In Re: Blessen H.
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In re Blessen H., No. 71, September Term, 2005. CINA PROCEEDINGS - ADJUDICATORY HEARING - WAIVER Blessen H. was declared a child in need of assistance ( CINA ) pursuant to a stipulated set of facts to which counsel for Blessen H. s mother, Petitioner, consented during an adjudicatory and dispo sition hearing . Petitioner sought review of the Court of Special Appeals judgment affirming the sufficien cy of her waiver of a c ontested adjudicatory hearing and argu ed that, beca use paren ting is a fund amental righ t, the judge n eeded to address her personally on the record to ensure that her w aiver of a contested adju dicatory hearing was knowing and intelligent. The Court of Appeals held that judges were required to personally address a party on the record only in limited circumstances in which the right sought to be waiv ed was n ot only fundamental, but also was that from which confinement could result. Noting that confinement could not be a result of the CINA proceedings, the Court of Appeals held that the judge did not need to personally address Petitioner on the record in orde r to secu re a wa iver of h er right to a conte sted ad judicato ry hearing . IN THE COURT OF APPEALS OF MARYLAND No. 71 September Term, 2005 IN RE BLE SSEN H. Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Battaglia, J. Bell, C.J., Diss ents Filed: May 11, 2006 This case arises out of an adjudicatory1 and disposition hearing2 held in the C ircuit Court for M ontg ome ry County, sitting as a juvenile court, during which Blessen H. was declared a child in need of assistance ( CINA ) 3 pursuant to a stipulated set of facts to which counsel for Blessen H. s mother, Tynetta H. ( M s. H. ), had consented. T hereafter, Ms. H. filed a petition for writ of certiorari in this C ourt to cons ider the follo wing qu estion: Whether in a CINA proceeding, the right to a contested adjudicato ry hearing may be waived only by the parent s personal, 4 knowing, intelligent and v oluntary waiver. 1 An adjudicatory hearing is a hearing under the Juven ile Causes subtitle of the Courts and Judicial Proceedings Article of the Maryland Code to determine whether the allegations in a petition for court intervention filed by the county department of social services on behalf of a child, other than the allegation tha t the child requires the court s intervention, are true. Md. Cod e (1973, 2002 R epl. Vol.), § 3-801(c) of the Courts and Judicial Proceedings Article. 2 Disposition hearing m eans a hea ring . . . to determ ine: (1) Wh ether a child is in need of assistance; and (2) If so, the nature of the court's intervention to protect the child 's health, safety, an d well- being. Md. C ode (19 73, 200 2 Rep l. Vol.), § 3-801(m) of the Courts and Judicial Proceedings Article. 3 Maryland Code (1973, 2002 Repl. Vol.), Section 3-801(f) of the Courts and Judicial Proceedings Article defines a CINA as: Child in need of assistance means a child who requires court intervention because: (1) The child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and (2) The child s parents, guardian, or custodian are unable or unwilling to give p roper c are and attention to the ch ild and th e child s needs. 4 The word personal in the certiorari question appears to have been taken from the Court of Special A ppeals s opinion. We understand by its use that Ms. H. is asking whether she is entitled, prior to acceptance of a waiver of a contested adjudicatory hearing, to a colloquy with the judge in which he or she explains the nature and consequences of such a hearing, and any rights that Ms. H. may have related to such a hearing, and inquires whether Ms. H. knowingly, intelligently and voluntarily is relinquishing her right to a (continued...) We granted the petitio n and is sued th e writ o f certior ari, In re Blessen H., 389 Md. 124, 883 A.2d 914 (2005). We shall hold that Ms. H. s attorney s acceptance of the stipulated facts in the CINA petition constituted a sufficient waiver of Ms. H. s right to a contested CINA adjudicatory hearing. The relevant facts in this case are procedural. O n July 29, 2003, the Mo ntgomery County Department of Health and Human Services (the Department ) filed a petition alleging that Blessen H. was a Child In Need of Assistance. On September 2, 2003, pursuant to Maryland Code (1973, 2002 Repl. Vol.), Section 3-817 of the Courts and Judicial Proceedings Article,5 an adjudicatory hearing was held in the Circuit Court for M ontgomery Cou nty, sitting as a juvenile court, to determine whether the allegations in the petition were true. The following colloquy ensued during th e hearing a t which M s. H., her cou nsel, Sheldon A. (Blesse n s father), an d the Dep artment w ere presen t: THE COURT: Now , this is set for trial today. Tell me how we re proceeding. (...continued) contested proceeding. 5 Maryland Code (1973, 2002 Repl. Vol.), Section 3-817of the Courts and Judicial Proceedings Article, provides: (a) Required. After a CINA petition is filed u nder this subtitle, the court shall hold an adjudicatory hearing. (b) Applicability of Maryland Rules. The rules of evidence under Title 5 of the Maryland Rules shall apply at an adjudicatory hearing. (c) Standard of Proof. The allega tions in a petition under this subtitle shall be proved by a preponderance of the evidence. 2 THE DEPARTMENT: Well, Your Honor, we have had some discussions, I think as I indicated before we were on the record with this case , attempting to see if we could reach any type of agreeme nt. This case is a little different than our normal scheduled cases because there was a co nflict with the pretrial date. Counsel for the mother attem pted to resch edule and file a motion, I believe, in that attempt, and because of different people s ca lendars and court calendar conflicts, we were never able to have a pretrial scheduled in this case. THE C OUR T: Right. THE DEPA RTM ENT: I h ad discussio ns with [Ms. H. s counsel] outside, and while she said her client was not of a mind, in the brief time that we were talking, to reach an agreeme nt, she did talk to her about what her thoughts would be about discussion with a mediator. And I believe she had some comme nts on that point with regard to her client s willingness to have settlement discussions with us with the assistance of the mediator. If one were available. *** COUNSEL FOR MS. H .: Yes, I did discuss with my client, and she is in a gree men t. If w e cou ld try to mediate this, she is willing to do that. The court then iterated that, should mediation not be successful, a trial would n ot be possib le later that day, and asked the parties: THE COURT: Tell me what you want to do? I ll start the trial right now. I will send you to mediation at 1:30. I will h ave this trial later this afterno on. We ll g et the adm inistrative judge to continue the trial if mediation is not fruitful, so we don t have to do it this afternoon. You just tell me w hat you wan t me to do. If you all think that mediation will be fruitful, then it s probably a good use of time. 3 THE DEPARTMENT: I would like to at least attempt mediation. COUNSEL FOR MS. H.: My client wants mediation. She wants to mediate. There after, the court ad journed, and th e parties entered into me diation. Later that afternoon, after mediation, the parties returned to the courtroom and the adjudicatory hearing continued: THE DEPARTM ENT: Your Honor, we did reach an agreement based o n an am ended petition . *** THE COURT: All right. You do have an amended petition? Go ahead. THE DEPARTMENT: The amended petition is amended by handwriting and I placed at the top, Factual Basis for CINA, Septem ber 2/0 3. THE COURT: Does everybody have a copy of this, or do you want us to make copies? Did you make copies? THE DE PARTM ENT: We m ade copies. *** THE COUR T: [I]s it everyone s position, then, that these facts should be sustained and form the basis for a finding of CINA? COUN SEL FO R THE CHILD REN: Y es, Your Hon or. COUN SEL FO R MS. H .: Yes, Your Ho nor. SHELD ON A .: Yes, Your Ho nor. 4 THE COU RT: All rig ht. I will make such a finding, that based on the agre emen t of all co unsel a nd part ies, because Mr. A . is here without counsel, that the facts alle ged are no w facts sustained, and they form a basis for a finding of CINA, and I will so find, that the child Blessen H. is a child in need of assistance. The parties agreement w as placed on the reco rd by the Department; it called for Blessen H. to stay in foster care until successful completion of a home study of the paternal grandmother s home, after which Blessen H. would be placed with the paternal grandmo ther, with weekly supervised visitation with Sheldon A., month ly supervised visitation with Ms. H., and no visitation with her maternal grandmother, Ms. G. At the conclusion of the proceedings, the court brou ght Ms. G . into the cour troom to inform her that she w as to have n o contact w ith Blessen until further notice. Ms. G. then asked the judge if she could have the opportunity to explain her involvement in a prior incident with Blessen and Ms. H. that was of concern to the court, whereuopn Ms.G. began to place blame for the incident on Ms. H., to which Ms. H. responded: MS. H.: I can t deal with this. It s so many lies on this place. It s just ridiculous. COUNSEL FOR MS. H.: Shhhh. MS. H.: It really is. You know. I m trying to be the best parent I can be. I have already been slandered by DHS. Sheldon don t like some of this. And I have swallowed my pride to try to get this court h earing d one. O kay. I don t d eserve this. I ve been th e best m other I c an be. I have listened to you, Your Honor, have saying things to me, and you haven t even asked me about my own character. You 5 haven t even asked me THE C OUR T: Aske d you abou t your own w hat? MS. H.: My own character. How did I end up in this situation. Why was I traveling? Why was my child not in a stable home? Some o f these thing s are not THE COURT: Well, you have an attorney, ma am, and I was listen ing to your atto rney. MS. H .: I can t speak no more , Your H onor. I really can t. THE C OUR T: Well, the n, don t. MS. H .: I really can t. THE CO UR T: O kay. MS. H.: You can go ahead and do the trial. I need to sit outside. THE COU RT: W ell, there is n t any trial . This is f inished . Ms. H. subseq uently appeale d to the Court of Special Appeals