In Re Katherine C.

CATHELL, Judge. This case 1 arises from the use of the Maryland Child Support Guidelines 2 (the “Guidelines”) by the Circuit Court for Montgomery County, while sitting as a juvenile court in a permanency plan review hearing 3 for Katherine C. The court initially established a child support obligation at the July 22, 2004, hearing in response to the father, Robert C.’s, Motion to ⁵⁵⁷ Determine (and Allocate) Child Support. The resulting order relieved Victoria C. (hereinafter appellant), of any child support obligation.

On March 21, 2005, the Circuit Court held a permanency plan review hearing at which, without prior notice to the parties that the hearing would concern issues of support, it re-evaluated the child support situation of Katherine C., applied the child support guidelines under Md.Code (1984, 1999 Repl.Vol., 2004 Supp.), § 12-204 of the Family Law Article, and entered an order 4 providing that appellant, the child’s mother, “shall pay $282 per month in child support ... to begin on May 1, 2005____” On March 24, 2005, appellant ⁵⁵⁸ filed a Motion for Reconsideration of the order to pay child support stating that she was a destitute parent as defined in Md.Code (1984, 1999 RepLVol.), § 13-101(c) of the Family Law Article. 5 On April 13, 2005, the Circuit Court entered an order denying appellant’s Motion for Reconsideration. On July 7, 2005, appellant noted an appeal to the Court of Special Appeals. This Court, on its own initiative and prior to any proceedings in the intermediate appellate court, granted certiorari. In re Katherine C., 388 Md. 97 , 879 A.2d 42 (2005).

Appellant submits three questions: 1. “May a juvenile court exercising jurisdiction in a CINA[ 6 ] case use the Maryland Child-Support Guidelines to calculate the child-support amount, where the child is in the custody of a government agency?” ⁵⁵⁹ 2. “May a juvenile court exercising continuing jurisdiction in a CINA case at a permanency-plan-review hearing enter an order establishing or modifying a parent’s obligation to pay child support, and may it do so in the absence of a pleading filed by any party requesting the entry or modification of a child-support order, and without affording adequate notice to the parent? ” [Emphasis added.] 3. “If so, did the juvenile court err or abuse its discretion in ordering the mother to pay child support to a government agency, where the mother met the statutory definition of an adult destitute child or parent, in that she is mentally retarded, was unemployed, her monthly expenses exceeded her monthly income, and where the child was in the custody of a government agency as the result of sexual abuse by the father, who is serving a sentence of imprisonment as a result of that abuse?” We decline to answer question three as it does not plainly appear in the record to have been raised in or decided by the trial court. 7 Md. Rule 8-131(a). We find that a juvenile court exercising jurisdiction in a CINA case may use the Guidelines to calculate the child support amount, where the child is in the custody of a government agency but, in such a circumstance, the actual total support awarded may not exceed the actual costs expended by the governmental agency. As to question two, however, we hold that adequate notice of the child ⁵⁶⁰ support hearing was not provided to the appellant, and therefore, we vacate the decision of the Circuit Court for Montgomery County requiring appellant to pay child support. I. Facts ' Appellant and her ex-husband, Robert C.

(hereinafter referred to as the husband or father), are the biological parents of Katherine C., born March 6, 1988. On October 3, 2003, at the age of fifteen, Katherine was removed from the care of her parents after the Montgomery County Department of Health and Human Services (“MCDHHS”) filed a petition in the Circuit Court for Montgomery County alleging that Katherine was a Child in Need of Assistance (CINA). 8 On November 3, 2003, the Circuit Court found Katherine to be a CINA after it was established that her father began having sexual relations with her on an ongoing basis when she was eight years old, and that her mother, appellant, had failed to protect the child. As a result of this finding, Katherine was placed in the John L. Gildner Regional Institute for Children and Adolescents (RICA), a residential treatment program for children and adolescents with severe emotional disabilities. On June 21, 2004, the father filed a Motion to Determine (and Allocate) Child Support. 9 The motion suggested that $10,500.00 he had paid into his attorney’s trust account be used to support Katherine at the rate of $700.00 a month for the 15 months running retroactively from October 1, 2003, when Katherine went into care, through December 31, 2004.

