In Re Adoption/Guardianship No. 6Z970003

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 ³⁸ 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 ³⁹ 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 Ms opposition a report by Ms 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 oí] 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 Ms 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. ⁴⁰ 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- ⁴¹ 301(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 CIÑA 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(e)(8). 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. § o-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 CIÑA, 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 ⁴² proceeding.

F.L. § 5-322(a)(l)(ii)(l). 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 “involun ⁴³ tary 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)(l)(iv). It is clear that the statutory scheme outlined above does not require that the court conduct a hearing on a petition for guardianship when neither living natural parent has withheld consent, unless the court considers that a hearing is necessary. F.L. § 5-317(c)(l). In this case, Justus’s only living natural parent, George W., did not withhold his consent to the guardianship.

On the contrary, because he could not be found, notice to him was waived and he was deemed to have consented to the guardianship by operation of law. F.L. § 5 — 322(d); In re Adoption/Guardianship No. 93321055/CAD, 344 Md. 458 , 687 A.2d 681 (1997). Because it concluded that Justus’s rights were not at stake, the juvenile court found that the hearing that Justus had requested was not necessary, and granted the petition without it. II Justus first contends that the juvenile court committed legal error because it denied him a hearing on the ground that it did not have the discretion to grant him one under the Family Law Article.

This contention is not supported by the record. At no time during the oral argument on the question whether to grant Justus a hearing did the juvenile court indicate a belief or understanding that it was without discretion to do so. In fact, the record of the juvenile court’s ruling makes plain that the court knowingly exercised its discretion to deny Justus a hearing because it did not consider a hearing to be necessary, in accordance with the standard set forth in F.L. § 5-317(c). The primary question in this case thus becomes whether Justus has a liberty interest in his filial relationship with his ⁴⁴ father that the State cannot disrupt without due process of law and, if so, whether the process to which Justus is due includes the opportunity to present evidence to the court.

If so, the juvenile court did not have discretion to deny Justus the opportunity to present evidence, and erred in denying his request to be heard. Ill (a) Justus contends, as he did below, that his liberty and property interests were at stake in the guardianship proceeding and, therefore, under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, he was entitled to at least a minimum of procedural safeguards, including the opportunity to be heard, before the State could deprive him of those interests. DHHS counters that the only constitutionally protected interest implicated by its petition for guardianship was George W.’s parental rights, and that because he had consented to the guardianship, a hearing was not required either under principles of due process or under the guardianship statute. The Fourteenth Amendment provides that no State shall deprive a person of life, liberty, or property without due process of law.

U.S. Const, amend. XIV § 1. Among other things, the Due Process Clause affords a right to “procedural due process,” that is, a constitutionally required minimum of procedural safeguards, in connection with a deprivation of life, liberty, or property by the State. Daniels v. Williams, 474 U.S. 327, 337 , 106 S.Ct. 662 , 88 L.Ed.2d 662 (1986) (Stevens, J. concurring). 6 ⁴⁵ We must begin our analysis of whether Justus’s constitutional right to procedural due process was violated by determining the nature of the private interest that he contends was threatened by the State in the guardianship action. “Only after that interest has been identified, can we properly evaluate the adequacy of the State’s process ...

We therefore first consider the nature of the interest in liberty for which appellant claims constitutional protection and then turn to a discussion of the adequacy of the procedure that [the State] has provided for its protection.” Lehr v. Robertson, 463 U.S. 248, 256 , 103 S.Ct. 2985 , 77 L.Ed.2d 614 (1983) (citing Morrissey v. Brewer, 408 U.S. 471, 482-83 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972)); Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 838-39 , 97 S.Ct. 2094 , 53 L.Ed.2d 14 (1977) (“Our first inquiry is whether [challengers] have asserted interests within the Fourteenth Amendment’s protection of ‘liberty’ and ‘property.’ ”) We note, preliminarily, that children are “persons” under the Constitution and possess some constitutional rights. See e.g. Bellotti v. Baird, 443 U.S. 622, 633 , 99 S.Ct. 3035 , 61 L.Ed.2d 797 (1979) (plurality opinion) (“[a] child, merely on account of his minority, is not beyond the protection of the Constitution”); Planned Parenthood v. Danforth, 428 U.S. 52, 74 , 96 S.Ct. 2831 , 49 L.Ed.2d 788 (1976) (“Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority”); In re Gault, 387 U.S. 1, 13 , 87 S.Ct. 1428 , 18 L.Ed.2d 527 (1967) (“whatever may be their precise impact, neither the Fourteenth Amendment nor the Bill of Rights is for adults alone”); Parham v. J.R., 442 U.S. 584, 600 , 99 S.Ct. 2493 , 61 L.Ed.2d 101 (1979) (child has substantial liberty interest in not being confined unnecessarily for medical treatment). Nevertheless, a child’s liberty interests are not identical to those of an adult.

