Michael Gerald D. v. Roseann B.

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 0047

September Term, 2014

______________________________________

MICHAEL GERALD D.

v.

ROSEANN B.

______________________________________

Krauser, C.J.,
Nazarian,
Leahy,

JJ.
______________________________________

Opinion by Krauser, C.J.
______________________________________

Filed: December 17, 2014
The principal issue presented by this appeal is whether a court must, before denying

a noncustodial parent all visitation with his or her minor child, under section 9-101 of the

Family Law Article (“FL”),1 find that that parent had abused or neglected the child in

question by “clear and convincing evidence,” as appellant demands, or by a

“preponderance of the evidence,” as the court below declared. Employing the latter

standard of proof, the Circuit Court for Anne Arundel County found that appellant, Michael

D.,2 had sexually abused his daughter, Emily. It thereupon awarded custody of Emily to

her mother, Roseann B., and denied appellant all right of visitation with his daughter.

Appellant challenges that ruling, claiming, first, that the circuit court should have

found that sexual abuse occurred, not by a preponderance of the evidence, but by clear and

convincing evidence before denying him all visitation with his daughter; and, second, that

the court abused its discretion in declining to order supervised visitation. We hold,

however, that the circuit court neither erred in applying a preponderance-of-the-evidence

standard nor abused its discretion in refusing to grant appellant supervised visitation.

Background

On April 23, 2005, appellant and Ms. B. married. Eight months later, on December

13, 2005, their only child, Emily, was born. When Emily was fifteen months old, the family

moved to Annapolis from Virginia, where they lived together for the next five years.

During that time, appellant was employed by the Federal Bureau of Investigation, first in

1
Md. Code Fam. Law § 9-101 (1984, 2012 Rep. Vol.).
2
To protect the privacy of the parties’ child, we shall not use the parties’ last names
but, instead, shall refer to them by the first initials of their respective last names.
1
Washington, D.C., and then in Virginia and, due to his long commute, primarily spent time

with Emily on weekends.

In June of 2012, when Emily was six years old, Ms. B. separated from appellant,

and, with Emily, moved to New Jersey, where Ms. B.’s family lived.3 Two months later,

Ms. B. filed a complaint, in the Anne Arundel County circuit court, for absolute divorce,

seeking sole physical and legal custody of Emily. The complaint specifically requested

that appellant be denied “any visitation with the minor child until” he had undergone

“intense counseling for his behavioral issues,” though, notably, the complaint did not allege

that appellant had abused Emily in any way.

After Ms. B. had filed for divorce in the Anne Arundel County circuit court, she

sought, in New Jersey, a temporary restraining order against appellant, alleging that

appellant was texting and calling her “50–80 times a day at least 3–4 times a week,”

conduct that continued notwithstanding her requests that appellant “leave her alone.” A

temporary restraining order was issued by a New Jersey court, directing appellant to have

no contact with either Ms. B. or Emily. That order was ultimately followed by a consent

order setting forth provisions governing appellant’s future contact with both Ms. B. and

Emily. Among other things, the consent order specifically prohibited appellant from

contacting Ms. B. with respect to any topic that was not related to Emily. It further limited

appellant to “one initiated communication [regarding Emily] to [Ms. B.] per day,” either

3
Ms. B. had separated from appellant once before, during the summer of 2011, and
had taken Emily with her to New Jersey. At the end of that summer, however, Ms. B. and
Emily returned to Maryland, and the couple attempted marriage counseling.
2
by email or text message. And, of particular factual significance to the case before us, it

granted appellant “temporary supervised parenting time” at a New Jersey courthouse,

where he could see Emily on alternate Saturdays “for no more than two hours.” This form

of supervised visitation began on September 15, 2012, and continued for the next nine

months, until June of 2013.

But only six months after supervised visitation between Emily and appellant had

commenced, Emily, in March of 2013, disclosed to her mother, and then to a counselor

associated with a therapy program4 that Emily had been attending, that her father would

play “the bug game” with her during his visits with her. Emily said that, during that game,

appellant would tickle her, and, in so doing, would touch her chest, vagina, and buttocks,

both above and underneath her clothes, while she and appellant sat in the back of the

courthouse visitation room. Although there is no dispute that there were video cameras in

the visitation room, the parties disagree as to whether those cameras were positioned so

that they were able to scan every corner of the visitation room and thus would have

recorded the episodes in question. Whatever videotapes there were of appellant’s

supervised visits with Emily, they were not shown to the circuit court, nor are they part of

the record before us.

