AMERICAN BAR ASSOCIATION Directory of Law Governing Appointment of Counsel in State Civil Proceedings MARYLAND

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1 AMERICAN BAR ASSOCIATION Directory of Law Governing Appointment of Counsel in State Civil Proceedings MARYLAND Copyright 2017 American Bar Association All rights reserved. American Bar Association Standing Committee on Legal Aid and Indigent Defendants 321 N. Clark Street Chicago, IL Phone: ; FAX: The materials herein may be reproduced, in whole or in part, provided that such use is for informational, noncommercial purposes only and any copy of the materials or portion thereof acknowledges original publication by the American Bar Association and includes the title of the publication, the name of the author, and the legend "Copyright 2017 American Bar Association. Reprinted by permission." Requests to reproduce materials in any other manner should be addressed to: Copyrights and Contracts Department, American Bar Association, 321 N. Clark Street, Chicago, IL 60610; Phone: ; FAX: ; i

2 MARYLAND Table of Contents Preface... 1 Law Addressing Authorization or Requirement to Appoint Counsel in Specific Types of Civil Proceedings 2 1. SHELTER... 2 State Statutes and Court Decisions Interpreting Statutes... 2 Federal Statutes and Court Decisions Interpreting Statutes SUSTENANCE... 2 Federal Statutes and Court Decisions Interpreting Statutes SAFETY AND/OR HEALTH... 3 A. Domestic Violence Protection Order Proceedings... 3 B. Conservatorship, Adult Guardianship, or Adult Protective Proceedings... 3 State Statutes and Court Decisions Interpreting Statutes... 3 State Court Rules and Court Decisions Interpreting Court Rules... 4 C. Civil Commitment or Involuntary Mental Health Treatment Proceedings... 4 State Statutes and Court Decisions Interpreting Statutes... 4 State Court Rules and Court Decisions Interpreting Court Rules... 5 Federal Court Decisions Addressing Constitutional Due Process or Equal Protection... 5 D. Sex Offender Proceedings... 6 E. Involuntary Quarantine, Inoculation, or Sterilization Proceedings... 6 State Statutes and Court Decisions Interpreting Statutes... 6 State Court Rules and Court Decisions Interpreting Court Rules CHILD CUSTODY... 6 A. Appointment of Counsel for Parent State-Initiated Proceedings... 6 State Statutes and Court Decisions Interpreting Statutes... 6 Federal Statutes and Court Decisions Interpreting Statutes... 7 State Court Decisions Addressing Constitutional Due Process or Equal Protection... 7 B. Appointment of Counsel for Parent Privately Initiated Proceedings... 8 State Statutes and Court Decisions Interpreting Statutes... 8 State Court Decisions Addressing Constitutional Due Process or Equal Protection... 9 State Court Decisions Addressing State Constitution's Open Courts Provision State Court Decisions Addressing Incorporation of English Common Law and Statutes C. Appointment of Counsel for Child State-Initiated Proceedings State Statutes and Court Decisions Interpreting Statutes Federal Statutes and Court Decisions Interpreting Statutes D. Appointment of Counsel for Child Privately Initiated Proceedings State Statutes and Court Decisions Interpreting Statutes State Court Rules and Court Decisions Interpreting Court Rules MISCELLANEOUS A. Civil Contempt Proceedings State Statutes and Court Decisions Interpreting Statutes State Court Rules and Court Decisions Interpreting Court Rules State Court Decisions Addressing Constitutional Due Process or Equal Protection ii

3 B. Paternity Proceedings State Court Decisions Addressing Court's Inherent Authority C. Proceedings for Judicial Bypass of Parental Consent for a Minor to Obtain an Abortion D. Relief of Civil Liability During Emergencies State Statutes and Court Decisions Interpreting Statutes E. Marriage Dissolution/Divorce Proceedings State Court Decisions Addressing Constitutional Due Process or Equal Protection Law Addressing Authorization or Requirement to Appoint Counsel in Civil Proceedings Generally Federal Statutes and Court Decisions Interpreting Statutes State Court Rules and Court Decisions Interpreting Court Rules State Court Decisions Addressing State Constitution's Open Courts Provision State Court Decisions Addressing Incorporation of English Common Law and Statutes iii

