Adoption Overview

• Jurisdiction: Maryland

I. ADOPTION OVERVIEW

A. Introduction

The power to decree adoption is purely statutory and did not exist at common law.² Adoption of a minor or an adult³ and guardianship of a minor with the right to consent to adoption are governed by the Family Law Article, Title 5, Subtitles 3-3B; and the Maryland Rules (hereinafter Md. Rule ___), Title 9, Chapter 100.

There are two kinds of adoptions permitted under the Maryland law: independent adoption and agency adoption.

1. Independent adoption

In an independent adoption, the arrangement for that adoption is not made by a child placement agency.⁴ A license is not required for a parent or grandparent of a child to place the child directly, without the intervention of any person except the recipient of the child, as long as (1) a petition for adoption is filed in court; and (2) the court, by order, sanctions the placement pending final action on the petition.⁵ An independent adoption, therefore, is a direct placement without the intervention of a licensed child placement agency acting as an intermediary. Lawyers, social workers, doctors, etc. may not act as intermediaries matching prospective adoptive parents with birth parents interested in placing for adoption.⁶ The prospective adoptive parents can advertise through online resources, or in written publications, or they can network with family and friends to locate a birth parent interested in making an adoptive placement.

A kind of independent adoption frequently encountered by the practitioner, but not clearly defined by the statutes or the rules, is step-parent adoption.⁷ In one type of step-parent adoption, the new spouse seeks to adopt the natural child from the other spouse's previous marriage or relationship. The rights of the other biological parent may be severed without disturbing the rights of the custodial parent.⁸ The consenting natural parent must provide written consent via a specified form that allows the parent to retain parental rights to the child.⁹ The consent of the non-custodial parent whose parental rights are being terminated is required. If that parent does not consent and files timely notice of objection to the adoption, it is very difficult, but not impossible, to terminate parental rights. Fam. Law § 5-3B-22 provides criteria that the petitioner must meet in order for the court to terminate parental rights over the objection of a biological parent.

a. Independent adoption under Fam. Law § 5-3B-27 (adoption by Spouse of Prospective Adoptee's Mother; conception by means of assisted reproduction)¹⁰

When a child is conceived through assisted conception, and the conception or birth is during the marriage, the spouse of a biological mother may wish to go beyond the marital presumption of parentage¹¹ to formally solidify parental rights through an adoption. Similarly, an individual who, together with the child's mother, consents to and plans for the conception of the child through assisted reproduction, and who has agreed to parent the child together with the mother, will benefit by obtaining legally-sanctioned parental rights to that child. Family Law § 5-3B-27 codifies a simplified adoption process under certain, defined circumstances within these constructs. Filing requirements are delineated within the section and include: the Petition for Adoption; the marriage certificate of the petitioner and the child's mother or, if not married, evidence of the parties' shared, express intent of becoming parents through assisted reproduction; the consents of any living parent; and, either the written consent of any known gamete donor or evidence of failure to object after the donor is served with a show cause order. Finally, the court may hold a hearing to determine whether there are others who may be entitled to notice or whose consent is required. Otherwise, the adoption may be granted without a court appearance. The statute specifically allows for the consenting, living parents to retain parental rights in an adoption granted under this section.

2. Agency adoption

Adoptive placements arranged by a child placement agency are "agency" adoptions. A child placement agency means a local department of social services (public agency) or a private agency which engages in the placement of children for adoption in homes or with individuals and is licensed by the Social Services Administration.¹²

A private child placement agency must be licensed to make placements for adoption.¹³ Child placement agencies may make placements of children born in Maryland, born in other states, and born abroad.

