Modica v. Roach

LISA MODICA v. CHAD ROACH

No. 1861

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

July 27, 2018

Circuit Court for Montgomery County

Case No. 147588FL

UNREPORTED

Eyler, Deborah S., Meredith, Alpert, Paul E. (Senior Judge, Specially Assigned), JJ.

Opinion by Eyler, Deborah S., J.

*This is an unreported opinion and therefore may not be cited either as precedent or as persuasive authority in any paper, brief, motion, or other document filed in this Court or any other Maryland court. Md. Rule 1-104.

Lisa Modica, the appellant ("Mother"), proceeding pro se, challenges a temporary custody order entered on an emergency basis by the Circuit Court for Montgomery County. The order modified a permanent custody order entered by the Probate and Family Court, Middlesex Division in Massachusetts ("the Massachusetts court"); granted Chad Roach, the appellee ("Father"), temporary sole legal custody of Mother and Father's daughter ("Daughter"); and directed that Mother's visitation with Daughter, which was unsupervised and in Massachusetts, be temporarily supervised and in Maryland. The court entered its order following a hearing on an ex parte motion that Father filed after Mother refused to return Daughter to him, in violation of the Massachusetts custody order.

Mother presents the following questions on appeal, which we have consolidated and reworded:

1) Did the circuit court violate Mother's due process rights by granting Father temporary custody of Daughter?

2) Did the circuit court err by exercising jurisdiction over this matter?

3) Did the circuit court abuse its discretion by granting temporary custody to Father as a punitive measure against Mother instead of considering Daughter's best interests?

4) Did the circuit court err by not scheduling an expedited hearing on Mother's emergency motion for temporary custody?¹

For the following reasons, we shall affirm the judgment of the circuit court.

FACTS AND PROCEEDINGS

The parties' romantic relationship began in 2002, in Pennsylvania. At that time, Mother had a five-year-old son ("Son") from a prior relationship. Father became a father figure to Son. In 2003, Daughter was born to Mother and Father. The parties never married, and their relationship came to an end in 2010. In November 2010, in the Court of Common Pleas of York County Pennsylvania ("the Pennsylvania court"), Mother filed suit for primary physical custody of Son and Daughter and for permission to relocate to Boston, Massachusetts with the children. On March 28, 2011, the Pennsylvania court entered a Final Order of Custody granting Mother primary physical custody of Son andDaughter and the parties shared legal custody. It also granted Mother's request to relocate to Massachusetts. The court awarded Father substantial visitation with Son and Daughter during the summer months.

In July 2011, Mother moved to Massachusetts. She married Jason Silks some time thereafter. In 2012, Father moved to Maryland and married Amber Roach.

Between 2012 and 2013, in the Pennsylvania and Massachusetts courts, Mother and Father filed multiple motions to modify the March 28, 2011 custody order and petitions for contempt for noncompliance with that order. During that time, the Massachusetts state court regularly entered temporary custody orders incorporating stipulations by the parties. In May 2013, judges from the Pennsylvania, Massachusetts, and Maryland courts held a conference call and determined that Massachusetts would retain jurisdiction over the case.

On July 10, 2013, the Massachusetts court appointed a guardian ad litem to investigate and report on issues concerning the children. The guardian ad litem filed his report with the Massachusetts court on November 20, 2013. He recommended that Son and Daughter be sent to Maryland immediately, that Mother should have visitation, and that Mother should not talk negatively about the case or Father in front of the children. Father moved the court to adopt the guardian ad litem's recommendations that same day. The court held an emergency evidentiary hearing. At the conclusion of the hearing, the court granted Father's motion and adopted the guardian ad litem's recommendations; ordered that primary physical custody of the children be transferred temporarily fromMother to Father; and granted Mother visitation. On November 25, 2013, the court issued written findings of fact related to the emergency evidentiary hearing and the guardian ad litem's report. It found:

a. It is not in the best interests of the children to remain in Mother's care and custody.

b. It is in the best interest of the children for custody to be transferred immediately from Mother to Father.

c. The children are suffering emotionally, mentally, educationally, and socially in Mother's care.

d. It has been shown that the children flourish emotionally, mentally, educationally, and socially when in the care of Father.

e. [Son] will soon be eighteen (18) years of age and outside the jurisdictional reach of this Honorable Court. [He] needs immediate intervention in order to become a productive member of society.

f. [Daughter] is become [sic] increasingly depressed in her Mother's care and would benefit greatly from living with Father in Maryland and being around her friends and being engaged in activities on a daily basis.

g. The Father has demonstrated his ability and desire to provide the children with the services that they require educationally, mentally, emotionally, and socially.

