In re Iris M.

ROBERT F. FISCHER, Judge (retired), Specially Assigned. In this case, we are considering three consolidated appeals from the District Court of Maryland for Montgomery County, Juvenile Division. The alleged effect of all three orders appealed from is the same, that is, denying to appellant, ⁶³⁸ Manuel M., father of the minor child, Iris M., any contact with his sixteen-year-old daughter. The issue presented to us, as phrased by appellant, is: Did the trial judge err in ordering no contact between Iris and her father where there was neither agreement nor factual finding nor support in the record for such an order?

FACTS The facts, as presented by appellant, are that Iris was born in El Salvador on February 2, 1981. Iris was apparently abandoned by her mother when she was seven months old and was thereafter raised by her father and paternal grandmother. Due to his involvement in the civil war in El Salvador, Mr. M. was forced to flee the country in 1987. He left Iris in the care of her grandmother.

Mr. M. established permanent residency in the United States, obtained employment as an automobile mechanic, and in 1981, married Katherine R. After their marriage, Mr. M. and Katherine traveled to El Salvador to visit Iris and brought her to the United States to live with them in 1992. Although the family was originally compatible, as Iris reached adolescence, tension developed between Iris and her stepmother. An argument between them on August 8, 1994, resulted in some physical contact. Iris told her close friend, Rosemary C., of the incident, and Rosemary and her mother took Iris to the hospital for examination.

A complaint of physical child abuse was lodged by Iris. After investigation, the complaint was dismissed. This incident caused a great deal of conflict within the family. As a result, the father and stepmother placed Iris in Second Mile House, a group home for adolescents.

Iris spent two weeks there and, during that time, complained of physical abuse on the part of her stepmother but made no complaint of sexual abuse on the part of her father. Iris was released from the group home to her father and stepmother on September 7, 1994. Mr. M. believed that Rosemary had induced his daughter to make a false abuse ⁶³⁹ complaint against her stepmother and, therefore, forbade his daughter from associating with Rosemary. He told Iris that he would return her to the group home if he found her in the company of Rosemary.

Thereafter, while driving to work on October 20, 1994, Mr. M. saw Iris and Rosemary walking to school together; they also saw him. That afternoon, Iris and Rosemary went to the school nurse and informed the nurse that Iris had been sexually abused by her father. Iris said that her father had “tried to touch” her. She was questioned by police and the Department of Social Services (DSS) and placed in shelter care the same day.

At the shelter care hearing held the next day, the allegation was described by the county attorney as “taking off her clothes, fondling her breasts, and making digital penetration.” Iris was placed in shelter care by Judge Moore and parental contact with her was limited to visitation under the supervision of DSS. As a practical matter, no such visitation took place. On November 16, 1994, a scheduled adjudication hearing was continued and the trial judge, Judge Sislen, issued an order reaffirming the commitment order and striking the order for an independent physical exam of Iris by a doctor designated by the parents. This physical exam had earlier been ordered by Judge Moore.

The trial judge also denied a request by the parents to have their attorney interview Iris in the presence of her attorney. At a motions hearing on January 9, 1995, an agreement was discussed that would temporarily settle the dispute. The attorney for Montgomery County proffered that the agreement was to the effect that Iris alleged that she had been sexually abused by her father, the father denied the allegation, and the child cannot, at the time of the agreement, return to her father’s home. The trial judge, prophetically, pointed out that, while such an agreement resolved the current problem, it did not settle the major issue, ie., did the father sexually abuse the child.

The judge also stated: “[I]t’s going to be very hard to me to agree to a no contact, if [the father] at some point says that he wants it lifted, if there’s not a finding ⁶⁴⁰ of abuse, frankly. Because then, I have nothing to no contact for.” When the case subsequently came on for an adjudication on February 1,1995, the court, nevertheless, accepted the following agreement: [T]he factual basis for finding that Iris M. to be a Child in Need of Assistance is the following: 1. On October 20, 1994, the Respondent, Iris M., alleged that her father Manuel M., would take off her clothes, fondle her breasts and put his fingers in her “private part.” 2. That the Respondent’s father, Manuel M., denies Iris’s allegations and believes the story was fabricated. 8.

That the Respondent’s father, Manuel M., and Respondent’s stepmother, Katherine R., are unwilling to have the Respondent return to their care and custody because of the allegations---- The father’s attorney agreed to the no contact order on February 1, 1995. Shortly thereafter, the father discharged the attorney and wrote to the trial judge, stating: I am presently in between counsel, as the result of my former attorney’s failure to obtain my consent to the adjudication agreement____ I would like you to know that I told my attorney the day of the adjudication that I would not agree to an agreement with the Department unless my language was included. I was told my language was included. I have just learned it was not....

I never consented to the current adjudication agreement. What can I do? The father’s situation with respect to Iris was further affected by pending criminal charges relating to his alleged conduct toward Iris. Prior to the criminal trial, Mr. M.’s attorney advised him not to have any contact with Iris out of a fear of further fabrication on her part.

On September 29, 1995, the father appeared before Judge Leonard Ruben and entered a plea of nolo contendere. He ⁶⁴¹ was granted a disposition under Md.Code Ann. (1957, 1996 Repl.Vol.), Article 27, § 641, of probation before judgment. At a review hearing on November 28, 1995, the father requested visitation. The trial court, however, continued the no contact order pending an evaluation by the Child and Adolescent Forensic Evaluation Services (CAFES).

