In re Chaden M.

• Decision Date: 01 December 2009
• Docket Number: No. 586 September Term, 2009.,586 September Term, 2009.
• Citation: 189 Md. App. 411,984 A.2d 420
• Parties: In re ADOPTION/GUARDIANSHIP OF CHADEN M.
• Court: Court of Special Appeals of Maryland

984 A.2d 420

189 Md. App. 411

In re ADOPTION/GUARDIANSHIP OF CHADEN M.

No. 586 September Term, 2009.

Court of Special Appeals of Maryland.

December 1, 2009.

Juan P. Reyes (Nancy S. Forster, Public Defender, on the brief), Baltimore, MD, for Appellant.

David Craig Wright (Child Advocacy Project Eastern Shore, Inc., on the brief), Chestertown, MD, for Appellee.

Panel: SALMON, ZARNOCH and J. FREDERICK SHARER (Retired, Specially Assigned), JJ.

J. FREDERICK SHARER, Judge (Retired Specially Assigned).

In the Circuit Court for Baltimore City, Division of Juvenile Causes, the Baltimore City Department of Social Services ("the Department") filed a Petition for Guardianship with the Right to Consent to Adoption or Long Term Care Short of Adoption ("the Petition"), seeking to terminate the parental rights of April C. and Saint Sydney M. to Chaden M April C., represented by an attorney from the Office of the Public Defender, filed an objection to the Petition, but did so beyond the time provided by the juvenile court's Show Cause Order. The Department successfully moved to strike that late objection and the court granted guardianship to the Department. April C. and Chaden M. now contend in this Court that April C. received ineffective assistance of counsel, and is entitled to reversal.¹

Deciding an issue of first impression, we shall hold that, where there is a right to assistance of counsel in a termination of parental rights case, that right includes the right to the effective assistance of counsel. We also conclude that April C. received ineffective assistance of counsel because of the late filing, and shall remand this case in order to permit April C. to file a belated objection to the Petition.

PROCEDURAL HISTORY

Chaden M. was born on January 14, 2006, the son of April C. and Saint Sydney M.² On January 3, 2007, for reasons not stated in the record, Chaden M. was placed in foster care with the Department. Thereafter, on February 28, 2007, again for reasons not stated in the record, Chaden M. was found to be a Child In Need of Assistance ("CINA"), and committed to the care and custody of the Department.

On December 1, 2008, the Department filed the Petition that is the subject of this appeal, alleging that April C. may have a disability that made her incapable of consenting to the Petition, or participating in the guardianship/termination proceeding. The Petition alleged that the nature of April C's disability was related to mental health issues.

That same day, the juvenile court issued a Show Cause Order to April C. ("Show Cause Order"), warning her that:

2. RIGHT TO OBJECT; TIME FOR OBJECTING.

If this Order is served on you by February 2, 2009, and if you wish to object to the guardianship, you must file a notice of objection with the Clerk of the Court at the Baltimore City Juvenile Justice Center, 300 North Gay Street, Room A3320, Baltimore, Maryland, 21202 within 30 days after this Order is served on you. For your convenience, a form notice of objection is attached to this Order.

WHETHER THE PETITION REQUESTS ADOPTION OR GUARDIANSHIP, IF YOU DO NOT MAKE SURE THAT THE COURT RECEIVES YOUR NOTICE OF OBJECTION ON OR BEFORE THE DEADLINE STATED ABOVE, YOU HAVE AGREED TO A TERMINATION OF YOUR PARENTAL RIGHTS.

Pertinent to the issues on appeal, the Show Cause Order also informed April C. that she: (a) had a right to consult an attorney; (b) may have already had an attorney appointed for her based on statements in the Petition; and, (c) may be entitled to have an attorney appointed by the court on certain grounds, including, but not limited to, the following:

You are a parent of the person to be adopted or for whom a guardian is sought and:

A. You are under 18 years of age; or B. Because of the disability, you are incapable of consenting to the adoption or guardianship or of participating effectively in the proceeding; or

C. You object to the adoption and cannot afford to hire an attorney because you are indigent.

The Show Cause Order then warned:

IF YOU BELIEVE YOU ARE ENTITLED TO HAVE THE COURT APPOINT AN ATTORNEY FOR YOU AND YOU WANT AN ATTORNEY, YOU MUST NOTIFY THE COURT BEFORE THE TIME YOUR NOTICE OF OBJECTION MUST BE FILED. IF YOU DO NOT MAKE SURE THAT THE COURT RECEIVES YOUR NOTICE OF OBJECTION ON OR BEFORE THE DEADLINE STATED, YOU HAVE AGREED TO A TERMINATION OF YOUR PARENTAL RIGHTS.

