Davis v. Petito

• Decision Date: 28 February 2011
• Docket Number: 2010.,No. 468,Sept. Term,468
• Citation: 14 A.3d 692,197 Md.App. 487
• Parties: Joanna DAVISv.Michael A. PETITO, Jr.
• Court: Court of Special Appeals of Maryland

197 Md.App. 487

14 A.3d 692

Joanna DAVIS

v.Michael A. PETITO, Jr.

No. 468

Sept. Term

2010.

Court of Special Appeals of Maryland.

Feb. 28, 2011.

John R. Seward (Donald P. Salzman, on the brief), Washington, D.C., for appellant.Laura E. Borowsky & Mark P. Brennan (Cockey, Brennan & Maloney P.C., on the brief), Salisbury, MD, for appellee.Panel: EYLER, DEBORAH S., ZARNOCH and LAWRENCE F. RODOWSKY, (Retired, Specially Assigned), JJ.EYLER, DEBORAH S., J.

Joanna Davis, the appellant, and Michael Petito, the appellee, are the divorced parents of Sophia Petito, a minor child. In a custody modification proceeding, the Circuit Court for Wicomico County ruled that Davis did not prove her allegation that Petito had sexually abused Sophia. Ultimately, the court concluded that, although there was no material change in circumstances in the form of sexual abuse by Petito, Davis's unproven allegations of sexual abuse against Petito had brought about a material change in circumstances, namely that Petito's relationship with Sophia had been interrupted for over a year and Sophia had been led to believe that Petito was someone to fear. On that basis, the court modified the prior visitation schedule with the objective of fostering reunification between Sophia and Petito. In addition, the court ordered Davis to pay $30,773.54 (approximately half) of Petito's attorneys' fees.

On appeal, Davis poses three questions for review, which we have rephrased:

I. Did the circuit court err in precluding her rebuttal expert witness from testifying?

II. Did the circuit court err in ruling that certain statements made by Sophia to a therapist were inadmissible hearsay not covered by the hearsay exception for statements made for purposes of medical diagnosis and treatment?

III. Did the circuit court err in awarding attorneys' fees to Petito?

For the reasons to follow, we shall affirm the circuit court's judgment.

FACTS AND PROCEEDINGS

Joanna Davis and Michael Petito were married in December of 1998 and were granted an absolute divorce on April 11, 2006. Sophia, born on October 22, 2003, is their only child. Prior to the absolute divorce, the court granted a limited divorce and gave Davis primary physical custody of Sophia with Petito having overnight visitation with Sophia every other weekend and every other Wednesday. The parties shared legal custody. Custody and visitation remained the same after the absolute divorce was granted.

Davis lives with her mother. During the relevant time periods, Petito lived some of the time with his parents and some of the time with his girlfriend, Christina Torres, and Torres's daughter Jules. Sophia spent some of her overnight visits with Petito at her paternal grandparents' house and some at Torres's house.

In the fall of 2008, Sophia, then almost 5, started acting out when it was time to leave with her father for their scheduled visits. She screamed and cried and refused to go with him. According to Davis, Sophia began having nightmares around this time as well. Sophia also held her bowels while at her father's house. Both parents agreed that she should start seeing a therapist.

On October 20, 2008, Sophia started therapy with Donna Leffew, a licensed clinical professional counselor (“LCPC”). Leffew conducted separate intake interviews with each parent at the start of the sessions. Prior to meeting with Sophia for the first time, Leffew met with Davis. She met with Petito shortly after the sessions had started. Both parents reported similar issues with Sophia, including difficulty sleeping, nausea, and anxiety. Davis informed Leffew during her intake interview that Sophia had reported a nightmare in which “a monster came in the room and it poked her in her heiney.”

During her sessions with Leffew, Sophia was asked about her nightmares and drew pictures of a monster with a protrusion (“his thing”) around his waist level that she said stuff came out of and could get into her. She became extremely anxious when discussing the monster, raising her voice and scribbling hard on her paper.

As the sessions progressed, Sophia told Leffew that she saw the monster only when she was with Petito. At one point, she told Leffew that the monster “looks like daddy” and smelled like him. She also acted out her nightmares with dolls, always using a lizard doll to represent the monster and placing it on top of a girl doll, face to face, lying down on the couch. Sophia never told Leffew that her father had committed any act that would constitute sexual abuse, however.

