Shurupoff v. Vockroth

WILNER, Judge. In Ross v. Hoffman, 280 Md. 172 , 372 A.2d 582 (1977), we announced standards and guidelines for the judicial resolution of child custody disputes between the child’s parent and someone who is not the child’s parent — a third party. Synthesizing holdings and statements from earlier cases, we made clear, first, that “the best interest of the child standard is always determinative in child custody disputes,” including those kinds of cases. Id. at 178 , 372 A.2d at 587 .

More particularly, we held that, in disputes between a parent and a third party, “it is presumed that the child’s best interest is subserved by custody in the parent,” but “[t]hat presumption is overcome and such custody will be denied if (a) the parent is unfit to have custody, or (b) if there are such exceptional circumstances as make such custody detrimental to the best interest of the child.” Id. at 178-79 , 372 A.2d at 587 . 1 We then stated: “[I]n parent-third party disputes over custody, it is only upon a determination by the equity court that the parent is ⁶⁴¹ unfit or that there are exceptional circumstances which make custody in the parent detrimental to the best interest of the child, that the court need inquire into the best interest of the child in order to make a proper custodian disposition.” Id. at 179 , 372 A.2d at 587 . Those statements and conclusions have been confirmed by us on a number of occasions and, except as stated later in this Opinion, remain expressive of the Maryland law. See Sider v. Sider, 334 Md. 512, 531 , 639 A.2d 1076, 1085 (1994); Monroe v. Monroe, 329 Md. 758, 773-74 , 621 A.2d 898, 905 (1993). This appeal arises from a battle over the custody of Kimberly S., nearly twelve years old at the time of trial.

The disputants are Kimberly’s father (petitioner here) and her maternal grandparents, the Vockroths. After hearing seven days of testimony and considering the wishes expressed by Kimberly, the Circuit Court for Harford County granted custody of Kimberly to the grandparents, with whom she had been living for about a year. Petitioner complains that (1) the court did not apply the proper standard of proof in determining that the presumption announced in Ross v. Hoffman had been rebutted, (2) the court misapplied the Ross v. Hoffman standards in any event, and (3) those standards are in need of some modification and clarification. We agree that some clarification is necessary, and we shall provide it, but we do not agree that the court applied an incorrect standard of proof, that it erred in its application of the Ross standards, or that its ultimate conclusion constituted legal error or an abuse of discretion.

BACKGROUND Kimberly is the child of petitioner and Pamela Vockroth. Petitioner and Pamela met and began living together in 1980, ⁶⁴² when both were employed in the Washington, D.C. area. In January, 1985, they moved to Michigan. In early 1987, Pamela announced that she was pregnant.

The relationship at that time was somewhat strained, and, indeed, petitioner initially doubted whether he was the father and urged Pamela to abort the pregnancy. She refused and, in the spring, returned to her parents’ home in Maryland. Kimberly was born here in October, 1987. She and Pamela lived with the Vockroths until December, 1988, when they moved into an apartment about 10 minutes away.

The Vockroths cared for Kimberly, both when she was staying with them and after she and Pamela moved. Petitioner was not immediately informed of Kimberly’s birth, and, although he and Pamela discussed reconciliation on a number of occasions, he apparently did not see the child until she was a year old. Thereafter, he had only sporadic contact with Kimberly and did not provide regular support for her. In April, 1989, petitioner and Pamela married but remained for a time in their separate residences.

Pamela and Kimberly moved to Michigan in August. Pamela did not seek employment but instead stayed home to care for Kimberly. Once again, the relationship began to deteriorate, apparently over Pamela’s drinking and excitable behavior. There was evidence that Pamela was a chronic abuser of alcohol; there was also evidence that she was a manic-depressive.

In May, 1990, without notice, she and Kimberly returned to Maryland and took residence in her parents’ home. Petitioner visited Pamela from time to time and there was some telephone contact, but he had little contact with Kimberly. During this period, the Vockroths were deeply involved with Kimberly and provided financial support for her and Pamela. In December, Pamela and Kimberly moved to a nearby apartment.

The Vockroths continued to support them and remained involved with the child, taking her to medical and dental appointments and participating in various other activities with her. In April, 1991, after but two years of marriage, Pamela and petitioner were divorced. The judgment of the Michigan court gave them joint legal custody of Kimberly but awarded sole physical custody to Pamela. It made no provision for ⁶⁴³ specific visitation but did order petitioner to pay child support, which he then began faithfully to do.

