In re Adoption/Guardianship Nos. T00130003 & T00130004

RAYMOND G. THIEME, Jr., Judge (Retired, Specially Assigned). On May 15, 2000, the Baltimore City Department of Social Services (the Department) filed a Petition for Guardianship with the Right to Consent to Adoption or Long Term Care Short of Adoption for the minor children, Dontae and Latisha W. The Petition, filed in the Circuit Court for Baltimore City Division for Juvenile Causes, requested that the children be placed with a relative. Carol W., the mother of the children, filed an objection to the Petition on May 30, 2000. Counsel for the children filed no objection and were thus deemed to have consented to the Petition.

Despite the Department’s intention to have the children placed with a relative, as of January 2001 the children were still in foster care. Consequently, the children were granted an extension of time for discovery, and the court ordered evaluations be conducted by the Juvenile Court Medical Service Office prior to the settlement conference scheduled for February 2001. Based on purported changes in circumstances that occurred after the Petition was served, the children further sought the opportunity to file an objection to the Petition after the deadline had passed. This request was denied.

Consequently, during the trial held on March 29, 2001, the children were not given the opportunity fully to present a case. The Department’s Petition was granted and Carol W.’s parental rights were terminated. The children subsequently filed this appeal on April 24, 2001, to raise the following questions: I. Did the circuit court err in refusing to consider whether the children’s changed circumstances warranted relief from the thirty-day response deadline to the show cause order?

II

Did the circuit court abuse its discretion in failing to consider evidence in the Court Medical reports indi- ⁶⁴⁹ eating the inappropriateness of the termination of parental rights of Carol W. and the significance of the sibling bond between Latisha and Dontae?

III

Did the circuit court err in concluding that Latisha and Dontae’s best interests called for the termination of Carol W.’s parental rights? Facts Latisha W, now eleven years old, was bom on December 1, 1989 to Carol W. Latisha’s father died on September 4, 1989, prior to her birth. Latisha lived with her mother and two siblings, Tylita R. and Ashley M., 1 until April 1993 when Carol W. was hospitalized after an attempted suicide. At that time Latisha went to live with Ashley M. and her father, Russell M. The Department provided a great deal of supportive services to Carol W. and her family.

Such measures included the purchase of food and clothing, in-home aide, and the location of an apartment with the initial payment of rent and the identification of potential employment. The Department also placed Carol W. in a drug treatment program. Carol W., however, did not follow through to obtain employment and failed to pay rent, which led to her eviction. She also continued to abuse drugs and was dismissed from the drug treatment course because of her failure to keep several appointments.

On December 14, 1993, pursuant to petitions by the Department, Latisha was found to be a Child in Need of Assistance (CIÑA) and was formally placed in the custody of Russell M. and his wife. Dontae W., now five years old, was born on October 17, 1995, to Carol W. His father was never identified. 2 On ⁶⁵⁰ December 19, 1996, the Department filed a petition to have Dontae placed into shelter care. Additionally, as Latisha had been living alternately between Russell M. and Carol W., contrary to the December 14 order, the Department filed a Petition for Review as to Latisha’s disposition. In making these petitions, the Department charged that Carol W. was providing inadequate care for the children 3 and further alleged that on one occasion she had struck Latisha with a belt.

Carol W. was arrested and incarcerated until March 29, 1997 as a result of the abuse. The children were placed in the foster care of one Ms. H. while determinations as to their continued living situations were pending. On May 7, 1997, the court found Dontae to be a CIÑA and granted a general order of commitment to the Department. The court also rescinded the Order of Custody and Guardianship to Russell M. and his wife as to Latisha and granted a general order of commitment to the Department.

At this time, Carol W. also informed the court that she had a hearing scheduled because of a violation of her probation and expected to have an extended incarceration. Consequently, the children remained in the care of Ms. H., though a stipulation was made that the children were to have regular visitation with their mother. The children have remained in occasional contact with Carol W. despite the fact that she had been incarcerated until January 2, 2001. Though the children were able to visit their mother three times a year, their current caseworker was present for one visit in 1999 and noted that Latisha did not interact well with Carol W. and Dontae did not appear to recognize her. ⁶⁵¹ Carol W. has made efforts to rehabilitate herself while incarcerated.

She has taken various courses on addiction education, life skills and parenting, conflict resolution and even received her high school diploma. After her release, on January 5, 2001, she went to the Department and signed a service agreement to give her a second chance at raising her children. In doing so, she agreed to obtain housing, provide proof of employment and enroll in drug treatment. Carol W. visited the children once following her release.

