IN RE ADOPTION NO. 6Z970003

• Decision Date: 23 June 1999
• Docket Number: No. 1119,1119
• Parties: In re ADOPTION/GUARDIANSHIP NO. 6Z970003 in the District Court for Montgomery County
• Court: Court of Special Appeals of Maryland

731 A.2d 467

127 Md. App. 33

In re ADOPTION/GUARDIANSHIP NO. 6Z970003 in the District Court for Montgomery County

No. 1119, Sept. Term, 1998.

Court of Special Appeals of Maryland.

June 23, 1999.

Darlene A. Wakefield, (Ullmann & Wakefield, P.A., on the brief), Baltimore, for Appellant.

C.J. Messerschmidt, Assistant Attorney General, (J. Joseph Curran, Jr., Attorney General, on the brief), Baltimore, for Appellee.

Argued before MOYLAN, DAVIS, and BYRNES, JJ.

BYRNES, Judge.

In the District Court for Montgomery County, sitting as the juvenile court, the Montgomery County Department of Health and Human Service's (DHHS), appellee, petitioned for guardianship with the right to consent to adoption or long-term care short of adoption of Justus K., appellant.¹ The petition, which was not contested by Justus's only surviving parent, was granted without a hearing.

Justus, who is twelve years old, challenges the guardianship order on appeal. He raises two questions, which we have reordered and rephrased:

I. Did the juvenile court commit legal error by failing to recognize that it had discretion to grant him a hearing?

II. Did the juvenile court violate his due process rights by denying him an evidentiary hearing on his opposition to the guardianship petition?

For the reasons that follow, we conclude that the juvenile court erred in failing to grant Justus an evidentiary hearing. Accordingly, we vacate the guardianship order and remand the case for further proceedings consistent with this opinion.

FACTS AND PROCEEDINGS

Justus K. was born on July 7, 1986 to Ingrid K., who was not married at the time and did not name a father on Justus's birth certificate. Ingrid K. later disclosed that George W. is Justus's father. George W. did not deny paternity.² Until Justus was five years old, he and his siblings lived with Ingrid K. and George W.

On April 7, 1992, DHHS filed a petition alleging that Ingrid K. was unable to provide minimal care and supervision for Justus and his three younger siblings and asking that they be found to be Children in Need of Assistance (CINA).³ At that point, Justus was committed to the custody of DHHS and placed in foster care. A month later, on May 6, 1992, Justus and his siblings were adjudicated CINA.

At first, Justus lived in a foster home with one of his sisters. They later were separated. Since mid-1992, Justus has lived in four foster homes. During that time, George W. has had no contact with him.

On November 21, 1994, Justus's mother died of Acquired Immune Deficiency Syndrom (AIDS). Three years later, on November 14, 1997, DHHS filed a petition for guardianship of Justus with the right to consent to adoption or long-term care short of adoption. DHHS alleged that George W. was withholding consent to the termination of his parental rights, contrary to Justus's best interests.

On November 19, 1997, the juvenile court issued a show cause order to George W. at the Washington, D.C. address that was listed for him on the petition for guardianship. When service could not be effected because George W. could not be found at that address or elsewhere, DHHS filed a motion to waive notice, pursuant to Md.Code (1984,1999 Repl.Vol.), § 5-322(d) of the Family Law Article ("F.L."). That motion was granted on January 12, 1998.

In the meantime, on December 5, 1997, the juvenile court appointed counsel for Justus. It did so in accordance with the established practice of the juvenile court in Montgomery County in guardianship cases. The attorney who was appointed to represent Justus was not the same attorney who had represented him in the CINA proceedings.⁴

On February 23, 1998, DHHS filed a motion for final order of guardianship of Justus. Through his attorney, Justus filed a written opposition to DHHS's motion, in which he objected to the termination of his father's parental rights and requested that the juvenile court deny the petition for guardianship. He attached to his opposition a report by his therapist in which she states that she "cannot readily support a plan for termination of parental rights, unless the Department has no other option." Justus requested that DHHS's motion for final order be set in for an evidentiary hearing.

