Frase v. Barnhart

• Citation: 379 Md. 100,840 A.2d 114
• Decision Date: 11 December 2003
• Docket Number: No. 6,6
• Parties: Deborah FRASE v. Cynthia BARNHART, et al.
• Court: Court of Appeals of Maryland

840 A.2d 114

379 Md. 100

Deborah FRASE v. Cynthia BARNHART, et al.

No. 6, Sept. Term, 2002.

Court of Appeals of Maryland.

December 11, 2003.

Reconsideration Denied February 9, 2004.

Stephen H. Sachs (Wilmer, Cutler & Pickering; Deborah Thompson Eisenberg of Brown, Goldstein & Levy, LLP; Debra Gardner, Wendy N. Hess and Catherine Woolley, Public Justice Center, on brief), Baltimore, for appellant.

Timothy A. Bradford (Kent, Cizek and Treff, on brief), of Denton, for appellees.

Argued before BELL, C.J., ELDRIDGE¹, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

WILNER, Judge.

We have before us what began as a custody dispute between Deborah Frase, the mother of three-year-old Brett, and Curtis and Cynthia Barnhart, a couple who, during part of an eight-week period of the mother's incarceration, volunteered to care for Brett and then decided that they wanted custody of the child. The issue at this point is not who should have custody of Brett. The Circuit Court for Caroline County seems to have resolved that in the mother's favor. It is Ms. Frase who complains—that she was not provided free counsel to assist her in defending the action, that the domestic relations master who conducted the evidentiary hearing was conflicted and duty-bound to recuse herself, and that certain conditions that were included as part of the award of custody are impermissible.

There is also a significant procedural issue of whether the appeal is properly before us. That issue arises from two of the conditions attached to the custody determination—conditions that the court refused to strike and that, in effect, put the case in a state of on-going uncertainty. We shall conclude that the appeal, though from an interlocutory order, is properly before us, and we shall hold that the conditions attached to the award of custody are impermissible. That will end this case and therefore make it both unnecessary and inappropriate for us to address the right-to-appointed-counsel issue. The recusal issue will also become moot.

BACKGROUND

During the year 2001-02, when the events most relevant to this case unfolded, Ms. Frase was a 31-32-year-old single mother of three children, by three different fathers, and was pregnant with a fourth child by yet another man. Her life and that of her children had been anything but stable, due in large measure to her erstwhile unreadiness to act as a responsible parent and her abuse of alcohol and drugs.² Her eldest son Justin (age 12) had been with Ms. Frase's mother, Ms. Keys, since birth and had been in Ms. Keys's legal custody for about 10 years.³ Ms. Frase admitted that there was little maternal contact between her and Justin and that she was more like an aunt to him. In the year or two before this case commenced, Ms. Frase and the younger two children, Tara (age 8-9) and Brett (age 2-3), had no permanent home. There was evidence that Tara had been "in and out" of Ms. Frase's care, that, for a time in 1997 when Ms. Frase was incarcerated for driving under the influence of alcohol, Tara was with Ms. Keys, that at some point she was with a foster family in Dorchester County, and that in the immediate past year she had attended four different schools because of Ms. Frase's frequent moves.

In November, 2001, Ms. Frase, who, with Justin, Tara, and Brett, was then living with Ms. Keys, was arrested on a failure-to-appear bench warrant based on an earlier charge of possession with intent to distribute marijuana, and she spent the next eight weeks in the Talbot County Detention Center.⁴ Upon her arrest, Ms. Frase asked her mother to place Tara and Brett with a couple Ms. Frase knew, but Ms. Keys instead found two other couples, whom Ms. Keys knew from her church, to take the children. The Barnharts took Brett and also Justin, and Mike and Jeanne Eskow took Tara.⁵ When Ms. Frase was released, on January 15, 2002, she recovered Tara from the Eskows, at least for a time, but, because of a lack of cooperation on the part of her mother, she was unable to recover Brett from the Barnharts until January 19.

At some point, Ms. Frase moved into a trailer occupied by two other adults—Robert Johnson, who had recently been released from prison after serving time for violation of probation based on a burglary or breaking-and-entering conviction and by whom she soon became pregnant, and Mr. Johnson's mother—and occasionally by another child who, as best we can tell, was Mr. Johnson's nephew. Because of the crowded condition there, Ms. Frase allowed the Eskows to retain physical custody of Tara for some period of time. Although it appears that Ms. Frase received some sporadic child support from one or more of the fathers of her children, the evidence was that the fathers do not participate in the children's lives or, indeed, ever see the children.

