In Re Adoption/Guardianship of Audrey B.

SHARER, J. In the Circuit Court for Baltimore City, Division for Juvenile Causes, the Baltimore City Department of Social Services (“BCDSS”) filed petitions for Guardianship With the Right to Consent to Adoption or Long Term Care Short of Adoption, seeking to terminate the parental rights of Kellie B. to three children: Audrey B., Adriana H., and Eric H. ⁴⁵⁶ Kellie B. filed, albeit late, objections to the petitions in each case. The BCDSS moved to strike the late-filed objections and the court, after a hearing, granted the motion. It is that ruling that Kellie B. challenges in this appeal, contending that the juvenile court erred in ruling that statutory provisions of the Permanency for Families and Children Act of 2005, (“the Act”), 1 do not permit withdrawal of a consent to guardianship entered by operation of law. 2 We shall affirm for the reasons set forth below. BACKGROUND Kellie B. is the mother of Audrey, born on September 25, 1997; Adriana, born on November 2, 1999; and Eric, born on August 12, 2005.

Birth certificates indicate that Jerome H. is the father of Adriana and Eric. Although Audrey’s birth certificate does not indicate a father, Jerome H. is asserted to be Audrey’s putative father in the TPR Petition filed by BCDSS in her case. On October 12, 2004, for reasons not apparent in the record, both Audrey and Adriana were placed in foster care, found to be children in need of assistance (“CINA”), and committed to the custody of BCDSS. Approximately ten months later, on August 15, 2005, and three days after he was born, Eric was also placed in foster care with BCDSS.

Thereafter, on September 9, 2005, again for reasons not apparent in the record, Eric was found to be a CIÑA and committed to BCDSS. On August 13, 2008, BCDSS filed TPR Petitions seeking guardianship of each of the children in case numbers T08204021, T08204022, and T0820423, respectively. 3 On that ⁴⁵⁷ same day, three Show Cause Orders were filed in the aforementioned cases: one addressed to Kellie B.; another to Jerome H.; and, the third addressed to the three children. 4 Each of the Show Cause Orders conspicuously warned the recipient that: THIS IS A COURT ORDER. IF YOU DO NOT UNDERSTAND WHAT THE ORDER SAYS, HAVE SOMEONE EXPLAIN IT TO YOU. YOUR RIGHT TO AN ATTORNEY IS EXPLAINED IN PARAGRAPH 8 OF THIS ORDER.

IF YOU DO NOT MAKE SURE THAT THE COURT RECEIVES YOUR NOTICE OF OBJECTION ON OR BEFORE THE DEADLINE STATED IN PARAGRAPH 2 OF THIS ORDER, YOU HAVE AGREED TO A TERMINATION OF YOUR PARENTAL RIGHTS. Further, and pertinent to the instant appeal, the Show Cause Order advised Kellie B. as follows: 2. RIGHT TO OBJECT; TIME FOR OBJECTING. If this Order is served on you by October 27,2008, and if you wish to object to the guardianship, you must file a notice of objection with the Clerk of the Court at the Baltimore City Juvenile Justice Center, 300 North Gay Street, Room A3820, Baltimore, Maryland, 21202 within 80 days after this Order is served on you.

For your convenience, a form notice of objection is attached to this Order. WHETHER THE PETITION REQUESTS ADOPTION OR GUARDIANSHIP, IF YOU DO NOT MAKE SURE THAT THE COURT RECEIVES YOUR NOTICE OF OBJECTION ON OR BEFORE THE DEADLINE STATED ABOVE, YOU HAVE AGREED TO A TERMINATION OF YOUR PARENTAL RIGHTS. Similar language appears elsewhere in the Order, and these warnings conform to the requirements of Md. Rule 9-105(e) (setting forth the form of show cause order). Comparable ⁴⁵⁸ orders also were issued to Jerome H., as well as to the children.