On December 3, 2008, Leffew made a report of suspected sexual abuse to the Wicomico County Department of Social Services (“DSS”). That same day, Sophia was interviewed by Anita Murphy, a DSS investigator. Sophia made no specific disclosures of abuse to Murphy. Murphy recommended that an extended forensic evaluation be performed. Sophia underwent a physical examination on December 4, 2008, and again on January 15, 2009. Both were performed by Jennifer Wehberg, M.D., and revealed no physical evidence of abuse.

The Wicomico County Sheriff's Department conducted a separate criminal investigation of the report of suspected sexual abuse. On December 3, 2008, Detective John Seichepine, who is assigned to the Wicomico County Child Advocacy Center (“CAC”), was given Sophia's case. He observed from a remote location Murphy's initial interview with Sophia. The next day, Detective Seichepine interviewed Petito at the CAC. Petito denied having had sexual intercourse with his daughter, otherwise touching her inappropriately, or ever masturbating in her presence or in her bedroom. He acknowledged blacking out while drunk but denied consuming alcohol while Sophia was in his care.

With Petito's cooperation, the Sheriff's Department obtained a search warrant for his parents' home and for Torres's home. During the search of Torres's home, a light was used in Sophia's bedroom to detect possible semen. Several stains fluoresced on the nightstand next to Sophia's bed, on the floor next to the bed, on the floor near Sophia's dresser, and on the dresser itself. All of the stains were swabbed and DNA testing was performed. All were negative for semen.

On December 29 and 31, 2008, Farah Smith, an LCPC, conducted an extended forensic evaluation of Sophia. During Smith's sessions with Sophia, the child reported that a monster came into her bedroom at night and “poked her in the butt.” She described the monster as making grunting noises and said that it looked like Petito. She also said the monster only came when she was staying with Petito at Torres's house. At the conclusion of the evaluation, Smith recommended a finding of indicated child sexual abuse. Smith concluded that Petito likely had masturbated in Sophia's presence.

On December 22, 2008, Davis filed an emergency complaint for immediate custody of Sophia based on the allegations of abuse.

On December 31, 2008, Petito was arrested and charged with a third-degree sex offense. His case later was placed on the stet docket upon the condition that he have no contact with Sophia, aside from court-ordered therapeutic visitation, pending the outcome of the instant case.

In February of 2009, without Petito's knowledge, Leffew resumed therapy sessions with Sophia.¹ Leffew continued to hold sessions with Sophia until July 15, 2009. During that period, Leffew met with Sophia seven times. The sessions ceased after Petito learned of the therapy and refused to allow it to continue.

In the meantime, on March 5, 2009, Petito filed a countercomplaint for modification of custody. He sought joint physical and legal custody of Sophia with an expanded access schedule. He also sought a decrease in child support, occasioned by a change in Davis's income, and an award of attorneys' fees and costs.

The case was scheduled for a hearing before a master to take place on September 3, 2009. That day, a continuance was granted after Davis's rebuttal expert was excluded. (We shall discuss the exclusion of that expert witness in greater detail, infra.) The hearing was rescheduled to take place before the court in November. In the interim, the parties entered into a consent order pursuant to which Sophia would begin therapy with Christy McGurgan, an LCPC with Worcester Youth and Family Counseling Services, and would begin therapeutic visitation with Petito supervised by Cathy Beers, a social worker.

Beginning on November 23, 2009, the case was tried to the court over six days in 2009 and 2010.² The matter was bifurcated, with the first five days of trial being devoted solely to the issue of alleged sexual abuse and the last day of trial being devoted to all remaining issues, including other grounds for modification of custody, attorneys' fees, and a contempt complaint against Davis for failing to take Sophia to court-ordered therapeutic visitation with Petito.

During the first part of the trial, Davis testified and called nine witnesses, including Leffew, Smith, Detective Seichepine, and Petito. Leffew and Smith both were qualified and accepted by the court as experts. Petito testified in his case and called four witnesses, including Kathleen Killeen, Ph.D., whom he had designated as an expert in “clinical psychology, child development, psychopathology and treatment, evaluation and training of child sexual abuse, and forensic interviews with children.” Finally, counsel for Sophia called McGurgan. At the conclusion of all the evidence related to the allegations of sexual abuse, the court advised the parties that it would make its decision on the issue prior to commencement of the second phase of the trial.

On February 12, 2010, the court issued a memorandum opinion ruling that Davis had failed to prove the allegations of sexual abuse against Petito. The court noted that Davis had relied heavily upon the testimony of Leffew and Smith regarding their interviews with Sophia. The court explained Davis's theory that sexual abuse had occurred as...