In Re: Thomas H.
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In the Circu it Court for A nne Aru ndel Cou nty Case No. J2002-00328.CA IN THE COURT OF APPEALS OF MARYLAND No. 92 September Term, 2003 ______________________________________ IN RE: THOMAS H. ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Wilner, J. ______________________________________ Filed: May 10, 2004 This case, we thought, presented the question of w hether, a nd in w hat ma nner, a juvenile court, in its consideration of a petition to declare a child in need of assistance, can find, conclusive ly, that a man previously adjudicated to be the father of the child, is not the father. The single issue presented to us by appellant, R obert S., in an appeal that h e noted in Decembe r, 2002, is whether the Circuit Court for Anne Arunde l County, in co nsidering h is 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 cou rt did err, at least because, at that stage of the proceeding, prior to finding the child to be CINA, the cou rt had n o autho rity to deter mine R obert s p aternity or l ack the reof. Reg retta bly, by failing to perfect his 2002 ap peal from that order, by seemingly accepting his non-paternal status and remaining content to participate as a permissive intervenor in further C ircuit Court proceedings for a period of ten months, and, when final judgment was eve ntually entered, by neg lecting to file an appeal from th at judgment, Robe rt has effec tively abando ned his earlie r appeal. W e shall dismis s the appea l. BACKGROUND The child in question, Thomas H., was b orn on Fe bruary 8, 199 1 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 fathe r. 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 CINA. The petition stated that Thomas was then living w ith Robert and that K aren s whereabou ts were unknown. Thomas was immediately placed in shelter care pendin g procee dings in the juve nile cou rt. Evidence taken by the juvenile master in hearings scattered over four days fro m 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 , sometime s with a new boyfriend, it being entirely unclear when she was there and when she was not. She testified that she had lived most re cently 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 CINA case in 1997, Robert had been awarded custody of Thomas and that Thomas had remained with Ro bert thereaf ter. The reco rds relating to a ny CINA or other pro ceeding in 1997 are not included in the record now before us, and there is nothin g in wha t is before us -2- to confirm, negate, or explain the stateme nt in that foster care 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, 2 002, the m aster filed a rep ort in which sh e conclud ed that the p arents were unable or u nwilling to give proper care and attention to Thom as s needs, th at the child needed court intervention, and that he should be removed from the home because of the inapprop riate sexual conduct of his fathe r, 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 1 The report, labeled Child Information Sheet was prepared by the State Foster Care Program and was attached to the Foster Care Review Board report that was transmitted to the court on September 13, 2002 and stamped as received by the judge on September 20, 2002. That was after the various master s hearings in April and May of 2002, of c ourse, but b efore the c ourt acted o n the maste r s recomm endations in November, 2002. The report states: The family has a long history with this agency and Tommy was in care once before in 1997 when [Robert] filed an ExParte against Tommy s mother [Karen], and was awarded custody with the provision that DSS visit the home at least every oth er day. [R obert] h ad a pa st sex of fense c onvictio n. The Court dismissed both the Shelter and CINA petitions and Tomm y has rem ained w ith his fa ther. -3- who Thomas s father was, and she responded, Well, the way Tommy looks and change and everything, I believe that [Roy H.] is the gentlem an 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 recommendations that parents shall cooperate and the father sh all submit to paternity testing as scheduled by the [DSS]. The master did not explain, and it is unclear to us, who she meant by p arents and father. T he only fathe r at that point w ould seem to be Rob ert. On June 21, 2002, Robert filed exceptions, compla ining about the proposed CINA finding, the recommendation that Thomas be removed from th e home, a nd the pate rnity testing. Without waiting for those exception s to be heard or any court order to be signed, and notwithstanding that [t]he proposals and recomm endations o f a master f or juvenile causes do not constitute orders or final action of the court, (M aryland Code, CJP § 3-807(d)(1)), DSS, on June 2 4, proceed ed on its own to have pate rnity te sting for T hom as, K aren , and Roy, although not for R obert. 2 When the test results showed a 99.99% probability that Roy H. was 2 The record shows that on October 4, 2002 more than three mon ths after the testing was done on Roy, Karen, and Thomas the court entered an order directing Robert, Karen, an d Thom as to unde rgo paternity testin g. It does no t appear tha t that testing was ever done. -4- Thomas s biological father, DSS, treating that as conclusive proof that Robert was not the father, filed contemp oraneou s motions (1 ) to have R oy declared T homas s f ather, to add him to the CINA proceeding as the ch ild s father, and to remove Robert as the pare nt an d 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 m emorand um filed in support of its motions, DSS contended that the juvenile co urt had auth ority 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 w as not a pro per party. Robert argued that he had not been excluded as the father, that he had been adju dicated as Thomas s father, and that the court was without jurisdiction to determine otherwise. The court made no immediate ruling other than to order Robe rt, over h is objec tion, to u ndergo paternit y testing. On October 15, Robert filed a written opposition to the DSS m otions, again claiming that he w as Thomas s fa ther. 