IN RE ALIJAH Q

t DSS look into Mr. A.'s "alcohol problem and . . . anger problem." Ms. Q. drew an objection from counsel for DSS, which the court sustained, when she asked:

[D]o you recall how many times in what period of time between the time that I told you that that [sic] you had an assessment — actually the assessment actually was not — it was not you that wanted the assessment done. I don't know how, but do you recall after the numerous times I asked you to look into it until it was finally done?

The following colloquy ensued:

[MS. Q.]: I don't see what's wrong with that questioning. THE COURT: I understand that. * * * That's why I'm sitting up here and you're standing there, to be honest. * * * And if I go into a great deal of detail for you, then I'm going to be standing next to you being your lawyer and not being the Judge in this case, is the problem. * * * So, telling me you don't understand why, you ask me to explain it, then — well, we already had a lawyer for you, you discharged. So, don't be disappointed.

Ms. Q. also pursued the issue of an ex parte protective order that Ms. Lovett-Sampson had advised Mr. A. to file after an incident in which Ms. Q. allegedly went to Mr. A/s house and kicked his door. She again attempted to show that Ms. Lovett-Sampson had not assisted Ms. Q. with respect to Ms. Q.'s complaints of domestic violence. The following exchange is pertinent:

[MS. Q.]: . . . [D]id you ever recommend or try to aide [sic] me in my plight of domestic violence in the home? [COUNSEL FOR SOCIAL SERVICES]: Objection.

THE COURT: Sustained. Next question. It's sustained for a number of different reasons, and one of those are it assumes facts not in evidence. Next question. [MS. Q.]: Can you say that one more time — I didn't hear you, sir, please?

THE COURT: I said it was sustained, because it assumes facts not in evidence in your question. I won't comment further, because I probably shouldn't. * * * I just don't want to sit up here and say objection every time you ask a question — * * * — and you think I'm not giving you your day in court.

Subsequently, Ms. Q. attempted to establish that Ms. Lovett-Sampson was biased in favor of Mr. A. Ms. Lovett-Sampson asserted that she has "entertained [Mr. A.'s] wishes, as well as [Ms. Q.'s] wishes," and stated that her job was to assess "the safety of [Ahjah] at the time that [she] received the case."

Thereafter, Ms. Q. sought to call two additional witnesses: her sister and a woman from a foundation that assists victims of domestic violence. At the court's suggestion, Ms. Q. made a proffer as to their testimony. She said that both would assist in facilitating visitation between Ms. Q. and Alijah.

The court also allowed Ms. Q. to make a statement. Ms. Q., who was not under oath, told the court that she was "aware that [she] cannot take care of [Alijah]," but wanted Mr. A. to undergo "parental counseling" and to take proper care of the child. Ms. Q. also suggested that counsel for Alijah was biased in favor of Mr. A. Further, she said:

My concern is this, is that because Mr. [A.] for whatever reason — he may have — he may be angry with me, because I did him wrong, but he's done the same. And we both need a lot of help, so even though the Court might not indulge me, what the child's attorney did say, that at least they were going to try to — she said this, and I have other witnesses of the attorney say that she was going to ask for parental counseling for him. And then, she turned around, and she reneged on it. All I wanted was family counseling for the family. . . .

But all I'm asking the Court is, is that we — that Alijah be properly taken care of, but I just think he is, but I think he needs a little help. And I just want enough time so that he doesn't have to internalize, saying, "Where is my Mommy?" because I remember the first time when I left him for 30 days how when he saw me — I walked up to the car, and he looked at me, and he just started screaming. He started crying, and then we got him in the house. He was kicking, he was biting, he would look at me. . . .

But the emotional empathy that [Mr. A.] has for my son is why I'm standing here. Its [sic] not — it's close to zero. . . . he puts himself first. . . . I've seen him put his own children at risk, calling them in the room, calling me a crackhead and saying I have nine children. . . .

* * *

— all I'm asking for now is, is that my child get enough time to bond with me and that we will — I will come back and try to get him later when I get more stabilized.

Mr. A. informed the court that he was "taking counseling and [attending] parenting classes right now." No other information was presented to the court.

Thereafter, the court orally overruled Ms. Q.'s exceptions. Then, on December 23, 2009, the court issued a "Review Hearing Order," granting custody of Alijah to Mr. A.

