In Conover Case, Court of Appeals Reinstates De Facto Parental Status in Maryland

By: Denise Blake

In July 2016, the Court of Appeals of Maryland decided Conover v. Conover, which held that Maryland courts should recognize de facto parent status for individuals who have assumed a parental role but lack a biological or adoptive relationship with their children.[1]  This holding provides legal standing for de facto parents to contest custody or visitation without being required to show parental unfitness of the biological or adoptive parent, or exceptional circumstances.[2]  This decision overruled the high court’s 2008 decision in Janice M. v. Margaret K., which abrogated de facto parent status as a legal status in Maryland.[3]

            Brittany and Michelle Conover were in a relationship for seven years when they decided to conceive a child via artificial insemination.[4] Brittany became pregnant and gave birth to a baby boy.[5]  Six months after their son Jaxon was born, Brittany and Michelle were legally married.[6]  However, after one year of marriage, they separated.[7]  In the months following the separation, Brittany allowed Michelle overnight and weekend visits with Jaxon.[8]  However, after almost a year of separation, Brittany abruptly terminated Michelle’s visitation with their son.[9] Almost eighteen months after separating, Brittany filed a divorce complaint in which she claimed that the parties had no children.[10]  Michelle filed an answer and a counter-complaint requesting visitation.[11]  Although Michelle was not biologically related to the child and had not legally adopted him, she had resided with her son during his early life, had a close relationship with him, and both parties had signed a handwritten joint custody agreement.[12]  The trial court ruled that Michelle was legally a third party and lacked standing to contest custody and visitation.[13]  The Court of Special Appeals affirmed.[14]

            Conover is significant for family law practitioners with LGBT clients because it reinstates the doctrine of de facto parental status that was established in S.F. v. M.D. in 2000 and abrogated by Janice M. v. Margaret K. in 2008.[15]  Janice M. was detrimental to LGBT parents seeking custody or visitation of a child to whom they were not related biologically or by adoption.[16]  In that case, the court held that de facto parents were third parties and had to overcome the rebuttable presumption that parental custody was in the child’s best interest by showing parental unfitness or exceptional circumstances.[17]  The court’s ruling in Conover acknowledges the important role of de facto parents in their children’s lives despite the lack of biological or legal parenthood, and recognizes that this type of strong parental relationship should not require a showing of parental unfitness or exceptional circumstances before determining whether custody or visitation with the de facto parent would be in the child’s best interests.



Denise A. Blake is a third-year day student at the University of Baltimolaw-forum-blog-photo-for-denise-blakere. She serves as a second-year Staff Editor of the UB Law Forum. Her legal interests include Family Law and Trusts and Estates. She earned a Master of Arts in Sociology from Tulane University. She can be reached at denise.blake@ubalt.edu. You can also visit her LinkedIn profile here.

 

Advertisements

2016 Law Changes Criminal Penalties for Certain Drug Related Offenses

By: Ashlyn Campos

The 2016 Legislative session passed numerous bills into law.  Senate Bill 1005 (“S.B. 1005”) was one that found permanence in the Maryland legal landscape.  S.B. 1005 was drafted on the recommendations of the Justice Reinvestment Coordinating Council (“JRCC”).[1]  This council was developed as a section of the Governor’s Office of Crime Control and Prevention.[2] The JRCC was created for the purpose of using a data-driven approach to develop a statewide policy framework of sentencing and corrections policies in order to reduce the State’s incarcerated population, reduce spending on corrections, and reinvest in strategies to increase public safety and reduce recidivism.[3]

Civil Liability for Adults Who Host

By Kayla DiNuccio

Previously, Maryland law did not recognize a cause of action for social host liability for adults or minors and only had criminal penalties imposing fines for furnishing alcohol to minors, or allowing minors to consume alcohol on their premises.[1]  Any person who violates Maryland’s drinking statute is “guilty of a misdemeanor and on conviction is subject to: (1) a fine not exceeding $2,500 for a first offense; or (2) a fine not exceeding $5,000 for a second or subsequent offense.”[2]  This meant even if an adult knowingly allowed minors to drink at their homes and one of those minors left and injured themselves or another, the adult could only face a small fine.[3]

Although there have been a number of cases that have raised the issue of whether social hosts should be civilly liable in Maryland, two cases have greatly impacted the law regarding social host civil liability.[4]  In Davis v. Stapf, an intoxicated minor got into the bed of a pickup truck driven by another intoxicated guest of the party and was killed on his way home.[5]  His mother, Nancy Davis, sought to hold the adult host, Ms. Staph, civilly liable because she was home, knew minors were drinking, and let them drive.[6]  Similarly, in Kiriakos v. Phillips, a minor, who was drinking at his friend Brandon Phillips’ house, an adult, left in the early hours and struck Manal Kiriakos while walking her dogs, causing life-threatening injuries.[7]  The Court of Special Appeals of Maryland denied relief to both parties, however, the Court of Appeals of Maryland granted their writs of certiorari.[8]

