In Re Adoption No. A91-71A

MURPHY, Chief Judge. This case involves a contested independent adoption proceeding, namely, an adoption not arranged by a child placement agency but rather by and between a biological parent and prospective adoptive parents. A threshold issue in the case is whether a court must appoint separate counsel for a child who is the subject of an independent adoption. Another primary issue requires that we address the proper application ⁵⁴³ of the best interest standard in terminating the rights of a natural parent who contests the independent adoption.

Maryland Code (1984, 1991 Repl.Vol., 1993 Cum.Supp.) § 5-323 of the Family Law Article provides: “(a) —In a proceeding for an adoption or guardianship, the court shall appoint separate counsel to represent: “(4) in an involuntary termination of parental rights, an individual who is the subject of the proceeding and an indigent parent.... ” Maryland Code (1984, 1991 RepLVol.) § 5-312 of the Family Law Article is applicable to independent adoptions in which a natural parent affirmatively withholds consent by filing a notice of objection. Subsection (b) provides that a court may grant a decree of adoption without a natural parent’s consent if the prospective adoptive parent has exercised physical care, custody, or control of the child for at least 6 months, and if the court finds, by clear and convincing evidence, that: “(1) it is in the best interest of the child to terminate the natural parent’s rights as to the child; “(2) the child has been out of the custody of the natural parent for at least 1 year; “(3) the child has developed significant feelings toward and emotional ties with the petitioner; and “(4) the natural parent: “(i) has not maintained meaningful contact with the child during the time the petitioner has had custody despite the opportunity to do so; “(n) has repeatedly failed to contribute to the physical care and support of the child although financially able to do so; or “(in) has been convicted of child abuse of the child.” I Ernest M. and Mellisa R., both unmarried, began to live together in early June of 1990. Toward the end of July 1990, ⁵⁴⁴ Mellisa discovered she was pregnant with Ernest’s child. At the time, Mellisa was 20 years old, a dancer on Baltimore’s “Block” and had a six-month-old child from a previous relationship.

She had no family in Maryland and was receiving financial assistance from the State. Ernest was 21 or 22 years old. Mellisa informed Ernest that she was pregnant and, because she could not care for another child and did not believe in abortion, that she planned to put the child up for adoption. According to Mellisa, Ernest expressed no opinion as to her adoption plans, but responded to the information that she was pregnant by moving out of her apartment the following evening while she was at work, and then stopping by her place of employment to inform her that he had moved.

Ernest then moved back to his grandmother’s house, where he had previously been living. 1 Mellisa testified that Ernest ' never expressed any interest thereafter in her or the pregnancy and offered her no financial assistance. Mellisa met the prospective adoptive parents, James and Darlene D., through a mutual acquaintance, and decided that she wanted them to adopt her child. The D.’s arranged to pay for Mellisa’s prenatal and postnatal medical care. In January and February 1991, Mellisa’s attorney contacted Ernest with regard to the upcoming birth and plans for adoption.

Ernest indicated in a telephone conversation with Mellisa’s attorney that he was willing to consent to an adoption. He said, “If the bitch wants to give it away, she can.” Subsequent correspondence between Mellisa’s attorney and Ernest, dated February 12 and 18, confirmed Ernest’s expressed willingness to consent. Ernest subsequently changed his mind and engaged counsel who informed Mellisa’s attorney that he would not consent to the adoption. This change in Ernest’s mind-set apparently ⁵⁴⁵ occurred after Mellisa spoke with Ernest’s mother, Margaret H., and informed her of her pregnancy by Ernest and of her plans to place the child with the adoptive parents.

On March 16, 1991, the child, a boy, was born. Mrs. D., one of the prospective adoptive parents, was present at the birth. Two days later, with Mellisa’s consent, the D.’s filed in the Circuit Court for Anné Arundel County a Complaint for Independent Adoption and Change of Name. On the same day, the court signed an order granting temporary custody of the child to the D.’s, and the couple took the baby (Baby G.) home from the hospital.

Also on March 18, the court issued a Show Cause Order requiring Ernest, if he intended to object to the adoption, to file a Notice of Objection on or before April 10, 1991. On April 9, Ernest filed a Notice of Objection, requesting proof that he was actually Baby G.’s biological father and indicating that he would seek custody if the child was his. He subsequently filed a petition asking that blood testing be conducted to determine paternity. As he later testified, Ernest hoped that the test would establish that he was not the father, so that he would be “off the hook.” The test results, however, established that Ernest was the biological father of Baby G. In the meantime, Mellisa filed a Conditional Revocation of Consent to Independent Adoption, stating that if the court would not finalize the adoption over Ernest’s objections, she would revoke her consent to the adoption and assume Baby G.’s care and custody herself.