On August 26, 2008, Kellie B. was personally served with a copy of the Petitions and the Show Cause Orders, as well as two Notice of Objection forms. Two days later, on August 28, 2008, Jerome H. was personally served with a copy of the Petitions and the Show Cause Orders at the Baltimore City Detention Center. That same day, Jerome H. filed an objection to the guardianship petitions. 5 On September 11, 2008, an attorney entered his appearance on behalf of Audrey, Adriana and Eric, and filed a Consent to Guardianship Petition. That consent expressly provides that the attorney, on behalf of the children, “hereby Consents to the Petition filed by the Baltimore City Department of Social Services requesting] Guardianship With the Right to Consent to Adoption or Long-Term Care Short of Adoption in the above-captioned case.” On September 30, 2008, 35 days after she was personally served, Kellie B. filed a Notice of Objection to the Petitions and also requested appointment of an attorney. 6 Kellie B. listed the following reasons in support of her Objection: I object because I feel as though there are no reasons my children shouldn’t be in my care.

When I have four of my other children. I want these children returned to me. I don’t want my children placed anywhere then [sic] with me. This has been an ongoing battle against a case that holds no substationed [sic] evidence.

I object to the termination of parental rights. Also the adoption. ⁴⁵⁹ On October 14, 2008, BCDSS filed a Motion to Strike Late Objection, asking that the juvenile court strike Kellie B.’s objection as untimely filed. In that motion, after informing the juvenile court that Kellie B. was served on August 26, 2008, and filed her objection on September 30, 2008, BCDSS contended: Md. Rule 9-107 provides that a party has 30 days to file an objection if served in the [Sjtate of Maryland. [Ms. B.’s] objection should have been filed by the close of business on September 25, 2008 to be considered timely. On November 19, 2008, Kellie B. filed an answer to the BCDSS’s Motion to Strike Late Objection.

In her answer, Kellie B. contended that a failure to file a timely Notice of Objection is a voluntary consent under § 5-320 of the Family Law Article, and that such a volitional consent may be revoked. 7 Therefore, Kellie B. continued, because a volitional consent may be revoked within thirty days, her Notice of Objection filed with the juvenile clerk “on September 30, 2008, more than thirty but less than sixty days after she was served with the Show Cause Order, is a timely revocation of consent and satisfies the requirements of” Md. Rule 9-102 and § 5-321 of the Family Law Article. See Md. Rule 9-102 (addressing consents; revocation of consent); Md.Code (2006 Repl. Yol.), § 5-321 of the Family Law Article (consent). On December 9, 2008, the juvenile court held a hearing on BCDSS’s motion, at which counsel for BCDSS contended that Kellie B.’s Notice of Objection was untimely and should be stricken.

Counsel for Kellie B. conceded that the Notice of Objection was late-filed. However, counsel suggested that, under the 2005 revisions to the Family Law Article, the failure to timely file an objection was not a “deemed consent,” and that § 5-320 now “sets up this way of affirmatively and volitionally consenting to a termination of parental rights.” In furtherance of her position, counsel for Kellie B. elaborated: ⁴⁶⁰ Family Law Article [ ] 5-321(c) allows revocation by a parent of a consent to guardianship within 30 days except when that consent is entered into before a judge on the record. And that is the exact wording of 321, 5-321. By carving out this exception, the one way that you can not, that it is irrevocable, and only that way, bolsters my argument that the other ways of consenting, which are listed in 5-320, can be revoked within the 30 day period.

Accordingly, counsel continued, “by filing her revocation more than 30 but less than 60 days after service with the show cause order, that satisfies the requirement of Family Law Article 5-321 and Maryland Rule of Procedure 9-102. And we are asking that [the juvenile court] deny the Department’s motion to strike the late objection.” Counsel for BCDSS responded first, that Md. Rule 9-102 applies only to written consents. As for § 5-321, BCDSS’s counsel stated: That includes a waiver and the written [sic] as under 9-102, there’s a 30 day period to reconsider and revoke the written consent. It doesn’t speak, the statute doesn’t speak at all to dealing with a default.

