Volodarsky v. Tarachanskaya

WILNER, J. Maryland Code, § 9-101 of the Family Law Article (FL) requires, in any custody or visitation proceeding, that, if the court has “reasonable grounds to believe” that a child has been abused or neglected by a party to the proceeding, the court must determine whether abuse or neglect is likely to occur if custody or visitation rights are granted to that party. The statute goes on to state that, unless the court specifically finds that there is no likelihood “of further child abuse or neglect by the party,” the court must either deny custody or visitation rights to that party or approve a supervised visitation arrangement that assures the safety and physiological, psychological, and emotional well-being of the child. In this custody and visitation case emanating from the Circuit Court for Baltimore County, conflicting evidence was presented as to whether the father of the child had, in some ²⁹³ way, sexually abused the child. Judge Cox, after considering that evidence and making certain credibility determinations, announced that she was not persuaded by a preponderance of the evidence that the father had abused the child, although, for other reasons not contested in this appeal, she granted custody to the mother and established a supervised visitation arrangement for the father.

In an appeal by the mother, the Court of Special Appeals held that Judge Cox erred in applying a preponderance standard in weighing the evidence of abuse. It concluded that the statute requires only “reasonable grounds to believe” that abuse occurred, and that a determination of reasonable grounds does not require that the court believe it more likely than not that the abuse occurred. See Tarachanskaya v. Volodarsky, 168 Md.App. 587 , 897 A.2d 884 (2006). The Court of Special Appeals was wrong.

BACKGROUND We would be overly kind to the parents if we characterized this most unfortunate case, with charges and counter-charges of physical and sexual child abuse, simply as bitter and hotly contested. Both of them are emigres from Russia. The mother, Kira Tarachanskaya, came to the United States with her husband, Alex, and their pre-teen son, Arthur, in August, 1996. In November, 1997, she and Alex separated.

The separation was accompanied by her seeking a domestic violence protective order against Alex, accusing him of being abusive to Arthur. It is not clear what happened with that case. Ms. Tarachanskaya then commenced an extra-marital affair with Mikhail Volodarsky. In March, 1998, she and Arthur moved in with Volodarsky, and not long thereafter, she became pregnant with Greta, the subject of this case. 1 The couple argued over whether Kira should terminate the pregnancy, which she wanted to do, and they eventually separated.

As she did upon separating from her husband, Kira sought a ²⁹⁴ domestic violence protective order against Mikhail, based on complaints of threatening conduct. A protective order was issued, apparently by consent. Greta was born in January, 1999. Kira then reconciled with Alex, and she, Arthur, and Greta have since remained in that household.

This litigation began in March, 1999, when Mikhail filed a complaint seeking joint legal custody of and liberal visitation with Greta. 2 He complained that Kira had consistently failed to permit reasonable visitation. Kira answered and filed a counter-complaint for custody, in which she alleged that Mikhail had engaged in a pattern of abusive behavior and threats toward her, her mother, Arthur, and Greta (prior to her birth), that the protective order issued by the District Court in September, 1998, had directed him not to abuse or make any attempt to contact them, and that she was in fear for the safety of Greta if the child were left in Mikhail’s care. It appears that, pending a hearing, the parties reached an interim agreement for visitation by Mikhail, which the Circuit Court ultimately found was “honored more in the breach, as [Kira] resisted any contact between the father and the child.” At the custody hearing that occurred before Judge Cox in September, 1999, the evidence demonstrated that Kira was distrustful of Mikhail and evaded all efforts at contact. She hid the fact of Greta’s birth from Mikhail and resisted even brief periods of supervised contact.

Mikhail, on the other hand, had limited parenting skills and no experience in caring for an infant. Because the parties had shown no ability to co-parent, the court awarded sole legal and physical custody of Greta to Kira, subject to bi-weekly visitation for two-hour periods at Mikhail’s apartment, with a friend or relative present to facilitate the drop-off and supervise the initial part of the visit, and to a review in 90 days to consider increased access. Both parents were ordered to participate in parenting classes, and a home study was requested. ²⁹⁵ The home study confirmed a “significant level” of conflict, distrust, and retaliation between the parties. It noted Kira’s continued resistance to unsupervised visitation and Mikhail’s lack of objectivity in assessing his parenting skills and his resentment over the restrictions on access to Greta.

The report recommended a gradual increase in visitation and enhanced parenting skill classes for Mikhail. After a review hearing in January, 2000, an agreement was reached to increase weekend visitation to include an overnight on Fridays. In June, 2000, Kira sought to have Mikhail held in contempt for failure to pay child support. Mikhail filed petitions to reduce the child support and to have Greta’s last name changed to Volodarsky.

