In Re Adoption/Guardianship of Chaden M.

BARBERA, J. In this case we address the obligation of an attorney, appointed to represent an allegedly disabled parent, to preserve that parent’s right to object to a petition for guardianship of the parent’s child, in the event that the juvenile court ultimately determines that the parent is not disabled. This matter arose out of a guardianship proceeding instituted in the Circuit Court for Baltimore City (“juvenile court”). The juvenile court granted guardianship of then-three-year-old Chaden M. to the Baltimore City Department of Social Services (“DSS”) on May 7, 2009. Chaden M.’s Mother, April C., was deemed to have consented to the guardianship because neither she nor her appointed attorney filed a timely notice of objection on her behalf.

April C. noted a timely appeal to the Court of Special Appeals, which held that April C. had a right to effective assistance of counsel and that April C. was denied that right when her attorney failed to file a timely notice of objection. In re Adoption/Guardianship of Chaden M., 189 Md.App. 411 , ⁵⁰¹ 438, 984 A.2d 420, 435 (2009). DSS petitioned this Court, and we granted certiorari to consider whether “a non-disabled parent has a statutory right to effective assistance of counsel in a TPR [ (termination of parental rights) ] case that arises prior to the assertion of that right through the filing of an objection and request for counsel[.]” For the reasons that follow, we hold that, once counsel for April C. had entered her appearance, at the request of DSS and after DSS had alleged that April C. may have been disabled, April C. thereafter had a right to effective assistance of counsel as an allegedly disabled parent in a guardianship proceeding. We hold further that counsel rendered ineffective assistance because, after entering her appearance on behalf of April C., counsel failed to preserve April C.’s right to challenge the guardianship proceedings by failing to file a timely notice of objection.

Finally, we conclude that, on remand, April C. is entitled to file a belated notice of objection. I. Chaden M., whose biological parents are Ms. April C. and Mr. Saint M., was placed in foster care with DSS on January 3, 2007, for reasons the record does not disclose. On February 28, 2007, Chaden M. was adjudicated a Child In Need of Assistance (“CINA”) 1 and committed to DSS. On December 1, 2008, DSS filed a petition in the juvenile court seeking guardianship of Chaden M. with the right to consent to adoption, or long term care short of adoption. ⁵⁰² Maryland Rule 9-103, through subsections (b)(1)(E) and (c), requires that a petition for guardianship include “[f]acts known to each petitioner that may indicate that a party has a disability that makes the party incapable of consenting or participating effectively in the proceedings.” DSS alleged that April C. may have had a disability that made her “incapable of consenting to [DSS’s] Petition for Guardianship or of participating in the proceeding for Guardianship” and “[t]he nature and extent of the alleged disability is mental health issues.” DSS contemporaneously filed a request for the juvenile court to appoint an attorney for April C. and listed Cheryl Jeanine Smith, a public defender and April C.’s attorney in the prior CINA proceeding, under “[attorney information.” Also on December 1, 2008, the juvenile court issued a show cause order to April C. that generally followed the form prescribed by Maryland Rule 9-105. 2 The show cause order included, inter alia, admonishments that a notice of objection must be filed within thirty days after service of the order and if April C. “d[id] not make sure that the court receive[d] [her] notice of objection on or before the deadline ... [she] ha[d] agreed to a termination of [her] parental rights.” The show cause order explained that April C. had the right to consult an attorney and an attorney may have already been appointed for her based on representations made in the petition.

The show cause order also warned that, “[i]f an attorney has not already contacted you, you may be entitled to have the Court appoint an attorney for you if[,] ... [b]ecause of the disability, you are incapable of consenting to the adoption or guardianship or of participating effectively in the proceeding.” ⁵⁰³ On December 2, 2008, DSS sent by facsimile to the Office of the Public Defender a request for appointment of counsel for April C. The next day, December 3, 2008, April C. was personally served with the show cause order and petition, which began the thirty-day period within which she could object to the petition and preserve her right to contest the guardianship proceedings. 3 Md. Rule 9-107(b). That same day (December 3), Attorney Smith entered her appearance in the guardianship proceeding. On December 25, 2008, April C. was arrested and incarcerated for reasons not clear in the record. 4 The docket entries reflect that, on January 22, 2009, notice of a Disability Determination Hearing to be held on February 20, 2009, was sent by mail to April C. and Attorney Smith. The deadline for filing notice of objection to the petition was January 2, 2009.

