Koshko v. Haining

⁵⁵⁹ RODOWSKY, J. This is a grandchildren-grandparents visitation case. The Circuit Court for Baltimore County ordered visitation with the appellees, John Haining (John) and Maureen Haining (Maureen) (sometimes collectively referred to as “Grandparents”), over the opposition to any visitation by the appellants, Glen Koshko (Glen) and Andrea Koshko (Andrea) (sometimes collectively referred to as “Parents”). Andrea is the oldest of the four children of the Hainings. Andrea is the mother of three children: Kaelyn (DOB 9/26/94), Haley (DOB 8/21/99), and Aiden (DOB 12/19/02) (the Children).

Appellants contend that Maryland’s Grandparent Visitation Statute (GVS), Maryland Code (1984, 2004 Repl.Vol.), § 9-102 of the Family Law Article (FL), is facially unconstitutional, or was unconstitutionally applied in this case to fit parents in an intact family. 1 We set forth the facts in the light most favorable to the Grandparents as the prevailing parties. 2 Andrea was raised in Middleton, New Jersey. At age eighteen she left home, “to get away,” together with her then boyfriend, James Atkats. They lived in Florida where Andrea became pregnant with their child, Kaelyn. James Atkats abandoned Andrea, who then returned to the Haining family home in Middleton.

James Atkats has never played any role in Kaelyn’s life. 3 After Kaelyn was born, Andrea and Kaelyn continued to reside in the Haining family home until 1997, when Kaelyn ⁵⁶⁰ was three years old. During this period, Andrea worked as a waitress in the evening, and the Hainings actively participated in the care and raising of Kaelyn. Maureen described her participation as co-parenting. Also during this period, Andrea and Glen began dating.

In September 1997, Andrea moved out of the family home, and she, Glen, and Kaelyn lived in Point Pleasant, New Jersey. Their home was about a half-hour drive from the Grandparents, and Maureen saw Kaelyn “quite often.” “[A] lot of times” Maureen would take Kaelyn out for the day. Andrea and Glen became engaged to be married. The Hainings were prepared to pay for a formal wedding, with reception, but the couple, sometime in 1998, eloped.

Andrea testified that the couple were anxious to bring Kaelyn under the health insurance coverage available through Glen’s employment. The couple, over time, reimbursed the Hainings for the $2,000 deposit with a catering facility that was lost when the formal wedding was cancelled. In about June 1999, the Parents, with Kaelyn, moved to Baltimore County, Maryland in connection with Glen’s employment. At that time Kaelyn was three months shy of age five.

They have resided in Baltimore County ever since. Haley and Aiden were born in Maryland. Despite the approximately 150 miles separating the two households, the Children had a close relationship with the Grandparents until October of 2003. Sometimes the Grandparents visited at the Parents’ home; other times the Parents drove the Children to the Grandparents’ home.

The parties agree that the Children saw their maternal grandparents approximately once a month. Further, between visits, the Children and the Grandparents maintained a relationship by telephone and through cards and letters. To evidence that the relationship continued after the Koshkos moved to Maryland, the Grandparents produced photo albums, videos, and E-Z Pass billings. The circuit court also received into evidence a log, prepared by the Grandparents, demonstrating that they visited with the Children thirty-one ⁵⁶¹ times in the thirty month period between May 2001 and October 2003.

These visits included two overnight stays by the Grandparents at the Parents’ home and fourteen overnights at the Grandparents’ home. On seven of these fourteen overnights the Children stayed without their Parents. Indeed, the Children kept toothbrushes at the Grandparents’ home. The last of these Children-only visits was from October 9 to October 13, 2003, while Parents were at Glen’s college homecoming in South Carolina.

In October 2003, Glen’s mother was hospitalized in New Jersey with terminal cancer. She died in early December of that year. Maureen’s own mother had died from cancer, and Maureen was emotional about the condition of Glen’s mother. Glen did not visit his mother when one, the other, or both Parents delivered and picked up the Children in connection with the five day stay during homecoming.

On the following Thursday, Maureen spoke to Andrea about this. Maureen offered to watch the Children if Parents came to New Jersey to see Glen’s mother. Andrea said, “ ‘No, Glen is not coming up. Glen is having a birthday party.’ ” Maureen pointed out that Glen’s mother would not live much longer and that the Parents had gone away for four days the preceding weekend.

