In Re Emileigh F.

RAKER, Judge. We granted certiorari to consider whether litigants in a Child in Need of Assistance proceeding pursuant to Md.Code ³² Ann., Cts. & Jud. Pkoc. § 3-801 et seq. 1 have a right to present closing argument. We shall hold that they do.

I. This case arises out of an order of the District Court of Maryland for Montgomery County, sitting as a juvenile court, awarding custody of Emileigh F., a child adjudged to be a Child in Need of Assistance (hereinafter CINA), to her Father, John F. Emileigh was born to Danielle W. and John F. on April 5,1995. On April 23, 1996, the Department of Health and Human Services filed a petition in the District Court of Maryland for Montgomery County, sitting as a juvenile court, alleging that Emileigh F., the daughter of Petitioner Danielle W., was a CINA. 2 See § 3-801. 3 The court appointed counsel to represent Emileigh. On April 25, 1996, the court adjudicated Emileigh a CINA and committed her to the care of the Department of Health ³³ and Human Services (hereinafter DHHS), placing her in the custody of her maternal grandmother, Karen 0. On July 10, 1996, in a disposition hearing, the juvenile court ordered that Emileigh be continued in her grandmother’s care and that her Mother, Danielle W. participate in regular mental health treatment and therapy. 4 The court held two subsequent review hearings and continued custody of Emileigh with her grandmother and the visitations with Danielle W. 5 On November 21, 1996, DHHS conducted a family evaluation and sent the report to the juvenile court.

The recommendation was that the court “consider reunification of Mrs. W. and her daughter if all of the above mentioned stipulations are appropriately met and that this reunification only occur after the return of Mr. W. and the birth of their first child.” The April 10, 1997, DHHS Status Report, Permanent Plan recommendation was to return Emileigh to the care and custody of one of her natural parents. On April 14, 1997, the court held a review hearing and ordered visitation between Emileigh and John F. and Danielle ³⁴ W., as well as another family evaluation. On May 27, 1997, John F. filed in the juvenile court a motion seeking custody of Emileigh. Danielle W. responded, requesting that John F.’s motion be denied.

On June 20, 1997, through the social worker, James Flaherty, and the Permanency Planning Supervisor, Sandra Grijalva, DHHS made the following recommendation: The Department believes that both the W. family and the F. family are ready and able to meet .Emileigh’s needs for safety, stability, and nurturing and that there are no further child welfare issues regarding her care. Mrs. W. has demonstrated increased stability and maturity for handling the stresses in her life and being more available to her children, by using available therapeutic and community resources and by relying on the assistance of her husband. Mr. F. has demonstrated a new sense of responsibility and dedication as Emileigh’s parent, and he and his wife have taken all the necessary steps in preparing a home for Emileigh. Emileigh has two sets of capable parents wanting to provide her a stable, loving home.

The Department suggests a period of increasing visitation to help Emileigh adjust to living in a new home and leaving the home of her grandparents, where she has lived most of her life.... On the same day, the Child and Adolescent Forensic Evaluation Services provided a family assessment and recommended that Emileigh be returned to the care and custody of her mother, Danielle W. by September, 1997 so as to provide her with a stable and permanent living situation. On June 27, 1997, the juvenile court held a further review hearing. The focus of the hearing was the custody of Emileigh.

All parties were represented by counsel. The court heard from several witnesses, including James Flaherty, the DHHS social worker, the maternal grandmother who had custody of Emileigh, John F., and Danielle W. At the conclusion of all the testimony, the court inquired if the attorneys had any further evidence to present. Counsel ³⁵ responded that there was no further evidence. Counsel for John F. stated that he had no further evidence to present, “[j]ust argument.” The court stated as follows: COURT: Okay.

Well, I’m not going to let you all argue. I’ve heard enough. And I told you that I was going to quit five minutes ago.[ 6 ] Obviously I’m presented with a decision that is difficult to make. But I don’t have any trouble making that decision.

I find that Mr. F. is a very appropriate person, and I’m going to grant him custody of Emileigh. I’m going to ask the Department to remain involved in the case, to make sure that the transition is smooth. I want Emileigh to continue to have visits with her mother. The Department said that they had no Protective Service concerns.

I have many Protective Service concerns about Emileigh being in the custody of her mother. I’m very concerned about the mother’s instability, about her failure to follow through with therapy and parenting classes, the fact that there’s no home study that’s been done. Uh ... the fact that she doesn’t recognize any of the issues that were stipulated to, that were the basis of the CINA finding over a year ago. Clearly she has improved.

Her emotional stability has improved, but I have never believed in the Prince Charming School of Social Work. And I don’t believe that marrying someone solves the problems that you have. I’m very happy that she’s made progress in her life, and hopefully she’s taking good care of her child, McKenzie, but at this time, I’m going to grant the father custody of the child. The court awarded custody of Emileigh to her Father, John F. Danielle W. filed a timely appeal to the Court of Special Appeals.

The intermediate appellate court affirmed, holding, ³⁶ inter alia, that because Danielle W. did not object to the failure of the court to receive closing argument, the objection was waived and was not properly before the appellate court. We granted Danielle W.’s petition for writ of certiorari to answer the following questions: I. Did the Court of Special Appeals err in holding that since parents of children adjudged in need of assistance do not have a constitutional right to counsel in CINA proceedings, they have no right to present closing argument in such proceedings and, therefore, there was no error in denying Petitioner’s counsel the right to present closing argument?

