Arthur v. Wall, 1381-2021

CourtCourt of Special Appeals of Maryland
Writing for the CourtRipken, J.
PartiesJOEL ANDREW ARTHUR v. SHELBIE LYNN WALL
Decision Date13 June 2022
Docket Number1381-2021

JOEL ANDREW ARTHUR
v.

SHELBIE LYNN WALL

No. 1381-2021

Court of Special Appeals of Maryland

June 13, 2022


Circuit Court for Calvert County Case No. 04-C-12-000106

Graeff, Ripken, Raker, Irma S. (Senior Judge, Specially Assigned), JJ.

OPINION [*]

Ripken, J.

Joel Andrew Arthur ("Father") appeals from a judgment of the Circuit Court for Calvert County granting the petition of Shelbie Lynn Wall ("Mother") to modify visitation with the parties' eleven-year-old daughter. Father argues that the circuit court abused its discretion in denying his motion to appoint a best interest attorney and in determining that visitation in Nevada was in the minor child's best interest. For the reasons explained below, we shall affirm the circuit court's judgment.

ISSUES PRESENTED

Father presents two questions for our review:

I. Was the [trial] court correct in denying [Father's] motion to appoint a "best interest" attorney to represent the minor child
II. Was the [trial] court correct by determining that it was in [the minor child's] best interest to grant visitation to [Mother] in Las Vegas

As we explain below, we discern no error in either determination.

FACTUAL AND PROCEDURAL BACKGROUND

Father was granted physical and legal custody of the parties' daughter in 2013. Mother was granted limited visitation due to the circuit court's concerns about her "stability, lifestyle, and mental health issues." In May 2015, the court permitted Mother an expanded visitation schedule, including alternating weekends, a week in the summer, and certain holidays. The May 2015 order required Mother to provide quarterly updates on her therapy and prescription medication compliance and stated that if mother failed to keep up with the quarterly reporting "the court may set this matter in for a review of her access schedule."

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In August 2015, Mother relocated to Las Vegas, Nevada. She did not comply with the requisite quarterly updates. In December 2015, the court altered Mother's visitation by giving Father authority to determine whether Mother's accommodations were fit for a young child, to require Mother to provide appropriate accommodations, and to restrict access to the minor child. The court otherwise left the 2015 visitation order unchanged.

In October 2017, Mother moved to modify visitation requesting that the court permit her to fly the minor child to Nevada, unaccompanied, for visitation there with Mother. The court ordered a home study of Mother's Nevada residence. Dr. Paglini, a licensed psychologist, performed the study. In brief, the court summarized Dr. Paglini's report as follows:

Mr. John D. Paglini, Psy.D., conducted a home study for [Mother], wherein he conducted a visual inspection of [Mother's] residence, interviewed all individuals who resided in the home, conducted collateral interviews, and made additional contact with any people the evaluator deemed appropriate
. . . Mr. John Paglini found no concerns with the home. Specifically, he found that the home is adequately clean, there are proper baby provisions, and both [Mother] and [her husband] are adequately stable. Mr. Paglini concluded that the court should not be concerned with any risk factors in relation to the home[.]
. . . Mr. Paglini conveyed concerns about [Mother's] consumption of marijuana and her psychiatric history, which she reported she presently suffers from depression and post-traumatic stress disorder[.]

The court noted that during the hearing on Mother's requested visitation, Mother had adamantly opposed attending counseling. The court denied Mother's request but concluded that

if [Mother] was willing to attend psychotherapy to address her mental health issues, if she and [her husband] were willing not to smoke or consume
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marijuana 24 hours prior to and during [the minor child's] visit, and if [Mother] would fly to Maryland to accompany [the minor child] to and from Nevada until [the minor child] was older and was comfortable flying unaccompanied, the court would consider access with mother in Nevada. Until these conditions are met, the court will deny [Mother's] request to modify her access schedule as it pertains to Nevada visits.

In August 2018, Mother moved to modify visitation, requesting that the minor child visit her during the Christmas holiday. The circuit court denied the motion, finding that Mother had not met her burden to show a material change in circumstances. In late 2018, Mother began attending therapy at the Human Behavior Institute.

On August 17, 2020, Mother again moved to modify visitation. Father opposed the motion arguing that there was no material change in circumstances and Mother had yet to comply with the circuit court orders requiring quarterly updates. In May 2021, Father moved for the 2017 home study to be updated, and the court granted his motion. He also moved to appoint a best interest attorney to represent the minor child. The court denied that motion but permitted for reassessment at a later date.

Dr. Paglini interviewed Mother, Mother's husband, and Father, inspected Mother's Las Vegas residence, and interviewed the minor child over video. Dr. Paglini additionally reviewed Mother's prior psychological evaluations, some dating back to 2014, as well as Mother's treatment records from therapy sessions beginning in 2018. In July 2021, Dr. Paglini issued an updated home study. Dr. Paglini summarized Mother's treatment records for "mild to moderate mental health concerns" noting that "Mother appeared engaged in treatment and her therapist thought she made significant progress."

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On August 27, 2021, the circuit court held a hearing on Mother's motion at which the parties testified. The 2021 home study was admitted into evidence as were Mother's treatment records. Mother testified that she attended therapy on a weekly basis for approximately one year, then bi-weekly for six months, then monthly until her provider discharged her from treatment. She testified that she felt she had made progress in therapy, that she currently felt positive, and that she had surrounded herself with positivity and support.

In September 2021, the circuit court granted Mother's motion to modify visitation, issuing an Opinion and Order. The court ordered that the minor child be permitted to fly to Las Vegas, with Mother accompanying her on the flights, twice per year for five-day stays on each occasion. The court, in its opinion, found that

[Mother] has met her burden of showing a material change in circumstance. In October of 2017, the minor child was 6 years old. The minor child is now ten. At the time of the last Order, [Mother] adamantly refused to attend counseling. Since that time, [Mother] has undergone nearly two and a half years of counseling at [the Human Behavior Institute]. Moreover, at the time of the last hearing, [Mother] was demanding that the minor child fly as an unaccompanied minor and refused the Court's suggestion that [Mother] accompany the minor child on flights unless [Father] would agree to divide the costs. Today, however, [Mother] has reexamined her position and is offering to fly to and from Maryland to accompany the minor child on her visits to Nevada. Finally, while [Mother] has had a long history of personal, mental health, and other issues, she now appears to be in [a] more stable place in her life.

The court went on to consider the Taylor and Sanders factors, which guide a determination of whether visitation would be in the best interest of the child. As to the fitness of the parents, the court found that Mother is "currently stable and fit to have visitation with the minor child in Nevada, subject to certain conditions." As to the relationship established

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between the child and each parent, the court found that Mother is not as close with the minor child as Father is, owing to the distance and lack of in person visitation during the COVID-19 pandemic, but the minor child nonetheless loves Mother and wanted in person visitation. As to the preference of the child, the court found that although the child's preference was for visitation in Maryland, she could be comfortable going to Nevada for a few days. The court noted findings from the 2021 home study that:

[Mother] has completed therapy and made positive gains. [Mother] is who she is, and as noted, there are no known substantiated CPS investigations, she does not have a current criminal record, and although she is afflicted with mild mental health issues, she clearly has raised her children. . . . [I]t
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