In Re Adoption/Guardianship of Chaden M.

⁴¹⁷ J. FREDERICK SHARER, Judge (Retired Specially Assigned). In the Circuit Court for Baltimore City, Division of Juvenile Causes, 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 (“the Petition”), seeking to terminate the parental rights of April C. and Saint Sydney M. to Chaden M. April C., represented by an attorney from the Office of the Public Defender, filed an objection to the Petition, but did so beyond the time provided by the juvenile court’s Show Cause Order. The Department successfully moved to strike that late objection and the court granted guardianship to the Department. April C. and Chaden M. now contend in this Court that April C. received ineffective assistance of counsel, and is entitled to reversal. 1 Deciding an issue of first impression, we shall hold that, where there is a right to assistance of counsel in a termination of parental rights case, that right includes the right to the effective assistance of counsel.

We also conclude that April C. received ineffective assistance of counsel because of the late filing, and shall remand this case in order to permit April C. to file a belated objection to the Petition. PROCEDURAL HISTORY Chaden M. was born on January 14, 2006, the son of April C. and Saint Sydney M. 2 On January 3, 2007, for reasons not stated in the record, Chaden M. was placed in foster care with the Department. Thereafter, on February 28, 2007, again for reasons not stated in the record, Chaden M. was found to be a ⁴¹⁸ Child In Need of Assistance (“CIÑA”), and committed to the care and custody of the Department. On December 1, 2008, the Department filed the Petition that is the subject of this appeal, alleging that April C. may have a disability that made her incapable of consenting to the Petition, or participating in the guardianship/termination proceeding.

The Petition alleged that the nature of April C’s disability was related to mental health issues. That same day, the juvenile court issued a Show Cause Order to April C. (“Show Cause Order”), warning her that: 2. RIGHT TO OBJECT; TIME FOR OBJECTING.

If this Order is served on you by February 2, 2009, 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 A3320, Baltimore, Maryland, 21202 within 30 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. Pertinent to the issues on appeal, the Show Cause Order also informed April C. that she: (a) had a right to consult an attorney; (b) may have already had an attorney appointed for her based on statements in the Petition; and, (c) may be entitled to have an attorney appointed by the court on certain grounds, including, but not limited to, the following: You are a parent of the person to be adopted or for whom a guardian is sought and: A. You are under 18 years of age; or B. Because of the disability, you are incapable of consenting to the adoption or guardianship or of participating effectively in the proceeding; or ⁴¹⁹ C. You object to the adoption and cannot afford to hire an attorney because you are indigent.

The Show Cause Order then warned: IF YOU BELIEVE YOU ARE ENTITLED TO HAVE THE COURT APPOINT AN ATTORNEY FOR YOU AND YOU WANT AN ATTORNEY, YOU MUST NOTIFY THE COURT BEFORE THE TIME YOUR NOTICE OF OBJECTION MUST BE FILED. IF YOU DO NOT MAKE SURE THAT THE COURT RECEIVES YOUR NOTICE OF OBJECTION ON OR BEFORE THE DEADLINE STATED, YOU HAVE AGREED TO A TERMINATION OF YOUR PARENTAL RIGHTS. On the same day the Petition and Show Cause Orders were filed, the Department also filed a Request for the Appointment of an Attorney to represent April C. Two days later, on December 3, 2008, April C. was personally served with the Show Cause Order and Petition. Additionally, April C.’s attorney, Cheryl Jeanine Smith, of the Office of the Public Defender, entered her appearance the same day. 3 On March 3, 2009, more than 30 days after the Show Cause Order was served on April C., April C.’s attorney filed a Notice of Objection to the Petition alleging that April C. was “ready, willing and able to care” for Chaden M., and that “the termination of the natural mother’s parental rights is not in [Chaden M.’s] best interest.” The Department then filed a Motion to Strike Late Objection, alleging that the Notice of Objection was filed beyond the 30 days permitted under Md. Rule 9-107 (“any notice of objection to an adoption or guardianship shall be filed within 30 days after the show cause order is served”). ⁴²⁰ On March 27, 2009, April C.’s attorney filed a Response to Motion to Strike Objection, stating that it was “impossible” for April C. to file a Notice of Objection within 30 days of being personally served because she was arrested and detained on criminal charges until February 26, 2009. 4 The Response also stated that on February 5, 2009, after meeting with April C. at the Baltimore City Women’s Detention Center, her attorney agreed with the Department’s initial assessment of a mental disability and therefore did not challenge the allegations in the Petition.