Agency adoption is a two-step legal process as opposed to independent adoption which is a one-step legal process. The first step in an agency adoption is termination of the parental rights of the birth parents. After termination of the parental rights of the birth parents, the agency becomes the guardian of the child and is entitled to consent to the adoption as the birth parents would have done.¹⁴ This first step results in "guardianship with the right to consent to adoption or to long term care short of adoption" being granted to the agency. The second step in an agency adoption is adoption by the adopting parents with the agency consenting to the adoption, but only after a statutorily defined wait period of six months. This allows the agency to conduct its own investigation into the well-being of the child post-placement and prepare written reports in accordance with that investigation.¹⁵

In 1996, Maryland began its Foster Care Court Improvement Project (FCCIP) to improve the aspects of the child welfare system. This pertained to children who were in need of protection due to neglect or abuse. This project continues today for children who were committed to the Department of Social Services (DSS)¹⁶ .

B. Governing Law

Effective Jan. 1, 2006, Maryland law pertaining to adoptions was amended. Family Law Title 5, Subtitles 3-3B and Md. Rules Title 9, Chapter 100 govern all adoptions in Maryland filed after Dec. 31, 2005. Subtitle 3 pertains to guardianship by and adoption through the local department of social services. Subtitle 3A pertains to private agency guardianship and adoption. Subtitle 3B governs independent adoption. Maryland law pertaining to adoptions must be read in conjunction with Family Law Title 5, Subtitle 5 (Child Care; Foster Care). Title 5, Subtitles 3-4C applies to all adoptions that were not final as of Dec. 31, 2005.

C. Purpose

The adoption statutes are designed to protect the interests of the three parties to the adoption triad: the natural or birth parents; the adoptee; and the adoptive parents, and to create a legal connection between an adoptive parent and child who are not biologically related.¹⁷ Children are to be protected from unnecessary separation from their natural parents (birth parents) and from adoption by individuals who are unfit for the responsibility.¹⁸ Birth parents are to be protected from hurried or ill-considered agreements to terminate their parental rights.¹⁹ Adoptive parents are to be protected from a future disturbance of their relationship with the child by a natural parent and are to be provided with information about the child and the child's background.²⁰

D. Best Interest Standard

In any adoption case, the best interest of the child is the primary consideration.²¹ The test as to what is in the best interest of the child depends on the facts of each case.²²

The "best interest" standard is used to decide contested adoptions.²³ Where an adoption petition by a third party is opposed by a birth parent, any presumption that it is in the child's best interest to maintain the legal relationship with the birth parent may be rebutted by evidence of unfitness or exceptional circumstances that would render a decision in favor of the birth parent detrimental to the child.²⁴

E. Parties

The parties to an adoption are the adoptee (a child or an adult), the natural parents (birth parents), and the adopting parent or parents. The law governing adoption seeks to protect the child, the natural parents (birth parents), and the adopting parents. The rights of the parents, both natural and adoptive, are not absolute; rather, they are subject to the best interest of the child.²⁵ Adoption is not a contract alone between the parties; it requires judicial determination of the advisability of permitting such action.²⁶ If a court decrees otherwise, it is not within the power of one person to adopt another.²⁷

The U.S. Supreme Court has classified the parental rights of natural parents (birth parents) as "far more precious than property rights" and protected by the due process clause of the Fourteenth Amendment to the U.S. Constitution.²⁸ The Maryland courts have embodied this principle in decisions emphasizing that adoption should not be granted over parental objection unless clearly warranted.²⁹ The Maryland Legislature has codified this principle in Fam. Law § 5-3B-22.

F. Jurisdiction

An equity court has jurisdiction over the adoption of a child. Circuit courts in each jurisdiction hear adoption cases.³⁰

A petitioner's failure to comply with the Interstate Compact on the Placement of Children (ICPC) law does not deprive the state of Maryland of jurisdiction over the adoption.³¹

Circuit courts have both subject matter and personal jurisdiction to determine if an adoption should be granted even though the child has been removed beyond the state boundaries where the proceedings were instituted, the child is no longer domiciled in Maryland, and the petitioners are nonresidents.³²

G. Venue

Venue in adoption cases is proper:

1. where the petitioner is domiciled;

2. where the petitioner has resided for at least 90 days prior to filing the petition;

3. where a licensed child placement agency having legal or physical custody of the person to be adopted is located;

4. where the person to be adopted is domiciled if he or she is related to the petitioner by blood or marriage or is an adult; or

5. where an

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