Carroll County Dept. of Social Services v. Edelmann

• Decision Date: 30 July 1990
• Docket Number: No. 165,165
• Citation: 320 Md. 150,577 A.2d 14
• Court: Maryland Court of Appeals
• Parties: CARROLL COUNTY DEPARTMENT OF SOCIAL SERVICES, Assignee of Bonnie (Reed) (Stem) Clas v. David T. EDELMANN. Sept. Term 1989.

Page 150

320 Md. 150

577 A.2d 14

CARROLL COUNTY DEPARTMENT OF SOCIAL SERVICES, Assignee of Bonnie (Reed) (Stem) Clas v.David T. EDELMANN.

No. 165 Sept. Term 1989.

Court of Appeals of Maryland.

July 30, 1990.

Donna R. Heller, Asst. Atty. Gen., J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Charles W. Thompson, Jr., County Atty., Westminster, all on brief, for petitioner.

Samuel J. Brown and M. Evelyn Spurgin, both on brief, Annapolis, for respondent.

Argued before MURPHY, C.J., ELDRIDGE, COLE, RODOWSKY, McAULIFFE and CHASANOW, JJ., and ALAN M. WILNER, Judge of the Court of Special Appeals of Maryland, Specially Assigned.

ALAN M. WILNER, Judge, Specially Assigned.

The Carroll County Department of Social Services(DSS) appeals two orders of the Circuit Court for Carroll County--one terminating the parental rights and obligations of David Edelmann with respect to his minor child, Pamela Sue Reed, and the other directing DSS to pay a $1,200 fee to an attorney appointed to represent Pamela.Three issues are presented: (1) is the first order appealable; (2) does a circuit court have the authority, upon petition by one parent and the consent of the other, to terminate the consenting parent's entire legal relationship with a child of the parties other than through an adoption or guardianship proceeding under Md.Code(1984) Family Law art. title 5, subt. 3; and (3) did the court err in directing DSS to pay the $1,200 counsel fee?

We assumed jurisdiction over the appeal before its consideration by the Court of Special Appeals.We shall conclude that the appeal was validly and timely taken, that a circuit court has no authority to terminate a parental relationship other than through a decree of adoption or guardianship, and that the court erred in failing to consider the factors set forth in Fam.Law art. § 12-103(b) before assessing the counsel fee.Regrettably, we are obliged to recount in some detail the long and tortuous history of the case, which, unfortunately, is replete with procedural lapses.

Background

David Edelmann and Bonnie Clas are the natural parents of Pamela Sue Reed.Pamela was born on November 11, 1981.At the time, David and Bonnie were high school students and unmarried.Pamela has resided continuously with Bonnie; there has been no contact whatever between David and the child.

At some point in 1982, Bonnie applied to DSS for Aid to Families of Dependent Children (AFDC) benefits.As a condition to receiving that aid, she was obliged to assist in establishing the paternity of the child and to assign to DSS her right to child support from the child's father; between 1982 and 1987, she executed several such assignments.In August, 1982, David signed an agreement with the State's Attorney for Carroll County, representing DSS, in which David (1) acknowledged that he was Pamela's father, (2) recognized his duty to support her, (3) agreed to pay child support in the amount of $10 a week during the summer months between school terms and declared his intention following graduation from college, to continue to provide support for Pamela "in a reasonable amount taking into account his income and resources, and the financial needs of [Pamela]" but in no event less than $10 a week, and (4) agreed to pay the support to the Bureau of Support Enforcement for Bonnie's account.Based upon this agreement, the Circuit Court for Carroll County, on August 26, 1982, entered an order adjudging David to be Pamela's father and to owe her an obligation of support.The order also incorporated the terms of the agreement.

David apparently paid the $10 a week support in accordance with the agreement, i.e., during the summer months.In April, 1987, following his graduation from college and obtention of full employment, DSS, as Bonnie's assignee, filed a complaint seeking an increase in the child support.It recited the 1982 agreement and alleged that, since then, both David's income and the cost of providing for Pamela had increased.In his answer, David acknowledged the agreement, admitted that his income had increased, and did not deny that the cost of providing for Pamela had also increased.He nonetheless asked that the complaint be dismissed because (1)"he has never seen the minor child since the natural mother refuses any visitation,"(2) it was his understanding "that the natural mother will be filing for a termination of parental rights in which he will consent," and (3)"[i]t appears that the natural mother does not believe that the Defendant should have anything to do with the minor child."