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 Novemb er 18, 2002, the court entered an order (1) dec laring that Robert was not the natural parent of Thomas within the meaning of the C INA law a nd that he therefore was not a proper party to the action, (2) dismissing his exceptions for lack of standing, (3) -5- 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 necessar y party3 , and (5) remandin g the matter to the master to conduct a new evidentiary and disposition hearing. In reaching so me of tho se conclus ions, the court acted under Maryland Code, §3801(u)(1) and (t) o f the C ourts & Jud. Pro c. Article (CJP). S ection 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, guardi an, 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 R obert 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 pa rent. 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, define s the term natural father as including a man who has been 3 The cou rt did not exp lain its inconsiste ncy in granting the DSS motion to disq ualif y Rob ert an d add Ro y as a p arty becau se of a con clusive d eterm inati on th at Ro y, rather than Robert, was Thomas s father but denying the motion to declare Roy the father on the ground that the motion was premature. -6- adjudicated to be the father of the individual, but it reached what it regarded as the inescapa ble 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 natu ral father w as not a natu ral parent the court determined that R obert was not T hom as s nat ural pare nt a nd for that rea son w as no t a proper par ty. On December 10, 2002, Robert filed an appeal from that order, but proceedings continued apace no netheless in the Circuit Court. Hav ing 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 s tay and perm itted the mas ter to determ ine the mo tion 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 adjudicato ry and dispositio n hearing in Februar y, 2003. At the conclusion of the hearing , which K aren 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-ofhome pla cement. Robert did nothing to pursue his appeal which, in light of the denial of his motion for stay, would seem to assume a special imp ortance. Instead, he again filed exceptions, principally from the denial of his motion to intervene. In ruling, the court looked to Maryland Rule 11-1 22, which provides f or interventio n both of right and pe rmissively in juvenile cases. Section (a) of the Rule states that, upon timely application, a parent not -7- served with original process shall be permitted to intervene for any purp ose. Con firming its belief that Robe rt was not T homas s parent, the c ourt held tha t he was n ot entitled to intervention as of rig ht. Section (b) states that a person, other than a parent, who is seeking custody or 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 pe rmissive interv ention und er these unu sual circum stances w ould amount to an abuse of discretion. Accordingly, it granted permissive intervention and remanded the m atter, once again, to the master. Robert m oved the c ourt 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 opportun ity to be heard must be given to any person who has physical c ustody 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 procee dings a nd ther efore d enied th e motio n. On remand, th e 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 award ed to DS S for out-o f-home p lacement. On October 2, 2003, the court ratified the findings of the master and signed the -8- 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 ap peal befo re us is the one filed in Dece mber, 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 infe cted with a number of lapses, m ostly procedu ral, some substantive. In finding that Robert could not qualify as a party under CJP, §3-801(u), the court, beginning w ith 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 a lso a parent. In absolute derogation of the 1995 judicial determination that Robert w as Thom as s father, the master reco mmend ed that Ro bert, 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 b e heard, or, indeed, obtaining a ny other court order, DSS rushed to have everyone but Robert tested and, based on the test results for Ro y, contended, and persuaded the master and the court to accept, that Robert had been conclu sively sho wn no t to be the father, w hich, un der the la w, wa s not the case. As noted, all parties agree that the court erred, in its November, 2002, order, in finding -9- that Robert was not Thomas s father, but only because, in their view, the finding was premature. They appear to be correct a t least for that reason and perha ps for other, more importa nt ones as well . The basic law regarding the determination of paternity is set f orth in Title 5, Subtitle 10 of the Family Law Article (FL), although provisions in the Estates and Trust Article (ET) and the Courts & Jud. Proceedings Article (CJP) are also relevant. ET § 1-208 provides that a child born to parents who have not participated in a marriage ceremony with each other shall be considered the ch ild of his father only if the father: (1) has been judicially determined to be the fa ther in an ac tion broug ht under th e statutes relating to paternity proceedings; (2) has acknowledged himself, in