In Re Blessen H.

BARBERA, Judge. This appeal presents the question whether a court may declare a child in need of assistance (“CINA”) by relying on the parties’ agreed upon facts, without an on-the-record knowing and intelligent waiver by the parent of the right to a contested adjudicatory hearing. In this case, appellant, Tynetta H., was present and represented by counsel at a combined CINA adjudication and disposition hearing concerning her daughter, Blessen H. At the hearing, appellant’s counsel stated that appellant agreed to the facts contained in the CINA petition prepared by the Montgomery County Department of Health and Human Services (“MDHHS”), and further ⁷ agreed that those facts were sufficient to sustain a finding that Blessen should be declared a CINA. The court accepted this representation and, based on the facts presented, adjudged Blessen a CINA.

Then, accepting the parties’ recommended disposition, the court ordered that Blessen remain in the care of MDHHS, and that, following the appropriate investigation, she be placed in the home of her paternal grandmother, with visitation by her father, Sheldon A., and appellant. Appellant challenges the disposition, arguing that the court erred when it relied on her counsel’s representation that she agreed to the facts supporting the adjudication. Appellant maintains that the court should have required a personal waiver, akin to that laid out in Johnson v. Zerbst, 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938), of her right to a contested adjudicatory hearing. For the reasons that follow, we hold that due process does not require such a strict waiver.

Moreover, when, as in this case, the parent is present and represented by counsel, we can presume that counsel has informed the parent of the right to a contested adjudicatory hearing. In the absence of evidence that rebuts this presumption, the court may rely on counsel’s representation that his client is prepared to proceed on an agreed statement of facts. Nothing in this case rebutted that presumption. Therefore, the court did not err by accepting counsel’s representation and proceeding in accordance with it.

Background The issue we consider in this appeal permits us to dispense with a lengthy recitation of the underlying facts and procedural history of this case. It is sufficient to state that appellant and Sheldon A. are the biological parents of Blessen H., who was born on January 16, 2001. In July 2002, MDHHS filed CINA petitions on behalf of Blessen and her two siblings. MDHHS dismissed these CINA petitions when it learned that Blessen and her siblings were residing in Philadelphia, Pennsylvania, with their mother, and were receiving services ⁸ through the Philadelphia Child Protective Services.

Eventually, however, that agency removed the children from appellant’s care. Blessen was placed in the care of Sheldon A., a resident of Montgomery County. Blessen later resided with Sheldon A.’s mother in New Jersey. After a time, appellant and her mother, Rose G., traveled to New Jersey and took custody of Blessen by using an expired document granting Rose G. temporary custody of the child.

On July 29, 2003, MDHHS filed, in the Circuit Court for Montgomery County, a petition for shelter care and declaration of Blessen as a CINA. A shelter care hearing occurred that day, and the court issued a juvenile warrant for Blessen. Two days later, the authorities located Blessen in Georgia, in appellant’s custody. Blessen was brought back to Maryland on August 5, 2003.

At the shelter care hearing the next day, Blessen was placed into foster care. The court issued an order five days later preventing Rose G. from having any contact with Blessen because of her involvement in the child’s removal from the custody of Sheldon A. The CINA determination and disposition A combined adjudication and disposition hearing on the CINA petition commenced on September 2, 2003. Appellant (and her counsel), MDHHS, counsel for Blessen, and Sheldon A. (appearing pro se) were present.

At the outset, counsel for MDHHS informed the court that preliminary discussions had occurred between the parties. Counsel for MDHHS noted that counsel .for appellant had indicated that appellant “was not of a mind ... to reach an agreement,” but might be interested in mediation. After a brief discussion with appellant, counsel informed the court that appellant was willing to participate in mediation. Mediators were available, so the court suggested that the parties mediate that afternoon, “give it an hour, and if nothing is happening, [ ] come back for trial[.]” ⁹ The case was recalled that afternoon, and counsel for MDHHS announced that the parties had reached an agreement “based on an amended [CINA] petition.” The court reviewed the amended petition, asked the parties some questions about the amended facts, and made several suggestions for changes to the petition.

