MICHAEL GERALD D. v. ROSEANN B.
No. 47, Sept. Term, 2014.
Court of Special Appeals of Maryland.
Dec. 17, 2014.
105 A.3d 578
Cynthia E. Young, Annapolis, MD, for Appellee.
Panel: KRAUSER, C.J., NAZARIAN, LEAHY, JJ.
KRAUSER, C.J.
The principal issue presented by this appeal is whether a court must, before denying a noncustodial parent all visitation with his or her minor child, under
Appellant challenges that ruling, claiming, first, that the circuit court should have found that sexual abuse occurred, not by a preponderance of the evidence, but by clear and convincing evidence before denying him all visitation with his daughter; and, second, that the court abused its discretion in declining to order supervised visitation. We hold, however, that the circuit court neither erred in applying a preponderance-of-the-evidence standard nor abused its discretion in refusing to grant appellant supervised visitation.
Background
On April 23, 2005, appellant and Ms. B. married. Eight months later, on December 13, 2005, their only child, Emily, was born. When Emily was fifteen months old, the family moved to Annapolis from
In June of 2012, when Emily was six years old, Ms. B. separated from appellant, and, with Emily, moved to New Jersey, where Ms. B.‘s family lived.3 Two months later, Ms. B. filed a complaint, in the Anne Arundel County circuit court, for absolute divorce, seeking sole physical and legal custody of Emily. The complaint specifically requested that appellant be denied “any visitation with the minor child until” he had undergone “intense counseling for his behavioral issues,” though, notably, the complaint did not allege that appellant had abused Emily in any way.
After Ms. B. had filed for divorce in the Anne Arundel County circuit court, she sought, in New Jersey, a temporary restraining order against appellant, alleging that appellant was texting and calling her “50-80 times a day at least 3-4 times a week,” conduct that continued notwithstanding her requests that appellant “leave her alone.” A temporary restraining order was issued by a New Jersey court, directing appellant to have no contact with either Ms. B. or Emily. That order was ultimately followed by a consent order setting forth provisions governing appellant‘s future contact with both Ms. B. and Emily. Among other things, the consent order specifically prohibited appellant from contacting Ms. B. with respect to any topic that was not related to Emily. It further limited appellant to “one initiated communication [regarding Emily] to [Ms. B.] per day,” either by email or text message. And, of particular factual significance to the case before us, it granted appellant “temporary supervised parenting time” at a New Jersey courthouse, where he could see Emily on alternate Saturdays “for no more than two hours.” This form of supervised visitation began on September 15, 2012, and continued for the next nine months, until June of 2013.
But only six months after supervised visitation between Emily and appellant had commenced, Emily, in March of 2013, disclosed to her mother, and then to a counselor associated with a therapy program4 that Emily had been attending, that her father would play “the bug game” with her during his visits with her. Emily said that, during that game, appellant would tickle her, and, in so doing, would touch her chest, vagina, and buttocks, both above and underneath her clothes, while she and appellant sat in the back of the courthouse visitation room. Although there is no dispute that there were video cameras in the visitation room, the parties disagree as to whether those cameras were positioned so that they were able to scan every corner of the visitation room and thus would have recorded the episodes in question. Whatever videotapes there were of appellant‘s supervised visits with Emily, they were not shown to the circuit court, nor are they part of the record before us.
Both Ms. B. and Emily‘s counselor subsequently contacted the New Jersey Division of Child Permanency and Protection. Separate investigations by the New Jersey Division and the Maryland Department of
In June of 2013, Ms. B., after learning that the Federal Bureau of Investigation (appellant‘s employer at the time) had issued a “Be On The Lookout” notice for appellant, obtained a New Jersey court order suspending appellant‘s supervised visitation with Emily. That “Be On The Lookout” notice was apparently issued in error. Nonetheless, appellant‘s visitation with Emily remained suspended.