Neither April C. nor Attorney Smith on April C.’s behalf had filed a notice of objection by that date. On February 5, 2009, several weeks after April C. was deemed to have consented to the petition for failing to file an objection, Attorney Smith met with April C. at the Baltimore City Women’s Detention Center. From the record, it seems that this was the first time that Attorney Smith met with April C. regarding the guardianship proceeding. At that meeting, ⁵⁰⁴ Attorney Smith “discerned that [April CJ did have some disability”-, and thereafter did not challenge DSS’s allegation.

The petition for guardianship came on for a hearing on February 20, 2009. 5 At that time, DSS informed the juvenile court, by oral motion, that it no longer alleged that April C. was disabled. Attorney Smith was present at that hearing, although April C. was not. 6 The disability hearing was rescheduled for March 3, 2009. On March 3, 2009, well after the last date for objection, Attorney Smith filed a notice of objection. DSS moved to strike the late-filed notice of objection, and Attorney Smith opposed that motion.

Also on March 3, the disability determination hearing was again postponed to April 6, 2009, for reasons not reflected in the record. Then, on April 6, the hearing was postponed, for the last time, to May 7, 2009, because April C. was not present. The juvenile court held the postponed disability hearing on May 7, 2009. April C. did not appear at that hearing.

The Docket entries do not indicate whether she was served and given notice of the scheduled hearing. Attorney Smith informed the court that April C. was “aware of today’s hearing, [but] is not present” and, “in light of the fact that witnesses were subpoenaed to be here, I still feel that I should go forward.” The juvenile court received evidence on the question of April C.’s disability, heard from counsel, and determined that April C. was not disabled. The juvenile court then considered DSS’s motion to strike April C.’s untimely objection. At that point the following exchange took place: ⁵⁰⁵ [Attorney Smith]: ... [DSS] 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 [April 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.

And that I’ve been assigned for the purpose to assist her in being able to litigate the case. Now, I can see the frown of course. [The Court]: It’s not a frown, I’m perplexed. Because I’m not aware of any such policy. [Attorney Smith]: Well, I’m aware of how I get assigned to cases and how these cases come to me.... I am notified that there is a request for an appointment of an attorney, and that’s made by [DSS] based on its own petition that they, based on information— [The Court]: That’s not the part I’m perplexed about.

I’m perplexed about the Court policy that your entry of appearance serves as an objection, a statutory objection.[ 7 ] [Attorney Smith]: I’m saying that, my argument is that factually] that is how it is done here in this courthouse. And I certainly can accept responsibility for the fact that perhaps ivhat I should have don,e, and what I would probar ⁵⁰⁶ bly do from now on when [DSS] makes an allegation of disability, and then in anticipation that perhaps they may withdraw it at some later point, that I will from now on file an objection on behalf of the client. (emphasis added). DSS responded that April C. was personally served on December 3, 2008; she had thirty days from that date within which to object; and, having failed to do so, she was deemed by law to have consented to the termination of her parental rights.

The time requirement is enforceable, claimed DSS, despite the fact that DSS’s allegation that April C. might have been disabled due to mental illness was pending during the thirty-day objection period. The juvenile court agreed with DSS, explaining: “It’s clear that no timely objection was filed in this case. That statute’s clear, the parent needs to object within 30 days of service.... [April C.’s] counsel was advised of the filing of the petition and frankly the law is what it is.” The court then granted DSS’s Motion to Strike. That same day, the juvenile court appointed DSS as guardian of Chaden M., on the ground that both parents had consented. 8 The guardianship order automatically terminated April C.’s parental rights to Chaden M. See Maryland Code (1999, 2006 Repl.Vol.), § 5-325(a) of the Family Law Article (“F.L.”) (entitled “Effects of order for guardianship,” and providing in relevant part that “[a]n order for guardianship of an individual ... terminates a parent’s duties, obligations, and rights toward the individual”).

II

On May 11, 2009, April C. noted her appeal to the Court of Special Appeals. She challenged the juvenile court’s order ⁵⁰⁷ appointing DSS as guardian of Chaden M., which, as noted, had the effect of terminating April C.’s parental rights. 9 The Court of Special Appeals held that April C. had a statutory right to counsel rooted in F.L. § 5-307 and Maryland Code (2001, 2008 Repl. Vol, 2010 Supp.), § 16-204 of the Criminal Procedure Article (“C.P.”), 189 Md.App. at 428 , 984 A.2d at 430 , and, “where there is a right to assistance of counsel in a termination of parental rights case, that right includes the right to effective assistance of counsel,” 189 Md.App. at 411 , 984 A.2d at 424 . The Court of Special Appeals applied the standard articulated in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), for ascertaining ineffective assistance of counsel under the Sixth Amendment.