On July 21, 2004, appellant filed her own Motion for Establishment of Child Support. 10 Both motions calculated support using the Guidelines. ⁵⁶¹ On July 22, 2004, the Circuit Court conducted a CINA review hearing and a hearing to determine the amount of child support payable by Katherine’s parents. On August 5, 2004, the Circuit Court entered a pendente lite order directing that the $10,500.00, minus $150.00 which had already been expended on behalf of Katherine, paid by the father to his attorney’s trust account, be used to satisfy his obligation of $700.00 per month in child support. Of the $700.00 per month, $500.00 was payable to MCDHHS as reimbursement for the cost of Katherine’s care and $200.00, to be administered by MCDHHS, would be utilized for Katherine’s future expenses. The total amount of $10,350.00 satisfied the father’s child support obli ⁵⁶² gation retroactive from October 1, 2008 through December 31, 2004.

It was further ordered at that hearing that appellant would not be obligated to pay child support because of her marginal income. Finally, the order stated “that the matter of the parents’ respective child support obligations on behalf of [Katherine C.] shall be subject to further review by th[e] [Circuit] Court after December 31, 2004.” On March 21, 2005, the Circuit Court held a regular permanency plan review hearing and, without prior notice to appellant that it was going to do so, revisited the child support issue. At the time, the father was incarcerated for charges relating to the child abuse of Katherine and therefore, unable to pay child support. 11 The court inquired at the review hearing as to whether appellant was in a position to pay child support at the time. Counsel for appellant stated that “my client is operating with an IQ of about 62, and she needs a lot of help, ...” but “she wants her daughter to have as much support as she can to get all of the money that she possibly can ...” and that “[a]s soon as her record is expunged, she is going to be able to go back to work at the daycare.” 12 Counsel stated that: “She does have a driver’s license.

She is actually amazingly high-functioning given her intellectual abilities.” The court asked whether appellant had a job and counsel replied: ‘Tes, she says, in two weeks. That is what she has told me.” Counsel continued, stating that “[appellant] would like to give every penny she has to her daughter, Your Honor.” The colloquy continued: ⁵⁶³ 563 “[APPELLANT’S COUNSEL]: — and this is the issue that we had when we were in here with Judge Savage and my client had a divorce attorney who represented her and did the child support. And he explained to Judge Savage that my client’s desire is to give every penny she has to her daughter, but Judge Savage recognized, because of my client’s limitations, that she is going to have some trouble supporting herself and that she shouldn’t be ordered to pay child support. THE COURT: Well, the fact that she is wanting to give every penny is nice, but it really doesn’t get to the heart of the issue.

The heart of the issue is, is there an ability to pay support.” Appellant testified that she would be starting back at work in a few weeks. She stated that she would be making $9.25 an hour and working forty hours a week, netting $400.00 every two weeks. She also testified that she owned a car and would drive herself to and from work. The court determined that, based upon these facts, appellant should pay child support.

Applying the Guidelines, the court found that with an income of $19,240.00 a year, or $9.25 an hour, taking into account a $200.00 per month credit for health insurance payments, the guidelines provided for child support payments of $282.00 a month. 13 Counsel for appellant objected, stating that “because of her cognitive limitations, I don’t think it is fair to base any order on her representations.... She doesn’t ham her child support ⁵⁶⁴ attorney here, and we weren’t scheduled to be here to determine whether she has a child support obligation.” [Emphasis added]. In consideration of the objection, the court made the order pendente lite, stating, however, “[b]ut, if I felt that she didn’t have the ability to pay and I felt she didn’t understand, she has done very well, she has answered every question perfectly____” The court then, over continuing objection, set the order for $282.00 in child support per month to begin on May 1, 2005. On March 24, 2005, appellant filed a Motion for Reconsideration of the order to pay child support.

