Sumpter v. Sumpter

Concurring and Dissenting Opinion by McDONALD, J., which WATTS, J., joins. I agree with much, though not all, of the Majority opinion. In particular, I share the Majority’s concerns regarding the written policy of the Circuit Court of Baltimore City on access to court-ordered custody investigation reports. It is possible that application of that policy could, in some instances, result in prejudice to a party.

But I would not apply a “presumption of prejudice” in the circumstances of this case. Mother’s 1 counsel should be commended for shining a light on this important issue. As the Court of Special Appeals indicated 30 years ago, 2 a litigant in a custody case has a right to have access to the circuit court’s custody investigation report. But there is apparently some confusion in the Circuit Court for Baltimore City concerning its policy on access to such reports, and there appear to be disparate practices in other jurisdictions.

As Mother’s counsel eloquently argued before us, this confusion may at times especially disadvantage ⁹⁴ self-represented litigants. These efforts of counsel, who represent Mother pro bono, exemplify the best of the legal profession and hopefully will improve the quality of justice in our courts. What to do about it in this case is another question. Our appreciation for counsel’s service to the legal system does not mean that the decision of the Circuit Court concerning custody and visitation is unjust.

The record before the Circuit Court provided an ample basis for the Circuit Court’s decision concerning custody and visitation. 3 The relevant facts are summarized in the unreported opinion of the Court of Special Appeals and in this Court’s prior decision. See Sumpter v. Sumpter, 427 Md. 668, 673-75 , 50 A.3d 1098 (2012). These facts included, among other things, sexual abuse of the children while in Mother’s custody, her enlistment (while she had custody of the children) of a convicted murderer to locate and assault a former boyfriend, and her contemporaneous convictions for assault and theft. After moving out of state and sending the children back to Maryland to live with her husband, Mother attempted to regain physical custody through deception and abduction.

Unsurprisingly, the Circuit Court concluded that she had demonstrated “extremely poor judgment.” It is not at all clear that Mother suffered any prejudice from the Circuit Court’s apparent misunderstanding of the access policy. Both of Mother’s counsel were given advance access to the custody investigation report, which did not make a custody recommendation, for an hour and a half. Most of the material in the report consisted of records already available to Mother. Counsel were able to use the report at the hearing to cross-examine the author of the report.

In the Circuit Court, ⁹⁵ Mother’s counsel described the report as “entirely cumulative” of the testimony of the report’s author. As the Court of Special Appeals noted, Mother’s counsel has not argued that any of the attachments to the report contain anything that is “untrue, or misleading, or that ... needed to be rebutted or supplemented.” In the recent argument before us, Mother’s counsel focused more on the disadvantage a self-represented litigant might experience under the Circuit Court’s policy, rather than argue any specific prejudice to his client. As the Majority opinion notes, before this Court reverses a decision, a complaining party must normally show prejudice— i.e., an “error that influenced the outcome of the case.” Majority op. at 82-88, 86-87, 80 A.3d at 1050, 1052-53. And the effect on the outcome must be “probable, not just possible.” Id. at 87-88, 80 A.3d at 1053.

The Majority opinion overcomes this standard by employing a “presumption of prejudice.” Majority op. at 88-89, 80 A.3d at 1053-54. As I understand it, the Majority would not apply a presumption of prejudice