On June 28, Ernest filed a Petition for Custody of the child. On July 15, he filed an ex parte Petition for Visitation, which was denied. The court ordered an investigation of the natural parents, which was conducted by Carol Popham, a social worker employed by the Anne Arundel County Department of Social Services. At the time of this investigation, Ernest was living with Beth W., who, according to testimony, was a prostitute on the “Block.” Ernest told Popham that he and Beth W. were ⁵⁴⁶ committed to their relationship and would raise the child together if Ernest were granted custody.

But, less than a month later, Ernest called Popham to tell her that he and Beth W. were no longer together because he “did not believe that [she] would be a good influence over his son.” Ernest informed Popham that he would now be living at his grandmother’s house and that his mother, Margaret H., who lived with her husband elsewhere, would live at his grandmother’s house Monday through Friday and would change her work schedule so that she could care for the child during the day while Ernest was at work. However, there was no assurance that she would, in fact, be able to change her work schedule and, even if she were able to do so, it appeared that there would be a gap in time between her schedule and Ernest’s in which a third caregiver would be necessary. The social worker expressed the belief that Ernest’s “sudden interest” in obtaining custody of the child was due to his mother’s influence. In addition to questioning Ernest’s commitment to Baby G., she cited behavior by Ernest which she considered irresponsible, including excessive absences from work, numerous points on his driving record, and an arrest and probation before judgment for cocaine possession.

She recommended that the D.’s adoption petition be granted. 2 A hearing on the merits was set for October 10, but a continuance was granted because Mellisa’s attorney was not available on that date, and the case was reset for March 6, 1992. Ernest moved for an emergency hearing and filed a ⁵⁴⁷ Motion to Dismiss the adoption petition. The case was reset for December 13, 1991. On that day, the court (Lerner, J.) heard evidence on the issues of custody and visitation, as well as Ernest’s motion to dismiss.

In a December 20, 1991 order, the court held: 1. that while it would not dismiss the adoption petition, it would not enter a decree of adoption because it did not have the authority to do so at that time; 2. that it would not be in the child’s best interest to grant visitation or custody to Ernest and that therefore visitation was denied; and 3. that the D.’s would continue to have custody of the child, pending the completion of the adoption proceedings. In so concluding, the court said: “[The] [i]ssue for me today is [the] issue of custody.... The rights of the parents ... are not absolute, but are subject to the best interest of the child.... And the right that a parent has to custody and rearing of his children is not an absolute one, but one that may be forfeited by abandonment, unfitness of a parent, or where some exceptional circumstances render[ ] the parent[’]s custody of the child detrimental to the best interest of the child. “And ...

I find that [Ernest’s] background would be detrimental ... and I’m not [going to] give him custody of that child today. He’s what you call a Johnny-come-lately. He ... says to [Mellisa] who[m] he lives with and fathers the child, that it’s not his child. Prove it.

Moves out on her. Leaves her destitute ... for months ... and shows up on the day that she gives birth to the child with his girlfriend. “His background, while you’ve been nice about calling these girls dancers, they’re strippers on the Block. That background is extremely poor for that child. “The language. He says, ‘if that bitch wants to keep the child, she can.’ That’s his attitude towards the child. ⁵⁴⁸ “We’ve got to have stability in this child’s background.

And we’re not [going to] have it giving that child to [Ernest]. * * * * * * “[The social worker] had an opportunity to make an in depth study in this case____ [Ernest] objected to being the father of the child and he had to have a lab report to prove it to him. He lived with one Beth [W.] He’s just been living here and there. And there’s just no stability there. In summary she says, ‘One must evaluate [Ernest’s] commitment to this child.

I believe [Ernest’s] sudden interest in this child is due to his mother’s direct influence. Should he obtain custody, Mrs. [H.] -will become the child’s primary care-taker.’ “And I really believe that’s so. Mrs. [H.] has already volunteered herself, with unknown consequences for her job and marriage. “ T believe my investigation leaves one to be uncertain of [Ernest’s] future behavior and role as a parent to this child. His past behavior shows irresponsibility and poor judgment with his job, the law and his relationship with [Mellisa R.] and [Beth W].’ ” “I’m going to grant custody to Mr. and Mrs. [D.] And there’s to be no visitation because it’s just [going to] totally disrupt that child.