alleging that her attorney s stipulation to the facts in the CINA petition was not sufficient to waive her right to a contested CIN A adjudicatory hearing be cause the waiver had to have been made volu ntarily, knowingly and intelligently by Ms. H. In a reported opinion, the Court of Special Appeals affirmed the trial court s CINA determination and emphasized that the requirement of a personal, voluntary, knowing and intelligent waiver has only been applied in punitive proceedings tha t carry the risk of incarceration. The intermed iate appellate court noted that, although CINA proceedings implicate the fundamental right of a parent to raise his or her children, thereby demanding a certain level of due process, it is less than that owed 6 an individual who faces the loss of personal liberty, and therefore, a personal waiver under the Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), standard was not required. Ms. H. contends that CINA adjudicatory hearings represent the first step towards termination of a parent s right to raise his or he r children, w hich, as a fu ndamen tal right, requires the highest level of due pro cess pro tection. The significance of CINA ad judicatory hearings, she alleges, is reflected in the requirement contained in Section 3-817 (b) of the Courts and Judicial Procee dings A rticle of t he M aryland C ode (19 73, 200 2 Rep l. Vol.) of the strict application of the Maryland Rules of Evidence during the proceedings, as contrasted with the discretionary application of the Maryland Rules o f Evidence in C INA shelter care hearings,6 disposition hearings, perm anency planning hearings,7 and subsequent review hearings.8 Moreo ver, Ms. H . points out tha t parents hav e the right to representation by 6 Shelter care hearing means a hearing held before disposition to determine whether the temporary placement of the child outside the home is warranted. Md. Code (1973, 2002 Repl. Vol.), § 3-801 (x) of the Court and Judicial Proceedings Article. 7 Permanency plan hearing means a hearing in which the court determines the child s permanency plan after the child is determined to be a CINA, the options being: reunification with the child s parents or guardian, placemen t with relatives for guard ianship or adoption, adoption or guardianship by nonrelative, continuation in current placement due to the child s special needs, or, if sixteen years or older, preparation for independent living. Md. Code (1984, 1999 Repl. Vol.), § 5-525 (e) of the Family Law Article. 8 Review hearing means hearing co nducted b y court six mo nths after ch ild is placed outside of the home to review the child s permanency plan, or every twelve months after child is placed with a caregiver who has agreed to care for the child on a permanent basis. Md. Cod e (1973, 2003 R epl. Vol.), § 3-823 (h) of the Courts and Judicial Proceedings (continued...) 7 counsel during CINA adjudicatory hearings, and that indigent parents are provided counsel at the State s co st.9 Ms. H ., therefore, m aintains that, as due process requires both the strict application of the Maryland Rules of Evidence and representation by counsel during CINA adjudicatory hearings, so must it require the most stringent form of waiver to forego those proceedings. Ms. H. also claims that the strictest form of waiver is required because CINA proceedings can give rise to sepa rate c rimin al procee ding s aga inst the paren ts. A ccor ding ly, Ms. H. alleges that the right to a co ntested CIN A adjud icatory hearing only can be waived where the record affirmatively discloses a personal, voluntary, knowing and intelligent relinquishment of the right by the parent hers elf, which requires a co lloquy on the re cord in which the court would advise the parent of the right to have a con tested CINA a djudicatory hearing, of the right to compel and present witnesses and to present evidence during th e proceedings, that waive r of the hea ring could le ad to limitation of the parental rights, of the (...continued) Article. 9 Maryland Code (1973, 2002 Repl. Vol.), Section 3-813 of the Courts and Judicial Pro ceedings A rticle provide s in relevant p art: (a) In genera l. Except as provided in subsection (b) and (c) of this section, a party is entitled to the assistance of counsel at every stage of any proceeding under this subtitle. (b) Eligible parties. Except for the local department and the child who is the subject of the petition, a party is not entitled to the assistance of counsel at State expense, unless the party is: (1) Indigent; or (2) Otherwise not represented and: (i) Under the age of 18 years; or (ii) In com pete ncy by reas on of me ntal d isability. 8 risk of making incriminating statements during the proceedings, and of the burden of proof assigned to the State, as well as would inquire into whether the parent is under the influence of alcohol or d rugs, unde rstands the English language, and is waiving the proceedings voluntarily, absent any duress or coercion. Con vers ely, the State argues that the juvenile court was not required to make a personal inquiry of Ms. H. to confirm that her waiver of the contested adjudicatory hearing was voluntary, knowing and intelligent because, based upon the totality of the circumstances, it was clear to the court that Ms. H. s waiver was voluntary, knowing and intelligent. Moreover, the State argues that the stricter standard of waive r is not require d for all proceedings that implicate fundamental rights, only t hose that are punitive in nature and present the possibility of incarceration, unlike CINA proceedings, which are remedial in nature and cann ot result in confine ment. Furth ermore, the State asserts that the application of the personal, voluntary, knowing and intelligent standard of waiver to these proceedings would be inconsistent with other procedural aspects of CINA adjudicatory actions, such as the low burden of proof, a preponderance of the evid ence, assign ed to the Sta te. The State also contends that the application of this heightened standard of waiver also would be inconsistent with In re Adoption/Guardianship No. 93321055, 344 Md. 458, 687 A.2d 681 (1977), where this Court held that Marylan d s statutory sche me, whic h permits p arents to waive their right to contest termination of their parental rights through inaction, does not violate due process. 9 A. Fundamental Right of Parenting and CINA Proceedings Maryland has long re cognized the right of p arents to raise th eir children w ith minimal state interference as a constitutionally protected funda menta l right. See In re Billy W., Jessica W., Mary S. & George B., 386 Md. 675 , 683, 874 A.2d 4 23, 428 (2005); In re Samone H. and Marchay E., 385 M d. 282, 299 , 869 A.2d 370, 380 (2004); In re Mark M., 365 Md. 68 7, 705, 782 A.2d 33 2, 342-43 (2001); In re Ado ption/Gu ardiansh ip No. 10941, 335 Md. 99, 112, 642 A.2d 201, 208 (1994) (quoting Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981)). Indeed, we have iterated that: A parent s interest in raising a ch ild is, no doub t, a fundamental right, recognized by the United S tates Supre me Cou rt and this Court. The U nited States Supreme Court has long avowed the basic civil right enc omp asse d by child rearing a nd famil y life. See Troxel v. G ranville, 530 U.S. 57, 66, 120 S. Ct. 2054, 2060, 147 L.Ed.2 d 49, 57 (20 00) (stating th at the Four teenth Amendment protects the fundamental right of parents to make decisions concernin g the care, cu stody, and con trol of their children ); See also Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982) (discussing the fundamental liberty interest of natural parents in the care, custody, and manageme nt of their ch ild ); Stanley v. Illino is, 405 U.S. 645, 651 , 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 55859 (1972)(statin g that [t]he rig hts to conceive and to raise one s children have been deemed essential, and that [t]he integ rity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment . . . the Equal Protection Clause of the Fourteenth Amen dment . . . and the Ninth Amendment . . . . )(intern al citation s omitte d). Maryland, too, has declared a parent s intere st in raising a child to be so fundamental that it cannot be taken away unless clearly justified . Boswe ll v. Boswe ll, 352 Md. 204, 218, 721 A.2d 662, 10 669 (1998)(citing In re Adoption No. 10941, 335 Md. 99, 112, 642 A .2d 201 (1994 )). In re Samone H., 385 Md. at 300, 869 A.2d at 380 (quoting In re Mark M., 365 Md. at 705, 782 A.2d at 342-43). This right, however, is not absolute: Pursuant to the doctrine of parens patriae, the State of Maryland has an interest in caring for those, such as minors, who cannot care for them selves. See Bosw ell, 352 Md. at 218-19, 721 A.2d at 669. We have held that the best interests of the child may take preceden ce over the parent s liberty inte rest in the course of a custody, visitation, or adoption dispute. Boswe ll, 352 Md. at 219, 721 A.2d at 669; see also In re Adoption No. 10941, 335 Md. at 113, 642 A.2d at 208 (stating that the controlling factor . . . is . . . what best serves the interest of the child ). That which will best promote the child s welfare becomes particularly consequential where the interests of a child are in jeopardy, as is often the case in situations involving sexual, physical, or emotional abuse by a parent. As we stated in In re Adoption /Guardia nship No. A91-71A, 334 Md. 538, 640 A.2d 1085 (1994), the child s welfare is a consideration that is of transcendent importanc e when the child might otherwise be in jeopard y. Id. at 561, 640 A.2d at 1 096 (citation omitted). *** We have recognized that in cases where abuse or neglect is evidenced, particularly in a CINA case, the cou rt s role is necessarily more p ro-activ e. See In re Justin D., [357 Md. 431, 448, 745 A.2d 408, 417 (2000 )]. In re M ark M ., 365 Md. at 705-07, 782 A.2d at 343. The federal and state roles in the child welfare system were explored in In re Yve S., 373 Md. 5 51, 819 A.2d 1030 (2003) (quoting from Judge Karwacki in In re Adoption/Guardianship No. 10941, 335 M d. 99, 103-0 6, 642 A .2d 201, 20 3-05 (199 4)); 11 The Maryland General Assembly has enacted a comprehensive statutory scheme to address those situations where a child is at risk because of his or her parents inability or unwillingn ess to care for him or her. Title 5 of the Family Law Article of the Maryland Code (1 984, 199 1 Repl. V ol.) (Hereinafter F.L. ) governs the custody, guardianship, adoption and general protection of children who because of abuse or neglect come within the purview of the Department of Hum an Re source s . . . *** During the 1970's, nationwide concern grew regarding the large number of children who remained out of the homes of their biological p arents throu ghout their childhood , frequently moved from one foster ca re situation to another, thereby reaching majority witho ut belongin g to a perm anent family. This phenomenon became known as foster care drift and resulted in the enactment by Congress of Public Law 96-272, the Adoption Assistance and Child Welfare Act of 1980, codified at 42 U.S.C. §§ 610-679 (1988). One of the important purposes of this law w as to eliminate foster care drift by requiring states to adopt statute s to facilitate permanent placement for children as a condition to receiving federal funding for their foster care and adoption assistance programs. Under the federal act, a state is required, among other things, to provide a written case plan for each child for whom the state claims federal foster care maintenance payments. 