In Re Adoption/Guardianship No. 6Z000045

RAKER and WILNER, JJ.

concur.

Concurring opinion by WILNER, Judge, in which RAKER, Judge, joins.

I concur in the judgment, but only because I agree that the failure of the State to notify petitioner’s counsel in the CINA case, in violation of the clear mandate in Maryland Code, § 5-322(a) of the Family Law Article and Maryland Rule 9-105(f), precludes, on this record, an order terminating petitioner’s parental rights. I dissent from the Court’s conclusion that entry of that order deprived petitioner of due process of law.

Although we granted certiorari to consider both questions, it became clear from the briefs and at oral argument that the issue of due process had lost all “cert-worthy” value. That issue arises solely from the fact that, after finding that (1) the State made a good faith effort to serve- petitioner with the petition for guardianship and a show cause order explaining her rights and warning of the consequences of a failure to act, and (2) by steadfastly refusing to reveal her address and thus effectively - concealing her whereabouts, petitioner essentially made it impossible to serve her with those documents, the trial court waived the requirement of notice and then, in full accordance with the applicable statutes and rules, deemed her to have consented to the petition. The Court concludes that, in finding a deemed consent and refusing to permit petitioner to withdraw that consent and challenge the petition, the trial judge somehow denied her due process of law.

*127 As the State pointed out, however, a 2001 amendment adopted by the General Assembly no longer permits a waiver of notice under that circumstance but provides, instead, for published notice. See 2001 Maryland Laws, ch. 496. The foundation of the Court’s ruling, therefore, no longer exists, and its opinion on this subject will have utterly no precedential value with respect to any petition for guardianship filed on or after October 1, 2001. What the Court seems to be doing is declaring unconstitutional a statute that no longer exists. As there is an independent basis for reversing the judgment in this case, there is simply no reason to opine on the due process question presented on this record. The Court reaches out to decide a Constitutional question that it need not decide, either in this case or for guidance in other cases and, in so doing, ignores the long-held rule that we do not decide Constitutional issues when it is not necessary to do so.

The violation of this rather bedrock principle of appellate review and restraint would be bad enough if the ruling were correct; here, it is particularly egregious because the ruling is dead wrong.

I have great difficulty in discerning just how petitioner was denied due process of law, for, although the Court holds that she was, it never explains how she was, other than by looking at the disputed evidence in a light most favorable to her, rather than in a light most favorable to the State, as the Court’s own rule and its established case law require it to do. See Maryland Rule 8-131 (c); Urban Site v. Levering, 340 Md. 223, 229-30 , 665 A.2d 1062, 1065 (1995); Colandrea v. Wilde Lake, 361 Md. 371, 393-94 , 761 A.2d 899, 911 (2000).

Nakera was born in August, 1997. She remained with petitioner for the first two years of her life, but as a nomad, for, as the Court points out, petitioner did not keep a “regular place of residence.” After investigating a reported injury to the child at the hands of petitioner’s then-companion (which I read to be a complaint of child abuse) and learning (1) that petitioner was homeless and unwilling to stay in a shelter, and (2) that Nakera suffered from sickle cell anemia, the Mont *128 gomery County Department of Health and Human Services removed the child in August, 1999. She has not been in her mother’s care since then. Indeed, it is not clear that she has even seen her mother since then, for, as the Court notes, petitioner “apparently disappeared.” In October, 1999, she showed up at the Department’s office without an appointment, expressed a desire to be reunited with Nakera, but refused to supply an address' or telephone number and thereby made reunification a virtual impossibility. Nothing was heard from her until March, 2000, when she again made telephone contact with a social worker but cancelled a planned meeting and continued to refuse to disclose her telephone number. She did not attend the CINA hearing in juvenile court in March, 2000, that resulted in Nakera being declared a child in need of assistance. Although this conduct could be viewed in different ways, it more than suggests that Nakera was not very high on petitioner’s agenda.

The Department filed its petition for guardianship in December, 2000. The Court has pointed out the exhaustive efforts the Department made to serve0 that petition and the accompanying show cause order on petitioner and does not fault the Department for those efforts. When all of its attempts at service — even to locate petitioner — failed, the Department sought an order waiving the requirement of notice, in full accord with the then-existing law. Section 5-322(c)(3) of the Family Law Article provided, at the time, that, where the child who is the subject of the guardianship petition had previously been declared CINA, as was the case here, and the court is satisfied, by affidavit or testimony, that the Department has made reasonable but unsuccessful good faith efforts to serve the parent by both certified mail and private process server, the court “shall” waive the requirement of notice. On April 18, 2001, the request was granted and an order was entered waiving the requirement of notice. The Court finds no fault in the granting of that order. Up to that point, it seems, there was no due process violation.