Mr. M. refused to participate in the CAFES evaluation and the no contact order was continued. On January 16, 1996, the attorney for Mr. M. filed a motion to have another judge assigned to his case, and on January 22,1996, Mr. M. filed a motion for supervised visitation. He also requested an independent family forensic evaluation. On January 31, 1996, Mr. M.’s motion for an independent evaluation was denied and an evaluation by the CAFES was ordered.

On the same date, the court also modified certain no contact orders relating to Katherine R., Iris’s stepmother. 1 On July 10, 1996, and July 31, 1996, review hearings were held. The no contact order prohibiting Mr. M. from having any contact with his daughter was reaffirmed on each occasion and timely appeals followed. On January 13, 1997, a further review hearing was held, the no contact order was again continued, and an appeal was filed. DISCUSSION This case is an example of a terrible family tragedy that has been exacerbated by those entrusted to give aid and support.

A father and stepmother have been totally separated from their daughter by the power of the State for three years, without any tangible efforts at reconciliation. The father has appealed three no contact orders, which were issued by the District Court on July 10, 1996, July 31, ⁶⁴² 1996, and January 13, 1997. The State contends we need not consider the first two orders because they have been superseded by the order of January 13, 1997. That argument is legally correct, but we will discuss these orders to some extent where necessary, as the three orders under appeal are interrelated.

This case originated with the filing of a Petition by the Montgomery County Department of Social Services (DSS) on November 9, 1994. The petition alleged that Iris is a child in need of assistance (CINA) because she had been sexually abused by her father. The petition further stated that the father had denied inappropriate behavior and that the stepmother did not believe such behavior had occurred. It also noted that, on August 10,1994, Iris had accused her stepmother of assaulting her, but an investigator did not substantiate the accusation and noted that Iris may have exaggerated the confrontation.

After an adjudication hearing on November 16, 1994, Judge Sislen signed an order that permitted supervised visitation between Iris and her grandmother and telephone contact between Iris and Rosemary Carroll and Rosemary’s mother, Susan. The order also struck the order for an independent physical examination that had been arranged by the parents and ordered by Judge Moore at the shelter care hearing on October 21, 1994. This had the effect of preventing the father from obtaining evidence that may have been essential to his defense. The first no contact order was signed by Judge Sislen on December 2,1994, apparently in response to a motion by DSS.

The docket entries refer to such a motion, but we are unable to locate it in the court file. The order is draconian in nature in that it precludes any contact between Iris and her father and stepmother, including “no telephone contact or letter and no contact with her therapist, foster home or school.” It is unfortunate that the motion requesting the order is not in the record, as it might shed light on why it was believed necessary to cut off all possible contact between Iris and her father and stepmother. ⁶⁴³ At the adjudication hearing on February 1,1995, the parties entered into a stipulation rather than have a contested case hearing. The stipulation provided: 1. Iris alleged that her father would take off her clothes, fondle her breasts, and put his fingers in her “private part.” 2.

The father denies Iris’s allegations and believes her story was fabricated. 3. That Iris’s father and stepmother are unwilling to have Iris returned to their care and custody because of the allegations. The stipulation, while resolving the immediate problem, did not deal with the central question, that is, did Mr. M. sexually abuse his daughter? The issue related to the no contact order was temporarily in abeyance because the father was facing criminal charges related to Iris’s complaint and his attorney advised him not to have any contact with Iris pending the resolution of those charges.

Subsequently, the father appeared before Judge Leonard Ruben, and an agreement was reached whereby he entered a plea of nolo contendere and, after psychological examination, received a disposition of probation before judgment under the provisions of Article 27, § 641. After the criminal charges were resolved, the father requested that the no contact order be lifted so that he could begin reconciliation efforts with his daughter. The State avers, and we agree, that the court orders entered on January 31, 1995 and July 10, 1996 are moot. Those orders were superseded by the no contact order entered on January 13, 1997, and are, thus, meaningless.

In re Riddlemoser, 317 Md. 496, 502 , 564 A.2d 812 (1989) (a case is moot where there is no longer any effective remedy which the court can provide). With respect to the order of January 13, 1997, Mr. M. argues that there was insufficient evidence before the court at ⁶⁴⁴ the January 13, 1997 hearing to afford a basis for a finding of sexual abuse. The evidence before the court was an evaluation by CAFES, an evaluation by Lawrence Smith, a therapist hired by Mr. M., and an evaluation by Susan Weigert, a clinical psychologist also hired by Mr. M. Mr. M. points out that the CAFES evaluation cannot support a finding that sexual abuse had occurred for three reasons. First, CAFES’s evaluation did not investigate whether abuse had occurred.

The report provides: [W]e were not investigators but rather evaluating clinicians____ [T]he purpose of our assessment was not to further investigate the validity of the sexual abuse accusations, but rather to evaluate attachment issues, treatment issues and potential for reunification. Secondly, it seems clear that the CAFES evaluation mistakenly concluded that a plea of nob contendere and a disposition of probation before judgment was the equivalent of an admission of guilt. In Agnew v. State, 51 Md.App. 614, 651-653 , 446 A.2d 425 (some citations omitted), cert. denied, 294 Md. 441 (1982), we explained the effect of a plea of nob contendere: A plea of nob contendere is, of course, an admission of guilt which can subject the defendant to the same punishment as on a plea of guilty. Maryland law concerning the use of this plea in a subsequent proceeding is scant.

See generally, McCall v. State, 9 Md.App. 191 , n. 4 at 193, 263 A.2d 19 (1970), cert. denied, 258 Md. 729 (1970); Comment, The Plea of Nolo Contendere, 25 Md.L.Rev.