Maryland Family Law Section 5-323

CAUTION: READ FULL TEXT OF SECTION FOR SPECIAL NOTE

      (a)      (1)      Subject to paragraph (2) of this subsection, in a proceeding for an adoption or guardianship, unless the public defender is required to provide representation, the court shall appoint separate counsel to represent:

                  (i)      the individual to be adopted, if the consent of the individual to be adopted is required and the individual has a disability that renders the individual incapable of consenting and otherwise effectively participating in the proceedings;

                  (ii)      a natural parent who has a disability that renders the natural parent incapable of consenting and effectively participating in the proceedings;

                  (iii)      a minor parent; and

                  (iv)      in an involuntary termination of parental rights, an individual who is the subject of the proceeding.

            (2)      In any action in which payment for the services of a court-appointed attorney for a child is the responsibility of the local department of social services, unless the court finds that it would not be in the best interests of the child, the court shall:

                  (i)      appoint an attorney who has contracted with the Department of Human Resources to provide those services; and

                  (ii)      in an action in which an attorney has previously been appointed, strike the appearance of the attorney previously appointed and appoint the attorney who is currently under contract with the Department of Human Resources.

      (b)      The public defender shall represent:

            (1)      in an involuntary termination of parental rights, an indigent parent; and

            (2)      in a hearing under § 5-319 of this subtitle, an indigent natural parent who has not waived the right to receive notice of the child's status.

      (c)      To determine whether an individual whose consent is required has a disability that renders the individual incapable of consenting and otherwise effectively participating in the proceedings, the court, on its own motion or on motion of a party, may order an examination of the individual.

      (d)      Counsel appointed under this section may be compensated for reasonable fees, as approved by the court. The court may assign the costs among the parties as the court considers appropriate.

      (e)      (1)      An attorney or firm representing the adoptive parent or child placement agency may not represent the natural parent in the same adoption proceeding.

            (2)      An attorney or firm representing the natural parent may not represent the adoptive parent or child placement agency in the same adoption proceeding.

** SPECIAL NOTE: EFFECTIVE - JANUARY 1, 2006 - CHAPTER 464 - 2005 **

      (a)      In this section, "drug" means cocaine, heroin, or a derivative of cocaine or heroin.

      (b)      If, after consideration of factors as required in this section, a juvenile court finds by clear and convincing evidence that terminating the rights of a parent is in a child's best interests, the juvenile court may grant guardianship of the child without consent otherwise required under this subtitle and over the child's objection.

      (c)      A juvenile court need not consider any factor listed in subsection (d) of this section in determining a child's best interests if, after a thorough investigation by a local department, the juvenile court finds that:

            (1)      the identities of the child's parents are unknown; and

            (2)      during the 60 days immediately after the child's adjudication as a child in need of assistance, no one has claimed to be the child's parent.

      (d)      Except as provided in subsection (c) of this section, in ruling on a petition for guardianship of a child, a juvenile court shall give primary consideration to the health and safety of the child and consideration to all other factors needed to determine whether terminating a parent's rights is in the child's best interests, including:

            (1)      (i)      all services offered to the parent before the child's placement, whether offered by a local department, another agency, or a professional;

                  (ii)      the extent, nature, and timeliness of services offered by a local department to facilitate reunion of the child and parent; and

                  (iii)      the extent to which a local department and parent have fulfilled their obligations under a social services agreement, if any;

            (2)      the results of the parent's effort to adjust the parent's circumstances, condition, or conduct to make it in the child's best interests for the child to be returned to the parent's home, including:

                  (i)      the extent to which the parent has maintained regular contact with:

                        1.      the child;

                        2.      the local department to which the child is committed; and

                        3.      if feasible, the child's caregiver;

                  (ii)      the parent's contribution to a reasonable part of the child's care and support, if the parent is financially able to do so;

                  (iii)      the existence of a parental disability that makes the parent consistently unable to care for the child's immediate and ongoing physical or psychological needs for long periods of time; and

                  (iv)      whether additional services would be likely to bring about a lasting parental adjustment so that the child could be returned to the parent within an ascertainable time not to exceed 18 months from the date of placement unless the juvenile court makes a specific finding that it is in the child's best interests to extend the time for a specified period;

            (3)      whether:

                  (i)      the parent has abused or neglected the child or a minor and the seriousness of the abuse or neglect;

                  (ii)      1.      A.      on admission to a hospital for the child's delivery, the mother tested positive for a drug as evidenced by a positive toxicology test; or

                        B.      upon the birth of the child, the child tested positive for a drug as evidenced by a positive toxicology test; and

                        2.      the mother refused the level of drug treatment recommended by a qualified addictions specialist, as defined in § 5-1201 of this title, or by a physician or psychologist, as defined in the Health Occupations Article;

                  (iii)      the parent subjected the child to:

                        1.      chronic abuse;

                        2.      chronic and life-threatening neglect;

                        3.      sexual abuse; or

                        4.      torture;

                  (iv)      the parent has been convicted, in any state or any court of the United States, of:

                        1.      a crime of violence against:

                        A.      a minor offspring of the parent;

                        B.      the child; or

                        C.      another parent of the child; or

                        2.      aiding or abetting, conspiring, or soliciting to commit a crime described in subitem 1 of this item; and

                  (v)      the parent has involuntarily lost parental rights to a sibling of the child; and

            (4)      (i)      the child's emotional ties with and feelings toward the child's parents, the child's siblings, and others who may affect the child's best interests significantly;

                  (ii)      the child's adjustment to:

                        1.      community;

                        2.      home;

                        3.      placement; and

                        4.      school;

                  (iii)      the child's feelings about severance of the parent-child relationship; and

                  (iv)      the likely impact of terminating parental rights on the child's well-being.

      (e)      (1)      A juvenile court shall consider the evidence under subsection (d)(3)(i) and (ii) of this section as to a continuing or serious act or condition and may waive a local department's obligations for services described in subsection (d)(1) of this section if, after appropriate evaluation of efforts made and services offered, the juvenile court finds by clear and convincing evidence that a waiver is in the child's best interests.

            (2)      A juvenile court may waive a local department's obligations for services described in subsection (d)(1) of this section if the juvenile court finds by clear and convincing evidence that one or more of the acts or circumstances listed in subsection (d)(3)(iii), (iv), or (v) of this section exists.

            (3)      If a juvenile court waives reunification efforts under § 3-812(d) of the Courts Article, the juvenile court may not consider any factor under subsection (d)(1) of this section.

      (f)      If a juvenile court finds that an act or circumstance listed in subsection (d)(3)(iii), (iv), or (v) of this section exists, the juvenile court shall make a specific finding, based on facts in the record, whether return of the child to a parent's custody poses an unacceptable risk to the child's future safety.

      (g)      If a parent has consented to guardianship in accordance with § 5-320(a)(1)(iii)1 of this subtitle, the loss of parental rights shall be considered voluntary.