Counsel’s Response also alleged the following: 8. That upon the entry of appearance by undersigned counsel on or about December 3, 2009, the case proceeded to the setting of a Pretrial Conference, as the entry of counsel’s appearance served as Respondent’s Mother’s Objection to the termination of her parental rights. 9. That at the Pretrial Conference on February 20, 2009, the [Department’s] counsel averred that the agency was withdrawing its allegation of disability of Respondent’s Mother yet failed to timely file an Amended Petition for Guardianship withdrawing the allegation of her disability. 10. That undersigned counsel filed a Notice of Objection on behalf of Respondent’s Mother within thirty days of the [Department’s] oral notice of its withdrawal of the allegation of disability with respect to Respondent’s Mother. 11.

That the practical effect of the [Department’s] oral amendment is to deny Respondent’s Mother the right to participate in the Termination of Parental Rights proceeding, thereby substantively impairing her right to due process. The Maryland Court of Appeals has said that “... when the State moves to abrogate that parent’s fundamental liberty in the care, custody, and management of their children, it must provide parents with fundamentally fair proce ⁴²¹ dures.” See In re Adoption/Guardianship, No. 93321055, 344 Md. 458, 491 , 687 A.2d 681, 697 (1997). On May 7, 2009, the juvenile court held a hearing on two matters then pending: 1) the issue of April C.’s disability within the meaning of the pertinent rules, and 2) the Department’s motion to strike April C.’s late objection. 5 After first hearing testimony and considering argument on the issue of April C.’s disability, the court concluded that April C. was not disabled. 6 The Department then requested the court to grant its motion to strike April C.’s late-filed objection to the Petition and Show Cause Order. April C.’s counsel asked the court to deny the motion, asserting: And I’m going to do so for two reasons. 1) the Department in its petition had alleged disability and asked specifically that our office appoint an attorney.

And at that point there was an acquiesced [sic] that she needed counsel and that consequently by the policy of this Court, I was appointed. So therefore I did not, because I acquiesced because I met with Ms. C. shortly thereafter once I learned that she was incarcerated, I was able to fit in and meet with her and discerned that she did have some disability. I didn’t know all of the details, but I could discern as a layperson that there was an issue. So therefore I went, and as is the policy here, I went on the fact that once my appearance is entered, it serves in effect as my client’s objection to the termination of her parental rights____ After the juvenile court and counsel discussed whether there was, indeed, such a policy that an entry of appearance by the public defender serves as a statutory objection, April C.’s counsel also raised a due process issue, arguing that April ⁴²² C. was denied due process because of the way the proceedings were conducted: [APRIL C.’S COUNSEL]: And I think what’s most pivotal here, the risk of error that here that’s been created by the procedure in this case is to effectively deny Ms. C. her right to have counsel.

On the one hand the Department is saying oh, she’s disabled, she can not participate. They then withdraw that at the point where its beyond the time frame that she could object. If there is a challenge to the disability, the rule says the party is to promptly notify the parties and the Court so that there can be a disability hearing in order to determine whether she needs to be appointed counsel. Counsel for the Department has indicated they filed their petition in December.

It is not until February that they then by way of oral motion in Court to say oh no, now we’ve changed our mind. She’s not disabled, we now want to withdraw that. So in effect, withdraws Ms. C.’s ability to have the assistance of counsel by our office. THE COURT: But when you got a copy of the petition in December, what was your responsibility then? [APRIL C.’S COUNSEL]: My responsibility then was to go out, to try to locate my client, to speak with her about what’s going on.

And to discern whether or not she had the disability. And I did do that and I acquiesced, I wasn’t objecting to the Department’s allegation. THE COURT: But those are two separate things, I guess that’s what I’m trying to understand. The issue of disability is limited to whether she’s entitled to counsel.

Beyond that, there’s a statutory requirement that she file a response within a given period of time. Those are two separate issues. They’re not one in the same. That’s how I’m receiving your argument.

Basically you’re saying that she’s being denied due process because the Department decided to withdraw its belief that she’s disabled. April C.’s counsel then clarified that it was her position that the Department needed to withdraw its suggestion of disabili ⁴²³ ty before the expiration of the 30 days in which to file an objection. When asked to cite authority in support of that argument, counsel responded, “I only have that the word under which the statute provides under the Rule 9-105 that it should be prompt.” Finally, counsel added that April C. was unable to object to the Show Cause Order and Petition because she was incarcerated on December 25, 2008. The Department reiterated that April C. and her attorney were served with the Petition and Show Cause Order, and that no objection was filed within the required 30 days.

The court ruled: It’s clear that no timely objection was filed in this case. The statute’s clear, the parent needs to object within 30 days of service, the parent didn’t do so. I’m not persuaded by the fact that she was incarcerated on the tail end of the period. Her Counsel was advised of the filing of the petition and frankly the law is what it is.