Apparently, Kira was not notified of the name-change petition, which was nonetheless granted. 3 Mikhail was held in contempt, arrearages were assessed, and some minor changes were made to the support order. Tensions continued to escalate during the Fall of 2000. Kira complained that Greta returned from visits hungry, bruised, and smelling of smoke. On one occasion, in October, Greta returned with a bruise on her thigh; Kira took her to the hospital, which led to an investigation by the Department of Social Services (DSS).

While that was pending, Kira refused to allow any visitation, which resulted in a contempt petition by Mikhail. The court ordered interim supervised visitation. Following a hearing in December, the court found no evidence of physical abuse and ordered a resumption of visitation. The parties submitted an agreed visitation schedule, which, in February, 2001, the court approved.

In September, 2001, Mikhail filed a pro se petition for an ex parte protective order, alleging physical abuse of Greta by Alex. That proceeding is not in the record before us, but Judge Cox later determined that the petition had been dismissed by a different judge because of “a lack of familial ²⁹⁶ relationship between the parties.” In February, 2002, Mikhail contacted DSS and charged Alex with sexually abusing Greta. In April, Kira filed a complaint with DSS charging Mikhail with sexually abusing Greta and, at the same time, again unilaterally suspended all visitation. That produced a contempt petition and a motion by Mikhail to modify visitation and a counter motion by Kira alleging sexual abuse by Mikhail.

A hearing on the contempt petition took place in June, 2002, again before Judge Cox. By then, the DSS investigation of both abuse complaints had been completed. The DSS report “ruled out” abuse by Alex and concluded that the allegation of abuse by Mikhail was “unsubstantiated.” 4 The report stated that the repeated allegations of abuse and neglect made by both parents “are clearly not in the best interest of Greta” and recommended that independent counsel be appointed for the child. Following the hearing, Kira was found in contempt for terminating the court-ordered visitation.

Pending a modification hearing, overnight visits with Mikhail were suspended, and, to eliminate the potential for further unsubstantiated claims and to reduce the level of distrust, the court required that a woman be present at visits. The court ordered counseling services for Greta and psychiatric evaluations of the parents by the Court Psychiatrist. The psychiatric report was delivered to the court in November, 2002. It found nothing in Mikhail’s history to question his fitness as a parent and, although identifying slight depression and somewhat obsessive qualities, found no evidence of significant psychopathology that would warrant individualized treatment.

The report stated that Kira had “little insight into ²⁹⁷ her part in the current situation” but saw all of the difficulties as related to Mikhail. It described her as “manipulative to get her own way” but found nothing to suggest that she was unfit and no significant psychopathology. The report found from the history of the case that Kira’s “use of the Courts will continue” and that her behavior in that regard was “detrimental to the child.” The Court Psychiatrist, noting that both parents had begun videotaping their interactions with the child, recommended joint counseling services for the parents and that Greta’s attorney evaluate all claims made by either parent. Greta’s attorney attempted to arrange an independent assessment and counseling for the child, but the effort was complicated by the fact that, though three years of age, Greta did not speak English.

Once again, an interim custody and visitation arrangement was agreed to by the parties and confirmed by the court. Overnight visitation with Mikhail was to resume, joint counseling of the parents was to begin, the parties agreed to stop taping their interactions with the child, and Greta was to be enrolled in a pre-school program so that she could learn English. Trial was postponed until May, 2003. In December, 2002, Kira’s attorney withdrew his appearance.

Although Kira was informed of a status conference scheduled in April and the need for her to attend, she failed to appear. The court advised her by mail of the need to obtain counsel or appear personally at all scheduled proceedings, including the trial that was set for the end of May. Kira appeared without counsel on the first day of trial but, following a chambers conference, left the courthouse and did not return. The trial, before Judge Cox, proceeded in her absence.

The court heard from Dr. Robert Snow, the clinical social worker who conducted an evaluation and counseling of Greta at her attorney’s request and received input from the attorney. In his written report, Dr. Snow observed that both parents were competing for custody of Greta and had placed her in a “loyalty conflicted position.” He concluded that further investigation of child sexual abuse was not indicated ²⁹⁸ “as Greta does not behaviorally present symptoms of sexual abuse and both parents have rescinded their belief in such.” Based on the evidence taken at the hearing, Judge Cox, in an order entered in June, 2003, awarded legal custody to Mikhail and split physical custody “on a 4/3 schedule, alternating weeks, with a shared holiday schedule.” As Judge Cox subsequently noted in the memorandum opinion at issue in this appeal, “[a]lmost immediately after the modified custody Order was entered, [Kira] appeared in District Court for Baltimore County in Catonsville and filed an Ex Parte Domestic Violence Petition seeking relief on behalf of her daughter, based upon allegations of sexual abuse by [Mikhail].” The District Court entered a temporary protective order, referred the matter to DSS for investigation, awarded interim custody to Kira, and entered a no-contact order with respect to Mikhail. Based on a joint motion by Mikhail and Greta’s attorney, the domestic violence case was transferred to the Circuit Court and set for hearing before Judge Cox. After hearing testimony from Kira, her witness, and witnesses from DSS and the police department, Judge Cox denied the protective order.

