Opinion
No. 3338
12-20-2019
IN RE: ADOPTION/GUARDIANSHIP OF M.K., I.K., AND N.K.
Circuit Court for Baltimore City
Case No. T15338002, T15338003, T15338004
UNREPORTED
Graeff, Kehoe, Wright, Alexander, Jr. (Senior Judge, Specially Assigned), JJ. Opinion by Wright, J. *This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
This appeal arises after the Circuit Court for Baltimore City, in a February 8, 2019 Opinion and Order, terminated the parental rights of appellant, R.C. ("Mother"), in her three children, M.K., I.K., and N.K., and granted guardianship to the Baltimore City Department of Social Services ("the Department" or "DSS"). In arriving at its judgment, the circuit court concluded that Mother was unfit to remain in a parental relationship with the children, and that continuation of the relationship would be detrimental to their best interests. Mother timely noted this appeal, raising the following question for our review, which we have rephrased for clarity:
The questions presented as written in Mother's brief read as follows:
1. Did the [c]ourt err in admitting into evidence many exhibits that were containing prejudicial hearsay not permitted under any exception to the hearsay rule and too remote in time to be relevant?
2. Does the Public Records Exception to the Hearsay Rule apply in cases in which the Department is offering the record of the Department's observations against a biological parent in a termination of parental rights proceeding?
1. Did the circuit court err by improperly admitting hearsay and irrelevant evidence?
2. Did the circuit court err by ruling that the Department undertook reasonable efforts to facilitate family reunification?
Mother did not raise the issue of the Department's efforts to facilitate reunification as a question presented for our review. Nonetheless, because Mother briefed and argued the point, we included it in our paraphrasing of the issues on appeal, above.
Mother did not raise the issue of the Department's efforts to facilitate reunification as a question presented for our review. Nonetheless, because Mother briefed and argued the point, we included it in our paraphrasing of the issues on appeal, above.
BACKGROUND
PRECEDING EVENTS
The events leading up to this matter extend back more than a decade, taking place in multiple states, involving numerous interactions with their respective agencies, and including multiple hearings before various state authorities. The most salient facts are included below.
The custody of M.K., I.K., and N.K. is the subject of the instant appeal. Mother has been transient for most of the children's lives. The eldest child, M.K., was born while Mother resided in Euclid, Ohio. Mother lived in Euclid along with her then-husband, E.K. ("Father"), and one elder daughter from February of 2006 until March of 2007. After leaving Euclid, the family resided for a relatively brief time in Baltimore. During this period the group had no established housing; rather, they occupied various motels.
The family left for Texas in November of 2007. Around this time, Mother became pregnant with I.K. The family originally planned for Mother, Father, and M.K. to move in with Father's adoptive parents. However, shortly after their arrival, Mother, for reasons that were unclear, left the home, opting instead to take M.K. and to reside in a local shelter. Mother resided there for several months, with her second child, I.K., being born during this period. Mother's time at the shelter ended on March 20, 2008, when Child Protective Services ("CPS") arrived and took custody of both M.K. and the newborn I.K. The children remained under CPS' supervision, residing with Father and his family.
In April of 2008, Mother left Texas and returned to Baltimore to stay with family for a short time. During that same month, Mother took her two elder daughters on a trip to New York City. Mother testified that, while in New York, she was stopped, surrounded by police, and hospitalized for two weeks. In a June 14, 2008 CINA Adjudication Order, The Master made the following findings with respect to the incident:
A child in need of assistance ("CINA") is "a child who requires court intervention because: (1) The child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and (2) The child's parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and the child's needs." Md. Code (1973, 2013 Repl. Vol.), Courts & Judicial Proceedings Article ("CJP") § 3-801(f).
1. The respondents' mother is mentally ill. She suffers from a severe psychotic illness. The respondents' mother refuses to take her medication or follow up with referrals for treatment.
2. In April 2008, the respondents' mother removed the respondents from their father and took them to New York City where they slept in Central Park and later in a homeless shelter.
3. While in New York the respondents' mother had a psychotic episode and was taken into custody by police and transported to St. Luke's Hospital. There she was evaluated and submitted for an involuntary psychiatric admission. She was hospitalized on the psychiatric unit from April 23, 2008 to May 6, 2008 and was released when she was deemed to be no longer a danger to herself or others. She was still described as delusional and was discharged with medication and referrals for treatment in Baltimore.
4. The New York City Division of Child Protection notified the respondents' father who went to New York and brought the respondents back to Baltimore. They have remained with their father since that time.
5. The respondents' mother has not followed through with the treatment recommendations from St. Luke's Hospital.
After her release, Mother returned to Baltimore, before proceeding to Texas in June of 2008. Per Mother's testimony, after CPS intervened with her custody of M.K., I.K., and N.K., she established housing, got an apartment, and attended therapy—all requirements pursuant to a services agreement resulting from the court's involvement and the custody situation being designated a CINA matter. Mother testified that she maintained visitation rights during this time and that custody remained with the children's paternal grandparents. In February of 2009, Mother regained custody of M.K. and I.K. and left Texas to return to Baltimore.
Mother remained in Baltimore for the next two years. During this period, on May 24, 2010, N.K. was born. At the end of 2010, Mother testified that there was an incident involving Father where he broke all of the windows in the apartment where she was residing with the children. Mother testified that, because she did not have enough money to repair the windows and pay rent, she took M.K., I.K., and N.K. with her to Fort Wayne, Indiana, seeking support from her grandfather and other family members who resided in the area. Upon arrival, Mother and her children stayed for two nights at what, upon her testimony, ostensibly seemed to be a shelter. She then paid one week's rent at a local hotel.
Mother denied that the place, identified as Sylvia's House, was a shelter, stating that she was required to provide identification and her social security number so that the facility could acquire money from her.
While staying at the hotel, Mother, who had not contacted her grandfather prior to the trip, began efforts to locate him and her other family members in the area. After failing to locate him, Mother inquired of her family members in Baltimore as to where he might be and was informed that the grandfather had previously relocated to Alabama. Two to three days into their stay, CPS appeared and took custody of the children following a report that Mother had kicked I.K. down the steps of the hotel.
