Adoption/Guardianship No. 93321055/CAD, In re

• Decision Date: 01 September 1996
• Docket Number: No. 25,No. 93321055,93321055,25
• Citation: 687 A.2d 681,344 Md. 458
• Parties: In re ADOPTION/GUARDIANSHIP/CAD in the Circuit Court for Baltimore City et al. ,
• Court: Maryland Court of Appeals

Page 458

344 Md. 458

687 A.2d 681

In re ADOPTION/GUARDIANSHIP No. 93321055/CAD in the Circuit

Court for Baltimore City et al.

No. 25, Sept. Term, 1996.

Court of Appeals of Maryland.

Jan. 16, 1997.

Donna R. Heller, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on brief), Baltimore, for Petitioner.

Michael R. Braudes, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for Respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, RAKER and WILNER, JJ.

WILNER, Judge.

We have before us five cases in which the State sought guardianship of a child pursuant to Maryland Code (1984, 1991 Repl.Vol.), § 5-313 of the Family Law article. A judgment of guardianship under that section terminates the parental rights of the parents of the child and permits the State, through its Department of Social Services (DSS), to consent to the subsequent adoption or other long-term placement of the child without the need for any further consent of the parents.

Both the Code and the Maryland Rules set forth a procedure for bringing and prosecuting these kinds of cases. That procedure will be described in some detail below. Suffice it to say here that, if a parent does not affirmatively consent to the guardianship, he or she is entitled to notice of the State's petition and an opportunity to object to it. The notice is given through a show cause order issued by the court. If a parent does not file a written objection within the time specified in the show cause order, the court is directed to consider the parent to have consented to the guardianship and to treat the petition accordingly.

We granted certiorari in these cases to consider three questions, which we rephrase slightly as follows:

(1) Does the circuit court have authority to accept and consider an objection filed after the time specified in the show cause order;

(2) If a parent fails to file a timely objection as directed in the show cause order and is therefore deemed to have consented to the DSS petition, may the parent thereafter revoke that deemed consent; and

(3) May a parent who fails to file a timely objection collaterally attack a judgment of guardianship entered in the case on the ground that the parent did not receive notice of the judgment or proceedings leading to it?

Regrettably, after delving into the records of these cases, we discovered that (1) the first question was squarely raised in only three of the five cases and is moot in those cases, and (2) the fourth case, because of its procedural posture, does not present any of the three questions directly. The fifth case raises the second and third questions, which overlap. In the context of that case, we shall answer those questions. For reasons to be explained, we shall address the first question as well, notwithstanding its mootness.

Our answer to the first question is "ordinarily no." Our answer to the second is "no" with a caveat. Our answer to the third is an unqualified "no."

I. FACTUAL AND PROCEDURAL BACKGROUND

A. No. 93321055

On November 17, 1993, DSS filed a petition in the Circuit Court for Baltimore City for guardianship of Marlo and Marlen C. and to terminate the parental rights of their mother, Monique C., and their putative father, Eugene A. The children were born on May 9, 1991, cocaine addicted and in need of extraordinary care. They were placed in foster care five weeks later--on June 19, 1991. In October, 1991, they were found by the juvenile court to be children in need of assistance (CINA) and formally committed to the custody of DSS.

Upon the filing of DSS's petition for guardianship, show cause orders were issued by the court informing the parents of the petition, enclosing a copy of it, advising them of their right to file an objection to the petition by a certain date, and stating the court's address, where the objection should be filed. The orders warned, in capital letters, that "IF YOU DO NOT FILE A NOTICE OF OBJECTION ON OR BEFORE THE DEADLINE STATED ABOVE A DECREE TERMINATING YOUR PARENTAL RIGHTS MAY BE ENTERED WITHOUT YOUR CONSENT." Attached to the show cause order was a form entitled "Notice of Objection"; it too warned, in capital letters, that "IF YOU WISH TO OBJECT, YOU MUST FILE YOUR NOTICE OF OBJECTION WITH THE COURT ON OR BEFORE THE DEADLINE STATED IN THE SHOW CAUSE ORDER." All that the parent had to do was to sign the objection form, print his or her name, address, and telephone number, and mail or deliver it to the court.

