In Re Adoption/Guardianship No. TPR970011

⁴⁶⁵ THEODORE G. BLOOM, Judge (retired), Specially Assigned. Appellee, the Prince George’s County Department of Social Services (DSS), filed a petition in the Circuit court for Prince George’s County for guardianship with the right to consent to adoption, or long-term care short of adoption, of a five-year-old boy. Approximately four and one-half months after being served with a copy of the petition and a show cause order, appellant, the child’s father, filed an objection to the petition. This appeal is from an order striking the father’s objection to the guardianship petition.

Background The show cause order served on appellant notified him that if he wished to object to the guardianship he must file, within thirty days, an objection (a form for which was attached to the order); that failure to object by the stated deadline could result in termination of his parental rights without his consent; that he was entitled to consult an attorney; and that if he were indigent an attorney might be appointed to represent him. Appellee moved to strike appellant’s objection as untimely. At a hearing on that motion, appellant testified that his reading skill “is not strong”; that he had a third grade education in Jamaica; that he worked as a carpenter; that he tried to read “this paper” (the show cause order); that he talked to his sister, who told him that she was trying to get a lawyer for him; that he had no money to hire a lawyer. He did not understand the show cause order; he did not understand that if he did not have money for a lawyer the court would provide counsel for him.

At that point in appellant’s testimony, the court interrupted, stating: I don’t want to cut you off, but there is not a darn thing I can do for you. You fall right in the auspices of that case [In re: Adoption/Guardianship No. 93321055/CAD in the Circuit Court for Baltimore City, 344 Md. 458 , 687 A.2d 681 (1997) ]. ⁴⁶⁶ Even though you couldn’t read that well, you knew someone. When you got the papers from the sheriff you had your sister, who read them to you. You knew that this was a controversy over your child.

You knew that. I am sure she told you to get private counsel. Even though you had CINA counsel or the Public Defender down below in the case, you missed the deadline. These deadlines are written in just about granite.

Maybe not granite. We could chip a little away from it. But not in your case. Your objection, filed late, is stricken, and the case will proceed without you.

James M. Diehl, who had represented appellant during the juvenile court proceedings that preceded the guardianship petition, in which appellant’s son was determined to be a child in need of assistance (CINA), proffered the following information: Mr. Diehl was the attorney who represented appellant in the CINA proceedings “for the last nine or twelve hearings that [appellant] attended — [appellant] was pro s'e in the first” — but he was not notified of the filing of the guardianship petition until Friday, 5 September 1998. (The thirty day period for response to the show cause order expired 23 May 1997.) Mr. Diehl was told of the pending guardianship petition during a telephone conversation with Jonathan Gladstone, the attorney representing the child’s mother in that case. Appellant’s objection was filed on the next business day following that telephone conversation. Mr. Diehl further proffered that “the records in the CINA file, including reports of Social Services and a psychological evaluation done on [appellant and the child’s mother] describes [sic] appellant as functionally illiterate.” On 23 May 1997, the last day of the thirty-day period for filing an objection to the guardianship petition, Mr. Diehl appeared with appellant at a CINA hearing.

Appellant asked, “What is this all about?” He did not mention that he had received the show cause order. Had Mr. Diehl, as the attorney who represented appellant known that there was a ⁴⁶⁷ show cause order about to expire on that date, he would have seen to it that appellant filed a timely objection. Mr. Diehl referred the court to the statutory requirement that the attorney who represented a parent in a CINA proceeding be notified of the filing of a petition for guardianship with right to consent to adoption or long-term care short of adoption. Md.Code (1984, 1991 Repl.Vol.), § 5-322 of the Family Law Article (F.L.).

The court’s response to Mr. Diehl’s proffer was, “I see what you are saying, but his sister told him. Even though he is a functional illiterate, my decision is the same.” Appellee’s counsel did not dispute Mr. Diehl’s proffer. She informed the court that on 1 April 1997, the day after the guardianship petition was filed, appellee sent a letter to Mrs. McGinley, the head of the CINA division of the office of the public defender, notifying her of the filing of the petition. Appellee’s attorney further acknowledged that the notice was not sent to Mr. Diehl, who was a “panel attorney,” i.e., an attorney in private practice to whom the office of the district public defender may refer a case when there is the possibility of conflict between a party represented by the public defender and another party entitled to be represented by the public defender’s office.