The children were subsequently placed with Father, who relocated with the children to Texas in the early part of 2012. However, per Mother's testimony, at some point thereafter she traveled to Texas and recovered the children before returning to Baltimore. Mother and Father reconciled, and in September or October of 2012, Mother returned to Texas with the couple's children, as well as her two elder daughters, again with the intention of residing with Father's family. The arrangement was short-lived; Mother stayed with the family for only two days before leaving to stay in a motel. Mother left Texas with the children in November of 2012, returning once more to Baltimore.
Mother would go on to admit, in an interview with CPS, that she prostituted herself during this period in order to provide housing for herself and the children.
Upon her return to Baltimore, Mother found both work and residence in a daycare facility owned by the foster parent of her elder daughter and granddaughter. Roughly two weeks later, Mother ended her residence at the daycare after a fellow resident reported her to CPS. CPS performed an investigation but allowed Mother to retain custody of the children. Mother next relocated to a Motel 6.
During this next motel stint, Mother was having difficulty meeting the children's basic needs when she encountered a man she identified as a stranger. The man offered financial assistance and to purchase food for the children. Mother indicated that she did, in fact, need help. The unidentified male purchased food for the group and expressed to Mother that he had paid for three nights' stay at the motel. After bringing the food, the unidentified male became aggressive, indicating that he wanted payment in the form of sexual intercourse either from Mother or her daughter, M.K. Mother denied his sexual advances. The man next expressed that he wanted for Mother and the children to take a shower, to which Mother consented. As Mother and the children were in the shower, the man entered the bathroom, nude. Mother wrapped herself with the shower curtain and obscured the children from view before telling the man to leave the bathroom. After getting out of the shower, M.K. expressed that she did not want the man to remain in the room, and Mother responded by telling the man to leave and threatening to call the police. M.K. then went to the bathroom and alleged that the man followed her in before choking her.
Shortly after this incident, on December 19, 2012, police received an anonymous call in reference to Mother and her children. The caller relayed concerns that Mother was prostituting either herself or her daughter. The caller further claimed that the room was in poor condition, with both beds being covered with clothing and junk such that no one could sleep on them. Detective Hillary Davis arrived at the motel and made contact with the family. Detective Davis noted that the room was filthy and that the children reported eating candy the majority of the time. Detective Davis reported her concern that Mother was prostituting herself with the children witnessing the acts, but elicited no information indicating that Mother was soliciting her daughter. Detective Davis contacted CPS, indicating concerns of neglect, though not sexual abuse. During the early morning hours on December 20, 2012, Detective Davis escorted M.K. and Mother to Johns Hopkins emergency room so that M.K. could be evaluated in light of the alleged choking. All three children were subsequently placed in shelter care pending further court intervention.
On March 20, 2013, the circuit court issued an order following a CINA hearing precipitated by the December 2012 motel incident. In its order, the circuit court accepted several findings by the Master regarding the facts of the incident (all being consistent with the description of the event, supra). Other notable findings the court accepted, which the Master found to be supported by a preponderance of the evidence, included the following:
1. The parents fail to provide adequate care, protection and supervision for the respondents, [M.K., I.K., and N.K.]
2. [DSS] has received several reports of neglect concerning [M.K., I.K., and N.K.] Contact with [Mother] was unsuccessful as [Mother] was not at the address provided to [DSS].
3. [Mother] failed to provide an independent stable living environment for the care of the respondents.
* * *
8. [Mother] also failed to ensure [M.K.] was registered for school. Mother advised [DSS] that [M.K.] was being home-schooled. [DSS] attempted to determine if [M.K.] was being home-schooled in Baltimore with negative results. There was no evidence presented about whether [M.K.] had been enrolled in school in Texas.
* * *
10. [DSS] was provided with information concerning [Mother's] mental health status. [Mother] received a psychiatric evaluation in New York in 2008 at St. Lukes [sic] hospital. Mother states that she was hospitalized for two weeks against her will, and that she was diagnosed with either
Schizophrenia or Bipolar Disorder. Mother denies both diagnoses . . . Mother indicates that she was prescribed medication during the 2008 hospital stay, but that she has not taken that medication since discharge. Mother has not been receiving any mental health treatment.The circuit court proceeded to accept the Master's recommendations and ordered a continuance of shelter care, but allowed Mother supervised visits with the children.
11. [Mother] has a CPS history dating back to August 7, 1991 centering on physical abuse and neglect. The CPS history pertaining to sexual abuse refers to [Father's] alleged abuse of [M]other's older children . . . . [M.K.] was interviewed at the Baltimore Child Abuse Center in December 2012. Melody disclosed that her father raped her. [DSS] closed sexual abuse investigation with an "unfounded" designation. The respondents have been in foster care placements in Indiana and Texas. In Texas, [M.K., I.K., and N.K.] were initially placed with [Father's] parents, but then removed because [Father] allegedly violated a mandate indicating that he was to have no overnight visitation in the home.
While the children were placed in shelter care, Mother was scheduled to attend weekly, hour-long visits. In December of 2013, the juvenile court, upon the Master's recommendation, issued an order allowing Mother to resume unsupervised visits. Those recommendations were based on findings that Mother had begun participating in mental health treatment, that Mother's home had been assessed and approved by DSS, and that supervised visitation had gone well, among others. However, Mother's behavior with regard to visits quickly became problematic. Mother was noncompliant with the requirements of her services agreement, failed to make her home available to her assigned social worker, and missed visits for three consecutive weeks in January 2014. Mother's lack of consistency with visitation continued into the ensuing years—during the period running from May 2015 to January 2016, Mother rarely, if ever, attended for four consecutive weeks. She also continued to demonstrate odd and erratic behavior.
In January of 2016, visitation was reduced from weekly to once a month, with the children being afforded discretion as to whether they wanted to participate. For the period running from February to July of 2016, N.K. and I.K. visited every month; M.K. declined to visit in June or July. In August of 2016 the scheduled visitation was cancelled, and no further visits occurred beyond that point.
ADJUDICATION AT ISSUE
Following a Petition for Guardianship filed by the Department, Mother's parental rights in M.K., I.K., and N.K. were initially terminated in August of 2016. Mother noted an appeal, and on September 5, 2017, in an unreported opinion this court reversed the circuit court, remanding the matter for further proceedings.
Father previously consented to the termination of his parental rights, as memorialized in a June 24, 2016 order issued by the Baltimore City Circuit Court.