Petitioner, a patent lawyer, visited with Kimberly on a number of occasions, but only when business or some other activity took him to the Maryland area, and those visits lasted only a few hours. During the period 1992-1994, petitioner took Kimberly on two trips to Florida to visit his parents, on two overnight trips to New York, and on two apparently overnight trips to an amusement park. Additionally, in 1994, Kimberly spent six days with him in Michigan. During that visit, she wrote a number of letters to the Vockroths in which she complained that she was homesick and unhappy.

In 1992, Pamela met and began living with Charles Hall. Eventually, the household 'Consisted of Pamela, Kimberly, Hall, and Hall’s two daughters, one of whom was Kimberly’s age and one a year older. Hall helped Pamela with her drinking problem and also helped to raise Kimberly. He and the child became close enough for Kimberly to begin referring to Hall as “daddy.” She also became close with Hall’s children.

The Vockroths remained a part of Kimberly’s life, visiting her several times a week and taking her to their home on weekends. Petitioner made no attempt to alter the custody arrangement, even when Pamela and Hall were evicted from their apartment and were forced to live, for a time, in a small trailer in need of repair. Nor, except for a visit to New York in 1995, did he have any extended visits with the child in 1995, 1996,1997, or 1998. In 1995, petitioner met Maria and, within six months, began living with her.

Shortly thereafter, Maria became pregnant; the baby was born in September, 1996. Petitioner did not disclose the child’s existence to Kimberly until 1998. In the summer of 1997, Kimberly informed petitioner that she wanted to visit him in Michigan but, because petitioner had just started a new, and stressful, job, he was unable to accommodate her. Meanwhile, Kimberly was spending every other weekend and several weeks during the summer with the Vockroths, who also took her on other excursions.

She had ⁶⁴⁴ her own room at their house. Petitioner visited Kimberly in Maryland six to eight times in 1997 and 1998. On August 11, 1998, Pamela suffered a stroke which, twelve days later, proved fatal. Immediately after the stroke, Kimberly went to stay with the Vockroths.

Petitioner was notified and came to Maryland in connection with a planned business trip. He saw Kimberly several times during the week but did not exercise any overnight visitation. After consulting an attorney in Michigan, however, he did discuss with the Vockroths taking Kimberly back to Michigan. One of those discussions occurred immediately after Pamela’s funeral, at the Vockroths’ home.

The testimony was in some dispute regarding that conversation, but it apparently was a pivotal event. It is clear that, after the funeral, petitioner went to the Vockroth home, with their permission, and spoke privately with Kimberly in the kitchen. He either asked her whether she wanted to return with him to Michigan (his version) or told her that he was taking her (her and the Vockroths’ version), but, in either event, she kept saying “no, no, no” and began to cry. At that point, Mrs. Vockroth intervened and had Kimberly leave the room.

When Mr. Vockroth entered, Mrs. Vockroth left the room to console Kimberly, and petitioner and Mr. Vockroth continued the conversation. It was clear that Kimberly was distraught, the Vockroths were upset, and the battle lines were drawn. The Vockroths were no longer supportive of contact between Kimberly and petitioner and acted to make such contact difficult. The trial court faulted the Vockroths for their conduct, which it found inappropriate.

On August 28, within days after that argument, the Vockroths filed a complaint in the Circuit Court for Harford County for immediate custody of Kimberly and other ancillary relief. After an ex parte proceeding, apparently without notice to petitioner, the court granted them temporary custody and set a hearing on the matter. Petitioner then filed a similar action in Michigan and contested the jurisdiction of the Maryland Circuit Court. At a hearing on October 5, 1998, the ⁶⁴⁵ Circuit Court struck its ex parte order upon an agreement that, pending resolution of the jurisdictional issue, Kimberly would remain with the Vockroths.

After a conference with the Michigan court, the Circuit Court assumed jurisdiction, and petitioner filed a counter-complaint for custody in that action. A guardian was appointed for Kimberly. As noted, the court heard seven days of testimony, and it received many documents. Among the documents received was a report from the Oakland County [Michigan] Friend of the Court, apparently an official or semi-official advisor to the Michigan Circuit Court, regarding visitation issues that arose in connection with the 1991 divorce.