It’s not in the best interest of that child.” The Hearing on the Merits of the Adoption The hearing on the merits of the adoption was held April 27-29, 1992. After testimony was adduced relevant to whether, under § 5-312, the independent adoption would be granted without the consent of the natural father, the court (Wolff, J.), by order dated May 4, 1992, denied the D.’s petition for adoption, but ordered that custody of Baby G. be continued with the D.’s. The court stated that, as to § 5-312, the following had been proven by clear and convincing evidence: ⁵⁴⁹ 1. that the D.’s had exercised custody of the child for at least six months; 2. that the child had been out of the custody of Ernest for at least one year; and 3. that the child had developed significant feelings toward and emotional ties with the D.’s. The court ruled, however, that it had not been proven by clear and convincing evidence that Ernest was unfit and therefore it could not find that it was in Baby G.’s best interest to terminate Ernest’s rights as to the child.

The court said: “We listed an argument to various things that we could consider under what would be in the best interests of the child; namely, pertaining to the fitness of the father.... It was pointed out that we have to look at a number of things, that taking them individually they may not be too bad. But the sum total, it’s argued by counsel for the Petitioners and for the mother, that the father is not fit.” The court then reviewed the evidence introduced by the D.’s and Mellisa, including Ernest’s driving record, the drug possession charge, his employment record, a history of instability in living arrangements, the weaknesses in his child care plan, his association with individuals employed on the Block, evidence of poor judgment regarding his relationships with Mellisa and Beth W., and his abandonment of Mellisa when she became pregnant. The court concluded that, while it was clear that the D.’s would be ideal parents to Baby G., Ernest was the natural father and he had not been shown to be unfit by clear and convincing evidence.

The court ruled also that it had not been proven by clear and convincing evidence that Ernest failed repeatedly to contribute to the physical care and support of the child. Although neither Mellisa nor the D.’s had received any money from Ernest for medical expenses or the care of the child, the court noted that Ernest had testified that he offered to make payment to the D.’s. Ernest had produced in evidence two checks which he claimed to have given to his attorney to ⁵⁵⁰ tender on his behalf. The first check, dated August 21, 1991, was a personal check for $7,279.79, drawn from the account of his mother, Margaret H., and made out to “cash.” The second check produced by Ernest was a copy of a cashier’s check for the same amount payable to Ernest, and dated December 2, •1991.

The check was not endorsed. Ernest testified that the money came from “savings of [his] family,” in particular of his mother and grandmother. There was no evidence that Ernest tendered or made any contribution from his own funds, although he was employed at the time. He further testified that the checks were refused by the D.’s.

The D.’s testified, however, that they did not receive any offer of money from Ernest or from anyone on his behalf, nor did they expect any. The court stated: “So, after he was found to be the father, and I don’t know whatever happened, he did offer to make payments. And we have monies that were withdrawn and that he gave to his counsel to tender. They may not have been tendered.

I don’t know what happened. No one produced the evidence. But according to him, he made an effort through counsel to make payments. No one ever asked any payments of him after he was established to be the father.

As a matter of fact, Mr. [D.] said I didn’t expect any money from him.’ “So, no requests being made, having offered to pay, I don’t find, again by clear and convincing evidence, that he has repeatedly failed to contribute to the physical care and support of the child.” The D.’s filed a Notice for In Banc Review on June 10,1992, pursuant to Article IV, § 22, of the Maryland Constitution and Maryland Rule 2-551; they raised the following questions: 1. Whether the trial court erred by failing to appoint counsel for the child in violation of § 5-323; 2. Whether, under § 5-312, the court erred by equating the best interest standard with Ernest’s fitness; and 3. Whether the court erred in finding that Ernest had not failed repeatedly to contribute to the child’s support under § 5 — 312 (b) (4) (ii). ⁵⁵¹ The In Banc Hearing Baby G. was represented by separate counsel for the first time at the in banc hearing.

