Court Upholds Order Limiting Divorced Father's Talking to Gay Son About Sexual Orientation and Religion

From C.M. v. J.M., decided yesterday by the Maryland intermediate appellate court (opinion by Judge Alexander Wright, joined by Judges Christopher Kehoe and Terrence Zic):

Father and [Mother] were married for about five years and had two children before divorcing in 2012. As part of the divorce settlement, the parties agreed to joint legal custody of their two children with Mother to have primary physical custody and Father to have visitation every other weekend from Friday to Sunday.

Roughly three years later, on June 15, 2022, Mother filed for a protective order for herself and her children, then aged 15 and 12, alleging that Father had caused her and the children mental injury based on abusive texts and emails he had sent to them….

As to their older child, "S.", Mother testified that about three years ago, S. told her that he believed he was transgender. Mother denied steering S. toward identifying as transgender but has actively supported S. by arranging for therapy and attending meetings of Parents, Families, and Friends of Lesbians and Gays ("PFLAG"). When S. told Father that he identified as transgender, Father "opposed" his decision and refused to call him by his preferred name. S. subsequently engaged in the self-harming behavior of "cutting." On March 4, 2022, Father sent the following text messages to S.:

What is your email address? I'm sending you an email and I'm copying your mother and my lawyer. I'm t[ir]ed the BS manipulations. Your grandmother doesn't call you S[.] and neither does either one of your aunts and uncle up here and for some reason my Christian beliefs are being attacked, so the intent is for a trial, so that everyone can understand what your mother that has manipulated a wedge after you and I had already came to an agreement [to call you a shortened version of your given name]. Thanks[.]

Mother testified that S. is "scared" to be around Father because "he doesn't feel support; doesn't feel that S[.] can be himself, … his true self[.]" {We shall refer to the parties' oldest child as "S." which is the first letter of the name the child prefers to be called rather than his given name. We shall also refer to S. with his preferred pronouns, he/him/his.}

As to their younger child, N., Mother testified that about five months ago N. told her that he believed he was gay. On June 11, 2022, Father sent N. the following text:

You can text me anytime. Just between us and call if you ever need to talk. I will tell you like I told you before – you are being heavily manipulated and influenced by your mother and sister. Son. Listen to your dad and our father who created us (God) in this matter. Please please do not allow these demons you are surrounded by influence you. Pray my son. For protection. I love you. Dad.

The next day, while N. was visiting Father at his house, Father asked N. to show him his TikTok account. According to Father, N. started acting "very strangely[,]" eventually walking outside the house and calling and then texting his Mother. Father testified he told N. that he was not "happy with" him because he had every right to see N.'s social media account. Father then told N. that because he was undercutting his authority by calling Mother, he could "[j]ust go home." N. called his Mother to pick him up and while she was enroute, Father and N. had a conversation in which N. told him he was gay. Father testified that he responded by telling N.: "I love [you] no matter what, and that whatever he is when he's an adult and down the road, that I will love him, but he needs to respect that his father doesn't actually hold the same beliefs due to my Biblical beliefs." He explained to the court that his "Christian beliefs, my Biblical beliefs, preclude me from agreeing with any LGBTQ agenda." Father testified that his Christian religion "means everything" to him.

Mother was asked about her observations of N. when she drove him home from Father's house. She testified that N. "seemed a little down and out, and was a little shaken up, and you know, I just asked if he was okay, and he said … 'I am now.' " She testified that N. told her that when he told his Father he was gay, his Father said, "No, you're not, but I love you anyway."

Later that evening, Father texted a picture to S. The picture is of two unhappy looking teenage girls with zig zag stitching across their chests with the typed statement above it: "It's not 'top surgery.' It's a radical elective double mastectomy performed on healthy girls who have been sucked into a cult by groomer schools and online influencers." Father wrote underneath the picture: "Don't ever do this stuff to yourself. If you ever want to talk about the thousands of UK children who regretted this and other things later in life, let me know. Also, I hope you read my google email to you."

Father sent a second text a few hours later to S. that showed a photograph of a bull with horns with the message, "If you're still confused about gender, try milking a bull and you'll learn real quick." Father texted underneath the photograph: "I think this one is hilariously accurate."

The next day Father texted Mother the following text messages over the course of an hour, each paragraph represents a separate text:

You really have no idea who you are talking to. … The wolves will enter in and not spare the flock says our father. … The ascension of Christ opened the book of Revelation, it has been 80 generations now, but we are the last. And time is almost up. I will not be staying. Many will. You will understand after all of this is over. I promise, you will live to see. … You have no idea who I am. And you should thank me because if I can have you and your parents repent and turn before this is over, that's 3 souls I will get credit for saving.