4 Preface Important Information to Read Before Using This Directory The ABA Directory of Law Governing Appointment of Counsel in State Civil Proceedings (Directory) is a compilation of existing statutory provisions, case law, and court rules requiring or permitting judges to appoint counsel for civil litigants. The Directory consists of 51 detailed research reports one for each state plus D.C. that present information organized by types of civil proceedings. Prior to using the Directory, please read the Introduction, at the Directory's home page, for the reasons behind the development of the Directory, the various sources of authority from which judicial powers to appoint counsel in civil proceedings may derive, and the structure used to organize information within each of the research reports. Terms of Use/Disclaimers This Directory should not be construed as providing legal advice and the ABA makes no warranties concerning the information contained therein, which has been updated to reflect the law through early The Directory does not seek to address all conceivable subsidiary issues in each jurisdiction, but some such issues were researched and addressed, including: notification of right to counsel; standards for waiver of right to counsel; standard of review on appeal for improper denial of counsel at trial; whether "counsel" for a child means a clientdirected attorney or a "best interests" attorney/attorney ad litem; and federal court decisions finding a right to counsel. Similarly, the research did not exhaustively identify all law regarding the issue of compensation of appointed counsel in each jurisdiction, though discussion of such law does appear within some of the reports. The Directory attempts to identify as "unpublished" any court decisions not published within an official or unofficial case reporter. Discussion of unpublished cases appears only for those jurisdictions where court rules currently permit their citation in briefs or opinions. Limitations on the use of unpublished opinions vary by jurisdiction (e.g., whether unpublished cases have value as precedent), and such limits were not exhaustively researched. Users should conduct independent, jurisdiction-specific research both to confirm whether a case is published and to familiarize themselves with all rules relating to the citation and use of unpublished or unreported cases. Acknowledgments This Directory was a multi-year project of the ABA's Standing Committee on Legal Aid and Indigent Defendants (SCLAID). We are indebted to our partner in this project, the National Coalition for a Civil Right to Counsel (NCCRC), for sharing the body of research that was adapted to form the Directory's reports. The Acknowledgments, at the Directory's home page, details additional specific contributions of the many individuals involved in this project. 1

5 Law Addressing Authorization or Requirement to Appoint Counsel in Specific Types of Civil Proceedings 1. SHELTER State Statutes and Court Decisions Interpreting Statutes A person alleging discriminatory housing practices or a person against whom a discriminatory housing practice is alleged may apply for appointed counsel. Md. Code Ann., State Gov't (d). Federal Statutes and Court Decisions Interpreting Statutes The federal Fair Housing Act, contained within Title VIII of the Civil Rights Act of 1968, provides that "[a]n aggrieved person may commence a civil action in an appropriate United States district court or State court." 42 U.S.C (a)(1)(a). Further, "[u]pon application by a person alleging a discriminatory housing practice or a person against whom such a practice is alleged, the court may-- (1) appoint an attorney for such person." 42 U.S.C. 3613(b). 2. SUSTENANCE Federal Statutes and Court Decisions Interpreting Statutes Title VII of the Civil Rights Act of 1964 prohibits employment discrimination. While nearly all Title VII claims are brought in federal court, the U.S. Supreme Court has specified that state courts have concurrent jurisdiction with federal courts for Title VII claims. Yellow Freight System Inc. v. Donnelly, 494 U.S. 820, 826 (1990). Title VII provides that "[u]pon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant." 42 U.S.C. 2000e-5(f)(1). In Poindexter v. FBI, the D.C. Court of Appeals observed: Title VII's provision for attorney appointment was not included simply as an afterthought; it is an important part of Title VII's remedial scheme, and therefore courts have an obligation to consider requests for appointment with care. In acting on such requests, courts must remain mindful that appointment of an attorney may be essential for a plaintiff to fulfill "the role of 'a private attorney general,' vindicating a policy 'of the highest priority.' Once the plaintiff has triggered the attorney appointment provision, 2