She alleged that she is a disabled or destitute parent as defined by Md.Code (1984, 1999 Repl.Vol., 2004 Supp.), § 13-101(c) of the Family Law Article. The motion also alleged that appellant was unemployed and that her testimony at the March 21, 2005, hearing concerning her job prospects was not credible. In addition, the motion alleged that a child support obligation of $282.00 per month was not in accordance with § 12-201(d) of the Family Law Article, that it was unjust, would pose a substantial hardship upon appellant, and was not in the best interests of Katherine, the minor child. On April 13, 2005, the Circuit Court denied appellant’s Motion for Reconsideration.

II

Discussion A. Maryland Child Support Guidelines This Court first addressed the Guidelines in Voishan v. Palma, 327 Md. 318 , 609 A.2d 319 (1992). There, the Court explained why the Legislature enacted the Guidelines set forth in Md.Code (1984, 1999 Repl.Vol., 2004 Supp.), §§ 12-101 et seq. of the Family Law Article: “The General Assembly enacted these guidelines in 1989 to comply with federal law and regulations. See 42 U.S.C. §§ 651-667 (1982 & 1984 Supp. II) and 45 C.F.R. § 302.56 (1989). The federal mandate required that the guidelines be established and ‘based on specific descriptive and numeric criteria and result in a computation of the support obligation.’ Id.

When drafting the guidelines, the Maryland Senate Judicial Proceedings Committee had before it Devel ⁵⁶⁵ opment of Guidelines For Child Support Orders: Advisory Panel Recommendations and Final Report, U.S. Department of Health and Human Services’ Office of Child Support Enforcement. This report explained that the need for the guidelines was threefold: (1) to ‘remedy a shortfall in the level of awards’ that do not reflect the actual costs of raising children, (2) to ‘improve the consistency, and therefore the equity, of child support awards,’ and (3) to ‘improve the efficiency of court processes for adjudicating child support. ...’” Voishan, 327 Md. at 322 , 609 A.2d at 321 . Section 12-101(a) of the Family Law Article provides Maryland courts with the authority to award child support to a custodial parent or child support agency. See Wills v. Jones, 340 Md. 480, 484 , 667 A.2d 331, 333 (1995).

Section 12-104(a) states that “[t]he court may modify a child support award subsequent to the filing of a motion for modification and upon a showing of a material change of circumstance.” Use of the Guidelines is mandatory in most instances, as § 12-202(a) provides that “in any proceeding to establish or modify child support, whether pendente lite or permanent, the court shall use the child support guidelines set forth in this subtitle.” (Emphasis added). Section 12-202(a)(2)(i) further provides that “[tjhere is a rebuttable presumption that the amount of child support which would result from the application of the child support guidelines ... is the correct amount of child support to be awarded.” “The presumption may be rebutted by evidence that the application of the guidelines would be unjust or inappropriate in a particular case.” § 12-202(a)(2)(ii). Courts may consider a number of factors in determining whether the application of the Guidelines would be unjust or inappropriate in a particular case: “1. the terms of any existing separation or property settlement agreement or court order, including any provisions for payment of mortgages or marital debts, payment of college education expenses, the terms of any use and possession order or right to occupy to the family home under an agreement, any direct payments made for the ⁵⁶⁶ benefit of the children required by agreement or order, or any other financial considerations set out in an existing separation or property settlement agreement or court order; and 2. the presence in the household of either parent of other children to whom that parent owes a duty of support and the expenses for whom that parent is directly contributing.” § 12 — 202(a)(2) (iii). If the court finds that the application of the Guidelines would be unjust or inappropriate in a particular case, the court must make a “written finding or specific finding on the record stating the reasons for departing from the guidelines” and the finding must state: “A. the amount of child support that would have been required under the guidelines; B. how the order varies from the guidelines; C. how the finding serves the best interests of the child; and D. in cases in which items of value are conveyed instead of a portion of the support presumed under the guidelines, the estimated value of the items conveyed.” § 12-202(a)(2)(v)(2) (emphasis added).