Both Ms. B. and Emily’s counselor subsequently contacted the New Jersey Division

of Child Permanency and Protection. Separate investigations by the New Jersey Division

and the Maryland Department of Social Services into Emily’s allegations followed, and

4
Ms. B. described this therapy program, at trial, as one geared toward children who
had experienced or witnessed domestic violence within their families.
3
appellant’s supervised visitation continued without interruption. The New Jersey

investigation ultimately found that the allegations were “unfounded,” while the Maryland

investigation “ruled out” “neglect” (but did not address sexual abuse). Although neither of

the final reports of the two state investigations is part of the record before us, a “Notice of

Investigation Closing” indicating that the Maryland Department had ruled out “neglect”

was admitted into evidence at trial and is part of the appellate record.

In June of 2013, Ms. B., after learning that the Federal Bureau of Investigation

(appellant’s employer at the time) had issued a “Be On The Lookout” notice for appellant,

obtained a New Jersey court order suspending appellant’s supervised visitation with Emily.

That “Be On The Lookout” notice was apparently issued in error. Nonetheless, appellant’s

visitation with Emily remained suspended.

On July 1, 2013, the Anne Arundel County circuit court ordered a limited custody

evaluation that was to “include custody/visitation recommendations based on information

gathered.” Terri Harger, a custody evaluator for the Anne Arundel County Custody

Evaluation Unit, performed that evaluation but could not make a recommendation

regarding custody or visitation because of “the amount of information the investigator has

yet to gather.” Upon subsequent request by her to “expand the scope of this evaluation,”

the court ordered a full custody evaluation, which was completed by Ms. Harger on

December 17, 2013.

In the course of completing that evaluation, Ms. Harger interviewed Emily for

approximately three hours on September 30, 2013. During the interview, Emily said that

her father played the “bug game” with her at the visitation center and touched her above

4
and underneath her clothes, while she and her father sat at tables either in the corner of the

visitation room or in the back of that room. Then, when Emily indicated that her father

also played the bug game with her in the family’s Annapolis home, Ms. Harger asked Emily

if there were “any other times that she was alone with her father that he played the bug

game or did something else that was similar.” That question prompted Emily to disclose,

for the first time, that, during the time she lived in Annapolis, her father had had her touch

his penis.

She went on to explain that she would go into her father’s bedroom5 early in the

morning to watch cartoons and that, upon getting into his bed with him, her father would

tell her to go under the covers and “look at it” and “touch [his] thing” or to “touch the back

of it.” He would then, according to Emily, ask her to “do something like shaking” his

penis, which Emily demonstrated, for Ms. Harger, by moving her hands up and down. In

light of these new allegations of sexual abuse, Ms. Harger contacted the Maryland

Department of Social Services, which thereupon launched a new investigation.

Ms. Harger, in delving into her evaluation at the trial below, testified that she had a

“concern” that there was a “likelihood that abuse occurred,” as Emily’s new disclosures

appeared to be “valid.” She further stated that she did not believe that Emily had been

“coached” or that her mother was attempting to “alienate” Emily from her father. Finally,

she described Emily, in her testimony, as “delightful,” “alert,” and “very engaging,” and

5
Appellant and Ms. B. had slept in separate bedrooms since the beginning of their
marriage.
5
considered Emily’s “demeanor, her affect and her language to be appropriate” for a child

of her age.

Ms. Harger’s evaluation recommended that Ms. B. have sole custody of Emily, that

Emily receive individual therapy tailored for victims of child sexual abuse, and that “[a]ny

contact with [appellant] should be supervised in a professional setting that is closely

monitored” and that the monitor should “never leave[] the room” and should provide “notes

regarding each contact.” Ms. Harger expressed concern about any visitation between

Emily and her father, observing that, “if the incidents happened as [Emily] describe[d] . . .

reintroducing [her] to her father would be traumatic.” Ms. Harger further recommended

that, if Emily were to have visitation with appellant, it should be of a therapeutic nature.