At that point Glen came on the telephone and, Maureen testified, the following conversation ensued. GLEN: “ ‘You got something to say to me?’ ” MAUREEN: “ ‘Yeah, I’m just concerned. [Your] mother is dying, and you’re acting like an asshole.’ ” GLEN: “‘It’s none of your goddamn business____You are not going to see your fucking grandchildren again.’ ” Glen slammed the phone down. When Maureen told John of the conversation with Glen, John first spoke to Andrea, who confirmed to him what Glen had said. John then unsuccessfully attempted to reach Glen on the latter’s cell phone, but left a message telling Glen that he, John, was going to come down to Maryland “to knock some sense into him[,] to crack him [in the head] that evening.” ⁵⁶² At the time of this October 2003 incident, Andrea’s sister, Tracey, was engaged to be married in August 2004.

Tracey planned for the Children to be part of the wedding party. On November 17, 2003, Tracey wrote to Andrea urging that Andrea at least permit the Children to participate. Tracey offered to transport them and arrange for their wedding outfits. She received no reply.

On December 12, John e-mailed Glen and Andrea, apologized for “going off the handle and wanting to ‘crack’ ” Glen, and urged that Parents and Grandparents “sit down and talk.” He said, “We Love you guys and, as you said in your Mom’s eulogy Glen—life is too precious and short.” Through telephone calls and e-mails, and utilizing friends as intermediaries, Grandparents sought to restore the relationship with the Koshko family. On Valentine’s Day, after being in Washington, D.C., they stopped by Parents’ home, unannounced, and left gifts on the door step. They employed an attorney who wrote to the Parents on February 27, 2004, suggesting mediation. In April 2004, Parents offered to permit Grandparents to visit once with the Children, but would not commit themselves as to whether any subsequent visits could take place.

Kaelyn was nine years old, Haley age four, and Aiden about age two when the relationship between the parties ruptured in October 2003. The subject action was filed April 19, 2004, and tried on July 19 and 20, 2005. There was no expert testimony. On cross-examination, Andrea acknowledged that, prior to the rupture, Kaelyn and Maureen had carried on a correspondence.

The following colloquy then took place: “Q So, tell the Court what did you tell your daughter when you just cut her grandparents out of their life, what did you tell her? “A I didn’t say anything. “Q Just didn’t talk about it? “A Right. ⁵⁶³ “Q She never asked you one question about your parents, that’s what you told me at the deposition? “A She has not. “Q You’re under oath. Not a single question? “A No, we have not talked about it. We have not talked about it. “Q How do you answer that? “A She has not asked me anything. “Q Nothing? “A Nothing, no. “Q You think that’s a healthy thing for her? “A I don’t know if it’s healthy.” Focusing on the status of the Maureen-Kaelyn correspondence following the rupture, counsel for Grandparents asked Andrea: “Q Have your parents written her since the problem? “A Yes. “Q What happens with those letters? “A They were not letters, they would just send cards. “Q What would happen to them? “A Because of the escalation and fighting, I thought it might be best if she not see them. “Q So, you hid them from her? “A I didn’t hide them from her. “Q What did you do with them. “A I didn’t give them to her. “Q What do you [do] with them? “A I put them aside. “Q Just to obliterate them from her life? “A What I’m trying to do is make more peace with everything, because she might start asking questions. So, I’m keeping her out of it.

I am keeping her out of it at this point. Because of the position we are in, I thought it would be best. That was my opinion. ⁵⁶⁴ “Q You don’t think an 8, 9 or 10-year-old child is able to understand when two people completely disappear out of her life? She has not asked you one question? “A She really hasn’t.” The circuit court delivered an oral opinion at the conclusion of the evidence.

It found this testimony to be “credible” but “troubling.” After explaining its legal reasoning, the court interwove a program of counseling with its visitation order. Before describing the circuit court’s rationale, it will be helpful to review Troxel v. Granville, 530 U.S. 57 , 120 S.Ct. 2054 , 147 L.Ed.2d 49 (2000), the background against which this case was argued in the circuit court and here. Troxel Troxel involved a statute of the State of Washington which, in terms, permitted any person, at any time, to obtain court-ordered visitation if the court concluded that visitation was in the best interest of the child. The custodial parent, the mother, did not oppose entirely visitation by the grandparents, so long as it was limited to one short visit per month.

