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In the Circu it Court for A nne Aru ndel Cou nty Case No. J2002-00328.CA IN THE COURT OF APPEALS OF MARYLAND No. 92 September Term, 2003 ______________________________________

IN RE: THOMAS H.

______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Wilner, J. ______________________________________ Filed: May 10, 2004

This case, we thought, presented the question of w hether, a nd in w hat ma nner, a juvenile court, in its consideration of a petition to declare a child in need of assistance, can find, conclusive ly, that a man previously adjudicated to be the father of the child, is not the father. The single issue presented to us by appellant, R obert S., in an appeal that h e noted in Decembe r, 2002, is whether the Circuit Court for Anne Arunde l County, in co nsidering h is exceptions to a juvenile master's recommendation in a child in need of assistance (CINA) case, acted prematurely in concluding that appellant was not the father of the child alleged to be in need of assistance and, on that ground, striking his exceptions and declaring that he was no longer a party in the case. All parties now agree, and correctly so, that the cou rt did err, at least because, at that stage of the proceeding, prior to finding the child to be CINA, the cou rt had n o autho rity to deter mine R obert's p aternity or l ack the reof. Reg retta bly, by failing to perfect his 2002 ap peal from that order, by seemingly accepting his non-paternal status and remaining content to participate as a permissive intervenor in further C ircuit Court proceedings for a period of ten months, and, when final judgment was eve ntually entered, by neg lecting to file an appeal from th at judgment, Robe rt has effec tively abando ned his earlie r appeal. W e shall dismis s the appea l.

BACKGROUND The child in question, Thomas H., was b orn on Fe bruary 8, 199 1 to Karen H. At some point in 1995, a paternity action was filed in the Circuit Court for Anne Arundel County by

or on behalf of Karen against Robert, alleging that he was Thomas's fathe r. On November 6, 1995, the court entered a consent order declaring Robert to be Thomas's father and charging him with supporting the child. That order has never been modified or set aside, at least not directly. On March 7, 2002, the Anne Arundel County Department of Social Services (DSS) filed a petition alleging that, because his parents were unable or unwilling to give him proper care and attention and because Robert had sexually and physically abused the child, Thomas was a CINA. The petition stated that Thomas was then living w ith Robert and that K aren's whereabou ts were unknown. Thomas was immediately placed in shelter care pendin g procee dings in the juve nile cou rt. Evidence taken by the juvenile master in hearings scattered over four days fro m April 8 to May 23, 2002, indicated that Thomas lived with Robert for all or most of his life, that Karen, along with two of her four other children, was in and out of the home , sometime s with a new boyfriend, it being entirely unclear when she was there and when she was not. She testified that she had lived most re cently with Thomas in Robert's home from mid-June, 2001 to January, 2002, although there was other evidence indicating that she had left the home in the Fall of 2001. A foster care report filed later in the proceeding stated that, as a result of a CINA case in 1997, Robert had been awarded custody of Thomas and that Thomas had remained with Ro bert thereaf ter. The reco rds relating to a ny CINA or other pro ceeding in 1997 are not included in the record now before us, and there is nothin g in wha t is before us

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to confirm, negate, or explain the stateme nt in that foster care report that, as a result of that proceeding, Robert had been awarded custody of Thomas. 1 Other evidence revealed that DSS had investigated complaints of abuse or neglect on both Karen's and Robert's part, dating back at least to July, 2001, in some of which abuse or neglect was found "indicated." The investigations concerning Robert showed that Karen was aware of the various acts constituting sexual abuse on his part but did nothing to protect the child. On June 18, 2 002, the m aster filed a rep ort in which sh e conclud ed that the p arents were unable or u nwilling to give proper care and attention to Thom as's needs, th at the child needed court intervention, and that he should be removed from the home "because of the inapprop riate sexual conduct of his fathe r, and his mother's failure to intervene to protect the child." While testifying before the master, Karen was asked by the DSS lawyer if she knew

The report, labeled "Child Information Sheet" was prepared by the State Foster Care Program and was attached to the Foster Care Review Board report that was transmitted to the court on September 13, 2002 and stamped as received by the judge on September 20, 2002. That was after the various master's hearings in April and May of 2002, of c ourse, but b efore the c ourt acted o n the maste r's recomm endations in November, 2002. The report states: "The family has a long history with this agency and Tommy was in care once before in 1997 when [Robert] filed an ExParte against Tommy's mother [Karen], and was awarded custody with the provision that DSS visit the home at least every oth er day. [R obert] h ad a pa st sex of fense c onvictio n. The Court dismissed both the Shelter and CINA petitions and Tomm y has rem ained w ith his fa ther."

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who Thomas's father was, and she responded, "Well, the way Tommy looks and change and everything, I believe that [Roy H.] is the gentlem an that's in the back with the red shirt on may be . . . ." (Emphasis added). Based apparently on that one equivocal response and disregarding the 1995 consent order that Karen identified and acknowledged and which was in evidence, the master's own characterization of Robert as Thomas's "father," and the fact that Roy had never claimed to be the father, had no relationship with Thomas, and had indicated no desire to have custody of him, the master included among her several recommendations that "parents shall cooperate and the father sh all submit to paternity testing as scheduled by the [DSS]." The master did not explain, and it is unclear to us, who she meant by "p arents" and "father." T he only fathe r at that point w ould seem to be Rob ert. On June 21, 2002, Robert filed exceptions, compla ining about the proposed CINA finding, the recommendation that Thomas be removed from th e home, a nd the pate rnity testing. Without waiting for those exception s to be heard or any court order to be signed, and notwithstanding that "[t]he proposals and recomm endations o f a master f or juvenile causes do not constitute orders or final action of the court," (M aryland Code, CJP

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