See 189 Md.App. at 433-38 , 984 A.2d at 433-36 . The Court of Special Appeals held that Attorney Smith’s failure to file April C.’s notice of objection within the time prescribed was deficient under Strickland because it precluded any challenge to the petition for guardianship of her child. Id. at 437, 984 A.2d at 435 . The Court of Special Appeals further held that the record was sufficient to determine that April C. met the Strickland standard of prejudice because, absent Attorney Smith’s error, the matter would have proceeded on a contested basis and DSS would have had to prove its case by clear and convincing evidence.

Id., 984 A.2d at 436 . The Court of Special Appeals remanded the matter to the juvenile court to permit April C. to file a belated objection. Id. at 438 , 984 A.2d at 436 .

III

Before this Court, Petitioner DSS requests that we reverse the judgment of the Court of Special Appeals and allow the ⁵⁰⁸ guardianship order from the juvenile court to stand. DSS argues that the right to counsel in guardianship proceedings, pursuant to C.P. § 16-204, does not attach until the parent triggers that right by filing a timely notice of objection. DSS further argues that a notice of objection is not a pleading; rather, the notice is simplistic so as to enable a parent to complete the form without the assistance of counsel, and the statutory scheme contemplates that a pro se party will file the notice and the request for an attorney simultaneously. DSS also asserts that no attorney-client relationship formed between April C. and Attorney Smith before the thirty-day period lapsed because they did not meet regarding this case during that period.

DSS suggests that the holding of the Court of Special Appeals effectively requires all CINA attorneys to file notices of objection to petitions for guardianship, even when parents may be absent entirely. Finally, DSS argues that April C. was not prejudiced by Attorney Smith’s failure to file the notice of objection because the record does not reflect that April C. relied on counsel to file the notice of objection or that she took any affirmative steps to direct her CINA counsel to file the Notice. DSS finally asserts that a belated objection is inappropriate because there has been no showing that April C.’s due process rights were violated or that her inaction was the product of duress or misrepresentation of material fact. Respondent April C. asserts that her right to counsel in the guardianship proceeding arose from DSS’s allegation of disability, not from Attorney Smith’s previous role as her counsel in the CINA matter.

She further asserts that, because DSS alleged that she was disabled, and her attorney agreed with that allegation, she was entitled to an attorney under F.L. § 5-307(a) and Maryland Rule 9—105(b). April C. alternatively argues that, if her right to counsel was deemed to have arisen from Attorney Smith’s representation in the CINA matter, as DSS understands the Court of Special Appeals’s decision, then Attorney Smith was authorized to act on April C.’s behalf pursuant to Maryland Lawyers’ Rules of Profes ⁵⁰⁹ pional Conduct Rule (“MRPC”) 1.2. 10 Such representation, April C. argues, extends to a guardianship proceeding because, although a separate case, it is essentially a continuation of the preceding CIÑA case. Finally, April C. asserts that the record from the juvenile court sufficiently demonstrates that she received ineffective assistance of counsel because the failure of Attorney Smith to file the notice of objection extinguished April C.’s right to a hearing before the juvenile court granted guardianship of her child to DSS. Respondent Chaden M. asserts that his mother April C. had a statutory right to counsel, and that, under the Strickland test, she was denied that right.

Chaden M., too, requests that we remand the matter to the juvenile court.

IV

Right to Effective Assistance of Counsel The right to counsel may be afforded by statute or rule. 11 See, e.g. State v. Flansburg, 345 Md. 694, 698-99 , 694 A.2d 462, 465-65 (1997) (recognizing a right to counsel for petitioners in postconviction proceedings “under Maryland statutory provisions, rules and caselaw”). We have held that implicit in the grant of the right to counsel is the right to effective assistance of counsel. See, e.g., id. at 703, 694 A.2d at ⁵¹⁰ 467.

Based on DSS’s allegation of the potential that April C. may be mentally disabled (and until it was decided that she was not so disabled), April C. had a right to counsel as an allegedly disabled parent in a guardianship proceeding pursuant to F.L. § 5-307(a) and Maryland Rule 9-105(b). Implicit in that right to counsel is that counsel be effective. Adjudication of petitions for guardianship is governed by Part III of the Family Law Article, §§ 5-313 through 5-328. The general provisions of Part I of the Family Law Article apply as well, specifically §§ 5-301 through 5-310.

Section 5-307 provides in pertinent part: (a) Parent.—(1) Unless the public defender is required under § 16-204[ 12 ] 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: (i) 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, is a minor. (2) To determine whether a disability makes a parent incapable of effectively