Right to counsel

Children in Child in Need of Assistance (CINA) proceedings are entitled to appointed counsel, as per Md. Code Ann. Cts. & Jud. Proc. § 3-813(a). This includes the right to be represented on appeal. In re Sophie S., 891 A.2d 1125, 1126 n.3 (Md. Ct. App. 2006).

The court shall select the appointed attorney from legal vendors with whom the Department of Human Resources has contracted to provide those services. Md. Code Ann., Cts. & Jud. Proc. § 3-813(d)(2)(i).

In terms of standards of practice, an appendix to the Maryland Rules governs the role of the attorney representing the child. See MD. RULE Appx.: Guidelines of Advocacy for Attorneys Representing Children in CINA and Related TPR and Adoption Proceedings. The attorney must first determine whether the child has “considered judgment,” defined as “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 [to the attorney].” Id. at B1. If, after evaluating a set of factors, the attorney concludes that the child has considered judgment, the attorney must advocate a position consistent with the child’s wishes in the matter. However, if the attorney determines that the child does not have considered judgment, the attorney must advocate a position consistent with the best interests of the child.

This assessment is an ongoing one, and a child with considered judgment at one time may not have it at a later time, and vice versa. At each proceeding, the attorney must inform the court whether the child has considered judgment, and must make the child’s wishes part of the record even if the attorney does not advocate the child’s position. The attorney may not compromise the attorney-client privilege, regardless of the child’s considered judgment. Id.

Because the attorney may not necessarily represent the child’s expressed wishes, we have classified the right to counsel as “qualified.”

To learn more about the models of children’s representation across the country, see National Association of Counsel for Children (NACC), CHART: State Models of Children’s Legal Representation (2023).