In accordance with the court's order, the children moved to Maryland on November 20, 2013.

In July 2014, Son turned eighteen years old. He returned to Massachusetts to live with Mother.

On February 13, 2015, in the Massachusetts court, Father filed a Complaint for Modification of Foreign Judgment (the Pennsylvania court's March 28, 2011 Order ofCustody). He sought primary physical custody of Daughter and implementation of a parenting plan for Mother. The case was tried over six days in June, July, and August 2015.

On February 24, 2016, the Massachusetts court entered a new custody order pertaining to Daughter and a 46-page memorandum opinion setting forth the history and facts of the case and the reasons for the court's decision. The new custody order granted Father sole physical custody of Daughter; granted Mother "parenting time with [Daughter] one weekend every other month to be mutually agreed upon by the parties"; granted Mother "two consecutive weeks in July and two consecutive weeks in August of summer vacation with [Daughter]"; and granted shared legal custody.

In accordance with the February 24, 2016 custody order, Daughter was scheduled to stay with Mother from July 2, 2017, to July 16, 2017, and from August 7, 2017, to August 21, 2017. According to Mother, on July 16, 2017, Daughter complained of being ill, of abuse at the hands of Father and his wife, and of feeling suicidal. Mother took Daughter to a physician who referred Daughter to Lahey Health Behavioral Services ("Lahey Health"), an outfit that provides mental health counseling. Daughter was assessed by clinician Jose Rigueiro, M.S. Rigueiro reported that Daughter was "not in acute psychiatric distress and current psychological presentation and symptoms do not suggest a need for inpatient level of care services." He discharged Daughter and provided her information about resources she could access if she were to experience distress. Mother returned Daughter to Father later that evening.

On August 7, 2017, Daughter returned to Massachusetts for the second two weeks of scheduled visitation. Mother claimed that during that visit Daughter revealed that she had intentionally burned her arm with a curling iron and threatened to commit suicide if she were returned to Father. On August 18, 2017, in the Massachusetts court, Mother filed an ex parte motion for change of custody. The court set a hearing for August 23, 2017. Father filed an opposition and moved to dismiss, asserting that the court lacked jurisdiction. On August 24, 2017, the court granted the motion to dismiss, concluding that it lacked jurisdiction because Maryland, not Massachusetts, was Daughter's home state. The court declined to exercise emergency jurisdiction over the matter as the circumstances did not "warrant an emergency assertion of jurisdiction [because] Mother had ample time to secure an order in the Maryland courts[ but] chose to wait until the child returned to Massachusetts and brought the action here for her own tactical advantage." The court noted, "[w]hile the Court does not rely on this point, it is mindful that there is history of this type of behavior [by Mother]. In June 2012, she brought [Son] to a hospital for complaint of suicidal ideation in an effort to thwart an order of custody."

The visitation schedule called for Daughter to be returned to Father, in Maryland, on August 21, 2017. Mother did not return Daughter to Father after the Massachusetts court denied her motion for change of custody, however. Mother claimed that Daughter threatened self-harm after being told that she was going to be returned to Father. On August 25, 2017, Mother took Daughter to Lahey Health for a second evaluation. Daughter met with Veronica Dacey, MFT. Dacey noted that Daughter "has suicidalideation due to having to return to Maryland where she lives with her father [and] step mother . . . ." In her discharge plan, Dacey stated that Daughter could return home with her mother, where she felt safe, but that she would undergo partial hospitalization on August 30, 2017, for further evaluation.

On August 26, 2017, Mother emailed Father saying Daughter needed to undergo further counseling and asked if Father "agree[d]" to allow Daughter to stay in Massachusetts for that purpose. Father did not respond to the email.

On August 29, 2017, Mother's Massachusetts counsel informed Father's Massachusetts counsel via email that he intended to file another emergency motion for custody modification on August 30, 2017, and to ask for the...