IN RE ADOPTION NO. T98097012

• Decision Date: 15 February 2000
• Docket Number: No. 30, No. 1999., No. 32 Sept. Term
• Citation: 358 Md. 1,746 A.2d 379
• Parties: In re ADOPTION/GUARDIANSHIP NO. T97036005. In re Adoption/Guardianship Nos. T98097012, T98265014, T98198001.
• Court: Maryland Court of Appeals

746 A.2d 379

358 Md. 1

In re ADOPTION/GUARDIANSHIP NO. T97036005.

In re Adoption/Guardianship Nos. T98097012, T98265014, T98198001.

Nos. 30, .

Court of Appeals of Maryland.

February 15, 2000.

Hannah E.M. Lieberman and Daniel Hatcher (Pauline Mandel and Mark Friedenthal, Legal Aid Bureau, on brief), Baltimore, for petitioners.

C.J. Messerschmidt, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for respondent.

Stephen E. Harris Public Defender, Michael R. Braudes, Asst. Public Defender, Baltimore, brief of Public Defender as amicus curiae—filed on behalf of petitioner.

Gary S. Posner, Whiteford, Taylor & Preston, LLP, Mitchell Y. Mirviss, Venable, Baetjer and Howard, LLP, Baltimore, brief of amici curiae L.J., et al.—filed on behalf of appellants. Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL and THEODORE G. BLOOM (retired, specially assigned), JJ.

RAKER, Judge.

The children in these four consolidated cases, all foster children in the care of the Baltimore City Department of Social Services (BCDSS), had previously been adjudicated Children In Need of Assistance (CINA) pursuant to Maryland Code (1973, 1998 Repl.Vol., 1999 Supp.) § 3-812 of the Courts and Judicial Proceedings Article. In each case, BCDSS filed in the Circuit Court for Baltimore City a petition for guardianship with the right to consent to adoption or long-term care short of adoption.¹ Each child was denied a hearing on the merits of the petition. In each case, after denying the child's request for a hearing on the merits, the trial court granted the petition over the child's objection, thereby terminating the parents' parental rights.

The primary issue we must decide in each case is whether the trial court violated the constitutional and/or statutory rights of the children by granting the petition of BCDSS to terminate parental rights when both parents either affirmatively consented or were statutorily deemed to have consented, without first providing the children with a meaningful opportunity to be heard on the merits of the petition. We shall hold these children had this right, and accordingly, we shall reverse.

I. Background

The statutory framework in Maryland to ascertain whether a child is in need of assistance, and to protect such a child, is set out in the Juvenile Causes Act, Maryland Code (1973, 1998 Repl.Vol., 1999 Supp.) §§ 3-801 to 3-837.1 of the Courts and Judicial Proceedings Article,² and Title 5, subtitles 3, 5 and 7 of the Family Law Article,³ and as implemented by Maryland Rules 9-101 through 9-113.

"Guardianship" as used in the statutes and rules refers to guardianship of a minor child, see F.L. § 5-307(b), and means "guardianship with the right to consent to adoption or long-term care short of adoption," F.L. § 5-301(e). A petition for guardianship may be filed by the executive head of a child placement agency, including the local department of social services, or by the attorney for the child. See F.L. § 5-317(b).

A petition for guardianship may be filed after a child has been adjudicated a CINA. After the State receives a report of suspected abuse or neglect, BCDSS must investigate the substance of the complaint and make a written report of its preliminary findings. See F.L. § 5-706. BCDSS may file a petition alleging that the child is a CINA under the Juvenile Causes Act. Upon a finding of a preponderance of the evidence, the court may order the child committed to the care and custody of BCDSS until such order is terminated by the court. C.J. §§ 3-820(c)(1)(ii), 3-825.

After the court adjudicates a child a CINA and commits the child to BCDSS, the Department must develop and implement a permanency plan that is based on the best interests of the child.⁴See F.L. § 5-525(b)(2). The court must hold a permanency planning review hearing no later than 11 months after the child enters an out of the home placement, see C.J. § 3-826.1(a)(1), and then conduct hearings to review the permanency plan no less frequently than every 6 months until commitment is rescinded, see C.J. § 3-826.1(f). At the review hearings, the court determines the necessity of continuing the commitment, the extent of compliance with the plan, the extent of progress toward alleviating the causes of the commitment, and the appropriateness of changing the plan. See id. The child who is the subject of these proceedings is a party to the review hearings, and is entitled to the assistance of counsel. See C.J. §§ 3-801(r); 3-821; 3-834.

