In re Blessen H., 71, September Term, 2005.

• Decision Date: 11 May 2006
• Docket Number: No. 71, September Term, 2005.,71, September Term, 2005.
• Citation: 898 A.2d 980,392 Md. 684
• Parties: In re BLESSEN H.
• Court: Court of Special Appeals of Maryland

898 A.2d 980

392 Md. 684

In re BLESSEN H.

No. 71, September Term, 2005.

Court of Appeals of Maryland.

May 11, 2006.

Nenutzka C. Villamar, Asst. Public Defender (Nancy S. Forster, Public Defender, Baltimore), on brief, for petitioner.

Nancy Cowgill Hopkins, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, Baltimore), on brief, for respondent.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

BATTAGLIA, J.

This case arises out of an adjudicatory¹ and disposition hearing² held in the Circuit Court for Montgomery County, sitting as a juvenile court, during which Blessen H. was declared a child in need of assistance ("CINA")³ pursuant to a stipulated set of facts to which counsel for Blessen H.'s mother, Tynetta H. ("Ms. H."), had consented. Thereafter, Ms. H. filed a petition for writ of certiorari in this Court to consider the following question:

Whether in a CINA proceeding, the right to a contested adjudicatory hearing may be waived only by the parent's personal,⁴ knowing, intelligent and voluntary waiver.

We granted the petition and issued the writ of certiorari, In re Blessen H., 389 Md. 124, 883 A.2d 914 (2005). We shall hold that Ms. H.'s attorney's acceptance of the stipulated facts in the CINA petition constituted a sufficient waiver of Ms. H.'s right to a contested CINA adjudicatory hearing.

The relevant facts in this case are procedural. On July 29, 2003, the Montgomery County Department of Health and Human Services (the "Department") filed a petition alleging that Blessen H. was a Child In Need of Assistance. On September 2, 2003, pursuant to Maryland Code (1973, 2002 Repl. Vol.), Section 3-817 of the Courts and Judicial Proceedings Article,⁵ an adjudicatory hearing was held in the Circuit Court for Montgomery County, sitting as a juvenile court, to determine whether the allegations in the petition were true. The following colloquy ensued during the hearing at which Ms. H., her counsel, Sheldon A. (Blessen's father), and the Department were present:

THE COURT: Now, this is set for trial today. Tell me how we're proceeding.

THE DEPARTMENT: Well, Your Honor, we have had some discussions, I think as I indicated before we were on the record with this case, attempting to see if we could reach any type of agreement.

This case is a little different than our normal scheduled cases because there was a conflict with the pretrial date. Counsel for the mother attempted to reschedule and file a motion, I believe, in that attempt, and because of different people's calendars and court calendar conflicts, we were never able to have a pretrial scheduled in this case.

THE COURT: Right.

THE DEPARTMENT: I had discussions with [Ms. H.'s counsel] outside, and while she said her client was not of a mind, in the brief time that we were talking, to reach an agreement, she did talk to her about what her thoughts would be about discussion with a mediator. And I believe she had some comments on that point with regard to her client's willingness to have settlement discussions with us with the assistance of the mediator. If one were available.

* * *

COUNSEL FOR MS. H.: Yes, I did discuss with my client, and she is in agreement. If we could try to mediate this, she is willing to do that.

The court then iterated that, should mediation not be successful, a trial would not be possible later that day, and asked the parties:

THE COURT: Tell me what you want to do? I'll start the trial right now. I will send you to mediation at 1:30. I will have this trial later this afternoon. We'll get the administrative judge to continue the trial if mediation is not fruitful, so we don't have to do it this afternoon.

You just tell me what you want me to do. If you all think that mediation will be fruitful, then it's probably a good use of time.

THE DEPARTMENT: I would like to at least attempt mediation.

COUNSEL FOR MS. H.: My client wants mediation. She wants to mediate.

Thereafter, the court adjourned, and the parties entered into mediation.

Later that afternoon, after mediation, the parties returned to the courtroom and the adjudicatory hearing continued:

THE DEPARTMENT: Your Honor, we did reach an agreement based on an amended petition.

* * *

THE COURT: All right. You do have an amended petition? Go ahead.

THE DEPARTMENT: The amended petition is amended by handwriting and I placed at the top, "Factual Basis for CINA, September 2/03."

THE COURT: Does everybody have a copy of this, or do you want us to make copies? Did you make copies?

THE DEPARTMENT: We made copies.

* * *

THE COURT: [I]s it everyone's position, then, that these facts should be sustained and form the basis for a finding of CINA?