Noreen Startt, a social worker for the Anne Arundel County Department of Social

Services, also testified at the proceeding below. She investigated the allegations that Emily

was sexually abused by her father at the family’s Annapolis home. As part of that

investigation, Ms. Startt interviewed Emily and her mother and spoke to Ms. Harger and

to social workers in Maryland and New Jersey, who had previously investigated Emily’s

“bug game” disclosures, as well as the detective from the Anne Arundel County police

department, who had interviewed appellant.

Ms. Startt stated that she “had questions about or concerns about” Emily’s demeanor

during their interview, explaining that Emily was “very matter of fact” and showed “no

change of expression or affect when she was disclosing particularly disturbing

information,” which Ms. Startt found “extremely unusual.” Ms. Startt was also troubled

by the fact that Emily “said nothing positive about her father” and that some of her

6
descriptions of her father’s penis were “inconsistent or unexplainable.” And she had

“questions about when he would have had the opportunity to sexually abuse” Emily, given

that appellant’s lengthy commute to and from work meant that he was frequently away

from home for long stretches of time.

Ms. Startt explained that, at the conclusion of her investigation, she “made an

unsubstantiated finding [of abuse] in the case,” which meant that there was, in her words,

“some evidence to suggest that the abuse occurred and some evidence to suggest that it did

not.”6 Her report, however, was not provided to the circuit court and is not part of the

record before us.

6
Under the Code of Maryland Regulations 07.02.07.12(B),

A finding of unsubstantiated child abuse is appropriate when there is
insufficient evidence to support a finding of indicated or ruled out child
abuse. A finding of unsubstantiated may be based, but is not required to be
based, on the following:

(1) Insufficient evidence of a physical or mental injury, sexual
molestation, or sexual exploitation;

(2) Insufficient evidence that the individual alleged to be
responsible for the child abuse was a parent, caretaker, or
household or family member;

(3) The lack of a credible account by the suspected victim or a
witness;

(4) Insufficient evidence that the child's health or welfare was
harmed or was at substantial risk of being harmed; or

(5) Despite reasonable efforts, an inability to complete the
investigation due to factors such as:
(continued . . . )

7
At the proceeding below, the circuit court conducted an in-chambers interview of

Emily. It thereafter read the notes it had taken, during that interview, into the record in

open court. During that interview, Emily stated that her father, during his supervised visits

with her, would have her “sit in the corner . . . so that the visitation people didn’t see” and

then would play the bug game with her, touching her chest, vagina, and buttocks, both

above and underneath her clothes. She also said that, when she lived in Annapolis, her

father would have her go under the covers of his bed and “touch [his] pee pee.” When the

court asked Emily if her father’s penis had touched any other part of her body, Emily

disclosed, for apparently the first time, that “sometimes he would touch this,” in reference

to her vagina, with his penis, and “that sometimes his pee pee . . . would go in the middle

of it and sometimes it wouldn’t.” As a result of Emily’s disclosures during this interview,

the court contacted the Department of Social Services, whereupon the Department initiated

another investigation.

This third and final investigation was not completed before the proceedings in the

circuit court concluded. But, in a motion for reconsideration filed by appellant after the

court below rendered its decision, appellant attached a copy of the Department’s report

from this investigation. In that report, the Department “ruled out” sexual abuse because,

in its words, “Emily did not disclose any new allegations of abuse [and] the information

(. . . continued)
(a) Lack of access to the child or individual alleged to
be responsible for the child abuse; or

(b) Inability to obtain relevant facts regarding the
alleged child abuse.
8
that was disclosed ha[d] been previously investigated by other agency workers and findings

were made.”

On the eleventh and final day of the proceedings—which, at this point, had spanned

four months7—the circuit court announced its decision, a decision which was, in the court’s

words, “in very large part . . . based on [its] ability to be able to observe the witnesses who

testified and judge their credibility.” Applying a “preponderance of the evidence

standard”—the standard of proof now at issue—the circuit court found, under FL § 9-101,

that there were “reasonable grounds” to believe that appellant had sexually abused Emily.

