Adoption

• Jurisdiction: Maryland

XII. ADOPTION

A. The Uncontested Adoption Case

Although the technical procedures for formalizing an adoption are reasonably simple, uncontested adoptions are closely scrutinized by the courts to determine if there is a pattern of referrals from one particular institution, doctor, or lawyer, a pattern which creates a suspicion of impropriety.

Family Law § 5-362(a)³⁹⁶ provides that,

(a) Except as otherwise provided by law, a person may not charge or receive, from or for a parent or prospective adoptive parent, any compensation for a service in connection with:

(1) placement of an individual to live with a preadoptive parent, as defined in § 3-823(i)(1) of the Courts Article; or

(2) an agreement for custody in contemplation of adoption.

Specific requirements are set forth regarding "independent" adoptions.³⁹⁷ An independent adoption is one in which placement is sought by someone other than a child placement agency. In an independent adoption, a parent (most often the mother), rather than the state, selects the adopting parents.³⁹⁸ Various needs are met by private placement. Parental confidentiality, secrecy, the freedom to select adoptive parents, and payment for pre and post-natal care may better be achieved in an independent adoption. For adopting parents, independent adoption may offer a faster alternative than agency placement. As in agency placements, a decree of adoption without parental consent is allowed only if certain conditions are met by "clear and convincing evidence."³⁹⁹See Section XII.C.1. Agency Adoptions.

B. Procedure, Jurisdiction & Venue

The procedures for adoption are set forth in Md. Rule 9-101-9-113 and Fam. Law §§ 5-301-5-330; Fam. Law §§ 5-3A-01-5-3A-45; and Fam. Law §§ 5-3B-01-5-3B-32. Circuit Courts have jurisdiction under Fam. Law § 1-201. Venue is governed by Cts. & Jud. Proc. § 6-203(e).

The venue for a proceeding for adoption of a person who is physically within the state or subject to the jurisdiction of an equity court is in a county in which:

(i) the petitioner is domiciled;

(ii) the petitioner has resided for at least 90 days preceding the filing of the petition;

(iii) a licensed child placement agency having legal or physical custody of the person to be adopted is located;

(iv) the person to be adopted is domiciled, if the individual is related to the petitioner by blood or marriage or is an adult; or

(v) an equity court has continuing jurisdiction over the custody of the individual.

The Maryland General Assembly has enacted a comprehensive statutory scheme to address those situations where a child is at risk because of his or her parents' inability to unwillingness to care for him or her. Title 5 of the Family Law Article of the Maryland Code governs the custody, guardianship, adoption, and general protection of children who because of abuse or neglect come within the purview of the Department of Human Resources. There is necessary interplay between the child welfare statutes, Fam. Law §§ 5-501-5-559, under juvenile jurisdiction, and the adoption statutes, Fam. Law §§ 5-301-5-330, 5-3A-01-5-3A-45, 5-3B-01-5-3B-32, under equity jurisdiction.

Subtitle 7 of Title 5 of the Family Law Article concerns the protection of children who have been abused or neglected by their biological parents. Pursuant to this subtitle, certain authority figures, such as health practitioners, police officers, educators, and human service workers are required to report cases of suspected abuse or neglect.⁴⁰⁰ The local department of social services is then required to investigate such reports.⁴⁰¹ Thereafter, in accordance with its findings and treatment plan, the local department is required to render appropriate services in the best interests of the child, including, when indicated, petitioning the juvenile court to commit the child to its care and custody.⁴⁰² To adjudicate a CINA, the Department must prove its allegations by a preponderance of the evidence and "may no longer prove its case in a contested hearing by submitting on shelter care reports."⁴⁰³ An emergency shelter care report, incorporated into the Petition by reference, cannot provide the sole support at a contested adjudication hearing.⁴⁰⁴

If the juvenile court determines that the child is a child in need of assistance (CINA), it has discretion to order that the child be committed to the local department "on terms that the court considers appropriate."⁴⁰⁵

The court's order vesting legal custody of the child "is effective for an indeterminate period of time," but ends after the child turns 21.⁴⁰⁶ Such out-of-home placement can include placement in a licensed foster home,⁴⁰⁷ or placement with relatives.