The Supreme Court has long recognized the “special needs of children,” and thereby justified treating them differently than ⁴⁶ adults. Bellotti, supra, 443 U.S. at 634 , 99 S.Ct. 3035 ; See also, May v. Anderson, 345 U.S. 528, 536 , 73 S.Ct. 840 , 97 L.Ed. 1221 (1953) (Frankfurter, J., concurring) (stating that “[c]hildren have a very special place in life which law should reflect. Legal theories and their phrasing in other cases readily lead to fallacious reasoning if uncritically transferred to determination of a State’s duty towards children.”). In this case, the liberty interest that Justus maintains warrants protection in the guardianship proceeding is his filial bond to the natural father with whom he lived until he was five years old but with whom he has had no contact for seven years. “It is an established part of our constitutional jurisprudence that the term ‘liberty’ in the Due Process Clause extends beyond freedom from physical restraint.” Michael H. v. Gerald D., 491 U.S. 110, 121 , 109 S.Ct. 2333 , 105 L.Ed.2d 91 (1989) (plurality opinion by Scalia, J.). “[T]he Supreme Court has consistently maintained that ‘freedom of personal choice in matters of ... family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.’ ” Halderman v. Pennhurst State School and Hospital, 707 F.2d 702, 706 (3rd Cir., 1983) (quoting Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-40 , 94 S.Ct. 791 , 39 L.Ed.2d 52 (1974)).

Furthermore, it is well-settled that the parent-child relationship gives rise to a liberty interest in the parent that may not be terminated by the State absent procedural safeguards that allow for fundamental fairness. See, e.g., Stanley v. Illinois, 405 U.S. 645 , 92 S.Ct. 1208 , 31 L.Ed.2d 551 (1972) (holding that statute conclusively presuming that unwed father is unfit to have custody regardless of the actual relationship between father and child violates Due Process Clause); Lassiter v. Department of Social Services, 452 U.S. 18 , 101 S.Ct. 2153 , 68 L.Ed.2d 640 (1981) (holding that a parent’s desire for and right to companionship, care, custody, and management of his or her child is an important interest that warrants deference and protection absent a powerful countervailing interest); Santosky v. Kramer, 455 U.S. 745 , 102 S.Ct. 1388 , 71 L.Ed.2d 599 (1982) (holding that a parent has a protected liberty interest in relationship ⁴⁷ with child that State cannot sever absent proof of unfitness by clear and convincing evidence). The United States Supreme Court has not addressed directly the question whether a child’s filial bond to his parents is a protected liberty interest under the Due Process Clause. In a case involving the termination of parental rights, the Court made plain, however, that the relationship between parent and child is neither one-sided nor one-dimensional: “The intangible fibers that connect parent and child have infinite variety.

They are woven throughout the fabric of our society, providing it with strength, beauty, and flexibility. It is self-evident that they are sufficiently vital to merit constitutional protection in appropriate cases.” Lehr v. Robertson, 463 U.S. 248, 256 , 103 S.Ct. 2985 , 77 L.Ed.2d 614 (1983) (also observing, id. at 258 , 103 S.Ct. 2985 , that “the relationship of love and duty in a recognized family unit is an interest in liberty entitled to constitutional protection .”). In a context outside of the termination of parental rights, one federal appeals court has recognized the existence of such a liberty interest. Smith v. Fontana, 818 F.2d 1411 , 1418 (9th Cir.), cert. denied, 484 U.S. 935 , 108 S.Ct. 311 , 98 L.Ed.2d 269 (1987) (“[C]onstitutional interest in familial companionship and society logically extends to protect children from unwarranted stated interference with their relationships with their parents.

