Circuit Court for Baltimore City Case No. 24-D-10-000898
Barbera, C.J., Harrell, Battaglia, Greene, Adkins, McDonald, Watts, JJ.
In this case we examine the application of a local court policy that sets limits on litigants' access to court-ordered investigatory reports in child custody cases. Here, Millicent Sumpter ("Mother") challenges the Circuit Court for Baltimore City's application of its "Policy Regarding Distribution of Court Ordered Evaluative Reports" ("the Policy") and its subsequent award of sole legal and physical custody of her children to Sean Sumpter ("Father"). The Court of Special Appeals, in an unreported opinion, affirmed the Circuit Court. We granted Mother's petition for writ of certiorari to consider the following question:
Did the Court of Special Appeals err in refusing to vacate and remand the case to the circuit court when the parties and the best interest attorney were not provided a copy of the custody investigation report in violation of constitutional due process?
In our initial consideration of this appeal ("Sumpter I"), we declined to reach the merits of Mother's petition and remanded the case "for supplementation of the record as to the full contours of [the Policy]." Sumpter v. Sumpter, 427 Md. 668, 670, 50 A.3d 1098, 1099 (2012). With the written expression of the Policy in hand, we now reach the merits.
FACTS AND LEGAL PROCEEDINGS
Father filed a complaint in the Circuit Court for Baltimore City for absolute divorce from Mother on March 24, 2010. Father also sought sole physical and legal custody of the couple's two children. Before the merits hearing on Father's petition for divorce, the court ordered that the Adoption and Custody Unit ("ACU") for the Circuit Court complete a custody investigation report ("the Report").
The Report summarizes interviews that ACU staff conducted with the parties, the parties' relatives and partners, and the children. The Report also describes the parties' personal, criminal, health, education, housing, child protective services, and employment histories. This information is presented as findings in the Report's first 17 pages. The findings are supplemented with 17 attachments. These attachments span 147 pages and consist of various records upon which the ACU based its findings, including: Maryland Department of Public Safety and Correctional Services records for Mother, Father, and Father's fiancée; school records for the children; mental health records for the children and Mother; peace orders awarded to Father's mother and Father's fiancée against Mother; peace orders awarded to Mother against Father and Father's fiancée; a guilty plea by Mother in a matter in the Superior Court of Liberty County, Georgia; a Jacksonville, Florida police report about the death of Mother's cousin; and an order of the Circuit Court for Baltimore City returning one of Mother's other children to her custody after the child had been in the "Child in Need of Assistance" program. The Report does not make a recommendation concerning custody of the children.
The Report was due on November 1, 2010,  in time for a scheduled pre-trial conference, but the ACU did not file the Report with the court until December 3, 2010. That day, the ACU sent counsel for both parties a letter indicating that the Report was complete and could be reviewed at the Family Division Clerk's Office. Counsel for Mother received this notification on December 6, 2010, and visited the Family Division Clerk's Office at 2:30 p.m. that day.
We digress a little at this point. According to the record, the Policy was promulgated on June 25, 2004, as evidenced by a Memorandum from the Judge In Charge of the Family Division to other judges, masters, and "All Members of the Family Law Bar." Counsel's access to the Report in the present case was limited by the Policy, which states the following concerning litigants' access to the Report:
Review of Reports
• Attorneys will be allowed to view all of the sections of a report in the office of the Clerk of the Court (room 109). They will not be allowed to carry the report out of the Clerk's office and will not be allowed to copy the report.
• Pro Se litigants will be allowed to view the Recommendation section and the section of the report evaluating them in the office of the Clerk of the Court (room 109). They will not be allowed to carry the report out of the Clerk's office and will not be able to copy the report. They will not be allowed access to sections of the report that evaluate the other party or any minor children.
• Counsel for children will be allowed to view all sections of a report in the Office of the Clerk of the Court (room 109). They will not be allowed to carry the report out of the Clerk's office and will not be able to copy the report.
• Attorneys may obtain copies of a report with an Order of the Court.
• Pro Se litigants may be allowed to view all sections of a report with an Order of the Court.
Mother's counsel studied the 161-page Report and took notes for ninety minutes until the Family Division's Clerk's office closed to the public for the day. Mother's counsel were not able to return to the clerk's office before the merits hearing, and did not see the Report again until that time.
The two-day merits hearing began on December 13, 2010. Mother's counsel moved in limine to exclude the Report from evidence, or, in the alternative, to receive a copy of the Report. The trial court denied these motions, erroneously stating that the Policy "prevent[ed] copies from being out even in the control of counsel[.]" The trial court did allow counsel access to the Report during breaks and for the purpose of examining witnesses. To accomplish this, the court's copy of the Report had to be shared amongst counsel, the mechanics of which brought some measure of absurdity to the proceedings.
The trial court granted Father's petition for divorce and awarded him sole legal and physical custody of the children. Mother appealed to the Court of Special Appeals, arguing that the Policy violated her due process rights. Specifically, Mother asserted that the Policy prevented her and her counsel from receiving a copy of the Report, and provided them insufficient time to review its contents. Mother claims that this inhibited her ability to prepare for trial, frustrated her ability to retain an expert, and ultimately, prevented her from challenging the Report as she would any other piece of evidence. In short, Mother argued that the Policy afforded her inadequate procedural ...