Use of the Guidelines to determine child support when the child is in the custody of a government agency. Appellant argues that a juvenile court exercising jurisdiction in a CIÑA case may not use the Guidelines to calculate child support, where the child is in the custody of a government agency rather than in the custody of one of the parents. We find appellant’s argument to be unpersuasive and hold that courts in CINA proceedings may apply the Guidelines as codified in §§ 12-101 et seq. of the Family Law Article even when the child support monies will go towards the reimbursement of State care. Md.Code (1973, 2002 Repl.Vol., 2004 Supp.), § 3-819(Z) of the Courts and Judicial Proceedings Article expressly provides ⁵⁶⁷ authorization for courts to order a parent to reimburse the State for the costs of a CINA child’s commitment: 14 “After giving the parent a reasonable opportunity to be heard, and determining the income of the parent, the court may order either parent or both parents to pay a sum in the amount the court directs to cover wholly or partly the support of the child under this subtitle.” This provision applies in CINA and non-CINA cases. 15 See 2001 Md. Laws, ch. 415.

One of the main purposes of the Guidelines is to “ ‘improve the consistency, and therefore the equity, of child support awards.’ ” Voishan, 327 Md. at 322 , 609 A.2d at 321 . Applying the Guidelines “across the board,” regardless of whether a child is in the care of one of their parents or the State helps to ensure this consistency. A parent that meets the Guidelines should not benefit by being released of their obligation to pay child support just because it is determined that their child is a CINA and removed from parental custody. The Court of Special Appeals addressed the situation of child support being paid to the State in In re Joshua W., 94 Md.App. 486 , 617 A.2d 1154 (1993).

In re Joshua W. concerned a number of children that, like Katherine in the case sub judice, were adjudicated CINA and placed under the ⁵⁶⁸ protective custody of the State. Id. at 488-89 , 617 A.2d at 1155 . The Circuit Court for Anne Arundel County held a hearing to determine if the mother and father of the children (at that time divorced) should pay support for the children. Id. at 489 , 617 A.2d at 1155-56 .

The court determined and ordered that the father should pay $300 per week in child support on behalf of the children to the Anne Arundel County Department of Social Services (“DSS”). Id. at 489 , 617 A.2d at 1156 . The focus of the appeal was “whether the circuit court erred in ordering [the father] to reimburse DSS for the support of [the children].” Id. at 490 , 617 A.2d at 1155 . Judge Motz, writing for the Court of Special Appeals, first set out to determine whether the trial court was obliged to use the Guidelines as set forth in Md.Code (1984, 1999 Repl.Vol., 2004 Supp.), §§ 12-101 et seq. of the Family Law Article.

In re Joshua W., 94 Md.App. at 494 , 617 A.2d at 1158 . The court looked at the predecessor statute to § 3-8A-29, Md.Code (1973, 1989 RepLVol.), § 3-830 of the Courts and Judicial Proceedings Article. Section 3-830 states that, “[a]fter giving the parent a reasonable opportunity to be heard, the court may order either parent or both parents to pay a sum in the amount the court directs to cover the support of the child in whole or in part.” 16 The court found that nothing in the language of § 3-830 or in its legislative history placed a limit on the amount the court could direct a parent to pay based on the Guidelines. In re Joshua W., 94 Md.App. at 495 , 617 A.2d at 1158 .

Rather, the court looked to the Guidelines themselves to determine their applicability: “The guideline legislation does specifically provide, in pertinent part, that ‘in any proceeding to establish or modify child support, whether pendente lite or permanent, the court shall use the child support guidelines set forth in this subtitle.’ ” Id. (quoting § 12-202(a) of the Family Law Article). The Court of Special Appeals, however, recognized that the facts in In re Joshua W., as with the case sub judice, are not ⁵⁶⁹ like most actions for child support. In re Joshua W., 94 Md.App. at 495 , 617 A.2d at 1158 .