The Report noted that petitioner did not even see Kimberly until she was a year old, that he “has had little regular and consistent involvement in the child’s life,” and that based on petitioner’s assertions, it was reasonable to assume that “the child has very little bonding with the father.” It concluded that “[t]he burden is on the father to establish a meaningful relationship with the child before separating her from her mother.” The court also received an evaluation from its own Office of Family Court Services. That report summarized the family history and the various allegations of the parties, but most telling was the social worker’s summary of his conversation with Kimberly, which he found to be honest and reliable. When asked about “life in general,” she said that the Vockroths “treat me like a daughter,” that “[t]hey fix my meals— make sure I do my homework. They have raised me.

They do a lot for me — take me places — buy things for Christmas— they make sure things are good. They are my version of what it means to be good parents.” In contrast, she said of petitioner that he “does not know things that I like — he’s never bothered with me for 11 years — he really doesn’t know what I like. I really don’t know him, he keeps to himself. I can’t love him if I don’t know him.” The author concluded that the 1990 Friend of the Court Report remained the standard for the behavior that petitioner needed to demonstrate toward his daughter.

The judge, himself, interviewed Kimberly in chambers, and she expressed similar sentiments. ⁶⁴⁶ She said that she had been with the Vockroths all her life and that they “are like my second mom and dad.” She told the court, “Well, I want to stay here, but he wants me to go out there, and I don’t know him ... I hardly ever see him, and all of a sudden he wants to be dad, and I don’t know, I rather stay here because this is my home. I lived here all my life. That’s my grandparents!’] house was the only house that I really ever known to be a home.” Upon all of the evidence, including that favorable to petitioner, the court concluded that Kimberly should remain with the Vockroths.

It acknowledged that, in a dispute between a parent and a non-parent, there is a presumption that the best interest of the child is served by placing the child with thé parent and that the presumption could be rebutted only if (1) the parent is unfit, or (2) exceptional circumstances existed so that custody with the parent would not be in the child’s best interest. It found no evidence that petitioner was unfit. In examining whether there were exceptional circumstances that would make awarding custody to petitioner detrimental to Kimberly’s best interest, the court discussed and made findings with respect to the various factors that we mentioned in Ross v. Hoffman as being of probative value: “[T]he length of time the child has been away from the biological parent, the age of the child when care was assumed by the third party, the possible emotional effect on the child of a change of custody, the period of time which elapsed before the parent sought to reclaim the child, the nature and strength of the ties between the child and the third party custodian, the intensity and genuineness of the parent’s desire to have the child, the stability and certainty as to the child’s future in the custody of the parent.” Ross v. Hoffman, supra, 280 Md. at 191 , 372 A.2d at 593 . As to the first factor, the court noted that petitioner resided with Kimberly for only nine months in 1989-90 and that his contacts with her since then had been minimal.

The court was critical of petitioner for not including Kimberly more in his life and not making greater efforts to visit with her. It concluded ⁶⁴⁷ that, in petitioner’s “mindset,” Kimberly was “distant,” that she was “not a real part of his life” and “was not family.” On the second factor, the court observed that, although Kimberly was nearly eleven when the Vockroths assumed full care of her following Pamela’s death, they had been very active in her life since she was born and had acted “like back-up parents.” Addressing the third and fourth factors, the court noted that, petitioner made no effort to seek custody while Pamela was alive and, indeed, “shouldered no responsibilities for Kim, except for his paying child support,” but that he did act promptly upon Pamela’s death. His current desire to have custody, the court said, was genuine and intense. On the next two factors — the nature and strength of ties between Kimberly and the Vockroths and the possible emotional effect on Kimberly if custody was changed — the court found that Kimberly was emotionally tied to the Vockroths.

