Md. R. Att'y 300 app 19-C
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.
A. ADVOCATE FOR THE CHILD
GUIDELINE 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.
B. CONSIDERED JUDGMENT
GUIDELINE B1. ASSESSING CONSIDERED JUDGMENT
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:
(1) the child's developmental stage:
(a) cognitive ability,
(b) socialization, and
(c) emotional and mental development;
(2) the child's expression of a relevant position:
(a) ability to communicate with the attorney, and
(b) ability to articulate reasons for the legal position; and
(3) relevant and available reports such as reports from social workers, psychiatrists, psychologists, and schools.
b. A child may be capable of considered judgment even though the child has a significant cognitive or emotional disability.
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.
d. 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.
GUIDELINE 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.
C. CLIENT CONTACT
GUIDELINE C1. GENERAL
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.
GUIDELINE C2. DETERMINATIONS
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:
a. whether the child has considered judgment;
b. whether the presence of the child at the proceedings will be waived, i.e., whether the child wants or needs to be present at the hearing or whether the child will be harmed by appearing in court;
c. the child's position on the agency's petition, court report(s), and other relevant issues, including the permanency plan and placement;
d. the child's position on evidence that may be offered at the hearing, including evidence that may be offered on behalf of the child;
e. the child's legal position at the hearing;
f. whether there is a conflict of interest that requires the attorney to move to withdraw from representing one or all of the clients as, for example, when the attorney represents siblings;
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
h. if the child will be called as a witness, the setting of the child's testimony; for example, whether the child should testify in open court, open chambers, closed chambers, or another location.
GUIDELINE C3. ANCILLARY CONTACT WITH THE CHILD
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.
GUIDELINE C4. CONTINUITY OF REPRESENTATION
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.
D. ATTORNEY INVESTIGATION
GUIDELINE D1. INDEPENDENT INVESTIGATION
The child's attorney should conduct a thorough and independent investigation as necessary or appropriate to the representation. This investigation may include the following:
a. obtaining and reviewing the child's social services, psychiatric, psychological, drug and alcohol, medical, law enforcement, school, and other records relevant to the case;
b. interviewing or observing the child before all court hearings and when apprised of emergencies or significant events affecting the child;
c. interviewing school personnel and other professionals and potential witnesses;
d. interviewing the child's caretaker(s), with the permission of their attorney when necessary, concerning the type of services the child currently receives and the type of services the child needs; and
e. reviewing all relevant evidence.
At each stage of the investigation, the attorney should be familiar with the child's position.
GUIDELINE D2. NON-VERBAL CHILD WITHOUT CONSIDERED JUDGMENT
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.
E. INVOLVEMENT IN THE COURT PROCESS
GUIDELINE E1. PRE-TRIAL STAGES
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.
b. The attorney should explain to the child in a manner appropriate to the child's level of development what is expected to happen before, during, and after each hearing.
c. Consistent with the child's wishes, or the best interests of a child without considered judgment, the attorney should seek to obtain appropriate services, including services for children with physical, mental, or developmental disabilities.
GUIDELINE E2. TRIAL STAGES
a. The attorney should attend all hearings involving the child and participate in all telephone or other conferences with the court unless a particular hearing involves only issues completely unrelated to the child.
b. The attorney should present a case and make appropriate motions, including, when appropriate, introducing independent evidence and witnesses and cross-examining witnesses.
c. During all hearings, the attorney should preserve legal issues for appeal, as appropriate.
d. Consistent with the wishes of a child with considered judgment, the attorney should try to ensure timely hearings and oppose unwarranted continuances or postponements.
GUIDELINE E3. POST-TRIAL STAGES
a. Following the hearing, if consistent with the attorney's representation of the child's position, the attorney should seek a written court order to be given to the parties, containing at a minimum:
(1) required findings of fact and conclusions of law;
(2) the date and time of the next hearing;
(3) required notices;
(4) actions to be taken by each party, including the agency(ies), and custodians;
(5) appropriate statutory timelines; and
(6) the names of the parties who were present at the hearing.
b. The attorney should consider and discuss with the child the possibility and ramifications of an appeal and, when appropriate, take all steps necessary to note an appeal or participate in an appeal filed by another party.
F. ATTORNEY TRAINING
GUIDELINE F1. INITIAL TRAINING OR EXPERIENCE
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.
GUIDELINE F2. SUBSTANCE OF TRAINING
Attorneys who seek to represent children in these proceedings are encouraged to seek training and education in such subjects as:
a. the role of child's attorney;
b. assessing considered judgment;
c. basic interviewing techniques;
d. child development: cognitive, emotional, and mental stages;
e. federal and state statutes, regulations, rules, and case law;
f. overview of the court process and key personnel in child-related litigation;
g. applicable guidelines and standards of representation;
h. family dynamics and dysfunction, including substance abuse and mental illness;
i. related issues, such as domestic violence, special education, mental health, developmental disability systems, and adult guardianships;
j. social service agencies, child welfare programs, and medical, educational, and mental health resources for the child and family; and
k. written materials, including related motions, court orders, pleadings, and training manuals.
G. ROLE OF THE COURT
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:
(1) alert the individual attorney that the attorney is not in compliance with the Guidelines;
(2) alert relevant government agencies or firms that the attorney is not complying with the Guidelines;
(3) alert the entity(ies) responsible for administering the contracts for children's representation that the attorney appointed to represent children is not complying with the Guidelines; and
(4) appoint another attorney for the child.
Md. R. Att'y 300 app 19-C