The prior decision rendered by this court was In re: Adoption/Guardianship of M.K., I.K. and N.K., No. 1679, 2017 WL 3867989 (Md. Ct. Spec. App. 2017) (hereinafter M.K., I.K, N.K. "I"). We shall discuss that case more substantively, infra.
A second termination of parental rights proceeding commenced on October 29, 2018, going on to span 10 days over four months. The proceedings concluded on January 30, 2019, and the court rendered its decision on February 6, 2019. Testimony was taken from various parties, including employees from the Department, the foster mother with whom the children had resided since 2013, the children, and Mother. Mother was late or absent for at least five days of the proceedings and did not appear for the court's ruling. The testimony elicited was consistent with the facts discussed above, though including various other anecdotal accounts of Mother's questionable or concerning behavior. With regard to the testimony provided by the children themselves, all three refused to refer to Mother as 'Mom,' but rather referred to her by first name only. None of them indicated having an emotional connection with her or even the desire to see her. Conversely, all expressed happiness and contentment with their foster parents, whom they regarded as their true parents.
On February 6, 2018, the circuit court rendered its decision regarding the termination of parental rights. As noted above, Mother was not present for the proceedings, and her counsel indicated that he had not heard from her. Applying the legal standard articulated in Md. Code (1984, 2012 Repl. Vol.), Family Law Article ("FL") § 5-323, the circuit court made a number of findings under the various prongs of the statutory framework. In conclusion, the circuit court ruled from the bench as follows:
FL § 5-323 lays out a number of requisite considerations, all relevant to the inquiry set out in section (b) of the provision, which states thus:
If, after consideration of factors as required in this section, a juvenile court finds by clear and convincing evidence that a parent is unfit to remain in a parental relationship with the child or that exceptional circumstances exist that would make a continuation of the parental relationship detrimental to the best interests of the child such that terminating the rights of the parent is in a child's best interests, the juvenile court may grant guardianship of the child without consent otherwise required under this subtitle and over the child's objection.Section (d) of the provision lays out the following considerations:
(1)(i) all services offered to the parent before the child's placement, whether offered by a local department, another agency, or a professional;
(ii) the extent, nature, and timeliness of services offered by a local department to facilitate reunion of the child and parent; and
(iii) the extent to which a local department and parent have fulfilled their obligations under a social services agreement, if any;
(2) the results of the parent's effort to adjust the parent's circumstances, condition, or conduct to make it in the child's best interests for the child to be returned to the parent's home, including:
(i) the extent to which the parent has maintained regular contact with:
1. the child;
2. the local department to which the child is committed; and
3. if feasible, the child's caregiver;
(ii) the parent's contribution to a reasonable part of the child's care and support, if the parent is financially able to do so;
(iii) the existence of a parental disability that makes the parent consistently unable to care for the child's immediate and ongoing physical or psychological needs for long periods of time; and
(iv) whether additional services would be likely to bring about a lasting parental adjustment so that the child could be returned to the parent within an ascertainable time not to exceed 18 months from the date of placement unless the juvenile court makes a specific finding that it is in the child's best interests to extend the time for a specified period;
(3) whether:
(i) the parent has abused or neglected the child or a minor and the seriousness of the abuse or neglect;
(ii)
1. A. on admission to a hospital for the child's delivery, the mother tested positive for a drug as evidenced by a positive toxicology test; or
B. upon the birth of the child, the child tested positive for a drug as evidenced by a positive toxicology test; and
2. the mother refused the level of drug treatment recommended by a qualified addictions specialist, as defined in § 5-1201 of this title, or by a physician or psychologist, as defined in the Health Occupations Article;
(iii) the parent subjected the child to:
1. chronic abuse;
2. chronic and life-threatening neglect;
3. sexual abuse; or
4. torture;
(iv) the parent has been convicted, in any state or any court of the United States, of:
1. a crime of violence against:
A. a minor offspring of the parent;
B. the child; or
C. another parent of the child; or
2. aiding or abetting, conspiring, or soliciting to commit a crime described in item 1 of this item; and
(v) the parent has involuntarily lost parental rights to a sibling of the child; and
(4)(i) the child's emotional ties with and feelings toward the child's parents, the child's siblings, and others who may affect the child's best interests significantly;
(ii) the child's adjustment to:
1. community;
2. home;
3. placement; and
4. school;
(iii) the child's feelings about severance of the parent-child relationship; and
(iv) the likely impact of terminating parental rights on the child's well-being.
For all of the listed reasons, pursuant to [FL] § 5-323, this court finds by clear and convincing evidence that [Mother] is unfit to remain in a parental relationship with the child [M.K.], or children [M.K., I.K., and N.K.] This court further finds that [Father] has consented to the termination of his parental rights as to [M.K., I.K., and N.K.] This court also finds that exceptional circumstances exist that would make the continuation of the parental relationship detrimental to the best interest of the children [M.K., I.K., and N.K.] Inasmuch this court hereby orders that the petition to
terminate the parental rights of [Mother], as it pertains to [M.K., I.K., and N.K.] is hereby granted. It is also ordered [that DSS] is appointed guardian of [M.K., I.K., and N.K.], with the right to consent to adoption, as well as the right to consent to long-term care short of adoption. Both biological parents are entitled to notice[.]Further, in its written Opinion and Order, the court addressed the sufficiency of the efforts taken by DSS, stating:
This court [finds] that [DSS] has exercised reasonable efforts to effect the permanency plan, in filing the petitions, serving the parties, completing the motions and TPR hearing over a two and one-half month span, and in identifying a resource in the [M.] family.
The permanency plan was directed toward reunification of Mother and M.K., I.K., and N.K.
The permanency plan was directed toward reunification of Mother and M.K., I.K., and N.K.
On February 26, 2019, Mother timely filed this appeal. Additional facts shall be noted as they become relevant to our analysis, below.
DISCUSSION
On appeal, Mother identifies two bases of potential error. First, she challenges the circuit court's admission of seven items into evidence, averring that each item should have been excluded as hearsay. Mother argues that none of the items falls within a recognized exception to the hearsay rule and further notes that several of the items were so far removed in time from the termination of parental rights hearing that they were of questionable relevance. In the alternative, Mother challenges the sufficiency of actions taken by DSS to effectuate the then-active permanency plan, and consequently the reunification of Mother and her children. DSS and M.K., I.K., and N.K., by and through counsel, argue that all of the challenged evidence was admissible or otherwise harmless in its inclusion. With regard to the adequacy of the Department's efforts to facilitate reunification, Mother avers that departmental efforts were lacking and that there was inadequate communication regarding the Department's expectations of her. The Department and M.K, I.K., and N.K reply by arguing that there is overwhelming evidence indicating that the Department did, in fact, take appropriate measures and that Mother was otherwise unfit to retain parental rights in the children.