Troxel, 530 U.S. at 61 , 120 S.Ct. at 2057 . The Washington Supreme Court had held that the statute violated the United States Constitution by infringing on the fundamental right of parents to rear their children. Id. at 63 , 120 S.Ct. at 2058 . In the United States Supreme Court, four justices joined in the opinion announcing judgment, there were two separate concurrences, and three justices dissented.

The Court affirmed, but for reasons different from those given by the Supreme Court of Washington. The plurality, describing the operation of the Washington statute, said that “[ojnce the visitation petition has been filed in court and the matter is placed before a judge, a parent’s decision that visitation would not be in the child’s best interest is accorded no deference.” Id. at 67 , 120 S.Ct. at 2061 . By placing the best interest determination solely in the hands of the judge, the Court said that, ⁵⁶⁵ “in practical effect, in the State of Washington a court can disregard and overturn any decision by a fit custodial parent concerning visitation ... based solely on the judge’s determination of the child’s best interests.” Id. This decisional framework that had been employed by the Washington State trial court “directly contravened the traditional presumption that a fit parent will act in the best interest of his or her child.” Id. at 69 , 120 S.Ct. at 2062 .

Setting forth the appropriate decisional framework, the Court said: “[T]he decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent’s decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent’s own determination.” Id. at 70 , 120 S.Ct. at 2062 . Accordingly, the Court held that the Washington statute had been unconstitutionally applied to the parent. The Court expressly declined to pass on whether “the Due Process Clause require[d] all nonparental visitation statutes to include a showing of harm or potential ham to the child as a condition precedent to granting visitation.” Id. at 73 , 120 S.Ct. at 2064 .

Nor would the Court define “the precise scope of the parental due process right in the visitation context.” Id. After recognizing that non-parental visitation cases are adjudicated on a case-by-case basis, the Court said that it “would be hesitant to hold that specific nonparental visitation statutes violate the Due Process Clause as a per se matter.” Id. (footnote omitted). The Court then cited, for the sake of an example, Fairbanks v. McCarter, 330 Md. 39, 49-50 , 622 A.2d 121, 126-27 (1993), where illustrations of the factors to be considered under the Maryland statute were set forth. 4 ⁵⁶⁶ The plurality in Troxel also expressed agreement with one aspect of the dissenting opinion of Justice Kennedy, namely that “the constitutionality of any standard for awarding visitation turns on the specific manner in which that standard is applied and that the constitutional protections in this area are best ‘elaborated with care.’ [ 530 U.S. at 101 , 120 S.Ct. at 2079 .] Because much state-court adjudication in this context occurs on a case-by-case basis, we would be hesitant to hold that specific nonparental visitation statutes violate the Due Process Clause as a per se matter.” Id. at 73 , 120 S.Ct. at 2064 .

The Court then set forth in a footnote references to the statutes of all fifty states providing for grandparent visitation in some form. The Circuit Court’s Opinion The circuit court stated that grandparent visitation cases are very fact specific, so that the trial court is required to look at the totality of the circumstances. It noted the discretionary phraseology of the Maryland GVS, its requirement for finding that visitation is in the best interest of the child, and the nonexclusive factors set forth in Fairbanks . Directing its attention to Troxel , the court said: “In looking at the presumptions and what Troxel did, it clearly did change the law in this area in terms of laying out what the trial court, such as myself, has to look at.” The circuit court considered that Troxel “clearly says ... that parents do have certain rights to control what happens to their children, but it is not an unfettered right.