6 "courts must give serious consideration" to the plaintiff's request such discretionary choices are not left to a court's 'inclination, but to its judgment; and its judgment is to be guided by sound legal principles.' Furthermore, in exercising this discretion, the court should clearly indicate its disposition of the request for appointment and its basis for that disposition. 737 F.2d 1173, (D.C. Cir. 1984). 3. SAFETY AND/OR HEALTH A. Domestic Violence Protection Order Proceedings No law could be located regarding the appointment of counsel for indigent litigants in domestic violence protection order proceedings. B. Conservatorship, Adult Guardianship, or Adult Protective Proceedings State Statutes and Court Decisions Interpreting Statutes In a protective proceeding involving the property of a disabled person, the court shall appoint an attorney to represent the person, unless he or she already has counsel. Md. Code Ann., Est. & Trusts (b). In a case regarding the appointment of a guardian for an alleged disabled person, the court shall appoint an attorney to represent the alleged disabled person, unless the person has counsel of his or her own. The State shall pay for reasonable attorney's fees for an indigent alleged disabled person in such a case; otherwise the fee shall be paid out of the estate. Md. Code Ann., Est. & Trusts (d). The Maryland Court of Special Appeals construed these statutes to find that the attorney should act as a client-directed attorney, and not as a guardian ad litem. In re Lee, 132 Md. App. 696, , 754 A.2d 426, (Md. Ct. Spec. App. 2000). In a guardianship case about providing emergency protective services: (1) The hearing on a petition for an emergency order for protective services shall be held under the following conditions:... (ii) The person has the right to counsel whether or not he is present at the hearing. Subject to paragraph (2) of this subsection, if the person is indigent or lacks the capacity to waive counsel, the court shall appoint counsel. Where the person is indigent, the State shall pay reasonable attorney's fees. 3

7 ... (2) In any action in which payment for the services of a court-appointed attorney for the person 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 person, the court shall: (i) Appoint an attorney who has contracted with the Department of Human Services to provide those services, in accordance with the terms of the contract; 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 Services, in accordance with the terms of the contract. Md. Code Ann., Est. & Trusts (f). The person who is the subject of an adult guardianship matter also has the right to counsel at the required six-month review hearing held during the pendency of the guardianship, and court-appointed counsel will be provided if he or she is not represented (with no mention of an indigency requirement or who pays for the attorney). Md. Code Ann., Fam. Law (c)(2). State Court Rules and Court Decisions Interpreting Court Rules In a protective proceeding involving the property of a minor or disabled person, the court shall appoint an attorney to represent the person, unless he or she already has counsel. Md. R (a)(1). In a case regarding the appointment of a guardian for an alleged disabled person, the court shall appoint an attorney to represent the alleged disabled person, unless the person has counsel of his or her own. The State shall pay for the attorney's fees for an indigent alleged disabled person in such a case. Md. R (a)(2). C. Civil Commitment or Involuntary Mental Health Treatment Proceedings State Statutes and Court Decisions Interpreting Statutes 4