The court specifically noted that Emily’s in-chambers disclosures were “appropriate and

consistent with what one would expect in this particular factual scenario,” and that there

was nothing to suggest that Emily “had been coached in any way.” It further observed that

Emily “used age appropriate words” in her descriptions and “included idiosyncratic

details,” “details” which it did not “believe she could have known without experiencing

what she experienced.” The court therefore “found Emily,” in its words, “to be a credible

little girl.”

After noting that appellant had “received no therapy to address” the issue of sexual

abuse and did not “seem to have any real understanding as to this issue or its impact on

Emily,” the court said it could not make a specific finding, under FL § 9-101, that there

was no likelihood that appellant would further abuse or neglect Emily. It then went on to

7
The court heard testimony for four days in October of 2013, two days in November
of 2013, two days in December of 2013, and two days in January of 2014. The court
announced its decision on the record on February 4, 2014.
9
find that appellant habitually “put[] himself and his interests before his child” and did “not

always interact with [Emily] appropriately.” The relationship between appellant and Emily

was “not good,” the court declared. It explained that Emily “understands that her father

abused her and that that is having a detrimental impact on anything—on any relationship

that they have had in the past and might have in the future.”

After acknowledging that restricting or denying visitation with the noncustodial

parent, under FL § 9-101, “is a component of the best interest standard and not a separate

and distinct standard,” the court reviewed more than fifteen factors in determining whether

it would be in Emily’s best interest for appellant to have visitation with her, including the

fitness of both parents, the character and reputation of the parents, the length of time Emily

and appellant had been separated, and the relationship between appellant and Emily. None

of the factors addressed by the court were resolved in favor of appellant’s request for

visitation. The court concluded its decision by denying appellant all visitation, supervised

or otherwise, stating:

On the issue of visitation, as I have found that I am not satisfied
that it has been proven that there is no likelihood of further
abuse, the only access I can give or—or would give in any
scenario is supervised access. However, I find that based on
the abuse and the evidence that I have heard regarding
[appellant], as well as his demeanor and his lack of credibility
that I have observed during this proceeding, it is not in Emily’s
best interest to have supervised visitation with [appellant].

I find that the Court would not be assured that—that Emily
would be safe, physiologically, psychologically, or
emotionally. Therefore, I decline to order any visitation in this
matter.

10
Discussion

I.

Appellant contends that the circuit court erred in applying the preponderance-of-

the-evidence standard in finding that he had sexually abused Emily and then in denying

him any visitation. Before imposing that prohibition, the court must find, he claims, by

“clear and convincing evidence” that he had sexually abused his daughter.

In all custody and visitation determinations, the best interest of the child is the

“overarching consideration.” Baldwin v. Baynard, 215 Md. App. 82, 108 (2013). “Thus,

while a parent has a fundamental right to raise his or her own child . . . the best interests of

the child may take precedence over the parent's liberty interest in the course of a custody,

visitation, or adoption dispute.” Boswell v. Boswell, 352 Md. 204, 219 (1998). Moreover,

while, as a general rule, a parent, who is not granted custody, will be given “a right to

liberal visitation with his or her child at reasonable times and under reasonable conditions,”

this right “is not absolute,” and “when the child's health or welfare is at stake visitation

may be restricted or even denied.” Id. at 220–221 (internal quotations marks and citations

omitted).

Indeed, FL § 9-101 “requires the court, when faced with a history of child abuse or

neglect by a party seeking custody or visitation, to give specific attention to the safety and

well-being of the child in determining where the child's best interest lies.” In re Adoption

No. 12612, 353 Md. 209, 238 (1999). And, in cases “where evidence of abuse [or neglect]

exists, courts are required by [FL § 9-101] to deny custody or unsupervised visitation

11
unless the court makes a specific finding that there is no likelihood of further child abuse

or neglect.” In re Mark M., 365 Md. 687, 706 (2001) (emphasis in original).

The question we are asked to decide, in the instant case, is the burden of proof that

must be satisfied before a parent may be completely denied his right of visitation with his

child, for an indefinite period of time. FL § 9-101 governs the approach a trial court must

take when child abuse or neglect has been raised in a custody or visitation proceeding. If

the text of that statute clearly and unambiguously addresses and resolves the issue before

us, we need proceed no further in our analysis. See, e.g., Opert v. Criminal Injuries Comp.

