Barrett v. Ayres

⁴ KENNEY, J. In this case, we are asked to interpret the effect of Koshko v. Haining, 398 Md. 404 , 921 A.2d 171 (2007), on a pre-Koshko grandparent visitation order entered by the Circuit Court for Carroll County pursuant to Maryland Code (1984, 2006 Repl. Vol.) § 9-102 of the Family Law Article (“FL”), known as the Grandparent Visitation Statute (“GVS”). More particularly, we must consider whether modification of the GVS order requires the showing of a material change in circumstances, and, if so, whether such a change in circumstances was shown in this case. Appellant, Sharon Elaine Barrett (“Sharon”), is the mother of Aliza Marie Ayres (“Aliza”).

Appellees, Bryan Scott Ayres, Sr. (“Scott”), and Helen Ayres (“Helen”) (together “the Ayreses”), are Aliza’s paternal grandparents and the parents of Aliza’s father, Bryan Scott Ayres, Jr. (“Bryan”). Sharon and Bryan were never married. The relationship between the parties had been amicable until Bryan was seriously injured in a motor vehicle accident in 2004. He remains in a coma to this day.

After the accident, relationships among the parties grew strained, and, as a result, Sharon prohibited the Ayreses from visiting Aliza. The Ayreses petitioned for and were granted visitation under the GVS on April 10, 2006. Sharon filed a Motion to Modify Grandparent Visitation (“Motion to Modify”) before the Circuit Court for Carroll County on April 6, 2007. Citing Koshko , she sought to terminate visitation based on the further deterioration of the relationship between her and the Ayreses.

After a hearing, a Master issued a Report and Recommendation dated November 1, 2007, in which he concluded that visitation should be terminated based on the Ayreses inability to establish, under Koshko , that Sharon was unfit or that exceptional circumstances existed that permitted the court to infringe on Sharon’s fundamental parental rights. The Ayreses filed exceptions to the Master’s Report. After an evidentiary hearing, the circuit court denied Sharon’s Mo ⁵ tion to Modify, based on a finding of no material change in circumstances. Sharon filed this timely appeal and presents one question for our review, which we have slightly revised: Did the trial court err in its interpretation and application of Maryland statutory and case law in ruling that the Motion to Modify Grandparent Visitation was not supported by a material change in circumstances?

For the reasons that follow, we shall vacate the judgment of the circuit court and remand for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND Aliza was born on March 21, 2004. In December 2004, Bryan was seriously injured in an automobile accident. Because he has remained in a coma since the accident, he does not have an interactive relationship with Aliza.

At first, Sharon provided the Ayreses with regular access to Aliza, and allowed them to take Aliza to the hospital to see her father. As the parties struggled to deal with the situation, their relationship became strained. In March of 2005, Sharon began denying the Ayreses access to Aliza. The Ayreses filed for court-ordered visitation under the GVS in the Circuit Court for Carroll County on May 6, 2005.

They sought visitation with Aliza at least one evening during the week and twice each weekend. Sharon did not contest all visitation, but she would only agree to visitation twice a month. A hearing was held before a Master on November 7, 2005. In his Recommendation and Report, dated January 12, 2006, the Master discussed the United States Supreme Court’s decision in Troxel v. Granville, 530 U.S. 57 , 120 S.Ct. 2054 , 147 L.Ed.2d 49 (2000).

He stated: In Troxel , ... the Supreme Court of the United States stated that the rights of parents to make decisions concerning the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by that Court. It is a right protected by the 14th ⁶ Amendment of the United States Constitution. Consequently, the Court stated that so long as a parent adequately cares for their child, that is, they are a fit and proper parent, there is no reason for the State to inject itself into the private realm of the family, or to question the ability of the parent to make the best decisions concerning the rearing of that parent’s child. The Court further stated that there is a presumption that a fit parent will act in the best interest of their child, and that special weight must be given to the parent’s own determination regarding the parent’s fundamental constitutional right to make decisions regarding the rearing of their child.