writing, to be the father; (3) has openly and notoriously recognized the child to be h is child; or (4) has subsequently married the mother and ackno wledg ed him self, orally or in writing, to be the father. Robert satisfied the first three of these alternative methods, the most significant being the judicial determination, in a paternity action brought by or on beh alf of Karen, that he w as Thomas s fa ther. FL §5-1005 permits an e quity court to determine the legitimacy of a child pursuant to ET §1-208. Except as otherwise implicit from §5-1038, which permits a declaration of paternity to be set aside under certa in limited circu mstances , the function of the statute is to provide a means of establishing fatherhood, by one of the methods set forth in ET §1-208, by rebuttable presumption arising from the fact that the mother was married at the time of conception (FL §5 -1027 ), by affidavit of parentage (§5-1028), by blood or genetic testing -10- (§5-1029), or by other evidence presented at trial. The statute contemplates a bilateral action, between the mothe r or the Ch ild Suppo rt Enforce ment Ad ministration on behalf of the mother, as the complainant, and the one alleged father, as the one respondent, for it permits the impleader or joinder of other alleged fathers only if and when the court finds that the man alleged in the petition to be the father is not, in fact, the fath er. See FL §5-1 039. The statute does not appea r to envision a roulette wheel, with two or more men charged, tried, and placed at risk of a pat ernity dete rmin ation simu ltane ousl y. Section 5-1029 permits the cou rt, on its own initiative or on m otion of the Child Support Enforcement Administration or any party to the proceeding, to require the m other, child, and alleged father to submit to blood or genetic testing to determine whether the alleged father can be excluded as being the father of the child. FL §5-1029(b). The laboratory report is admissible in evidence if (1) definite exclusion is established, or (2) the testing is sufficiently extensive to exclude 97.3% of alleged fathers w ho are not biological fathers, and the statistical prob ability of the allege d father s p aternity is at least 97.3%. FL §5-1029(f)(1). A laboratory report received into evidence that establishes a statistical probability of the alleged father s paternity of at least 99.0% constitutes a rebuttab le presumption of h is paternity. FL §5-1029 (f)(4). Section 5-1032 provides th at, if the court finds that the alleged father is the fath er, it shall enter an order declaring him to be so. With but two exceptions, FL §5-1038 makes a declaration of paternity in an order entered under §5-1032 final. Such an order may b e -11- mod ified only: 1. in the manner and to the extent that any order or decree of an equity court is subject to the revisory power of the court under any law, rule, or established principle of practice and procedu re in equity; or 2. if a blood or genetic test done in accordance with §5-1029 of this subtitle establishes the exclusion of the individual named as the fath er in the o rder. The second of those provisions allows the man who previously was declared to be the father to undergo testing in order to establish, contrary to a declaration that has otherwise become final, that he is not, in fact th e fathe r. See Lan gston v. Riffe , 359 Md. 396, 754 A.2d 389 (2000); Walter v. Gunter, 367 Md. 386, 788 A.2d 609 (2002). We have never considered whether any other man, belatedly claiming to be the father, may collaterally attack a final order e ntered in a paternity case and thereby disestablish someone else s paternity, and we need not do so in this case, as neither Roy nor any other man has made such a claim or sough t that relie f. The Courts and Judicial Proceedings Article contains three relevant provisions dealing with paternity in CINA cases. CJP § 3-819(c)(2) permits the court, in making a disposition that either follows or is part of a finding that the child is, in fact, a CINA, to determine paternity of a child in accordan ce with §3-803(b) of this subtitle. Section 3-803(b), in turn, provides that the court has concurrent jurisdiction over paternity of a child whom the court finds to be a CINA. Section 3-822(a) requires the cou rt, at each CINA h earing, to inquire into the identity and address of each parent of the child and, in that regard, to inform the -12- parents present of available means to establish paternity if not yet established, and, [i]f approp riate, to refer parents to an appro priate support enforcement agency to establish paternity and support. Section 3-822(e) p ermits the co urt to order a p arent to coo perate with an appropriate support en forceme nt agency to es tablish patern ity and child sup port and to [m]ake a finding of paternity in accordance with Title 5, Subtitle 10 , Part VI of the Family Law Article. Part VI of subtitle 10 comprises §§5-1032 through 5-1044. When all of this is read in context, it is clear that, when the court entered its order of November 18, 2002, it had no author ity to determine that Robert the adjudicated father of Thomas was not the father and was not a proper party to the proceeding. If acting under CJP §§3-819(c)(2) and 3-803(b), the determination was at least p remature, in that the court had not yet found Thoma s to be a CINA. That alone made the order erroneous, at the time it was entered. More substantively, we question whether (1) in light of the final and unmodified order that Robert was the father, and the absence of any claim by Roy to the contrary, the court ha d any authority, un der the circu mstances of this case, to go behind that order and disestablish Robert s paternity, and (2) there was, in