In re Thomas H.

WILNER, J. This case, we thought, presented the question of whether, and in what manner, a juvenile court, in its consideration of a petition to declare a child in need of assistance, can find, conclusively, that a man previously adjudicated to be the father of the child, is not the father. The single issue presented to us by appellant, Robert S., in an appeal that he noted in December, 2002, is whether the Circuit Court for Anne Arundel County, in considering his exceptions to a juvenile master’s recommendation in a child in need of assistance (CINA) case, acted prematurely in concluding that appellant was not the father of the child alleged to be in need of assistance and, on that ground, striking his exceptions and declaring that he was no longer a party in the case. All parties now agree, and correctly so, that the court did err, at least because, at that stage of the proceeding, prior to finding the child to be CINA, the court had no authority to determine Robert’s paternity or lack thereof. Regrettably, by failing to perfect his 2002 appeal from that order, by seemingly accepting his non-paternal status and remaining content to participate as a permissive intervenor in further Circuit Court proceedings for a period of ten months, and, when final judgment was eventually entered, by neglect ¹⁷⁶ ing to file an appeal from that judgment, Robert has effectively abandoned his earlier appeal.

We shall dismiss the appeal. BACKGROUND The child in question, Thomas H., was born on February 8, 1991 to Karen H. At some point in 1995, a paternity action was filed in the Circuit Court for Anne Arundel County by or on behalf of Karen against Robert, alleging that he was Thomas’s father. On November 6, 1995, the court entered a consent order declaring Robert to be Thomas’s father and charging him with supporting the child. That order has never been modified or set aside, at least not directly.

On March 7, 2002, the Anne Arundel County Department of Social Services (DSS) filed a petition alleging that, because his parents were unable or unwilling to give him proper care and attention and because Robert had sexually and physically abused the child, Thomas was a CIÑA. The petition stated that Thomas was then living with Robert and that Karen’s whereabouts were unknown. Thomas was immediately placed in shelter care pending proceedings in the juvenile court. Evidence taken by the juvenile master in hearings scattered over four days from April 8 to May 23, 2002, indicated that Thomas lived with Robert for all or most of his life, that Karen, along with two of her four other children, was in and out of the home, sometimes with a new boyfriend, it being entirely unclear when she was there and when she was not.

She testified that she had lived most recently with Thomas in Robert’s home from mid-June, 2001 to January, 2002, although there was other evidence indicating that she had left the home in the Fall of 2001. A foster care report filed later in the proceeding stated that, as a result of a CIÑA case in 1997, Robert had been awarded custody of Thomas and that Thomas had remained with Robert thereafter. The records relating to any CINA or other proceeding in 1997 are not included in the record now before us, and there is nothing in what is before us to confirm, negate, or explain the statement in that foster care ¹⁷⁷ report that, as a result of that proceeding, Robert had been awarded custody of Thomas. 1 Other evidence revealed that DSS had investigated complaints of abuse or neglect on both Karen’s and Robert’s part, dating back at least to July, 2001, in some of which abuse or neglect was found “indicated.” The investigations concerning Robert showed that Karen was aware of the various acts constituting sexual abuse on his part but did nothing to protect the child. On June 18, 2002, the master filed a report in which she concluded that the parents were unable or unwilling to give proper care and attention to Thomas’s needs, that the child needed court intervention, and that he should be removed from the home “because of the inappropriate sexual conduct of his father, and his mother’s failure to intervene to protect the child.” While testifying before the master, Karen was asked by the DSS lawyer if she knew who Thomas’s father was, and she responded, “Well, the way Tommy looks and change and everything, I believe that [Roy H.] is the gentleman that’s in the back with the red shirt on may be .... ” (Emphasis added).

Based apparently on that one equivocal response and disregarding the 1995 consent order that Karen identified and acknowledged and which was in evidence, the master’s own characterization of Robert as Thomas’s “father,” and the fact that Roy had never claimed to be the father, had no relationship with Thomas, and had indicated no desire to have custody of him, the master included among her several recommenda ¹⁷⁸ tions that “parents shall cooperate and the father shall submit to paternity testing as scheduled by the [DSS].” The master did not explain, and it is unclear to us, who she meant by “parents” and “father.” The only father at that point would seem to be Robert. On June 21, 2002, Robert filed exceptions, complaining about the proposed CINA finding, the recommendation that Thomas be removed from the home, and the paternity testing. Without waiting for those exceptions to be heard or any court order to be signed, and notwithstanding that “[t]he proposals and recommendations of a master for juvenile causes do not constitute orders or final action of the court,” (Maryland Code, CJP § 3 — 807(d)(1)), DSS, on June 24, proceeded on its own to have paternity testing for Thomas, Karen, and Roy, although not for Robert. 2 When the test results showed a 99.99% probability that Roy H. was Thomas’s biological father, DSS, treating that as conclusive proof that Robert was not the father, filed contemporaneous motions (1) to have Roy declared Thomas’s father, to add him to the CINA proceeding as the child’s father, and to remove Robert as the parent and party, and (2) to strike Robert’s exceptions on the ground that he was not Thomas’s father and therefore not a proper party to the proceeding. In a memorandum filed in support of its motions, DSS contended that the juvenile court had authority in CINA proceedings to make determinations of paternity, that, although Robert had been previously named by Karen as the father, there was no “conclusive proof’ that he was, in fact, the father, and that “[a]s a result of blood tests [Robert] was excluded as the biological parent of Thomas.” The court conducted a hearing on the motions on October 4.

DSS pressed its position that Robert was not a proper party. Robert argued that he had not been excluded as the father, that he had been adjudicated as Thomas’s father, and that the ¹⁷⁹ court was without “jurisdiction” to determine otherwise. The court made no immediate ruling other than to order Robert, over his objection, to undergo paternity testing. On October 15, Robert filed a written opposition to the DSS motions, again claiming that he was Thomas’s father.

