. Smelkin son Sysco v. Harrell, 162 Md.App. 437, 447, 875 A.2d 188 (2005). When we know that there will not be any relevant, admissible evidence, an evidentiary hearing is a fool’s errand.

In the absence of any admissible evidence establishing the existence of a final, binding settlement agreement reached between the parties through mediation, the circuit court did not err in denying Na’s Motion to Enforce.

II. Award of Attorney’s Fees

Na next challenges the circuit court’s order for Na to pay $85,000 towards Gillespie’s attorney’s fees. We review an award of attorney’s fees in family law cases under an abuse of discretion standard. Steinhoff v. Sommerfelt, 144 Md.App. 463, 487, 798 A.2d 1195 (2002). We will not disturb a circuit court’s award of attorney’s fees “unless a court’s discretion was exercised arbitrarily or the judgment was clearly wrong.” Petrini v. Petrini, 336 Md. 453, 468, 648 A.2d 1016 (1994).

Section 12-103 of the Family Law (“FL”) Article of the Maryland Code governs the award of counsel fees, and requires a court to consider three factors before awarding attorney’s fees: “(1) the financial status of each party; (2) the needs of each party; and (3) whether there was substantial justification for bringing, maintaining, or defending the proceeding.” FL § 12-103(b). To determine whether a court abused its discretion, we examine the court’s application of the statutory factors to the unique facts of the case. Petrini, 336 Md. at 468, 648 A.2d 1016 (citation omitted). Here, the court carefully compared the parties’ respective financial situations and considered evidence of Na’s substantially higher salary. Further, the court heard testimony that Gillespie’s attorney’s fees were fair and reasonable. We cannot say that the circuit court misapplied the statutory criteria or abused its discretion in its award of attorney’s fees to Gillespie. Thus, we affirm the court’s award of attorney’s fees.

III. Award of Child Custody

Finally, we address Na’s challenge to the circuit court’s award of primary physical custody to Gillespie and visitation rights to Na. Na argues that the trial court’s “physical custody analysis is entirely self-contradictory” because it acknowledged that both parents are committed to and love the child, but then declined to award fifty-fifty custody.

We review a circuit court’s award of child custody for whether the trial court abused its discretion and whether its findings of fact are clearly erroneous. Viamonte v. Viamonte, 131 Md.App. 151, 157, 748 A.2d 493 (2000); Montgomery Cnty. Dept. of Social Servs. v. Sanders, 38 Md.App. 406, 418, 381 A.2d 1154 (1977). The clear error standard “is a deferential one, giving great weight to the [court’s] finding of fact.” Viamonte, 131 Md.App. at 157, 748 A.2d 493. It is well established in Maryland that the trial court, which has the opportunity to observe the parties and witnesses, hear testimony, and make credibility determinations, “is in a far better position than [the] appellate court ... to weigh the evidence and determine what disposition will best promote the welfare of the minor.” Davis v. Davis, 280 Md. 119, 125, 372 A.2d 231 (1977); see also Innerbichler v. Innerbichler, 132 Md.App. 207, 229, 752 A.2d 291 (2000); Viamonte, 131 Md.App. at 157, 748 A.2d 493.

In child custody actions, “the paramount concern is the best interest of the child.” Taylor v. Taylor, 306 Md. 290, 303, 508 A.2d 964 (1986). Na’s assumption that equal interest should correlate to equal custody is misplaced here. Rather, “[fjormula or computer solutions in child custody matters are impossible.” Id. Courts have discretion to consider a variety of factors when making decisions regarding physical custody including the fitness of the parents, the relationship between the child and each parent, and the potential disruption to the child’s life that joint physical custody might create. Id. at 304-09, 508 A.2d 964. While the trial court did recognize both parties’ fitness as parents, it examined the geographic distance between the parties, the frequency of the child’s interactions with each parent, and gave great weight to the fact that, at age two, the child “should not be away from her primary caregiver ... the mother, for a week at a time.” We see no clear error in the court’s weighing of the testimony and evidence presented by the parties and the record reveals that the circuit court carefully considered the best interests of the child. Therefore, the circuit court did not abuse its discretion by awarding primary physical custody to Gillespie and visitation to Na. We affirm.

JUDGMENT OF THE CIRCUIT COURT FOR HOWARD COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

      . It is not clear why Gillespie captioned this pleading as a motion to dismiss, rather than as an opposition to Na’s Motion to Enforce.

      . "Cleaned up" is a new parenthetical intended to simplify quotations from legal sources. See Jack Metzler, Cleaning Up Quotations, J. App. Prac. & Process (forthcoming 2018), https://perma.cc/JZR7-P85A. Use of (cleaned up) signals that to improve readability but without altering the substance of the quotation, the current author has removed extraneous, non-substantive clutter such as brackets, quotation marks, ellipses, footnote signals, internal citations or made un-bracketed changes to capitalization.

      . See supra n. 2.