Regarding Ms. Q.'s discharge of counsel, the Review Hearing Order stated:

The Court notes that initially Susan Gilhooly, Assistant Public Defender also appeared as counsel for the Respondent's mother; however, Ms. Gilhooly advised the Court that the mother no longer wished to be represented by the Office of the Public Defender. The Court verified with the mother that she no longer wanted the services of the Office of the Public Defender, and that she wanted to proceed without the assistance of counsel. The Court excused Assistant Public Defender Susan Gilhooly and her appearance was struck. (Emphasis added.)

In addition, the court said:

Respondent Alijah Q. has remained in the custody of his father Antoine A. during the review period. The Department retained protective supervision. The Respondent continues to receive the appropriate care in his father's custody. During the review period the mother retained supervised visitation with the Respondent. There were some incidents of concern during the mother's supervised visits as detailed in County's Exhibit One and as testified to by the Department's worker that lead the Court to conclude that continued supervised visitation is warranted.

The court also rescinded the award of protective supervision to DSS, ordered "liberal and supervised" visitation to Ms. Q., "terminated" the "interest" of DSS and the court, and closed the case.

DISCUSSION

Appellant contends that the court erred in discharging Ms. Q.'s counsel without first obtaining a valid waiver of counsel. Noting that she had a statutory right to counsel, pursuant to Maryland Code (2006 Repl.Vol., 2009 Supp.), § 3-813(a) of the Courts Judicial Proceedings Article ("C.J."), Ms. Q. argues that the court was required to follow the waiver of counsel procedure delineated in Rule 11-106(b)(1). In her view, that rule applies to juvenile delinquents as well as to the parties in CINA cases. Noting that the court's Review Hearing Order stated that it had "verified with the mother that she no longer wanted" counsel, Ms. Q. contends that the court's finding is not supported by the record.

In addition, Ms. Q. insists that she was prejudiced by the lack of counsel. She points to the court's failure to analyze "whether there was a likelihood of further abuse or neglect by Ms. Q. if she were granted custody or unsupervised visitation." In her view, "the court erred in granting only supervised visitation," as the "incidents" concerning Ms. Q. "do not rise to the level at which supervised visitation is necessary." Further, Ms. Q. complains that the court "erred in failing to order a specific visitation schedule."

In support of her position, appellant maintains that counsel would have protected her due process rights. She asserts that "there was no way for the court to assess the credibility or reliability of the evidence," and suggests that the "assistance of counsel would have been critical in addressing these evidentiary issues." Further, Ms. Q. contends that her opportunity to present her case was "severely curtailed." She cites her unsuccessful examination of Ms. Lovett-Sampson; the numerous objections that the court sustained; the court's decision to require her to proffer witness testimony; and its insistence on concluding proceedings by 4:00 p.m.

Appellees contend that the court did not violate Rule 11-106(b). Alijah recognizes that "a parent in a CINA proceeding is entitled to the assistance of counsel and that this right must be explained pursuant to the waiver procedure of Md. Rule 11-106(b)(1)." But, he contends that "it is not clear that the waiver procedure [in Rule 11-106(b)] applies in the circumstances of this case." Rather, Alijah suggests that a "lesser degree of compliance with Md. Rule 11-106(b)" is all that is required in CINA cases. In the Department's view, however, Rule 11-106(b)(1) does not apply at all to CINA cases. It argues:

[T]he language used in Rule 11-106(b) and the pertinent CINA and delinquency statutes compel the conclusion that the waiver provision in 11-106 was intended to apply solely to delinquency and CINS matters. Hence the court did not err in allowing Ms. Q. to represent herself, after she had previously been advised of her right to counsel, because a party in any civil matter is entitled to proceed pro se.

Both appellees underscore that the primary purpose of CINA proceedings is to protect the child's best interests; the proceedings are civil in nature; the dispositions available in a CINA case "involve child custody, and do not involve any form of commitment for parents"; and CINA matters do not subject parents to criminal penalties. To that end, they observe that "the State must meet the heightened beyond a reasonable doubt standard in a delinquency case," because a liberty interest is implicated, whereas "the less stringent preponderance of the evidence standard applies in CINA adjudications," because no liberty interest is implicated. Given these key differences, argue appellees, "Maryland courts have consis

Alijah and DSS filed separate briefs but make several similar arguments as to the waiver of counsel issue. Therefore, unless otherwise noted, we shall refer to appellees' arguments collectively.

tently refused to apply the same procedural protections available in delinquency proceedings, to parents involved in CINA proceedings."