In this case, the child’s mother was being represented by the district public defender’s office throughout the CINA proceedings. The mother of the child was also late in filing an objection to guardianship. Appellee’s motion to dismiss her objection on that ground was denied on the basis of a concession that she was under a mental disability, and that service was made upon an attorney appointed to represent her and not upon her personally. Appellee’s motion to strike appellant’s objection was granted, however, for the stated reason that the court could not entertain the objection because appellant’s case was governed by the decision of the Court of Appeals in In Re: Adoption!Guardianship No. 93321055/ CAD, supra. ⁴⁶⁸ Issues Appellant raises a single issue: whether the court erred in granting appellee’s motion to strike his objection to the show cause order.

Appellee, however, presents us with another issue, one that concerns our jurisdiction: whether the appeal should be dismissed as premature. We shall deal with the jurisdictional issue first. I Appellee asserted that this appeal must be dismissed because there is no final judgment. The case is not over; it is still pending with regard to the mother’s parental status.

Rule 2-602(a) provides that, except as provided in section (b) of the rule, an order or other form of decision that adjudicates fewer than all of the claims in an action or that adjudicates less than an entire claim, or that adjudicates the rights and liabilities of fewer than all the parties to the action is not a final judgment, does not terminate the action as to any of the claims or any of the parties, and is subject to revision at any time before the entry of a judgment that adjudicates all of the claims by and against all of the parties. Section (b) of the rule, however, allows a court, upon a determination that there is no just reason for delay, to direct the order of a final judgment as to one or more but fewer than all the claims or parties. Appellant’s response to that contention recognized that at the time the appeal was filed there was no final judgment but asserted that the order striking his objection to the requested guardianship was an appealable interlocutory order under either of two theories: (a) The order was one of the statutorily recognized appeal-able interlocutory orders listed in Md.Code (1974, 1995 RepLVol.), § 12-303 of the Courts and Judicial Proceedings article. Appellant specifically relies on subsection (3)(x)of § 12-303, which authorizes an appeal from an interlocutory order “Depriving a parent, grandparent, or ⁴⁶⁹ natural guardian of the care and custody of his child, or changing the terms of such an order.” (b) The order was appealable under the collateral order doctrine, which permits an appeal from an interlocutory order that satisfies the following requirements: (1) it must conclusively determine the disputed question; (2) it must resolve an important issue; (3) it must be completely separate from the merits of the action; and (4) it must be effectively unreviewable on appeal from a final judgment.

Montgomery County v. Stevens, 337 Md. 471, 477 , 654 A.2d 877 (1995). It is arguable that the order appealed from deprived appellant of the “care and custody” of his son; although orders passed in the CINA proceeding had already done that on a temporary basis, the effect of the order striking appellant’s objection was, in effect, a determination that he had consented to the guardianship and thus may be considered as having changed the terms of the order depriving him of custody. The order dismissing appellant’s objection to the guardianship petition meets the first three requirements of the collateral order doctrine; whether it meets the fourth requirement is disputable. Appellee argues that appellant could challenge the order on an appeal from the final judgment if the court eventually grants the guardianship petition over the objections of the mother.

Appellant’s response to that argument is that the order complained of deprives him of any right to notice of further proceedings; he might not know when a final judgment, from which an appeal could be taken, is entered. We need not resolve the dispute raised by appellee’s contention that the appeal was premature. On 27 May 1998, one week prior to oral argument, the circuit court, on appellant’s motion and over appellee’s objection, signed and filed an order, pursuant to Rule 2 — 602(b), determining that there was no just reason for delay and making the order appealed from a final judgment as to appellant. That exercise of discretion by ⁴⁷⁰ the trial judge to certify the judgment against appellant as final does not preclude review of that discretionary act by this Court.

Diener Enterprises v. Miller, 266 Md. 551 , 295 A.2d 470 (1972). In exercising that discretion, the trial court should balance the exigencies of the case with the policy against piecemeal appeals and then allow a separate appeal only in “the very infrequent harsh case.” Starfish Condominium Ass’n v. Yorkridge Service Corp., 292 Md. 557, 567-69 , 440 A.2d 373 (1982). We believe that the certification of the judgment against appellant as final, under Rule 2-602(b), was an appropriate exercise of discretion in this case. As appellant’s counsel pointed out to the court in his motion for certification of fipality, the court was convinced at the time it struck appellant’s objection that the decision was immediately appeal-able, and this appeal was promptly noted on that basis.

