In Re Adoption/Guardianship No. T97036005

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 ³ Code (1973, 1998 RepLVoL, 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. ⁴ “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)(l)(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. 4 See 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 ⁵ 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)(l). If a petition for guardianship is filed after a juvenile proceeding in which the child has been adjudicated a CIÑA, 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 ⁶ 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 ⁷ 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 cuña 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), was reunification with his mother, not adoption; that the mother, who had been living with her mother, was near the top of a waiting list for public housing, had a full-time job, and was attending parenting classes; and that Jamal wanted to be with his mother. The Circuit Court denied both requests, granted the petition terminating the parents’ rights and entered a decree awarding guardianship to BCDSS. A timely appeal to the ⁸ Court of Special Appeals was noted on Jamal’s behalf and this Court issued a writ of certiorari on its own motion before review by that court. B. Dimitri D., No. T982650H Dimitri D. was born on November 5, 1989.

He appeals from the termination of his natural parents’ parental rights. He came into the care and custody of BCDSS and was adjudicated a CINA on October 29, 1996. BCDSS filed a petition for guardianship with the right to consent to adoption or long-term care short of adoption on September 30, 1998. Dimitri’s father, Dimitri D., in prison at the time the petition was filed, executed a written consent granting BCDSS’ request for guardianship with the right to consent to adoption or long-term care short of adoption of Dimitri.

Valerie G., Dimitri’s mother, was served on October 22, 1998, with the show cause order and petition, but she did not file a notice of objection within 30 days. She was deemed to have consented by operation of law. Dimitri was represented by counsel at the hearing in the Circuit Court. His counsel objected to the court granting the petition based on his parents’ consent, and requested a postponement and trial on the merits.

In support of this request, counsel proffered that Dimitri frequently visited his father in' prison, that he wished to be reunited with his mother and that he wanted a relationship with his parents. The court denied Dimitri’s request for a hearing on the merits and granted the Department’s petition. A timely appeal to the Court of Special Appeals was noted on Dimitri’s behalf, and this Court issued a writ of certiorari on our own motion. C. Iesha E., No. T98198001, Iesha E. was born on January 28, 1991.

She appeals from the termination of her natural parents’ parental rights. She was adjudicated a CINA and committed to the care of BCDSS in 1996. BCDSS filed a petition for guardianship with the right to consent to adoption or long term care short of adoption of Iesha on July 17, 1998. Counsel was appointed to ⁹ represent Iesha.

Iesha’s mother, Valerie G., and her father, Anthony E., were both served with the petition and show cause order but neither objected. At the hearing before the Circuit Court on March 19, 1999, Iesha’s counsel requested that the court conduct a trial pursuant to F.L. § 5-313. In support of her request, she proffered the following: that Iesha had bonded with her parents and desired to continue her relationship with them and her siblings; that her mother would testify at the hearing that she and Anthony E., the father, had regular contact with Iesha; that Dimitri D., her brother, would testify that he has a relationship with Iesha and that he and Iesha talk about their mother; and that Iesha’s grandmother would testify that Iesha has a relationship with and feelings towards her parents and siblings. The Circuit Court denied Iesha’s request for a trial on the merits, noting that both parents were deemed to have consented to the petition by operation of law.

The court held that Iesha lacked standing to request a hearing, granted the petition and entered a decree of guardianship. A timely appeal to the Court of Special Appeals was noted on behalf of Iesha and this Court issued a writ of certiorari on our own motion before consideration by that court. D. Christopher C., No. T97036005 Christopher C. was born on April 9, 1989. He appeals from the termination of his natural parents’ parental rights.

BCDSS filed a petition for guardianship with the right to consent to adoption or long-term care short of adoption of Christopher on February 5, 1997. Christopher had been adjudicated a CINA on June 23, 1995. The Circuit Court appointed counsel to represent Christopher on February 19, 1997. Christopher’s mother, Patricia W., was served with the petition on August 28, 1997.

She did not respond within the statutorily required 30-day period. Because BCDSS was unable to locate Christopher’s father, Deconze C., for service, BCDSS moved to waive notice to him of the proceedings. Pretrial conferences were scheduled on September 25 and October 30, 1997, and January 22, 1998, although the record is ¹⁰ unclear whether conferences were held in September or October. A pretrial hearing was held in January, 1998, followed by a settlement conference in April, 1998.

The court set a merits hearing on the petition for May 1, 1998. At that hearing, Christopher’s counsel requested a postponement to ascertain Christopher’s views on the petition. The court denied the motion to reset the proceedings and granted BCDSS’s petition to waive notice to Christopher’s father. Christopher’s counsel advised the court that she had not decided whether to oppose the petition because she had reason to believe that terminating Christopher’s parents’ rights would be therapeutically contraindicated, that she wished to investigate that issue further, and that she was uncertain of Christopher’s views of the matter.