It concluded that Mr. Vockroth and Mr. Hall had been the father figures in her life and that she remained close to her two cousins (the children of Pamela’s brother) and to Hall’s two daughters. The court largely dismissed the concerns expressed by petitioner, Maria, and a Michigan psychologist retained by petitioner regarding Kimberly’s emotional status and noted that, if custody were given to petitioner, on top of the loss of her mother, with whom she had been very close, Kimberly would lose “all anchors of stability, her friends, all of her relatives, her parent figures, her school environment.” Keying on evidence of encounters and her behavior and feelings during her visit to Michigan, the court pointed out that she would be going to a totally new environment “into a family unit that is just forming where she doesn’t know the father, the sister, or the stepmother figure, where she is viewed with suspicion, where she has been accused, in essence, of lying, of being sneaky, where they don’t trust her around her sister [petitioner’s child with Maria], where the sister is the apple of dad’s eye, and where Maria did not come across as very warm towards Kim, and frankly, [petitioner] himself never expressed his love for Kim from the stand.” In the Vockroth’s home, by ⁶⁴⁸ way of contrast, Kimberly “is very much of a success story and viewed very positively.” Turning to the last of the enumerated factors — certainty and stability if custody was given to petitioner — the court noted that the Vockroths were in their late 60’s, that they had done little to encourage contact between Kimberly and her father, and that they may not recognize Kimberly’s need for counseling, but it observed also that, although stable and secure financially and more sensitive to the child’s need for counseling, petitioner had never really been a parent to her. He is, the court, said, “an untried entity, and to date his actions indicate his own lack of competence being a parent or his indifference to it.” The court observed that he was making less than a real effort to solidify his relationship with Maria, with whom he had put off marriage, and concluded that he “does not present as much of a model for family values, love or commitment, and the Court questions if that is going to change.” Considering all of. those factors, the court determined that “it is in the best interest of Kimberly to keep her here in Maryland with the [Vockroths].” Because it believed that, if directed to do so, the parties would be able to work together, the court ordered joint legal custody in petitioner and the Vockroths, primary residence with the Vockroths, and liberal visitation for petitioner in accordance with a schedule enunciated by the court. The court added that it would retain jurisdiction to modify that arrangement if the Vockroths failed to work with petitioner to foster a parent-child relationship or if petitioner failed to follow through with his obligations.

Petitioner appealed that judgment to the Court of Special Appeals which, in an unreported opinion, affirmed. The intermediate appellate court concluded that (1) to rebut the presumption in favor of parental custody, it was sufficient to prove parental unfitness or exceptional circumstances that would make, parental custody detrimental to the child’s best interest by a preponderance of evidence, (2) the trial court applied the Ross v. Hoffman standards correctly, and (8) the ⁶⁴⁹ trial court did not abuse its discretion in awarding joint legal custody with residential custody in the Yockroths. DISCUSSION Standard of Proof From cases involving the termination of parental rights (TPR), through either adoption or guardianship proceedings, petitioner draws and asserts the principle that a parent has a fundamental liberty interest, protected by the Fourteenth Amendment to the Constitution, to raise his or her children and that any justification for depriving a parent of that right must be supported by clear and convincing evidence. He treats a custody battle between a parent and a non-parent in the same manner as a TPR proceeding, as placing in jeopardy the parent’s right to raise the child, and thus insists that the same standard of clear and convincing evidence should apply if the Ross v. Hoffman presumption favoring the parent is to be found rebutted and custody is to be awarded to the non-parent.

The trial court, he urges, failed to apply that standard but instead acted only upon a preponderance of the evidence. To the extent the Maryland law allows such a decision to be founded upon a mere preponderance of evidence, he claims, that law deprives the parent of due process of law and is therefore invalid. As a preliminary matter, we note our inability to find anywhere in the record that petitioner raised this issue in the Circuit Court. Nothing was said about the standard of proof to be applied, either by the parties or by the court.

It may well be that, in making his findings and ultimate decision, the judge did apply a preponderance standard, but there is no evidence that he did or that he was asked to apply any other standard. Nonetheless, because the Court of Special Appeals addressed the issue, we shall address it as well. The nature of petitioner’s argument has been noted. In the context of attempts to terminate all of a natural parent’s parental rights, through proceedings for adoption or guardianship with the right to consent to adoption, the Supreme Court ⁶⁵⁰ has made clear that those rights are fundamental ones that have Constitutional protection and that they may be abrogated only when a paramount need to do so is established by clear and convincing evidence.