42 U.S.C. § 671 (a) (16). The case plan must include a description of the home or institution into which the child is placed , a discussion of the appropriateness of the placement, and a description of the services provided to the parents, child and foster parents to facilitate return of the child to his or her own home or to establish another permanent placement for the child. 42 U.S.C. § 675 (1). The state must also implement a case review system that provides for administrative review of the case plan at least every six months and judicial review no later than eighteen months after placement and periodically thereafter. 42 U.S.C. § 675 (5)(B) and (C). The purpose of the judicial review is to determine the future status of the child including whether the child should be returned to its biological 12 parents, continued in foster care for a specif ied period, placed for adoptio n, or because of the child s special needs or circumstances, continued in foster c ase on a long ter m basis . 42 U.S.C. § 675 (5)(C ). Maryland receives considerable federal funds pursuant to this Act. Acc ordingly, the M aryland General Assembly has enacted legislation to comply with the federal requirements. Under Maryland s statutory scheme, for those children committed to a local department of social services the department is required to develop and implement a permanency plan that is in the best interests of the child. F.L. § 5-525. In developing the perm anency plan , the departm ent is required to consider a statutory hierarchy of placement options in descending order of priority. F.L. § 5-525(c). First and foremos t, the department must consider returning the child to the child s natural parents or guardian s. F.L. § 5-525(c)(1). If reunification with the bio logical paren ts is not possible, the department must consider placing the child with relatives to whom adoption, g uardiansh ip, or care an d custody, in descending order of priority, are planned to be gr anted. F .L. § 5-525(c)(2). If placement with relatives is not possible, then the department must consider adoption by a current foster parent or other approve d adoptive family. F.L. § 5-525 (c)(3). Only in exceptional situations as defined by rule or regulation is a child to be placed in long term foster care. F.L. § 5-525(c)(5). If it is determined that reunifica tion is not possible and that adoption is in the child s best interests, the juvenile court lacks jurisdiction to finalize this plan . In re Darius A., 47 Md.App. 232, 235, 422 A.2d 71, 72 (1980); see also F.L. § 1201. Instead, unless the parents con sent to the ad option of th eir child, the department is required to petition the circuit court for guardians hip pursuant to F.L. § 5-313. If the circuit court finds by clear and convincing evidence, after considering the statutorily enumera ted factors, th at it is in the best interests of a child previously adjudicated a CINA for parental rights to be terminated, the circuit cou rt has autho rity to grant the department s petition for guardianship. Su ch award carries with it the right for the department to consent to the adoption of the child. F.L. §§ 5-311 an d 5-317(f). The overriding theme of both the federal and state 13 legislation is that a child should have permanency in his or her life. The valid prem ise is that it is in a child s best interest to be placed in a perma nent hom e and to sp end as little time as possible in foste r care. Thus, Title 5 of the F amily Law Article seeks to prevent the need for removal of a child from its home, to return a child to its home when possible, and where returning home is not possible, to place the child in another permanent placem ent that h as legal s tatus. Id. at 573-76 , 819 A.2d at 1043-4 5 (emph asis added); see also In re Ado ption/Gu ardiansh ip Nos. J9610436 and J9711031, 368 M d. 666, 6 76-78 , 796 A .2d 778 , 783-8 5. Under this statutory scheme, upon receipt of a complaint from a person or agency that a child is being abused or neglected, the county department of social services undertakes an investigation to determin e whethe r the child is in need of assistan ce. See Md. Code (1973, 2002 Repl. Vol.), § 3-809 (a) of the Courts and Judicial Proceedings Article. If the department concludes that the court has jurisdiction over the matter and determines that filing a petition wo uld be in the best interest of the child, it will file a petition alleging that the child is in need of assistance. A fter the petition is filed, the co urt shall hold an adjudicatory hearing , Md. Code (1973, 2002 Repl. Vol.), § 3-817 of the Courts and Judicial Proceedings Article,10 the purpo se of wh ich is to determ ine whether the allegations in the petition for 10 See also Maryland R ule 11-11 4, which p rovides in p ertinent part: Adjudicatory hearing. a. Requirem ent. After a juv enile petition h as been file d, and unle ss jurisdiction has been waived, the court shall hold an adjudicatory hearing. 14 court intervention are true. Md. Code (1973, 2002 Repl. Vol.), § 3-801(c) of the Courts and Judicial Proceedings Article. At the adjudicatory hearing, the Maryland Rules of Evidence under Title 5 of the Maryland Rules apply, and the allegations in the petition must be proved by a prepon derance o f the evidence. Md. Code (1973, 2002 Repl. Vol.), § 3-817 of the Courts and Judicial Proceedings Article. It is within this statutory scheme that we must determine what level of due process protection must be af forded p arents wh o are deem ed to have w aived a contes ted CIN A adju dicatory h earing. B. Voluntary, Knowing and Intelligent Waiver In the case sub judice we are fa ced with the question of w hether Ms. H. s attorney s agreement with the stipulated facts presen ted by the State constituted an effective waiver of Ms. H . s right to a conte sted CI NA a djudica tory hearin g. The term waiver, as noted by Jus tice Black, sp eaking fo r the Supre me Cou rt in Green v. U.S., 355 U.S. 184, 191, 78 S.Ct. 221, 226, 2 L.Ed.2d 199, 206 (1957), is a vague term used for a great variety of purposes, good and bad, in the law . Its ambigu ity results from the infinite number of rights that can be waived and the various procedu res available for waiver, as the Supreme Court illustrated in U.S. v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d. 50 8 (1993): [W]aiver is the intentional relinquishment or abandonment of a known right. Whether a particular right is waivable; whether the defenda nt must par ticipate perso nally in the waiver; whether certain procedures are required for waiver; and whether the defendant's choice m ust b e par ticul arly in form ed or volunta ry, all depend on the right at stake. 15 Id. at 733, 113 S.Ct. at 1777, 123 L.Ed.2d. at 519 (citations omitted). Judge John C. Eldridge, writing for this Court, also has reflected upon the am biguity inherent in the term waiver in Curtis v. State , 284 Md. 132 , 395 A.2d 464 (1978): In the broadest sense of the word, any tactical decision by counsel, inaction by counsel, or procedural default, could be described as a waiver. For example, an attorney must make numerous decisions in the course o f a trial. Whenever he makes one, choosing to take or forego a particular action, the altern ate choice could be said to have been waived . However, w ith regard to constitutional rights in a criminal proceeding, in a much narrower sense the term waiver co uld be said to connote the intelligent and kno wing relinq uishmen t of certain ba sic constitutional rights under circumstances wh ere the courts have held that only such intellig ent and kn owing a ction will bind the defen dant. Id. at 147, 3 95 A.2 d at 473 . Because of the pleth ora of op portunities to waive substantive rights, as well as procedural safeguards, the Supreme Court, as well as this Court, have required ju dges to personally address a party on the record only in limited circumstances, to ensure that the waiver is being made voluntarily, knowingly and intelligently. These circumstances have included only those pro ceedings in which the right sought to b e waived was fu ndamen tal and from which co nfineme nt could res ult. The seminal c ase a ddre ssing voluntary, knowing and intelligent waivers and the limited circumstances in which personal waivers are required is Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), a habeas corpus case in which the defendant 16 complained he had been convicted of uttering and possession of counterfeit money without the benefit of counsel. Exploring the level of scrutiny that should be afforded a waiver of the Sixth Amendment right to counsel, the Supreme Court emphasized that courts indulge every reasonable presumption against waiver of fundamental constitutional rights, and determine d that: [i]f the acc used . . . is not represented by counsel and has not compete ntly and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictiona l bar to a valid conviction and sentence depriving him of his life o r his l iberty. Id. at 464, 468 , 58 S.Ct. at 1023, 1024, 82 L.Ed. at 1466, 1468. To ensure that there is an intelligent and competent waiver by the accused, id. at 465, 58 S.Ct. at 1023, 82 L.Ed. at 1467, the Supreme Court determined that trial courts shou ld inquire into the background, experience, and conduct of the accused, id. at 464, 58 S .Ct. at 1023, 82 L.Ed. at 1466, and suggested that such inquiry appear upon the record. Id. at 465, 58 S.Ct. at 1023, 82 L.Ed. at 1467. Th erefore, the s tricter standard of waiver requiring a colloquy arose with respect to the relinquishment of a fundam ental right in a p roceeding that could re sult in confin ement. The Supreme Court further explored the heightened standard of waiver in Schneckloth v. Bustam onte, 412 U.S . 