Representation of Children in Child Abuse and Neglect Proceedings - Maryland

Making The Appointment

Citation: Courts & Jud. Proc. § 3-813

A child who is the subject of a child in need of assistance (CINA) petition shall be represented by counsel.

Unless the court finds that it would not be in the best interests of the child, the court shall do the following:

• Appoint an attorney with whom the Department of Human Resources has contracted to provide those services, in accordance with the terms of the contract
• If another attorney has previously been appointed, strike the appearance of that attorney

The Use of Court-Appointed Special Advocates (CASAs)

Citation: Courts & Jud. Proc. § 3-813

In addition to, but not instead of, the appointment of an attorney, the court, in any action, may appoint an individual provided by a court-appointed special advocate (CASA) program created under § 3-830.

Qualifications/Training

Citation: Court Rules, Tit. 19, Appx. 19-C

Before accepting a case, an attorney who does not have sufficient experience in providing legal representation to children in CINA 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 lawyer that the attorney has sufficient skill and experience in child advocacy. The attorney should participate in available training and education, including in-house training.

Lawyers who seek to represent children in these proceedings are encouraged to seek training and education in such subjects as the following:

• The role of a child's attorney
• Assessing considered judgment
• Basic interviewing techniques
• Child development, including cognitive, emotional, and mental stages
• Federal and State statutes, regulations, rules, and case law
• Overview of the court process and key personnel in child-related litigation
• Applicable guidelines and standards of representation
• Family dynamics and dysfunction, including substance abuse and mental illness
• Related issues such as domestic violence, special education, mental health, developmental disability systems, and adult guardianships
• Social service agencies, child welfare programs, and medical, educational, and mental health resources for the child and family
• Written materials, including related motions, court orders, pleadings, and training manuals

Specific Duties

Citation: Courts & Jud. Proc. § 3-830; Court Rules, Tit. 19, Appx. 19-C

The CASA program is created in a county with the support of the court for that county to provide trained volunteers whom the court may appoint to do the following:

• Provide the court with background information to aid it in making decisions in the child's best interests
• Ensure that the child is provided appropriate case planning and services

In court rules: 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 child. If the child can express a reasoned choice, the child is regarded as having considered judgment.

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.

At every interview with the child, the attorney should assess whether the child has considered judgment regarding each relevant issue. In making the determination, the attorney may seek guidance from professionals, family members, school officials, and other concerned persons.

An attorney should be sensitive to cultural, racial, ethnic, or economic differences between the attorney and the child, because such differences may inappropriately influence the attorney's assessment of whether the child has considered judgment.

When the attorney 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 interests standard for that particular proceeding and state the reasons for adopting the best interests standard and 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.

How the Representative Is Compensated

Citation: Courts & Jud. Proc. § 3-813

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.