Top court expands right to counsel

From today’s Daily Record: The right of criminal defendants to be represented by counsel extends to initial bail hearings, Maryland’s top court unanimously ruled Wednesday.

In its 7-0 decision, the Court of Appeals noted a defendant at a bail hearing before a district commissioner stands a similar chance to being incarcerated as he or she does at a trial before a judge, which already carries the statutory and constitutional right to counsel.

“[W]henever a Commissioner determines to set bail, the defendant stands a good chance of losing his or her liberty, even if only for a brief time,” Judge Mary Ellen Barbera wrote in the court’s majority opinion. “Furthermore, the likelihood that the commissioner will give full and fair consideration to all facts relevant to the bail determination can only be enhanced by the presence of counsel.”

By a 5-2 vote, the high court added that the right of defendants to counsel at bail hearings was to take effect immediately. In so ruling, the court rejected a request from the state public defender’s office for a stay so that it could secure the necessary state funding and additional personnel to provide legal representation at bail hearings.

Abused children entitled to adjudicatory hearing, top court rules

The Court of Appeals held yesterday that  child alleged to be a child in need of assistance (CINA) should have been afforded an adjudicatory hearing for the consideration of allegations of neglect in a CINA petition, notwithstanding a request for dismissal by the local department of social services (DSS) that was made with the consent of the child’s parents. The juvenile court erred in ruling that DSS, as the CINA petitioner, had a unilateral right to dismiss its petition, over the child’s objection and hearing request. This ruling was error in light of Maryland Code, the top court held.

The ruling is being hailed as a major victory for abused and neglected children–and for Maryland Legal Aid, which represented the client, Natasha B.

“It stands for the premise the DSS can not unilaterally dismiss a case over the objection of the child,” said Joan Little, chief attorney of Child Advocacy Unit in Baltimore.  “The case clarifies that once a petition is filed with the court, the court then takes on the duty to protect the interests of children which stems from the court’s parens patriae jurisdiction.  Once the court has jurisdiction, it must make findings as to the truth of the allegations in the petition.  If the allegations are true, the court may go on to find the child CINA and issue an order including a designation of placement and any necessary services.  If the allegations are not true, the court may then dismiss the case.”

“The decision in Najasha B. will result in the end of the court’s practice of accepting the DSS’ requests for dismissal and it requires the court to have a full hearing on the merits of every case to determine whether the alleged facts are true,” Little continued. “A judicial determination of the truth of the allegations in a case affords greater protection for our child clients than the dismissal of a case by the department that may be based on a policy that does not support the best interests of the child before the court.

“Even children who do not wish to be in the court system benefit from the court’s resolution of the truth of the allegations, because once adjudicated, those facts can not be re-litigated if the child’s case comes to the attention of the court a second time,” Little added.

The case, In Re: Najasha B., was handled by staff attorney Meredith Esders.

Homeowners get tools to fight foreclosure

Maryland’s top court has adopted new foreclosure procedure rules that requires lenders to notify homeowners and any guarantors that a foreclosure action has been filed. “For the first time, the door to the courthouse is now open to homeowners in foreclosure,” said Foreclosure Legal Assistance Project attorney Kathleen Skullney. “The thousands of Marylanders caught in the shoddy, negligent, or outright fraudulent mortgage products that have thrown them into default will be able to raise any illegalities in the process or the underlying loan as defenses to the foreclosure.

“Equally important, these homeowners no longer be barred by their inability to post a bond,” Skullney continued. “Furthermore, the homeowner can ask the court to stay the foreclosure if the property is involved in any collateral court proceeding, such as divorce. These are significant changes that go a long way toward balancing the foreclosure procedure, which by definition is ‘equitable’ in nature. These changes bring equity much closer to reality.”

The Court of Appeals voted yesterday to adopt the changes as proposed and made the effective date May 1.

There are several significant changes, including expanded definitions and notification requirements aimed at tenants. The most important and exciting change is the addition of new Rule 14-211 which allows any interested party to raise legal defenses to the foreclosure sale in a motion to stay/dismiss. The legal defenses include challenges to the validity of the loan or right to accelerate, or a collateral proceeding that involves the property. The rule also allows for limited discovery and does away with the onerous bond requirement for posting the entire amount of the debt.

Another small, but important change is the requirement that “occupants” get notices of the proceeding and sale. “This is the first time in Maryland that the plight of innocent tenants in a foreclosed property is procedurally recognized,” Skullney said. “At the very least, tenants will be able to avoid being thrown out of their homes without warning.”

The changes specific to foreclosure are identified as Category 1 in the 160th Rules Committee Report which can be found on the Judiciary website.