In Re Adoption/Guardianship Nos. T00130003 and T00130004

WILNER, Judge. This appeal is from a judgment entered by the Circuit Court for Baltimore City that granted to the Baltimore City Department of Social Services (DSS) guardianship, with the right to consent to the adoption or long-term care, of 11-year-old Latisha W. and five-year-old Dontae W. That order served to terminate the parental rights of the children’s mother, Carol W., with respect to the children. The only person who objected to the petition for guardianship was Carol, who failed to appear at trial and who has not appealed the guardianship order. Latisha’s father died prior to the filing of the petition; Dontae’s father has never been identified.

Through their attorney, the children were formally notified of the petition for guardianship. They declined to file an objection within the time allowed by law, however, and, by virtue of Maryland Code, § 5-322(d) of the Family Law Article (FL), they were deemed to have consented to the guardianship. 1 Nonetheless, at trial nine months later, the children, through counsel, sought to oppose the guardianship. The trial court allowed counsel to participate by calling the children’s foster parent as her witness, cross-examining the DSS case worker, placing certain exhibits into evidence, and ²⁵³ making argument, but it did not permit her to oppose the guardianship in derogation of the children’s deemed consent. As noted, Carol has acquiesced in the judgment, as no appeal was filed on her behalf.

The children appealed, however, claiming, among other things, that the court erred in not granting them “relief from the 30 day response time for objecting to the termination of parental rights” and thus effectively denying them the right to participate at trial. The Court of Special Appeals found some merit, or at least potential merit, in that argument and remanded the case, apparently without affirmance or reversal, for the trial court “to determine how a withdrawal of consent by [the children] would affect the outcome of the case.” In re Adoption No. T00130003, 141 Md.App. 645, 663 , 786 A.2d 803, 813 (2001). We granted certiorari to determine whether, and under what circumstances, a court may excuse a failure to file a timely objection and permit a non-objecting party actively to oppose the petition to which he or she has, by law, consented. BACKGROUND The record in this case, like those in most termination of parental rights cases, is a sad and distressing one.

Carol, a persistent drug abuser, has four children, each by a different father — Tylita, born in 1983; Ashley, born in 1986; Latisha, born in 1989; and Dontae, born in 1995. Until April, 1993, when Carol attempted suicide, Tylita, Ashley, and Latisha lived with her. Upon Carol’s hospitalization, Tylita was moved to her father’s home, and Ashley and Latisha were placed with Ashley’s father. On December 14, 1993, Tylita and Latisha were found by the Juvenile Court in Baltimore City to be children in need of assistance (CINA).

Ashley and Latisha continued to live with Ashley’s father, and Tylita was placed in foster care. In November, 1996, Ashley’s father returned Latisha to her mother. A month later, however, Carol was arrested for beating Latisha with a belt and, for that offense and various probation violations, spent the next four years and two months ²⁵⁴ in prison. Latisha and Dontae were placed in foster care and, in May, 1997, Dontae was found to be CINA.

Latisha already had that status. The request for shelter care for Latisha alleged, among other things, that Carol’s drug abuse rendered her “unable to provide consistently adequate care” for the children, that the beating of Latisha was an act of abuse, that Carol “would lock the apartment door and leave [Latisha] unsupervised for extended periods of time,” that she “failed to provide adequate food and clothing” for the child, and that the home was rat-infested and full of trash. Eventually, Latisha and Dontae were placed with their current foster parents, Jimmy and Theresa H. In accordance with applicable statutory and regulatory requirements (see FL § 5-525(e); Courts and Judicial Proceedings Article § 3-823; and COMAR 07.02.11.13), DSS developed a permanency plan for the children in November, 1997, that called for the children to be placed with a “suitable relative” by February, 1998. In its December, 1997 Case Recommendation Report, the Foster Care Review Board disagreed with that goal on the ground that “no relatives have decided to be a resource.” 2 The Board noted that it had been informed by DSS in June, 1997, that the plan would be changed to adoption, expressed the view that “progress is inadequate,” and strongly urged DSS to present the matter to its TPR (termination of parental rights) Committee “immediately.” That did not occur.

In its June and December, 1998 reviews the Foster Care Review Board again “non-concurred” with the “suitable relative” placement goal and, noting that ■neither child had “relative resources,” urged that the plan be changed to adoption. In its December review, the Board pointed out that DSS was aware in June “that there were no relative resources” for the children. Still, DSS persisted. ²⁵⁵ The case plan it prepared in February, 1999, continued to show placement with a “suitable relative” as the goal, with a projected achievement date of August, 1999. In June, 1999, the Foster Care Review Board noted the objective of placement with a suitable relative by August, but also stated that DSS “presented a concurrent plan of adoption” and stated its agreement with “that goal.” In light of the fact that the children had been in out-of-home placement for at least 15 of the past 22 months, the Board recommended that a petition for termination of parental rights be filed. 3 DSS ignored that recommendation, as it had the previous recommendations, and continued to posit suitable relative placement as the objective.

