In re Katherine C., 32, September Term, 2005.

Citation890 A.2d 295,390 Md. 554
Decision Date17 January 2006
Docket NumberNo. 32, September Term, 2005.,32, September Term, 2005.
PartiesIn re KATHERINE C.
CourtCourt of Special Appeals of Maryland

Julia Doyle Bernhardt, Asst. Public Defender (Nancy S. Forster, Public Defender, on brief), Baltimore, for Appellant.

Barbara T. Strong, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of MD, on brief), Baltimore, for Appellee.

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

CATHELL, Judge.

This case1 arises from the use of the Maryland Child Support Guidelines2 (the "Guidelines") by the Circuit Court for Montgomery County, while sitting as a juvenile court in a permanency plan review hearing3 for Katherine C. The court initially established a child support obligation at the July 22, 2004, hearing in response to the father, Robert C.'s, Motion to Determine (and Allocate) Child Support. The resulting order relieved Victoria C. (hereinafter appellant), of any child support obligation. On March 21, 2005, the Circuit Court held a permanency plan review hearing at which, without prior notice to the parties that the hearing would concern issues of support, it re-evaluated the child support situation of Katherine C., applied the child support guidelines under Md. Code (1984, 1999 Repl.Vol., 2004 Supp.), § 12-204 of the Family Law Article, and entered an order4 providing that appellant, the child's mother, "shall pay $282 per month in child support ... to begin on May 1, 2005. . . ." On March 24, 2005, appellant filed a Motion for Reconsideration of the order to pay child support stating that she was a destitute parent as defined in Md.Code (1984, 1999 Repl.Vol.), § 13-101(c) of the Family Law Article.5 On April 13, 2005, the Circuit Court entered an order denying appellant's Motion for Reconsideration. On July 7, 2005, appellant noted an appeal to the Court of Special Appeals. This Court, on its own initiative and prior to any proceedings in the intermediate appellate court, granted certiorari. In re Katherine C., 388 Md. 97, 879 A.2d 42 (2005). Appellant submits three questions:

1. "May a juvenile court exercising jurisdiction in a CINA[6] case use the Maryland Child-Support Guidelines to calculate the child-support amount, where the child is in the custody of a government agency?"

2. "May a juvenile court exercising continuing jurisdiction in a CINA case at a permanency-plan-review hearing enter an order establishing or modifying a parent's obligation to pay child support, and may it do so in the absence of a pleading filed by any party requesting the entry or modification of a child-support order, and without affording adequate notice to the parent?" [Emphasis added.]

3. "If so, did the juvenile court err or abuse its discretion in ordering the mother to pay child support to a government agency, where the mother met the statutory definition of an adult destitute child or parent, in that she is mentally retarded, was unemployed, her monthly expenses exceeded her monthly income, and where the child was in the custody of a government agency as the result of sexual abuse by the father, who is serving a sentence of imprisonment as a result of that abuse?"

We decline to answer question three as it does not plainly appear in the record to have been raised in or decided by the trial court.7 Md. Rule 8-131(a). We find that a juvenile court exercising jurisdiction in a CINA case may use the Guidelines to calculate the child support amount, where the child is in the custody of a government agency but, in such a circumstance, the actual total support awarded may not exceed the actual costs expended by the governmental agency. As to question two, however, we hold that adequate notice of the child support hearing was not provided to the appellant, and therefore, we vacate the decision of the Circuit Court for Montgomery County requiring appellant to pay child support.

I. Facts

Appellant and her ex-husband, Robert C. (hereinafter referred to as the husband or father), are the biological parents of Katherine C., born March 6, 1988. On October 3, 2003, at the age of fifteen, Katherine was removed from the care of her parents after the Montgomery County Department of Health and Human Services ("MCDHHS") filed a petition in the Circuit Court for Montgomery County alleging that Katherine was a Child in Need of Assistance (CINA).8 On November 3, 2003, the Circuit Court found Katherine to be a CINA after it was established that her father began having sexual relations with her on an ongoing basis when she was eight years old, and that her mother, appellant, had failed to protect the child. As a result of this finding, Katherine was placed in the John L. Gildner Regional Institute for Children and Adolescents (RICA), a residential treatment program for children and adolescents with severe emotional disabilities.