[* * *]

I am a child of God. I am a watchm[a]n. They have been warned, but as instructed each has to work out our own salvation says our father. Your fake Christian parents have been warned, or at least your father, to Repent and turn.

[* * *]

For example, our father tells us about tranny's and gays right in the bible. He says any one who cuts off things or if man lay with man or women with women will be burned. But the Holy See and most other Churches say, no, it's all good now.

[* * *]

This is what Christ was talking about when he said, when I leave, I know the wolves will enter and not spare the flock. You have no idea how close we are to Michael standing up. But I promise, short of God taking you out prematurely, I do believe you will see.

[* * *]

The spirit of Truth is upon you. You are being shown the truth that you must bend to or you and your parents will burn. It's that simple.

[* * *]

You have been warned and will have no excuse now once asked to give an account.

Half an hour later, Father texted Mother a picture of a horned, animal-like human sitting on a throne and wrote that it is a picture of a deity called "Baphomet" that was "after everyone's children right now." He continued:

What you are going to see very shortly in this world is of Biblical proportions. … As I stated to you before, we are the last and you have no idea how close we are to Michael standing up. If you and your family do not repent and turn before that happens, you will be subjected to the plagues that follows after Michael stands. Again, and for the last time, you and yours have been warned.

A CPS report dated June 21, 2022, was admitted into evidence. The case worker, a licensed social worker, wrote that five days after the incident between Father and N., she interviewed the children in person at their respective schools, and Mother and Father over the telephone. As to the interview with the children, she wrote:

S[.] stated around 6th grade, his relationship with his father went downhill. S[.] stated he came out as transgender and his father blames his mother and says he is a part of a cult. S[.] stated he wanted to get into therapy and his father blamed his mother. S[.] stated his father threatens to sue his mother because he is transgender. S[.] stated he stopped seeing his father regularly in late 2019. S[.] stated he sometimes goes to his father's around the holidays because he wants to continue to see his cousins. S[.] stated his father has sent him text messages and emails with information against the LGBTQ+ community. S[.] denied feeling safe with his father. This worker asked why. S[.] stated he guesses it is more of an uncomfortable situation because he does not feel like he can be himself.

This worker asked how his father treats N[.] S[.] stated this past weekend, their father kicked N[.] out of the house because he would not show him a TikTok because it stated he was gay. S[.] stated his father also threatened to break the phone. S[.] was not present for the incident. S[.] denied his father ever becoming physical with him or his mother. S[.] stated years ago, his father "slammed" N[.] because he was learning how to ride a bike and said something like "mom would have done it better". S[.] denied witnessing what happened.

[* * *]

N[.] stated he sees his father every other weekend. N[.] stated this past weekend was not good but normally they are fine. N[.] stated his father was mad because he would not show him his TikTok. N[.] stated he would not show him his TikTok because it showed his sexual orientation. N[.] stated he eventually told his father he was gay. N[.] denied his father becoming physical with him and stated it was only verbal. N[.] stated his father was insulting his mother and said "you can go back with your psychotic mother". N[.] stated he was picked up by his mother after this occurred. N[.] stated his father sent him a text message stating he was being manipulated by his mother and sister and he should not allow the demons that surround him to influence him. This worker asked how his father treats S[.] N[.] stated his father often uses the slur "tranny".

[* * *]

This worker asked if his father ever became physical with him. N[.] stated when he was 9 years old, his father hit him on the head with an open hand because he said his mother would have taught him how to ride a bike better. N[.] denied any other physical altercations with his father and denied seeing his father become physical with anyone else. This worker asked if N[.] felt safe with his father. N[.] stated not really because his father has "anger issues" and makes him feel scared like he may hit him. This worker asked what could help N[.] feel safe with his father. N[.] stated his father accepting him, getting less angry, and not saying bad things about their mother would help him to feel safe.

During the social worker's interview with Mother, Mother told her that she filed the protective order because Father told her she "would rot in hell if she did not repent[,]" that he was "not of this world" and he was a "messenger of God" and it scared her. Although the social worker attempted to schedule an in-person appointment with him, Father was unwilling to do so. Father told the social worker over the telephone that Mother has influenced their children to believe that they are transgender and gay by taking them to pride parades before they have fully gone through puberty. He told her that "no one, not even a police officer, a judge, or a social services worker, will ever tell him what he is going to call his children or the pronouns he is going to use." He mentioned that "God does not agree with a man laying down with a man" and he expressed "how his faith does not agree with the LGBTQ+ community."

