In re Adoption/Guardianship of Genara A.

DEBORAH S. EYLER, Judge. In a proceeding brought by the Baltimore City Department of Social Services (“the Department”), the appellee, the Circuit ⁷²⁷ Court for Baltimore City terminated the parental rights of Gabriella A., the appellant, to her daughter, Genara A. On appeal, the appellant contends that her “right to due process was violated when the State failed to properly satisfy the notification requirements regarding the petition for termination of parental rights.” FACTS AND PROCEEDINGS On March 13, 2002, Genara A. was bom, in Baltimore City, to the appellant. Genara was drug-exposed at birth. She was placed in foster care on March 19,2002.

On August 19, 2002, Genara was adjudged a Child in Need of Assistance (“CINA”), by the Circuit Court for Baltimore City, sitting as the juvenile court, and was committed to the custody of the Department, where she remained thereafter. On October 31, 2002, the Department filed a single guardianship petition and show cause order, seeking termination of the parental rights of Gabriella. The petition also sought termination of the parental rights to Genara’s older brother, Joseph A., another of the appellant’s children. Genara’s lawyer in her CINA case was served with the petition and show cause order on November 18, 2002.

The appellant was personally served with the petition on November 19, 2002. On November 22, 2002, the Department filed an affidavit of service of the petition and show cause order in the matter of Joseph and Genara, by certified mail, return receipt requested, to: Nenutzka Villamar Office of the P/D (CINA) Calvert Plz/201 E Balt St 1600 Baltimore MD 21202 410-223-3785. ⁷²⁸ The affidavit attached the return receipt, which had been signed on November 18, 2002, by someone whose name we cannot decipher, but is not Ms. Villamar. Genara’s father, whose name was not stated on her birth certificate, and who otherwise was unknown, was served by publication, on March 7, 2003. No objections were filed.

On April 17, 2003, the court held a hearing on the guardianship petition for Genara. Counsel for the Department was the only person present. She informed the court: Your Honor, Ms. Patricia Butler represents the child in this matter. She was present this morning and asked that I proceed without her.

The case is ready for an instant TPR Your Honor. The child’s counsel was served on 11/18/02. [The appellant] was served personally on November 19th, 2002. The father ... is unknown and he was served by way of publication on March the 7th, ... 2003.... None of the parties have filed a timely objection in this case Your Honor.

This child came to the Department’s attention because the child was born direct-exposed and was found to be a child in need of assistance on August 19th, 2002, and has been in the Department’s care since that time. The court stated that it had reviewed the petition and contents of the record; that Genara, the appellant, and the unknown father had been served and all had failed to file timely objections; that, due to their failure to object, the parents both were deemed to have consented to the termination of parental rights, by operation of law; and that, based on the assertions in the petition, it was in Genara’s best interest to terminate her parents’ rights. The court granted a limited guardianship in the foster parents in whose physical custody Genara was residing, and scheduled a guardianship review hearing for February 13, 2004. That same day, the court issued a written order terminating the appellant’s and unknown father’s parental rights in Gen-ara. ⁷²⁹ On April 22, 2003, the appellant, through counsel, William Fields, tiled a notice of appeal.

On April 30, 2003, the Department filed a “Motion to Reconsider,” citing Rule 2-535 and stating that there were “additional allegations that require[d] this Court’s further review.” The court held a hearing on the Department’s motion on May 19, 2003. It was attended by counsel for the Department and by Mr. Fields, on behalf of the appellant. Genara’s lawyer was notified of the hearing but consented to its proceeding without her. Counsel for the Department explained that the basis for the motion was that there was additional evidence that the Department wanted to put before the court that had not been before it on April 17.

Specifically, in Genara’s CINA proceeding, the appellant had been represented by Mr. Fields. Mr. Fields and Ms. Villamar both are staff attorneys employed by the Office of Public Defender in Baltimore City. There had been a separate CINA proceeding for Joseph, in which the appellant had been represented by Ms. Villamar. When the Department filed its guardianship petition for Joseph and Genara, it served the appellant personally and sent a copy of the petition and show cause order to Ms. Villamar, by certified mail.