Didn’t note an objection and has not appeared today to show any interest in this case in any event. And her failure to appear twice for a disability hearing, coupled with the fact that she received the notice of the petition and was given information regarding objecting 22 days or so before she was incarcerated suggests that she was in no hurry. An anxious parent who wanted to preserve the parental rights probably would have had it in the mail within a day or two. And so I just don’t find any basis for denying the Department’s request.

So I will strike the late objection. I’m not persuaded that the Department through withdrawing the disability request or disability allegation has somehow prejudiced the mother. Those are two separate issues. One having to do with whether Mother is entitled to representation at the State’s expense in order to preserve her rights.

And the other is having to do with what the General Assembly has said a person need to do in order to preserve parental rights in this type of situation. So the Motion to Strike is granted. ⁴²⁴ The juvenile court memorialized its oral ruling in a written order, directing that the Department be appointed as guardian for Chaden M. with the right to consent to adoption and the right to consent to long-term care short of adoption, and that April C. and Saint Sydney M. had the right to notice of the status of Chaden M. subsequent to the guardianship order. Additionally, Evelyn M. was granted limited guardianship of Chaden M., but not to abridge the Department’s authority as guardian. The court also incorporated the post-adoption contact agreement negotiated between Saint Sydney M. and the prospective adoptive parents.

Finally, the juvenile court found that the Department made reasonable efforts in that it “filed petition for guardianship, served all parties, proceeded to complete the case and located prospective adoptive resource.” This appeal followed. DISCUSSION April C. and Chaden M. both contend that the right to counsel in termination of parental rights (“TPR”) proceedings under Title 5 of the Family Law Article necessarily includes the right to effective assistance of counsel. Pursuant to that right, April C. specifically asserts that she received ineffective assistance of counsel when her appointed counsel failed to timely object to the Petition on her behalf, pursuant to Md. Code (1984, 2006 Repl. Vol., 2009 Supp.), Family Law Article (“FL”), § 5-320(a). 7 The Department responds that April C. ⁴²⁵ had no right to counsel during the time period when an objection to the Petition was due, and that, therefore, April C. had no corresponding right to the effective assistance of counsel.

The Right to Counsel Generally, the right to counsel is guaranteed in criminal cases by the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights. See Gideon v. Wainwright, 372 U.S. 335, 342-43 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963); Walker v. State, 391 Md. 233, 245 , 892 A.2d 547 (2006). It is also clear that the right to counsel in such cases includes “the right to the effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). However, a case involving the termination of parental rights is a civil proceeding, and, therefore, Sixth Amendment and Article 21 protections do not apply.

See In re Adoption/Guardianship No. 6Z980001, 131 Md.App. 187, 192 , 748 A.2d 1020 (2000) (holding that the Sixth Amendment right to be present during proceedings is inapposite to TPR proceedings because they are civil proceedings). Thus, if there is a right to effective assistance of counsel in TPR proceedings, specifically a proceeding under Title 5, Subtitle 3, Part II or Part III of the Family Law Article, then that right must originate in the Maryland statutes. 8 The Court of Appeals has stated: ⁴²⁶ In statutory interpretation, our primary goal is always to “to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by a particular provision, be it statutory, constitutional or part of the Rules.” We begin our analysis by first looking to the normal, plain meaning of the language of the statute, reading the statute as a whole to ensure that “ ‘no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory.’ ” Further, whenever possible, an interpretation should be given to the statutory provisions which does not lead to absurd consequences. If the language of the statute is clear and unambiguous, we need not look beyond the statute’s provisions and our analysis ends. If however, the language is subject to more than one interpretation, it is ambiguous, and we resolve that ambiguity by looking to the statute’s legislative history, case law, and statutory purpose.

Barbre v. Pope, 402 Md. 157, 172-73 , 935 A.2d 699 (2007) (citations omitted). The facts before us implicate two pertinent Maryland statutes providing for the assistance of counsel in guardianship and adoption proceedings. Pursuant to provisions of the Public Defender Act, codified in Md.Code (2001, 2008 Repl. Vol.), Criminal Procedure (“CP”) §§ 16-101 to 16-403, representation shall be provided in the following cases: (1) Indigent defendants or parties shall be provided representation under this title in: (i) a criminal or juvenile proceeding in which a defendant or party is alleged to have committed a serious offense; ⁴²⁷ (ii) a criminal or juvenile proceeding in which an attorney is constitutionally required to be present prior to presentment being made before a commissioner or judge; (iii) a postconviction proceeding for which the defendant has a right to an attorney under Title 7 of this article; (iv) any other proceeding in which confinement under a judicial commitment of an individual in a public or private institution may result; (v) a proceeding involving children in need of assistance under § 3-813 of the Courts Article; or (vi) a family law proceeding under Title 5, Subtitle 3, Part II or Part III of the Family Law Article, including: 1. for a parent, a hearing in connection with guardianship or adoption; 2. a hearing under § 5-326 of the Family Law Article for which the parent has not waived the right to notice; and 3. an appeal.