If the permanency plan becomes adoption, BCDSS may petition the court for guardianship.⁵ See F.L. § 5-525.1. The court is then directed to schedule the termination of parental rights hearing in lieu of the next 6 month review hearing. See C.J. § 3-826.1(e)(2). The child's party status continues in the guardianship proceedings. See C.J. § 3-801(r); Rule 11-101(a).

Procedurally, BCDSS initiates termination of parental rights proceedings by filing a petition. See Rule 9-103. BCDSS must then serve the court-issued show cause order on the parents. See Rule 9-105(a), (b)(2). Rule 9-107 provides that "[a]ny person having a right to participate in a proceeding for adoption or guardianship may file a notice of objection to the adoption or guardianship" and that, except in case of out-of-state service, "any notice of objection to an adoption or guardianship shall be filed within 30 days after the show cause order is served." The show cause order states the thirty-day time period in which an objection to the petition may be filed. See Rules 9-105(h), 9-107(b)(1). Service of the show-cause order triggers the running of this thirty-day period. See Rule 9-107(b)(1).

If a petition for guardianship is filed after a juvenile proceeding in which the child has been adjudicated a CINA, a petitioner shall also give notice of the filing of the petition for guardianship to the attorney who represented a natural parent in the juvenile proceeding and the attorney who represented the minor child in the juvenile proceeding. Notice to the attorney for the child must be in the form of copies of the show-cause order and petition, and must be sent by first-class mail. See F.L. § 5-322(a)(ii); Rule 9-105(f).

Before entering a decree of adoption, the court must hold a hearing. See F.L. § 5-324.1. In a "contested" guardianship action, prior to entering a judgment of guardianship, the court must hold a hearing on the merits and make on the record findings as required by F.L. § 5-313. See Rule 9-109. Once an objection is noted by a party, the petition becomes contested. The court must be satisfied by clear and convincing evidence that it is in the best interest of the child to terminate the natural parents' rights as to that child. See F.L. § 5-313(a); Santosky v. Kramer, 455 U.S. 745, 769, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

A parent may affirmatively consent to a petition to terminate parental rights pursuant to F.L. § 5-314; parental consent also may be statutorily deemed. If a parent does not note a timely objection, the court then deems the parent to have consented by operation of law. See F.L. § 5-322(d). The court may waive the notice requirement to a parent if the parent cannot be located after reasonable efforts are unavailing. See F.L. § 5-322(c). When this occurs, the court may consider the parent to have consented to termination. See F.L. § 5-322(d). When each parent affirmatively consents, or is deemed to have consented, F.L. § 5-317 provides that the court may grant the decree of guardianship only after any investigation and hearing the court considers necessary. The statute does not address the situation presented herein, i.e., when a child, but not the parent, objects to the guardianship.

II. The Individual Cases

With this statutory framework in mind, we turn to the facts of the cases before the Court.

A. Jamal L., No. T98097012

Jamal L. was born on November 15, 1988. He appeals from the termination of his natural parents' parental rights. He came into the custody of BCDSS on July 12, 1995 under an Order of Shelter Care issued by the Juvenile Court pursuant to statute. He was adjudicated a CINA on August 21, 1995 and committed to BCDSS for relative placement on September 21, 1995. On April 24, 1998, BCDSS filed a petition for guardianship with the right to consent to adoption or long term care short of adoption pursuant to F.L. § 5-317.

Jamal's mother, Carolyn M., was served with the petition and show-cause order. She did not object within the 30-day time limit. BCDSS filed a motion to waive notice of the petition to Jamal's father, Jamal L., Sr. At a pre-trial conference before a Master of the Circuit Court, the Master found that Ms. M. had defaulted and recommended the court grant BCDSS' motion to waive notice to Jamal's father, Mr. L., pursuant to F.L. § 5-322(c).

Ms. M. was unrepresented by counsel. On November 6, 1998, at the hearing on the petition before the Circuit Court, she requested a postponement in order to obtain counsel. She told the court that she had not understood the petition or the show-cause order and that she objected to the termination of her parental rights, and requested the court to vacate the consent. The court denied her requests and proceeded with the hearing. The court granted BCDSS' request to waive notice to Jamal's father and deemed both parents to have consented to the termination.

At the hearing, Jamal was represented by counsel. He objected to the petition and requested that the court conduct a trial on the merits, or in the alternative, hold the case sub curia pending the decision of the Court of Special Appeals in the case of Christopher C., In re Adoption/Guardianship No. T97036005, No. 783, Sept. Term, 1998 (Md.Ct.Spec.App. Feb. 10, 1999). In support of his request, Jamal proffered the following: that Jamal and three caseworkers believed that Jamal's permanency plan developed by BCDSS pursuant to F.L. § 5-525(b)(2), (e), and (f),...