On November 4, 1992, the in banc panel (Duckett, Williams, and Rushworth, JJ.) held: 1. that although the failure of the trial court to appoint counsel for the child violated § 5-823, the child’s interest had been “vigorously represented” by counsel since the trial court’s judgment. 2. that the focus below on Ernest’s fitness obscured the “paramount issue” of whether the adoption was in the child’s best interest; that even if the court concluded that Ernest was not unfit, that finding alone did not require denial of the adoption petition; and, consequently, the trial court erroneously equated the best interest standard with the fitness of the non-consenting father, and its factual finding was therefore clearly erroneous on that issue. 3. that the evidence before the trial court was insufficient to support its finding that Ernest had not failed repeatedly to contribute to the child’s physical care and support under § 5-312. The in banc panel noted that the checks offered in evidence by Ernest at the trial were.from Ernest’s mother, were made payable only to Ernest, and were never endorsed or tendered on behalf of Baby G. It concluded that the child’s best interests would be served by granting the adoption. It accordingly reversed the trial court’s judgment and remanded the case to that court with instructions to grant the decree of adoption. Ernest appealed to the Court of Special Appeals, raising these questions: 1.

Whether the in banc panel erred in holding that the trial court had erroneously determined that it could not find by clear and convincing evidence that it was in Baby G.’s best interest to terminate Ernest’s parental rights; ⁵⁵² 2. Whether the in banc panel erred in directing the trial court to grant the adoption rather than remanding the case for retrial under the proper “best interest” standard; 3. Whether the in banc panel erred in holding that the trial court erroneously concluded that it could not find by clear and convincing evidence that Ernest had repeatedly failed to contribute to Baby G.’s physical care and support; and 4. 'Whether the trial court and in banc panel erred in the application of the timing requirements of § 5-312(b). The Court of Special Appeals In an unreported opinion, the Court of Special Appeals held that the in banc panel, as an appellate tribunal, could not make an independent finding as to the child’s best interest.

On the record before it, the intermediate appellate court concluded that “it is unclear whether the trial court errantly equated the best interest standard with ... [Ernest’s] fitness ... or whether the trial court was merely (and permissibly) focusing its attention on the only ‘best interest’ argument made by counsel ... thereby ... implicitly indicating] that it found no ‘exceptional circumstances.’ ” As to this, the Court of Special Appeals observed that even though the trial court concluded that Ernest was not unfit, that finding alone would not require denial of the petition for adoption because a natural parent’s right may also be forfeited where some exceptional circumstances render the parent’s custody of the child detrimental to the child’s best interests. The court then said: “Absent any clear indication by the trial court as to the basis of its decision in this regard, we are unable to either affirm or reverse that court’s decision. We must instead remand this case to the trial court for the purposes of clarification, to wit: if the trial court determines, by clear and convincing evidence based on the totality of the circumstances, that it is in the best interest of [Baby G.] to terminate [Ernest’s] rights to the child, then the adoption petition may properly be granted irrespective of [Ernest’s] ⁵⁵³ fitness as a parent; if, on the other hand, the trial court determines that the standard was not met, it must accordingly deny the petition.” (Italics in original). Further in its opinion, the intermediate appellate court opined that the record could not sustain a finding other than that Ernest had failed repeatedly to contribute to Baby G.’s care and support.

It said that Ernest offered no evidence that the checks produced at trial were ever offered, or even made known, to the D.’s. The court also observed that the fact that the D.’s did not request or expect support would not, without more, relieve Ernest of his duty to support the child. The court determined that “even assuming, arguendo, that the checks allegedly tendered by [Ernest] to his attorney reflected some desire to ‘contribute’ to [Baby G.’s] ‘physical care and support,’ the record sub judice cannot (as a matter of law) sustain a finding other than that [Ernest] violated FL § 5-312(b)(4)(ii).” (Italics in original). The court also addressed § 5-312(b)’s timing requirements.

It interpreted the statute to control when the court had the power to grant an adoption, rather than when the adoption petition itself may be filed. The court indicated that, contrary to Ernest’s contention, the D.’s were not precluded from filing their petition for adoption two days after the child’s birth, even though the court could not grant the adoption until the statutory time requirements had been met. Because the trial court’s decision was made after Baby G. had been in the D.’s custody for at least six months, and out of the custody of Ernest for at least a year, the Court of Special Appeals held that the statutory timing requirements had been satisfied. Not addressed in the intermediate appellate court’s opinion was whether the trial court erred in failing to appoint separate counsel for Baby G. under § 5-323.