While certain clarifying changes to the petition were being made, the court ensured that all parties were in agreement that the facts in it would form the basis for the court’s finding Blessen a CINA: THE COURT: While you do that, is it everyone’s position, then, that these facts should be sustained and form the basis for a finding of CINA? [COUNSEL FOR BLESSEN]: Yes, Your Honor. [COUNSEL FOR APPELLANT]: Yes, Your Honor. [SHELDON A.]: Yes, Your Honor. THE COURT: All right. I will make such a finding, that based on the agreement of all counsel and parties, because [Sheldon A.] is here without counsel, that the facts alleged are now facts sustained, and they form a basis for a finding of CINA, and I will so find, that the child Blessen is a child in need of assistance. Next, the court asked the parties to state their agreed upon recommendations for disposition.

During this discussion, appellant personally objected to the continuation of the “no contact” order against Rose G. The court heard from appellant’s counsel on this aspect of the disposition. There followed a fairly lengthy discussion among counsel for appellant, MDHHS and the court about the precise circumstances under which Rose G. and appellant had taken custody of Blessen in New Jersey. The court was convinced that Rose G. had helped appellant “snatch” Blessen, and so decided to continue the “no contact” order, for the time being. The court then asked counsel for appellant, “[a]nything else?

That was the only thing that you were contesting!?]” Counsel raised no concerns, and appellant did not at that time interject any comment or further objection. ¹⁰ The court then rendered its disposition, which, save for appellant’s objection to the continued “no contact” order, reflected the parties’ agreement. The court ordered that Blessen remain in foster care under the custody of MDHHS; that an Interstate Compact evaluation be performed on the home of Sheldon A.’s mother in New Jersey; and that, upon approval of that home, Blessen be placed there. The court granted Sheldon A. a minimum of weekly supervised visitation while Blessen remained in foster care in Maryland, and unlimited, unsupervised visitation once she resided with his mother in New Jersey. The court granted appellant, who resided in Georgia, a minimum of supervised visitation for three hours a month, if she traveled from Georgia for one day, and for two hours for each of two consecutive days a month, if she traveled to Maryland for a longer period. 1 Just before the close of proceedings, as the court was explaining its disposition to appellant’s mother, appellant interjected that she was “slandered by [MDHHS],” does not “deserve this,” and has “been the best mother [she] can be.” She questioned why the court had not asked about her “character,” why she had been “traveling” with Blessen, and why Blessen was “not in a stable home.” The court responded that appellant was represented by her attorney, to whom the court had been “listening.” Without further discussion of appellant’s comments, and not hearing further from appellant or her counsel, the court concluded the proceedings.

This appeal followed. DISCUSSION The law governing CINA proceedings A “child in need of assistance” is defined in Maryland as: a child who requires court intervention because: ¹¹ (1) The child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and (2) The child’s parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and the child’s needs. Md. Code (1973, 2002 Repl. Vol.), § 3-801© of the Courts and Judicial Proceedings Article (“CJ”). 2 A CINA petition may be filed by a local department, such as MDHHS, upon the “receipt of a complaint from a person or agency having knowledge of facts” indicating that a child may be in need of assistance.

CJ § 3-809(a). Once a CINA petition is filed, CJ § 3-817(a) and (c) require that an adjudicatory hearing on the allegations listed in the petition be held and that the allegations be proven by a preponderance of the evidence. If the allegations are sustained, CJ § 3-819 provides that a disposition hearing must be promptly scheduled. Generally, the disposition hearing is conducted immediately after the adjudicatory hearing.

Although the law provides for a contested CINA adjudicatory hearing, none of the provisions we have cited, and no other statutory or rule provision that we have found, states that the right to this hearing can be waived only by a parent’s knowing and intelligent waiver of the hearing. Further, as we shall discuss in greater detail, infra, we have uncovered no cases that mandate this strict waiver as a matter of due process. The Johnson v. Zerbst waiver standard As we have mentioned, appellant takes the position that her right as a parent to a contested CINA adjudicatory hearing can be foregone only if the court first assures itself, through an on-the-record inquiry, that she has knowingly and intelligently waived that right. This waiver standard is well known in the criminal law context, and, as we mentioned at the ¹² outset, derives from the Supreme Court’s decision in Johnson v. Zerbst, 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938).

In that case, the Supreme Court made clear that the standard for the waiver of constitutional rights that are “fundamental” is “an intentional relinquishment or abandonment of a known right or privilege.” Id. at 464 , 58 S.Ct. 1019 . The Court explained: “ ‘[C]ourts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and [ ] we ‘do not presume acquiescence in the loss of fundamental rights.’ A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.” Id. (citations and footnote omitted). The waiver, moreover, must be “intelligent and competent” and must appear on the record, so the court can decide for itself whether the waiver is sufficient.