I don’t think the legislature intended to extend an objection period by 30 more days by considering a default a, some kind of consent. You know, it says 30 days. It’s very clear it says 30 days and if, you know, the writing that was actually filed with the Court is an objection form that was served on the mother on the 26th of August. I don’t think that that supports her argument that she was writing, she was filing a writing that was revoking her consent.

I[t] basically said I object and it was filed late therefore its [sic] not valid and I’d ask the Court to strike that objection. In response to the court’s inquiry, counsel for Kellie B. stated that she was referring to § 5-321 (c) “where it says a person may revoke consent any time within the later of 30 days after the person signs the consent or 30 days after the consent is filed as required.” The court then stated, “[o]kay, but doesn’t that sort of indicate that something is done, that ⁴⁶¹ there’s either a signature of a consent or that something is filed, that there is an act?” Counsel for Kellie B. disagreed and suggested that § 5-321 should be read in conjunction with § 5-320, which provides three ways a parent may consent to guardianship. Counsel contended that only a § 5—320(b) consent, “knowingly and voluntarily on the record before the juvenile court,” is irrevocable. Counsel suggested as an underlying purpose: And the, you know, by doing that it, and the purpose, of course, is to protect, if you will, parents from making kind of rash or hasty decisions about such an important right to consent and so on.

And that’s why, only when it’s done in the court, and I guess because the court would make inquiry and make sure and so on, all the things that you do, when the parent does this, consents on the record in front of a judge. That’s the only way, the only thing that’s irrevocable. And of course whenever you do that you tell them this is it, this is it if you change your mind. The two other ways that’s not so because they haven’t been, you don’t have those safeguards to make sure that its volitional and make sure its exactly what the person wants to do.

And one of those ways is this failure to file a timely notice of objection. The court disagreed and found good cause to grant BCDSS’s motion to strike the late objection, stating: [Its] an interesting argument. Unfortunately I don’t agree with it. I don’t think that 5-321(c) is really relevant or relates to a situation which is basically a default situation so I’m going to grant the Department’s motion. 8 On December 11, 2008, Kellie B. filed a Notice of Appeal to this Court from the December 9, 2008, ruling granting BCDSS’s motion to strike late objection. 9 ⁴⁶² DISCUSSION Summarizing the contentions of the parties, appellant, Kellie B., first argues that the juvenile court erred in striking her Notice of Objection to the Petitions for Guardianship because, under the Act: (1) her failure to file a timely Notice of Objection was a volitional consent and not a “deemed consent”, i.e., a consent by operation of law; and, (2) the Legislature has only provided that consents to guardianship entered before a judge are irrevocable.

Appellee BCDSS responds that Kellie B. has conceded that she did not timely file a Notice of Objection to the Petitions, and that, under the reasoning of In re Adoption/Guardianship No. 93321055, 344 Md. 458 , 687 A.2d 681 (construing the earlier statute), cert. denied sub nom. Clemy P. v. Montgomery County DSS, 520 U.S. 1267 , 117 S.Ct. 2439 , 138 L.Ed.2d 199 (1997), as well as the legislative history of the 2005 Act, Kellie B.’s deemed consent is irrevocable. Lastly, the children, by counsel, also assert that Kellie B.’s deemed consent is irrevocable. We are, therefore, presented with an issue of statutory construction; thus, we begin our analysis with the following principles in mind: Our predominant mission is to ascertain and implement the legislative intent, which is to be derived, if possible, from the language of the statute (or Rule) itself.

If the language is clear and unambiguous, our search for legislative intent ends and we apply the language as written in a commonsense manner. We do not add words or ignore those that are there. If there is any ambiguity, we may ⁴⁶³ then seek to fathom the legislative intent by looking at legislative history and applying the most relevant of the various canons that courts have created. Downes v. Downes, 388 Md. 561, 571-72 , 880 A.2d 343 (2005); see also Schisler v. State, 394 Md. 519, 535 , 907 A.2d 175 (2006) (“where an order [of the trial court] involves an interpretation and application of Maryland constitutional, statutory or case law, [the appellate court] must determine whether the trial court’s conclusions are ‘legally correct’ under a de novo standard of review”).