Bd., 403 Md. 587, 593 (2008).

FL § 9-101 states:

(a) Determination by court. – In any custody or visitation
proceeding, if the court has reasonable grounds to believe
that a child has been abused or neglected by a party to the
proceeding, the court shall determine whether abuse or neglect
is likely to occur if custody or visitation rights are granted to
the party.

(b) Specific finding required – Unless the court specifically
finds that there is no likelihood of further child abuse or neglect
by the party, the court shall deny custody or visitation rights
to that party, except that the court may approve a supervised
visitation arrangement that assures the safety and the
physiological, psychological, and emotional well-being of the
child.

(Emphasis added.)

Before we ponder what FL § 9-101 addresses, we shall briefly note what it does not.

To begin with, it does not speak to the issue of future “contact” between a parent and his

or her child—that is, by telephone, email, letter, and so on—when the parent has been

12
denied all visitation for an indefinite period of time. And although the circuit court denied

appellant all visitation with Emily, it did not deny appellant all contact with his daughter.

Appellant therefore still retains his right to communicate with his daughter, even though

he was denied the right to visit with her.

Next, FL § 9-101 does not address the steps that a parent, who is denied visitation

with his or her child, may take to regain some form of visitation in the future. Nor does it

affect the parent’s legal right to move to modify a visitation order upon a showing of “a

material change of circumstances.” See, e.g., Shurupoff v. Vockroth, 372 Md. 639, 653,

658 (2003); McMahon v. Piazze, 162 Md. App. 588, 593–94 (2005). While we

acknowledge that the court below did not mention what appellant could do to regain

visitation, or that he could request modification of the visitation order based on a showing

of a material change in circumstances, it did not, on the other hand, suggest that, if appellant

were to seek a form of supervised visitation sometime in the future, it would flatly deny

such a motion. Moreover, given the well-settled legal precept that visitation orders are

subject to modification upon a showing of a material change in circumstances, we have no

reason to doubt that appellant was informed of this possibility by counsel, regardless of

whether the court expressly mentioned it in rendering its decision or not.

With that in mind, we turn now to what the plain language of the statute does

address. FL § 9-101 requires that a circuit court, facing allegations of child abuse or neglect

in a custody or visitation proceeding, first determine whether it has “reasonable grounds to

believe” that the parent seeking custody or visitation has abused or neglected a child. FL

§ 9-101(a). Then, upon a finding that reasonable grounds exist to believe that abuse or

13
neglect has occurred, the court must make an additional specific finding as to whether

further child abuse or neglect is likely to occur if custody or visitation rights are granted to

the parent responsible for the abuse or neglect. FL § 9-101(a). If the court finds that it is

unable to make that specific finding, it is required to deny custody or visitation rights to

the abusive parent, though the court may, but is not required to, approve a supervised

visitation arrangement that assures the safety and well-being of the child. FL § 9-101(b).

The question before us turns on the meaning of the phrase “reasonable grounds to

believe,” as it is used in FL § 9-101, and the burden of proof that locution mandates. The

answer may lie in Volodarsky v. Tarachanskaya, 397 Md. 291 (2007). That case presents

a set of facts and issues similar to those now before us. There, as here, the court below was

presented with a dispute between a mother and father over which of them should have

custody of, or visitation with, their daughter, a dispute that revolved around conflicting

testimony as to whether the father had sexually abused the child. Id. at 292–93.

“[P]ersuaded” that the child at issue had been “exposed to sexual behavior,” although “not

. . . convinced by a preponderance of the evidence that [she had] been the victim of sexual

abuse, or that her father [had] perpetrated sexual abuse,” the Volodarsky circuit court, after

awarding sole custody of the daughter to the mother, nonetheless precluded visitation with

the father “other than in a therapeutic setting.” Id. at 302–03. It did not, however, totally

deny the father all right of visitation, as did the court below.