In addition, DSS argues that the "commonsense interpretation of Md. Rule 11-106(b)(1) is that it applies [only] to juvenile petitions filed against children, rather than CINA petitions, which are filed for the protection of children." According to DSS, the separate sections of Rule 11-106(b) signify a "legislative intent to handle CINA cases and delinquency cases differently." The Department explains:

Rule 11-106(b) is divided into four distinct and separately numbered sections. The first section describes a waiver procedure to be used if "a respondent or his parent indicates a desire or inclination to waive representation for himself." Rule 11-106(b)(1). Section two states that indigents in delinquency, child in need of supervision, and contributing cases are entitled to legal representation at no cost unless that right is "knowingly and intelligently waived." Rule 11-106(b)(2). Section three states that CJP § 3-821 governs the right to counsel in a CINA case.[ ] Rule 11-106(b)(3). Section four addresses the appointment of an attorney to represent a child who is not indigent. Rule 11-106(b)(4).

Moreover, DSS contends that the "party" referred to in Rule 11-106(b)(1) is a "respondent or his parent," which "indicate[s] that the waiver procedure is intended to apply only in the context of delinquency and CINS cases." It posits: "The absence of additional language in Rule 11-106(b)(3) or in the Courts Article requiring that a party in a CINA case knowingly and intelligently waive the right to counsel indicates that the waiver procedure does not apply to CINA matters."

DSS contends that appellant had "ample opportunity to ask [Ms. Gilhooly] to continue with the representation or to inform the court that she did not wish to dismiss her lawyer." It also argues:

The applicable statute pertaining to a parent's right to counsel in a CINA case, CJP § 3-813, mandates the right to counsel at every stage of the proceedings, but does not require that a parent be continuously re-apprised of the right to counsel at every subsequent hearing. CJP § 3-813. Had the legislature intended that parents have such a right to advisement in CINA cases, it could have enacted a statute similar in form to CJP § 3-8A-20, which specifically applies to juvenile causes other than CINA cases." See Subtitle 8A of CJP. CJP § 3-8A-20 sets forth a waiver procedure that applies when a child in a delinquency case or child in need of supervision (CINS) case chooses to waive the right to counsel.[] CJP § 3-8A-20(b). The legislature has not enacted any analogous provision to CJP § 3-8A-20 in the CINA statute. See Subtitle 8 of CJP.

In sum, because Ms. Q.'s "personal liberty interests" were not at stake, appellees contend that "the necessity of a personal waiver of the right to counsel" was neither triggered nor required.

We begin with a review of the relevant portion of C.J., § 3-813:

§ 3-813. Right to counsel.

(a) In general. — Except as provided in subsections (b) and (c) of this section, a party is entitled to the assistance of counsel at every stage of any proceeding under this subtitle [Juvenile Causes — Children in Need of Assistance].

(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) Incompetent by reason of mental disability.

(c) Representation by Office of the Public Defender. — The Office of the Public Defender may not represent a party in a CINA proceeding unless the party:

(1) Is the parent or guardian of the alleged CINA;

(2) Applies to the Office of the Public Defender requesting legal representation by the Public Defender in the proceeding; and

(3) Is financially eligible for the services of the Public Defender.

Ms. Q.'s status as an indigent, and her statutory entitlement to legal representation, are not challenged on appeal. We focus here only on the waiver of her entitlement to counsel. Maryland Rule 11-106, in the "Juvenile Causes" Title, is pertinent to the issue of waiver. It states, in part:

Rule 11-106. Right to counsel.

a. In all proceedings — Appearance of out-of-state attorney. The respondent is entitled to be represented in all proceedings under this Title by counsel retained by him, his parent, or appointed pursuant to the provisions of subsection b 2 and 3 of this Rule. An out-of-state attorney may enter his appearance and participate. . . .

b. Waiver of representation — Indigent cases — Non-indigent cases. 1. Waiver procedure. If, after the filing of a juvenile petition, a respondent or his parent indicates a desire or inclination to waive representation for himself before permitting the waiver the court shall determine, after appropriate questioning in open court and on the record, that the party fully comprehends:

(i) the nature of the allegations and the proceedings, and the range of allowable dispositions;

(ii) that counsel may be of assistance in determining and presenting any defenses to the allegations of the juvenile petition, or other mitigating circumstances;

(iii) that the right to counsel in a delinquency case, a child in need of supervision case, or a case in which an adult is charged with a violation of Section 3-831 of the Courts Article includes the right to the prompt assignment of an attorney, without charge to the party if he is financially unable to obtain private counsel;

(iv) that even if the party intends not to contest the charge or proceeding, counsel may be of substantial assistance in developing and presenting material which could affect the disposition; and

(v) that among the party's rights at any hearing are the right to call witnesses in his behalf, the right to confront and cross-examine witnesses, the right to obtain witnesses by compulsory process, and the right to require proof of any charges.

