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No-copy policy requires judge’s discretion

The state’s highest court has questioned a longstanding policy of the Baltimore City Circuit Court in custody cases, which bars attorneys and self-represented litigants from taking a custody investigator’s report out of the Family Division Clerk’s Office or even making photocopies of it.

The Court of Appeals stopped short of finding the policy unconstitutional, but said the trial judge in this case erred in “blindly” adhering to the letter of the administrative policy when he should have exercised his discretion to consider the circumstances at hand.

In this case, denying access to the report “hamstrung” the mother who sought custody because she was not able to study the report or refute its conclusions, the Court of Appeals said.

“In this country we engage in open, full disclosure of anything anyone needs to try a case and cloaking or quasi-access or handicapping a litigant’s full ability to try her case to the fullest extent, particularly when it involves two young girls, cannot be permitted,” said the mother’s pro bono attorney, Stephen J. Cullen of Miles & Stockbridge P.C. in Washington, D.C.

The Office of the Maryland Attorney General declined to comment on the case.

The administrative policy was adopted by the Baltimore circuit court in 2004, according to Monday’s opinion. Other circuit courts in Maryland allow attorneys to copy the report with the order that the information be kept confidential.

Margaret E. Johnson, who runs the Family Law Clinic at University of Baltimore School of Law, said all family law attorneys have experienced this restrictive access to evaluative reports in the city, including students in her clinic.

“It’s very difficult because you are constrained by business hours, although the court staff is lovely. You are not allowed to photocopy the report; that means you are really limited in what [you can] use to do what is needed to represent your client,” Johnson said.

Johnson said she thought the opinion would be a “game-changer” for families in the city and for family law attorneys who practice in it.

“I think, I hope it will mean better results for children,” Johnson said. “It means both sides have full access to the same information the court has.”

Prejudice presumed

The opinion stems from a custody battle between Millicent Sumpter and her former husband, Sean Sumpter.

Millicent had sent the girls to live with their father, from whom she was separated, after a series of traumatic events.

Sean Sumpter filed for divorce in March 2010 and sought sole legal and physical custody of the couple’s two children. The court ordered its Adoption and Custody Unit to conduct a custody investigation report.

The report does not make a recommendation on custody, but includes the couple’s employment, housing, education, and health histories, criminal records, school records for the children, mental health records and peace orders awarded to each side at varying points.

The Sumpters’ report included information unfavorable to the mother, including allegations of sexual abuse of the children while in her custody, her hiring of a convicted murderer to assault a former boyfriend and her convictions for assault and theft.

The report was filed with the court a month late, on Dec. 3, 2010. Attorneys on each side were notified the report was available Dec. 6, 2010. Cullen and his co-counsel, Kelly Powers, went to the clerk’s office that day to review the 161-page report for 90 minutes. The custody hearing began one week later.

At the hearing, Cullen asked to receive a copy of the report or exclude it from evidence. The court denied his motion, citing the no-copy policy.

The attorneys could access the report during breaks, but the court only had one copy that had to be shared between both sides, “the mechanics of which brought some measure of absurdity to the proceedings,” Adkins wrote.

“It was just madness,” Cullen said. “So you could imagine it was like a tug of war during the trial.”

The circuit court granted the father’s petition for divorce and sole legal and physical custody of the children.

Millicent Sumpter appealed. The Court of Special Appeals upheld the ruling in an unreported opinion in 2011, saying there was no evidence that her case was prejudiced. The mother then sought review by the state’s top court.

The father and the children’s best interests’ attorney did not oppose the petition for review or appear at oral argument.

The Court of Appeals heard the case in 2012, but declined to reach a decision, remanding the case that August for more information about the policy and asking the Office of the Attorney General to argue the other side in lieu of the father.

The case was argued again this September.

The top court held that the mother was not able to properly rebut the contents of the report, which often contain hearsay from witnesses and subjective observances from investigators, since she was not given enough access to the document and was not able to use it to retain an expert.

While the 2004 policy specifies that the report is not to be photocopied or taken from the Family Division, a judge always has discretion to put the rights of litigants first, Adkins wrote Monday.

“By disabling Mother from fully challenging the Report, the trial judge deprived the court of one of the core benefits of the adversarial system: the progression towards truth through the presentation of counter-evidence,” Adkins wrote. “And, by so gravely impairing Mother’s interest in a fair trial, application of the Policy surpassed, in this instance, mere court administration.”

The Court of Appeals also took the unusual step of presuming the mother had been prejudiced by the trial court’s strict policy interpretation.

“Here, the trial court’s error so hamstrung the defense that every aspect of the trial was affected,” Adkins wrote. “This error so infected the trial proceedings that it can only be characterized as egregious. Indeed, we cannot know how that infection might have contaminated the outcome of the case. Because determining prejudice is practically impossible, we will presume it in this case.”

The court declined to opine on the constitutional aspect of the case — whether the mother’s due process rights were violated. The court, however, did say that it recognized that the policy “raises the potential for constitutional concern.”

The Court of Appeals ordered that the original custody order remain in place until the circuit court rehears the case.

“The lives of two little girls were riding on it,” Cullen said. “We have put almost four years of our lives into this. We would have been utterly devastated if we lost.”

Concurrence

Judge Robert N. McDonald wrote a concurring and dissenting opinion, joined by Judge Shirley M. Watts. While they agreed with the majority on a litigant’s right to access the report, they felt that no presumption of prejudice should apply in this case.

McDonald wrote that most of the information in the report was made up of records already available to both parties.

“Since the presumption underlying the reversal is not conclusive, it would seem that the Circuit Court has discretion to decide what, if any, further action to take in this case based on the entire record before it,” McDonald wrote. “Thus, the Majority opinion should not be taken as a direction as to the award of custody in this case.”

 

WHAT THE COURT HELD

Case:

Millicent Sumpter v. Sean Sumpter, No. 120, September Term 2011, Argued Sept. 10, 2013. Decided Dec. 9, 2013. Opinion by Adkins, J. Concurring and dissenting opinion by McDonald, J.

Issue:

Did the Baltimore City Circuit Court err when it restricted access to a court-ordered evaluative report in a custody case?

Holding:

The Court of Appeals held that the lower court erred by too strictly applying an administrative policy when it should have used its discretion in the particular case.

Counsel:

Stephen J. Cullen, Miles & Stockbridge P.C. in Washington, D.C., for petitioner; William F. Brockman, Office of the Attorney General, for respondent.

RecordFax 13-1209-20 (27 pages).