CP § 16-204(b). 9 Under this statute, an indigent party shall be provided assistance of counsel in a family law proceeding concerning either Guardianship under Part II of Title 5, Subtitle III (see FL §§ 5-313 to 5-328), or Adoption without Prior Termination of Parental Rights under Part III of Title 5, Subtitle III (see FL §§ 5-331 to 5-342). The scope of the representation includes hearings in connection with guardianship and adoption, a guardianship review hearing under FL § 5-326, where the parent has not waived notice, and an appeal. See CP § 16-204(b)(l)(vi). In addition to the provisions for indigent parties under the Public Defender Act, the Family Law Article also provides for assistance of counsel for a minor parent or a parent with a certain disability in guardianship or adoption cases: ⁴²⁸ (1) Unless the public defender is required under § 16-204 of the Criminal Procedure Article to provide representation, in a case under Part II or Part III of this subtitle, a juvenile court shall appoint an attorney to represent a parent who: (1) has a disability that makes the parent incapable of effectively participating in the case; or (ii) when a petition for guardianship or adoption is filed or consent to guardianship or adoption is given, is a minor.

(2) To determine whether a disability makes a parent incapable of effectively participating in a case, a juvenile court, on its own motion or motion of a party, may order examination of the parent. FL § 5—307(a); see also Md. Rule 9-105(b) (stating procedures for appointment of an attorney for a disabled party). Thus, in addition to the provisions of the Public Defender Act providing a statutory right to counsel for indigent parents, see CP § 16-204(b)(l)(vi), FL § 5-307(a) also makes clear that there exists a statutory right to counsel in guardianship or adoption cases where a parent, whether or not indigent, has a disability that makes him or her incapable of effectively participating in the case, or where the parent is a minor. See Barbre, 402 Md. at 173 , 935 A.2d 699 (“If the language of the statute is clear and unambiguous, we need not look beyond the statute’s provisions and our analysis ends”); accord Downes v. Downes, 388 Md. 561, 571-72 , 880 A.2d 343 (2005); Derry v. State, 358 Md. 325, 335 , 748 A.2d 478 (2000); Gargliano v. State, 334 Md. 428, 435 , 639 A.2d 675 (1994).

Therefore, where the public defender is otherwise required by statute to represent a parent in a guardianship or adoption proceeding, or where the juvenile court has appointed counsel, there exists a statutory right to counsel. As we shall discuss, we conclude that the right to counsel also includes the corresponding right to the effective assistance of counsel. The Court of Appeals discussed certain provisions of the Public Defender Act in State v. Flansburg, 345 Md. 694 , 694 ⁴²⁹ A.2d 462 (1997). 10 There, the Court addressed whether the respondent, Flansburg, had a right under Maryland law to the effective assistance of counsel in connection with a motion for modification of the sentence imposed at a probation revocation proceeding pursuant to Md. Rule 4-345(b). Flansburg, 345 Md. at 696 , 694 A.2d 462 .

In 1985, Flansburg pleaded guilty to a second degree sex offense and was sentenced to seven years imprisonment, with four years suspended, to be followed by five years probation. Id. In 1990, while on probation, Flansburg was convicted of battery and second degree murder. Id.

Subsequently, and while represented by the Office of the Public Defender, Flans-burg’s probation was revoked and the previously suspended portion of his prior sentence was reimposed, to be served consecutively to a fifteen year sentence imposed for the murder conviction. Id. Following revocation of probation, Flansburg made two timely written requests that his attorney file a motion for modification of sentence pursuant to Md. Rule 4—345(b). Flansburg, 345 Md. at 696 , 694 A.2d 462 .

That provision, since recodified as Md. Rule 4-345(e), permits a court to modify a sentence upon motion filed within 90 days after its imposition. See Md. Rule 4-345. Flansburg’s attorney failed to timely file the motions, and Flansburg thereafter filed a petition for post-conviction relief, asserting he was denied effective assistance of counsel. Flansburg, 345 Md. at 697 , 694 A.2d 462 .

The Court of Appeals began its discussion by assuming, arguendo, that neither the federal right to effective assistance of counsel or the Maryland Declaration of Rights applied to a motion to modify a sentence reimposed upon a revocation of probation. Id. at 698-99 , 694 A.2d 462 . Nevertheless, the Court found such a right under Maryland statutory provisions, including the Public Defender Act. Flansburg, 345 Md. at ⁴³⁰ 699, 694 A.2d 462 .

After setting forth the pertinent statutory language, the Court stated: As the statutory language demonstrates, the right to