On July 1, 2013, the Anne Arundel County circuit court ordered a limited custody evaluation that was to “include custody/visitation recommendations based on information gathered.” Terri Harger, a custody evaluator for the Anne Arundel County Custody Evaluation Unit, performed that evaluation but could not make a recommendation regarding custody or visitation because of “the amount of information the investigator has yet to gather.” Upon subsequent request by her to “expand the scope of this evaluation,” the court ordered a full custody evaluation, which was completed by Ms. Harger on December 17, 2013.
In the course of completing that evaluation, Ms. Harger interviewed Emily for approximately three hours on Septem-ber 30, 2013. During the interview, Emily said that her father played the “bug game” with her at the visitation center and touched her above and underneath her clothes, while she and her father sat at tables either in the corner of the visitation room or in the back of that room. Then, when Emily indicated that her father also played the bug game with her in the family‘s Annapolis home, Ms. Harger asked Emily if there were “any other times that she was alone with her father that he played the bug game or did something else that was similar.” That question prompted Emily to disclose, for the first time, that, during the time she lived in Annapolis, her father had had her touch his penis.
She went on to explain that she would go into her father‘s bedroom5 early in the morning to watch cartoons and that, upon getting into his bed with him, her father would tell her to go under the covers and “look at it” and “touch [his] thing” or to “touch the back of it.” He would then, according to Emily, ask her to “do something like shaking” his penis, which Emily demonstrated, for Ms. Harger, by moving her hands up and down. In light of these new allegations of sexual abuse, Ms. Harger contacted the Maryland Department of Social Services, which thereupon launched a new investigation.
Ms. Harger, in delving into her evaluation at the trial below, testified that she had a “concern” that there was a “likelihood that abuse occurred,” as Emily‘s new disclosures appeared to be “valid.” She further stated that she did not believe that Emily had been “coached” or that her mother was attempting to “alienate” Emily from her father. Finally, she described Emily, in her testimony, as “delightful,”
Ms. Harger‘s evaluation recommended that Ms. B. have sole custody of Emily, that Emily receive individual therapy tailored for victims of child sexual abuse, and that “[a]ny contact with [appellant] should be supervised in a professional setting that is closely monitored” and that the monitor should “never leave[ ] the room” and should provide “notes regarding each contact.” Ms. Harger expressed concern about any visitation between Emily and her father, observing that, “if the incidents happened as [Emily] describe[d] ... reintroducing [her] to her father would be traumatic.” Ms. Harger further recommended that, if Emily were to have visitation with appellant, it should be of a therapeutic nature.
Noreen Startt, a social worker for the Anne Arundel County Department of Social Services, also testified at the proceeding below. She investigated the allegations that Emily was sexually abused by her father at the family‘s Annapolis home. As part of that investigation, Ms. Startt interviewed Emily and her mother and spoke to Ms. Harger and to social workers in Maryland and New Jersey, who had previously investigated Emily‘s “bug game” disclosures, as well as the detective from the Anne Arundel County police department, who had interviewed appellant.
Ms. Startt stated that she “had questions about or concerns about” Emily‘s demeanor during their interview, explaining that Emily was “very matter of fact” and showed “no change of expression or affect when she was disclosing particularly disturbing information,” which Ms. Startt found “extremely unusual.” Ms. Startt was also troubled by the fact that Emily “said nothing positive about her father” and that some of her descriptions of her father‘s penis were “inconsistent or unexplainable.” And she had “questions about when he would have had the opportunity to sexually abuse” Emily, given that appellant‘s lengthy commute to and from work meant that he was frequently away from home for long stretches of time.
Ms. Startt explained that, at the conclusion of her investigation, she “made an unsubstantiated finding [of abuse] in the case,” which meant that there was, in her words, “some evidence to suggest that the abuse occurred and some evi-dence to suggest that it did not.”6 Her report, however, was not provided to the circuit court and is not part of the record before us.
