Gamez v. Lopez

XOCHTIL GAMEZ v. DAVID LOPEZ

Nos. 0110-2021, 0111-2021

Court of Special Appeals of Maryland

October 5, 2021

Circuit Court for Montgomery County Case Nos. 145654FL &amp 173609FL

Reed Wells, Zarnoch, Robert A., (Senior Judge, Specially Assigned) JJ.

OPINION ^[*]

Wells J.

On March 5, 2021, the Circuit Court for Montgomery County held a Protective Order Hearing between the petitioner, Xochitl^[1] Gamez ("Mother")^[2], and the respondent, David Lopez ("Father"). At the Protective Order Hearing, Mother alleged that Father had abused the parties' minor son, L, ^[3] while L was visiting with Father. The Honorable Sharon V. Burrell denied the petition, finding "no reasonable grounds to believe that [Father] abused" L. Mother timely appealed the decision of the circuit court.

Less than two weeks later, on March 18, 2021, Judge Burrell held a hearing on Father's motion to modify custody. Father petitioned (1) that he be awarded primary residential custody of L; (2) that he be awarded sole legal custody of L on a temporary basis; (3) that Mother be enjoined from taking L to medical appointments until further order from the court; and (4) that a mental health evaluation be ordered for Mother. Judge Burrell denied the first three of Father's requested reliefs but ordered Mother to undergo a mental health evaluation. Mother again timely appealed the decision of the circuit court.

We have consolidated Mother's two appeals for oral argument, and we issue this opinion to resolve both appeals. Mother raises three questions in each of her appeals, which we have condensed and rephrased for clarity and organizational purposes:^[4]

1. Did the trial court abuse its discretion by limiting evidence and testimony at the March 5, 2021 and March 18, 2021 hearings?

2. Did the trial court erroneously deny Mother's request for a final protective order?

3. Did the trial court erroneously order a mental health evaluation of Mother?

For the reasons that follow, we hold that the circuit court did not abuse its discretion by limiting evidence and testimony at either the March 5, 2021 or March 18, 2021 hearings, including evidence and testimony related to domestic violence. Moreover, we conclude that the circuit court did not err in not issuing a final protective order. Finally, we conclude that the circuit court did not abuse its discretion in ordering a mental health evaluation of Mother. Accordingly, we affirm the judgment of the circuit court.

FACTUAL BACKGROUND

A. Mother and Father's Marriage and Divorce

Mother was born in Montgomery County, Maryland and has resided there her entire life. Father has likewise resided in Maryland his entire life. The two married on September 10, 2014. L was born approximately a year and a half later to both parents in May 2016.

About a year after L's birth, the parties separated in May 2017. Upon their separation, a number of legal disputes arose between the parties, principally involving custody of L and accusations against each other of domestic violence. Rather than describing those individual disputes in detail, it is sufficient to briefly summarize the disputes which serve as a backdrop to these appeals.

We note first, however, that in their briefs, both parties exaggerate or misrepresent some of these disputes. For example, in her brief Mother claims that Father pled guilty to second-degree assault. In actuality, the second-degree assault charge was nolle prosequied. Father responds to this misstatement in his Motion to Dismiss the appeal, in part, by stating that his prior counsel signed an affidavit stating that "[o]n February 1, 2017, at the trial, Mother declared from the gallery of the courtroom that her testimony was false and Father had never touched her." However, after reviewing that affidavit and the record of the proceedings below, we are not able to find where Father's previous attorney proclaimed that "Mother declared from the gallery of the courtroom that her testimony was false, and Father had never touched her." Moreover, in her Statements of Facts, Mother references a number of legal cases involving the parties to which she does not cite to any case in the record for support. Accordingly, without proper citations to the record, we will not consider these incidents.

Notwithstanding any exaggerations and misrepresentations made by counsel in their descriptions of the facts, we nonetheless gather from the record that the parties had a years' long series of disputes. For instance, in February of 2017, Child Protective Services of the Department of Health and Human Services ("CPS") found that L, nine months old at the time, "was exposed to domestic violence between" Father and Mother. Five months later, CPS again "received concerns of domestic violence between" the parties, and this time found that the allegation was "unsubstantiated." Soon after, the parties "began accusing each other of leaving bruises on" L. In October 2018, Father pled guilty to two counts of disorderly conduct stemming from a domestic relation incident with Mother.

