SF v. MD, 1746

• Court: Court of Special Appeals of Maryland
• Citation: 132 Md. App. 99,751 A.2d 9
• Docket Number: No. 1746,1746
• Parties: S.F. v. M.D.
• Decision Date: 02 May 2000

751 A.2d 9
132 Md. App. 99

S.F.
v.
M.D

No. 1746, Sept. Term, 1999.

Court of Special Appeals of Maryland.

May 2, 2000.

751 A.2d 10

Dorrance D. Dickens (Deborah, Luxenberg & Luxenberg, Johnson & Dickens, P.C., on the brief), Washington, DC, for appellant

Robert Case Liotta (Liotta, Dranitzle & Engel, LLP, on the brief), Washington, DC, for appellee.

Argued before MOYLAN, EYLER and SONNER, JJ.

EYLER, Judge.

Appellant, S.F., and appellee, M.D., both females, began living together in 1991 in a committed domestic relationship. On September 30, 1994, appellee gave birth to a child following artificial insemination. The parties separated in 1997. This case involves appellant's right to visitation with the minor child. The circuit court, faced with a difficult question, denied visitation.

Facts

Appellant filed a complaint in the Circuit Court for Montgomery County against appellee, seeking custody of the minor child, or in the alternative, visitation. Appellant, in the portion of her brief setting forth the facts, largely tracks the circuit court's opinion. We shall do the same.

Appellant and appellee began dating each other in 1990 and commenced living together in 1991. Appellant, in 1990, decided she wanted to have a child, but all efforts, including six in vitro fertilizations, failed. Appellee supported appellant in her efforts. Because appellant's efforts failed, and because the couple wanted to have a child to rear together, appellee decided to become pregnant. Appellant opened a sperm bank account and obtained sperm from an anonymous donor. Appellant, a licensed medical doctor, personally inseminated appellee on several occasions, and ultimately, appellee became pregnant. On September 30, 1994, appellee gave birth.

751 A.2d 11

After the birth, the parties jointly participated in rearing the child, including the selection of pediatricians and preschool. Appellant, a psychiatrist, and appellee, an epidemiologist, arranged their schedules to work out of the home so that one or the other was almost always available to care for the child

Appellee was the primary care giver, but for the first three years appellant participated in feeding, playing with, bathing, and holding the child. Appellant developed a bedtime ritual, whereby she would read for one-half hour to forty-five minutes to the child, following which appellee would say good night.

The parties experienced problems in their relationship as early as 1992 or 1993, and they went to therapy on at least two occasions. In September 1997, appellee moved out of the family home and took the child with her. The parties agreed on a liberal visitation schedule.

Beginning in December 1997, according to appellee, the child exhibited changes in behavior. The child had difficulty getting to sleep at night, began clinging to appellee, and was frequently whiny. The child also displayed "oppositional" behavior to appellee, and in the Spring of 1998, the child's teachers reported to appellee that the child was exhibiting "tantrums or meltdowns." During this time frame, appellee discontinued appellant's ritual of bedtime reading. Appellee discussed the child's behavior with appellee's neighbor and friend, K.H.¹, but did not take any other action. Appellant indicated that she did not observe any such symptoms when the child was with her, but acknowledged that appellee told appellant that the child was having trouble sleeping.

On May 27, 1998, the parties argued over a bicycle, and appellee refused thereafter to let appellant visit with the child. According to appellee, the child's whiny and clingy behavior stopped within two weeks, and the bedtime problems resolved themselves in three months. After school began in September, there was no abnormal behavior reported by the child's teachers.

In December 1998, the circuit court, after a pendente lite hearing, ordered a resumption of visitation between appellant and the child so that their relationship could be evaluated by a court-appointed psychologist, Dr. Benjamin Schutz. Within a few weeks of resumption of the visitation, most of the behavior problems returned.

