In re Victoria C.

• Decision Date: 27 March 2014
• Docket Number: Sept. Term, 2013.,No. 15,15
• Citation: 88 A.3d 749,437 Md. 567
• Parties: In re VICTORIA C.
• Court: Maryland Court of Appeals

437 Md. 567

88 A.3d 749

In re VICTORIA C.

No. 15, Sept. Term, 2013.

Court of Appeals of Maryland.

March 27, 2014.

Mitchell Y. Mirviss (Venable, LLP, Baltimore, MD; Constance J. Ridgeway, Darlene Wakefield of Wakefield & Ridgeway, Woodstock, MD), on brief, for Petitioner.

Samantha Z. Smith (Timchula & Smith, P.A., Westminster, MD), on brief, for Respondent.

Seri A. Wilpone, Amy Petkovsek, and Kelly James, Legal Aid Bureau, Inc., Hughesville, MD, for Amicus Curiae brief of Maryland Legal Aid.

Argued before BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, McDONALD and LAWRENCE F. RODOWSKY (Retired, Specially Assigned), JJ.

BATTAGLIA, J.

In the present case we are called upon to address the applicability of our holding in Koshko v. Haining, 398 Md. 404, 441, 921 A.2d 171, 192–93 (2007), in which we recognized that parents of a minor child have the fundamental right to make decisions regarding the care, custody, and control over their child such that third parties seeking visitation contrary to the parents' wishes must make a prima facie showing that the absence of such visitation would have a “significant deleterious effect” on the child, i.e., “exceptional circumstances.” ¹ Our Koshko decision followed the United States Supreme Court's ruling in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), in which the Court ruled as unconstitutional a Washington statute, which permitted any third party to seek visitation with a minor child as long as a trial court determined that it was in the child's best interest, because the statute afforded no presumption in favor of parental decision-making.

Today we address the ability of Victoria C., born on August 25, 1993, to visit with her half-siblings, Lance and Evan, over the objections of their biological father, George C., from whom Victoria C. is estranged, so much so that Victoria C. had been declared a Child in Need of Assistance, and their biological mother, Kieran C. After the Circuit Court sitting as a Juvenile Court determined that supervised visitation by Victoria C. with Lance and Evan was appropriate upon such recommendation by a master, the Court of Special Appeals reversed, holding that Victoria C. had not proven exceptional circumstances within our Koshko dictates. Victoria C. petitioned for certiorari, which we granted, to resolve three questions, which we have consolidated into one and rephrased for clarity: ²

Does the analytical framework established by Koshko v. Haining, 398 Md. 404, 921 A.2d 171 (2007), which requires a third party seeking visitation of a minor child, contrary to the parents' wishes, to make a prima facie showing of exceptional circumstances before a court may award visitation to a third party, apply when a woman, previously adjudicated a Child in Need of Assistance, seeks visitation with her siblings?

We will respond yes and explain.

Victoria C. was declared a Child in Need of Assistance ³ in April of 2010 after her father, George C., would not allow her to return to the home that he shared with his wife Kieran C., and their two children Lance, then four-years old, and Evan, then two-years old. After Victoria C.'s mother committed suicide in 2003, she lived with her father, but in 2009, she was sent to live with her aunt in Texas, after the Department of Social Services investigated an allegation of abuse against George C.⁴ Victoria C.'s aunt sent her back to Maryland one year later, and George C. did not permit Victoria C. to return to his home. Instead, he made arrangements for Victoria C. to stay in a local hotel; Victoria C., however, ran away and was ultimately placed by the Department of Juvenile Services in the San Mar Children's home, located in Boonsboro, Maryland.

The Carroll County Department of Social Services, thereafter, filed a Petition to declare Victoria C. a Child in Need of Assistance (CINA), which was granted by the Circuit Court sitting as a Juvenile Court for Carroll County. The court adjudicated Victoria C. a CINA after determining that continued residence in George C.'s home was contrary to Victoria C.'s welfare:

[T]he Respondent's mother is deceased and her father is unwilling to have her at this time due to the past history he has with respect to her (prior child protective services investigation resulted in an “indicated” finding resulting in the father's sending Respondent to Texas to live with a maternal aunt.). The child was with the aunt from approximately February 23, 2009 until March 5, 2010, at which time the child was returned to Maryland. The father attempted to house the child at a local hotel, but she ran away and was ultimately placed at San Mar's Children's home after intervention by the Department of Juvenile Services. Further information was detailed on the record.