Decided together on July 5, 2016, Maryland’s highest court reversed and remanded both cases and held that adults who host underage parties can be civilly liable for injuries caused by or suffered by the intoxicated guest.[9]  The court held that because section 10-117 is founded on principles of public policy, adults who allow minors to drink on their property, who subsequently go on to injure themselves or others, may owe a civil duty to the persons injured.[10]  The court reasoned that underage drinkers cannot be solely responsible for their actions because they are unaware of the dangerous effects of drinking alcohol.[11]  This new form of limited social host liability adopted by Maryland is a huge step.  For years, courts have refused to recognize a cause of action for social host liability, reasoning that it was the minor’s intoxication that was the cause for any such injuries.[12]  Additionally, given its relatedness to dram shop laws, it will be interesting to see if Maryland changes those laws in the near future.


picKayla DiNuccio is a third-year day student at the University of Baltimore. She serves as a Staff Editor of the UB Law Forum. Her legal interests include Personal Injury Law, and Family Law. She can be reached at Kayla.DiNuccio@ubalt.edu or you could visit her LinkedIn.


Secret Police Surveillance over Baltimore City

By: Elizabeth Hays

For the past few months, the Baltimore Police Department, pressured to find a new way to reduce crime, conducted a secret aerial surveillance program over the city.[1]  The police recorded over 300 hours of surveillance, which covered approximately 32 square miles each flight.[2]  The Police commissioner and the mayor, Stephanie Rawlings-Blake, knew about the surveillance program from the beginning.[3]

           Maryland lawmakers and the American Civil Liberties Union (“ACLU”) are now considering legislation that would regulate police surveillance programs.[4]  The legislation would prevent the police department from acquiring new surveillance technology without public approval.[5]  Although the resolution on the cameras is too low to identify particular individuals, it can be used to track individuals and vehicles from crime scenes.[6]  The ACLU as well as other critics voiced concerns about possible Fourth Amendment violations.[7]  In fact, the footage from the plane was used to track down the suspects accused of killing two elderly siblings back in February.[8]   However, the police did not refer to the aerial surveillance in charging documents that were presented in court.[9]  Although this may be a benefit for law enforcement, citizens’ civil rights must be protected throughout this process.[10]  While the plane is not currently conducting surveillance, the police state that it might be used later during the Baltimore Running Festival in mid-October.[11] The future legislation regarding this matter could result in an impact on anything where the police have cameras that view the public, such as body cameras, CCTV cameras, or even dash cameras.[12]


unnamed-3Elizabeth Hays is a third-year day student at the University of Baltimore. She serves as a Staff Editor of the UB Law Forum and is Co-president of UBSPI. Her legal interests include, administrative and military law.  She can be reached at elizabeth.hays@ubalt.edu

What’s That Smell You Ask? That’s Just My Fourth Amendment Rights

 

By: Jared Lerner

A sniff is considered a search, according to the Court of Appeals of Maryland.[1]  Maryland’s highest appellate court ruled in favor of Terrance Jamal Grant (“Grant”) when it determined that the sniff search of his vehicle, by a police officer, following a routine traffic stop violated his Fourth Amendment rights.[2]

At the suppression hearing, the Circuit Court for Frederick County found the following: Deputy First Class Chad Atkins (“Deputy Atkins”) observed Grant speeding and pulled him over;[3] from the video of the traffic stop, Deputy Atkins’ head appeared to have breached the windowpane into Grant’s car;[4] and it was unclear from the video and Deputy Atkins’ testimony as to when he smelled the odor of marijuana.[5]  The trial court denied the suppression motion,[6] and Grant appealed to the Court of Special Appeals of Maryland,[7] which determined, under a totality of the circumstances standard, that the stop and search were reasonable.[8]

The standard of review of a circuit court’s denial of a motion to suppress is limited to the record of the suppression hearing, and facts are considered in the light most favorable of the prevailing party, the State.[9]  However, constitutional challenges to a search or seizure are reviewed de novo, and factual findings of the circuit court will not be disturbed unless they are clearly erroneous.[10]