The Department did not send a copy of the petition and show cause order to Mr. Fields, however. 1 The Department’s counsel explained: [A]s both attorneys [Ms. Villamar and Mr. Fields] are attorneys with the Office of the Public Defender!,] that the office has been served. But that clarification was not made at the record at the time that we go [sic] the decree. And that’s what I wanted to put on the record today. Mr. Fields responded that notice to Ms. Villamar, as counsel for the appellant in Joseph’s CINA case, was not notice to ⁷³⁰ him, as counsel for the appellant in Genara’s CINA case, notwithstanding that he and Ms. Villamar both are employed by the same district Office of Public Defender.

He argued that, because he was not notified, the appellant was not properly notified about the petition, and therefore one of the factual predicates for her having been deemed to have consented to the termination of her parental rights, by operation of law, was not shown. On that basis, he asked the court to vacate its April 17, 2003 order granting the Department’s petition. At the conclusion of the hearing, the court decided not to disturb its April 17, 2003 order. DISCUSSION The appellant contends that her due process rights were violated because she was deemed to have consented to the termination of her parental rights in Genara by operation of law, under Md.Code (1984,1999 Repl.Vol), section 5-322(d), of the Family Law Article (“FL”), even though the lawyer who represented her in Genara’s CINA case was not notified of the guardianship petition and show cause order, as required by the statutes and rules governing guardianship proceedings.

She maintains that, under FL section 5—322(a)(1)(ii)(2), and Rule 9-105(f), the Department was required to notify her CINA lawyer, personally, and that notification to another lawyer in his office was not sufficient. Subtitle 3 of Title 5 of the Family Law Article (“Children”) governs “Adoption and Guardianship With the Right to Consent to Adoption.” Unless a child’s natural parents’ rights have been terminated in a judicial proceeding, the child cannot be adopted without his parents’ consent (and his own consent, if he is at least 10 years old). FL section 5-311(a). A court can grant a decree of adoption or guardianship without the consent of the natural parents, however, if the court finds by clear and convincing evidence that it is in the child’s best interests to terminate the natural parents’ rights, and other ⁷³¹ wise makes findings as required by statute.

FL section 5-313. FL section 5-322, entitled “Notice,” states, in relevant part: (a) In general.—(l)(i) Subject to paragraph (2) of this subsection, a petitioner [for adoption or guardianship] shall give to each person whose consent is required notice of the filing of a petition for adoption or a petition for guardianship. (ii) In addition to the notice of filing required under subparagraph (i) of this paragraph, if a petition for guardianship is filed after a juvenile proceeding in which the child has been adjudicated a child in need of assistance, a petitioner shall give notice of the filing of the petition for guardianship to: 1. the attorney who represented a natural parent in the juvenile proceeding. 2. the attorney who represented the minor child in the juvenile proceeding. $ $ (d) Failure to respond or waiver of notification.—If a person is notified under this section and fails to file notice of objection within the time stated in the show cause order: (1) the court shall consider the person who is notified to have consented to the adoption or to the guardianship; and (2) the petition shall be treated in the same manner as a petition to which consent has been given. In addition, Rule 9-105(1) provides: Additional notice in a guardianship.

The petitioner in an action for guardianship of a child who has been adjudicated a child in need of assistance in a prior juvenile proceeding shall also send a copy of the petition and show cause order by first class mail to each attorney who represented a parent and to the attorney who represented the child in the juvenile proceeding. In the case at bar, at the April 17, 2003 hearing on the Department’s petition, the record evidence before the court was that Genara had been adjudicated a CINA in a prior ⁷³² juvenile proceeding and that, thereafter, the Department filed a petition for guardianship as to Genara and sent a copy of the petition and show cause order to Ms. Villamar, “Office of the P/D (CINA).” It thus appeared from the record, and nothing to the contrary was stated by the Department’s counsel, that Ms. Villamar had been sent copies of the petition and show cause order in her