STANDARDS OF REVIEW
Concerning the standard of our review, we note, first, that "'Maryland appellate courts apply three different but interrelated standards of review' when reviewing a juvenile court's decisions at the conclusion of a termination of parental rights proceeding." In re Adoption/Guardianship of C.E., 464 Md. 26, (2019) (quoting In re Adoption/Guardianship of Cadence B., 417 Md. 146, 155 (2010). The Court of Appeals explained these associated standards in In re Adoption/Guardianship of Ta'Niya C., 417 Md. 90 (2010), when it stated:
[w]hen the appellate court scrutinizes factual findings, the clearly erroneous standard of [Md. Rule 8-131(c)] applies. [Second,] [i]f it appears that the [court] erred as to matters of law, further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless. Finally, when the appellate court views the ultimate conclusion of the [court] founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the [court's] decision should be disturbed only if there has been a clear abuse of discretion.Id. at 100 (alterations in original) (quoting In re Adoption/Guardianship of Victor A., 386 Md. 288, 297 (2005)). Consistent with that,
[l]egal conclusions of unfitness and exceptional circumstances are reviewed without deference. In reviewing whether the juvenile court abused its discretion, we are aware that juvenile courts must apply a statutory
termination of parental rights directive to factual scenarios that are far from clear. We are mindful that "to be reversed the decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what the court deems minimally acceptable."In re Adoption/Guardianship of C.E., 464 Md. 26, 47-48 (2019) (quoting In re Adoption/Guardianship of Cadence B., 417 Md. 146, 155 (2010)).
Second, specifically regarding a court's judgments on the admissibility of evidence, we note that such decisions are generally left to the sound discretion of the trial court, being disturbed only upon showing that there was an abuse of that discretion. Farley v. Allstate Ins. Co., 355 Md. 34, 42 (1999). That general standard is altered when a court is confronted with the admission of hearsay evidence, however. Indeed,
[h]earsay, under our rules, must be excluded as evidence at trial, unless it falls within an exception to the hearsay rule excluding such evidence or is "permitted by applicable constitutional provisions or statutes." Md. Rule 5-802. Thus, a circuit court has no discretion to admit hearsay in the absence of a provision providing for its admissibility. Whether evidence is hearsay is an issue of law reviewed de novo.Bernadyn v. State, 390 Md. 1, 8 (2005) (emphasis in original).
HEARSAY
Hearsay is defined 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." Md. Rule 5-801(c). It is fundamental that "out-of-court statements are generally not admissible to prove the truth of the matter asserted. Yet, they can be admitted if the statements are 'relevant and proffered not to establish the truth of the matter asserted therein, but simply to establish that the statement was made[.]'" State v. Young, 462 Md. 159, 170 (2018). Consequently, whenever called upon to assess a question of hearsay, we begin by identifying what the extrajudicial statement was offered to prove. Devincentz v. State, 460 Md. 518, 553 (2018). If not offered for its truth, the statement need not be excluded. Stoddard v. State, 389 Md. 681, 689 (2005).
A number of exceptions to the general hearsay rule have been recognized and codified. See Md. Rules 5-801.2-5-804. Of particular relevance in the instant proceeding is the exception for public records and reports, codified as Md. Rule 5-803(b)(8). Subsection (A) of the Rule provides, in relevant part, that an exception to the general prohibition on hearsay evidence exists for
a memorandum, report, record, statement, or data compilation made by a public agency setting forth (i) the activities of the agency; (ii) matters observed pursuant to a duty imposed by law, as to which matters there was a duty to report; [or] in civil action and when offered against the State in criminal actions, factual findings resulting from an investigation made pursuant to authority granted by law[.]With that we note, however, that there are limitations on the exception, focusing specifically upon the quality of information that such records provide. Subsection (B) of the provision goes on to state:
[a] record offered pursuant to paragraph (A) may be excluded if the source of information or the method or circumstance of the preparation of the record indicate that the record or the information in the record lacks trustworthiness.
This Court recently had occasion to examine the applicability of the above-referenced provision in a matter factually similar to the case at bar. In In re H.R., 238 Md. App. 374, 378 (2018), this Court addressed the parental rights of father Mr. R in three children, ages 6, 5, and 3. As in the instant matter, one parent, Mr. R, contested the termination of his parental rights, while the other consented to it. Id. Like Mother, Mr. R. had a history of mental illness, and the children involved had been adjudicated CINA. Id. at 380-81, 398. Mr. R. also failed to comply with the requirements of his services agreement, and had failed to maintain consistent, long-term employment. Id. at 388-89. The circuit court ruled to terminate Mr. R.'s parental rights. Id. at 378. On appeal, he challenged the judgment of the circuit court, in part, on the ground that it had erred by admitting materials from the children's CINA court files. Id. at 402-03.
In considering the circuit court's admission of CINA Court Reports, this Court relied principally upon a Court of Appeals opinion predating the adoption of Md. Rule 5-803, Ellsworth v. Shiverne Lingerie, Inc., 303 Md. 581 (1985), but that nonetheless provides significant guiding authority. As with H.R., we cite the following language from Ellsworth approvingly:
McCormick on Evidence § 315, at 888 (E. Cleary 3d ed. 1984) describes the common law exception for public records: "The common law evolved an exception to the hearsay rule for written records and reports of public officials under a duty to make them, made upon firsthand knowledge of the facts. The statements are admissible as evidence of the facts recited in them."
