Caldwell v. Sutton

• Decision Date: 30 November 2022
• Docket Number: 424, September Term, 2022
• Citation: 256 Md.App. 230,286 A.3d 82
• Parties: Sheila CALDWELL v. Marquita Sharrice SUTTON
• Court: Court of Special Appeals of Maryland

256 Md.App. 230

286 A.3d 82

Sheila CALDWELL

v.Marquita Sharrice SUTTON

No. 424, September Term, 2022

Court of Special Appeals of Maryland.

November 30, 2022

Argued by: Donna K. Rismiller, Rockville, MD, for Appellant.

Argued by: Lila Meadows (University of Maryland Carey Law Legal Clinic, Baltimore, MD), on the brief, for Appellee.

Panel: Wells, C.J., Graeff, Arthur, JJ.^*

Graeff, J.

This appeal involves a custody ruling by the Circuit Court for Montgomery County. Marquita Sutton ("Mother"), appellee, filed a motion to modify custody and visitation of her son ("Child"), who had been placed in the legal and physical custody of her mother, Sheila Caldwell ("Grandmother"), appellant, after Mother killed her husband and Child's father ("Father"). The court found that there had been a material change in circumstances justifying a modification of custody, and there was good cause pursuant to Md. Code Ann., Fam. Law Art. ("FL") § 9-101.2 (2019 Repl. Vol.), to permit an award of custody to Mother, a parent found guilty of murdering Child's other parent.¹ The court further found that Mother was a fit and proper person to have custody of Child, that exceptional circumstances did not warrant awarding custody to a third party, that Grandmother was not a de facto parent, and that it was in Child's best interest for Mother to be awarded sole legal and sole physical custody of him, with a three-month graduated transition period for the change in physical custody.

On appeal, Grandmother presents four questions for our review,² which we have consolidated and rephrased, as follows:

1. Did the circuit court err or abuse its discretion in modifying custody to grant Mother sole legal and physical custody of Child?

2. Did the circuit court err by ordering Grandmother to pay for reunification therapy and monitored exchanges?

For the reasons set forth below, we conclude that, although the court was correct in portions of its analysis, it erred in one aspect of its analysis of the custody issue. Specifically, the court erred in finding that Grandmother failed to show that she was a de facto parent. Therefore, we shall affirm, in part, and vacate, in part, the judgment of the circuit court and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

I.Events Leading to Award of Custody to Grandmother

On December 12, 2013, when Child was 21 months old, Mother fatally stabbed Father more than fifty times at their home in Odenton, Maryland. Child was in the home, but he did not witness the stabbing. Mother took Child to Grandmother's house and surrendered to the police. She subsequently was charged with first-degree murder and held without bail pending trial.

On December 20, 2013, Grandmother filed an emergency complaint for custody of Child, alleging that Mother could not provide him with protection or a stable home because she was incarcerated and awaiting trial for Father's murder. Ten days later, the circuit court granted Grandmother temporary sole legal and physical custody of Child.

On September 17, 2014, while Mother was in custody and awaiting trial, she signed a form consenting to Grandmother having sole legal and physical custody of Child, stating that it was in Child's best interest for Grandmother to become his custodian. The form stated that Mother had the right to withdraw her consent prior to the time the court granted custody.

On December 19, 2014, the circuit court held a custody hearing. Mother was not present at the hearing. That same day, the court issued an order granting Grandmother sole legal and physical custody of Child. It further ordered that Mother "shall have reasonable access to the child within [Grandmother's] discretion."³

II.Mother's Murder Conviction and Sentence

On September 8, 2015, Mother entered an Alford plea to second-degree murder.⁴ The court sentenced her to 30 years’ incarceration, all but ten years suspended.

While imprisoned, Mother maintained contact with Child, speaking to him by telephone approximately once a month, seeing him in person "at least once a year," and sending him cards and gifts. She also took numerous parenting and therapeutic classes.

In 2019, after hearing evidence from witnesses and domestic violence experts, the circuit court modified Mother's sentence. On August 16, 2019, Mother was released from prison. At that time, Child was seven years old.

III.Mother's Complaint to Modify Custody

Upon her release, Mother initially was allowed access to Child, usually at the apartment of her maternal aunt, Tanya Glover. Within months, however, Grandmother restricted her access and conditioned it upon Mother providing proof that she was completing community service hours under the terms of her probation, seeking employment, and receiving appropriate mental health therapy.