Father testified that since 2019, he has not seen S. nor does he have a relationship with S. He claims the lack of a relationship has "nothing to do with h[im] wanting to be called S[.]" or because he identifies as transgender but because Mother "encourages the isolation, alienation, compartmentalization of the [F]ather." He testified that "most" of the texts that he has sent to S. over the last couple of years are related to S. identifying as transgender, and that his texts, which "reflect[ ] the truth[,]" are sent to present S. with an opposing view of the transgender community. He also admitted to sending a three page, single-spaced email to S. on March 5, 2022, which was admitted into evidence, in which he presented his detailed view of Mother's faults, the parties' failed marriage, and why the parties' divorced.

The court asked Father a few questions. The court asked if he and his children were "just not discuss[ing] the idea of transgender or homosexuality, or [do] you want them to be tolerant of you not accepting it, … are you … expecting tolerance both ways, or are you expecting only tolerance your way?" Father responded that when the children are older they can all be in the same room and "agree to disagree[,]" but that he texts S. "so that she has a picture of all sides." The court then asked Father if he texts S. "about anything else" and the following colloquy occurred:

[FATHER]: Uh … I could check my phone, Your Honor, but – and I could talk for hours about what my beliefs are about –

THE COURT: I'm not – that's not – look; this, to me, just so it's clear to everyone in the room, everyone can be – have their own beliefs. That's fine; I'm not one who's going to tell you what you should believe or shouldn't belie[ve], because some persons believe what's right or wrong. … You're not here to make me have your beliefs or anybody else. You're not here to convince me that their beliefs are right and you[rs] are wrong. I don't care. Right? All I care about is the impact in this circumstance of what is going on with regard to your children, and whether I believe they need some protection. That's what I – that's my job.

So, I understand your beliefs, and you have very strong Biblical beliefs and you are entitled to those. But it's my question, what I'm trying to get at, because I believe – and [Father's attorney], I apologize for asking some questions, but I believe that's really the heart of this case, is what is going on when you are communicating with them. Is there any more to you [inaudible] other than you trying to show these different views about transgender[?]

The court then reiterated its question about whether Father communicates with S. on other topics or texts him, ' "I love you', 'I miss you', 'How are things going?', 'How's school?' " Father responded, "[t]here hasn't been much communication[.]"

Father again admitted that his relationship with his children is "pretty contentious because of what I would consider to be a concerted effort on their mother's part to pit one child against a parent" and to "purposely steer my son into this arena, because it's to her liking." He admitted to calling the police when Mother took the children to the Pride Parade, after which he called the Crisis Hotline and then Legal Aid. He testified that he is concerned for his children's souls and has no intent to harm them.

After both parties testified, the court interviewed both children privately. After the interview, the court summarized the interviews. The court stated that S. "is a strong person[,]" and although S. was "worried" about Father's behavior in the past, he was not upset by Father's current text messages. In contrast, the court stated that N. is "frightened" by Father's behavior and "worries" that Father does not believe him around his sexual identity, believing instead that it has to do with Mother's "manipulat[ion.]"

The court granted the protective order petition as to N. but denied the petition as to Mother and S. The court found by a preponderance of the evidence that Father "has repeatedly communicated in person and through text messages homophobic comments and religious beliefs, causing mental injury to N[.] N[.] communicated to the court that he is fearful of his father because of his father's anger and aggressiveness in the past and his reaction to him coming out as gay." The order provides that Father: 1) shall not abuse or threaten to abuse N.; 2) shall not enter N.'s residence; 3) may continue to have visitation as set forth in the previous order but visitation with Father "can only occur if N[.] is comfortable doing so"; and 4) may call or text N. "but may not use that communication to abuse N[.] regarding sexual orientation and/or religion." The order is effective until June 22, 2023….

A judge may issue a final protective order if they find abuse by a preponderance of the evidence. ' "[P]reponderance of the evidence' means 'more likely than not[.]' " "Abuse" of a child is defined as "the physical or mental injury of a child under circumstances that indicate that the child's health or welfare is harmed or at substantial risk of being harmed[.]"

"Mental injury" is defined by statute as "the observable, identifiable, and substantial impairment of a child's mental or psychological ability to function caused by an intentional act or series of acts[.]"Both physical and mental harm must be intentional and cannot be the product of an accident. The scienter element of mental and physical injury can be met by showing a parent acted in reckless disregard for the child's welfare. "Reckless conduct" is conduct that amounts to a "gross departure from the type of conduct a reasonable person would engage in under the circumstances." "Allegations of past abuse provide the court with additional evidence that may be relevant in assessing the seriousness of the abuse and determining appropriate remedies" because "a history of prior abusive acts implies that there is a stronger likelihood of future abuse."

When reviewing the issuance of a final protective order, we accept the circuit court's findings of facts, unless they are clearly erroneous. We "must consider evidence produced at the trial in a light most favorable to the prevailing party[.]" We defer to the trial court's credibility determinations because it "has the opportunity to gauge and observe the witnesses' behavior and testimony during the trial."