Finally, the Supreme Court stated that the due process clause of the Constitution does not permit a State to infringe on this fundamental right simply because a judge believes a better decision could be made.... In the Troxel case, the Supreme Court did not hold that all grandparent visitation statutes were unconstitutional, but can be unconstitutionally applied in a case. The Master then reviewed the post -Troxel application of the GVS by the Maryland appellate courts, including Herrick v. Wain, 154 Md.App. 222 , 838 A.2d 1263 (2003). There, this Court superimposed the presumption that the parent is acting in the best interest of his or her child when making decisions concerning visitation on the best-interest-of-the-child factors that the Court of Appeals had determined should be considered when applying the GVS in Fairbanks v. McCarter, 330 Md. 39 , 622 A.2d 121 (1993). 1 ⁷ Guided by this analysis, the Master first found that Sharon was a fit and proper parent, and, therefore, entitled to the presumption that she was acting in Aliza’s best interest regarding visitation.

The Master then considered the Fairbanks factors and found that there was no reason to conclude that Aliza had anything but a close relationship with her mother and little or no relationship with the Ayreses. Because the Ayreses had not overcome their burden of rebutting the presumption in favor of Sharon’s decision regarding the nature and extent of visitation she was willing to allow the Ayreses, the Master recommended a visitation order consistent with Sharon’s determination of what the visitation should be. On January 31, 2006, both parties stated in the Line to Cancel Settlement Conference, filed jointly by the parties, that they accepted the decision of the Master as a full and final resolution of the matter then before the circuit court. On April 10, 2006, the circuit court, upon consideration of the Master’s Report and Recommendation, granted the Ayreses visitation with Aliza on the first Saturday of each month from 10:00 am to 6:00 pm, the third Wednesday of each month from 5:00 pm to 8:00 pm, and at such other times as agreed upon between the parties.

On April 6, 2007, Sharon filed a Motion to Modify, in which she stated: That circumstances have changed since the entry of the court’s last order in that the acrimony between the parties has increased. The [Ayreses] have been dissatisfied with the level of visitation granted by the court. As a result, they have continued to pressure [her] for additional visits. [She] has been unwilling to expand the visits and arguing and problems have ensued. That tensions between the parties have been exacerbated by actions of the [Ayreses].

In addition to a constant barrage of visitation requests and anger when those requests are denied, the [Ayreses] refuse to advise [her] of where they will be during visits. They have refused to ⁸ answer the phone when she called to check in during the visits. They have brought the child back late from visits. They have allowed their son who only recently got his driver’s license to drive the child.

That under the holding in Koshko v. Haining decided by the Court of Appeals on January 12, 2007, there is a rebuttable presumption in favor of parental decisions concerning visitation with grandparents. That the continuous arguments and problems are creating a tense and stressful environment which is not beneficial for the minor child. The child is not gaining any benefit from these visits. The child’s best interests would be served by ending the visitation between the child and the [Ayreses].

The Ayreses filed an answer, and a hearing was held before a Master on September 4, 2007. Both parties testified that arguments regarding visitation have occurred. Sharon argued that Koshko “controls the case.” The Ayreses agreed that “Koshko ... is indeed the current State of the law on the issue,” but argued that “it applies only to initial judicial determinations of visitation between parents and third parties and ... does not apply to cases seeking the modification of an existing Court Order.” They argued that Sharon “must show a material change in circumstance before the Court could modify its Order.” In his Report and Recommendation, dated November 1, 2007, the Master found: [The Ayreses’] position that before a[c]ourt can modify one of its Orders it must be persuaded by competent proof that a material change in circumstance exists since the issuance of the Order sought to be modified is trumped in the instant case by the dictates in Koshko v. Haining. [The] Master’s reading of Koshko v. Haining lead[ ] him to conclude that unless [Sharon] is found to be unfit, or unless some exceptional circumstances exist which indicate that the lack of grandparental visitation would have some deleterious effect upon [Aliza] the “best interests” test is not applicable. ⁹ The Master recommended that “the relief prayed by [Sharon] in her Complaint to Modify Child Visitation be granted.” The Ayreses took the following exceptions to the Master’s Recommendation and Report: 1. That the Master erred in ruling that the decision in Koshko was controlling; 2.