During that visit, Dontae did not recognize Carol W. and instead identified Ms. H. as his mother. Another visit was scheduled by the caseworker for February, but Carol W. did not appear, nor did she make any efforts to reschedule the appointment. When the caseworker sought to contact Carol W., it was discovered that the phone had been disconnected. At the time of the trial on March 29, 2001, Carol W. had not begun to comply with any of the provisions of the service agreement, nor did she have further contact with the children.

This failure was emotionally damaging to Latisha. On February 21, 2001, at the request of the children’s counsel, the court ordered that Carol W. and the children attend a bonding assessment. The assessment was scheduled for March 13 2001. Notice was sent to Carol W. by her counsel, but she did not attend or respond in any manner.

The assessment therefore evaluated the children individually, and a report was subsequently prepared by the Juvenile Court Medical Office (Medical Office). The Medical Office concluded that Latisha had a very clear understanding of her situation. She expressed a desire to live with her mother, whom she loves, but only if Carol W. could be responsible. When asked what she would wish to do until her mother reaches such a point, Latisha responded that she would like to live with Russell M., whom she considers her stepfather.

Though she stated that she loves Ms. H., she explained that she had more fun with Russell M. The examiner indicated that Latisha and Dontae are very closely bonded. Latisha stated that she takes care of Dontae ⁶⁵² including making sure he brushes his teeth, making sure he is fine while in school, and walking him home after school. The examiner expressed concern, as Latisha stated corporal punishment is used on Dontae. The report further noted that Latisha is well adjusted, though she may benefit from increased social interactions.

The Medical Office also recommended that Latisha remain with Ms. H. in long term care. The report concluded by recommending against the termination of Carol W.’s parental rights, as it was suggested that such an action could be emotionally damaging to Latisha, who has not yet resolved the fact that she may never be able to return to her mother’s care. The assessment of Dontae disclosed that he is well adjusted and extremely bonded to his foster mother, Ms. H., his sister Latisha, and his foster sisters. Despite previous contact with Carol W., Dontae does not seem to know who she is and only considers Ms. H. to be his mother.

The report noted that Ms. H. has shown interest in adopting Dontae. The only area of concern that was presented was the apparent corporal punishment of Dontae by Ms. H. and his older foster siblings. The Medical Office nonetheless recommended that Dontae remain in the home of Ms. H. with his sister and that counseling be sought to find alternatives for corporal punishment. On June 10, 1998, when the permanency plan for Dontae and Latisha was first established, the Department sought to have the children placed with a relative, and the circuit court ordered the Department to investigate relative resources for the children.

On July 14, 2000, a court order incorporated an agreement between all the parties to transition the children to the home of a maternal aunt for an eventual adoption. This agreement was conditioned on a Department background investigation of the aunt. By January 24, 2001, however, the children had still not been placed with a relative. This failure also led to a contested CINA proceeding.

The court decided to consolidate the CINA and parental termination proceedings and set a trial date for March 29, 2001. On that date, however, the court held a trial on the ⁶⁵³ termination proceedings but chose not to proceed on the CINA review. The CINA review was later canceled, as it was not necessary to decide the issue after Carol W.’s parental rights were terminated. Carol W. had ceased communicating with her attorney since her release from prison in January and did not attend the trial although her attorney had sent her written notice of the date.

At trial, the court did not allow the children to present a complete case. Despite this deficiency, the court concluded that Latisha and Dontae’s needs were being met and their safety was being provided for in the foster home. The court further concluded that Carol W. could not properly care for the children. Though a bond did exist between Latisha and her biological mother, the court concluded that it was not a true mother/child bond.

Indeed the court pointed out that Carol W. has shown little interest in contacting her children. Instead the court noted that the children have adapted reasonably well to their foster home. Thus, the court decided it was in the best interest of the children to terminate Carol W.’s parental rights. The court further noted that counsel for the children did not file a timely objection, and thus the consent of the children was assumed.

The children subsequently filed this appeal. Discussion I. Relief from the Deadline Maryland Rule 9-107(b)(l) requires that a notice of objection to a petition for adoption or guardianship be filed within thirty days after the show cause order is served. Md. Code (1984, 1999 Repl. Vol.), § 5-322(d) of the Family Law Article (“FL”) provides that consent to such orders is assumed absent the filing of an objection.

