Michael Gerald D. v. Roseann B.

• Decision Date: 17 December 2014
• Docket Number: No. 47, Sept. Term, 2014.,47, Sept. Term, 2014.
• Citation: 105 A.3d 578,220 Md.App. 669
• Parties: MICHAEL GERALD D. v. ROSEANN B.
• Court: Court of Special Appeals of Maryland

220 Md.App. 669

105 A.3d 578

MICHAEL GERALD D.

v.ROSEANN B.

No. 47, Sept. Term, 2014.

Court of Special Appeals of Maryland.

Dec. 17, 2014.

Bruce L. Mann (Levy, Mann, Caplan, Hermann & Polshuk, LLP, Owings Mills, MD and Patrick Crawford, Annapolis, MD), on brief, for Appellant.

Cynthia E. Young, Annapolis, MD, for Appellee.

Panel: KRAUSER, C.J., NAZARIAN, LEAHY, JJ.

Opinion

KRAUSER, C.J.

The principal issue presented by this appeal is whether a court must, before denying a noncustodial parent all visitation with his or her minor child, under section 9–101 of the Family Law Article (“FL”),¹ find that that parent had abused or neglected the child in question by “clear and convincing evidence,” as appellant demands, or by a “preponderance of the evidence,” as the court below declared. Employing the latter standard of proof, the Circuit Court for Anne Arundel County found that appellant, Michael D.,² had sexually abused his daughter, Emily. It thereupon awarded custody of Emily to her mother, Roseann B., and denied appellant all right of visitation with his daughter.

Appellant challenges that ruling, claiming, first, that the circuit court should have found that sexual abuse occurred, not by a preponderance of the evidence, but by clear and convincing evidence before denying him all visitation with his daughter; and, second, that the court abused its discretion in declining to order supervised visitation. We hold, however, that the circuit court neither erred in applying a preponderance-of-the-evidence standard nor abused its discretion in refusing to grant appellant supervised visitation.

Background

On April 23, 2005, appellant and Ms. B. married. Eight months later, on December 13, 2005, their only child, Emily, was born. When Emily was fifteen months old, the family moved to Annapolis from Virginia, where they lived together for the next five years. During that time, appellant was employed by the Federal Bureau of Investigation, first in Washington, D.C., and then in Virginia and, due to his long commute, primarily spent time with Emily on weekends.

In June of 2012, when Emily was six years old, Ms. B. separated from appellant, and, with Emily, moved to New Jersey, where Ms. B.'s family lived.³ Two months later, Ms. B. filed a complaint, in the Anne Arundel County circuit court, for absolute divorce, seeking sole physical and legal custody of Emily. The complaint specifically requested that appellant be denied “any visitation with the minor child until” he had undergone “intense counseling for his behavioral issues,” though, notably, the complaint did not allege that appellant had abused Emily in any way.

After Ms. B. had filed for divorce in the Anne Arundel County circuit court, she sought, in New Jersey, a temporary restraining order against appellant, alleging that appellant was texting and calling her “50–80 times a day at least 3–4 times a week,” conduct that continued notwithstanding her requests that appellant “leave her alone.” A temporary restraining order was issued by a New Jersey court, directing appellant to have no contact with either Ms. B. or Emily. That order was ultimately followed by a consent order setting forth provisions governing appellant's future contact with both Ms. B. and Emily. Among other things, the consent order specifically prohibited appellant from contacting Ms. B. with respect to any topic that was not related to Emily. It further limited appellant to “one initiated communication [regarding Emily] to [Ms. B.] per day,” either by email or text message. And, of particular factual significance to the case before us, it granted appellant “temporary supervised parenting time” at a New Jersey courthouse, where he could see Emily on alternate Saturdays “for no more than two hours.” This form of supervised visitation began on September 15, 2012, and continued for the next nine months, until June of 2013.

But only six months after supervised visitation between Emily and appellant had commenced, Emily, in March of 2013, disclosed to her mother, and then to a counselor associated with a therapy program⁴ that Emily had been attending, that her father would play “the bug game” with her during his visits with her. Emily said that, during that game, appellant would tickle her, and, in so doing, would touch her chest, vagina, and buttocks, both above and underneath her clothes, while she and appellant sat in the back of the courthouse visitation room. Although there is no dispute that there were video cameras in the visitation room, the parties disagree as to whether those cameras were positioned so that they were able to scan every corner of the visitation room and thus would have recorded the episodes in question. Whatever videotapes there were of appellant's supervised visits with Emily, they were not shown to the circuit court, nor are they part of the record before us.