That the Master erred in ruling that [Sharon] did not have the burden of proving a material change in circumstances existed to justify the relief she requested; 3. That the Master erred in terminating the grandparent visitation rights of the [Ayreses], Sharon responded: 1. That [she] opposes the [Ayreses’] Exceptions and asserts that the Master’s Ruling is proper decision [sic] and a proper application of the case of Koshko v. Haining .... 2. That the Master did not err in making the recommendation that the [Ayreses’] visitation be terminated. 3.

That the evidence presented before the [M]aster was that [she] is a fit and proper parent. No evidence of detriment to the child in the absence of grandparent visitation was shown. Due to [Aliza’s] young age, arguably, it would be very difficult to show an actual detriment. 4. That the Koshko case stands for the proposition that before a trial court considers a best interest standard for visitation, the court must first find prima facie evidence of parental unfitness or exceptional circumstances demonstrating current or future detriment to the child absent grandparent visitation..... 5.

That in the current case, a fit parent made the decision that grandparent visitation should be terminated. Her decisions related to visitation must be honored unless unfitness or detriment to [Aliza] can be shown. In the absence of these showings, as was in this case, the termination of visitation was the proper result. The Ayreses requested the appointment of a best interest attorney, which the court denied. ¹⁰ The circuit court conducted a hearing on the exceptions, and, on June 23, 2008, entered an order denying the Motion to Modify.

In an accompanying Opinion, the court stated: [T]he issue is whether or not there is a material change in circumstances, such as to justify a termination or restriction on visitation between [Aliza] and the [Ayreses]. The [c]ourt finds that there is no material change in circumstances to justify the relief prayed, and will therefore enter an Order dismissing the pending [Motion to Modify] and allow the present visitation Order to stand. This appeal followed. STANDARD OF REVIEW Orders related to visitation or custody are generally within the sound discretion of the trial court, not to be disturbed unless there has been a clear abuse of discretion.

See Walter v. Gunter, 367 Md. 386, 391-92 , 788 A.2d 609 (2002); Beckman v. Boggs, 337 Md. 688, 703 , 655 A.2d 901 (1995). However, where the order involves an interpretation and application of statutory and case law, the appellate court must determine whether the circuit court’s conclusions are “legally correct” under a de novo standard of review. Walter, 367 Md. at 391-92 , 788 A.2d 609 . DISCUSSION In Troxel, 530 U.S. at 57 , 120 S.Ct. 2054 , the United States Supreme Court addressed a constitutional challenge to Washington State’s third-party visitation statute.

The result was a plurality opinion authored by Justice O’Connor, separate concurring opinions by Justices Souter and Thomas, and three individual dissenting opinions by Justices Stevens, Scalia, and Kennedy. The plurality opinion and the two concurrences concluded that the statute violated the dictates of federal due process. Koshko, 398 Md. at 421 , 921 A.2d 171 (citing Troxel, 530 U.S. at 68 , 120 S.Ct. 2054 ). At the outset, the plurality observed that “contained within the bounds of the federal Due Process Clause is a fundamental ¹¹ liberty interest bestowed upon parents concerning the ‘care, custody, and control’ of their children.” Id.

(citing Troxel at 65-66 ). The Court determined that the trial court had failed to honor the “traditional presumption that a fit parent will act in the best interest of his or her child,” and that the trial court had erred in not assigning “some special weight” to the parent’s estimation of her child’s best interests. Id. (citing Troxel at 70, 120 S.Ct. 2054 ).

Although the Court “declined to decide whether the Due Process Clause requires all grandparental visitation statutes to mandate a threshold showing of harm to the children as a prerequisite to granting visitation,” it stated that “the resolution of a grandparental visitation petition cannot be made upon the basis of a ‘simple disagreement between the [trial court] and [parent] concerning the children’s best interests.’ ” Koshko, 398 Md. at 422 , 921 A.2d 171 (quoting Troxel at 72-73, 120 S.Ct. 2054 ). In 2007, the Court of Appeals, in Koshko , addressed a constitutional challenge to Maryland’s GVS. In that case, the maternal grandparents petitioned for visitation with their three grandchildren. The parents of the children were precluding the grandparents from visiting because the parties had had a falling out.