218, 93 S .Ct. 2041, 36 L.Ed.2d 854 (197 3), in which the Court h eld that a knowing and intelligent waiver was not required for the defendant to consent to a search of his vehicle because: It would be unrealistic to expect th at in the infor mal, unstructured context of a consen t search, a po liceman, up on pain 17 of tainting the evidence obtained, could make the detailed type of examination demanded by Johnson. And, if for this reason a diluted form of waiver were found ac ceptable, tha t would itself be ample recognition of the fact that there is no universal standard that must be applied in every situation where a person foregoes a constitution al right. Id. at 245, 9 3 S.Ct. a t 2057, 3 6 L.Ed .2d at 87 3. Highlighting the distinctions between the protection against unreasonable searches contained in the Fourth Amendment and the promotion of a fair criminal trial in the Sixth Amendment, the Supreme Court acknowledged that the cases do no t reflect an un critical dema nd for a k nowing and intelligen t waiver in every situation where a person has failed to invoke a constitutional protection. Id. at 235, 93 S.Ct. at 2052, 36 L.Ed.2d at 867, but rather, a more personal or stricter standard of waiver is only required in proceedings in which fundamental rights are implicated and from which confinem ent could re sult: A prime exa mple is the rig ht to counsel. For without that right, a wholly innocent accused faces the real and substantial danger that simply because of his lack of legal expertise he may be convicted. Id. at 241, 9 3 S.Ct. a t 2055, 3 6 L.Ed .2d at 87 1. In addition to th e right to counsel, the application of the stricter standard of waiver has also been exte nded to oth er fundam ental proce dural rights in proceedin gs which could resu lt in confinement, such as waiver of the right to trial through entry of a guilty plea, Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274, 280 (1969) ( What is at stake for an accused facing death or imprisonmen t demands the utmost solicitude of 18 which courts are capable in canvassing the matter with the accused to make sure he has a fu ll understanding of what the plea connotes and of its consequence. ); the waiver of the right to trial b y jury, Adams v. United States, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942) (concluding that defendant had personally, intelligently and competently waived his right to a jury trial where th e record sh owed th at the trial court h ad informed defen dant of his constitutional rights, inquired into the defendant s legal experience, and had been repeatedly assured by the defendant that he kne w wha t he was d oing); and th e waiver o f the right to counsel in juvenile delinquen cy determ inations , Application of Gault, 387 U.S. 1, 42, 87 S.Ct. 1428, 1451, 18 L.Ed.2d 527, 554 (1967) ( [The parties] had a right expressly to be advised that they might retain counsel and to be confronted with the need for specific consideration of w hether they did or did not choo se to waive the right. ). We also have required the h eightened standard o f persona l waiver of specific fundamental rights in procee dings th at could result in c onfine ment. See e.g., Curtis v. State , 284 Md. at 143, 395 A.2d 470 ( The determination of whether there has been an intelligent waiver of right to co unsel mu st depend , in each case , upon the p articular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.) (quoting Johnson v. Zerbst, 304 U.S. at 464, 58 S.Ct. at 1023, 82 L.Ed.2d at 1466); 11 State v. Priet, 289 Md. 267, 290, 424 A.2d 34 9, 360-61 (1981) (ho lding guilty pleas 11 See also Maryland R ule 4-215 (b) ( If a defendant who is not represented by counsel indicates a d esire to waiv e counse l, the court ma y not accept the waiver u ntil it (contin ued...) 19 knowin gly and voluntarily entered when trial judge questioned each defendant at length as to voluntariness of plea, and each defendant was informed of the penalty for the offense and of the constitutional and other rights w aived by entry of the plea); 12 Countess v. State, 286 Md. 444, 454, 408 A.2d 1302, 1307 (1979) ( The inquiry upon which the court determines that the defendant has made his election for a court trial with full knowledge of his right to a jury trial and has knowingly and voluntarily waived the right, must be of the defendant on the record. ). Based upon this body of law, Ms. H. contends that, because CINA proceedings can be likened to criminal and quasi-criminal proceedings, as expre ssed by the Supreme C ourt in M.L.B. v. S.L.J., 519 U.S. 102, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996), due process requires application of the more stringen t standard of waiver in C INA adjudica tory proceedings. In M.L.B . v. S.L.J., 519 U .S. 102 , 117 S .Ct. 555 , 136 L .Ed.2d 473 (1 996), a mother was denied her right to appeal the decision to terminate her parental rights because she could not afford to prepay the cost of the appellate proceedings as requ ired by Mississippi law. Holding that the law denied the mother both equal protection and due process of law, the Supreme Court likened the termination proceedin gs to crimina l and quas i11 (...continued) determines, after an examination of the defendant on the record . . . that the defenda nt is knowingly and vo luntarily waiving the right. ) 12 See also Maryland Rule 4-242 (c) ( The court may accept a ple a of guilty only after it determines, upon an ex amination of the def endant on the record in open court . . . that . . . the defendant is pleading voluntarily, with understanding of the nature of the charge and the con sequen ces of th e plea. . . . 20 criminal proceedings for which a defendant s access to appeal could not be denied because of the inab ility to pay tran script fe es. Id. at 123, 117 S.Ct. at 567, 136 L.Ed.2d at 492. The anal ogy, howev er, to criminal or q uasi-crimina l proceedin gs in access to appeal cases when the Court had theretofore mandate d public ass istance to ind igents is inapposite to the case at bar because neither the Su preme Cou rt nor this Court has ever required a personal waiver of fund amental righ ts in proceed ings that cou ld not result in c onfinem ent. In Hersch v . State, 317 Md. 200, 562 A.2d 1254 (1 989), for examp le, this Court explored whether an attorney could waive the defendant s right to a contested probation revocation hearing or whether the waiver had to be elicited from the defendant himself. Noting th at revocation of proba tion procee dings are civ il proceedin gs, we ex plained tha t: the fact that a probation violation proceedings is civil in nature is also not dispositive . . . . A probation revocation proceeding can, and often does, result in immediate deprivation of liberty. Because the Fourtee nth Amendment guarantees that no person shall be deprived of liberty without due process of law, the Supreme Court has said that many, though not all, of the constitutional protections a vailable to criminal defendants must be afforded to persons facing revocation of parole or probation. Id. at 207, 562 A.2d at 12 57 (emp hasis adde d). Accor dingly, we he ld that: when the immediate consequences of a violation of probation may well be im prisonme nt, often for a significant period of time, we believe Johnson v. Zerbst standard must apply to the waiver of the importa nt right that the p robationer h as to put the S tate to its proof . . . . [N]o particular litany is required to show a waiver of these rights by a probationer, but the record must show that the charge was explained to the probationer in understa ndable terms and that his re sponse de monstrated that this actions were knowing and voluntary. It takes but a few momen ts to ensure 21 that the probationer personally understands the nature of the charges of alleged violations. Id. at 208-209, 562 A.2d at 1258 (emphasis added). In so doing, we reviewed the Supreme Court cases requiring a colloquy with the defendant only where there was a possibility of confinement and fundamental rights were implicated. In Jones v. Sta te, 351 Md. 264, 718 A.2d 222 (1998), we addressed the question of whether a waiver of the defendant s right to a contested constructive civil contempt hearing under Maryland Rule 15-207 (e)13 may be eff ectuated thro ugh the defendant's attorney, or 13 Maryland Rule 15-207 (e) provides: (e) Constructive Civil Contempt--Support Enforcement Action. (1) Applic ability. This section applies to proceedings for constructive civil contem pt based o n an alleged failure to pay spousal or child support, including an award of emergency family maintenance under Code, Family Law Article, Title 4, Subtitle 5. (2) Petitioner's Bu rden of P roof. Sub ject to subsection (3) of this section, the court may make a finding of contempt if the petitioner proves by clear and convincing evidence that the alleged contemn or has not paid the amount owed, accounting from the effective date of the support order through the date of the contempt hearing. (3)When a Finding of Contempt May Not Be Made. The court may not make a finding of contempt if the alleged contemnor proves by a preponderance o f the evidence that (A ) from the date of the support order through the date of the contempt hearing the alleged c ontemno r (i) never had the ability to pay more than the amount actually paid and (ii) m ade reason able efforts to become or remain employed or otherw ise lawfully obtain the funds necessary to make payment, or (B) enforcement (contin ued...) 22 whether the defen dant himse lf personally had to waive the proceedings. Applying the reasoning in Hersch, we obse rved that: [w]e imposed th[e] higher standard of waiver in violation of probation proceedings because we concluded that on balance, this standard goes a long way toward ensuring essential fairness in an importa nt proceed ing while im posing on ly a small additional burden upon the trial judge and permitting the procee ding to remain essentia lly inform al. Under Appellant's analysis, he is entitled to the procedural protections that defendants enjoy in violation of probation proceedings because, in his view, the court's finding of contempt exposes him to the th reat of immediate incarcera tion. He is incorrect. Id. at 275, 718 A.2d at 228. We determined that, because under Rule 15-207 the defendant must first be afforded the opportunity to show that he has the ability to purge his debt bef ore imprisonment is permitted, the proceedin gs did not p ose an imm ediate threat of incarceration to the de fenda nt. Id. at 275-77, 718 A.2d at 228-29. Accordingly, we held that a personal 13 (...continued) by contempt is barred by limitations as to each unpaid spousal or child support payment for which the alleged contemnor does not make the proof set forth in subsection (3)(A) of this section. (4) Order. Upon a finding of constructive civil contempt for failure to pay spousal or child support, the court shall issue a written order that specifies (A) the amount of the arrearage for which enforcement by contempt is not barred by limitations, (B) any sanction imposed for the contempt, and (C) how the contempt may be purged. If the contemnor does not have the present ability to purge the contempt, the order may include directions that the contemnor make specified payments on the arrearage at future time s and perf orm spec ified acts to enable the contemnor to comply with the direction to make payments. 