Appointed counsel for Thomas, who appeared to be expressing her own wish rather than that of Thomas, asked the court to grant the DSS motions. On November 18, 2002, the court entered an order (1) declaring that Robert was not the natural parent of Thomas within the meaning of the CINA law and that he therefore was not a proper party to the action, (2) dismissing his exceptions for lack of standing, (3) denying DSS’s motion for declaration of paternity on the ground that such a declaration was premature, (4) based on the DSS averment that Roy “has been conclusively established to be the natural parent of Thomas through DNA testing,” adding him as a necessary party 3 , and (5) remanding the matter to the master to conduct a new evidentiary and disposition hearing. In reaching some of those conclusions, the court acted under Maryland Code, § 3-801 (u)(1) and (t) of the Courts & Jud. Proc.

Article (CJP). Section 3-801(u)(1) defines a “party,” for purposes of a CINA proceeding, as a child who is the subject of the petition, the child’s “parent, guardian, or custodian,” the petitioner (usually DSS), and an adult charged under CJP § 3-828 with contributing to the child’s CINA status. (Emphasis added). Without any reference to the Foster Care Review Board report indicating that Robert had been awarded custody of Thomas, which was then before the court, and notwithstanding Robert’s claim that he had, in fact, been Thomas’s custodian, the court dismissed out of hand any notion that he was Thomas’s guardian or custodian and examined only whether he qualified as a “parent.” ¹⁸⁰ Section 3 — 801(t) defines “parent” as “a natural or adoptive parent whose parental rights have not been terminated.” The court noted that § 5-310 of the Family Law Article, dealing with adoptions, defines the term “natural father” as including a man who “has been adjudicated to be the father of the individual,” but it reached what it regarded as the “inescapable conclusion” that the Legislature did not intend for a “natural father” under that definition to be included as a “natural parent” for purposes of CJP § 3-801(t), Upon that conclusion — that a natural father was not a natural parent— the court determined that Robert was not Thomas’s “natural parent” and for that reason was not a proper party.

On December 10, 2002, Robert filed an appeal from that order, but proceedings continued apace nonetheless in the Circuit Court. Having been ousted as a party, Robert moved to intervene in the case and to stay all proceedings until the appeal was resolved. The court denied the motion to stay and permitted the master to determine the motion to intervene. Robert did not seek a stay from the Court of Special Appeals.

The master denied the motion for intervention and conducted a new adjudicatory and disposition hearing in February, 2003. At the conclusion of the hearing, which Karen did not attend and at which Robert was not permitted to participate, the master again recommended that Thomas be declared CINA and that he not be returned home to Robert, but committed to DSS for out-of-home placement. Robert did nothing to pursue his appeal which, in light of the denial of his motion for stay, would seem to assume a special importance. Instead, he again filed exceptions, principally from the denial of his motion to intervene.

In ruling, the court looked to Maryland Rule 11-122, which provides for intervention both of right and permissively in juvenile cases. Section (a) of the Rule states that, upon timely application, a “parent” not served with original process shall be permitted to intervene for any purpose. Confirming its belief that Robert was not Thomas’s “parent,” the court held that he was not entitled to intervention as of right. Section (b) states that a person, other than a “parent,” who is seeking custody or ¹⁸¹ guardianship of the child may be permitted to intervene for dispositional purposes only, subject to certain conditions.

The court found that Robert met the criteria of section (b) and that “[t]o deny him permissive intervention under these unusual circumstances would amount to an abuse of discretion.” Accordingly, it granted permissive intervention and remanded the matter, once again, to the master. Robert moved the court to reconsider its denial of intervention as of right, based on § 9-205 of the Family Law Article, which is part of the Maryland Uniform Child Custody Jurisdiction Act. Section 9-205 provides that, before entering a decree under that Act, an opportunity to be heard must be given to “any person who has physical custody of the child.” Robert argued that, prior to the CINA petition, he had physical custody of Thomas and was therefore entitled to participate. The court concluded that § 9-205 did not apply to CINA proceedings and therefore denied the motion.

On remand, the master, in effect, confirmed everything she had done earlier. Because Robert was no longer seeking immediate custody of Thomas, she terminated his intervention, iterated her belief that Thomas was a CINA and that reunification with Robert was not advisable, and recommended that custody be awarded to DSS for out-of-home placement. On October 2, 2003, the court ratified the findings of the master and signed the recommended order. It is that order that declared Thomas a CINA and, subject to the continuing jurisdiction of the court, terminated the matter.

No appeal was taken from that order. The only appeal before us is the one filed in December, 2002, from the November 18, 2002 order declaring that Robert was not the natural parent, custodian, or guardian of Thomas and dismissing his exceptions without ruling on them. DISCUSSION As we observed earlier, this case is infected with a number of lapses, mostly procedural, some substantive. In finding that Robert could not qualify as a party under CJP, § 3- ¹⁸² 801(u), the court, beginning with its November, 2002 order, and the master and the court in all of the subsequent proceedings, ignored evidence that Robert had been granted custody of Thomas in 1997, which, if true, would give him party status under that section regardless of whether he was also a parent.

In absolute derogation of the 1995 judicial determination that Robert was Thomas’s father, the master recommended that Robert, Karen, and Thomas undergo paternity testing; Robert did not ask for that to be done, nor did Roy or Karen. Without waiting for Robert’s exceptions to be heard, or, indeed, obtaining any other court order, DSS rushed to have everyone but Robert tested and, based on the test results for Roy, contended, and persuaded the master and the