The Court of Appeals determined the initial stop, due to Grant’s speeding, and detention to be constitutional,[11] but the case depended on when Deputy Atkins detected the odor of marijuana – before or after he breached the windowpane.[12]  The court provided a detailed Fourth Amendment analysis,[13] culminating with a finding that Grant’s vehicle was protected from illegal searches and seizures.[14]  Next, the court determined that Deputy Atkins conducted a search when he “inserted his head into the constitutionally-protected area of [Grant’s] vehicle” without a warrant or other justification.[15]  It explained that there were no exigent circumstances that made the warrantless search reasonable.[16]

The court determined that the exclusionary rule applied since it was unclear when Deputy Atkins observed the odor of marijuana.[17]  The State failed to meet its burden of proof by failing to show that Deputy Atkins discovered the odor of marijuana prior to breaching the windowpane.[18]  Thus, the Court of Appeals determined that the circuit court erred in denying Grant’s suppression motion.[19]

Maryland attorneys should take note of the circumstances surrounding the Grant case.  In suppression hearings for evidence obtained as a result of the detection of marijuana, it is important to identify the exact moment that the searching officer identified the odor in the car.  The State must meet its burden of proof with a showing that the searching officer detected the odor of marijuana before breaching the windowpane of the defendant’s car.  Without such a showing, the evidence obtained as a result of the search should be excluded.


unnamed-1Jared Lerner is a third-year law student at the University of Baltimore School of Law. He will graduate in May 2017 with a concentration in litigation and advocacy. He is currently working on a research paper that applies tort principles to company data breaches. Throughout law school, Jared gained practical experience in several practice areas, including trusts and estates, alternative dispute resolution, trial and appellate litigation, and administrative law. Most recently, he served as an honors law clerk at the U.S. Environmental Protection Agency in the Office of Enforcement and Compliance Assurance. Prior to law school, he attended the University of Central Florida where he earned a B.A. in May 2014. Jared can be reached at jared.lerner@ubalt.edu.

The Criminalization of Juveniles within the Confines of the Baltimore City Public School System

 

 By: Pascale Cadelien

            In 2008, although blacks and Hispanics comprise about 25% of the United States population, they accounted for 58% of all prisoners.[1] The disproportionate number of minorities who are imprisoned results from intersectionality, or the codependency of social identifiers, such as race, gender, and class, in the systemic perpetuation of discrimination.[2] In Baltimore, the problem of intersectionality made national headlines following Mayor Stephanie Rawlings-Blake’s request that the Department of Justice (“DOJ”) conduct an investigation into the city’s police force.[3] In its August 10, 2016 report, the DOJ described the Baltimore Police Department’s (“BPD”) pattern of performing unconstitutional searches, abusing individuals’ civil rights, and failing to hold cops accountable for their misconduct.[4]

Aside from underscoring that Baltimore has a long way to go in fixing its police-citizen interactions, the DOJ report also raised the troubling concern of how the BPD’s presence in Baltimore City public schools significantly perpetuates the school to prison pipeline.[5] According to the Maryland Department of Juvenile Services, in 2015, at least 3,390 juveniles were arrested in Baltimore, the majority of which were black.[6] Of those arrests, 427 occurred in school.[7] At 45%, this majority black school district, which comprises only 10% of the State’s primary education population, disproportionately accounts for Maryland’s school arrests.[8] Even more alarming, is that these juveniles who are being arrested are not “hardened criminals.”[9] Research of 400 school-based arrests in the 2013 and 2014 academic years established that 75% of kids arrested in city public schools either had their charges dismissed or were found not guilty.[10]

Examining the origin of the policing of Baltimore City public schools illustrates how this system has persisted. In 1967, the legislature’s creation of a school security division coincided with the newly-elected mayor, Thomas D’Alesandro III’s, school integration plan.[11] Around this time, the black-student population in city schools increased while the city maintained its pre-integration districts.[12]  In 1984, the school security division transitioned to an official police force as the crack epidemic made its way through Baltimore.[13] Finally, in the 1990s, the legislature enacted a bill that enabled city schools’ security to have the same functions as standard police officers.[14]

As this piece demonstrates, there are grave consequences when intersectionality fulfills its purpose of systemic discrimination. Communities become broken and children, the most vulnerable, get caught in the crosshairs.


Pascale Cadelien is a third-year day student from Prince George’s County interested in criminal defense. This spring, through the Criminal Practice Clinic, she is gaining litigation experience as student-attorney. Pascale is also a Staff Editor on UB’s Law Forum. Prior to joining UB, she attended Salisbury University on the eastern shore.  In 2013, she graduated cum laude with a B.A. in English and as a member of the English Honors Society.  Pascale can be reached at pascale.cadelien@ubalt.edu.