The court further finds,

That the evidence presented sustained a finding that because of the emergent nature of the situation, such reasonable efforts to prevent or eliminate the need for removal of the child could not be made; the emergent nature that existed is that: See above. The child had been housed at a local hotel from which she ran away and then was reported as a runaway. She was referred to the Department of Juvenile Services; and the intervention of the Department of Social Services became necessary due to prior incidents of alleged abuse by the Respondent's father; the Respondent's mother is deceased.

Victoria C. remained in the custody of the Carroll County Department of Social Services for placement in a therapeutic group home, the Nicodemus House, and eventually went into foster care. George C.'s parental rights over Victoria C. were not terminated; the permanency plan ⁵ reflected a goal of reunification with George C.

The Circuit Court sitting as a Juvenile Court conducted periodic review hearings,⁶ during the first of which Victoria asked to visit with Lance and Evan, the minor children of George C. and Kieran C., who had been married in 2005. With respect to her visitation request, the master assigned to the case made the following findings:

The Respondent would like to have contact with her half-siblings. Visitation has not occurred with the Respondent's father thus far. Other information regarding compliance with Court Orders was detailed on the record. According to the Respondent, the therapy sessions had conflicted with her work schedule, but that issue is being resolved. She would like to see her siblings.

The Respondent's father stated that there is not a significant relationship with the Respondent at this time and does not believe it would be appropriate to have contact with the younger half-siblings at this time. Otherwise, he will cooperate with the other Court's directives.

Based on these findings, the master's recommendation was that “visitation between the Respondent and her half-siblings shall occur only if and when therapeutically indicated.” George C., thereafter, filed exceptions to the master's recommendation.⁷ Ultimately, the visitation issue was deferred pending another review hearing in which renewal of the relationship between Victoria C. and her father would be revisited:

ORDERED that Victoria C. and her father, George C., will attend family counseling with Joan McInerney in the hope of renewing their relationship. The first session will be for Victoria C. and the counselor, the second session will be for George C. and the counselor, and then the third session will be both parties together; and it is further

ORDERED that a review hearing will be scheduled for mid-January of 2011 to see if the parties have made progress in renewing their relationship. At this hearing, the parties agree that the issue of sibling visitation can be addressed by the court if the parties do not agree on the issue. Both parties will be able to present testimony and evidence at such time on the issue of sibling visitation....

Efforts at reunification between George C. and Victoria C. failed, and prior to the scheduled review hearing, which was postponed until May of 2011, Kieran C., Lance and Evan's mother, moved to intervene as a party, asserting that “[a]s the mother of the children with whom the court is considering visitation, she has a right to act as a party in these proceedings and participate in the case to the extent that her children are now involved,” which the Circuit Court sitting as a Juvenile Court granted. The assigned master, thereafter, heard testimony regarding the effect on Victoria C. of not having visitation with her half-siblings, as well as the estrangement between Victoria C. and George and Kieran C. After Victoria C.'s counsel presented her case, George and Kieran C. moved for judgment, arguing that pursuant to this Court's decision in Koshko, Victoria C. had not met her burden “to show prima facie evidence of either parental unfitness or exceptional circumstances demonstrating the current or future detriment to the child absent visitation from that third party.” The master denied the motion, relying on the Court of Special Appeals's decision in In re Tamara R., 136 Md.App. 236, 764 A.2d 844 (2000)⁸ :

In review of, obviously review of Koshko and the particular reference to Tamara R., refers strictly to the portion where the court in Tamara R., at page 252 indicates that the best way to determine the best interest of a child with regard to a parent's decision to decline visitation over whom the parent has custody, and to place the burden on the non-parent seeking visitation to rebut that presumption.

However, Tamara continued with a rather lengthy review of not only Troxel but also other states at page 254 through 255 regarding the significant and specific relationship between siblings and a sibling who is, again, out of the home and seeking visitation, and for a determination by the court as to harm to the child who is out of the home at this point with respect to not having visitation with the natural half-siblings.

And at this time, based upon the...