Half a year later, April 2019, CPS "ruled out" that either party had neglected and physically abused L. Between May 2019 and February 2020, CPS completed four "screen outs" of similar concerns, meaning that the allegations reported did "not meet criteria to open an investigation. An additional "screen out" was completed by CPS in February 2020 regarding Mother's claim that Father and Father's sister, had sexually abused L. CPS determined that neither Father nor his adult sister posed a safety risk to L. Less than two months before the hearings at issue in this appeal, CPS investigated whether Mother had slapped L's face.

B. February 15, 2021 Rockville Police Station Drop-Off and the March 5, 2021 Protective Order Hearing

While the investigation against Mother for slapping L's face was ongoing, Mother raised new allegations against Father stemming from the exchange of L that led to the March 5, 2021 hearing. Specifically, Father was scheduled to return L to Mother on February 15, 2021 at the Rockville Police Station. According to Mother and her sister's testimony, they arrived at the police station to take custody of L. While Mother waited in the car, her sister, Cynthia "Cindi" Gamez ("Aunt") went to the vestibule of the police station to get L from Father. When picking up L, Aunt claims that she saw a mark on L's head and that he complained of a headache. According to Aunt, the boy told her that Father had hit him. Aunt took L to a clerk in the police station who called 911.

The night before, Mother had phoned the police requesting a safety check on L while he was visiting with Father. According to Mother, she had been on a call with L and heard "background noise" before Father got on the phone "screaming" and "yelling[.]" Mother testified that the next day, at the exchange in the police station, she was "very concerned" for L's well-being based on the prior night's events and went to the hospital with the boy.

According to subsequent police report in which Mother is the complainant, L indicated that his father "struck him in the head with fists several times the night before around 7pm-8pm." The investigating officer noted that while at the hospital, he noticed a bump on the front of L's head. During his interview with L, the officer testified that L told him that Father hit L twice with a fist.

At the March 5, 2021 protective order hearing, after listening to testimony from a social worker and the police officer on the scene, the court noted that as the petitioner, Mother bore "the burden of proving by a preponderance of the evidence that [Father] abused" L. "Based on all of the evidence presented, the [c]ourt f[ound] no reasonable grounds to believe that [Father] abused" L. In coming to this conclusion, the court specifically noted (1) the testimony of the social worker, whom the court noted did not believe that Father had hurt L, (2) the forensic examination, (3) the medical reports, (4) the photos admitted into evidence, and (5) the testimony of the police officer who testified that L "was happy and playing and giggling when he was at the hospital and talking to the police officer." Accordingly, the court denied Mother's petition.

C. March 8, 2021 Rockville City Police Station Scheduled Drop-Off and the March 18, 2021 Motions Hearing

Following the March 5, 2021 hearing, L was in Father's care from 3:00 p.m. on March 5, 2021 to 5:00 p.m. on March 7, 2021. Upon L's return Mother noticed a red mark on L's face and once again alleged that Father physically abused L. Mother took L to a doctor to examine the red mark, according to Father, without even asking him about the source of the red mark. Then, on March 10, 2021 Mother refused to bring L to the scheduled drop-off for Father's visitation. Father was able to pick up L a day later, March 11, 2021. However, that same day, CPS also interviewed L, Father's mother, and Father's sister, Sue Ann Mercedes Lopez ("Paternal Aunt"), based on abuse allegations. CPS determined that the abuse allegations did not merit an investigation. After L returned to Mother's care on March 15, 2021, Mother again took L to the doctor alleging that Father had physically abused L because of a rash on the back of L's neck. This happened even though Father told Mother that the redness was nothing more than a sunburn that L got after riding his bicycle over the weekend.

On March 17, 2021, Mother was again scheduled to drop-off L to visit with Father. When Paternal Aunt appeared at the Rockville Police Station to pick up L, Mother refused to let L go, this time alleging that Paternal Aunt sexually abused the child. Mother had also alleged that Paternal Aunt sexually abused L in 2020, but CPS found no validity to the...