The companionship and nurturing interests of parent and child in maintaining a tight familial bond are reciprocal, and we see no reason to accord less constitutional value to the child-parent relationship than we accord to the parent-child relationship.”). See also Franz v. United, States, 707 F.2d 582, 595 (D.C.Cir.1983) (freedom of personal choice in matters of family life that constitutes a fundamental liberty interest includes “the freedom of a parent and child to maintain, cultivate, and mold their ongoing relationship.”). Our analysis of whether Justus K., as a child, has a liberty interest in his relationship with George W., as his father, that is entitled to constitutional protection is best guided by the Supreme Court’s plurality decision in Michael, H. v. Gerald D., ⁴⁸ supra, in which the Court assumed, without deciding, that a child “has a liberty interest, symmetrical with that of her parent, in maintaining her filial relationship.” 491 U.S. at 130 , 109 S.Ct. 2333 . In that case, Carole D. gave birth to a daughter, Victoria, by Michael H., who was not her husband.

When Victoria was conceived and born, Carole was married to Gerald D. Carole listed Gerald as Victoria’s father on her birth certificate and Gerald thought that he was Victoria’s father. Soon after Victoria was born, Gerald and Carole separated and Gerald moved to another state. Carole, Michael, and Victoria then underwent blood tests that confirmed that Michael was Victoria’s biological father. Carole and Victoria took up residence with Michael, who held the child out as his own.

Carole later left that arrangement, and she and Victoria moved in with a third man. Subsequently, Carole and Victoria resumed living with Michael for an eight month period, during which he again held Victoria out as his own. Eventually, Carole reconciled with Gerald, with whom she later had two children. When Carole rebuffed Michael’s attempts to visit Victoria, he brought an action in California state court to establish his paternity and right to visitation.

Through a guardian ad litem, Victoria joined in Michael’s request. Gerald intervened in the action and moved for summary judgment, citing the California statute that provides that a child born to a married man who is not impotent or sterile and who is cohabiting with his wife is conclusively presumed to be the child of the marriage. Gerald argued that under that statute, Michael could not prevail, regardless of whether he could prove that he was Victoria’s natural father. The court agreed, and entered judgment in Gerald’s favor.

On appeal, Michael and Victoria asserted that the California paternity statute violated their substantive and procedural due process rights. After the California appellate courts affirmed the statute’s constitutionality, the United States Supreme Court issued a writ of certiorari. Michael argued that the paternity statute was unconstitutional because the requirements of procedural due process prevented the State from terminating his liberty ⁴⁹ interest in his relationship with Victoria without affording him the opportunity to present proof of his paternity in an evidentiary hearing. 491 U.S. at 119 , 109 S.Ct. 2333 . In so asserting, he relied upon Supreme Court cases that he read as holding that a liberty interest in the parent-child relationship is created by “biological fatherhood plus an established parental relationship.” Id. at 123 , 109 S.Ct. 2333 .

See Lehr v. Robertson, 463 U.S. 248 , 103 S.Ct. 2985 , 77 L.Ed.2d 614 (1983) (holding that biological father has constitutionally protected interest in opportunity to develop a relationship with offspring; if he fails to act on that opportunity, he is not denied due process of law by state adoption statute that did not afford him notice); Quilloin v. Walcott, 434 U.S. 246 , 98 S.Ct. 549 , 54 L.Ed.2d 511 (1978) (holding that adoption of child by new husband of child’s mother did not violate due process rights of father who had not sought visitation or to legitimate child until adoption proceeding was commenced); Caban v. Mohammed, 441 U.S. 380 , 99 S.Ct. 1760 , 60 L.Ed.2d 297 (1979) (holding that unwed father who had lived with mother and children for several years had a constitutionally protected liberty interest in relationship with children that could be overcome in adoption proceeding only by showing that State had an equally important interest); Stanley v. Illinois, supra. A plurality of the Court rejected Michael’s argument. It reasoned