Despite these statutes, appellants argue that there are rare situations in which changed circumstances require a trial court to consider whether an untimely objection is appropriate to protect the best interests of the children. Appellants contend that the circuit court erred in failing to consider whether such an objection could be appro ⁶⁵⁴ priate in this case and thus erroneously subordinated the best interest of the children to the mechanical application of a procedural rule. Appellants urge that the circumstances surrounding this case lend themselves to a reconsideration of the matter on a best interest of the child test. Specifically, appellants note that almost a year elapsed between the date the show cause order was received by appellants’ counsel and the date of the termination hearing.

Appellants note that at the time the show cause order was received the Department’s intent was to have the children transitioned into the care of a maternal aunt for adoption. Appellants argue that the .decision not to object to the permanency plan and termination of parental rights was based on the agreement that a relative was to adopt the children. As this perceived contingency has not been met, appellants believe a material change in circumstances has occurred that should allow the court to reassess the best interests of the children. Appellants further proffer that the children have matured since the time the show cause order was received, and as a result the children are now more capable of expressing their opinions and making a decision on the matter.

In requesting a review of the circuit court’s actions, appellants note that Maryland courts have occasionally abandoned strict applications of statutory deadlines when those deadlines would conflict with the purpose of the statute. Appellants rely on In re Anthony R., 362 Md. 51 , 763 A.2d 136 (2000), to present the proposition that courts should examine the “totality of the circumstances and the facts of each case to determine the sanction for noncompliance with [a] statute.” Id. at 55 , 763 A.2d 136 . Though appellants concede that noncompliance with a statutorily established deadline supported a mandatory dismissal in In re Anthony R. 4 , they point to other cases that have led to differing results based on statutory goals. ⁶⁵⁵ Appellants cite In re Keith W., 310 Md. 99 , 527 A.2d 35 (1987), as an example where the Court of Appeals ignored a statutory requirement in order to support the Juvenile Causes Act’s purpose of rehabilitating and treating delinquent juveniles. In that case, the State filed a juvenile petition charging a minor with possession of marijuana with intent to distribute.

Maryland’s juvenile law required that an adjudicatory hearing be held within sixty days of the petition’s service. Though an extension may be granted under the statute for extraordinary cause, the State requested and was granted an extension without such a showing. Id. at 102 , 527 A.2d 35 . Thus, the State did not comply with the statute, and a dismissal was requested by the minor.

In denying the dismissal, the court opined that such a sanction was inappropriate under the totality of the circumstances surrounding the case. Id. at 109-10 , 527 A.2d 35 . In making this decision, the court relied heavily on the statutory purpose of rehabilitating delinquents. Id. at 104-07, 109 , 527 A.2d 35 .

Appellants further rely on this Court’s decision in In re Abiagail C., 138 Md.App. 570 , 772 A.2d 1277 (2001), to contend that statutory deadlines may be ignored when blind adherence would thwart the purpose of a statute. The appeal in Abiagail C. centered around a circuit court decision to terminate parental rights despite the fact that the ruling was made after a statutory time limit had run. FL § 5-317(d) requires that rulings on petitions for guardianship or adoption be made within 180 days of the filing of the respective petition. Though appellant, the biological mother of Abiagail, argued that such a failure required dismissal, this Court disagreed.

We noted that the purpose of adoption and guardianship laws were to further the best interest of the child. In re Abiagail ⁶⁵⁶ C., 138 Md.App. at 586 , 772 A.2d 1277 . Amendments made by the General Assembly, including § 5-317(d), were aimed at “speeding up the guardianship and adoption process so that children no longer would be consigned to foster care limbo for years.” In re Abiagail C., 138 Md.App. at 584 , 772 A.2d 1277 (citing In re Adoption/Guardianship No. 93321055, 344 Md. 458, 482-83 , 687 A.2d 681 (1997)). We concluded that a mandatory construction of FL § 5-317(d) requiring dismissal would only increase such delays by necessitating an entirely new action.

Id. at 586, 772 A.2d 1277 . Consequently, we refused to interpret the statute in a manner inconsistent with the statutory purpose. The Court of Appeals has recently reaffirmed the well settled canons of statutory interpretations in Mid-Atlantic Pwr. Supply Assoc. v. PSC, 361 Md. 196, 203-04 , 760 A.2d 1087 (2000): in pursuing the