The pertinent issue before the Court of Appeals in Volodarsky was whether the

circuit court’s “finding or determination” that abuse or neglect had likely occurred must

“at a minimum . . . be made by at least a preponderance of the evidence.” Id. at 304

14
(emphasis in original). The Court of Appeals concluded that, “in the context of [FL]

§ 9-101,” the reasonable-grounds-to-believe language of the statute and the preponderance-

of-the-evidence standard were not “different standards of proof.” Id. In fact, the

preponderance standard, the Court of Appeals opined, was the correct standard for the

circuit court to apply in determining whether there were reasonable grounds to believe that

abuse or neglect had occurred. Id. at 308.

We do take note, however, as appellant requests, that the Volodarsky Court stated,

in a footnote, that it was “not asked . . . to address, and [it did] not address” whether “a

standard higher than preponderance might be required where the effect of the finding [that

abuse or neglect occurred] might be to deny a parent all right of visitation with his or her

child and must be, at a minimum, to place significant limits on such visitation.” Id. at 306

n.5. Appellant relies on this footnote to argue that the Court of Appeals intended that a

burden of proof greater than a preponderance of the evidence must be met before all

visitation is denied a parent. We are not persuaded, however, that the footnote at issue

contained such a message. In our view, the footnote simply left it an open question as to

whether a greater burden of proof might be required when all visitation is denied. We shall

now attempt to answer that question.

We begin by returning to the language of FL § 9-101. The plain language of that

statute clearly states that the same evidentiary standard of proof—that is, the “reasonable

grounds to believe” standard—is the appropriate standard whether the court is granting

visitation, supervised visitation, or none at all. Subsection (a) of that section states that if

the court has reasonable grounds to believe that a party to the proceeding has abused or

15
neglected a child, it “shall determine” whether abuse or neglect is likely to occur if that

party is granted custody of, or visitation with, the child. Subsection (b) then instructs that

custody or visitations rights “shall” be denied to that party if the court is unable to

specifically find that there is no likelihood of further abuse or neglect. There is no

indication in the statutory language that a burden of proof greater than “reasonable grounds

to believe” is required before visitation can be denied. Rather, the statute unambiguously

states that “reasonable grounds to believe” that abuse or neglect has occurred—which the

Court of Appeals has said is indistinguishable from proof, by a preponderance of the

evidence, that abuse or neglect has happened—is grounds for denying any and all visitation

by the parental abuser.

Lest any doubt remain as to the validity of this interpretation of FL § 9-101, we note

that the Governor's Task Force on Child Abuse and Neglect, which drafted and proposed

FL § 9-101 in 1984, explained that the statute “expressly requires a court to restrict or deny

custody or visitation rights to a party if abuse or neglect has previously occurred and there

is any likelihood that abuse or neglect may continue to occur.”8 January 1984 Preliminary

Report of the Governor's Task Force on Child Abuse and Neglect, at 5 (emphasis added).

Moreover, there is nothing in the legislative history of the statute to suggest that either the

Task Force, when it proposed the new law, or the Legislature, when it enacted it, intended

8
FL § 9-101 was enacted, in 1984, in exactly the same form as proposed by the
Governor’s Task Force. The only difference between FL § 9-101 as it was originally
enacted and the current language of the statute was the addition, in 1985, of the phrase “and
the physiological, psychological, and emotional well-being” near the end of subsection (b).
Md. Laws Ch. 659 (1985).
16
to impose one standard of proof when supervised visitation between the abusive parent and

his or her child is ordered, but another, higher, standard of proof when completely denying

visitation between them. Rather, the statute was written so that “reasonable grounds to

believe” that abuse or neglect has occurred would require the court to deny visitation rights.

And “reasonable grounds to believe” means, as the Court of Appeals has pointed out, a

“preponderance of the evidence.” For us to hold otherwise, that is, that clear and

convincing evidence of abuse or neglect is required to deny a parent all right of visitation,

would be in clear contradiction of the “reasonable grounds to believe” language of FL

§ 9-101 and would impose a burden of proof not contemplated by the Legislature. Such a

change lies within the purview of the Legislature, not the judiciary.