23 waive r of the r ight to th e proce edings was n ot requ ired. Id. In Zetty v. Piatt, 365 Md. 141 , 776 A.2d 631 (2001), this Court explored whether a constructive civil contempt proceeding implicated Maryland Rule 15-206 (e), 14 which enumerates the procedures required for waiv er of coun sel, when th e defend ant was f ound to be in contempt and sentenced to 1 79 days incarc eration. Ho lding that a p ersonal w aiver is required in construc tive civil contempt proceedings where incarceration is sought, we emphas ized that: [a] defendant s actual incarceration in a jail, as a result of a proceeding at which he was unrepresented by counsel and did not knowin gly and intelligen tly waive the righ t to counsel, is funda menta lly unfair. Id. at 158, 776 A.2d at 64 1. Theref ore, it is the fact of incarceration, and not the label placed 14 Maryland R ule 15-20 6 (e) provid es in pertinen t part: (e) Waiver o f counsel if incarcera tion is sought. (1) Applicability. This section applies if incarceration is sought and applies only to court hearings before a judge. (2) Appe arance in C ourt Witho ut Coun sel. (A) If the alleged contemnor appears in c ourt witho ut counse l, the court shall m ake certain th at the alleged contemnor has received a copy of the order containing notice of the right to counsel or was advised of the contents of the notice in accordance w ith Rule 9-208 (d); (B) If the alleged contemn or indicates a desire to w aive coun sel, the court shall determine, after an examination of the alleged contemnor on the record, that the waiver is knowing and volunt ary. 24 upon th e proce eding, which comp els the re quirem ent of a person al waiv er. Id. Ms. H. also contends, thou gh, that because CIN A adjudicatory proceedings could give rise to separate c riminal proc eedings ag ainst the pare nt, 15 a colloquy on the record is required to ensu re that the pare nt is w aivin g her righ ts vo luntarily, k now ingly and intel ligen tly. 16 We had the opportunity to explore the character of CINA proceedings In re John P. and Thomas 15 Ms. H. refers to Maryland Code (1974, 2002 Repl. Vol.), Section 3-828 of the Courts and Judicial Proceedings Article, for support of this assertion, which provides in relevant pa rt: Contrib uting to acts, omissions, or conditions rendering a child in need of assistance. (a) Prohibition. An adult may not wilfully contribute to, encourage, cause or ten d to cause any act, omission, or condition that renders a child in need of assistance. *** (c) Penalty. An adult who violates this section is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $2,500 or imprisonment not exceeding 3 years or both. 16 Ms. H. also relies upon In the Interest of Howard, 382 So.2d 194 (La. 1980), In re Baby Girl Doe, 778 N.E.2d 1053 (Ohio 2002), and In re Monique T., 2 Cal.Ap p.4th 1372 (1992). We do not, however, find these cases persuasive. In In the Interest of Howard, the parents of a fourteen-year-old girl were charged with abuse and neglect under a Louisiana criminal law for which the parents could have been incarcerated. Because the proceedings could have resulted in confinement, Louisiana s intermediate appellate court held that the parents had a constitutional right to appointm ent of cou nsel, which could only be wa ived kn owing ly and inte lligently. 38 2 So.2 d at 195 . Furthermore, in both In re Monique T., 2 Cal.App.4th 1372 (1992), and In re Baby Girl Doe, 778 N.E.2d 10 53 (Ohio 200 2), there were statutory frameworks requiring personal waiver, which both courts found not to be dispositive. We have no similar statute here. 25 P., 311 M d. 700, 537 A.2d 26 3 (1988), in which the juvenile co urt ruled that John P. and Thomas P. were not children in need of assistance and dismissed the case. Counsel for the children asked the court to reconsider, relying on Maryland Rule 916, which allowed for the modification or vacation of a juven ile court order if it is within the best interests of the child. Ms. P., the mother of the children, opposed the motion on the groun d that a retrial would be violative of double jeopardy. We noted that double jeopardy proh ibitions only apply to bar criminal prosecutions, and that a CINA proceeding was civ il in natu re. Id. at 707, 537 A.2d at 267. Holding that the second CINA proceeding did not violate double jeopardy, we explained: The General Assembly has classified juvenile proceedings as civil and not criminal in nature. Moreover, the legislative intention underlying a C INA pr oceeding is not to punish the parent; rather, the purpose is to protect the child and provide for his best inte rests. Additionally, it cannot be said that the potential CINA sanctions are so punitive . . . in . . . effect as to negate that intention. Id. at 709, 5 37 A.2 d at 268 (citation s omitte d). We further explica ted that, [w]hile ordinarily a CINA proceeding is not a criminal action against a parent, the M aryland statute does allow the S tate to seek criminal sanctions against the parent . . . . Co nseq uently a CINA case does have a criminal aspect to it. Here, however, the State did not seek criminal sanctions against Ms. P. in either the first proceeding or in the subsequent petition for reconsider ation. When no sanctions of a c riminal nature are sought by the State . . . it would seem that the double jeopardy prohibition is inapplicable. Id. at 708, 537 A.2d at 267 (citations and footnote omitted). The State also did not seek 26 criminal sanctions against Ms. H. in the instant case so that a personal waiver of the conteste d adjudicato ry hea ring was not n eces sary. Ms. H. further asserts that, under the balancing test enumerated by the Sup reme Court in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and employed by this Court in In re Adoption/Guardianship No. 93321055/CAD, 344 Md. 458, 491, 687 A.2d 681, 697 (1997), we are compelled to require the stricter standard of waiver to CINA adjudicatory hearings because the State s interest in expediting CINA proceedin gs pales in comparison to the fundamentally important right of parents to raise their children, and the high risk of erron eous dep rivation of th at right in proc eedings w here the pa rent is forced to make decisions without proper advice by the Court. In In re Adoption/Guardianship No. 93321055/CAD, we addressed whether Maryland Code (1984, 1991 Rep. Vol.), Section 5322 (d) of the F amily Law Article, wh ich permits p arents to w aive the right to contest the adoption of their child by failing to file a notice of o bjection to a p etition for gu ardianship by an enumerated deadline, affords parents sufficient due process of law.17 In determining 17 Maryland Code (1984, 1991 Repl. Vol.), Section 5-322 (d) of the Family Law Article prov ides in pertine nt part: (d) Failure to respond or waiver of notification. If a perso n is notified under this se ction and fails to file notice of objection within the time stated in the show cause order: (1) The cou rt shall consid er the perso n who is notified to have consented to the adoption or to the guardianship; and (2) the petition shall be treated in the same manner as a petition to which consent has been (continued...) 27 that the due process rights of parents were not offen ded wh en the failure to file a timely objection was deemed irrevocable, we emphasized the fairness and adequacy of the notice afforded the parent. Certainly if the due process rights of parents are not violated by the failure to file a timely no tice of objec tion in termination of parenta l rights proceedin gs, their due proc ess rights are not violated when they do not personally waive less intrusive CINA adjudicatory proceedings. Con trary, then, to th e argum ents rais ed by M s. H., the stricter standard of waiver requiring the court to conduct a personal co lloquy with a p arent to estab lish her or his volu ntary, knowin g and intellige nt waiver o rdinarily only has be en applied where th e rights to be waived have been deemed to be fu ndamental, and the proceedings have been those that could result in confinem ent. In the present case, Ms. H. s waiver of a contested CINA adjudicatory hearing was sufficient when her attorney concurred with the stipulated facts. JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS IN THIS COURT AND THE COURT OF SPECIAL A P P E A L S T O B E P A I D B Y T HE PETITIONER. (...continued) given. 28 IN THE COURT OF APPEALS OF MARYLAND No. 71 September Term, 2005 IN RE BLE SSEN H. Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Dissenting Opinion by Bell, C.J. Filed: May 11, 2006 The question posed by Ms. H., the petitioner, in her petition for writ of certiorari is [w]hether in a CINA proceeding, the right to a contested adjudicatory hearing may be waived only by the parent s personal, knowing, intelligent and voluntary waiver. The majority addresses, and resolves, that issue. In the process, however, it ignores a threshold issue, whose importance and need to be addressed ar e ma de strikin gly ob viou s by a colloquy that occurred shortly after the parties, with Ms. H. present, placed on the record the agreement resolving the CINA case. That issue is whether Ms. H., having signed the mediation agreement negotiated between her attorney and Mo ntgomery C ounty ( Department ), continu ed to ag ree to it, o r, as seem s likely, withdrew her agreement after its entry on the record. The mean ing of Ms. H . s statements, and the trial court s obligation to investigate that meaning, ought to be the true focus of our review.1 1 Under Maryland Rule 8-131(b) we have the discretion to review issues although they wer e not ex plicitly raise d by the p etition fo r certiora ri. See Simpkins v. Ford Motor Credit C o., 389 M d. 426, 435 n. 14, 886 A .2d 126, 13 1 n. 14 (20 05); State v. Parker, 334 Md. 57 6, 596-59 7, 640 A .2d 1104 , 1114 (19 94); see also Brewer v. Brew er, 386 Md. 183, 191, 872 A.2d 48, 53 (2005). In the case sub judice, resolution o f an unde rlying issue is much preferable to resolution strictly on the basis of the petition for certiorari. Rule 8131(b) pro vides as fo llows, in pertin ent part: In Court of Appeals Additional Limitations. (1) Prior appellate decision. Unless otherwise provided by the order granting the writ of certiorari, in reviewing a decision rendered by the Court of Special Appeals or by a circuit court acting in an appellate capacity, the Court of Appeals ordinarily will consider only an issue that has been raised in the petition for certiorari or any cross-petition and that has been preserv ed for r eview by the Co urt of A ppeals . Further, in her brief Ms. H. did argue, though in the context of the waiver of her rights, that she did not understand the proceedings: As m ade ev ident by h er plea th at the co urt shou ld go a head a nd do th e trial, (App.47), she was under the impression that proceeding by way of a contested hearing was still an option available to her. Indeed, absent any advisement to the contrary, she could not have known or understood that she had foreclosed that avenu e. In doing so, she implicitly argues that the trial court should have inquired as the meaning of her statements, as those statements may have indicated her desire to withdraw her I. A review of the relevant facts makes clear that the issue before us is the existence and nature of M s. H. s cons ent to the CINA proceedings. The Department filed, in the Circuit Court for Montgomery County, a petition requesting that Blessen H. be declared a Child In Nee d of A ssistanc e ( CIN A ). T hereaf ter, Ms. H., Blessen s mother, Ms. H . s counsel, couns el for th e Dep artmen t, a social work er with the De partme nt, counsel for Blessen, and Mr. A., Blessen s father, appeared in the Circuit Court for the CINA adjudicatory hearing. As the parties had been unable to schedule a pre-trial hearing, they were offered the opportunity to mediate the matter. All parties agreed to mediation, and the cou rt adjou rned w hile it too k place . Following the mediation, prior to their return to court, the parties and their counsel signed a written M ediated C onsent A greemen t.2 Pursuant to that agreem ent, Blessen would remain co mmitted to th e departm ent and in f oster care un til a home study for her paternal grandparents could be completed by New Jersey Social Services, at which point Ms. C., the p aternal g randm other, w ould ob tain cus tody. Ms . H. s vis itation, supervised consent to th e mediation agreeme nt. 2 The CINA petition, amended by inserting at the top Factual Basis for CINA, 9/2/03, was attached to the Mediated Consent Agreement, as the factual basis for the CINA finding. 2 by the Department and located at the agency, would occur at least monthly for two or three hours per session.3 Further, Ms. H. would undergo a mental health evaluation. The M ediated C onsent A greemen t was pref aced by the fo llowing state ment: Having participated in a mediation session on Sept. 2, 2003, we, the undersigned parties, a ffirm that the following agreements were reached during the current mediation process. We are satisfied that the provisions of our agreeme nt, as stated, are fair and reasonable, and we agree to abide by and fulfill the agreements we have made this day. We understand our Mediation Agreement is subject to review by the Court and to the exte nt that the Court has jurisdiction, the provisions of our agreement may be made Order s of the Court. Ms. H. and Mr. A. signed the agreement, as did counsel for the Department, counsel for Ms. H., and the mediator. Though the form contains a signature line for both the child and the child s co unsel, Bless en s court-a ppointed a ttorney, neither ap pears to hav e signed it. On their return to c ourt, the parties represented that they had reached an agreement through mediation. The Court was provided with the mediation agreement, to which was attached the original petition with the words Factual Basis for CINA, 9/2/03" handwritten at the top. A fter reviewing the documents, suggesting additional language be added to update the document as to Blessen s location and to address an outstanding warrant pertaining to Blessen while she was in Ms. H. s custod y, and leaving it up to [the Department] to draft some language to that effect, 4 the Court was advised by 3 The mediated agreement did not specify whether this visitation arrangement applied to Ms. H ., Mr. A., or to both. Subseq uent discussions on the rec ord, however, indicate that Ms. H. s supervised visitation was to be monthly, while Mr. A. s visitation was to be unsu perv ised and at lea st we ekly. 4 The Department s counsel made the additions requested by the court. Prior to the conclusion of the hearing, she provided them to the court, representing that she had 3 counsel, including Ms. H . s counsel, that these facts should b e sustained and form the basis for a f inding of C INA[] . In response , the Court ru led: All right. I will make such a finding, that based on the agreement of all counsel and parties, because Mr. A. is h ere withou t counsel, tha t the facts alleged are now facts sustain ed, and that they form a basis for a finding of CINA, and I w ill so find , that the child Blessen H. is a child in need of assistan ce. It then addressed the recommendations for Blessen s care and vis itation, contained in the mediation agreeme nt. Although not a part of the mediation agreement, the Court next considered a nocontact order, directed to Blessen s maternal grandmother, Ms. G. Ms. H. s counsel argued that the order prohibiting Ms. G. from contacting the child be lifted and supervised visitation be permitted. The Court refused to accept that recommendation. When called back into the cou rtroom an d advised of that decision, Ms. G. as ked to be p ermitted to explain the behavior alleged to underlie the order. Thereafter, the following colloquy occurred: THE COURT: You know , you don t really need to. I don t know whether there are crim inal charge s still pending o r not. MS. GA RNET T: She did it, the mother. THE COU RT: If you d on t go ther e anyway, then it doesn t matter if I say no contact with the child until further court order. But that s what it s going to say. MS. H.: I can t deal with this. It s so many lies on this place. It s just ridiculous. MS. CARTER : Shhh. MS. H.: It really is. You know. I m trying to be the best parent I ca n be. I have already been slandered by DHS. Sheldon don t like some of this. And show n them to the oth er partie s, who m, we must p resum e, agree d to them . 4 I have swallowed my pride to try to get this c ourt he aring d one. O kay. I don t deserve this. I ve been the best mother I can be. I have listened to you, Your Honor, have saying things to me, and you haven t even asked me about my own character. You haven t even asked me THE COU RT: As ked you abo ut your own what? MS. H.: My ow n characte r. How d id I end up in this situation. Why was I traveling? Why was my child not in a stable home? Some of these things are not THE CO UR T: W ell, yo u have an attorney, ma am, and I w as listening to your a ttorn ey. MS. H .: I can t speak no more , Your H onor. I really can t. THE COU RT: W ell, then, don t. MS. H.: You can go ahead and do the trial. I need to sit outside. THE COURT: Well, there isn t any trial. This is finished. I just wanted to explain to Ms. G . what I had arrived at. So , the order w ill generate as I just said. MS CART ER: Your Honor, can I speak to my client outside, please. THE COURT: Sure. Do we have a good address on everybody? Do we have a six month? THE C LERK : I have a date, Your H onor. THE COUR T: What is the date? THE CLERK : March 9, 2004 at 8:30, Courtroom 18. THE COURT: March 9, this courtroom. MS. G.: I will respect your decision, Judge. THE COURT: Thank you, Ms. G. Do we have your address, so I can send you a copy of the order? MS. G : ___ A__ _ H_ __ W ay. THE COUR T: Wait. My law clerk will hand it down to you. MS. G: I think Ms. Rogers has it. Don t you Ms. Rogers? MS R OGE RS: I do h ave it. I can pro vide it to the C ourt. THE COU RT: O kay. Tha t s fine. (Whereupon the hearing was co ncluded.) Three days after the h earing, the A djudication and Disp osition Ord er, reflecting the agreement orally discussed in court, was filed.5 The docket entries for that day state that an 5 The M ediated C onsent A greemen t was less de tailed than bo th the discus sion in court and the Order issued by the court. The Order, after stating that Blessen s status as a CINA had been proven b y a prepond erance of the eviden ce, in pertinen t part: ORD ERED that the Res ponden t Child, Bles sen H., sha ll: 1. be committed to the Montgomery County Department of Health and 5 adjudication order, finding certain facts were sustained, was entered, as was an order for commitment/care/custody to the Department. The docket entries for the day of the hearing indicate that the Mediated C onsent Agreement was filed, the case was called for an adjudicatory hearing, an agreement was placed on the record, the court [fo und] the fa cts Huma n Services and und er the jurisdictio n of the C ourt; 2. be placed in foster care, pe nding an Interstate Com pact Home S tudy for the Re spond ent s pa ternal gr andm other, L eatha C .; 3. b e pla ced i n the hom e of h er pa ternal grandmother o nce t he home stud y is completed and approved; 4. have supervised visitation