2. Representation of indigents in delinquency, child in need of supervision, and contributing cases, (a) Unless knowingly and intelligently waived, and unless counsel is otherwise provided, an indigent party, or an indigent child whose parents are either indigent or unwilling to employ counsel, shall be entitled to be represented by the Office of the Public Defender in a delinquency case, a child in need of supervision case, or a case in which an adult is charged with a violation of Section 3-831 of the Courts Article, at any stage in a waiver, adjudicatory or disposition hearing, or hearing under Rule 11-116 (Modification or Vacation of Order).

(b) Upon request or upon the court's own motion, the Office of the Public Defender shall appoint, in a delinquency case, a child in need of supervision case, or a case in which an adult is charged with a violation of Section 3-831 of the Courts Article, separate counsel to represent any indigent party other than the child if the interests of the child and those of the party appear to conflict, and if such counsel is necessary to meet the requirements of a fair hearing.

3. Child in need of assistance cases. A party in a child in need of assistance proceeding is entitled to the assistance of counsel as provided in Section 3-821 of the Courts Article.[]

4. Non-indigent cases. Upon motion of any party or upon the court's motion, the court may appoint an attorney to represent a child. Compensation for the services of the attorney may be assessed against any party.

(Emphasis added.)

The principles of statutory construction pertain to our interpretation of C.J. § 3-813. Similarly, in our interpretation of Rule 11-106, "we must apply the same standards of construction that apply to the interpretation of a statute." State v. Wiegmann, 350 Md. 585, 592, 714 A.2d 841 (1998). See also Johnson v. State, 360 Md. 250, 264, 757 A.2d 796 (2000) (recognizing that "`[t]he canons and principles which we follow in construing statutes apply equally to an interpretation of our rules.'") (Citation omitted). Therefore, we turn to review these principles.

"The cardinal rule of statutory interpretation is to ascertain and effectuate the real and actual intent of the Legislature." Lockshin v. Semsker, 412 Md. 257, 274, 987 A.2d 18 (2010). Our analysis is guided by the plain language of the statute. Id. "Similarly, with respect to the Maryland Rules, we seek to ascertain the Court of Appeals's intent in promulgating the rule," In re Charles K., 135 Md.App. 84, 97, 761 A.2d 978 (2000), giving the words their ordinary meaning. Zetty v. Piatt, 365 Md. 141, 152, 776 A.2d 631 (2001). In addition, "we construe the words in the text of a rule" so as to give "effect to the rule as a whole." In re Chartes K., 135 Md.App. at 97, 761 A.2d 978. As with statutes, when we construe a rule, "we must give effect to the entire rule, `neither adding, nor deleting, words in order to give it a meaning not otherwise evident by the words actually used.' Our mission is to give the rule a reasonable interpretation in tune with logic and common sense." In re Victor B., 336 Md. 85, 94, 646 A.2d 1012 (1994) (citation omitted); see Brown Williamson Tobacco Corp. v. Gress, 378 Md. 667, 676, 838 A.2d 362 (2003).

Ordinarily, if the language of a statute is unambiguous, our inquiry as to legislative intent comes to an end. Lockshin, 412 Md. at 275, 987 A2d 18. If a statute is ambiguous, however, we look to the "legislative intent in other indicia, including the history of the legislation or other relevant sources intrinsic and extrinsic to the legislative process." Id. at 276, 987 A2d 18. Similarly, if a rule is unambiguous, our analysis usually terminates. Hoang v. Hewitt Ave. Assocs., 177 Md.App. 562, 588, 936 A.2d 915 (2007). But, when the rule is ambiguous, "we may look to other sources in order to determine the Court of Appeals's intent." Wiegmann, 350 Md. at 592, 714 A.2d 841. Nevertheless,

[e]ven if the language of a rule is clear, we may consider extrinsic material that "`fairly bears on the fundamental issue'" of the purpose or goal of the rule This is because "[o]ur mission is to give the rule a reasonable interpretation in tune with logic and common sense." Therefore, we may consider the history of a particular rule as an aid to determining the court's intent.

Id. at 592-93, 714 A2d 841 (alteration in original) (citations omitted).

In Johnson, 360 Md. at 265, 757 A2d 796 (citations omitted), the Court explained:

The venerable plain meaning principle, central to our analysis, does not, however, mandate exclusion of other persuasive sources that lie outside the text of the rule. We have often noted that looking to relevant case law and appropriate secondary authority enables us to place the rule in question in the proper context.