8 A public defender shall represent an indigent individual in "any other proceeding" where "confinement under a judicial commitment... in a public or private institution may result." Md. Code Ann., Crim. Proc (b)(1)(iv). 1 In Johnson v. Solomon, a federal court, relying in part on Maryland's Juvenile Causes Act (Md. Code Ann., Cts. & Jud. Proc., (formerly 3-821)), established the right to counsel for youth in juvenile mental health commitment hearings, as well as in mandatory six-month reviews for individuals confined to a mental hospital. 484 F. Supp. 278 (D. Md. 1979). State Court Rules and Court Decisions Interpreting Court Rules In Johnson v. Solomon, a federal court, relying in part on Maryland Rule (formerly Rule 906), established the right to counsel for youth in juvenile mental health commitment hearings, as well as in mandatory six-month reviews for individuals confined to a mental hospital. 484 F. Supp. 278 (D. Md. 1979). Federal Court Decisions Addressing Constitutional Due Process or Equal Protection In Johnson v. Solomon, a federal court, relying on a federal due process and equal protection analysis, established the right to counsel for youth in juvenile mental health commitment hearings, as well as in mandatory six-month reviews for individuals confined to a mental hospital. 484 F. Supp. 278 (D. Md. 1979). The court did not reference state constitutional provisions. 1 In Dorsey v. Solomon, 435 F. Supp. 725 (D. Md. 1977) (finding federal due process and equal protection right to counsel and notice for involuntarily committed persons found not guilty by reason of insanity), the court referenced a decision by a Maryland nisi prius court which the Attorney General agreed to follow, establishing that the court would appoint counsel for an indigent prospective civil committee without requiring that the individual actually request counsel. Id. at 733 (citing Briggs v. Mandel, Civil No (Circuit Court of Baltimore City, Feb. 28, 1975); Regulation of the State Department of Health and Mental Hygiene.). It appears that provision still exists in a Department of Health and Mental Hygiene regulations, which states the individual is to be provided: Md. Code Regs Notice of the individual's right to consult with an attorney of the individual's choice and, if the individual is unable to afford an attorney, the availability of representation at the hearing through the Office of the Public Defender, Mental Health Division.... 5

9 D. Sex Offender Proceedings No law could be located regarding the appointment of counsel for indigent civil litigants in sex offender proceedings. However, this jurisdiction might not have a mechanism for confining sexually dangerous/violent persons. E. Involuntary Quarantine, Inoculation, or Sterilization Proceedings State Statutes and Court Decisions Interpreting Statutes If the Secretary of Health and Mental Hygiene requires an individual or group of people to be isolated or quarantined, the individual or group may request a hearing in the circuit court. Md. Code Ann., Health-Gen (b)(1). The individual or group has a right to counsel at that hearing, and "[t]he court shall appoint counsel to represent individuals or a group of individuals who are not otherwise represented by counsel." Id (c); Md. Code Ann., Pub. Safety 14-3A-05(f)(2). State Court Rules and Court Decisions Interpreting Court Rules If any individual or group of people required to be isolated or quarantined by the Secretary of Health and Mental Hygiene "is not represented by counsel and the petitioner does not decline court-appointed counsel, the circuit court shall appoint counsel in accordance with Code, Health-General Article, (c), or the Court of Appeals shall appoint counsel in accordance with Code, Public Safety Article, 14-3A-05(f)(2)." Md. R (a). 4. CHILD CUSTODY A. Appointment of Counsel for Parent State-Initiated Proceedings State Statutes and Court Decisions Interpreting Statutes In Child In Need of Assistance (CINA) proceedings, the Department of Social Services alleges that a child has been abused or neglected, or has a developmental disability or mental disorder; and that the child's parents, guardian, or custodian do not give proper care and attention to the child's needs. Md. Code Ann., Cts. & Jud. Proc (f). A party to a Child In Need of Assistance (CINA) proceeding (usually the child's parent or guardian) is "entitled to the assistance of counsel at every stage" of a CINA proceeding. Md. Code Ann., Cts. & Jud. Proc (a). A public defender shall represent a party, other than the child, who is indigent in all such proceedings. Md. Code Ann., Crim. Proc (b)(1)(v); Md. Code Ann., Cts. & Jud. Proc (b)(1). A party who is a minor, or "incompetent by reason of mental disability" has a right to counsel in such matters at state expense regardless of indigency. Md. Code Ann., Cts. 6