In its January, 2000 plan, it estimated an achievement date for relative placement of June, 2000, and adoption by August, 2001. That changed in the February, 2000 plan, which, though showing suitable relative placement by December, 2000, and making no mention. of adoption, stated that it would submit “show cause papers” to the TPR Committee. In each of its updates during this period, DSS noted that the children had bonded well with their foster family, that the case worker was in contact with Carol, who remained incarcerated, and that, although visits were “sporadic,” Carol kept in contact with the children by mail. The goal for achieving placement with a suitable relative had been moved each time, in the aggregate from February, 1998, to December, 2000— just shy of three years.

Throughout this period, the children were being represented by the Legal Aid Bureau which, through periodic review proceedings in the Juvenile Court, was aware of the problem in finding a suitable relative to assume responsibility for the children. ²⁵⁶ On May 8, 2000, the DSS TPR Review Committee approved the filing of a guardianship petition and directed a change in the permanency plan to adoption, and, pursuant to that approval, DSS filed such a petition a week later. In conformance with Maryland Rule 9-105, show cause orders were issued to Latisha and Dontae and served, on May 17, 2000, on the Legal Aid Bureau. The show cause order informed the children, through them attorney, that, if they wished to object to the guardianship, they must do so within 30 days after service, which, counting an extra three days pursuant to Maryland Rule l-203(c), would have been June 19, 2000. No objection was filed on behalf of either child.

Accordingly, on June 20, 2000, both children, by operation of law, were deemed to have consented to the respective guardianships. Carol filed an objection to the petition, thereby triggering the need for an adjudicatory proceeding to determine whether the statutory criteria for guardianship had been satisfied. By the time the case came to trial nine months later on March 29, 2001, Carol had essentially abandoned her objection. Although she had been released from prison in January and had been notified of the trial date by her attorney, she did not attend.

Neither her attorney nor the case worker from DSS knew her current whereabouts. Because, despite her attorney’s best efforts, she had failed to communicate with the attorney prior to trial, no evidence was presented in her case. Through their counsel, however, the children sought to contest the guardianship and to present evidence and argument in support of their new position. The children had not been brought to court and therefore were in no position either to testify or to be interviewed in chambers.

Them attorney wanted to “proffer” their testimony, without indicating in any detail what it would be, but, in the face of an objection by Carol’s attorney, who insisted that there be live testimony, the court disallowed the proffer. Noting our decision in In re Adoption No. T97036005, 358 Md. 1 , 746 A.2d 379 (2000), the court permitted their attorney to call the foster care parent as her witness, to cross-examine the DSS case worker, and to put in evidence the children’s medical ²⁵⁷ records. Aside from the unspecified proffer of the children’s testimony, that was all of the evidence offered by the attorney. The court- refused, however, to allow the children to revoke their statutory consent and to continue the case in order that the children might present evidence in derogation of that consent.

Upon the evidence presented, the court found that the statutory criteria had been satisfied and entered an order of guardianship that terminated Carol’s parental rights. As noted, Carol has acquiesced in the judgment. The children appealed, however, complaining, among other things, that the court erred in refusing to allow them to revoke their statutory consent and actively contest the guardianship. The position argued to the Court of Special Appeals was quite different from that asserted in the trial court.

At trial, counsel indicated only that, in the ten months between service of the petition and trial, Latisha had changed her mind and that Dontae, who had not articulated a position, should remain with his sister. 4 In the appellate court, counsel argued, for the first time, that the children “agreed to adoption as a permanency plan subject to the contingency that a relative adopt them,” and that “the contingency upon which [their] agreement to adoption was based has not been fulfilled.” (Emphasis added). She claimed that, in light of that non-fulfillment, the trial court erred in not excusing the children from their deemed consent. The intermediate appellate court accepted as though it were fact that such an agreement or contingency existed and came very close to accusing DSS of misrepresentation. 5 It looked at ²⁵⁸ the issue in terms of whether the statutory deadline for noting an objection should be rigidly enforced — whether the court should “create an exception to deadlines created under FL § 5-322(d) if absolutely required.” In re Adoption No. T00130003, supra, 141 Md.App. at 659 , 786 A.2d at 811 . It thus seemed to approach the issue in terms of whether the time for making a final decision to object can be extended beyond the statutory deadline established by the Legislature in § 5-322 and by us through Maryland Rule 9-107(b), rather than whether a party who, by failing to file a timely objection is deemed to have consented, may later avoid that consent and have a right to oppose the guardianship.