She argued that Christopher was a party to the guardianship proceedings and that he had a right to present evidence on the statutory factors bearing on the determination of the best interest of the child. The court inquired whether it would “need to consider those factors if there are two [parental] consents.” Counsel maintained that, because the child’s position is one of the statutory factors the court must consider in deciding whether to grant the petition, “the child’s voice must be heard.” BCDSS opposed the postponement, arguing that Christopher’s position and any evidence he may present was irrelevant. Where both parents have consented or have been deemed to consent, BCDSS argued, the case is over, and the court need not consider anything more than the validity of the paperwork. After the court reviewed the circumstances that caused Christopher to come into foster care, the inability to locate the father, and the failure of the mother to object, the court found it in Christopher’s best interest to grant the petition for guardianship and entered the decree.

A timely appeal was noted on Christopher’s behalf to the Court of Special Appeals. In an unreported opinion, that court affirmed the Circuit Court’s denial of Christopher’s motion for a postponement, holding that the denial was not an abuse of discretion. The ¹¹ court did not reach the merits of his appeal. This Court granted Christopher’s petition for writ of certiorari.

III

Respondent maintains that once the parents consent, either affirmatively or by having been deemed to have consented by operation of the statute, then the child’s view is irrelevant and the child no longer has standing to be heard on whether termination is in his or her best interests. No statute requires that an evidentiary hearing be held when parents consent to their children’s placement in guardianship. Whatever interest a child may have in continuing the legal relationship between himself and his natural parents who have demonstrated their own lack of interest in the relationship properly is protected by leaving to the trial court the determination of whether an evidentiary hearing is needed. F.L. § 5—317(c) provides that except as provided in F.L. §§ 5-313 and 5-313.1, the court may grant a decree awarding guardianship only after any investigation and hearing the court considers necessary.

BCDSS contends that based on the language of F.L. § 5-317(c), the decision as to whether to conduct an evidentiary hearing, where the parents have consented, lies within the discretion of the court, thereby permitting the court to make a case-by-case determination of the necessity of an evidentiary hearing. This interpretation suggests that the requirement in Rule 9-109 of a hearing on the merits in every “contested” guardianship action means that such hearing is required only when the action is contested by the parents, not when it is contested by the child. The four children emphasize that the question presented is a narrow one: whether the trial court may cut off a child’s legal connection to parents and family members by the application of a procedural shortcut—entry of a default 6 judg ¹² ment—without giving the child an opportunity to be heard on the guardianship. They argue that the statutory scheme for long-term guardianship and termination of parental rights, taken as a whole and in conjunction with the Maryland Rules, confers on them the right to the hearings they sought, and that the Legislature clearly intended that children have a sustained and meaningful voice throughout the course of the proceedings which affect them directly.

The plain meaning of these provisions, according to the children’s view, is as follows: A child in a guardianship proceeding, who has previously been adjudicated a CINA, is a party to the proceeding, because C.J. § 8-801(r) defines a “party,” for purposes of the Juvenile Causes Act, to include a ' child who is the subject of a petition. See also Rule ll-101(a), “Statutory definitions” (incorporating into the Rules governing juvenile causes the definition of party in C.J. § 3-801). Parties are entitled to be heard. The child is entitled to the assistance of counsel at every stage of any proceeding under the Juvenile Causes Act (with certain exceptions not here relevant) based on C.J. § 3-821(a); and F.L. § 5-323(a)(iv) provides for appointment of counsel for the child.

BCDSS is required to give notice of the filing of the petition for adoption or guardianship to each person whose consent is required. See F.L § 5-322(a)(l)(i). In addition to notice of filing as required under F.L. § 5-322(a)(l)(i), BCDSS is required to give notice of the filing of the petition for guardianship to the attorney who represented the minor child in the juvenile proceeding, see F.L. § 5—322(a)(l)(ii), and must send a copy of the petition and the show cause order to that attorney, see Rule 9-105(f). Rule 9-107 permits any person having a right to participate in a proceeding for adoption or guardianship to file a notice of objection to the adoption or guardianship, including a statement of the reasons for the objections and a request for the appointment of an attorney, the objection to be filed within 30 days after the show cause order is served. ¹³ The children argue that because a child is entitled to notice and counsel, a child who is the subject of the petition is entitled to object timely to the petition.

Rule 9-109 requires the court to hold a hearing on the merits in a contested guardianship or adoption action. In the children’s view, once a child has objected, the petition becomes a “contested guardianship action,” thereby requiring the court to hold a hearing on the merits. When the court holds a hearing in a guardianship action, Rule 9—109(b) requires the court to “make the findings required by Code, Family Law Article, § 5-313 on the record.” As support for the children’s position, they look to this Court’s recent decision in In re Adoption/Guardianship Nos. 11387 and 11388, 354 Md. 574 , 731 A.2d 972 (1999). There we held that a natural parent’s statutory right to counsel in a certain adoption-related hearing entailed that the natural parent had a right to an evidentiary hearing.