Father argues that there was insufficient evidence presented at the final protective order hearing to prove that he caused mental injury to N. or that he did so intentionally. In advancing this argument, Father attempts to redirect the gravamen of the case to the incident on June 12, 2022. He reframes the incident as not about his reaction to N.'s statement that he was gay but about N.'s refusal to let him see his phone and TikTok account, which was a challenge to Father's authority. Father then argues that his decision to end the visit was a "reasonable" way to discipline his son for refusing to give him access to his TikTok account. Father also reframes the court's conclusion after interviewing N. that he is "frightened," "worried," and "fearful with his [F]ather's anger," as a result of the text message Father sent N. the day before the incident. Father argues that the court's conclusion lacked "legal analysis or rational explanation" because the court failed to explain how the one text message frightened N. or how N.'s fear and worry impacted his ability to function mentally. Lastly, Father argues that because he specifically testified that he did not intend to harm N., there was insufficient evidence of the required intent.

We disagree with Father's arguments and hold that the circuit court did not err in finding that it was more likely than not that Father's actions caused substantial risk of harm to N. within the meaning of FL § 5-701(b)(1)(i), and Father's actions were intentional or with reckless disregard as to the consequences of his actions.

The Supreme Court of Maryland … [has] addressed the standard by which we measure whether a child's mental or psychological ability has been impaired by an intentional act or series of acts. The Court stated:

[A] belief as to imminent danger is necessarily founded upon the defendant's sensory and ideational perception of the situation that he or she confronts, often shaded by knowledge or perceptions of ancillary or antecedent events. The issue … [is] not whether those perceptions were right or wrong, but whether a reasonable person with that background could perceive the situation in the same way.

We believe that to be the proper test to be applied in this context as well. A person who has been subjected to the kind of abuse defined in § 4-501(b) may well be sensitive to non-verbal signals or code words that have proved threatening in the past to that victim but which someone else, not having that experience, would not perceive to be threatening. The reasonableness of an asserted fear emanating from that kind of conduct or communication must be viewed from the perspective of the particular victim. Any special vulnerability or dependence by the victim, by virtue of physical, mental, or emotional condition or impairment, also must be taken into account.

Under the circumstances presented, we find no error by the trial court in finding that Father had mentally abused N. The circuit court concluded that N. was "frightened," "scared," and "fearful" of his Father's anger and his Father's refusal to accept his sexual orientation. Contrary to Father's argument, in reaching that conclusion the court relied on, among other things, its interview with N. in which the court "saw with my own eyes" N.'s fear about his Father's anger regarding his sexual orientation; the text message Father sent N. the day before their interaction on June 12, 2022, in which Father stated "you are being heavily manipulated and influenced by your mother and sister. … Please please do not allow these demons you are surrounded by influence you. Pray my son. For protection."; and the CPS report in which the social worker related that N. told her that he does not feel safe with Father, and he fears that Father might hit him because Father is angry and does not accept N.'s sexual orientation.

The court also heard Mother's testimony that when she picked N. up from Father's house after the incident and asked if N. was okay, N. responded, "I am now[,]" clearly suggesting that N. was not okay when he had been with Father. Additionally, the court expressly stated that it did not find credible Father's testimony that his actions were not intended to harm his children but were only intended "to just share another view." In assessing credibility, the circuit court is "entitled to accept – or reject – all, part, or none of the testimony of any witness, whether that testimony was or was not contradicted or corroborated by any other evidence." Moreover, Father's communications with N.'s sibling and the resulting harm provided the court with additional evidence that was relevant in assessing the seriousness of the abuse and the "substantial risk of harm" to N. by Father's actions.

Under these circumstances, we find no error by the circuit court in ruling that there was sufficient evidence of mental abuse of N. by Father and that these acts were done intentionally or with a conscious disregard or indifference to N.'s welfare.

Here, the court ordered the following relief:

1. Father "shall not abuse, threaten to abuse N[.]"
2. Father "shall not enter the residence of N[.] at [address omitted] or wherever the person eligible for relief resides."
3. "Custody shall remain as set forth in previous order, however, visitation with [Father] can only occur if N[.] is comfortable doing so."
4. Father "may communicate with N[.] through phone calls and/or text messages but may not use that communication to abuse N[.] regarding sexual orientation and/or religion."

We think the relief ordered was reasonable and well-tailored to the facts presented.

It was N.'s fear and worry regarding Father's views about N.'s sexual orientation and Father's seeming inability to see that his views caused and could cause a substantial risk of harm to his son that the court attempted to address in its order. We find the court's relief went to addressing the substantial risk of harm to N. and the risk of future harm. Father has put forth no evidence or argument that would convince us to the contrary.

{The parties do not raise in their appeal nor shall we address any constitutional rights regarding the freedom of religion or parental rights.}