A month later, Bonnie filed a petition to terminate David's parental rights.She alleged, in pertinent part, that David "has not exercised visitation with [Pamela] for over five (5) years," that his consent to the termination of his parental rights was attached, and that she believed such termination was in the best interests of the child.Attached to the petition was a consent signed by David "to the termination of my parental rights to [Pamela] and ... to the passing of an Order by this Honorable Court terminating my parental rights to the child."In response to that petition, David's lawyer, Samuel Brown, Esq., entered his appearance and contended that David "had consented to the [termination] of parental rights" and that "[i]t is further the understanding of the natural father that his obligations for support of this child shall terminate immediately."

The first procedural lapse appears at this point.The DSS complaint was captioned "Carroll County Dept. of Social Services, Assignee of: Bonnie Clas, Plaintiff vs. David Theodore Edelmann, Defendant"; it was placed on the "paternity" docket and given the case number 209.Bonnie was not a party to that action.Her petition was apparently intended as a separate action.It was captioned "IN THE MATTER OF THE PETITION OF BONNIE CLAS FOR TERMINATION OF PARENTAL RIGHTS" and contained no case number or other docket reference.For whatever reason, however, the clerk filed and docketed the petition and David's response to it in the DSS paternity action.That served to sow the next bit of confusion as DSS, on the one hand, filed a motion to intervene"in the case of In the Matter of the Petition of Bonnie Clas for Termination of Parental Rights," but, on the other, treated Bonnie's petition as though it were part of the paternity action by using the "209" case number.

DSS asserted in its motion that it was the assignee of Bonnie's right to child support, that Bonnie had been receiving AFDC for the benefit of the child, that DSS had been attempting to obtain an agreement as to child support from David, that Bonnie's petition would have the effect of extinguishing its right to act upon the assignment from Bonnie, that it "is a blatant attempt to circumvent the efforts of [DSS] to collect child support from [David] who has an obligation to support his natural child," and that it is against public policy and not in the best interest of the child or the State.Over David's and Bonnie's objection, the court granted DSS's motion and designated it as a plaintiff"in this matter."

The initial complaint for increased child support was then shunted aside and, on September 4, 1987, the court held an evidentiary hearing on Bonnie's petition to terminate David's parental rights.Bonnie stated that she wanted to terminate those rights "[b]ecause he's never seen [Pamela] and I feel that she'll be all confused and upset if you bring somebody into her life that she's never seen."Bonnie's father also expressed the view that "[a]s things exist the way they are right now" termination of David's rights would be in Pamela's best interest.He acknowledged, however, that, if David "stepped back in and he came to visit to get to know the child ... she would get to know him as her father.But, right now, she would be totally confused...."

Although Bonnie opined that Pamela then had a stable environment, she admitted to a most unstable series of relationships since Pamela's birth.At the time of the hearing, Bonnie was 22 years old.After the break-up of her association with David, she married one Timothy Stem, with whom she had one child.After her divorce from Stem, she married a Mr. Hurtle.It is not clear how long she remained married to Mr. Hurtle, but at some point she married David Clas, whom she was then in the process of divorcing.Her current companion, with whom she had been living for a year and by whom she had a third child, was Doug Lowe.Doug, she said, would like to adopt Pamela, who "calls him Daddy."

David also testified.When asked why he wanted his parental rights terminated, he replied:

"When I was given the opportunity to see Pamela, I tried to pursue, and for three instances, I was--the meetings were put off 'til a later date.And, all along, [Bonnie] expressed that she has a stable family environment and that I would only be confusing the child by stepping in at this time.She--I--I was under the impression that she had someone that she recognized as her father and that her grandfather provided a lot of love and care for her as well."

The circumstances of these three attempts to see Pamela were explored further.In mid-January, 1987, shortly after David's graduation, Bonnie called him.The purpose of the call is not revealed in the record, but promptly after the call, David obtained a lawyer in order to "facilitate exercising visitation rights."It does not appear that Bonnie actually objected to visitation.When asked whether it was her desire at the time for David to enter Pamela's life "as the father of the child,"she replied:

"I wanted him to enter into her life as a friend of mine, until I seen it was gonna hit it off.I wanted her to get to know him first and, then, later on, I would've told her who he was, once she got to know him and all."

Visitation did not occur, she said, "[b]ecause he never showed up."When asked whether she had given David an...