There’s a presumption ... that does exist ⁵⁶⁷ as parents basically being deemed to know what is in their children’s best interest, but as I said, that’s not an absolute mandate that this Court then has to say just because the parents say it’s so, they are presumed to be a hundred percent correct, and that could not be challenged.” The trial judge further opined that in order for the Grandparents to get visitation “two things have to happen. First off, the evidence has to be sufficient by a preponderance of the evidence to rebut the presumption that the parents have the best interest of the children at heart and are doing this out of the best interest as opposed to any other issue.” If the presumption were rebutted, then the second step would be for the court to consider the factors bearing on a best interest analysis. The court concluded that the Grandparents had produced sufficient evidence to rebut the presumption. In particular, the court found that “it was very clear to this Court over the years these Children were part of the Hainings’ life on a fairly regular basis[,] more so frankly than the Court has seen in some grandparent cases. “So, this was not a case of grandparent showing up five years after the child was born saying I want to see the children every month.

There was a relationship, the relationship stopped abruptly, not became of anything relating to the children, but clearly because of a deterioration in the relationship between the Hainings and the Koshkos unfortunately over this incident in October.” (Emphasis added). The court characterized the Grandparents’ communications seeking reconciliation, to which no response was received, as utilizing “everything short of the Pony Express.” Further distinguishing the instant matter from Troxel , the court noted that the position of Parents was that there would be “absolutely no visitation” by the Grandparents. ⁵⁶⁸ The circuit court concluded that it was in the best interests of the Children for there to be some limited visitation with Grandparents, but that, because of the October 2003 rupture, counseling was required. The court ordered the parties to attend four counseling sessions, within thirty days of each other, beginning within fourteen days from the decree. Grandparents were awarded one visitation in every forty-five day period, for four hours on Sunday afternoon.

After the four counseling sessions, one overnight visitation per calendar quarter was substituted for one of the four hour visits. 5 Parents timely appealed. Questions Presented In this Court, Parents raise the following issues: “I. Whether [FL § 9-102] is constitutional under the due process clause of the Fourteenth Amendment. “II. Whether the lower court unconstitutionally applied [FL § 9-102] in granting visitation of the minor children to [the] Grandparents. “III. Whether the lower court erred in giving greater weight to [the Grandparents’] evidence than [the Parents’].” Discussion Maryland’s first grandparent visitation statute was enacted by Chapter 276 of the Acts of 1981.

As amended through Chapter 247 of the Acts of 1991, the statute, then codified as Maryland Code (1984, 1991 Repl.Vol.), § 9-102 of the Family. Law Article, provided: “At any time after the termination of a marriage by divorce, annulment, or death, an equity court may: ⁵⁶⁹ “(1) consider a petition for reasonable visitation by a grandparent of a natural or adopted child of the parties whose marriage has been terminated; and “(2) if the court finds it to be in the best interests of the child, 'grant visitation rights to the grandparent.” By Chapter 252 of the Acts of 1993, FL § 9-102 was amended to its present form: “An equity court may: “(1) consider a petition for reasonable visitation of a grandchild by a grandparent; and “(2) if the court finds it to be in the best interests of the child, grant visitation rights to the grandparent.” In allowing court-ordered visitation where the marriage of the parents is intact, FL § 9-102 is like the GVSs of other states. 6 I. The Parents argue that FL § 9-102, on its face, is unconstitutional under the Fourteenth Amendment’s Due Process Clause. Citing Troxel , they contend that the statute is overly broad because it fails to “contain language that a fit parent is presumed to make decisions in the best interest of ⁵⁷⁰ their [sic ] child and that a court must give special weight to that presumption.” Parents submit that Maryland’s GVS “incorrectly promulgates the ‘best interest of the child’ standard as the sole standard for determining third-party rights of visitation.” Brief of Appellants at 5-6. It is axiomatic that statutes carry a strong presumption of constitutionality.

Edgewood Nursing Home v. Maxwell, 282 Md. 422, 427 , 384 A.2d 748, 751 (1978); City of Baltimore v. Charles Center Parking, Inc., 259 Md. 595, 598 , 271 A.2d 144, 145 (1970); Atkinson v. Sapperstein, 191 Md. 301, 315 , 60 A.2d 737, 742 (1948). Further, statutes “will be construed so as to avoid a conflict with the Constitution whenever that course is reasonably possible.” In re James D., 295 Md. 314, 327 , 455 A.2d 966, 972 (1983) (citing Deems v. Western Maryland Ry., 247 Md. 95, 113 , 231 A.2d 514, 524 (1967)); Williams & Fulwood v. Director, 276 Md. 272, 295 , 347 A.2d 179, 191 (1975). Moreover, to succeed on a facial challenge, a party “must establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 , 107 S.Ct. 2095, 2100 , 95 L.Ed.2d 697, 707 (1987). Maryland courts have interpreted statutes, broad on their face, to include limitations consistent with the United States Constitution, in an effort to uphold legislative intent to the extent reasonably possible, where the statute is challenged as facially unconstitutional.