On February 24, 2020, six months after her release, Mother moved to modify custody, seeking shared legal custody and a visitation schedule. She alleged that Grandmother was denying her access to Child.

On October 8, 2020, Mother filed an amended complaint for modification of custody, requesting sole legal custody and shared physical custody of Child, with increasing access until Mother regained sole physical custody. She alleged that, since the beginning of the COVID-19 pandemic in March 2020, Grandmother had permitted Mother to see Child in person only three times, and she limited the visitation to one hour. Mother alleged that her release from incarceration, which restored her ability to parent Child, constituted a material change in circumstances.

On January 25, 2021, the court ordered a visitation evaluation. The next day, Mother requested a pendente lite hearing on the issue of visitation.

Following an April 6, 2021, pendente lite hearing, the court ordered Grandmother to make Child available for supervised visitation with Mother at her home on alternating Saturdays from 12 p.m. until 2 p.m. and every Wednesday from 5 p.m. until 7 p.m. The visits were to be supervised by Supervised Visitation and Investigations, LLC, a private visitation supervision firm. Mother was ordered to pay for this service. Mother also was permitted to have FaceTime contact with Child on Mondays and Fridays.

On October 20, 2021, the court issued an order, which it subsequently amended, referring Mother to the Supervised Visitation Program operated by the Family Division of the circuit court. Under the terms of the amended order, Mother was entitled to weekly access with Child for between 45 and 60 minutes, as scheduled through Family Division Services. The court later clarified that that order superseded the access provisions of the pendente lite order.

IV.The Merits Hearing

On February 2, 3, and 24, 2022, the circuit court held a merits hearing on Mother's amended complaint to modify custody. At that time, Child was one month shy of ten years old.

A.Merits Hearing: Day One

Mother testified, over objection, about the abuse she suffered during her relationship with Father and the circumstances of his murder.⁵ Father, who worked in intelligence services for the United States military, threatened to kill her, threatened to keep her away from Child, and threatened her with a weapon on four occasions. She sought medical attention on three occasions after Father punched her in the face. On the first occasion, he broke one of her teeth; the second time she lost consciousness and was "seeing spots"; and the third time she sustained bruising and swelling and again saw "spots." Mother called the police three or four times during their relationship, filed for a protective order on one occasion, and sought assistance from the military. The military "red flagged" Father, asked him to move out of the house, and enrolled the family in counseling. Mother explained that she was scared to leave because Father tracked her phone and her vehicle.

Mother introduced into evidence photographs taken in June 2013, six months prior to the murder, showing injuries to her face caused by Father "hit[ting her] repeatedly in the face after an argument." The photographs depict bruising and swelling around Mother's eye and broken blood vessels in the white of her eye. She also introduced into evidence a text message that Grandmother sent to her after that incident expressing distress about Mother's injuries and advising Mother not to accept Father's apologies or take him back. She warned Mother that it "will only get worse until ...."

On December 12, 2013, Father became angry because he thought Mother was viewing photographs of her June 2013 injuries on her computer. They were in the bedroom, and he tried to force her to engage in anal sex with him. Mother attempted to run out of the room, but he blocked her and burned her with candle wax. She grabbed his army knife off the bedside table and began stabbing him. She did not know how many times she stabbed him until the police told her.

Before Mother turned herself in, she took Child to Grandmother's home. Grandmother took Mother to the hospital and hired a lawyer for her. Mother testified that she decided to enter an Alford plea because she wanted to "take responsibility for [her] role in what happened" and to "make sure that [she] would be able to get back home to [her] son."

While incarcerated, Grandmother or Mother's aunt brought Child to visit her "at least once a year," and she spoke to him by telephone once or twice every month. Mother sent Child cards and presents for holidays.

After her release, Mother complied with the conditions of her probation. She began therapy during incarceration and continued after her release. She met with her therapist weekly.

Mother explained that she was processing her traumatic past, both during her childhood and in her relationship with Father.⁶

Mother had been living in a one-bedroom apartment in Silver Spring for almost a year. She had furnished a den in the home as Child's bedroom. She worked full-time at an engineering firm and ran a small catering business on the side. She was in a serious...