As we have seen, Rule 11-106(b) is captioned, in part, "Waiver of representation," and Rule 11-106(b)(1) sets forth the "Waiver procedure." In our view, Rule 11-106(b) distinguishes CINA cases and delinquency cases with respect to waiver of counsel.

Rule 11-106(b)(1) refers to the "filing of a juvenile petition." In addition, the "party" referred to in Rule 11-106(b)(1) is a "respondent or his parent." As DSS suggests, the common-sense interpretation of Rule 11-106(b)(1) is that it applies to petitions filed against children, not petitions filed for their protection, such as a CINA petition. Moreover, Rule 11-106(b)(2) specifically refers to the knowing and intelligent waiver of counsel, but only as to "delinquency, child in need of supervision, and contributing cases." Notably, that subpart omits any reference to CINA cases. It is only in Rule 11-106(b)(3) that we see an explicit reference to CINA cases within the province of C.J. § 3-813. Yet, no other category of cases is mentioned in that subpart, nor is there any reference to the waiver of counsel. Thus, construing Rule 11-106 as a whole, and looking at its plain text, the rule does not establish the requirement of a voluntary and knowing waiver of counsel in CINA cases.

The Court of Appeals Standing Committee on Rules of Practice and Procedure (the "Rules Committee") assists the Court of Appeals in developing the rules. See Md. Rule 16-801. As we have seen, we may look to other sources to confirm or aid in our interpretation. The discussion of the Rules Committee as to the matter of the waiver of counsel in delinquency cases is consistent with our view.

The waiver of counsel provisions in Rule 11-106(b)(1) derive from Rule 906, adopted in 1976. The minutes of the November 1975 meeting of the Chapter 900 (Juvenile Causes) Rules Subcommittee of the Rules Committee contain the following pertinent remarks:

Judge Karwacki stated that in this, and other, rules such as Rule 906 (Right to Counsel) delinquency cases ought to be treated differently than non-delinquency cases, and that all such rules should be split into two sections.

* * *

Rule 906 b 1 presumably applies only to delinquency cases.

Minutes from the Chapter 900 (Juvenile Causes) Rules Subcomm. 3, 5 (Nov. 19, 1975) (emphasis added). From these minutes, it would indeed appear that the waiver provision of Rule 11-106(b)(1) was intended to apply only to juvenile delinquency proceedings.

The case of In re Christopher T., 129 Md.App. 28, 740 A.2d 69 (1999), a delinquency case, is noteworthy. There, a juvenile appeared without an attorney for an adjudicatory hearing. Id. at 32, 740 A.2d 69. Based on the court's belief that it had previously advised the juvenile of his right to a lawyer, and that his mother "lacked `any good reason `"for failing to obtain counsel, the trial court found a waiver of counsel by inaction, proceeded with the hearing, and determined that the juvenile was a delinquent. Id. On appeal, we concluded that "strict compliance with Rule 11-106(b) is essential to uphold a waiver of counsel in a delinquency proceeding." Id. at 42, 740 A.2d 69 (emphasis added).

In its decision to vacate and remand, the Court said, id. at 40, 740 A.2d 69:

[E]ven if a waiver could be based on a finding that Ms. T. was dilatory, Rule 11-106(b) does not specifically provide for waiver by inaction. . . .

Even if appellant had expressly waived his right to counsel, or did so by inaction, such a waiver would have been ineffective, because the record plainly demonstrates that the court failed to provide the information mandated by Md. Rule 11-106(b)(i), (ii), (iv), and (v). Specifically, the record is devoid of any indication that appellant was advised of the following . . . [information detailed in Md. Rule 11-106(b)(1)(i)(v).]

In In re Shawn P., 172 Md.App. 569, 916 A.2d 399 (2007), also a juvenile delinquency case, we again examined a juvenile's alleged waiver of the right to counsel by inaction. The Court stated, id. at 583, 916 A.2d 399:

The statute provides that there be appropriate questioning in open court, on the record. That questioning must elicit that the child fully comprehends [the information detailed in Md. Rule 11-106(b)(1)(i)-(v)]. . . . [T]he record clearly reflects that no conference took place where any of the above matters could have been discussed, nor were they explained on the record.

To be sure, in the two cases discussed above, the Court only considered the waiver issue in the delinquency context, and not in regard to CINA proceedings. Here, the issue concerns the procedure, if any, attendant to the waiver of counsel in a CINA case. Therefore, the cases above are not controlling.