See Becker v. State, 363 Md. 77, 90-92 , 767 A.2d 816, 823-24 (2001) (construing a drug nuisance abatement statute which granted authority to order “equitable relief” as not allowing the destruction of a building without providing compensation to the owner, so as to avoid “serious questions” about the statute’s constitutionality); Schochet v. State, 320 Md. 714, 725-35 , 580 A.2d 176, 181-86 (1990) (construing statute criminalizing fellatio as not applicable to consensual, noncommercial heterosexual activity in the privacy of the home in order to avoid the “difficult” question of whether applying the statute to such activity was constitutional); Sanza v. Maryland State Bd. of Censors, 245 Md. 319 , ⁵⁷¹ 341, 226 A.2d 317, 329 (1967) (construing a film censorship statute, broad on its face, to apply only to “films and views to be shown for an admission charge, except when shown by public associations or institutions which do not operate for profit,” so as to bring the statute within federal constitutional limits set forth in prior United States Supreme Court decisions). We have no difficulty in concluding that Maryland’s GVS carries a presumption in favor of the parental decision. In doing so, we do not “inferentially manufacture additional components of the statute that do not exist.” Fairbanks, 330 Md. at 47 , 622 A.2d at 125 . In a sense, unsupervised visitation is custody for a very limited time.

In Ross v. Pick, 199 Md. 341, 351 , 86 A.2d 463, 468 (1952), the Court said: “Where parents claim the custody of a child, there is a prima facie presumption that the child’s welfare will be best subserved in the care and custody of its parents rather than in the custody of others, and the burden is then cast upon the parties opposing them to show the contrary.” The rationale for the presumption is that “ ‘the affection of a parent for a child is as strong and potent as any that springs from human relations and leads to desire and efforts to care properly for and raise the child, which are greater than another would be likely to display.’ ” Ross v. Hoffman, 280 Md. 172 , 178 n. 4, 372 A.2d 582 , 587 n. 4 (1977) (quoting Melton v. Connolly, 219 Md. 184, 188 , 148 A.2d 387, 389 (1959)). The seminal case in the Court of Appeals on the construction of Maryland’s GVS is Fairbanks, supra, where the dispute was over the extent of the visitation that the Grandparents should have. The Court held that “Grandparents are not obliged to support their claim by alleging and proving the existence of exceptional circumstances justifying [their] visitation.” 330 Md. at 49 , 622 A.2d at 126 . Rather, “[t]he outcome ... lies within the sound discretion of the trial court, guided solely by the best interests of the grandchild.” Id.

There is nothing inconsistent in Fairbanks with application of a pre ⁵⁷² sumption that the parents’ decision concerning visitation is in the best interest of their child. Before Troxel was decided, this Court recognized that the United States Constitution, as interpreted in a long line of decisions by the Supreme Court of the United States upholding the fundamental right of parents to rear their children, required that the presumption be applied in visitation cases. See Wolinski v. Browneller, 115 Md.App. 285 , 693 A.2d 30 (1997). That ease involved a mother’s objection to court-ordered overnight visitation with grandparents where the mother considered daytime visitation to be appropriate.

Judge Davis, writing for this Court, said: “But proper regard for a parent’s constitutional rights requires that the burden to produce testimony or other evidence discrediting a parent’s proposed visitation schedule be placed upon the grandparents who petition for vested visitation rights. Simply to ignore a parent’s wishes regarding the time his or her child should spend outside the family home, and outside of his or her immediate care and custody, is to trample improperly on the parent’s liberty interest in directing the upbringing of his or her child. Nevertheless, in light of the State’s compelling interest in protecting the child’s welfare and the minimal severity of the intrusion upon parental rights, the presumption in favor of appellant’s schedule may be rebutted by affirmative evidence that the schedule would be detrimental to the child’s best interests.” Id. at 319 , 693 A.2d at 46 . The absence of any reference in Maryland’s GVS to a presumption did not impede recognition of the presumption as a constitutional requirement.