COUNSEL FOR THE CHILDREN: Yes, Your Honor.

COUNSEL FOR MS. H.: Yes, Your Honor.

SHELDON A.: Yes, Your Honor.

THE COURT: All right. I will make such a finding, that based on the agreement of all counsel and parties, because Mr. A. is here without counsel, that the facts alleged are now facts sustained, and they form a basis for a finding of CINA, and I will so find, that the child Blessen H. is a child in need of assistance.

The parties' agreement was placed on the record by the Department; it called for Blessen H. to stay in foster care until successful completion of a home study of the paternal grandmother's home, after which Blessen H. would be placed with the paternal grandmother, with weekly supervised visitation with Sheldon A., monthly supervised visitation with Ms. H., and no visitation with her maternal grandmother, Ms. G.

At the conclusion of the proceedings, the court brought Ms. G. into the courtroom to inform her that she was to have no contact with Blessen until further notice. Ms. G. then asked the judge if she could have the opportunity to explain her involvement in a prior incident with Blessen and Ms. H. that was of concern to the court, whereupon Ms. G. began to place blame for the incident on Ms. H., to which Ms. H. responded:

MS. H.: I can't deal with this. It's so many lies on this place. It's just ridiculous.

COUNSEL FOR MS. H.: Shhhh.

MS. H.: It really is. You know. I'm trying to be the best parent I can be. I have already been slandered by DHS.

Sheldon don't like some of this. And I have swallowed my pride to try to get this court hearing done. Okay.

I don't deserve this. I've been the best mother I can be.

I have listened to you, Your Honor, have saying things to me, and you haven't even asked me about my own character. You haven't even asked me —

THE COURT: Asked you about your own what?

MS. H.: My own character. How did I end up in this situation. Why was I traveling? Why was my child not in a stable home? Some of these things are not —

THE COURT: Well, you have an attorney, ma'am, and I was listening to your attorney.

MS. H.: I can't speak no more, Your Honor. I really can't.

THE COURT: Well, then, don't.

MS. H.: I really can't.

THE COURT: Okay.

MS. H.: You can go ahead and do the trial. I need to sit outside.

THE COURT: Well, there isn't any trial. This is finished.

Ms. H. subsequently appealed to the Court of Special Appeals alleging that her attorney's stipulation to the facts in the CINA petition was not sufficient to waive her right to a contested CINA adjudicatory hearing because the waiver had to have been made voluntarily, knowingly and intelligently by Ms. H. In a reported opinion, the Court of Special Appeals affirmed the trial court's CINA determination and emphasized that the requirement of a personal, voluntary, knowing and intelligent waiver has only been applied in punitive proceedings that carry the risk of incarceration. The intermediate appellate court noted that, although CINA proceedings implicate the fundamental right of a parent to raise his or her children, thereby demanding a certain level of due process, it is less than that owed an individual who faces the loss of personal liberty, and therefore, a personal waiver under the Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), standard was not required.

Ms. H. contends that CINA adjudicatory hearings represent the first step towards termination of a parent's right to raise his or her children, which, as a fundamental right, requires the highest level of due process protection. The significance of CINA adjudicatory hearings, she alleges, is reflected in the requirement contained in Section 3-817(b) of the Courts and Judicial Proceedings Article of the Maryland Code (1973, 2002 Repl. Vol.) of the strict application of the Maryland Rules of Evidence during the proceedings, as contrasted with the discretionary application of the Maryland Rules of Evidence in CINA shelter care hearings,⁶ disposition hearings, permanency planning hearings,⁷ and subsequent review hearings.⁸ Moreover, Ms. H. points out that parents have the right to representation by counsel during CINA adjudicatory hearings, and that indigent parents are provided counsel at the State's cost.⁹ Ms. H., therefore, maintains that, as due process requires both the strict application of the Maryland Rules of Evidence and representation by counsel during CINA adjudicatory hearings, so must it require the most stringent form of waiver to forego those proceedings. Ms. H. also claims that the strictest form of waiver is required because CINA proceedings can give rise to separate criminal proceedings against the parents. Accordingly, Ms. H. alleges that the right to a contested CINA adjudicatory hearing only can be waived where the record affirmatively discloses a personal, voluntary, knowing and intelligent relinquishment of the right by the parent herself, which requires a colloquy on the record in which the court would advise the parent of the right to have a contested CINA adjudicatory hearing, of the right to compel and present witnesses and to present evidence during the proceedings, that waiver of the hearing could lead to limitation of the parental rights, of the risk of...