The Court was asked to decide whether, under a substantive due process analysis, the GVS was unconstitutional, because it failed to recognize a rebuttable presumption accorded the propriety of a parent’s determination of what is in his or her child’s best interest with respect to visitation with a grandparent. Id. Before addressing the validity of Maryland’s GVS, the Court surveyed the “relevant precedential guideposts framing the constitutional landscape and informing [its] analysis” in “evolutionary order.” Koshko, 398 Md. at 412 , 921 A.2d 171 . The Court first addressed the GVS in 1993, in Fairbanks, 330 Md. at 39 , 622 A.2d 121 .

Fairbanks “arose from a disagreement between a divorced father and maternal grandparents over the amount of time the maternal grandparents should be permitted to visit with the children.” Koshko, 398 ¹² Md. at 413, 921 A.2d 171 (citing Fairbanks, 330 Md. at 43 , 622 A.2d 121 ). The grandparents filed a petition under the GVS, which the trial court denied “because it found that the grandparents had not demonstrated exceptional circumstances militating that visitation should be ordered.” Id. (citing Fairbanks at 44, 622 A.2d 121 ). The Fairbanks Court considered whether a finding of exceptional circumstances must be made before visitation could be ordered.

The Court concluded that the plain language of the GVS required neither a predicate showing of exceptional circumstances nor parental unfitness before an award of visitation to grandparents could be ordered, because “[visitation is a considerably less weighty matter than outright custody of a child, and does not demand the enhanced protections, embodied in the exceptional circumstances test, that attend custody awards.” Fairbanks, 330 Md. at 48 , 622 A.2d 121 . Therefore, the best interest of the child standard was dispositive. Id. at 49 , 622 A.2d 121 . The Fairbanks Court provided a non-exclusive list of factors to be considered when evaluating the best interests of a child, as set forth in footnote 1, supra.

The Koshko Court noted that the Fairbanks “best interest” analysis was followed in the pre-Troxel cases of Beckman v. Boggs, 337 Md. 688 , 655 A.2d 901 (1995), Maner v. Stephenson, 342 Md. 461 , 677 A.2d 560 (1996), and Wolinski v. Browneller, 115 Md.App. 285 , 693 A.2d 30 (1997). In Wolinski , we held that “a court’s granting of a grandparent’s visitation schedule (as opposed to the grant of visitation in the first instance) over that of a parent’s preference was even less of an affront to the parent’s constitutional rights.” Koshko, 398 Md. at 416 , 921 A.2d 171 (citing Wolinski, 115 Md.App. at 307 , 693 A.2d 30 ) (emphasis in original). We recognized the constitutional presumption favoring the parents’ determination of what is in their child’s best interest in grandparent visitation disputes, but we stated that “the presumption favoring a parent’s wishes regarding their child ... could be overcome by a trial court’s contrary finding of visitation being in a child’s best interest, a determination ¹³ which is entitled to deference upon judicial review.” Id. at 416-17 , 921 A.2d 171 (citing Wolinski at 319, 693 A.2d 30 ). The Koshko Court also reviewed the post-Troxel cases of In re Tamara R., 136 Md.App. 236 , 764 A.2d 844 (2000), Herrick, 154 Md.App. at 231-32 , 838 A.2d 1263 , and McDermott v. Dougherty, 385 Md. 320 , 869 A.2d 751 (2005).

Tamara R., a third-party visitation case, involved a father who wished to prevent his child, who had been adjudicated a child in need of assistance, from seeing his other children. In Tamara R., we “viewed” the Fairbanks best interest factors “through a lens deferring to a parent’s wishes,” by applying “a presumption that the parent’s decision to decline visitation is in the best interest of the child over whom the parent has custody, and [placing] the burden on the non-parent seeking visitation to rebut that presumption.” Koshko, 398 Md. at 418 , 921 A.2d 171 (citing In re Tamara R. at 252, 764 A.2d 844 ). In Herrick , a grandparent visitation case, we followed Fairbanks and did not require a showing of exceptional circumstances before granting grandparent