The modern trend has been to admit public records when the information is gathered by a public officer under a statutory duty to investigate and record or certify facts ascertained by other than personal observation. 5 J. Wigmore, Evidence § 1635, at 531 (3d ed. 1940) states:
Now there may be cases in which the officer's duty clearly does involve his ascertainment of facts occurring out of his presence and requiring his resort to sources of information other than his own senses of observation; for example, an assessor's record of the value of real estate and its occupancy, or a registrar of voters' record of electors' residence. When such a duty clearly exists, the general doctrine above, that a witness should have personal knowledge, need
not stand in the way, for (as already noted) it has its conceded limitations; and where the officer is vested with a duty to ascertain for himself by proper investigation, this duty should be sufficient to override the general principle. It is true that due caution should be observed before reaching the conclusion that the law has in fact in a given case intended to invest the officer with such an unusual duty. But when it clearly appears that a duty has been prescribed to investigate and to record or certify facts ascertained other than by personal observation, then it follows that, in accordance with the general principle of the presence exception, the statement thus becomes admissible.
* * *
Ellsworth, 303 Md. at 604-05, 607-08. To that we would add that
Initially, some courts expressed concern over the admission of reports where the government official did not appear to have firsthand knowledge of the facts. There is now general recognition, however, that the hearsay nature of the evidence is a factor to be considered in determining the presence or absence of trustworthiness, but the presence of any level of hearsay does not, by that fact itself, render the report untrustworthy.
even though the burden rests upon the party opposing the introduction of a public record to demonstrate the existence of negative factors sufficient to overcome the presumption of reliability, this does not mean that additional evidence will be required in every case to meet that burden. . . . Additionally . . . the inclusion within a factual report of inadmissible evaluations or opinions need not necessarily result in exclusion of the entire report[.]Id. at 612.
In conducting its analysis under Ellsworth, the H.R. Court summarily denied Mr. R.'s argument that "the social workers who authored the reports were representatives of the Department, his adversary, and the reports were 'self-serving position papers.'" H.R., 238 Md. App. at 406-07. Rather, the Court focused principally upon the statutory duty to provide such reports, and Mr. R.'s failure to demonstrate that the documents lacked trustworthiness. Id. The Court further noted that, to the extent any statements were admitted that did not fall under the public records exception, any error in admitting them was harmless. Id. at 407.
With that discussion of the pertinent law, we now focus our attention on the challenges made in the instant litigation. Mother challenges seven pieces of evidence admitted by the circuit court. They include: (1) a June 12, 2013 CINA Disposition Evaluation authored by Mary P. Yox, LCSW-C; (2) a May 2, 2016 Termination of Parental Rights Evaluation authored by Brenda S. Harriel, LCSW-C; (3) a May 6, 2016 Termination of Parental Rights Evaluation authored by Ruth T. Zajdel, Ph.D.; (4) an undated Initial Family Assessment - 181 Narrative, reported by Detective Hillary Davis; (5) a February 20, 2014 CPS Narrative authored by Ms. Mae Wilkes; (6) an October 26, 2012 CPS Child Neglect Report by Mr. Ivel Arbuah; and, (7) a December 7, 2015 letter from M.K., I.K, and N.K.'s therapist, Ms. Dara Gervais, M.A. LBPC. We conduct our review in accordance with the authority articulated above.
Before moving to a more general analysis of the evidence offered, it would be worthwhile to first consider our prior decision in M.K., I.K, N.K. "I". We consider the two appeals, step one and step two. The initial appeal followed a termination of parental rights proceeding in the Baltimore City Circuit Court, where Mother lost her parental rights in M.K., I.K., and N.K. There, as here, she challenged the circuit court's decision on the ground that the court had improperly admitted hearsay evidence—indeed, three of the same items that she contests on this appeal. We held that the evidence was improperly admitted, as no one with knowledge of the contents of the documents was available during the circuit court proceedings to lay the necessary foundation for their admission. Further holding that Mother was prejudiced by the admission of the evidence, we reversed the circuit court and remanded it for further proceedings.
After review, we hold that any defects in the evidence presented were remedied during the matter's second round in the circuit court. As to each of those items, numbered 1-3 above, the authors testified and were available for cross-examination. Consequently, any issues arising from the lack of proper foundation were cured.
Regarding the first three items, then, Md. Rule 5-803(b)(8), Ellsworth, and H.R. end any debate as to this evidence. As that authority makes clear, the focus of our assessment is, first, whether the documents were produced "pursuant to a duty imposed by law," and second, whether Mother has sufficiently demonstrated a basis for considering the documents untrustworthy.
With general regard to the province of the court, we note that courts are obligated to "hold a separate disposition hearing after an adjudicatory hearing to determine whether the child is a CINA." Md. Code (1973, 2013 Repl. Vol.), Courts & Judicial Proceedings Article (1-101 to 4-506) ("CJP") § 3-819. They must further "conduct a hearing to review the status of each child under its jurisdiction within 6 months after the filing of the first petition . . . and at least every 6 months thereafter." CJP § 3-816.2(a); COMAR 07.02.11.19. Such hearings occur so that the court may "[e]valuate the safety of the child;" "determine the continuing necessity for and appropriateness of any out of home placement;" and "[d]etermine the extent of progress that has been made toward alleviating or mitigating the causes necessitating the court's jurisdiction[.]" Id. Moreover, courts are obligated to hold a permanency planning hearing to determine a permanency plan for a child within 11 months of their placement pursuant to an adjudication that they are CINA, and may hold hearings upon the request of a party or of the court's own volition to review the implementation of such plan. CJP § 3-823. With particular respect to permanence planning hearings, DSS is obligated to "[p]repare a written report setting forth the local department's recommendations," and to "[p]rovide the report to the court, the child's attorney and the child's parent or legal guardian." COMAR 07.02.11.20.
The first item, the CINA Disposition Evaluation, was produced in conjunction with the court's responsibility to hold a disposition hearing and to adjudicate whether M.K., I.K., and N.K. were CINA. It was produced upon referral from Master Lynae Turner and responded specifically to the court's question as to whether Mother and Father had mental health diagnoses that would impact their ability to care for their children. The document was prepared by a licensed clinical social worker operating as part of the Medical Services Division of the Circuit Court for Baltimore City. All of these facts, we think, are sufficient to conclude that the document was produced pursuant to duty imposed by law and even more clearly a duty to report. As such, the public records exception properly applies, and to the extent that Mother avers the document included inadmissible hearsay, that issue is not in itself dispositive on the question of the document's admissibility. Considering, then, whether Mother has met her burden to show that the document was untrustworthy, we do not believe that she has. Mother's primary argument in this regard is that the document was insufficiently redacted, including language having to do with schizophrenia despite the fact the diagnosis itself had been redacted by order of the court. That, however, does not go to trustworthiness, but to unfair prejudice, and even that contention is mitigated by the fact that Ms. Yox, who prepared the report, was available to testify and for cross-examination.