In most cases of child support actions one custodial parent is seeking child support from the non-custodial parent. In contrast, both In re Joshua W. and the case sub judice involve two non-custodial parents and a third party, the State. In both cases the circuit courts ordered a parent to pay child support to the State for reimbursement of custodial care. Id.

The court in In re Joshua W. examined the development of the Guidelines and found that the language of the Guidelines emphasized custodial and non-custodial parents, failing to directly address the factual situation at hand. In re Joshua W., 94 Md.App. at 496-97 , 617 A.2d at 1159 . The court, however, elucidated that: “Despite this emphasis on custodial and noncustodial parents and sole and shared physical custody in the guidelines, there is nothing in the statute or its legislative history to suggest that the General Assembly intended that the child support guidelines only be applied to the usual child support cases.... Rather, as noted above, Fam.

Law. § 12-202(a) expressly provides that the guidelines ‘shall’ be used ‘in any proceeding to establish child support.’ ” In re Joshua W., 94 Md.App. at 497-98 , 617 A.2d at 1159-60 . The Court of Special Appeals found further support for the conclusion that the Guidelines are to be, or may be, used in all child support cases, by referencing the federal legislation 17 that spurred the creation of Maryland’s Guidelines as well as Maryland’s foster care regulations. 18 In re Joshua W., 94 Md.App. at 498 , 617 A.2d at 1160 . ⁵⁷⁰ Ultimately, based on the above factors, the court in In re Joshua W. concluded that “the General Assembly intended that these child support guidelines be used in all child support cases, including those, like the one at hand, involving government financed child care and no custodial parent.” In re Joshua W., 94 Md.App. at 500 , 617 A.2d at 1161 . That finding is consistent with the State of Maryland’s policies regarding child support and children generally. A parent has both a common law and statutory duty to support his or her minor children.

See Md.Code (1984, 2004 Repl.Vol.), § 5-203(b) 19 of the Family Law Article; Drummond v. Drummond, 350 Md. 502, 520 , 714 A.2d 163, 172 (1998); Garay v. Overholtzer, 332 Md. 339, 368-69 , 631 A.2d 429, 432 (1993); Middleton v. Middleton, 329 Md. 627, 632-33 , 620 A.2d 1363, 1365 (1993); Carroll County Dept. of Social Servs. v. Edelmann, 320 Md. 150, 170-71 , 577 A.2d 14, 23 (1990). As the Court discussed in Drummond : “We previously have noted the rationale underlying a parent’s obligation of support: ‘[T]he duty of parents to provide for the maintenance of their children, is a principle of natural law; an obligation laid on them not only by nature herself, but by their own proper act, in bringing them into the world: ... By begetting them therefore they have entered into a voluntary obligation to endeavor, as far as in them lies, that the life which they have bestowed shall be supported and preserved.’ Knill v. Knill, 306 Md. 527, 531-32 , 510 A.2d 546, 548 (1986) (quoting 1 W. Blackstone, Commentaries * 447). See also Warren v. Warren, 336 Md. 618, 629 , 650 A.2d 252, 257 (1994) (quoting Knill).

To relieve a parent entirely of his ⁵⁷¹ or her support obligation because the child receives a benefit to which he or she is entitled from some other source would not ordinarily be consistent with this fundamental principle of family law.” Drummond, 350 Md. at 520 , 714 A.2d at 172 . It is evident that parents have an obligation to support their children. In a case such as the one sub judice, that obligation does not disappear when a child is adjudicated CIÑA and removed from parental custody and care. The parents of the child, jointly and severally, have a responsibility and obligation to provide child support if they are capable of doing so. § 5-203(b).