The Future of Daily Fantasy Sports Still Unclear in Maryland

By: Wayne Hicks

The popularity of daily fantasy sports websites is spreading rapidly throughout the state of Maryland, where more than 200,000 people are actively participating.[1]  Daily fantasy sports games allow participants to draft professional athletes on imaginary teams and compete against others often wagering money.[2]  Despite its popularity among users, Maryland legislators fear that the money wagering features could result in residents getting “in over their head and risking more than they can afford….”[3]

Two bills recently went before the Maryland House of Delegates regarding the legal status of daily fantasy sports competition in Maryland.[4]  Neither of the bills were passed by the state legislature.[5]  The first bill, Senate Bill 976, which was introduced on February 11, 2016, proposed that the state should regulate daily fantasy sports to a referendum.[6]  More specifically, the bill stated that daily fantasy participants would be required to register with a licensed operator, be at least 21 years old to play, and the operators of daily fantasy leagues would be required to conduct the games in a manner consistent with regulations set forth by the State Lottery and Gaming Control Commission.[7]  The second bill, Senate Bill 980, which was introduced on February 12, 2016, proposed an outright ban on daily fantasy leagues if the voters chose not to approve the referendum.[8]

These two recently proposed bills were introduced to the Senate following an advisory opinion that was issued by Attorney General Brian Frosh.[9]  The advisory opinion described daily fantasy leagues as an expansion of commercial gaming in Maryland, and therefore daily fantasy operators should be subject to voter referendum.[10]  In this opinion, Attorney General Frosh was referencing the law passed in 2012, House Bill 750, which states that fantasy competitions are exempt from Maryland gaming prohibitions.[11]  Therefore, the two bills introduced to the senate appear to have been measures taken by legislators who supported Attorney General Frosh’s opinion that the 2012 law provided too much leeway for fantasy gaming in Maryland.[12]

Although it appears that daily fantasy sports operators have won, it still remains highly likely that the 2012 law will be revisited given the opposition it has received for providing a blanket exemption for fantasy league operators.  However, the inevitable attempts to amend the law will be met with opposition from supporters of daily fantasy sports, who embraced Maryland’s decision to pass the 2012 law.  Supporters and various organizations have provided statements suggesting that, at the very least, the Maryland Senate should educate themselves on the growing trend and strive for regulations that support the business rather than closing it off entirely.[13]


whphotoWayne Hicks is a third-year day student at the University of Baltimore. He serves as a Staff Editor for the UB Law Forum. His legal interests include general civil practice and criminal defense. He can be reached at Wayne.Hicks@ubalt.edu. You can view his LinkedIn here.


Throwback Thursday: Citizen Journalists & the Right to Gather News.

In 2014, Law Forum published Citizen Journalists & the Right to Gather News: Why Maryland Needs to Acknowledge a First Amendment Right to Record the Police by Kristine L. Dietz (J.D., 2014).

More than half of cell phone users in the United States own a smartphone. The video recording capabilities of smartphones make it possible for users to record anything, almost anywhere, at anytime. This modem technology allows for the immediate transfer and widespread dissemination of footage. Recently, videos of alleged police misconduct have gone viral on the Internet and the police are not happy about it. This increase in citizen journalism has left police officers defensive about their privacy and their ability to do their job without interference.

Throwback Thursday: Commemorative Histories of the Bench and Bar

In Spring 1997, the University of Baltimore Law Forum published an article entitled: Commemorative Histories of the bench and Bar: In Celebration of the Bicentennial of Baltimore City, by the Honorable John Caroll Byrnes (now retired).

In commemoration of the City’s bicentennial, the University Of Baltimore School Of Law and the Law Forum are pleased to offer these excerpts from Commemorative Histories of the Bench and Bar in Celebration of the Bicentennial of Baltimore City, 1797-1997, as a tribute to all of those who helped forge our City’s rich legal heritage. Commemorative Histories should also serve as a reminder to those who are presently involved in the practice, purveyance, or study of the law that their endeavors may one day be recorded by future generations of Baltimore citizens as they reflect upon the accomplishments of their predecessors.

Download and read the article here.

Throwback Thursday: Welfare, Privacy, and Feminism

In March of 2008, the University of Baltimore Law Forum, published this article, entitled: Welfare, Privacy, and Feminism by Professor Michele Estrin Gilman.

Feminism has long been concerned with privacy. Second-wave feminists assailed the divide between the public and the private spheres that trapped women in the home, excluded them from the workforce, and subjected them to domestic abuse. Second-wave feminists also argued in favor of a sphere of privacy that would allow women to make reproductive choices without state interference. These were powerful critiques of existing power structures, but they tended to overlook the experiences of poor women.