In re Katerine L.

220 Md.App. 426

103 A.3d 1144

In re KATERINE L. and Alex F.

No. 313, Sept. Term, 2014.

Court of Special Appeals of Maryland.

Dec. 3, 2014.

MaryKay Canarte (Panel Atty. for Public Defender's Office, on the brief), Rockville, MD, for appellant.

Nickola N. Sybblis (Panel Atty., Office of the Public Defender, Annapolis, MD) Leslie K. Ridgway (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for appellee.

Panel: KEHOE, ARTHUR, and LEAHY, JJ.

Opinion

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?

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.

BACKGROUND

Mother has five children: Edgar B., Alex F., Adrianna 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.

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 ... there's nobody to undo the presumption with, I guess is the way to say it.

Best Interests Hearing: October 4, 2013

On October 4, 2013, the circuit court held a hearing to determine if genetic testing was in the best interest of each of the children. Having been notified of the proceedings, Mr. B. attended the hearing without the assistance of counsel.¹ Following Mr. B.'s arrival, the court took a brief recess to allow an interpreter to arrive and assist Mr. B. Although the transcript indicates a break in recording during that time, Mr. B. engaged in a discussion with the court about proceeding without counsel, as the circuit court recounted in the subsequent hearing on February 21, 2014:

Mr. B[.] understood what we were doing because we had a long discussion about what was happening. And he was offered the opportunity to have counsel, which he declined, and wanted to proceed. He appeared for the parentage testing part of this process, and he's not entitled to counsel. But I offered him the opportunity to go and get it, and he refused.

Turning to the best interests of the children, the court correctly determined that when paternity is in question for a child born during a marriage, the Estates and Trusts Article applies “because it presents the ‘more satisfactory’ and ‘less traumatic’ means of establishing paternity,” Ashley v. Mattingly, 176 Md.App. 38, 58, 932 A.2d 757 (2007) (quoting Evans v. Wilson, 382 Md. 614, 628, 856 A.2d 679 (2004) ), and creates a presumption of legitimacy for children born to a married mother. ET § 1–206(a). Proceeding with the presumption of legitimacy, the court sought to determine whether it was in the best interest of each child to undergo genetic testing to determine parentage.

The court received testimony from both Mother and Mr. B. In the matter of Katerine L., Mother testified that she and Mr. B. were no longer together on December 23, 2005, when Katerine L. was born. She further testified that Katerine L.'s father is Mr. Alex L., who currently resides in El Salvador. Although Mr. L. is aware that he is Katerine L.'s father and Katerine recognizes him as such, Mother was unable to locate him for the CINA hearing.

In the matter of Alex F., Mother testified that Alex F. was born on December 27, 2001, when Mother and Mr. B. were no longer together. Although she does not know the identity of Alex F.'s biological father, Mother testified that she is certain that Mr. B. is not the biological father. Regarding the remaining two children, Adrianna L. and Eric B., Mother identified the two putative biological fathers, Joseph F. and Abdul K., respectively. Both of those men agreed to submit to genetic paternity testing, which the court then allowed as being in the best interests of the children.

Mr. B. testified that he and Mother lived together for “a year or two years.” Mr. B. also testified that aside from meeting Alex F. briefly, he has had no contact with the children and has not spoken with Mother in “five or six years.” Mr. B. testified that the only contact he has had with Mother since their separation was when he attempted to gather the necessary papers for divorce. Mr. B., however, failed to file the divorce action, citing a lack of financial ability.

The circuit court issued an oral ruling on the issue of genetic testing for each of the children on October 4, 2013. Regarding Adrianna L., the court stated:

I find that it is in her best interest for parentage testing to be done on [Mr. F.] who has indicated through counsel that he believes he may be the parent, that mother has indicated that she believes he may be the parent and Mr. B[.], who is here, testified that he doesn't believe he is the parent, and the credible facts which mostly came from [Mother], are that she stopped having relations with Mr. B[.] a couple years before Adrianna's birth.

Regarding Eric B., the circuit court found:

That the credible evidence supports the finding that it is in Eric's best interest to allow parentage testing on [Mr. K.] to determine whether he is the biological father. Again, it is clear from the testimony, mostly [Mother]'s, but also Mr. B[.], and the letter from Mr. Goss which indicates that [Mr. K.] believes he may be—or to put it another way, that it's a possibility that he may be the child's father, and there's no relationship between Eric and Mr. B [.] of any kind, that it's in Eric's best interest for the testing to be done.

Regarding Katerine L., the circuit court stated:

The testimony of [Mother] is that Katerine's father is [Mr. L.]. Katerine is the presumptive child

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