The proper method for a court to use in determining the amount of child support normally is the application of the Guidelines. As § 12-202(a) provides, “in any proceeding to establish or modify child support, whether pendente lite or permanent, the court shall use the child support guidelines set forth in this subtitle.” (Emphasis added). Therefore, a juvenile court exercising jurisdiction in a CIÑA case may (or under some circumstances should) use the Guidelines to calculate child support even where the child is in the custody of a government agency, but, in such cases, the amount of the total payment from the parents to the governmental agency cannot exceed the actual costs to the agency, 20 even if the guideline calculations might require a greater sum had the child been in the custody of a non-governmental entity. B. Notice Appellant argues further, that if a child support order may be entered at a permanency plan review hearing, it may only be entered subject to a pleading being filed by one of the parties requesting the entry of a child support order and adequate notice being provided to the parties.

We find that adequate notice appropriate to the nature of the case was not provided to appellant that the matter of child support would ⁵⁷² be addressed at the March 21, 2005, hearing. Thus, we direct our attention to the due process concerns of appellant relating to lack of notice. In a case such as the one sub judice, the trial court must provide reasonable notice to the parties concerning when the matter of child support will be addressed. This Court has stated previously that: “Generally, due process requires that a party to a proceeding is entitled to both notice and an opportunity to be heard on the issues to be decided in a case.

Standard Oil Co. v. Missouri, 224 U.S. 270, 281 , 32 S.Ct. 406 , 56 L.Ed. 760 (1912); Armstrong Cork Co. v. Lyons, 366 F.2d 206 (8th Cir.1966); see also Ottenheimer Pub. v. Employ. Sec. Adm., 275 Md. 514, 520 , 340 A.2d 701 (1975); Accrocco v. Splawn, 264 Md. 527, 534 , 287 A.2d 275 (1972); Travelers v. Nationwide, 244 Md. 401, 409 , 224 A.2d 285 (1966); Balto. County v. White, 235 Md. 212, 220 , 201 A.2d 358 (1964).” Blue Cross of Maryland, Inc. v. Franklin Square Hospital, 277 Md. 93, 101 , 352 A.2d 798, 804 (1976); In re Adoption No. 9979, 323 Md. 39, 57 , 591 A.2d 468, 477 (1991). 21 An important Supreme Court case discussing reasonable notice is Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 , 70 S.Ct. 652 , 94 L.Ed. 865 (1950). 22 The facts of ⁵⁷³ Mullane revolved around the judicial settlement of a bank’s accounts as trustee of a common trust fund. The bank attempted to provide statutory notice by publishing notice in a newspaper, which “set[ ] forth merely the name and address of the trust company, the name and the date of establishment of the common trust fund, and a list of all participating estates, trusts or funds.” Id. at 310, 70 S.Ct. at 655 .

The Court found that, while such notice was sufficient for those beneficiaries that could not be ascertained, the notice was insufficient with respect to known beneficiaries “because under the circumstances it [was] not reasonably calculated to reach those who could easily be informed by other means at hand.” Id. at 319 , 70 S.Ct. at 660 . Discussing due process, the Court found that the “abstract words of the Due Process Clause ... at a minimum [ ] require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Id. at 313 , 70 S.Ct. at 656-57 . The Court found that the judicial settlement of the bank’s accounts could deprive some beneficiaries of property rights and “hence notice and hearing must measure up to the standards of due process.” Id. at 313 , 70 S.Ct. at 657 . The Court in Mullane balanced the interest of the State in the finality of the settlement against the individual interests of the beneficiaries as protected under the Fourteenth Amendment.

The Court stated: “This is defined by our holding that ‘The fundamental requisite of due process of law is the opportunity to be heard.’ Grannis v. Ordean, 234 U.S. 385, 394 , 34 S.Ct. 779, 783 , 58 L.Ed. 1363 . This right to be heard has little reality ⁵⁷⁴ or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest.” Id. at 314, 70 S.Ct. at 657 . In the case sub judice, appellant received notice of a hearing, but not reasonable notice appropriate to the nature and facts of this particular case. Examining how to determine whether notice is reasonable or not, the Court in Mullane opined: “An elementary and fundamental requirement of due process in any proceeding which is to be