10 & Jud. Proc (b)(2). In 2010, the Court of Special Appeals in In re: Alijah Q. distinguished statutory rights from constitutional ones in ruling that the strict waiver requirements of Rule (b) that apply in delinquency matters do not apply to a parent's waiver of his or her statutory right to counsel in a CINA case. "We are mindful that a statutory right... 'while deserving of protection, is not necessarily the equivalent of a constitutional right.'" 195 Md. App. 491, 519, 7 A.3d 106, 122 (2010) (quoting In re the Welfare of: G.L.H., 614 N.W.2d 718, 722 (Minn. 2000)). In Maryland, a parent's rights may be terminated in a non-consensual guardianship action initiated by the state, Md. Code Ann., Fam. Law 5-323(b), and parents in such matters have a statutory right to counsel at state expense in accordance with the public defender statute, Md. Code Ann., Crim. Proc (b)(1)(vi). The Maryland Court of Special Appeals has stated that the right to appointed counsel in termination of parental rights proceedings includes the right to "effective assistance of counsel." In re Adoption/Guardianship of Chaden M., 189 Md. App. 411, 431, 984 A.2d. 420, 432 (2009). Federal Statutes and Court Decisions Interpreting Statutes The federal Indian Child Welfare Act (ICWA), which governs child welfare proceedings in state court, 2 provides: In any case in which the court determines indigency, the parent or Indian custodian shall have the right to court-appointed counsel in any removal, placement, or termination proceeding.where State law makes no provision for appointment of counsel in such proceedings, the court shall promptly notify the Secretary upon appointment of counsel, and the Secretary, upon certification of the presiding judge, shall pay reasonable fees and expenses out of funds which may be appropriated pursuant to section 13 of this title. 25 U.S.C. 1912(b). State Court Decisions Addressing Constitutional Due Process or Equal Protection 2 While the ICWA does not appear to have a definitive statement about jurisdiction, 25 U.S.C. 1912(b) refers to state law not providing for appointment of counsel. Additionally, 25 U.S.C. 1912(a) states: In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. These provisions, plus the fact that child welfare proceedings typically occur in state court, suggest that ICWA applies in state law proceedings. 7

11 In In re Blessen H., the appellant had argued that, because she was a parent facing the loss of a child, the court should have applied a Johnson v. Zerbst standard in determining whether she had waived her right to counsel; in other words, the court should have "first assure[d] itself, through an on-the-record inquiry, that she has knowingly and intelligently waived that right." 163 Md. App. 1, 11-12, 877 A.2d 161, 167 (2005) (citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938). The Court of Special Appeals found that the standard, which has been held to apply in a range of criminal contexts, applies primarily in contexts involving the direct loss of liberty. According to the court, while the right to raise a child is fundamental and any intrusion of that right must satisfy due process, there are limits to the due process required where liberty is not at stake. Id. at 17, 877 A.2d at (citing inter alia Troxel v. Granville, 530 U.S. 57 (2000)); Lassiter v. Department of Social Services, 452 U.S. 18 (1981); Matthews v. Eldridge, 424 U.S. 319 (1976) (invoking the Due Process Clause of the Fifth and Fourteenth Amendments)). Specifically, the Court of Special Appeals stated: The cases make plain that process is due a parent who faces the permanent loss of his or her parental ties to the child at a TPR proceeding, but certainly not the degree of process due a criminal defendant, probationer, or alleged juvenile delinquent who faces the loss of personal liberty. A parent is also entitled to due process at a CINA proceeding, because the parent faces at least the temporary loss of the child.... The distinctions between CINA and TPR proceedings, however, dictate the conclusion that even less process is due a parent at the CINA stage than at the TPR stage.... In sum, the cases reflect that a parent is entitled to due process at a CINA adjudicatory hearing, but the process due is less than that owed a parent at a TPR hearing and still less than that owed an individual who faces the loss of personal liberty. 163 Md. App. 1, 17-18, 877 A.2d 161, (2005). B. Appointment of Counsel for Parent Privately Initiated Proceedings State Statutes and Court Decisions Interpreting Statutes In Maryland, a parent's rights may be terminated via "adoption without prior termination of parental rights" (initiated by a private party with the cooperation of the Department), which requires the consent of birth parents. Md. Code Ann., Fam. Law In such matters, parents have a statutory right to counsel at state expense in accordance with the public defender statute. Md. Code Ann., Crim. Proc (b)(1)(vi). Another way in which a parent's rights may be terminated is through a guardianship sought by a private agency, normally pursued prior to adoption (Md. Code Ann., Fam. Law 5-3A), and independent adoptions initiated by a private party (Md. Code Ann., Fam. Law 5-3B). In these matters, courts are required to appoint counsel for a parent, regardless of indigency, who has a 8

