Maryland

Maryland[1]

Last edited: November 2005

Summary and Analysis

In Maryland, counsel is appointed in all abuse, neglect and abandonment proceedings filed in Juvenile Court. Children are considered parties to these cases. The Legal Aid Bureau of Maryland is the primary contractor for these services. In practice, counsel for children are obligated to do a thorough assessment of the child's wishes and clarification of those wishes, taking into account the child's age, developmental abilities and environmental factors. The attorney’s responsibility is to represent the expressed interest of the child so long as he or she has considered judgment. It is the policy of the Legal Aid Bureau, in cases where counsel substitutes judgment for the child, that counsel must clarify this to the child.

Some jurisdictions in Maryland have CASA programs. CASAs take a best interest of the child perspective. They are appointed upon request by a party or the court. They monitor the Department of Social Services to ensure that the child gets the services he or she needs. When the Court appoints an attorney to be a Guardian Ad Litem, the responsibility of the individual is to identify the best interest of the child, and then act based on those interests but not necessarily as those interests would explicitly direct.

Regarding Guardian Ad Litem compensation, the attorney appointed to represent children in a legal proceeding is entitled to compensation as determined by the chancellor. Often, the costs of the attorney are assessed against the party to the action. Guardian Ad Litem’s fees are not covered under child support but may be assessed against any party by the court, or they may be funded by the government.

Sources of Law

Statutes

Maryland Statutes § 3-813[2] (Assistance of counsel )

(a) 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.

(b) 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.

(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.

(d)(1) A child who is the subject of a CINA petition shall be represented by counsel.

(2) Unless the court finds that it would not be in the best interests of the child, the court shall:

(i) Appoint an attorney with whom the Department of Human Resources has contracted to provide those services, in accordance with the terms of the contract; and

(ii) If another attorney has previously been appointed, strike the appearance of that attorney.

(e) In addition to, but not instead of, the appointment of an attorney under this section, the court, in any action, may appoint an individual provided by a Court-Appointed Special Advocate Program created under § 3-830 of this subtitle.

(f) The court may assess against any party reasonable compensation for the services of an attorney appointed to represent a child in an action under this subtitle.

Maryland Statutes § 3-821[3] (Parties' right to counsel )

(a) ... a party is entitled to the assistance of counsel at every stage of any proceeding under this subtitle.

Maryland Statutes § 3-830[4] (Special Advocates )

(a)(1) In this section the following words have the meanings indicated.

(2) "Advocate" or "C.A.S.A." means a Court-Appointed Special Advocate.

(3) "Program" means a Court-Appointed Special Advocate service that is created in a county with the support of the court for that county to provide trained volunteers whom the court may appoint to:

(i) Provide the court with background information to aid it in making decisions in the child's best interest; and

(ii) Ensure that the child is provided appropriate case planning and services.

(b)(1) There is a Court-Appointed Special Advocate Program.

(2) The purpose of the Program is to provide volunteers whose primary purpose is to ensure the provision of appropriate service and case planning consistent with the best interests of a child who is the subject of:

(i) A CINA proceeding;

(ii) A custody and guardianship proceeding under § 3-819.2 of this subtitle; or

(iii) A guardianship review proceeding under Title 5, Subtitle 3 of the Family Law Article.

(3) The Administrative Office of the Courts:

(i) Shall administer the Program;

(ii) Shall report annually to the Chief Judge of the Court of Appeals and, subject to § 2-1246 of the State Government Article, to the General Assembly regarding the operation of the Program; and

(iii) May adopt rules governing the implementation and operation of the Program including funding, training, selection, and supervision of volunteers.

(d) An advocate or a member of the administrative staff of the Program is not liable for an act or omission in providing services or performing a duty on behalf of the Program, unless the act or omission constitutes reckless, willful, or wanton misconduct or intentionally tortious conduct.

Maryland Statutes § 3-834[5] (Appointment of attorney or advocate to represent child's interest)

(a) In addition to any requirements relating to the appointment of counsel for children, ... where it appears to the court that the protection of the rights of a child requires independent representation, the court may, upon its own motion, or the motion of any party to the action, appoint an attorney to represent the interest of the child in that particular action. Such actions include but are not limited to those involving a child in need of assistance, child in need of supervision, delinquent child, or mentally handicapped child.

…

(c) In addition to, but not instead of, the appointment of an attorney under subsection (a) ... the court, in any action, may appoint an individual provided by the Court Appointed Special Advocate Program established under s 3-834.1 of the subtitle.

Maryland Statutes § 3-834.1[6] (Court-Appointed Special Advocate Program)

…

(a)(3) "Program" means a court-appointed special advocate service that is created ... for that county to provide trained volunteers ... to:

(i) Provide it with background information to aid the court in making decisions in the child's best interest; and

(ii) Ensure that the child is provided appropriate case planning and services.

…

(b)(2) The purpose of the Program is to provide volunteers whose primary purpose is to insure that children ... are provided with appropriate service and case planning that is in their best interests.

Cases

In re Christopher C.[7]

The court held that the child is a party to a termination of parental rights proceeding and has an independent right to object and to a hearing.

In re Blaemire[8]

The court held that “Under Maryland law, there are three functions that attorney appointed by court for minors can perform: he or she may exercise certain waivers of child's privileges, act as guardian ad litem, and serve as court's investigator.”

Miller v. Bosley[9]

The court held that a “Court-appointed attorney representing child in action in which custody, visitation, or support is contested may exercise certain waivers of child's privileges, act as guardian at litem, and serve as court's investigator; extent of attorney's role is dictated by the court.”

Leary v. Leary[10]

The court held that “When court appoints attorney to be guardian ad litem for child in custody matter, attorney’s duty is to make determination and recommendation after pinpointing what is in best interest of child.”

Regulations

Guidelines of Advocacy for Attorneys Representing Children in CINA and Related TPR and
Adoption Proceedings[11]

A. Role of the Child’s Counsel

The attorney should determine whether the child has considered judgment as defined in Guideline B1. If the child has considered judgment, the attorney should so state in open court and should advocate a position consistent with the child’s wishes in the matter. If the attorney determines that the child lacks considered judgment, the attorney should so inform the court. The attorney should

then advocate a position consistent with the best interests of the child as defined in Guideline B2.

…

B2. Best Interest Standard

When an attorney representing a child determines that the child does not have considered judgment, the attorney should advocate for services and safety measures that the attorney believes to be in the child=s best interests, taking into consideration the placement that is the least restrictive alternative. The attorney may advocate a position different from the child’s wishes if the attorney finds that

the child does not have considered judgment at that time. The attorney should make clear to the court that the attorney is adopting the best interest standard for that particular proceeding and state the reasons for adopting the best interest standard as well as the reasons for any change from a previously adopted standard of representation. Even if the attorney advocates a position different from the child’s wishes, the attorney should ensure that the child’s position is made a part of the

record.

Local Contact Information

Melanie Klein

Metropolitan Maryland Office

Legal Aid Bureau, Inc.

6811 Kenilworth Ave, Suite 500

Calvert Building, Riverdale, MD 20737

Mklein@mdlab.org

Additional Resources and Links

http://www.marylandcasa.org/