During the 1970's, nationwide concern with "foster care drift" resulted in the enactment by Congress of Pub. L. No. 96-272, the "Adoption Assistance and Child Welfare Act of 1980," codified at 42 U.S.C. §§ 670-679 (1988). One of the important purposes of this law was to eliminate foster care drift by requiring states to adopt statutes to facilitate permanent placement for children as a condition to receiving federal funding for their foster care and adoption assistance programs.

Under the federal act, a state is required, among other things, to provide a written case plan for each child for whom the state claims federal foster care maintenance payments.⁴⁰⁸ The case plan must include a description of the home or institution into which the child is placed, a discussion of the appropriateness of the placement, and a description of the services provided to the parents, child, and foster parents to facilitate return of the child to his or her own home or to establish another permanent placement for the child.⁴⁰⁹ The state must also implement a case review system that provides for administrative review of the case plan at least every six months and judicial review no later than twelve months after placement and periodically thereafter.⁴¹⁰ The purpose of the judicial review is to determine the future status of the child, including whether the child should be returned to its biological parents, continued in foster care for a specified period, placed for adoption, or because of the child's special needs or circumstances, continued in foster care on a long term basis.⁴¹¹

Maryland receives considerable federal funds pursuant to this Act. Accordingly, the Maryland General Assembly has enacted legislation to comply with the federal requirements. Under Maryland's statutory scheme, for those children committed to a local department of social services, the department is required to develop and implement a permanency plan that is in the best interests of the child, to be reviewed at least every six months.⁴¹²

In re J.R.⁴¹³ provides a further history of the Federal and Maryiand legislative history concerning the health and safety of children.

C. Adoption Without the Consent of Natural Parents

1. Agency adoptions

A decree of adoption shall be preceded by a petition for guardianship except as provided in Fam. Law § 5-331.⁴¹⁴ Only the individual who would be subject to guardianship or a local department may file for the agency to be granted guardianship.⁴¹⁵

A decree of adoption or guardianship without the required parental consents may be granted if the court finds by clear and convincing evidence that the parent is unfit or that exceptional circumstances make the continued parental relationship detrimental to the child's best interests.⁴¹⁶

Unless the identity of the child's parent is unknown and no one has claimed to be the parent within two months after a court decides a child is a CINA,⁴¹⁷ the court shall consider the factors listed in Fam. Law § 5-323(d) to determine whether terminating a parent's rights is in the child's best interest. The primary consideration is the "health and safety of the child."⁴¹⁸ A short summary of other factors includes:

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

(2) Parent's efforts to adjust their circumstances to make it in the child's best interest to return to the parent's home;

(3) Whether there was abuse or neglect of the child and the extent of such abuse or neglect;

(4) Whether the child or mother tested positive for a drug in a toxicology test or the mother refused the level of drug treatment recommended by qualified addiction specialists;

(5) The child's emotional ties and feelings toward its parents, siblings, or others who may affect the child's best interests.⁴¹⁹

2. Parental unfitness/extraordinary harm requirement

Either parental unfitness or exceptional circumstances must be made in order to terminate a parent's rights to their child.⁴²⁰ In In re Adoption/Guardianship of Rashawn H., the Court reversed a trial court's decision terminating the appellant-mother's right to her two children. The Court stated that the trial courts must relate the findings it made with respect to the statutory factors to the presumption favoring continuation of the parental rights or to another exceptional circumstances that would rebut the presumption.

On remand, the court will have to make clear and specific findings with respect to each of the relevant statutory factors and, to the extent that any amalgam of those findings lead to a conclusion that exceptional circumstances exist sufficient to rebut the presumption favoring the parental relationship, explain clearly how and why that is

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