with her father, Sheldon A., minimum weekly, until such time that the Respondent moves to New Jersey, then visitation shall be liberal and unsupervised; 5. have supervised visitation with her mother, Tynetta H., minimum monthly (minimum three hours a day if she visits once a month; and two hours a day if she visits twice a month) and under the direction of the Departm ent; 6. have N O CO NTA CT w ith her mater nal grandm other, Ros e G., until further Court order, and it is further ORD ERED that the Res ponden t s father, She ldon A. sh all: 1. bring the Respon dent Child to M aryland for visitation with her mothe r; 2. participate in and comp lete parenting classes, and it is further ORD ERED that the Res ponden t s mother, T ynetta H., shall: 1. give the Montgomery County Department of Health and Human Services seven to ten days notice of visitation; 2. participate in a menta l health evalu ation and f ollow all recomm endations o f the evalu ation; 3. partic ipate in a nd com plete pa renting classes... It was dated the date of the hearing. The court order differed from the Mediated Consent Agreement in that it specified the visitation arrangements as applied to each parent, required both parents to attend parenting classes, and maintained a no contact order between Blessen and Ms. G. As we have seen , the parties app eared to ag ree in open court to the d etails of visitation and to parenting classes. It is clear, on the other hand, that Ms. H. did not agree to the no-contact order placed upon her mother. Consequently, the no-contact order was purely an order of the cou rt. 6 sustaine d, a disposition hearing w as held, Blessen wa s found to be a C INA, the court placed Blessen with a relative, and a review hearing date was set. Thus, both the docket entries and the filing date stamped on the Order make clear that the Order, although signed earlier, was not actually filed until September 5, 2003, three days after the hearing. II. A consent judgment or consent o rder is an ag reement o f the parties w ith respect to the resolution of the issues in the case or in settlement of the case, that has been embodied in a court order and en tered by th e court, th us evid encing its accep tance b y the cou rt. Long v. State, 371 Md. 72, 82, 807 A.2d 1, 6-7 (2002), citing Jones v. Hubbard, 356 Md. 513, 529, 740 A.2d 1004, 1013 (1999) and Chernick v. Chernic k, 327 Md. 470, 478, 610 A.2d 770, 774 (1992). Consent judgm ents are hybrids , having attribu tes of both c ontracts and judicial decrees, Long, 371 Md. at 82, 807 A.2d at 7; however, this Court has repeatedly held that consent judgments should normally be given the same force and effect as any other judgment, including judgments rendered after litigation. Id., citing Jones, 356 Md. At 532, 740 A.2d at 1014. As the United States Supreme Court has explained: Consent decrees are entered into by parties to a case after careful negotiation has produced agreement on their precise terms. The parties waive their right to ligitate the issues involved in the case and thus save themselves the time, expense, and inevitable risk of litigation. Naturally, the agreement reached normally embodies a compromise... 7 United States v . Armo ur & C o., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256, 263 (1971 ).6 6 We have also stated that a consent agreement, or settlement agreement, is a contract between two parties which is conditioned upon the court s acceptance of its terms. Chernick v. Chernick, 327 Md. 470, 479, 610 A.2d 770, 774 (1992). This is consistent with the understanding of the parties to this case, for, as previously noted, the mediation agreement was prefaced, in part, with the statement: we understand our Mediation Agreement is subject to review by the Court and to the extent that the Court has jurisdiction, the provisions of our agreement may be made Orders of the Court. 8 Maryland Rule 2-601 sets forth the method by which a judgment is entered and becomes final. 7 We hav e previous ly stated that, in acco rdance w ith Rule 2-601 and Rule 1202(n ), two acts must occur for an action by a court to be deemed the granting of a judgmen t: the court must render a final order and the order must be entered on the docke t by the clerk. Once both steps have occurred, rendition and entry, a judgm ent has been c reated. Rend ition of j udgm ent is ... the co urt's pronouncement, by spoken word in open court or by written order filed with the clerk, of its d ecision upon th e matte r subm itted to it f or adju dication . The entry of a judgment is the purely ministerial act of placing a judgment in the perm anent reco rd of a cou rt. Whether a judgment has b een rendered is a determ ination that must be made on a case by case basis and that turns on whether the court indicated clearly that it had fully adjudicated the issue submitted and had reached a 7 Maryland Rule 2-601 reads as follows: (a) Prompt entry Separate document. Each judgment shall be set forth on a separate docum ent. Upon a verd ict of a jury or a decision by the court allowing recovery only of costs or a specified amount of money or denying all relief, the clerk shall forthw ith prepare, sig n, and ente r the judgm ent, unless the court orders otherwise. Upon a verdict of a jury or a decision by the court granting other relief, the court shall promptly review the form of the judgm ent presente d and, if ap proved, sig n it, and the cle rk shall forthwith e nter the judg ment as ap proved a nd signed . A judgm ent is effective only when so set forth and when entered as provided in section (b) of this Ru le. Unless the court order s otherwise , entry of the judg ment shall not be delayed pending determination of the amount of costs. (b) Method of entry Date of judgment. The clerk shall enter a judgment by making a record of it in writing on the file jacke t, or on a doc ket within the file, or in a docket book, according to the practice of each court, and shall record the actual date of the entry. That date shall be the date of the judgmen t. (c) Recording an d indexing. Promp tly after entry, the clerk shall (1) record and index the judgment, except a judgment denying all relief without costs, in the judgment records of the court and (2) note on the docket the date the clerk se nt copie s of the judgm ent in ac cordan ce with Rule 1 -324. The term judgment is defined by Maryland Rule 1-202 (n) as any order of court final in its natu re enter ed purs uant to th ese rule s. 9 final decision on the matter at th at time. A rev iewing co urt will focus on the words spoken a nd the actio ns taken in th e lower co urt to make such a determination. Board of Liquor License Com rs for Balt. City v. Fells Point Café, 344 Md. 120, 127-128, 685 A.2d 772, 775-776 (1996) (citations omitted), citing Davis v. Davis, 335 Md. 699, 646 A.2d 365 (1994). When, as here, a court indicates that its written opinion or oral remarks, made from the b ench , are t o be follo wed by a written order, the final judgment occ urs upon the signing and filing of the written order unless the court subsequently decides not to issue a written order, instead directing judgment in some other way, or unless the written order is c ollateral t o the jud gmen t. Rohrbeck v. Rohrb eck, 318 Md. 28, 41-42, 566 A.2d 767, 774 (1989). It is clear that, in the present case, a written order was contemplated: the court stated the order will generate as I just said and set about collectin g addre sses so I can se nd you a copy of t he orde r[]. In the case sub judice, and, pursu ant to the afo remention ed principle s of law, the oral agreement submitted in open court on September 2, 2003 was, in part, a consent judgment, i.e. with regard to Blessen s status as CINA, her custody, both parents visitation rights, Ms. H. s mental health evaluation, and both parties obligation to attend parenting classes, and, in part, a pure co urt orde r, i.e. with respect to the no-contact order. This Ord er did not be come a f inal judgm ent, pursuan t to Rule 2-601, howe ver, until September 5, 2003, w hen it was filed with th e clerk and entered on the docket. This is so because, as is clear from the final rem arks mad e during the September 2 hearing , the court 10 contemplated writing and filing a written order based on its oral findings and the mediated agreement between the parties. It is clear from Ms. H. s comments that, at the very least, she either did not fully understand either the consequences, or the extent, of the agreement to which she had assented and which the court had outlined during the hearing, or that she may no longer have bee n satisfied w ith it. She stated: I can t deal w ith this. It s so ma ny lies on this plac e. It s just ridiculous... It really is. You know. I m trying to be the best parent I can be. I have already been slandered by DHS. Sheldon don t like some of this. And I have swallowed my pride to try to get this court hearing don e. Okay. I don t deserv e this. I v e been the bes t mothe r I can b e. She went on to chide the court that it had not asked her about her own character, or the reasons why she had not maintained a stable home for Blessen. When the Court indicated its deference to her counsel, whom it thought was speaking for her, she concluded: I can t speak no more, Your Honor. I really can t, adding that the court could proceed with the trial while she rem ained outsid e of the co urtroom. T his was sa id despite the fact that it was clear from the proceedings, and especially the mediation agreement, that there would be no trial; Ms. H. s agreement to Blessen s CINA status via that agreement meant that there was nothing, aside from Blessen s p lacement, th e parents v isitation and se rvices to be provid ed to the m by the D epartm ent, and Ms. G. s access to the child, to be resolved. Although Ms. H. s counsel requested time to speak with her outside of the courtroom, and although the Court granted that request, the hearing was concluded shortly thereafter, after 11 the social worker had giv en the clerk a copy of the mediation agreement and the Court had indicated tha t a final order would b e issued, pre sumably by ma il. Because Ms. H. made the aforementioned, at best ambig uous, statem ents prior to the entry of judgment, albeit after the consent had been tendered and the court had indicated its intent to accept it, the Court had an obligation to ques tion her furth er as to their