In re Adoption Nos. 11387 & 11388

707 A.2d 926, 120 Md. App. 566, 1998 Md. App. LEXIS 76
CourtCourt of Special Appeals of Maryland
DecidedApril 2, 1998
DocketNo. 891
StatusPublished
Cited by2 cases

This text of 707 A.2d 926 (In re Adoption Nos. 11387 & 11388) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Adoption Nos. 11387 & 11388, 707 A.2d 926, 120 Md. App. 566, 1998 Md. App. LEXIS 76 (Md. Ct. App. 1998).

Opinion

KENNEY, Judge.

On February 6, 1997, appellant, Clemy P., the natural mother of Stephon and Alphonso, filed a request for hearing in the Circuit Court for Montgomery County based upon a delay in the adoption proceedings involving her two sons. On April 23, 1997, the trial court held a hearing to assess the status of the two children, but, finding that appellant had no standing to participate in the hearing, denied appellant’s request to testify and present witnesses. At the conclusion of the hearing, the court ordered that the children’s placement be continued with their prospective adoptive parent. Appellant filed a timely appeal, asking this Court to address one question, which we have rephrased:

Did the trial court err when it refused to allow appellant to testify and present witnesses in a hearing conducted pursuant to Md.Code Ann. (1984, 1991 Repl.Vol., 1997 Cum. Supp.) § 5-319 of the Family Law Article (F.L.)?

Finding that the trial court did not err when it refused appellant’s request to testify and present witnesses at the status hearing, we shall affirm its judgment.

FACTS AND PROCEEDINGS

This case emanates from In re Adoption/Guardianship No. 93321055/CAD, 344 Md. 458, 687 A.2d 681 (1997), cert. denied, — U.S.-, 117 S.Ct. 2439, 138 L.Ed.2d 199 (1997). In that case, the Court of Appeals summarized the applicable facts as follows:

On April 21,1993, DSS filed petitions in the Circuit Court for Montgomery County for guardianship of Stephon and Alphonso P. and to terminate the parental rights of their parents, Clemy P. and Sam L. Stephon was born on April 16, 1989. He was committed to the custody of DSS in August 1990, was placed with his mother or other relatives until September 1991, and had been in foster care since then. He was adjudicated to be a CINA in October 1991.
[569]*569Alphonso was born on August 3, 1990. He was committed to DSS at birth, resided with his maternal grandmother until September 1991, and had been in foster care thereafter.
Sam L. consented to the petition. The show cause order issued for Clemy P. was served on her on May 11, 1993. It gave her the same advice and warnings noted above and set June 25, 1993 as the deadline for filing an objection. No objection was filed, and, on October 20, 1993, upon motion by DSS, the court granted the petition and entered a judgment of guardianship. Clemy filed an appeal 32 days later, which the circuit court struck as untimely.
On July 25, 1994, through their court-appointed counsel, the children requested a hearing. They averred that a number of problems had developed since the order of guardianship had been entered. They pointed out that, under [F.L. § 5-319], DSS was obliged to make a written report to the court and to give notice to both the children’s attorney and the natural parents if placement for adoption was not made within nine months after entry of the guardianship, that nine months had passed, that the children had not been placed for adoption, and that no report had been made. Underlying that problem, they averred, was the fact that they were not going to be able to remain in the home where they were then living because the foster mother was not willing to adopt them. Compounding the problem was the additional circumstance that their sister was also living in the home, that their natural parents’ parental rights had not yet been terminated with respect to their sister, and that “this is causing problems for all three children, as the mother is still visiting and talking by phone with [the sister], but is not able to talk with [them], causing upset to Stephon and Alphonso.” Among other things, they asked that their maternal grandmother be considered as a resource.
Three days after the children’s motion was filed, Clemy P. moved to intervene. She too complained about (1) the failure of DSS to make a written report as the statute required, (2) its refusal to consider her mother as a re[570]*570source, and (3) the impending separation of Stephon and Alphonso from their sister. She complained as well that the guardianship order was entered without any testimony and that she “did not receive notice of the Motion or Order of Default due to a change of address until the time for appeal had expired.” She averred that she was then ready to resume custody of the children.
DSS opposed the children’s motion and Clemy’s request to intervene. As to the children’s motion, it informed the court that it intended to place Stephon and Alphonso in a pre-adoptive home within 10 days and that no hearing would be necessary. As to Clemy’s motion, DSS pointed out that there had never been a default order, that Clemy received all of the notices to which she was entitled, and that there were no proceedings pending before the court. The docket indicates that a “status hearing” was held by Judge McGuc-kian on August 11, 1994, but neither the docket nor anything else in the record indicates how, or whether, the children’s and Clemy’s motions were resolved.
On July 5, 1995 — some 21 months after the judgments of guardianship were entered — Clemy moved to vacate them. Although she did not deny receiving a copy of the show cause order and did not deny reading it, she alleged that she “was not aware of the necessity of filing a written response” to the guardianship petitions and “remained unknowing as to the significance of [those petitions].” She claimed that she had expressly declined to consent to the guardianships, that she had informed DSS orally that she would not consent, and that she did not become aware of the judgments until a month after they had been entered. She averred that the children had still not been adopted and continued to live in foster care.
Clemy complained that she had received no notice of DSS’s motion for final order and, indeed, no notice of any proceedings after the initial petition. She urged that the judgments were defective because they were based on her presumed consent and she was never informed of her right to revoke that consent. Her theory seemed to be that, once [571]*571DSS took the position that her non-response amounted to a consent, it was obliged to inform her of her right to revoke that consent. She complained as well about not receiving a copy of the judgments or of any status report required by [F.L. § 5-319].
On December 5, 1995, the court entered an order vacating the judgments of guardianship. In an accompanying opinion, the court held that, although Clemy may be deemed to have consented to the guardianships by not filing a timely objection, she retained the right to revoke that deemed consent and to receive notice of all further proceedings, including service of all pleadings. The court, at least tacitly, appeared to regard the failure of DSS to serve a copy of its motion for final order on Clemy as an irregularity under Md. Rule 2-535, thereby justifying a setting aside of the 21-month old judgments.
DSS promptly filed a motion to alter or amend that order as well as a request to stay its effect.

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Related

In Re Adoption/Guardianship Nos. 11387 & 11388
731 A.2d 972 (Court of Appeals of Maryland, 1999)

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Bluebook (online)
707 A.2d 926, 120 Md. App. 566, 1998 Md. App. LEXIS 76, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-adoption-nos-11387-11388-mdctspecapp-1998.