any event, sufficient evidence to exclude R obert as the f ather. Rob ert had not b een tested. T he labora tory report with respect to Roy indicated a strong pro bability that he was Thomas s father, but it did not serve conclusive ly to exclude Robert. No one knows w hat a test of Robert may have shown. The authority in CJP §3-822(e )(2) to mak e a paternity dete rmination re quires that it be made in accordance with FL, Title 5, Subtitle 10, Part VI, which includes FL §5-1038. As noted, that -13- section makes the earlier adjudication final unless the adjudication was still subject to the revisory power of the court, which it was not, or a blood or genetic test establishe[d] the exclusion of [Rob ert], which it did not. At best, un der FL § 5-1029, it cre ated a rebu ttable presumption that Roy was the father a presumption that Robert was not given the opportun ity to rebut. The entire issue of paternity was relevant only to the question of whether Robert was a proper party to the proceeding, and, as we noted, if he had been granted custody of Thomas, as indicated in the Foster Care Review Board re port, he wo uld have p arty status in any eve nt, regardless of whether he w as Thomas s fa ther. The custody issue, which (1) was in the case, (2) could easily have been resolved, possibly by the court s own records, and (3) may have made the paternity issue moot, was, instead ignored. This mess is complicated further by Robert s failure to pursue his December, 2002 appeal the only one that is before us . That appe al was ne ver perfec ted in conf ormance with the applicable rules, and the blame for that cannot be laid solely at the hands of the clerk s office. Maryland Rule 8-4 11 required Robert, who was exempt from the pre-hearing conference procedu re set forth in Rules 8-205 and 8-206, to order a transcript of proceedings within 10 days after n oting his app eal. There is n o indication in this record that that was done. Transcripts were not ordered until July 10, 2003, seven months later. Absent the preparation of transcripts, there is no way that the record cou ld be transmitted to the Cou rt of Special Appeals within sixty days after the noting of the appeal, as required by Maryland -14- Rules 8-202 and 8-412.4 Because the record was never transmitted, no briefing schedule was ordered by the Court of Special Appeals. Whatever dereliction there might have been on the part of the c lerk, see n.4, ante, the fact is that Ro bert simply allowed his appeal to languish. He sought a stay of proceedings from the juvenile court but never sought one from the Cou rt of Special Appea ls, as he could have don e under M aryland Rule 8-422. Instead of perfecting the appeal, Robert was content to rem ain in the Circuit Court for an additional ten months, until tha t court en tered its o rder of Octob er 2, 200 3, decla ring Th omas a CINA . Robert neglected to file an appeal from the 2003 order. He wants now to use the appeal noted in December, 2002, to contest the ruling of N ovembe r 18, 2002 , dismissing h im as a party, on the gro und tha t, at that time, having not yet found T homas to be a CINA, the court had no jurisdiction to render a paternity determination. He does not contest that which we ourselves have questioned the authority of the juvenile court, in the circumstances of this case, to make a paternity determination even after finding Thomas to 4 In the record is an affidavit from the Juvenile Department Appeals Clerk, dated July 7, 2003, acknowledging that the record was due to be transmitted to the Court of Special Appeals on February 10, 2003, and stating that it was not transmitted because when filed the no tice of app eal was stap le[d] along with other m otions that w ere filed in the above case and that [t]he cle rk did not se e the appe al and there fore did no t give it to the appeals clerk to process. Although the affidavit further states that [t]he appellant was not responsible for this delay, the fact is that (1) the notice of appeal itself was not only date-stamped by the Juvenile Department on December 10, 2002, and therefore must have been seen by the clerk, whether stapled to other motions or not, but was docketed and wa s therefore a matter of p ublic record , and (2) cou nsel for R obert surely kn ew that, without the transcripts, the clerk could not have transmitted the record in conformance with th e rules in any even t. -15- be CINA . The sole a rgumen t in his brief is tha t the court ac ted without subject matter jurisdiction in relation to addressing the issue of paternity in g eneral bec ause at this stage of the proceedings (exceptions taken from the Master s recommendations) Thomas H. was still only alleged to be a CINA and had not yet been found to be a CINA. U nder §3-803(b)(1)(i), supra, the trial court s concurrent jurisdiction to determine paternity extends only to a child who the court finds to be a CINA. This has not yet happened. Apart from the fact that the lack of authority asserted by Robert is one of timing rather than a wa nt of subjec t matter jurisdiction, the court now has declared Thomas to be a CINA and, by ratifying the master s recommen dation that Robert s status as an intervenor be terminated, confirmed his non-party status. Because no appeal has been taken from that determination, whether erroneou s or not, it is now final. By failing to pursue his 2002 appeal in a proper fashion and by failing to appeal from the ultimate judgment, Robert has precluded any meaningful appellate relief. Notwithstanding our concern ab out the ma nner in w hich this case proce eded belo w, we sh all dismiss the a ppeal. APPEAL DISMISSED; APPELLANT TO PAY THE COSTS. -16-
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