12 disability making him or her "incapable of effectively participating in the case," or to a minor parent. Md. R ; Md. Code Ann., Fam. Law 5-3A-07(a)(1) (private agency guardianship and adoption); Id. 5-3B-06(a)(1) (independent adoption). Attorneys appointed under these provisions may be compensated for reasonable fees, as approved by the juvenile court. Md. Code Ann., Fam. Law 5-3A-07(d) (private agency guardianship and adoption); Id. 5-3B-06(d) (independent adoption). Md. Code Ann., Fam. Law 5-339, which governs adoptions done through the local department, specifies that a birth parent may consent to an adoption. Md. Code Ann., Fam. Law 5-3B-21, which governs independent adoptions, has consent procedures and a revocation period. It sets out various conditions for such consent to be valid, and contains a revocation period. Because "relinquishment" in Maryland is done as a consent to adoption, the parental right to counsel provisions for adoptions described above would apply to procedures around relinquishment of parental rights. The Maryland Court of Special Appeals has stated that the right to appointed counsel in termination of parental rights proceedings includes the right to "effective assistance of counsel." In re Adoption/Guardianship of Chaden M., 189 Md. App. 411, 431, 984 A.2d. 420, 432 (2009). State Court Decisions Addressing Constitutional Due Process or Equal Protection To date, Maryland courts have declined to rule on whether an indigent parent has a right to counsel in a private child custody matter. In Frase v. Barnhart, four members of the Court of Appeals found for the appellant parent on the merits of her private custody issue without reaching the right to counsel issue. 379 Md. 100, 840 A.2d 114 (2003). That case involved a dispute between a mother and a third-party couple who had cared for the child during the mother's incarceration. In a two-day custody hearing, a circuit court master had declined to appoint counsel at the mother's request, and had returned custody to the mother with conditions requiring her to apply for and move into special housing provided by a private social services agency, and requiring her to permit the child to visit with opposing parties. The court held, in light of Troxel v. Granville, that having found the mother a fit parent, and having found no exceptions rendering the mother's custody detrimental to the child's best interest, the court had no authority to impose conditions on custody. Id. at 125, 840 A.2d at 128 (citing Troxel v. Granville, 530 U.S. 57 (2000)). The court majority thus declined to rule on the right to counsel issue. However, three judges concurred and would have held that indigent parents had a right to counsel in private custody proceedings under the Maryland Constitution. Three years later, the court ruled on a related issue implicating the right to counsel in custody matters in Touzeau v. Deffinbaugh. 394 Md. 654, 907 A.2d 807 (2006). The issue before the court was whether the trial court erred in denying a mother's request for a 9