The D.’s, Mellisa, and Baby G. thereafter filed a joint petition for a writ of certiorari, asking that we decide whether “in an independent adoption — termination of parental rights proceeding, and in the circumstances of this case on remand to determine the best interest of the child, the child is required ⁵⁵⁴ to be represented by separate counsel, pursuant to ... §5-323 and the child’s constitutional right to due process of law.” In a cross-petition for certiorari, Ernest maintained that the Court of Special Appeals impermissibly modified or abrogated the statutory requirements which must be proven to grant an independent adoption without the consent of a natural parent by modifying the requirements of § 5-312 to create a “totality of the circumstances” test in determining when it is in a child’s best interest to terminate the rights of the natural parent. Additionally, Ernest asked that we consider whether the Court of Special Appeals erred in ruling, as a matter of law, that Ernest had repeatedly failed to contribute to Baby G.’s care and support. And finally, Ernest asked that we consider whether § 5-312’s timing requirements apply to the filing or to the granting of a petition for adoption. We granted both petitions for certiorari, 332 Md. 741 , 633 A.2d 102 , to consider the important issues presented therein.

II The D.’s, Mellisa, and Baby G. (the D.’s) argue before us that § 5-323 mandates the appointment of independent counsel for a child who is the subject of an independent adoption proceeding where termination of parental rights is at issue. They further assert that the constitutional requirements of due process, as well as public policy considerations, dictate the necessity for independent counsel in such a situation. They urge, however, that although the trial court erred in failing to appoint counsel, an entirely new trial is not required.

They ask that we leave undisturbed the findings below as to the elements which have been established supporting a decree of adoption and that on remand to the trial court to determine the child’s best interest, the child be represented by counsel. Ernest urges that there is no statutory or constitutional requirement that separate counsel be appointed for a child who is the subject of an independent adoption proceeding where a natural parent does not consent. He argues that this issue is not properly before us because it was not raised in the ⁵⁵⁵ proceedings below. Moreover, he contends that § 5-323(a)(4) applies only to a proceeding under § 5-313 of the Family Law Article in which the State seeks to terminate a natural parent’s rights.

He suggests that there is a significant difference between a termination of parental rights proceeding brought by the State and an independent adoption proceeding involving only private parties. He urges that the adversarial nature of the termination proceeding brought by the State, with its vast prosecutorial resources, creates a necessity for counsel that does not exist in a proceeding involving a contested independent adoption. He states that “no practical purpose” would have been served by appointing counsel to represent Baby G.’s interests. As to the application of the best interest standard in considering the termination of his parental rights, Ernest argues that the trial court properly applied the appropriate standard.

He contends that the court considered the evidence offered as to his unfitness as the only evidence that had been offered relative to the child’s best interest. He posits that when the court concluded that unfitness had not been proven by clear and convincing evidence, it necessarily held that the D.’s and Mellisa had not produced sufficient evidence to determine that it was in Baby G.’s best interest to terminate Ernest’s rights. Ernest contends, therefore, that because unfitness was the only issue raised at trial, and no evidence was introduced as to exceptional circumstances, the Court of Special Appeals erred in holding that the adoption could be granted “irrespective of Ernest’s fitness as a parent.” As to his failure to contribute to Baby G.’s care and support, Ernest asserts that there was substantial evidence to support the trial court’s factual finding that he had not failed repeatedly to contribute to Baby G.’s care and support. He also suggests that because the adoptive parents neither requested nor expected support, they cannot now claim that he failed to contribute to the child’s support.

And finally, Ernest argues that the trial court erred in not dismissing the adoption petition because, as he contends, it ⁵⁵⁶ was prematurely filed. He says that § 5-312’s timing requirements relate to the filing, not the granting, of an adoption petition. Thus, he claims that the D.’s could not file the petition for adoption until Baby G. had lived with them for at least six months and had been out of Ernest’s custody for at least one year. Because the D.’s filed the adoption petition before their cause of action for an independent adoption had accrued, Ernest concludes that their petition should have been dismissed.

He strongly urges that delays in the judicial system should not operate to fulfill the statutory requirements and thereby permit accrual of the cause of action for the independent adoption. Such a result, he contends, deprives him of due process of law. III A The Child’s Right to Counsel The issue of whether § 5-323 mandates the appointment of separate counsel for a child where the termination of a natural parent’s singular right is sought in a contested independent adoption