meaning. More specifically, given the circumstances and the seriousness of the issue, it should have ascertained whether, in view of their ambiguity, the statements were an expression of her intent to withdraw her consent to the CINA finding. In Chern ick v. Chernick, 327 Md. 470, 610 A.2d 770 (1992), we considered whether, and wh en, a party could withdraw consent to a consent a greement. In Chernick, Mr. and Ms. Ch ernick entered into, and signed, an agreem ent resolving all matters concerning their div orce. Id. at 474, 610 A.2d at 771-772. Pursuant to that agreement, the parties cancelled their trial date, id., and mailed a copy of the agreement, as a proposed consent order, to the c lerk, who f iled it without first obta ining a ju dge s s ignatur e. Id. at 474-475, 610 A.2d at 771-772. Approximately two weeks later, Ms. Chernick s attorney filed a line stating that she had withdrawn her consent to the proposed consent order. Id. at 474-475, 610 A.2d at 772. We concluded that the proposed consent order was actu ally a propo sed con sent jud gmen t, id. at 478, 610 A.2d at 773, and acknowledged that entry of a judgment by consent implies that the terms and conditions have been agreed upon and consent thereto given in open court or by filed stipulation. Id. at 484, 610 A.2d at 776. We held, however, that because both Chernicks had agreed, and consented to, the terms of 12 the order at the tim e that it was f iled with the clerk, Ms. C hernick co uld not subsequently withdraw her consent, even tho ugh it had n ot been sign ed by the cou rt when sh e sought to do so. Id. at 484, 610 A.2d at 777.8 Similarly, in Dorsey v. Wroten, 35 Md. App. 359, 370 A.2d 577 (1977), which we cited approvingly in Chernick, 327 Md. at 483-484, 610 A .2d at 776, th e parties agre ed to mediate their disp ute. Dor sey, 35 Md. App. at 360, 370 A.2d at 578. Having reached a successful resolution, they communicated that fac t to the tria l court, id. at 360, 370 A.2d at 579, who asked counsel to prepare a consent decree and present it to the court for signature. Id. Several hours later, prior to the presentment of the decree, Dorsey informed his attorney that he no longer assented to the settlement agreement, and his attorney met with the trial judge a nd adv ised him accord ingly. Id. at 360-361, 370 A.2d at 579. The trial judge sta ted that he co nsidered th e matter settled and that he would sig n the cons ent decree when it was p resente d, and , in fact, d id so. Id. at 361, 370 A .2d at 579. The C ourt of Special Appeals held that, although Dorsey had orally agreed to a settlement, it is obvious that he withdrew that consent before the final meeting with the trial judge. It is also apparent th at both the trial ju dge and th e appellees had full k nowledge that the appellant was not c onsenting to the decree two days before it was signed. Id. at 362, 370 8 Our actual holding was limited as follows: Once a consent judgment is agreed to by the parties, executed by the parties or their authorized agents, filed with the court, and the case is taken off the trial calendar, the court may sign that consent order. The fact that one of the parties may have changed his or her mind shortly before or shortly after the submitted consent order was signed by the court does not invalidate the signed consent judgment. Chernick, 327 Md. At 484, 610 A.2d at 777. 13 A.2d at 579. Accordingly, the judgmen t was reve rsed. Id. The court also noted, as we had indicated in Chernick, 327 Md. at 483-484, 610 A.2d at 776, that by its nature... a consent decree cannot be entered unless both parties agree to the order which is presented to the clerk. Id. at 362 n.1, 370 A.2d at 579 n.1. These cases, together with Rule 2-601, indicate that if the statements Ms. H. made in open court were sufficient to indicate an intention to withdraw her consent to the mediation agreement and, in fac t, she did so, the withdrawa l would have o ccurred prior to judgment being issued in the case. Since a consent decree cann ot be entere d unless bo th parties agree to its terms, the consen t order wo uld be invalid.9 On this record, it is not clear whether Ms. H. intended to withdraw her consent. Her statements were so ambiguous that the trial court should have been prompted to, upon hearing them, inquire further-- to, through direct questioning, ascertain the meaning of her statements and to determine her intent. Specifica lly, the court sh ould have inquired as to whethe r she was still agreeing to the facts in th e CINA petition and intended to remain bo und by the m ediation ag reement. Commercial Carrier Corp. v. Gu evara, 541 So.2d 774 (Fla. 1989) is instructive. In that case, the appellee had filed a six-point counterclaim in response to appellant s original complain t, Count III of which alleged a statutory violation that, if proven, would have 9 We w ould ce rtainly not b e the on ly Court to so hold . See Woods v. Woods, 167 S.W.3d 932 (Tex.App. 2005) (consent must exist at the time judgment is rendered in order to be valid, and an oral order is not a judgment if there is an intent to enter judgment in the future); Williamson v. Williamson, 224 N.C. 474, 31 S.E.2d 367 (1944) ( consen t of the parties must still subsis t at the time the c ourt is called u pon to exe rcise its jurisdiction an d sign the co nsent judg ment ); Lee v. Rhodes, 227 N.C. 240, 41 S.E.2d 747 (same); Jacobs v. Steinbrink, 242 App.Div. 197, 273 N.Y.S. 498 (1934) (consent may be withdrawn at an y time prior to entry of judgment). 14 allowed the app ellee to c ollect atto rney s fe es. Id. at 774. The appellant made an offer of judgment to appellee, pursuant to which jud gment on the counte rclaim, not to include attorney s fees, w ould be entered agains t the app ellant. Id. The offer was accepted by the appellee, who, when giving notice of acceptance, stated that it did not include Count III of the counte rclaim. Id. Subsequ ently, the appellan t filed a written objection to the entry of any judgmen t on the off er and acc eptance o n the grou nds that no additional entitlement by way of attorn ey fees was contemp lated by the parties. Id. The trial court entered judgment over th e appe llant s ob jection. Id. On appeal, the District Court of Appeal of Florida, Third Circuit, reversed. It held: it was an abuse of discretion by the trial judge to fail to disapprove the offer and acceptance when confronted by a clear and c ertain expression of the parties lack of understanding as to what was intended by the offer. Id. Similarly, in Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288 (1951), the parties announced in court th at they had settled th eir case . Id. at 335, 240 S.W.2d at 289. Later that same d ay, the trial judge m ade a nota tion on the docket reflecting the fact of settlement, not the a moun t, but only after the plaintiff s attorney had obtained confirmation of the notation from the attorney for the defendants. Id. at 335, 240 S.W.2d at 289- 290. The trial judge having been advised by a clerk that the plaintiff was trying to back out on the settlement, id. at 336, 240 S.W.2d at 290, the attorneys for both parties appeared in court and again an nounc ed their s ettleme nt. Id. This was entered on the docke t, id.; howe ver, jud gmen t was n ot entere d at that tim e. 15 One week later, the trial judge received a letter from the plaintiff, in which she stated that she did not authorize the settlement. Id. Following a hearing to consider whether judgment should be entered, the plaintiff having been required to show cause why not and the de fendant h aving filed a motion to enter judgment, the trial judge entered judgment as the defe ndant had requested a nd over th e plaintiff s ob jection. Id. at 336, 240 S.W.2d at 290. On appeal, the T exas Sup reme Co urt determin ed that the trial court should not have accepted the settlement because the announcement of settlement and docke t entry were made after the court h ad receive d informa tion that the pla intiff was d issatisfied... the record reveals that she was opposed to the settleme nt and is still insisting upon he r right to be heard upon the merits of her claim. Id., at 336-337, 240 S. W. 2d at 290. As the judgment entered was a consent judgment, consent was required at the very moment the court made the agre ement the judg ment o f the co urt. Id. at 338, 240 S.W .2d at 291. It further stated: When a trial court has knowledge that one of the parties to a suit does not consent to a judgment agreed to by his attorney, the trial court should refuse to give the agreem ent the sanc tion of the c ourt so as to make it the judgment of the court. Any judgment rendered on the agreement under such circumstances will be set aside. The same reasons which impel the setting aside of a cons ent judgm ent rendered by the court with knowle dge that a party does not consent thereto will, in the interest of justice, also impel the setting aside of a consent judgment rendered when the court is in possession of information which is reasonably calculated to prompt the court to make further inquiry into the p arty s consent th ereto, whic h inquiry, if reaso nably pursue d, wou ld disclo se the w ant of c onsen t... 16 We thin k the inform ation in the p ossession o f the court w as clearly sufficient and of such a nature as to put the court on notice that plaintiff s consent to the judgment rendered on March 23rd might be w anting and to require the court to make further inquiry before rendering judgment. Id. at 339-340, 240 S .W.2d at 291-292 (citations omitted). See also Cureton v. Robbins, 319 S.W.2d 735, 737 (Tex. App. 1958); Gregory v. White, 604 S.W.2d 402, 403 (Tex. App. 19 80); Trevathan v. Akins, 712 S .W.2d 559, 56 0 (Tex . 1986) . Ms. H. s statem ents in open court clearly dem onstrate a lac k of und erstanding of the proceedings, of the mediation agreement, or of both, and, possibly, a desire to withdraw her consent to the CINA finding. Accordingly, and consistent with the nature of a consent jud gment, in w hich cons ent must be present at the very mome nt the judgm ent is entered, the trial court had a duty to question her further as to the meaning of her statements and her intention, and to determine whether she still continued to consent to the CINA finding . Acc ordingly, I would reverse the Court of Special Appeals and remand for further proceedings. 17
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