On June 21, 2004, the father filed a Motion to Determine (and Allocate) Child Support.9 The motion suggested that $10,500.00 he had paid into his attorney's trust account be used to support Katherine at the rate of $700.00 a month for the 15 months running retroactively from October 1, 2003, when Katherine went into care, through December 31, 2004. On July 21, 2004, appellant filed her own Motion for Establishment of Child Support.10 Both motions calculated support using the Guidelines.

On July 22, 2004, the Circuit Court conducted a CINA review hearing and a hearing to determine the amount of child support payable by Katherine's parents. On August 5, 2004, the Circuit Court entered a pendente lite order directing that the $10,500.00, minus $150.00 which had already been expended on behalf of Katherine, paid by the father to his attorney's trust account, be used to satisfy his obligation of $700.00 per month in child support. Of the $700.00 per month, $500.00 was payable to MCDHHS as reimbursement for the cost of Katherine's care and $200.00, to be administered by MCDHHS, would be utilized for Katherine's future expenses. The total amount of $10,350.00 satisfied the father's child support obligation retroactive from October 1, 2003 through December 31, 2004. It was further ordered at that hearing that appellant would not be obligated to pay child support because of her marginal income. Finally, the order stated "that the matter of the parents' respective child support obligations on behalf of [Katherine C.] shall be subject to further review by th[e] [Circuit] Court after December 31, 2004."

On March 21, 2005, the Circuit Court held a regular permanency plan review hearing and, without prior notice to appellant that it was going to do so, revisited the child support issue. At the time, the father was incarcerated for charges relating to the child abuse of Katherine and therefore, unable to pay child support.11 The court inquired at the review hearing as to whether appellant was in a position to pay child support at the time.

Counsel for appellant stated that "my client is operating with an IQ of about 62, and she needs a lot of help, . . ." but "she wants her daughter to have as much support as she can to get all of the money that she possibly can . . ." and that "[a]s soon as her record is expunged, she is going to be able to go back to work at the daycare."12 Counsel stated that: "She does have a driver's license. She is actually amazingly high-functioning given her intellectual abilities." The court asked whether appellant had a job and counsel replied: "Yes, she says, in two weeks. That is what she has told me." Counsel continued, stating that "[appellant] would like to give every penny she has to her daughter, Your Honor." The colloquy continued:

"[APPELLANT'S COUNSEL]:—and this is the issue that we had when we were in here with Judge Savage and my client had a divorce attorney who represented her and did the child support. And he explained to Judge Savage that my client's desire is to give every penny she has to her daughter, but Judge Savage recognized, because of my client's limitations, that she is going to have some trouble supporting herself and that she shouldn't be ordered to pay child support.

THE COURT: Well, the fact that she is wanting to give every penny is nice, but it really doesn't get to the heart of the issue. The heart of the issue is, is there an ability to pay support."

Appellant testified that she would be starting back at work in a few weeks. She stated that she would be making $9.25 an hour and working forty hours a week, netting $400.00 every two weeks. She also testified that she owned a car and would drive herself to and from work. The court determined that, based upon these facts, appellant should pay child support. Applying the Guidelines, the court found that with an income of $19,240.00 a year, or $9.25 an hour, taking into account a $200.00 per month credit for health insurance payments, the guidelines provided for child support payments of $282.00 a month.13

Counsel for appellant objected, stating that "because of her cognitive limitations, I don't think it is fair to base any order on her representations .... She doesn't have her child support attorney here, and we weren't scheduled to be here to determine whether she has a child support obligation." [Emphasis added]. In consideration of the objection, the court made the order pendente lite, stating, however, "[b]ut, if I felt that she didn't have the ability to pay and I felt she didn't understand, she has done very well, she has answered every question perfectly ...." The court then, over continuing objection, set the order for $282.00 in child support per month to begin on May 1, 2005.

On March 24, 2005, appellant filed a Motion for Reconsideration of the order to pay child support. She alleged that she is a disabled or destitute parent as defined by Md.Code (1984, 1999 Repl.Vol., 2004 Supp.), § 13-101(c) of the Family Law Article. The motion also alleged that appellant was unemployed and that her testimony at the March 21, 2005, hearing...

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