Three days after returning Brett to Ms. Frase, the Barnharts filed a complaint for custody of the child. Ms. Frase filed a pro se answer and a counterclaim for custody. She later testified that she contacted a number of legal service agencies in an effort to obtain counsel but, because of either overload or conflicts, they were unable to provide an attorney for her. At a scheduling conference held on April 15, 2002, she asked the domestic relations master to appoint an attorney for her son, but she did not ask that counsel be appointed for her. The master denied the request but suggested that she go to the "pro se clinic." Although it appears that Ms. Frase was able to obtain legal advice from time to time and was well represented in this appeal, she did not have an attorney at any time in the trial court.

The evidentiary hearing, held before the master, commenced on May 20 and extended over two days. Ms. Frase did not ask that counsel be appointed for her, although she did request that one of her witnesses be excused from sequestration in order to assist her. That request was denied. Ms. Frase testified, presented witnesses on her behalf, and cross-examined witnesses produced by the Barnharts. She admitted to a past drug problem but said that she had completed a six-month intensive addictions program, that she was then drug-free and no longer had an alcohol problem, and that she was therefore no longer in counseling.⁶

On June 3, 2002, the master filed her report and recommendations. Though clearly suspicious of whether Ms. Frase would be able to make a permanent change in her life style, the master concluded that it was incumbent upon the Barnharts, as third-party strangers to Brett, to prove that Ms. Frase was unfit "or that they are the psychological parents of the child in question," and said that she was unable to make that determination. The master found that, since Ms. Frase reunited with Brett, she had "developed a network to assist her with getting her life on track and appears to be cooperating with them in every respect." People from the support agencies had testified that Brett was attached to his mother and was a happy child. "Maybe," the master added, "this is the turning point in her life and she will bring some real joy to her children's lives."

Upon those findings, the master recommended that (1) Ms. Frase be awarded custody of Brett, "provided that she immediately apply for and obtain housing at Saint Martins House (they have indicated that they expect to have a vacancy shortly)," (2) with the permission of the Barnharts, Brett "spend every other weekend with them for as long as Justin is in their household," (3) Ms. Frase "continue to cooperate with the Family Support Center and Caroline County DSS," and (4) "this matter be reviewed in ninety days."

Ms. Frase filed handwritten exceptions in which, at the outset, she averred that her right to counsel had been denied and that she had "asked the court to appoint me a lawyer." She disputed a number of the subsidiary findings made by the master but complained principally about two of the conditions attached to the award of custody—that she move to St. Martin's House and that Brett be required to visit at the Barnharts. The required move, she said, would deprive the father of her unborn child of his right to parent the child, would require that she give up her church and reduce her attendance at the Family Support Center, and may require that she give up her job and current day care arrangement with no guarantee of being able to find a new job or day care replacement. She complained also about the costs involved, noting that St. Martin's required that she turn over 30% of her income, which she needed to feed and clothe her family. With respect to the visitation requirement, Ms. Frase agreed that Brett and Justin should see each other, but she noted that Ms. Keys and the Barnharts were allowing her no contact with Justin, that although she had agreed to sibling visitation through the Department of Social Services, the Barnharts had not agreed to that approach, and that visitation involving all three children had been overlooked. She complained as well that the Barnharts really were strangers to Brett, having had contact with him for only about six weeks. She asked that (1) she not be required to move, (2) more suitable visitation, through the Department of Social Services and involving all three children, be arranged, (3) an attorney be appointed for her, and (4) if necessary, another hearing be scheduled.

The court initially denied the exceptions because Ms. Frase had failed to comply with a court directive to identify in writing the part of the testimony taken before the master that she felt was relevant, but it granted her motion for reconsideration and held a non-evidentiary hearing on the merits of the exceptions. At the hearing, the court first considered the master's recommendation that Ms. Frase move to St. Martin's House. The court noted that it could do no more than require that Ms. Frase make application, which Ms. Frase said she had already done. She added that, because she had indicated to...