If appellee were to succeed in having the appeal dismissed as premature and then were to succeed in the guardianship proceeding against the mother, a subsequent appeal by appellant from a final judgment would be on a matter unrelated to the merits of the case and, if successful, would require a retrial on the merits. Exercising our discretion under Md. Rule 8-602(e)(l)(D), we treat the notice of appeal as if it had been filed “on the same day as, but after, the entry of the judgment.” So treated, this appeal was a timely appeal from a final judgment. II The procedures governing adoptions and guardianships with right to consent to adoption or long-term care short of adoption are set forth in Md.Code (1984, 1991 Repl.Vol.), §§ 5-301 through 5-330 of the Family Law Article (F.L.) and Maryland Rules 9-101 through 9-113, which were adopted by the Court of Appeals to implement those statutory procedures. At issue in this case are two provisions that were added to F.L. § 5-322 by Chapter 282 of the Acts of 1987, which originated as House Bill 590.

Those provisions deal with notice to the ⁴⁷¹ parents of a child when a petition for adoption or guardianship with right to consent to adoption is filed, and with the consequences of failing to file a timely objection to the petition after receipt of such notice. Subjection (a) of F.L. § 5-322 provides: (l)(i) Subject to paragraph (2) of this subsection, a petitioner shall give to each person whose consent is required notice of the filing of a petition for adoption or a petition for guardianship. (ii) In addition to the notice of filing required under sub-paragraph (i) of this paragraph, if a petition for guardianship is filed after a juvenile proceeding in which the child has been adjudicated to be a child in need of assistance [CIÑA], a neglected child, or an abused child, a petitioner shall give notice of the filing of the petition for guardianship to: 1. The attorney who represented a natural parent in the juvenile proceeding; and 2.

The attorney who represented the minor child in the juvenile proceedings. Paragraph (2) of subsection (a) does not apply to this case. It provides that notice need not be given to a person whose consent is filed with the petition if the consent includes a waiver of the right to notice of the filing of the petition. Paragraph (3) provides that the required notice shall be by entry and service of a show cause order.

That paragraph is implemented by Rule 9-105(h), which prescribes the form and content of the show cause order and includes a simple form to be used for noting an objection to the petition and for requesting the appointment of counsel. Paragraph (l)(ii) of § 5-322, requiring notice to the parent’s former attorney, is implemented by Rule 9-10o(f), which specifies that the notice to the attorney who represented the parent and the attorney who represented the child in a prior juvenile proceeding shall be by sending the attorney a copy of the petition and show cause order by first class mail. ⁴⁷² Subsection (d) of F.L. § 5-322 provides that, if a person is notified under § 5-322 and fails to file a notice of objection within the time stated in the show cause order (thirty days after service if, as in this case, service is to be made on a person within this state, pursuant to Rule 9-107(b)(l)), the court shall consider the person who is notified to have consented to the adoption or guardianship and the petition shall be treated in the same manner as a petition to which consent has been given. The circuit court’s order striking appellant’s objection to the guardianship petition was based on subsection (d) of § 5-322 as interpreted by the Court of Appeals in In Re: Adoption/Guardianship No. 98321055, 344 Md. 458 , 687 A.2d 681 (1997). That case held that the deemed consent if a parent does not timely object to the petition, unlike a voluntary consent, may not be revoked; that the consent becomes fully effective when the time for filing an objection expires; that the court in which the petition was filed may neither extend the deadline for filing an objection to the petition nor accept a late filing; and that the statutory scheme of regarding the failure to file a timely objection as an irrevocable deemed consent does not facially offend any due process or equal protection rights of the parent.

In view of that decision of the Court of Appeals, the circuit court was persuaded that appellant had consented to the guardianship petition by faffing to file a timely objection; that the consent was irrevocable; and that the untimely objection could not be accepted. Appellant’s contention that the court below erred is based on subsection (a) of § 5-322. DDS, the petitioner, was required by the subsection and the implementing rule to give notice of the filing of the petition not only to appellant but also to Mr. Diehl, the attorney who had represented him in the CINA