The intermediate appellate court acknowledged our conclusion in In re Adoption No. 93321055, 344 Md. 458, 485 , 687 A.2d 681, 694 , cert. denied, 520 U.S. 1267 , 117 S.Ct. 2439 , 138 L.Ed.2d 199 (1997), that' the direction in FL § 5-322(d)(l) means what it says and expresses a clear intent by the Legislature to cut off the right of a person who fails to file a timely objection to participate in the action. Seizing on a statement in that Opinion that “ ‘any construction of ... § 5-322(d) that would have the effect of engendering delays or imposing additional impediments to achieving permanent and stable family settings for children in foster care’ ” is to be avoided “ ‘unless absolutely required,’ ” however, and concluding, as a fact, that the children agreed to the guardianship on the basis of an “agreement” by DSS that they would be adopted by a relative, that court determined that “stringent enforcement” of the law “would create an unjust result,” and that an extension of the time to object was therefore absolutely required. In re Adoption No. T00130003, supra, 141 Md. App. at 659 , 786 A.2d at 811 (quoting In re Adoption No. 93321055, supra, 344 Md. at 484 , 687 A.2d at 693 ). ²⁵⁹ DISCUSSION We laid much of the groundwork in this area in In re Adoption No. 93321055, supra, 344 Md. 458 , 687 A.2d 681 , a collection of cases in which parents had been served with petitions for guardianship, had failed to file timely objections, and then, after the time for objecting had expired, sought, in one fashion or another, to object to the guardianships or, in four of the cases where judgments of guardianship had already been entered, to set them aside. Because of procedural deficiencies in some of the cases, the only ones before us on the merits of the issue were the two in which enrolled judgments of guardianship had been revoked by the Circuit Court and the cases reopened in order to permit the mother to seek retention of her parental rights.

We traced at some length the development of the public policy embodied in FL § 5-322(d) and the implementing rules of this Court, which need not be repeated here. Suffice it to say that, upon service of a petition for guardianship that, if granted, would terminate parental rights, the parent has three choices, all of which are carefully explained in the accompanying show cause order: the parent can (1) object to the guardianship by filing a simple pre-printed notice of objection attached to the show cause order within the time set forth in the show cause order, and thereby trigger a contested case; (2) affirmatively consent, subject to the ability to withdraw the consent within 30 days after it is signed; or (3) do nothing, in which event, upon expiration of the time allowed for filing an objection, the parent will be deemed by operation of law to have consented to the guardianship. We pointed out that the effect of doing nothing had been the subject of considerable debate, in terms of whether it should be construed as a waiver of the requirement of consent or as an actual “deemed” consent, and that the legislative choice was to regard inaction as a consent by operation of law. We said, in that regard, that the intent of the Legislature was “to eliminate any uncertainty over the effect of a parent’s failure, after proper notice, to file a timely objection,” and that: ²⁶⁰ “[t]he sole purpose of regarding such a lapse as a statutory consent imposed by operation of law and directing the court to proceed accordingly was to treat the case thereafter as though it were uncontested — to avoid the need for further notice and hearing and thus to speed up the judicial component of the permanency planning process.” Id. at 483, 687 A.2d at 693 .

In furtherance of that view, we added that: “[i]n light of this history, it is evident that any construction of [FL] § 5-317(e) or § 5 — 322(d) that would have the effect of engendering further delays or imposing additional impediments to achieving permanent and stable family settings for children placed in foster care, usually as the result of a CINA proceeding, would be flatly inconsistent with and antithetical to the clear legislative purpose, and is to be avoided unless absolutely required.” Id. at 484, 687 A.2d at 693-94 . Upon that construction of the statute, we held that “there is no right to revoke a statutory consent arising under [FL] § 5-322(d).” Id. at 486, 687 A.2d at 694 . Because that consent arises by operation of law, rather than volitionally, “it is not within the power of the parent to revoke it.” Id. We turned then to an issue raised in the three cases that were moot but that we decided was important to address nonetheless — whether, even though the parent has no right to revoke a “deemed” consent arising from his or her failure to file a timely objection, the court has some authority to consider a late-filed objection.

The argument was made that the court had such authority under Maryland Rules l-204(a) and 2-613 and as a matter of due process. We found that, under their own language, the two rules were inapplicable. The due process argument presented by the Public Defender was premised on the prospect of a parent who is physically unable to respond timely to