Ultimately, our decision in this case must be consistent with what we believe to be

the clear language and intent of FL § 9-101. As we have explained, a circuit court that has

“reasonable grounds to believe” that a parent has abused or neglected a child and that

cannot specifically find that there is no likelihood of further abuse or neglect is required,

under the statute, to “deny custody or visitation rights” to that parent. And, as the Court of

Appeals has explained, “[i]t is by using the preponderance standard that the [circuit court]

determines whether reasonable grounds exist,” under FL § 9-101, to believe that child

abuse or neglect has occurred. Volodarsky, 397 Md. at 308. For this reason, and all of the

reasons noted above, we decline appellant’s invitation to adopt a greater burden of proof

in instances where the circuit court denies all visitation between parent and child, and hold

that the court below did not err in applying the preponderance-of-the-evidence standard in

17
determining that it had “reasonable grounds to believe” that appellant had sexually abused

his daughter.

II.

Appellant contends that the circuit court abused its discretion in not granting him at

least supervised visitation with Emily. In reviewing that decision, we apply an abuse of

discretion standard. North v. North, 102 Md. App. 1, 12–13 (1994). That standard requires

reversal only when we find that the circuit court has acted “without reference to any guiding

rules or principles,” or that “no reasonable person would take the view adopted by the

[circuit] court,” or that the decision of that court is “well removed from any center mark

imagined by the reviewing court and beyond the fringe of what that court deems minimally

acceptable.” Id. at 13–14 (internal citations and quotation marks omitted).

With respect to the “guiding rules or principles” applicable in the proceeding below,

the circuit court dutifully considered what would be in Emily’s best interests and

incorporated, into that determination, its analysis under FL § 9-101. Specifically, it found,

by a preponderance of the evidence, that appellant had sexually abused Emily, and then

considered whether it could “specifically find[]” that there was no likelihood that appellant

would further abuse or neglect Emily if he was awarded visitation rights, and said that it

could not make that specific finding. Upon reviewing the numerous factors as to what

would be in Emily’s best interests, it concluded, “based on the abuse and the evidence that

[it had] heard regarding the [appellant], as well as his demeanor and his lack of credibility,”

that it was not in Emily’s best interest to have supervised visitation with appellant, and that

Emily’s physical, psychological, and emotional well-being could not be assured if such

18
visitation was allowed. Consequently, the court “decline[d] to order any visitation in this

matter.”

Furthermore, the court’s decision not to order any visitation between Emily and

appellant was neither one that no reasonable person would adopt nor “beyond the fringe of

what [this] court deems minimally acceptable.” As the Court of Appeals has noted, “where

there is evidence that visitation may be harmful to the child,” visitation may be “restricted

or even denied.” Boswell, 352 Md. at 221. We note that the court below heard testimony

from several witnesses, and also heard from Emily herself when the court interviewed her

in chambers, that appellant had touched Emily inappropriately during their supervised

visitation sessions. In light of the evidence that abuse had previously occurred during

visitation, and in a supervised setting, it was not unreasonable for the court to deny

appellant supervised visitation with Emily.

Finally, in reviewing a visitation order, we must give “due regard . . . to the

opportunity of the lower court to judge the credibility of the witnesses,” because that court,

which “sees the witnesses and the parties, hears the testimony, and has the opportunity to

speak with the child,” is in “a far better position than is an appellate court . . . to weigh the

evidence and determine what disposition will best promote the welfare of the [child].” In

re Yve S., 373 Md. 551, 584, 586 (2003) (internal quotation marks and citation omitted).

The circuit court’s decision to deny appellant any visitation with Emily was, in its words,

“in very large part . . . based on [its] ability to be able to observe the witnesses who testified

and judge their credibility.” The court also found Emily to be a credible witness, a finding

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that it did not make as to appellant, whose credibility it found lacking. It is not our role, as

an appellate court, to second-guess those findings.

In light of the lower court’s determination of whether visitation with appellant

would be in Emily’s best interests, the evidence presented regarding appellant’s abuse of

Emily in supervised visitation settings, and the credibility determinations made by that

court, we conclude that it did not abuse its discretion in declining to award appellant

supervised visitation with his daughter.

JUDGMENT OF THE CIRCUIT COURT
FOR ANNE ARUNDEL COUNTY
AFFIRMED. COSTS TO BE PAID BY
APPELLANT.

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