In re Blessen, 392 Md. 684, 898 A.2d 980 (2006) (" Blessen "), is also illuminating, although it concerned the waiver of the right to a contested adjudicatory hearing in a CINA case, rather than the waiver of the right to counsel. In that case, the trial court did not hold a contested CINA adjudicatory hearing because counsel for the mother, Ms. H., represented that the mother wanted to mediate the dispute. Id. at 688, 898 A.2d 980. After mediation, the parties agreed to an amended petition, the facts of which formed the basis for a finding of CINA. Id. at 688-S9, 898 A.2d 980. At the conclusion of the proceedings, however, Ms. H. protested that the court had never inquired as to her character or her "situation." Id. at 689, 898 A.2d 980. The court indicated that it had relied on her attorney as to the stipulation of facts contained in the amended CINA petition. Id. at 690, 898 A.2d 980. The court placed the child in foster care. Id. at 689, 898 A.2d 980.

On appeal, the mother contended that the stipulation of counsel was not sufficient to waive her right to a contested CINA adjudicatory hearing. Id. at 708, 898 A.2d 980. Rather, she argued that "due process require[d] application of the more stringent standard of waiver in CINA adjudicatory proceedings." Id. at 702, 898 A.2d 980. Ms. H. asserted, id. at 692, 898 A2d 980:

[T]he right to a contested CINA adjudicatory hearing only can be waived where the record affirmatively discloses a personal, voluntary, knowing and intelligent relinquishment of the right by the parent herself, which requires a colloquy on the record in which the court would advise the parent of the right to have a contested CINA adjudicatory hearing, of the right to compel and present witnesses and to present evidence during the proceedings, that waiver of the hearing could lead to limitation of the parental rights, of the 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 drugs, understands the English language, and is waiving the proceedings voluntarily, absent any duress or coercion.

The Court disagreed, stating, id. at 708, 898 A.2d 980: Certainly if the due process rights of parents are not violated by the failure to file a timely notice of objection in termination of parental rights proceedings, their due process rights are not violated when they do not personally waive less intrusive CINA adjudicatory proceedings.

Contrary, then, to the arguments raised by Ms. H., the stricter standard of waiver requiring the court to conduct a personal colloquy with a parent to establish her or his voluntary, knowing and intelligent waiver ordinarily only has been applied where the rights to be waived have been deemed to be "fundamental," and the proceedings have been those that could result in confinement. In the present case, Ms. H.'s waiver of a contested CINA adjudicatory hearing was sufficient when her attorney concurred with the stipulated facts."[ ]

Based on all of the foregoing, we are satisfied that the strict waiver of counsel requirements embodied in Rule 11-106(b) do not apply to a parent's waiver of his or her statutory right to counsel in a CINA case. However, this conclusion does not fully dispose of appellant's claim of error. We elaborate.

In Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), the Supreme Court left to the trial court — subject to appellate review — the decision of whether due process requires the appointment of counsel in a termination of parental rights proceeding. Id. at 13, 101 S.Ct. 2153. But, the Court characterized as "enlightened and wise" those state practices providing for appointment of counsel in both neglect and termination cases, stating, id. at 33-34, 101 S.Ct. 2153:

A wise public policy, however, may require that higher standards be adopted than those minimally tolerable under the Constitution. Informed opinion has clearly come to hold that an indigent parent is entitled to the assistance of appointed counsel not only in parental termination proceedings, but in dependency and neglect proceedings as well.

In Maryland, the Legislature enacted C.J. § 3-813, which provides for the right to counsel in CINA proceedings. The General Assembly has underscored its view of the importance of the right to counsel in such cases by making clear that the right is available to indigent persons through the Office of the Public Defender. See Md. Code (2001, 2008 Repl.Vol.), § 16-204(b)(1)(v) of the Criminal Procedure Article ("C.P.") (stating that the Office of the Public Defender shall provide representation for "a proceeding involving children in need of assistance under § 3-813 of the Courts Article").

Under C.P. § 16-204, there are only six categories of cases for which legal representation is provided to indigent persons at State expense.

We are mindful that a statutory right, such as the one created by C.J. § 3-813 and C.P. § 16-204, "while deserving of protection, is not necessarily the equivalent of a constitutional right." In the Matter of the Welfare of: G.L.H., 614 N.W.2d 718, 722 (Minn.), cert. denied sub nom. Jackson v. Ramsey County, 531 U.S. 967, 121 S.Ct. 403, 148 L.Ed.2d 311 (2000). Nevertheless, in order to effectuate and safeguard the statutory right to counsel in CINA cases, certain minimal protections must govern the waiver of counsel, even if the waiver need not satisfy Rule 11-106(b)(1) or constitutional standards of a voluntary, knowing, and intelligent waiver. See Bearden v. Ark. Dep't of Human Servs., 344 Ark. 317, 42 S.W.3d 397, 402 (2001) (noting the distinction between a statutory right and a due process right to counsel, the latter of which requires a "voluntary, knowing, and intelligent waiver" (citation omitted)); cf. In re Adoption/Guardianship of Chaden M., 189 Md.App. 411, 417, 984 A.2d 420 (2009) (holding that the statutory right to assistance of counsel in a termination of parental rights case includes the right to effective assistance of counsel), cert. granted, 415 Md. 40, 997 A.2d 791 (2010).