The procedures that govern guardianships are found in §§ 5-313 to 5-528 of the Family Law Article and their implementing rules; 10 In re Adoption/Guardianship No. 93321055, 344 Md. at 477 , 687 A.2d 681 . Section 5-313(a) mandates that a petition for guardianship be filed prior to a petition for adoption. After such petition is filed, the juvenile court must issue promptly “a show cause order that requires the party to whom it is issued to respond as required under the Maryland Rules.” § 5-316(a). Maryland Rule 9-105(e) dictates the form that must be utilized for a show cause order, requiring the show cause order to advise the recipient, inter alia, that the consequence of the failure to file the objection with the court means that the recipient of the show cause order has “agreed to a termination of [his or her] parental rights.” Maryland Rule 9-107(b)(1) requires that, subject to exceptions not applicable in this case, notice of objection to an adoption or guardianship “shall be filed within 30 days after the show cause order is served.” There is no dispute that Kellie B. was properly and timely served, or that her notice of objection was not timely filed.

The Petitions and Show Cause Orders were filed on August ⁴⁶⁴ 13, 2008, pursuant to §§ 5-313 and 5-316. The Show Cause Orders contained the warnings required by Md. Rule 9-105(e). Kellie B. was personally served on August 26, 2008. On September 30, 2008, five days beyond the deadline provided in Md. Rule 9—107(b)(1), Kellie B. filed her Notice of Objection to the Petitions.

Kellie B. conceded in the juvenile court that her objection was untimely, and makes a similar concession in this Court. The question here presented concerns the viability of the untimely objection. The parties agree that the answer lies in the interpretation of Sections 5-320 and 5-321. 11 Section 5-320 provides the circumstances for the court’s authority to grant a guardianship: (a) Consent and acquiescence or best interests.—A juvenile court may grant guardianship of a child only if: (1) (i) the child does not object; (ii) the local department: 1. filed the petition; or 2. did not object to the other party filing the petition; and (iii) 1. each of the child’s living parents consents: A. in writing B. knowingly and voluntarily, on the record before the juvenile court; or C. by failure to file a timely notice of objection after being served with a show cause order in accordance with this subtitle [.] § 5-320(a)(l). Section 5-321 (c), in turn, provides the following with respect to revocation of consent: ⁴⁶⁵ (c) Revocation period; waiver.—(1) Subject to paragraph (2) of this subsection, a person may revoke consent to guardianship any time within the later of: (1) 30 days after the person signs the consent; or (ii) 30 days after the consent is filed as required under this section.

(2) Consent to guardianship under subsection (a)(2) of this section is irrevocable. § 5-321(c). The plain language of § 5-320(a)(l)(iii)(c) instructs that failure to file a timely notice of objection in this case amounts to a consent to guardianship. Turning to § 5-321 (c), however, we cannot determine from the plain language whether a consent entered by operation of law is revocable. Subsection 5-321 (c)(1) permits revocation of a consent any time within the later of 30 days after a person “signs the consent” or after “the consent is filed as required under this section.” See § 5-321(c)(1).

Subsection 5-321(c)(2), in contrast, provides that a consent to guardianship pursuant to § 5-321(a)(2), i.e., “before a judge on the record,” is irrevocable. See §§ 5-321(a)(2),(c)(2); see also § 5-320(a)(l)(iii)(R) (providing that a party may consent on the record before the juvenile court). Neither of these provisions speak to a failure to act, and, as the court observed during the motions hearing, § 5-321(c) “sort of indicated] that something is done, that there’s either a signature of a consent or that something is filed, that there is an act[.]” Indeed, § 5-321 (c) simply does not address whether a “deemed consent” is revocable. Even as counsel for BCDSS acknowledges, “[t]he language of the statute, as a whole, makes no reference to deemed consents, and, consequently, the revocation portion of the statute makes no reference to deemed consents.” We conclude, therefore, that it is unclear whether § 5-321(c) applies by its plain language to a “deemed consent”, i.e., a consent occurring by failure to timely file a notice of objection to a show cause order.