DHHS did not move to strike Justus's opposition. The juvenile court scheduled oral argument on the limited question "whether a hearing should be held on th[e] petition for [termination of] parental rights." Counsel submitted memoranda of law. The argument took place on July 9, 1998, soon after Justus's twelfth birthday. Justus's counsel urged: 1) that the constitutional requirements of due process dictate that Justus be given the opportunity to be heard on the petition for guardianship; 2) that because Justus was not consenting to the termination of his father's parental rights, the petition for guardianship was "contested" and therefore a hearing was required under Md. Rule 9-109(a); and 3) that, even if the case were "uncontested," the juvenile court had discretion to conduct a hearing and the proper exercise of discretion required that it do so.

Justus's counsel also proffered for the juvenile court some of the evidence that would be introduced at the sought after hearing. Specifically, she explained that Justus had lived with his father for five years, that he had some memories of George W., most of which were bad, and that he harbored some hope that he and his father would be reunited. In addition, Justus's counsel proffered that his therapist would testify about the basis for her opinion that termination of George W.'s parental rights would not be in Justus's best interest at this time, including her clinical observation that Justus's mental state had deteriorated since the filing of the petition for guardianship.

Counsel for DHHS argued that because Justus's consent was not required for the granting of a guardianship, he had no standing to object and hence no right to be heard. Moreover, because Justus's father had consented to the guardianship, the case was "uncontested," within the meaning of Md. Rule 9-109(a), and therefore a hearing was not required.

After counsel concluded their arguments, the juvenile court granted the guardianship petition without affording Justus a hearing. In doing so, the court noted that "this is really about the parents[`] rights, not about the child's rights and that the child that is the subject of a guardianship proceeding does not have the right to consent and thus does not have the right to object." Thereafter, Justus noted a timely appeal.

DISCUSSION

I

It will be helpful to preface our discussion of the issues presented with an outline of the pertinent portions of the Maryland statutory scheme for guardianships and adoptions, as set forth in Title 5, subtitle 3 of the Family Law Article and as implemented by Md. Rules 9-101 through 9-113.

As used in subtitle 3 of the Family Law Article, a "guardianship" means "guardianship with the right to consent to adoption or long-term care short of adoption." F.L. § 5-301(e). Only a minor may be placed under such a guardianship. F.L. § 5-307(b). The executive head of a child placement agency (which includes local departments of social services) or the attorney for a child on behalf of that child may file a petition for the agency to be granted guardianship of the child. F.L. § 5-317(a). No other person or entity may bring a guardianship action. Id.

A guardianship decree has the effect, inter alia, of terminating each natural parent's rights, duties, and obligations toward the child. F.L. § 5-317(f)(1). Except as set forth by statute, a guardianship decree may be granted only after "any investigation and hearing that the court considers necessary" and only with the consent of each living natural parent of the child. F.L. § 5-317(c). If a natural parent of a child who is the subject of the petition for guardianship refuses to consent, the court may grant the guardianship only upon a finding by clear and convincing evidence that, inter alia, it is in the best interest of the child to terminate the non-consenting natural parent's rights to the child. F.L. § 5-313(a).

Notice of a petition for guardianship must be given to each person whose consent is required, which, as explained above, includes each living natural parent of the child. F.L. § 5-322(a). When the child previously has been adjudicated to be CINA and the petitioner has made good faith but unsuccessful efforts to serve the show cause order on a natural parent, the court may waive the requirement of notice to that parent. F.L. § 5-322(c)(3). In that case, the parent is deemed to have consented to the guardianship, and the petition is treated in the same manner as one to which consent has been given. F.L. § 5-322(d).

It is not necessary for a child who is the subject of a guardianship proceeding to consent to it. Accordingly, the child is not a person who is entitled to notice of the petition for guardianship under F.L. § 5-322. If, however, the child has been adjudicated a CINA, a neglected child, or an abused child, notice of the petition for guardianship must be provided to the attorney who represented the child in the juvenile proceeding. F.L. § 5-322(a)(1)(ii)(1). A child who has reached the age of ten, however, may not be adopted without his consent. F.L. § 5-311(a)(3).

In an adoption case, the court must hold a hearing before entering a final decree. F.L. § 5-324.1. In a "contested" guardianship action, an "on the record" hearing on the merits must be held before the court enters a judgment of guardianship. Md. Rule 9-109(a). In such a hearing, the court must make the findings required by F.L. § 5-313.⁵ In an "involuntary termination of parental rights" proceeding, the court must appoint separate counsel to represent the child who is the subject of the proceeding (be it a petition for guardianship or for adoption). F.L. § 5-323(a)(1)(iv).

It is clear that the statutory scheme outlined above does not...