See id. at 583-84 , 731 A.2d at 977 . We agree with the children that under the circumstances presented herein, they have a right to a hearing on the merits of BCDSS’ petitions. Because we shall hold that the denial of a hearing on the merits violates the child’s statutory rights, we shall not reach the constitutional question. See Department of Corrections v. Henderson, 351 Md. 438, 451 , 718 A.2d 1150, 1156-57 (1998) (declining to reach constitutional issue when matter may be resolved on non-constitutional basis); Professional Nurses v. Dimensions, 346 Md. 132, 138 , 695 A.2d 158, 161 (1997) (same).

IV

A. The Child’s Party Status We believe that the express provisions of the Courts and Judicial Proceedings Article confer party status on the child. C.J. § 3-801 defines words as used in Subtitle 8 of the Courts and Judicial Proceedings Article, Juvenile Causes. C.J. § 3-801(a) states that “[i]n this subtitle, the following ¹⁴ words have the meanings indicated.” C.J. § 3-801(r) defines “party”: “Party” includes a child who is the subject of a petition, the child’s parent, guardian or custodian, the petitioner, and an adult who is charged under § 3-831 of this subtitle. The plain language of C.J. § 3-804(a) makes it clear that “a child who is the subject of a petition” under Subtitle 8 includes a child in termination of parental rights proceedings who previously has been adjudicated a CINA.

C.J. § 3-804(a) provides that the Circuit Court, sitting as the juvenile court, “has exclusive original jurisdiction” over “all termination of parental rights proceedings,” where the child “is under the jurisdiction of the Juvenile Court and previously has been adjudicated a child in need of assistance.” Because a child who is the subject of a petition under Subtitle 8 is a party, and a petition to terminate parental rights of the parents of a CINA comes under Subtitle 8, it follows that the children in the cases before us are parties to the actions upon BCDSS’ petitions. The conclusion that a child who is the subject of a petition to terminate parental rights is a party to the proceedings upon that petition is reinforced by the procedural context, discussed above, in which such a petition is filed. BCDSS argues that in a guardianship, adoption or termination action, BCDSS files a new petition, and the action is separate and distinct from the CINA proceeding, not a continuation of the CINA action. See Rule ll-501(d).

BCDSS is incorrect in asserting, however, that the child’s party status does not continue with the new petition. The definition of a party contained in C.J. § 3-801(r) governs the child’s role in the guardianship proceedings as well as in the CINA proceedings; indeed, it governs the child’s role in all cases within the jurisdictional grant of C.J. § 3-804. We hold that the child is a party to the guardianship proceedings as well as to the CINA proceedings. 7 ¹⁵ The relevant provisions of the Family Law Article and the Courts and Judicial Proceedings Article create a unified process. It would not be logical to impute to the Legislature an intent to make the child a party to procedures by which the child is committed to the custody of a local department, adjudicated a CIÑA, and periodically reviewed for permanency planning, only to then deprive the child of that very status when the process turns toward adoption or guardianship with the right to consent to adoption, and seeks to sever the child’s legal relationship with the parents.

We hold that in creating the statutory scheme governing the status of a child in a termination of parental rights action following a CINA action, the Legislature intended to make the child a party to the proceeding. It is well established that a parent has a liberty interest in the parent-child relationship. See Stanley v. Illinois, 405 U.S. 645, 651-52 , 92 S.Ct. 1208 , 31 L.Ed.2d 551 (1972). To date, the Supreme Court has declined to decide whether the child has an interest in the parent-child relationship to match the ¹⁶ parent’s.

See Michael H. v. Gerald D., 491 U.S. 110, 130 , 109 S.Ct. 2333 , 105 L.Ed.2d 91 , (1989). In a case factually similar to the cases before us, however, the Court of Special Appeals held that a child, no less than the parent, has a constitutionally protected liberty interest in the preservation of parental rights. See In re Adoption/Guardianship No. 6Z970003, 127 Md.App. 33, 51 , 731 A.2d 467, 477 (1999). 8 As we have indicated, we do not reach the constitutional question. We recognize, however, that a child ordinarily has an interest in maintaining a close familial relationship with siblings, grandparents, aunts, uncles and cousins.

Smith v. Organization of Foster Families, 431 U.S. 816, 844 , 97 S.Ct. 2094 , 53 L.Ed.2d 14 (1977) (in dicta, discussing the importance of the emotional attachments arising out of the familial relationship). B. The Right to be Heard Common law principles establish that a party to an action ordinarily has a right to be