At the proceeding below, the circuit court conducted an inchambers interview of Emily. It thereafter read the notes it
This third and final investigation was not completed before the proceedings in the circuit court concluded. But, in a motion for reconsideration filed by appellant after the court below rendered its decision, appellant attached a copy of the Department‘s report from this investigation. In that report, the Department “ruled out” sexual abuse because, in its words, “Emily did not disclose any new allegations of abuse [and] the information that was disclosed ha[d] been previously investigated by other agency workers and findings were made.”
On the eleventh and final day of the proceedings—which, at this point, had spanned four months7—the circuit court announced its decision, a decision which was, in the court‘s words, “in very large part ... based on [its] ability to be able to observe the witnesses who testified and judge their credibility.” Applying a “preponderance of the evidence standard“—the standard of proof now at issue—the circuit court found, under
After noting that appellant had “received no therapy to address” the issue of sexual abuse and did not “seem to have any real understanding as to this issue or its impact on Emily,” the court said it could not make a specific finding, under
that appellant habitually “put[ ] himself and his interests before his child” and did “not always interact with [Emily] appropriately.” The relationship between appellant and Emily was “not good,” the court declared. It explained that Emily “understands that her father abused her and that that is having a detrimental impact on anything—on any relationship that they have had in the past and might have in the future.”
On the issue of visitation, as I have found that I am not satisfied that it has been proven that there is no likelihood of further abuse, the only access I can give or—or would give in any scenario is supervised access. However, I find that based on the abuse and the evidence that I have heard regarding [appellant], as well as his demeanor and his lack of credibility that I have observed during this proceeding, it is not in Emily‘s best interest to have supervised visitation with [appellant].
I find that the Court would not be assured that—that Emily would be safe, physiologically, psychologically, or emotionally. Therefore, I decline to order any visitation in this matter.
Discussion
I.
Appellant contends that the circuit court erred in applying the preponderance-of-the-evidence standard in find-ing that he had sexually abused Emily and then in denying him any visitation. Before imposing that prohibition, the court must find, he claims, by “clear and convincing evidence” that he had sexually abused his daughter.
In all custody and visitation determinations, the best interest of the child is the “overarching consideration.” Baldwin v. Baynard, 215 Md.App. 82, 108, 79 A.3d 428 (2013). “Thus, while a parent has a fundamental right to raise his or her own child ... the best interests of the child may take precedence over the parent‘s liberty interest in the course of a custody, visitation, or adoption dispute.” Boswell v. Boswell, 352 Md. 204, 219, 721 A.2d 662 (1998). Moreover, while, as a general rule, a parent, who is not granted custody, will be given “a right to liberal visitation with his or her child at reasonable times and under reasonable conditions,” this right “is not absolute,” and “when the child‘s health or welfare is at stake visitation may be restricted or even denied.” Id. at 220-221, 721 A.2d 662 (internal quotations marks and citations omitted).
Indeed,
The question we are asked to decide, in the instant case, is the burden of proof that must be satisfied before a parent may be completely denied his right of visitation with his child, for an indefinite period of time.
(a) Determination by court.—In any custody or visitation proceeding, if the court has reasonable grounds to believe that a child has been abused or neglected by a party to the proceeding, the court shall determine whether abuse or neglect is likely to occur if custody or visitation rights are granted to the party.
(b) Specific finding required—Unless the court specifically finds that there is no likelihood of further child abuse or neglect by the party, the court shall deny custody or visitation rights to that party, except that the court may approve a supervised visitation arrangement that assures the safety and the physiological, psychological, and emotional well-being of the child.
(Emphasis added.)
Before we ponder what
Next,
With that in mind, we turn now to what the plain language of the statute does address.