Id. at 465 , 58 S.Ct. 1019 . The Court held that a criminal defendant’s waiver of his Sixth Amendment right to be represented by counsel is valid only if accompanied by this form of waiver. Id. at 468-69 , 58 S.Ct. 1019 . Since Johnson v. Zerbst was decided, the waiver standard developed in that case has been held to apply in other criminal law contexts.

The standard applies to a defendant’s waiver of the rights to a jury trial and to confront adverse witnesses; to the privilege against compelled self-incrimination; and to the protection against double jeopardy. See Hersch v. State, 317 Md. 200, 206 , 562 A.2d 1254 (1989) (collecting Supreme Court and Maryland cases); Parker v. State, 160 Md.App. 672, 684-86 , 866 A.2d 885 (2005) (same). A guilty plea likewise requires a defendant’s knowing and intelligent waiver of the trial-related constitutional rights. Hersch, 317 Md. at 206 , 562 A.2d 1254 .

The Johnson v. Zerbst waiver standard also applies “to the waiver of the important right that [a] probationer has to put the State to its proof.” Id. at 208-09 , 562 A.2d 1254 . This is because a probation violation proceeding, though civil, is like a criminal trial in that “the immediate consequence of a violation of probation may well be imprisonment[.]” Id. at 208 , 562 A.2d 1254 . ¹³ Likewise, a juvenile facing delinquency proceedings has a right to counsel that can only be waived knowingly and intelligently. See In re Gault, 387 U.S. 1, 42 , 87 S.Ct. 1428 , 18 L.Ed.2d 527 (1967); In re Christopher T., 129 Md.App. 28, 34 , 740 A.2d 69 (1999); In re Appeal No. 101, 34 Md.App. 1, 5-8 , 366 A.2d 392 (1976). Further, a juvenile cannot be interrogated by police without first being apprised of, and knowingly and intelligently waiving, his rights to silence and to counsel.

In re Gault, 387 U.S. at 55 , 87 S.Ct. 1428 . Each of the above situations, whether criminal or civil, involves the direct consequence of loss of liberty. And, in each situation, the right waived is deemed to be fundamental to the fairness of that proceeding. “ ‘Fundamental rights have been defined as being, almost without exception, basic rights of a constitutional origin, whether federal or state, that have been guaranteed to a criminal defendant in order to preserve a fair trial and the reliability of the truth-determining process.’ ” State v. Torres, 86 Md.App. 560, 567 , 587 A.2d 582 (1991) (quoting Wyche v. State, 53 Md.App. 403, 406 , 454 A.2d 378 (1983)). In short, the nature of the right waived and the consequences of the proceeding dictate the application of the Johnson v. Zerbst waiver standard.

The Johnson v. Zerbst waiver standard does not apply, for example, to civil contempt proceedings, because there is no immediate threat of incarceration. Rather, “[i]mprisonment of the civil contemnor is conditional” because the civil contemnor “hold[s] the keys to the jailhouse door, and may terminate the incarceration any time he or she satisfies the purge provision.” Jones v. State, 351 Md. 264, 277 , 718 A.2d 222 (1998). And, “even in criminal proceedings, the realities and necessities of modern day litigation often augur in favor of binding a defendant to the action and inaction of counsel taken with the knowledge and apparent acquiescence of the defendant.” Hersch, 317 Md. at 208 , 562 A.2d 1254 ; accord Williams v. State, 292 Md. 201, 218 , 438 A.2d 1301 (1981). Consequently, the case law to date in Maryland reflects that, unless the right is deemed fundamental to a ¹⁴ criminal defendant’s right to a fair trial or other proceeding that could directly lead to incarceration, the Johnson v. Zerbst waiver standard simply does not come into play.

See Torres, 86 Md.App. at 566-67 , 587 A.2d 582 . The parties’ contentions The current state of the law notwithstanding, appellant urges application of the Johnson v. Zerbst standard to waiver of a contested CINA adjudicatory hearing. Her argument has two steps. She argues, first, that the standard applies to waiver of the right to a contested hearing before termination of parental rights (“TPR”), because these proceedings involve the potential loss of a parent’s fundamental right to raise his or her child.

Taking this premise as established, appellant then contends that CINA proceedings, like TPR proceedings, are actions that involve the deprivation of a parent’s right to custody of the child, so the Johnson v. Zerbst standard should also apply to waiver of a contested CINA hearing. MDHHS attacks appellant’s argument