About one month after Troxel was decided, this Court decided Brice v. Brice, 133 Md.App. 302 , 754 A.2d 1132 (2000). Brice was an appeal by a mother who was aggrieved that the circuit court had ordered grandparent visitation in excess of the schedule that the mother considered to be in the child’s best interest. Finding no distinction between Brice and Troxel , this Court reversed. ⁵⁷³ A widower, who objected to the extent of court-ordered visitation between his children and their maternal grandmother, appealed in Herrick v. Wain, 154 Md.App. 222 , 838 A.2d 1263 (2003). The father contended that Maryland’s GVS was unconstitutionally broad and that the trial court had erred by failing to apply the presumption in favor of the father’s decision to limit visitation.

This Court affirmed. After reviewing the evidence, we found it sufficient to rebut the presumption that the father’s decision was in the child’s best interest, id. at 240 , 838 A.2d at 1273 , and that the Fairbanks criteria, see n. 2, supra, “ensure[d] a proper analysis of a grandparent visitation case beyond that which impermissibly occurred in Troxel.” Id. at 236, 838 A.2d 1263 , 838 A.2d at 1271 . The post -Troxel case of In re Tamara R., 136 Md.App. 236 , 764 A.2d 844 (2000), addressed a parent’s objection, on constitutional grounds, to any court-ordered visitation by his daughter with her siblings. The issue arose in a CIÑA case where a juvenile master recommended sibling visitation.

When the father argued on exceptions that he opposed any visitation, and that ordering visitation over his objection would violate his constitutional right to raise his children as he saw fit, the circuit court agreed. This Court reversed and remanded. Alter reviewing Fairbanks, T'roxel, and Wolinski , this Court concluded as follows: “[W]e are faced with the issue of whether Mr. R.’s opposition to visitation is entitled to a presumption that denial of visitation is in the best interests of the children over whom he has custody. We think Troxel compels the court to apply a rebuttable presumption in favor of parents who oppose a non-parent’s petition for visitation with their custodial children.

See Troxel, 120 S.Ct. at 2063-64 . By deciding that Mr. R.’s constitutional rights were violated without considering the evidence other than Mr. R.’s opposition to visitation, the trial court effectively created an irrebuttable presumption that visitation was not in the best interests of the children. In doing so, it erred. If there was sufficient evidence to rebut the presumption that visitation was in the ⁵⁷⁴ children’s best interests, then we must reverse and remand for the court to consider that evidence in making its determination.” Id. at 253-54, 764 A.2d 844 , 764 A.2d at 853 .

In the Court of Appeals, the pre-Troxel case of Maner v. Stephenson, 342 Md. 461 , 677 A.2d 560 (1996), involved a petition for grandparent visitation against the wishes of both parents in an intact nuclear family. The trial court, under a best interest analysis, concluded that there should be no visitation. The grandparents contended on appeal that the circuit court had “improperly deferred” to the parents’ wishes, “thereby imposing a higher burden of proof on the [grandparents].” Id. at 466 , 677 A.2d at 562 . The grandparents also contended for a rebuttable presumption that visitation with them was in the grandchildren’s best interests.

The Court of Appeals affirmed, rejecting the notion that there was a presumption in favor of grandparental visitation. A visitation issue was presented more recently to the Court of Appeals in Fruse v. Barnhart, 379 Md. 100 , 840 A.2d 114 (2003). The appellant in that case was the mother of three children who had been placed with foster caregivers by the appellant’s mother while appellant was incarcerated. The appellees took two of the children, Brett and Justin.

On the appellant’s release, the appellees returned Brett to the appellant, but not Justin. Within days thereafter, the appellees sought court-ordered custody of Brett. The trial court found the appellant to be a fit mother and awarded custody of Brett to her, but, in addition, established certain conditions which the Court of Appeals found to be illegal. Among these was that visitation between Brett and Justin take place at the appellees’ home, without the third child being present.

The appellant wanted visitation at her home, with the third child present. In resolution of that, and other more complex issues in the Frase case, the Court of Appeals reviewed