The question before us turns on the meaning of the phrase “reasonable grounds to believe,” as it is used in
The pertinent issue before the Court of Appeals in Volodarsky was whether the circuit court‘s “finding or determination” that abuse or neglect had likely occurred must ”at a minimum ... be made by at least a preponderance of the evidence.” Id. at 304, 916 A.2d 991 (emphasis in original). The Court of Appeals concluded that, “in the context of
We do take note, however, as appellant requests, that the Volodarsky Court stated, in a footnote, that it was “not asked ... to address, and [it did] not address” whether “a standard higher than preponderance might be required where the effect of the finding [that abuse or neglect occurred] might be to deny a parent all right of visitation with his or her child and must be, at a minimum, to place significant limits on such visitation.” Id. at 306 n. 5, 916 A.2d 991. Appellant relies on this footnote to argue that the Court of Appeals intended that a burden of proof greater than a preponderance of the evidence must be met before all visitation is denied a parent. We are not persuaded, however, that the footnote at issue contained such a message. In our view, the footnote simply left it an open question as to whether a greater burden of proof might be required when all visitation is denied. We shall now attempt to answer that question.
We begin by returning to the language of
Lest any doubt remain as to the validity of this interpretation of
Moreover, there is nothing in the legislative history of the statute to suggest that either the Task Force, when it proposed the new law, or the Legislature, when it enacted it, intended to impose one standard of proof when supervised visitation between the abusive parent and his or her child is ordered, but another, higher, standard of proof when completely denying visitation between them. Rather, the statute was written so that “reasonable grounds to believe” that abuse or neglect has occurred would require the court to deny visitation rights. And “reasonable grounds to believe” means, as the Court of Appeals has pointed out, a “preponderance of the evidence.” For us to hold otherwise, that is, that clear and convincing evidence of abuse or neglect is required to deny a parent all right of visitation, would be in clear contradiction of the “reasonable grounds to believe” language of
Ultimately, our decision in this case must be consistent with what we believe to be the clear language and intent of
II.
Appellant contends that the circuit court abused its discretion in not granting him at least supervised visitation with Emily. In reviewing that decision, we apply an abuse of discretion standard. North v. North, 102 Md.App. 1, 12-13, 648 A.2d 1025 (1994). That standard requires reversal only when we find that the circuit court has acted “without reference to any guiding rules or principles,” or that “no reasonable person would take the view adopted by the [circuit] court,” or that the decision of that court is “well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.” Id. at 13-14, 648 A.2d 1025 (internal citations and quotation marks omitted).
With respect to the “guiding rules or principles” applicable in the proceeding below, the circuit court dutifully considered what would be in Emily‘s best interests and incorporated, into that determination, its analysis under
Furthermore, the court‘s decision not to order any visitation between Emily and appellant was neither one that no reasonable person would adopt nor “beyond the fringe of what [this] court deems minimally acceptable.” As the Court of Appeals has noted, “where there is evidence that visitation may be harmful to the child,” visitation may be “restricted or even denied.” Boswell, 352 Md. at 221, 721 A.2d 662. We note that the court below heard testimony from several witnesses, and also heard from Emily herself when the court interviewed her in chambers, that appellant had touched Emily inappropriately during their supervised visitation sessions. In light of the evidence that abuse had previously occurred during visitation, and in a supervised setting, it was not unreasonable for the court to deny appellant supervised visitation with Emily.
Finally, in reviewing a visitation order, we must give “due regard ... to the opportunity of the lower court to judge the credibility of the witnesses,” because that court, which “sees the witnesses and the parties, hears the testimony, and has the opportunity to speak with the child,” is in “a far better position than is an appellate court ... to weigh the evidence and determine what disposition will best promote the welfare of the [child].” In re Yve S., 373 Md. 551, 584, 586, 819 A.2d 1030 (2003) (internal quotation marks and citation omitted). The circuit court‘s decision to deny appellant any visitation with Emily was, in its words, “in very large part ... based on [its] ability to be able to observe the witnesses who testified and judge their credibility.” The court also found Emily to be a credible witness, a finding that it did not make as to appellant, whose credibility
In light of the lower court‘s determination of whether visitation with appellant would be in Emily‘s best interests, the evidence presented regarding appellant‘s abuse of Emily in supervised visitation settings, and the credibility determinations made by that court, we conclude that it did not abuse its discretion in declining to award appellant supervised visitation with his daughter.
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.