Notably, Mother also raises the argument that the evaluation was based, in part, upon a June 5, 2008 CINA Adjudicatory Order that was not in evidence, and consequently could not be verified. That contention is erroneous. The Order was admitted into evidence as Exhibit 61 and was available as part of the record reviewed by this Court.
Similar reasoning underlies our decision with respect to the two termination of parental rights evaluations. Both evaluations were prepared in anticipation of pending termination of parental rights hearings and upon specific referral from a judge in the circuit court. Like the CINA Disposition Evaluation, each report was prepared by a licensed professional working for the Medical Services Division of the Circuit Court for Baltimore City, both of whom were available to testify and for cross-examination. Simply stated, a request posed by the court to a subdivision of its own organization rises to the level of a duty imposed by law, and the product of that request—particularly a report that merely compiles information—appropriately falls under the exception. With regard to the May 2, 2016 report, Mother reiterates the same arguments we already denied in our discussion of the CINA Disposition Evaluation, above—consequently, her challenge as to this report fails for the same reasons already stated. As for the May 6, 2016 report, aside from the hearsay argument we previously discussed, Mother offers an argument presumably directed toward relevance. She argues that the report is "more than two years old by the time of the hearing" and "does not contain current evidence of Mother's compliance with consistent mental health treatment." Because a document cannot reflect information accrued after its drafting, we assume Mother's argument to be that the report lacks relevance and is of limited probative value in light of subsequent developments. However, the threshold for relevance, and consequently admissibility, is not high. State v. Simms, 420 Md. 705, 727 (2011) ("It is true that relevance is generally a low bar."). We think that the report was not so removed in time from the proceedings in the instant matter as to be deprived of its probative value, and consequently that it meets the low standard for admissibility. To the extent that Mother's challenge to its admissibility is predicated on arguments already advanced with respect to the other reports, we rely on our analysis above. In sum, we hold that all three evaluations fall within the purview of the public records exception, and were properly admitted by the circuit court.
We think it worthwhile to acknowledge a tension discussed in Ellsworth between factual findings and statements of opinion. 303 Md. at 608-13. The Court made clear that "the term 'factual findings' will be strictly construed and that evaluations or opinions will not be received unless otherwise admissible under this State's law of evidence." Id. at 612. The three items discussed above were "evaluations" and contained "recommendations" to the court. As a result, their admission may give rise to concerns that the court would be admitting otherwise improper opinion evidence not within the protection of the exception. These concerns are largely semantic. Despite the titles of the documents and their subsections, each of the three documents are primarily compilations of factual information within the spirit of Ellsworth. To the extent that they do include statements of opinion, they are generally benign. For instance: in the June 12, 2013 CINA Disposition Evaluation, Ms. Yox opined that Mother "should have a psychiatric evaluation" and "[o]ngoing individual therapy is necessary;" and in the May 6, 2016 Termination of Parental Rights Evaluation, Dr. Zajdel stated that Mother's cognitive insight "continues to be limited," and that it was "highly recommended that visits with [Mother] continue to be supervised." Such individual statements within documents that are otherwise factual recitations we do not think are disqualifying as to the whole document—particularly where, as here, there is significant evidence available attesting to the issue of Mother's mental health. As such, to the extent statements such as those identified were admitted and exceed the bounds of the exception, their inclusion was harmless.
Mother next challenges the admission of three items—one assessment, one narrative, and one neglect report—prepared by the Department and CPS. Mother argues that the items were inadmissible on various grounds. The Initial Family Assessment, she argues, was improperly admitted by the circuit court under the business records exception, and relays an unknown person's assessment of the facts pertaining to Mother and her living conditions. The February 20, 2014 narrative, she avers, is more prejudicial than probative, and was also inappropriately admitted under the business records exception. Finally, the October 26, 2012 neglect report she regards as inadmissible primarily on the basis that it is different in kind from the documents considered in H.R.
Codified as Md. Rule 5-803(b)(6), the business records exception reads as follows:
A memorandum, report, record, or data compilation of acts, events, conditions, opinions, or diagnoses if (A) it was made at or near the time of the act, event, or condition, or the rendition of the diagnosis, (B) it was made by a person with knowledge or from information transmitted by a person with knowledge, (C) it was made and kept in the course of a regularly conducted business activity, and (D) the regular practice of that business was to make and keep the memorandum, report, record, or data compilation. A record of this kind may be excluded if the source of information or the method or circumstances of the preparation of the record indicate that the information in the record lacks trustworthiness. In this paragraph, "business" includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
We note preliminarily that the CPS is tasked with "stop[ping] and prevent[ing] child abuse and neglect through . . . investigation of child abuse and neglect [and performing] [c]omprehensive assessment[s] of safety, risk, and service needs[.]" COMAR 07.02.07.01. They operate in conjunction with local departments of social services which must "[p]romptly determine whether to investigate a report or to initiate a comprehensive family assessment[,] [c]omplete a timely investigation or family assessment appropriate to the circumstances[,] . . . [and] [a]fter conducting a family assessment, complete and distribute a written assessment addressing safety and risk." Id. Further, local departments are required to "[c]reate and maintain accurate reports and records that can serve as tools in providing services and in future involvement with the family." Id.
Both narratives and the report fall squarely within the obligations set forth above for DSS and CPS, and presumptively fall within the public records exception. As such, Mother's contention that the Initial Family Assessment and February 20, 2014 narrative were inappropriately admitted under the business records exception is immaterial. See Lee v. Cty. Bd. of Appeals of Baltimore County, 235 Md. 38, 41 (1964) ("A trial court may be right for the wrong reason."). Likewise, Mother's remaining arguments against admissibility are unavailing. In a proceeding such as this, where the circuit court was tasked with assessing the best interests of children, we are not inclined to regard documents created pursuant to public mandate and existing primarily as compilations of information as unfairly prejudicial merely because the information within that compilation may cast a party in a negative light.