The Supreme Court has long recognized the right of a parent to raise his or her children as a fundamental one protected by the due process clause of the Fourteenth Amendment. See cases beginning with Meyer v. Nebraska, 262 U.S. 390 , 43 S.Ct. 625 , 67 L.Ed. 1042 (1923), extending, among other intermediate cases, through Prince v. Massachusetts, 321 U.S. 158 , 64 S.Ct. 438 , 88 L.Ed. 645 (1944), Stanley v. Illinois, 405 U.S. 645 , 92 S.Ct. 1208 , 31 L.Ed.2d 551 (1972), and Santosky v. Kramer, 455 U.S. 745 , 102 S.Ct. 1388 , 71 L.Ed.2d 599 (1982), to, most recently, Troxel v. Granville, 530 U.S. 57 , 120 S.Ct. 2054 , 147 L.Ed.2d 49 (2000). We have echoed that principle as well, on many occasions. The one Supreme Court case actually touching on the standard of proof required when the State seeks to deprive a parent of that right was Santosky v. Kramer, supra, and that case bears some examination.

Before the Court was a New York TPR statute that authorized the State to terminate all parental rights and free a child for adoption upon proof, by a preponderance of the evidence, that the child had been permanently neglected. The judgment in such a case, the Court noted, “denies the natural parents physical custody, as well as the rights ever to visit, communicate with, or regain custody of the child.” Santosky, 455 U.S. at 749 , 102 S.Ct. at 1392 , 71 L.Ed.2d at 603 . Whether due process requires the factual predicate for such a judgment to be established by more than a mere preponderance of the evidence depended, the Court held, on a balancing of the three factors set forth in Mathews v. Eldridge, 424 U.S. 319 , 96 S.Ct. 893 , 47 L.Ed.2d 18 (1976)—the private interests affected by the proceeding, the risk of error created by the State’s chosen procedure, and the countervailing governmental interest supporting use of the challenged procedure. ⁶⁵¹ The focus of that balancing was on the function of a standard of proof, which the Court defined as the degree of confidence society believes a fact finder should have in the correctness of factual conclusions that the fact-finder draws in a particular kind of adjudication. Santosky , at 754-55, 102 S.Ct. at 1395 , 71 L.Ed.2d at 607 (quoting Addington v. Texas, 441 U.S. 418, 423 , 99 S.Ct. 1804, 1808 , 60 L.Ed.2d 323, 329 (1979)) and In re Winship, 397 U.S. 358, 370 , 90 S.Ct. 1068, 1076 , 25 L.Ed.2d 368, 379 (1970) (Harlan, J., concurring).

The preponderance of evidence standard, the Court noted, indicates society’s “minimal concern with the outcome” and a conclusion that the litigants should “share the risk of error in roughly equal fashion.” Santosky, 455 U.S. at 755 , 102 S.Ct. at 1395 , 71 L.Ed.2d at 607 (quoting Addington, supra, at 423 , 99 S.Ct. at 1808 , 60 L.Ed.2d at 329 ). On the other end of the spectrum was proof beyond a reasonable doubt, applicable in criminal cases where, because of the magnitude of the private interest, that interest must be protected by a standard of proof “designed to exclude as nearly as possible the likelihood of an erroneous judgment.” Id. (quoting Addington v. Texas, supra). The intermediate standard of clear and convincing evidence is mandated “when the individual interests at stake in a state proceeding are both ‘particularly important’ and ‘more substantial than mere loss of money.’ ” Santosky, 455 U.S. at 756 , 102 S.Ct. at 1396 , 71 L.Ed.2d at 608 (quoting Addington, supra).

Turning to the three Mathews v. Eldridge factors, the Court held the private interest affected by a TPR proceeding to be a “commanding” one. Id. at 758, 102 S.Ct. at 1397 , 71 L.Ed.2d at 609 . It explained that, in such a proceeding, the State is the adversary actor and seeks not merely to infringe the parent’s fundamental liberty interest in raising his or her child but to end it, noting that if the State prevails in a TPR case, “it will have worked a unique kind of deprivation.” Id. at 759 , 102 S.Ct. at 1397 , 71 L.Ed.2d at 610 (quoting Lassiter v. Department of Social Services, 452 U.S. 18, 27 , 101 S.Ct. 2153, 2160 , 68 L.Ed.2d 640, 650 (1981)). That first factor, therefore, “weighted] heavily against use of the preponderance standard ⁶⁵² at a state-initiated