II

Should custody of two year old Emileigh F. have been awarded to her father rather than to Petitioner?

II

We shall first address Respondent’s threshold argument that the issue was not preserved for appellate review because Petitioner never raised it below. Respondent asserts that Mr. F., as the only party who asked for the opportunity to make closing argument, was the only one denied the opportunity to do so. Because Petitioner did not object when the court denied Mr. F. the opportunity to argue, or complain that she was denied the opportunity to argue, her claim is not properly preserved for appeal. Petitioner counters that the preservation issue is not contained within the certiorari petition, and moreover, if the question were properly before this Court, that the issue was preserved.

Petitioner points out that the judge said: “I’m not going to let you all argue. I’ve heard enough.” The judge then proceeded immediately to give her ruling. Petitioner argues that the court’s ruling clearly applied to Petitioner as well as Respondent and that any objection would have been futile. We agree with Petitioner and find that the issue is preserved for our review.

As we said in Johnson v. State, 325 Md. 511, 515 , 601 A.2d 1093, 1094 (1992), “[i]t was apparent that his ruling on further objection would be unfavorable to ³⁷ the defense____ In the circumstances, the absence of a further objection did not constitute a waiver. See Md. Rule 4-323(c).” The instant case is remarkably similar to Bundy v. State, 334 Md. 131 , 638 A.2d 84 (1994). In that case, the defendant Bundy had not objected to the State’s use of peremptory challenges, although his codefendant had objected. Id. at 135-36 , 638 A.2d at 86-87 .

The State argued that because Bundy failed to make known to the court the action he desired the court to take, or to object to the action of the trial court, he had not preserved the issue for appeal. Id. at 138 , 638 A.2d at 88 . We concluded that the ruling of the trial judge suggested that Bundy would receive the benefit of his codefendant’s objection. Id. at 146-147 , 638 A.2d at 92-93 .

Writing for the Court, Judge Chasanow stated: [T]he trial judge was ‘kind enough’ to acknowledge that the codefendant’s objection also benefitted Bundy. When the codefendant exclaimed, ‘Your Honor, I’m sorry. I thought the State had exhausted her strikes,’ the judge explicitly addressed both of the parties in overruling the objection. He immediately stated, ‘You each get four.

The State gets eight.’ (Emphasis added). Thus, the manner in which the trial judge summarily overruled the objection in this case adequately reflects that he assumed the objection was made on behalf of both defendants. As such, Bundy sufficiently preserved the peremptory challenge issue for appellate review. Id. at 146 , 638 A.2d at 92 .

We noted that immediately after the codefendant’s objection the trial court ruled on the objection. Id. at 147 , 638 A.2d at 92 . We held that the issue was sufficiently preserved, reasoning that “[t]he manner of that ruling obviated Bundy’s need to join in the objection because the judge acknowledged that the objection inured to Bundy’s benefit by expressly directing his ruling (‘You each get four. The State gets eight.’) to both defendants.” Id. at 147 , 638 A.2d at 92-93 . ³⁸ Likewise, in the instant case, the judge ruled immediately after the other party requested closing argument.

It was apparent that the ruling applied to all parties. In light of the judge’s statement that she would not let anyone argue—“I’m not going to let you all argue”—it would have been futile for Petitioner to have objected. The court could hardly have permitted Petitioner closing argument and have denied the other parties the same opportunity. Under these circumstances, Petitioner did not waive her right to closing argument by her failure to interpose an objection.

III

Courts around the country are split as to whether there is an absolute right to closing argument in civil cases. It is clear that in criminal cases, in both jury and non-jury cases, it is a violation of the constitutional right to counsel to deny a party the opportunity to make final argument. Herring v. New York, 422 U.S. 853 , 95 S.Ct. 2550 , 45 L.Ed.2d 593 (1975); Spence v. State, 296 Md. 416 , 463 A.2d 808 (1983) (stating that opportunity for closing argument in non-jury criminal case is a basic constitutional right guaranteed by the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights). This right exists “even in cases where the evidence appears to be overwhelming.” Holmes v. State, 333 Md. 652, 658 , 637 A.2d 113 , 116 (1994).

In civil cases, there are at least three general approaches. Some courts have held that the right is a constitutional right that is absolute, and the denial of that right is reversible error. See e.g. Pettry v. Pettry, 706 So.2d 107, 108 (Fla.Dist.Ct.App. 1998) (holding that “due process requires that a party be given the opportunity to present closing argument”); Nestor v. George, 354 Pa. 19 , 46 A.2d 469, 473 (1946) (holding that “a litigant’s right to be fully represented by counsel is an integral part of ... ‘due process of law* ”).

Other courts have held that the right exists but argument may be precluded by the court when no factual issues exist or when the parties waive or acquiesce in the denial of the opportunity. See e.g., Aladdin ³⁹ Oil Burner Corp. v. Morton, 117 N.J.L. 260 , 187 A. 350, 350 (N.J.Sup.1936) (holding that in a case exhibiting