The final disputed document is a December 7, 2015 letter from the children's therapist. Mother argues that the letter was incorrectly admitted under the public records exception. Both Mother and counsel for the children challenge that assertion, arguing that the exception did, in fact, apply, and that the admission of the letter is otherwise harmless or cumulative. With regard to the exception we believe that, by its terms, it does not apply to documents like the letter at issue. The language of the Rule states that it applies to those documents made by a public agency. Md. Rule 5-803(b)(8). While the letter may have been included among the various documents the Department has compiled pursuant to its legal duties, a general accumulation of documents is not the sort of compilation contemplated by the Rule. The Ellsworth Court's discussion of the exception implicitly illustrates that point. 303 Md. at 604-13 (focusing on the creation of reports by public officials).
The text of the letter reads, in pertinent part:
Most recently, I made the recommendation that I do not conduct family sessions with [M.K., I.K., and N.K.'s] birth mother due to a lack of consistency in scheduled and attended sessions and due to the fact that these sessions seemed to do more harm the [sic] therapeutic relationship that I have with the [K.] children as their individual therapist. I shared my concerns with their guardian, Ms. Welton, and suggested that if family therapy sessions with the children's birth mother were to continue, that they be conducted by another therapist. I am able to provide a referral if needed.--------
In the absence of an exception, we note that the letter and its comments are properly regarded as hearsay. The Department argues to the contrary, stating that the letter was admitted "to establish the motivation behind the Department's change in position regarding family therapy for the children and [Mother], and not for the truth of the therapist's statements in the letter." However, that argument is untenable; if the letter was not offered for the truth of its statements—that Mother would not consistently schedule appointments and was otherwise detrimental to the therapeutic relationship with the children—then it would have been of no value in explaining the Department's change in position. Nonetheless, we consider its inclusion harmless.
Though the letter constituted hearsay, we identify no prejudice resulting from its admission. Here, the Court of Appeals' explication in Beahm v. Shortall, 279 Md. 321, 330-31 (1977) (some citations and quotations omitted), is instructive:
In the interest of the orderly administration of justice, and to avoid useless expense to the state and to litigants in its courts, it has long been settled policy of this court not to reverse for harmless error. . . . As a corollary of that policy, it is firmly established that the complaining party has the burden of showing prejudice as well as error. If prejudice is shown this court will reverse. We summed up the policy with respect to the erroneous admission of hearsay evidence in Kapiloff v. Locke, 276 Md. 466, 472, 348 A.2d 697, 700 (1975):
The letter ultimately raises two issues: that Mother had issues with consistent scheduling, and that her behavior was problematic in a clinical setting. However, the record is replete with evidence to substantially the same effect. We therefore hold that the evidence provided by the letter was merely cumulative of that which had been properly admitted. Error, if any, was harmless and reversal is not required. Alco Const. Co. v. Peachwood Development Corp., 257 Md. 269, 272 (1970) (finding error harmless where "testimony complained of [was] merely cumulative of much other evidence accepted by the court in reaching its final decision")."It is, of course, true that the erroneous admission of evidence will not justify reversal unless the complaining party can show that the admission was prejudicial to him. . . . However, it is also clear that this court will not hesitate to reverse where hearsay evidence is erroneously admitted and prejudice is shown. . . . The burden of proving prejudice in a civil case is on the complaining party . . . ."
At this point, we would briefly address Mother's contention that the public records exception generally should not be applicable in cases like the one at bar—where reports or documents were created by the Department and then offered by the same entity into evidence in support of their plea to terminate a party's parental rights. In response we note that we previously disposed of this same argument in H.R., as mentioned supra. 238 Md. App. at 406-07. Beyond that, we deny Mother's contention that the Department's role in this context is analogous to the role of law enforcement personnel in a criminal prosecution, and consequently that its records ought to be excluded under Md. Rule 5-803(b)(8)(C). Unlike law enforcement agencies preoccupied with criminal prosecution, the Department occupies a comparatively neutral space. Indeed, as Mother plainly acknowledges, the Department has a statutory obligation to facilitate the reunification of families—unlike law enforcement agencies, who are charged not with the directive to exonerate people, but to prosecute them. Moreover, the reports produced by the Department do not find their sole value in termination of parental rights proceedings. Under different circumstances, they may serve as evidence of a parent's progress, their consistent efforts to ensure that they maintain a relationship with their children, and the like. Because of the divergence in the roles of law enforcement agencies as compared to departments of social services, we think Mother's comparison is inapt and find her argument to be without merit.
ADEQUACY OF DEPARTMENTAL EFFORTS TO FACILITATE REUNIFICATION
The final issue for our consideration is whether adequate efforts were taken by the Department to facilitate the reunification of Mother with her children. Mother argues that the efforts taken were insufficient; the Department and children, through counsel, deny her contention.
A court's decision to terminate a party's parental rights is not trivial. An exercise of the court's power in this regard implicates a right deemed fundamental under the Constitution. As the Supreme Court has explained, "it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions the care, custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 66 (2000); see also Wisconsin v. Yoder, 406 U.S. 205, 232 (1972) ("The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition."). Nonetheless, we remain mindful that, in certain cases, the court's intervention may be warranted. Consequently, the CINA subtitle of the Maryland Code exists "to ensure that juvenile courts (and local departments of social services) exercise authority to protect and advance a child's best interests when court intervention is required." In re Natasha B., 409 Md. 20, 33 (2009). Title 5, subtitle 3 of the Family Law Article applies specifically when considering the guardianship and adoption of CINA.
An explication of the statutory scheme, upon which we cannot improve, was provided in In re Adoption/Guardianship of Rashawn H., 402 Md. 477 (2007), where Judge Wilner, writing for the Court, explained as follows:
[T]he General Assembly, in enacting former FL § 5-313 and current FL § 5-323, has maintained the best interest of the child standard as the overriding statutory criterion in TPR cases. There are, however, three critical elements in the balance that serve to give heightened protection to parental rights in the TPR context. First and foremost, is the implicit substantive presumption that the interest of the child is best served by maintaining the parental relationship, a presumption that may be rebutted only by a showing that the parent is either unfit or that exceptional circumstances exist that would make the continued relationship detrimental to the child's best interest. That presumption, which emanates from parent-third party custody disputes, is not expressly articulated in the statute and, for that reason, is usually not mentioned when discussing the various statutory factors, but it may be necessary as a Constitutional matter and, even if not, it is implicit from the statutory scheme. The notions of "unfitness" and "exceptional circumstances" have a different connotation in TPR cases than they do in custody and visitation disputes, however. . . . [Rather,] [t]he facts must demonstrate an unfitness to have a continued parental relationship with the child, or exceptional circumstances that would make a continued parental relationship detrimental to the best interest of the child.
