IN RE: KATERINE L. AND ALEX F
Appeal from the Circuit Court for Montgomery County. Cynthia Callahan, Judge.
Argued by: MaryKay Canarte (Panel Attorney for Public Defender's Office on the brief) of Rockville, MD for Appellant.
Argued by: Nickola N. Sybblis (Panel Attorney Office of the Public Defender of Annapolis, MD) Leslie K. Ridgway (Douglas F. Gansler, Attorney General on the brief) all of Baltimore, MD for Appellee.
Kehoe, Arthur, Leahy, JJ. Opinion by Leahy, J.
[220 Md.App. 429] Leahy, J.
Appellant, Mr. B., and Appellee, Ms. B. (" Mother" ), were married on August 30, 2000. Although the couple parted ways soon thereafter, neither party sought a divorce prior to the current controversy. In the years since they were married, Mother has given birth to five children; four of those during the time the couple was estranged. Nonetheless, based on the " marital presumption" in Maryland Code (1974, 2001 Repl. Vol.), Estates and Trusts Article (" ET" ) § 1-206, Mr. B. remains the legal father of the children born during his marriage. Mr. B. has had no contact or relationship with the children; however, when Appellee, the Montgomery County Department of Health and Human Services (" the Department" ), began Child in Need of Assistance (" CINA" ) proceedings involving the four youngest children, Mr. B. was notified as a party. The Circuit Court for Montgomery County, sitting as the juvenile court, issued an order denying the Department's request for genetic testing to disestablish paternity in regards to minor children Katerine L. and Alex F. following a best interests hearing conducted on October 4, 2013. At a review hearing held on February 21, 2014, Mr. B. requested that the court revisit its earlier decision denying genetic testing in order to divest himself of legal paternity of Katerine L. and Alex F. The court denied Mr. B.'s request. He presents three issues for review:
I. Did the circuit court err in determining that the availability of another " putative father" for testing was required to find that genetic testing was in the best interests of the child, and thus, abuse its discretion in determining that the lack of an available putative father precluded testing in this case?
II. Was Appellant improperly denied the right to counsel at the October 4, 2013, best interests and good cause hearing?
III. Did the circuit court err by sua sponte rescinding its earlier order to conduct genetic testing?
[220 Md.App. 430] For the reasons set forth below, we do not reach Appellant's questions because the circuit court's order was not final and appealable, and the appeal must be dismissed.
Mother has five children: Edgar B., Alex F., Adriana L., Katerine L., and Eric B. All five of the children were born during the marriage of Mother and Mr. B. The eldest, Edgar B., born August 31, 2000, is the only child not conceived during the marriage. Since birth, the children have resided with Mother and have had little to no contact with Mr. B.
On June 18, 2013, the Department received a report that Mother was neglecting her five children. A second report, made June 21, 2013, alleged that one of the children had been sexually abused by an older sibling. During the subsequent Department assessment on June 24, 2013, Mother notified a social worker that she was being evicted and was in need of housing for herself and the children. At that time, Edgar B. was staying with a relative and Adrianna L. was living with a family friend. On June 26, 2013, after Mother was admitted to a hospital emergency department for stating that she was suicidal, the Department removed the remaining children from Mother's custody.
Katerine L., Alex F., and Eric B. were placed in shelter care, and on the following day, June 27, 2013, the Department initiated CINA proceedings. Adrianna L. was placed in shelter care on July 10, 2013 and was added to the CINA proceedings. Edgar B. is not part of the CINA case.
The Circuit Court for Montgomery County, sitting as the juvenile court, held an adjudication and disposition hearing on July 26, 2013. Based on an agreed statement of facts, the court found the four children to be CINA. The court inquired as to the whereabouts and availability of Mr. B. Mother testified that Mr. B. is not the biological father of any of her children and that she had not seen him over the last ten years.
Mr. B. did not participate in the adjudication and disposition hearing. However, two other putative fathers did respond. [220 Md.App. 431] Putative father, Mr. F., was present through counsel for Adrianna L. Mr. Abdul K., putative father of Eric B., did not appear at the hearing, but called the Office of the Public Defender to request counsel and spoke with a social worker regarding the proceedings. No one appeared on behalf of Katerine L. and Alex F. other than Mother.
The court acknowledged that there was a dispute about the biological parentage of all four children, but explained that before ordering any genetic testing, the court would have to hold a hearing to determine whether it is in the best interests of the children to set aside parentage. The court made the following statement about the best interests hearing:
The outcome will be that unless there is testimony that satisfies the requirement that it be in each child's best interest . . . it'll stand as it is by the legal presumption, which is that [Mr. B.] is the father. And I'll say this, if there's no other potential father, [Mr. B.] will remain the father because . ...