The show cause order was served on Monique on July 26, 1994; it required that any objection by her be filed by August 11, 1994. Eugene was not served until November 14, 1994. ¹ The order required that any objection be filed by January 9, 1995. On January 19, 1995--five months after the deadline set for Monique and almost two weeks after the deadline set for Eugene--they each filed an objection. DSS moved to strike the late-filed objections.

The court conducted a hearing on the DSS motion on June 30, 1995. Monique did not appear. Eugene appeared and explained that he had read the show cause order and was aware of the deadline, that he had taken some papers to the clerk's office at some unspecified time but was told that they were filled out incorrectly, that he took them back three or four times only to find the clerk not there, and that he did not think a week or so delay "would make a difference." DSS informed the court that the parents had not visited the children since 1991 and that the last contact DSS had with Eugene was in 1993, when he was told that DSS intended to proceed with adoption rather than continued foster care. The court was also informed that the children had no concept of a biological parent, that they had been placed in a pre-adoptive home in February, 1995 and were doing well there, and that the plan was to have that couple adopt the children.

On this evidence, the court granted the motion with respect to Monique but denied it as to Eugene. It found that, although Eugene "could have filed [the objection] more timely" and failed to do so, "it is just a matter of days." DSS filed an appeal from the denial of the motion as to Eugene as well as a motion to reconsider that decision. On August 9, 1995, the court denied the motion to reconsider. In an amended order, it confirmed its decision to strike Monique's objection, finding no timely intervention by her, and also confirmed its decision to allow Eugene's objection, finding that his objection, though filed 10 days "after the expiration of time for objection within the Show Cause Order, is sufficiently timely to allow this objection to be received by this Court." DSS filed another appeal from that order. ²

The court conducted a hearing on the merits on January 25, 1996. Eugene did not appear. On February 26, 1996--more than two years after the petition was filed--the court entered an order appointing DSS as guardian of the children with the right to consent to their adoption. That order effectively terminated the parental rights of Monique and Eugene.

B. No. 95089042

On March 30, 1995, DSS filed a petition in the Circuit Court for Baltimore City for guardianship of Devonta H. and to terminate the parental rights of his mother, Evonne H., and his putative father, Ali J. or Paul W. Devonta was born on May 15, 1993; he was placed in foster care on October 7, 1993, and was found to be a CINA on May 16, 1994.

Show cause orders were issued on April 18, 1995, setting a deadline of July 19, 1995 for objections and giving the same printed warnings noted in our discussion of No. 93321055, supra. Ali filed a timely objection. Evonne was served on May 15, 1995. She filed an objection, on the form included with the show cause order, on August 22, 1995--a month late. DSS moved to strike the objection. At a hearing on the motion, Evonne testified that she misplaced the paper and did not find it until August. DSS informed the court that Devonta was in an approved pre-adoptive home and that the plan was for him to be adopted if the DSS petition was granted. The court expressed some disbelief that Evonne "would be served with notice of termination of your parental rights and you would lose it," but denied the motion nonetheless, essentially because there would have to be a trial in any event due to Ali's objection. DSS filed an appeal.

Notwithstanding her objection, when the hearing on the merits occurred seven months later, on June 7, 1996, Evonne failed to appear, and the court granted the petition for guardianship.

C. No. 95108035

On April 18, 1995, DSS filed a petition in the Circuit Court for Baltimore City for guardianship of Portia and William G. and to terminate the parental rights of their mother, Veronica D. The father of the children had died. Portia was born on April 16, 1988. Three months later, she was found to be a CINA and committed to DSS for placement with relatives. She was returned to Veronica in July, 1990, but was replaced in foster care in November, 1993. William was born on August 22, 1990. He was found to be a CINA and committed to DSS on January 17, 1994.

A show cause order, containing all of the information noted above, was served on Veronica on May 6, 1995. It set a deadline of July 26, 1995 for her to file an objection to the petition. Veronica filed an objection on August 10, 1995, which DSS moved to strike. At a hearing held on November 16, 1995, Veronica's lawyer informed the court that Veronica had "mistakenly allowed the time to elapse"--that "it just got away from her." It appears from the transcript that Veronica was not in court when the hearing began, that she appeared about an hour late, and that the court saw no reason to hear from her. It denied DSS's motion and set the matter in for hearing on the merits in June, 1996. DSS filed an appeal from the denial of its motion.

In its brief, the State informed us that the hearing did not occur until August and...