Both Ms. B. and Emily's counselor subsequently contacted the New Jersey Division of Child Permanency and Protection. Separate investigations by the New Jersey Division and the Maryland Department of Social Services into Emily's allegations followed, and appellant's supervised visitation continued without interruption. The New Jersey investigation ultimately found that the allegations were “unfounded,” while the Maryland investigation “ruled out” “neglect” (but did not address sexual abuse). Although neither of the final reports of the two state investigations is part of the record before us, a “Notice of Investigation Closing” indicating that the Maryland Department had ruled out “neglect” was admitted into evidence at trial and is part of the appellate record.

In June of 2013, Ms. B., after learning that the Federal Bureau of Investigation (appellant's employer at the time) had issued a “Be On The Lookout” notice for appellant, obtained a New Jersey court order suspending appellant's supervised visitation with Emily. That “Be On The Lookout” notice was apparently issued in error. Nonetheless, appellant's visitation with Emily remained suspended.

On July 1, 2013, the Anne Arundel County circuit court ordered a limited custody evaluation that was to “include custody/visitation recommendations based on information gathered.” Terri Harger, a custody evaluator for the Anne Arundel County Custody Evaluation Unit, performed that evaluation but could not make a recommendation regarding custody or visitation because of “the amount of information the investigator has yet to gather.” Upon subsequent request by her to “expand the scope of this evaluation,” the court ordered a full custody evaluation, which was completed by Ms. Harger on December 17, 2013.

In the course of completing that evaluation, Ms. Harger interviewed Emily for approximately three hours on September 30, 2013. During the interview, Emily said that her father played the “bug game” with her at the visitation center and touched her above and underneath her clothes, while she and her father sat at tables either in the corner of the visitation room or in the back of that room. Then, when Emily indicated that her father also played the bug game with her in the family's Annapolis home, Ms. Harger asked Emily if there were “any other times that she was alone with her father that he played the bug game or did something else that was similar.” That question prompted Emily to disclose, for the first time, that, during the time she lived in Annapolis, her father had had her touch his penis.

She went on to explain that she would go into her father's bedroom⁵ early in the morning to watch cartoons and that, upon getting into his bed with him, her father would tell her to go under the covers and “look at it” and “touch [his] thing” or to “touch the back of it.” He would then, according to Emily, ask her to “do something like shaking” his penis, which Emily demonstrated, for Ms. Harger, by moving her hands up and down. In light of these new allegations of sexual abuse, Ms. Harger contacted the Maryland Department of Social Services, which thereupon launched a new investigation.

Ms. Harger, in delving into her evaluation at the trial below, testified that she had a “concern” that there was a “likelihood that abuse occurred,” as Emily's new disclosures appeared to be “valid.” She further stated that she did not believe that Emily had been “coached” or that her mother was attempting to “alienate” Emily from her father. Finally, she described Emily, in her testimony, as “delightful,” “alert,” and “very engaging,” and considered Emily's “demeanor, her affect and her language to be appropriate” for a child of her age.

Ms. Harger's evaluation recommended that Ms. B. have sole custody of Emily, that Emily receive individual therapy tailored for victims of child sexual abuse, and that “[a]ny contact with [appellant] should be supervised in a professional setting that is closely monitored” and that the monitor should “never leave[ ] the room” and should provide “notes regarding each contact.” Ms. Harger expressed concern about any visitation between Emily and her father, observing that, “if the incidents happened as [Emily] describe[d] ... reintroducing [her] to her father would be traumatic.” Ms. Harger further recommended that, if Emily were to have visitation with appellant, it should be of a therapeutic nature.

Noreen Startt, a social worker for the Anne Arundel County Department of Social Services, also testified at the proceeding below. She investigated the allegations that Emily was sexually abused by her father at the family's Annapolis home. As part of that investigation, Ms. Startt interviewed Emily and her mother and spoke to Ms. Harger and to social workers in Maryland and New Jersey, who had previously investigated Emily's “bug game” disclosures, as well as the detective from the Anne Arundel County police department, who had interviewed appellant.

Ms. Startt stated that she “had questions about or concerns about” Emily's demeanor during their interview, explaining that Emily was “very matter of...