APPENDIX 19-C. GUIDELINES OF ADVOCACY FOR ATTORNEYS REPRESENTING CHILDREN IN CINA AND RELATED T...
West's Annotated Code of MarylandMaryland Rules
MD Rules Attorneys, Appendix 19-C
APPENDIX 19-C. GUIDELINES OF ADVOCACY FOR ATTORNEYS REPRESENTING CHILDREN IN CINA AND RELATED TPR AND ADOPTION PROCEEDINGS
STATEMENT OF THE ISSUE
The Maryland Foster Care Court Improvement Project has developed these Guidelines of Advocacy for Attorneys Representing Children in Child in Need of Assistance (CINA) and Related Termination of Parental Rights (TPR) and Adoption Proceedings. The court's ability to protect the interests of children rests in large part upon the skill and expertise of the advocate. An attorney should represent a child who is the subject of a CINA or a related TPR or adoption proceeding in accordance with these Guidelines. Nothing contained in the Guidelines is intended to modify, amend, or alter the fiduciary duties that an attorney owes to a client pursuant to the Maryland Attorneys' Rules of Professional Conduct. For purposes of these Guidelines, the word “child” refers to the client of the attorney.
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.
The attorney should advocate the position of a child unless the attorney reasonably concludes that the child is unable to express a reasoned choice about issues that are relevant to the particular purpose for which the attorney is representing the child. If the child has the ability to express a reasoned choice, the child is regarded as having considered judgment.
a. To determine whether the child has considered judgment, the attorney should focus on the child's decision-making process, rather than the child's decision. The attorney should determine whether the child can understand the risks and benefits of the child's legal position and whether the child can reasonably communicate the child's wishes. The attorney should consider the following factors when determining whether the child has considered judgment:
c. At every interview with the child, the attorney should assess whether the child has considered judgment regarding each relevant issue. In making a determination regarding considered judgment, the attorney may seek guidance from professionals, family members, school officials, and other concerned persons. The attorney should also determine if any evaluations are needed and advocate them when appropriate. At no time shall the attorney compromise the attorney-client privilege.
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.
The attorney should meet in the community with the child at each key stage of the representation to conduct a meaningful interview. The attorney should meet the child in preparation for a hearing, regardless of the child's age or disability, in an environment that will facilitate reasonable attorney-client communications. The attorney is encouraged to meet with the child in multiple environments, including the child's school, placement, each subsequent placement, or home.
When face-to-face contact with a child is not reasonably possible or not necessary, the attorney still should have meaningful contact with the child. These situations may include: (a) a child placed out-of-state; (b) a teenager with whom the attorney has established a sufficient attorney-client relationship; or (c) a child under the age of three at the shelter care proceeding. The attorney, however, should have face-to-face contact with the child prior to the adjudication hearing.
When a communication with the child requires a sign or spoken language interpreter, the attorney should try to use the services of a court-related interpreter or other qualified interpreter other than the child's family, friends, or social workers.
After conducting one or more interviews with a child and giving reasonable consideration to the child's age and cognitive and emotional development, the attorney should determine, at a minimum:
g. whether the child should be called as a witness, after considering such factors as (1) the child's age, (2) the child's cognitive and emotional development, (3) the child's need or desire to testify, (4) the likelihood of emotional trauma or repercussions to the child, (5) the necessity of for the child's direct testimony, and (6) the availability of other evidence, hearsay exceptions, proffers, or stipulations that can substitute for direct testimony; and
The attorney should have meaningful contact with the child at least every six months, even if a court hearing is not scheduled. The attorney should seek to obtain notice of emergencies and significant events involving the child between court hearings. Upon receiving notice of such an event (for example, a change of placement), the attorney should interview or observe the child within a reasonable time. As necessary or appropriate to the representation, the attorney should attend treatment, placement, and administrative hearings, and other proceedings, as well as school case conferences or staffing conferences concerning the child.
The attorney should continue to represent the child after the initial court proceeding, including at disposition review hearings, permanency planning hearings, and related TPR and adoption proceedings.
The child's attorney should conduct a thorough and independent investigation as necessary or appropriate to the representation. This investigation may include the following:
For a non-verbal child who does not have considered judgment, the attorney should observe that child in the child's environment and conduct a thorough investigation. The investigation should include, at a minimum, contact with the child's caretaker, teacher, physician, and caseworker to obtain information about the status of the child.
a. If the child has considered judgment, the attorney should develop a position and strategy concerning every relevant aspect of the proceedings. When developing the child's legal position, the attorney should ensure that the child is given advice and guidance and all information necessary to make an informed decision.
Before accepting a case, an attorney who does not have sufficient experience in providing legal representation to children in CINA and related TPR and adoption cases should participate in formal training and education related to this area of practice. The attorney should satisfy the court and, if applicable, the entity responsible for payment of the attorney that the attorney has sufficient skill and experience in child advocacy. The attorney should participate in available training and education, including in-house training.
Attorneys who seek to represent children in these proceedings are encouraged to seek training and education in such subjects as:
If the court becomes aware that an attorney is not following these Guidelines, the court may encourage compliance by taking one or more of the following steps, as appropriate:
[Adopted June 6, 2016, eff. July 1, 2016.]
MD R Attorneys, Appendix 19-C, MD R ATTORNEYS Appendix 19-C
Current with amendments received through May 15, 2022. Some sections may be more current, see credits for details.
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