On the same day the Petition and Show Cause Orders were filed, the Department also filed a Request for the Appointment of an Attorney to represent April C. Two days later, on December 3, 2008, April C. was personally served with the Show Cause Order and Petition. Additionally, April C.'s attorney, Cheryl Jeanine Smith, of the Office of the Public Defender, entered her appearance the same day.³

On March 3, 2009, more than 30 days after the Show Cause Order was served on April C., April C.'s attorney filed a Notice of Objection to the Petition alleging that April C. was "ready, willing and able to care" for Chaden M., and that "the termination of the natural mother's parental rights is not in [Chaden M.'s] best interest."

The Department then filed a Motion to Strike Late Objection, alleging that the Notice of Objection was filed beyond the 30 days permitted under Md. Rule 9-107 ("any notice of objection to an adoption or guardianship shall be filed within 30 days after the show cause order is served").

On March 27, 2009, April C.'s attorney filed a Response to Motion to Strike Objection, stating that it was "impossible" for April C. to file a Notice of Objection within 30 days of being personally served because she was arrested and detained on criminal charges until February 26, 2009.⁴ The Response also stated that on February 5, 2009, after meeting with April C. at the Baltimore City Women's Detention Center, her attorney agreed with the Department's initial assessment of a mental disability and therefore did not challenge the allegations in the Petition. Counsel's Response also alleged the following:

8. That upon the entry of appearance by undersigned counsel on or about December 3, 2009, the case proceeded to the setting of a Pretrial Conference, as the entry of counsel's appearance served as Respondent's Mother's Objection to the termination of her parental rights.

9. That at the Pretrial Conference on February 20, 2009, the [Department's] counsel averred that the agency was withdrawing its allegation of disability of Respondent's Mother yet failed to timely file an Amended Petition for Guardianship withdrawing the allegation of her disability.

10. That undersigned counsel filed a Notice of Objection on behalf of Respondent's Mother within thirty days of the [Department's] oral notice of its withdrawal of the allegation of disability with respect to Respondent's Mother.

11. That the practical effect of the [Department's] oral amendment is to deny Respondent's Mother the right to participate in the Termination of Parental Rights proceeding, thereby substantively impairing her right to due process. The Maryland Court of Appeals has said that ". . . when the State moves to abrogate that parent's fundamental liberty in the care, custody, and management of their children, it must provide parents with fundamentally fair procedures." See In re Adoption/Guardianship, No. 93321055, 344 Md. 458, 491, 687 A.2d 681, 697 (1997).

On May 7, 2009, the juvenile court held a hearing on two matters then pending: 1) the issue of April C.'s disability within the meaning of the pertinent rules, and 2) the Department's motion to strike April C.'s late objection.⁵ After first hearing testimony and considering argument on the issue of April C.'s disability, the court concluded that April C. was not disabled.⁶

The Department then requested the court to grant its motion to strike April C.'s late-filed objection to the Petition and Show Cause Order. April C.'s counsel asked the court to deny the motion, asserting:

And I'm going to do so for two reasons. 1) the Department in its petition had alleged disability and asked specifically that our office appoint an attorney. And at that point there was an acquiesced [sic] that she needed counsel and that consequently by the policy of this Court, I was appointed. So therefore I did not, because I acquiesced because I met with Ms. C. shortly thereafter once I learned that she was incarcerated, I was able to fit in and meet with her and discerned that she did have some disability. I didn't know all of the details, but I could discern as a layperson that there was an issue.

So therefore I went, and as is the policy here, I went on the fact that once my appearance is entered, it serves in effect as my client's objection to the termination of her parental rights. . . .

After the juvenile court and counsel discussed whether there was, indeed, such a policy that an entry of appearance by the public defender serves as a statutory objection, April C.'s counsel also raised a due process issue, arguing that April C. was denied due process because of the way the proceedings were conducted:

[APRIL C.'S COUNSEL]: And I think what's most pivotal here, the risk of error that here that's been created by the procedure in this case is to effectively deny Ms. C. her right to have counsel. On the one hand the Department is saying oh, she's disabled, she can not participate. They then withdraw that at the point where its beyond the time frame that she could object. If there is a challenge to the disability, the rule says the party is to promptly notify the parties and the Court so that there can be a disability hearing in order to determine whether she needs to be appointed counsel.

Counsel for the Department has indicated they filed their petition in December. It is not until February that they then by way of oral motion in Court to say oh no, now we've changed our mind. She's not disabled, we now want to withdraw that. So in effect, withdraws Ms. C.'s ability to have the assistance of counsel by our office.

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