These provisions would seem to satisfy the Supreme Court's characterization of "enlightened and wise" enactments.

To be sure, Blessen, supra, 392 Md. 684, 898 A.2d 980, made clear that a full blown waiver of counsel colloquy is not required with respect to a contested CINA adjudicatory hearing. Id. at 708, 898 A.2d 980. But, the case did not concern a waiver of the statutory right to counsel. Moreover, the Court certainly suggested that at least some waiver of the right to a contested CINA hearing was appropriate, even if it did not have to satisfy the strict "voluntary, knowing, intelligent" standard. Id. Under the facts of that case, the Court indicated that it was sufficient that such a waiver could be made by counsel for the party. Id. Under the facts of this case, however, Ms. Gilhooly could not waive Ms. Q.'s right to counsel.

The relationship of lawyer to client is generally one of agency. See Salisbury Beauty Sch. v. State Bd. of Cosmetologists, 268 Md. 32, 45, 300 A.2d 367 (1973). Ordinarily, "[t]he actions of an attorney within the scope of his employment are binding upon his client under the ordinary principles of agency." Id. at 46, 300 A.2d 367; see Rule 1-332 (recognizing that an attorney may act for a client). In Blessen, it was reasonable for the trial court to rely on the waiver representations made by Ms. H.'s lawyer, who unequivocally served as the agent for Ms. H.'s interests throughout the proceedings. See Ins. Co. of N. Am. v. Miller, 362 Md. 361, 374-75, 765 A.2d 587 (2001) ("[T]here is a prima facie presumption that an attorney has authority to bind his client by his actions relating to the conduct of litigation." (alteration in original) (citation omitted)); see also 7 AM.JUR.2D Attorneys at Law § 157 (2007) ("The entry of appearance by an attorney is itself presumptive evidence of his or her authority to represent the person for whom he or she appears. . . . In a civil proceeding, a client is bound by statements of his or her attorney made in open court when the statements are made in the client's presence and are not denied by the client.").

The general agency principle is not without exception, however. For example, in the context of settlement agreements, we have declined to apply the presumption that counsel's acts are imputed to the client. We said in Kinkaid v. Cessna, 49 Md.App. 18, 22, 430 A.2d 88 (1981), that "an attorney has no implied authority to compromise his client's claim." See also King v. Bankerd, 303 Md. 98, 108, 492 A.2d 608 (1985) ("`Even if a general discretion is vested in the agent, it is not deemed to be unlimited. But it must be exercised in a reasonable manner, and cannot be resorted to in order to justify acts, which the principal could not be presumed to intend, or which would defeat, and not promote, the apparent end or purpose, for which the power was given. `"(citation omitted)); Mitchell Properties, Inc. v. Real Estate Title Co., 62 Md.App. 473, 483, 490 A.2d 271 (1985).

At the hearing on October 23, 2009, Ms. Gilhooly informed the court that she came prepared to enter her appearance, but that Ms. Q. did not want her services. In fact, as of October 9, 2009, Ms. Gilhooly was already the attorney of record. In any event, when Ms. Gilhooly sought to withdraw, the court immediately acquiesced. It said: "All right. We'll excuse you, unless somebody objects." At the time, Ms. Gilhooly was not necessarily acting as her client's agent or in her client's interest; in the context of an eleventh hour request by an attorney to withdraw from a case, the attorney's interest may be at odds with that of the client. Under such circumstances, Ms. Gilhooly's representation to the court should not have bound Ms. Q. to a waiver. See Colonial Bldg. Loan Ass'n v. Boden, 169 Md. 493, 498, 182 A. 665 (1936) ("[T]he act of the agent will not bind the principal if the interests of the former in a given transaction are hostile to those of the latter."). Instead, the court should have inquired of Ms. Q. to verify whether she wanted Ms. Gilhooly's legal services, to confirm that she was electing self-representation over professional representation at an evidentiary hearing that was about to begin.