The Constitutional lapse, it appears, arises from the court’s refusal to permit petitioner to enter a belated challenge to the *129 petition for guardianship — after the order waiving the requirement of notice was entered. Section 5-322(d) of the Family Law Article, in existence prior to the 2001 amendment, provided that if a person’s notification has been waived under subsection (c), “(1) the court shall consider the person ... whose notice is waived to have consented to the . .. guardianship; and (2) the petition shall be treated in the same manner as a petition to which consent has been given.” That was the law under which the court acted. It was the law that we found Constitutional in In re Adoption No. 93321055, 344 Md. 458 , 687 A.2d 681 (1997). Under that law, as construed by us, the court had no discretion to do other than it did — to treat the petition as if an irrevocable consent had been given.

As the Court points out, there was a significant dispute of fact regarding petitioner’s conduct in March and April, 2001, after the request for waiver of notice had been filed but before the order was entered — while there was still time. The trial judge credited the testimony of the clerks and social worker, not that of petitioner, and we must also give credence to that testimony.

Raynelle Miller, the adoption worker assigned to Nakera, testified that petitioner called her on March 19, 2001 and informed Ms. Miller that petitioner did not want to get involved in the dispute between Nakera’s father and the child’s caretaker. When Ms. Miller asked lor a telephone number, petitioner refused to disclose it. Interestingly, the testimony was not that petitioner did not have a telephone, but that “[s]he refused to give me a telephone number.” Ms. Miller said that she told petitioner that the department was moving ahead with adoption and that the foster parent was interested in adopting Nakera, and she asked whether petitioner, with her attorney, would want to meet with her and the foster parent. Ms. Miller wanted petitioner’s attorney present because the petition for guardianship had already been filed and petitioner and the Department could well be treated as legally adverse parties. Petitioner said she had no attorney and was advised to contact the public defender’s office. Two days later, petitioner called again and confirmed that she had *130 no position in the matter. She said that she had contacted the public defender but had heard nothing. Once again, she refused to give Ms. Miller a telephone number or an address.

May Ping Lu, a clerk in the juvenile court, testified that on March 23, petitioner called her to inquire about the next court date. Ms. Lu suggested she call the public defender. She asked petitioner for an address so that the petition and show cause order could be served, but petitioner refused to give it. Petitioner called again, but again refused to give an address or a telephone number. On March 30, petitioner went to the clerk’s office and requested information about her case. Ms. Lu again asked for an address and telephone number, which petitioner refused to provide. Ms. Lu then asked petitioner to wait, while she went to fetch a copy of the petition and show cause order to serve on her, but, when she returned about five to ten minutes later, petitioner was gone. On May 4, accompanied by a public defender, petitioner appeared at the clerk’s office and filed a notice of objection to the guardianship petition. The court held a hearing on the matter, listened to all of the testimony, and found, as a fact, that “[i]t is the mother’s refusal to provide the Court the information on her address which I think has resulted in her not being served.”

So what is unconstitutional? Is it the former statute that required the court to act as it did — the statute that was repealed as of October 1, 2001? Is it something the court did that was not in conformance with the statutory mandate? Is the Court saying that a parent can effectively abandon her child, deliberately frustrate all reasonable attempts to serve her with process specifically designed to explain and safeguard all of her rights, and then waltz into court at the last minute, after the court has properly deemed her to have irrevocably consented to the petition, and throw everything back to square one?

The laws governing this procedure were carefully crafted by the Legislature, and the rules of this Court implementing that procedure went through exhaustive review by this Court’s Standing Committee on Rules of Practice and Procedure. *131 Every effort was made to construct a process designed and effective to protect the Constitutional rights of parents, and, in my view, that process was effective to protect those rights. The parents’ rights, while undoubtedly important, are not absolute. When parents abuse or neglect their children, the State has a paramount right and a paramount duty to assure that those children are not forgotten and left to drift in misery or uncertainty. The procedure followed in this case preserved to petitioner every right to which she was entitled. It was she who frustrated all reasonable attempts to inform her of those rights.

This case must go back because, inexcusably, the Department failed to send notice of the petition to the attorney who represented petitioner in the CIÑA case. That is a statutory requirement, easy enough in this case to satisfy. Presumably, when the case returns to the Circuit Court, the Department will send the petition to that attorney. Unless service of the petition (which probably will have to be replaced or substantially amended due to the passage of time) is affirmatively waived, efforts will be made to serve it and a show cause order again. Maybe the Department will be able to locate petitioner; maybe it won’t. Maybe the public defender’s office will still be in the case; maybe it won’t. If the Department is unable to effect service, it will follow the new law and publish notice. If, after published notice, the court again enters an order terminating petitioner’s parental rights, we will have another appeal challenging the new law providing for published notice, and Nakera will spend another few years of her life — what is left of her precious childhood — in limbo. There is something very wrong with this picture that the Court paints.

Judge RAKER has authorized me to state that she joins in this concurring opinion.