Visitation continued in accordance with the established schedule until March, 2004, when Kira, through new counsel, filed another domestic violence petition alleging essentially the same sexual abuse of Greta by Mikhail that had previously been alleged. This petition was filed in the Circuit Court, but, notwithstanding that Judge Cox had been presiding over the custody and visitation proceedings, that Greta had been represented by counsel since July, 2002, and that Mikhail also had counsel of record, the petition was presented to another judge and no notice to counsel of record was given. Their first awareness of the proceeding was their receipt of an interim protective order signed by the other judge. When this came to light, the matter was transferred to Judge Cox, who conducted a hearing on March 29.

It was then agreed, through counsel, that Greta would commence regular psychotherapy sessions with Dr. Snow, that the psychologist newly retained by Kira’s attorney, Dr. Joyanna Silberg, would con ²⁹⁹ duct a separate evaluation of the sexual abuse allegations, which she felt had not been adequately addressed, and that visitation would continue pursuant to the June, 2003 order. At the initial assessment meeting with Drs. Snow and Silberg, Greta made more graphic sexual disclosures and exhibited significant distress when in Mikhail’s presence, in contrast to her earlier behavior. Upon the recommendation of Drs.

Snow and Silberg, Kira then sought to suspend all visitation. An emergency hearing was scheduled, but just before that hearing Mikhail, through counsel, agreed to suspend visitation voluntarily based on the therapists’ recommendation until the sexual abuse investigation was completed. Dr. Silberg completed her investigation and prepared a report in July, 2004. She recounted a variety of disclosures by Greta regarding sexual abuse by Mikhail and concluded that the child’s ability to describe those events “was of such clear detail, that it is impossible to imagine a source for this other than direct experience with sexual events of this type.” Dr. Silberg’s ultimate conclusions were that Greta was very frightened of her father, the child’s description was “so vivid and accurate that only real experience could produce these reports,” Kira was not coaching the child but had acted in Greta’s best interest, Mikhail was not credible, his behavior fit the pattern of ex-partners who use intimidation to frighten ex-spouses, on-going contact between Greta and Mikhail would be psychologically and potentially physically dangerous to the child, and Greta suffered from post-traumatic stress disorder and would protest any visitation with Mikhail.

In light of this report, the court placed Greta temporarily in the physical custody of Kira, suspended visitation with Mikhail, and ordered that Greta remain in counseling, all pending trial on the merits. A copy of Dr. Silberg’s report was sent to DSS, which prompted a new investigation by Rosalind Dizard, of its Family Crimes Unit. Ms. Dizard issued her report in January, 2005, and came to a very different conclusion than Dr. Silberg. She “ruled out” any abuse by Mikhail and concluded that “parental alienation is the primary dynamic ³⁰⁰ within this family system and that it is more likely that [Greta] was not sexually abused by [Mikhail].” Judge Cox conducted a six-day trial in the matter commencing in February, 2005 and extending into March and May of that year.

Kira was represented by counsel. Judge Cox heard testimony from Dr. Snow, Dr. Silberg, Ms. Dizard, and Mikhail, and in July, 2005, filed a 28-page memorandum opinion setting forth the history of the case, a discussion of the expert opinions, and her findings and conclusions. She noted that the specific disclosures by Greta clearly indicated sexual knowledge or exposures well beyond the normal or appropriate range of experience for a young child and that the manner in which the child expressed herself did not tend to suggest coaching. Judge Cox also observed that the manner of expression, inconsistencies in the child’s reporting, and different impressions formed by the experts had led them to reach “very different conclusions concerning the strength of the evidence that sexual abuse occurred, or the identification of the perpetrator of any such abuse.” The judge then summarized the testimony and conclusions of Dr. Silberg, Dr. Snow, and Ms. Dizard and recorded her own impressions and conclusions.

Dr. Silberg’s ultimate conclusion was that Greta had been sexually abused and that, although it was possible that someone other than Mikhail was responsible, it was far more likely that Mikhail had committed the abuse. She found Kira to be responsive and protective of Greta and Mikhail to be manipulative, too confident, and inconsistent, and she attributed Greta’s fear of her father to sexual abuse committed by him. Judge Cox found it noteworthy that Dr. Silberg’s initial report, in which she reached those same conclusions, was based solely upon a review of records and discussions with Kira, notwithstanding Dr. Silberg’s acknowledgment of the importance of interviewing the child prior to making an assessment, and that her initial impression of the abuse allegations was formed without direct access to Greta. ³⁰¹ Dr. Snow, a psychologist having extensive experience with child trauma victims, had a different impression. Initially contacted by Greta’s counsel, he met with both parents in 2002 and was advised in that first conference that neither