The case was tried in March of 1999, and following the trial, the circuit court took the matter under advisement. On or about May 7, 1999, appellee terminated all visitation between appellant and the child, claiming that the child's behavior had worsened. The circuit court ordered a follow-up evaluation by Dr. Schutz, and additional testimony was taken on June 8 and July 2, 1999. According to Dr. Schutz, the child's teachers reported that the meltdowns or tantrums had stopped in April or May 1999, and the child had no problems interacting with the child's peers. There was testimony by appellee; by K.H.; and by Dr. Schutz, based on information supplied to him by Dr. Joan Evelyn Kinlan, the child's psychiatrist, however, that the child had developed a "rigid fantasy role-playing wherein [the child] would assume the role of another person or animal and assign roles to people around [the child] and interact only within those roles." Appellant testified that she did not observe this behavior. According to appellee, when visitation with appellant terminated in May 1999, the fantasy play ceased.

The circuit court, in its opinion on August 10, 1999, made the following findings and conclusions. First, the court stated that appellant neither presented evidence nor argued that she was entitled to custody of the child. The court stated that the only issue was one of visitation and that the case was to be decided under Maryland

751 A.2d 12

law regarding third party visitation rights. Consequently, the court concluded that the standard for determining whether to grant visitation to appellant, a third party, was the best interest of the child. See Evans v. Evans, 302 Md. 334, 488 A.2d 157 (1985)

Second, with respect to the relationship between appellant and the child, the circuit court found that appellant served "the functional role of a parent in relation to [the child] for the first three years eight months of [the child's] life." The parties lived together as a couple and jointly decided to have a family. Appellant was an integral part of the prenatal care of appellee, and after the child was born, appellant played a significant role in the child's care, demonstrating above-average parenting skills.

Third, the court found that the relationship between appellant and the child, in the past, had been beneficial to the child. Dr. Schutz found nothing inappropriate, detrimental, or negative in appellant's conduct with the child.

Fourth, the circuit court found that appellant was a fit and proper person to have visitation with the child. There was no evidence of any abuse, neglect, or adverse conduct by appellant toward the child.

Fifth, and determinative of the outcome, the circuit court found that it was not in the best interest of the child to continue a relationship with appellant. The court acknowledged that this was a difficult question, and regardless of the decision, there would be significant adverse consequences to the child.

The court concluded as follows:

If visitation is terminated completely, [the child] will lose a significant positive relationship with someone who has served as a parent for most of [the child's] life.²

This may have a long-term negative effect on [the child] because, according to Dr. Schutz, [the child] may have acquired a negative learned response from a beneficial relationship being easily excised and, according to Dr. Peebles [the child's pediatrician], the security of [the child's] relationship with the defendant may be jeopardized.

On the other hand, the evidence in this case is uncontroverted that when there is visitation between the plaintiff and [the child] significant behavioral problems emerge in [the child], and when the visitation is terminated completely, all of these problems disappear.

It is also uncontroverted that when visitation was terminated with the plaintiff, [the child] expressed no sense of loss, exhibited no signs of depression and did not ask to see the plaintiff.

When the visitation occurred between December 1997 and May 1998, [the child] had difficulty going to sleep, was clingy, whiny, oppositional, tantrums and checking behavior at school and problems playing with peers.

When the visitation was resumed in December 1998 to March of 1999, the same symptoms reappeared, except for the checking behavior.

In addition, the re-emergence of the symptoms in December of 1998 was unrelated to the frequency or duration of visitation because the later visitation schedule was significantly different than the visitation schedule for the earlier time period.

Dr. Schutz did opine that the aforementioned behavior problems of [the child] were stress-related and could be ameliorated by a proper visitation schedule, counseling of the parties to support both relationships and better communication between the plaintiff and the defendant.

751 A.2d 13

However, of greater importance is [the child's] most recent behavior. In April and May of 1999, [the child's] temper tantrums and oppositional behavior and peer problems at school disappeared.

[The child] became [the child's] old self. At home, though, [the child] began exhibiting a rigid fantasy role play when dealing with [the child's] mother and [the child's] neighbor.

In other words, [the child's] behavioral problems mutated into what Dr. Schutz described as a rigid systematic refusal by [the child] to engage [the child's] mother except through a rigid fantasy role play.

Dr. Schutz had never seen a child do this in his career and had never seen the level of intensity so severe as in this case.

[The child's] behavior was now clearly dysfunctional. Dr. Schutz was also at a loss to explain the cause of [the child's] behavior.

He could not link the conduct of either plaintiff or defendant to [the child's] symptomology. Dr. Schutz concluded that unless things change,

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