The second element that serves to protect the parental relationship is that, in a TPR case, the kind of unfitness or exceptional circumstances necessary to rebut the substantive presumption must be stablished by clear and convincing evidence, not by the mere preponderance standard that applies in custody cases. The State must overcome a much higher substantive burden by a higher standard of proof.
Third, and of critical significance, the Legislature has carefully circumscribed the near-boundless discretion that courts have in ordinary custody cases to determine what is in the child's best interest. It has set forth criteria to guide and limit the court in determining the child's best interest—the factors formerly enumerated in FL § 5-313(c) and (d) and now stated in
FL § 5-323. Those factors, though couched as considerations in determining whether termination is in the child's best interest, serve also as criteria for determining the kinds of exceptional circumstances that would suffice to rebut the presumption favoring a continued parental relationship and justify termination of that relationship.Id. at 497-500 (emphasis added).
* * *
The statute does not permit the State to leave parents in need adrift and then take away their children. The court is required to consider the timeliness, nature, and extent of the services offered by DSS or other support agencies, the social service agreements between DSS and the parents, the extent to which both parties have fulfilled their obligations under those agreements, and whether additional services would be likely to bring about a sufficient and lasting parental adjustment that would allow the child to be returned to the parent. Implicit in that requirement is that a reasonable level of those services, designed to address both the root causes and the effect of the problem, must be offered—educational services, vocational training, assistance in finding suitable housing and employment, teaching basic parental and daily living skills, therapy to deal with illnesses, disorders, addictions, and other disabilities suffered by the parent or the child, counseling designed to restore or strengthen bonding between parent and child, as relevant. Indeed, the requirement is more than implicit. FL § 5-525(d), dealing with foster care and out-of-home placement, explicitly requires DSS to make "reasonable efforts" to "preserve and reunify families" and "to make it possible for a child to safely return to the child's home."
Mother's issue has to do specifically with the last subject addressed in the quoted text above—whether reasonable efforts were taken to preserve her family and to allow her children to return home. She specifically avers that the circuit court "erred in finding that the Department fulfilled its obligations under [FL §] 5-323(d)(1)(ii) to facilitate reunion." In support of her position, she cites a number of issues with the Department's reunification efforts, including a lack of communication and good-faith effort by the Department worker tasked with facilitating Mother's reunion with her children, and the Department's generally apathetic approach to carrying out its directive. Mother credits the Department's failures for the deterioration of her relationship with M.K., I.K., and N.K.
The specific provision to which Mother cites is one of the statutorily required points of consideration in a termination of parental rights proceeding. The relevant subsection reads, in part:
[I]n ruling on a petition for guardianship of a child, a juvenile court shall give primary consideration to the health and safety of the child and consideration to all other factors needed to determine whether terminating a parent's rights is in the child's best interests, including:
Ruling from the bench, the circuit court made the following related findings:
* * *
(ii) the extent, nature, and timelines of services offered by a local department to facilitate reunion of the child and parent[.]
[T]his court will consider the factors, the 5-323(d) factors. As to [FL §] 5-323(d)(1), . . . [t]o reunify the family, DSS has offered mental health services. [Mother] has cooperated at times, and at other times she did what suited her desires at the moment. DSS has made more than reasonable efforts to reunify [Mother] with her three children. DSS has scheduled family involved meetings, attempted to locate [Mother's] older son to facilitate relative placement. They have made numerous referrals, made calls, sent letters, and offered various therapeutic programs to address [Mother's] mental health needs.
DSS offered service agreements of which some remain unsigned. DSS attempted to assists with stable housing to no avail. DSS has facilitated supervised and unsupervised visits with significant difficulty and tremendous stress on the children. DSS offered overnight visits with the children, but [Mother] failed to participate. In fact, [Mother] would disappear for extended periods at a time. DSS offered car seats and furniture for the children to help stabilize [Mother's] housing. Even that has failed.
According to [Mother], she recently spent two and one-half weeks living in her car.
[Section] (d)(1)(ii), in addition to the above, DSS has offered bus tokens to [Mother] to facilitate visits. They also offered home health assessments, and sent letters to engage [Mother] with limited success. And they sent financial support to facilitate overnight visits. They attempted to monitor [Mother's] mental health, again, with little success. DSS offered many services to [Mother] within the first year of the children being out of her care.
Mother does not challenge the legitimacy of these findings. Rather, she would focus this Court's attention on particular interactions she has identified as problematic having to do with one staff member. This Court cannot be so myopic in its review of the record. Mother does not dispute the circuit court findings identified above. Even assuming, arguendo, that her complaints had a valid basis, we could not view those facts in isolation. As the circuit court identified and our review of the record corroborates, the Department made significant efforts to assist Mother, be it by scheduling visits with the children, paying for furniture, or offering therapeutic services. While the Department must make reasonable efforts, it "is not obliged . . . to cure or ameliorate any disability that prevents the parent from being able to care for the child." Rashawn H., 402 Md. at 500. Indeed, the Department "must provide reasonable assistance in helping the parent to achieve those goals, but its duty to protect the health and safety of the children is not lessened and cannot be cast aside if the parent, despite that assistance, remains unable or unwilling to provide appropriate care." Id. at 500-01. As such, we hold that the Department met its responsibility to make reasonable efforts to facilitate reunification, and that Mother's argument is without merit.
In conducting our review of the court's factual findings, we do so with deference to the circuit court, only setting its judgment aside when those findings are clearly erroneous. Mother has offered no reason for us to do so, and we think that the circuit court's conclusions find ample support in the record. As for the circuit court's legal determination to terminate Mother's parental rights, we find that the circuit court followed the applicable statutory framework and made all requisite inquiries, making factual findings as required. As such, the court properly applied controlling law. Because the "ultimate conclusion of the [court was] founded upon sound legal principles and based upon factual findings that are not clearly erroneous[,]" we therefore hold that there was no abuse of discretion on the part of the circuit court, and we affirm.
JUDGMENTS OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED; COSTS TO BE PAID BY APPELLANT.