When a statute is ambiguous, we must look beyond plain language to discern the ⁴⁶⁶ legislative intent. Melton v. State, 379 Md. 471, 477 , 842 A.2d 743 (2004). “[W]e resolve that ambiguity by looking to the statute’s legislative history, case law, and statutory purpose.” Barbre v. Pope, 402 Md. 157, 173 , 935 A.2d 699 (2007). Accordingly, we continue our analysis as the parties have suggested, by considering the opinion of the Court of Appeals in In re Adoption/Guardianship No. 93321055, supra, (“Clemy P.”) concerning the prior consent and revocation of consent provisions of the Family Law Article. In Clemy P., the Court of Appeals granted certiorari in five separate cases to consider issues relating to untimely objections to show cause orders. 12 In the case of primary concern to the Court, Clemy P., the Department filed petitions for guardianship of Stephon and Alphonso P. in the Circuit Court for Montgomery County on April 21, 1993, to terminate the parental rights of Clemy P. and Sam L. Id. at 471 , 687 A.2d 681 .

Sam L. consented to the petition. Id. A show cause order was served on Clemy P. on May 11, 1993. Id.

No objection was filed, and on October 20,1993, the court granted the petition and entered a judgment of guardianship. Id. Clemy P. filed an appeal 32 days later, which was struck by the circuit court as untimely. Id.

Eight months later, on July 25,1994, the children requested a hearing alleging a number of problems after the judgment of guardianship was entered. Id. Three days later, Clemy P. moved to intervene. Id. at 472 , 687 A.2d 681 .

The Department opposed both the childrens’ motion and Clemy P.’s attempt to intervene. Id. A status hearing convened on ⁴⁶⁷ August 11, 1994, but the record did not indicate how these motions were resolved. Id.

On July 5, 1995, 21 months after the judgments of guardianship were entered, Clemy P. moved to vacate the judgments. Id. She raised a number of contentions: that she was not aware of the need to respond to the show cause order or petition; that she received no notice of any proceedings; and that “the judgments were defective because they were based on her presumed consent and she was never informed of her right to revoke that consent.” Id. at 473 , 687 A.2d 681 . The circuit court granted Clemy P.’s motion to vacate the judgments, ruling, as summarized by the Court of Appeals, that “although Clemy may be deemed to have consented to the guardianships by not filing a timely objection, she retained the right to revoke that deemed consent and to receive notice of all further proceedings, including service of all pleadings.” Id.

After the circuit court denied the Department’s motion to alter or amend the order vacating the guardianship, the Department appealed. Id. at 473-74 , 687 A.2d 681 . The Court of Appeals began its analysis by summarizing the procedure generally followed in such cases: [A] child may not be adopted without the consent of his natural parents unless the parental rights of those parents have been terminated by a judicial proceeding. It is common for the State, when it concludes that a continuing relationship between a child and his natural parents is likely to be harmful to the welfare of the child, to seek to terminate parental rights as an intermediate measure.

A judgment terminating those rights not only eliminates the need for parental consent to a subsequent adoption but also provides the State with flexibility in seeking out adoptive persons or families and in caring for the child in the interim. Most States authorize this intermediate procedure. In re Adoption/Guardianship No. 93321055, 344 Md. at 477 , 687 A.2d 681 . In some cases, natural parents may consent to guardianship voluntarily and affirmatively; in other cases, they do not ⁴⁶⁸ affirmatively provide their consent.

Id. at 477-79 , 687 A.2d 681 . In cases where the parent(s) affirmatively consents to guardianship, the Court observed that § 5-317(e), then in effect, permitted a consenting parent to revoke his or her consent. See Md.Code (2004 Repl.Vol), § 5-317(e) of the