We recognize that Ms. Q. did not object when the court said, "unless somebody objects." But, neither did she expressly consent. Indeed, Ms. Q. never uttered a single word, nor does the record reflect so much as a nod by her in agreement with Ms. Gilhooly. As to Ms. Q.'s failure to object, it is for this very reason that litigants are guided and assisted by counsel. Because the court's inquiry was not specifically directed to Ms. Q., she could have thought that the court's comment was directed to counsel for DSS and Alijah. Alternatively, Ms. Q. may have been too intimidated to speak up. That we are left to speculate about Ms. Q.'s silence underscores the issue.

As we see it, in the absence of any affirmative indication by Ms. Q. that she assented to the discharge of her counsel, it was incumbent on the judge to make some attempt to verify that, moments before the hearing was to begin, Ms. Q. wanted to discharge her lawyer. Cf. Dillard v. State, 415 Md. 445, 453, 457-58, 464-66, 3 A.3d 403 (2010) (finding that the trial court had abused its discretion in not "fully inquir[ing] about . . . the extent of the prejudice to the defendant," even though the defendant had not asked for a voir dire of the jurors involved in potential misconduct, and stating that "the court has a duty to fully investigate allegations of juror misconduct before ruling on a motion for a mistrial, and that failure to conduct a voir dire examination of the jurors before resolving the issue of prejudice is an abuse of the trial judge's discretion"); State v. Brown, 342 Md. 404, 429-30, 676 A.2d 513 (1996) (where defendant's counsel and defendant's father addressed the trial court as to the defendant's request for discharge of counsel, the Court said: "It is Respondent's reply, not that of his father [or his counsel], that ordinarily would be relevant to determine whether or not the discharge [of counsel] should be permitted, because the [Sixth Amendment] right to counsel and the right to self-representation are personal rights," and "the responsibility is on the trial judge to ensure that the reason for requesting dismissal of counsel is explained" (emphasis added)).

We are mindful of Blessen's admonition that a personal, voluntary, knowing, and intelligent waiver colloquy is ordinarily required only in proceedings that involve fundamental rights or could result in confinement. Although the Sixth Amendment does not apply here, Chaden M., 189 Md.App. at 425, 984 A.2d 420, a CINA proceeding implicates a "fundamental" right; a CINA case may alter the parent-child relationship and it may lead to the termination of parental rights. In In re Maria P., 393 Md. 661, 904 A.2d 432 (2006), the Court of Appeals stated:

It is well-established that a parent's interest in raising a child is a fundamental right. Equally understood is the principle that a parent's fundamental right is not absolute, and is subject to the best interests of the child standard. [A parent] . . . clearly has a liberty interest in the care and custody of her child, and when, as in a CINA proceeding, a state seeks to change the parent-child relationship, "the due process clause is implicated."

Id. at 675-76, 904 A.2d 432 (2006) (citations omitted) (emphasis added).

In re Maria P. supports our view that the court should have attempted to verify with Ms. Q. that she wanted to discharge her lawyer. In that case, the mother was excluded from the courtroom during her child's testimony at a CINA hearing. Id. at 676, 904 A.2d 432. In finding that the trial court abused its discretion, the Court stated: "There is no indication on the record that the hearing judge considered Petitioner's due process rights. No testimony was placed on the record, and no inquiries were made of the Department as to the specific reasons for Petitioner's exclusion during [her child's] testimony." Id. (emphasis added).

Maryland Rule 2-132(b) is also relevant. It provides that a court may deny a motion to strike an attorney's appearance if it finds that "withdrawal of the appearance would cause undue delay, prejudice, or injustice." To be sure, there is no script to which a trial court must adhere in connection with a waiver of counsel in a CINA case. But, we cannot determine from the record whether the court considered the issue of prejudice.

In addition, as we have noted, the court's Order said: "The Court verified with the mother that she no longer wanted the services of the Office of the Public Defender, and that she wanted to proceed without the assistance of counsel." Even if the court is not required to verify the CINA parent's desire to discharge counsel, the court's finding is not supported by the record. This suggests that the court may have discharged counsel in the mistaken belief that it had verified Ms. Q.'s desire to do so.

Finally, we are unpersuaded by the argument that Ms. Q. was not prejudiced by what occurred. In In re Maria P., the Court found that the court's error was not harmless, noting that the appellant in that case was unable to confer with her attorney as a result. Id. at 678, 904 A.2d 432. Ms. Q.'s unskillful cross-examination was plainly evident. To find harmless error would undermine the statutory entitlement to counsel set forth in C.J. § 3-813.

JUDGMENT VACATED. CASE REMANDED TO THE CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY FOR FURTHER PROCEEDINGS. COSTS TO BE PAID BY APPELLEES.