13 continuance so that her recently secured pro bono attorney could assist her in a pending custody matter. Secured only the day before, the pro bono attorney was unable to assist her without a continuance. On appeal, Ms. Touzeau contended, ultimately unsuccessfully, that because the hearing implicated her fundamental right to parent, she had a due process right to representation under article 24 of the Maryland Declaration of Rights. The court held that, "The fundamental nature of the right to parent... does not necessarily implicate the range of due process protections statutorily afforded to parents in Child In Need of Assistance ("CINA") proceedings and involuntary termination of parental rights proceedings." Id. at 676, 907 A.2d at 820. State Court Decisions Addressing State Constitution's Open Courts Provision Article 19 of the Maryland Declaration of Rights states: That every man, for any injury done to him in his person or property, ought to have remedy by the course of the Law of the Land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the Land. Md. Const. art. 19. In Frase v. Barnhart, discussed supra, the four-judge majority of the Court of Appeals declined to rule on Ms. Frase's argument that Article 19 provided a civil right to counsel. Because counsel represented Ms. Frase during the appellate stage of her case and, seemingly, legal services organizations would be able to help her otherwise, the Court noted in dicta that it would be "wholly inappropriate" to attempt to "find the right-to-counsel she posits hidden for 227 years in Article " 379 Md. 100, , 840 A.2d 114, 130 (2003). State Court Decisions Addressing Incorporation of English Common Law and Statutes Article 5 of the Maryland Declaration of Rights incorporates England's statutes and common law as they existed in 1776 into Maryland's Constitution: [T]he Inhabitants of Maryland are entitled to the Common Law of England, and the trial by Jury, according to the course of that Law, and to the benefit of such of the English statutes as existed on the Fourth day of July, [1776]; and which, by experience, have been found applicable to their local and other circumstances, and have been introduced, used and practiced by the Courts of Law or Equity; and also of all Acts of Assembly in force on the first day of June, [1867]; except such as may have since expired, or may be inconsistent with the provisions of 10

14 this Constitution; subject, nevertheless, to the revision of, and amendment or repeal by, the Legislature of this State.... Md. Const. art. V. In applying incorporated English statutes and common law, Maryland courts must decide "whether particular parts of the common law are applicable to our local circumstances and situation, and our general code of laws and jurisprudence." State v. Buchanan, 5 H. & J. 317, (1821). The Maryland Court of Appeals has held that changes in common law, applied to the state, via Article 5 of the Declaration of Rights, are subject to change. Denison v. Denison, 35 Md. 361 (1972). The rule is that Maryland adopted the common law of England, "but only so far as it could be made to fit and adjust itself to our local circumstances and peculiar institutions." Id. at 378 "It is clear that it is proper for the Judiciary to determine what part of the body of English court decisions and statutes are applicable to our situation today...." Moxley v. Acker et. ux., 294 Md. 47, 51, 447 A.2d 857, 859 (1982). An old English statute that guaranteed the right of counsel to plaintiffs in civil cases stated: [T]he Justices... shall assign to the same poor person or persons, Counsel learned by their discretions which shall give their Counsels nothing taking for the same, and in likewise the same Justices shall appoint attorney and attorneys for the same poor person and persons and all other officers requisite and necessary to be had for the speed of the said suits to be had and made which shall do their duties without any rewards for their Counsels, help and business in the same. An Act to Admit Such Persons as Are Poor to Sue in Forma Pauperis, 11 Hen. VII, c. 12 (1494). To be eligible for appointed counsel at no cost, an English plaintiff would promise the chancellor that he had less than 5 to his name. 3 William Blackstone, Commentaries *400 ( ). The English courts later extended the right to counsel to indigent civil defendants as a matter of common law. See, e.g., Wait v. Farthing, 84 Eng. Rep. 237, 237 (K.B. 1668). In the early 19th Century, the Chancellor of Maryland, William Kilty, submitted a report to the General Assembly regarding which English statutes "were proper to be introduced and incorporated" into Maryland law. In this report, Chancellor Kilty found 11 Hen. VII c.12 a statute that was "applicable and proper to be incorporated." William Kilty, Introduction to a Report of All Such English Statutes as Existed at the Time of the First Emigration of the People of Maryland, and Which by Experience Have Been Found Applicable to Their Local and Other Circumstances 229 (Jehu Chandler 1811). 11

15 In 2003, the Court of Appeals declined to rule on whether Maryland's citizens were entitled to a civil right to counsel under 11 Hen. VII, stating: "This is not the case to resolve that issue." Frase v. Barnhart, 840 A.2d 114, 130, 379 Md. 100, 128 n.10 (2003). The court explained: [F]or us, now, to opine on the scope, meaning, and vitality of the ancient 1494 statute... would be wholly inappropriate.... To resolve the issue hinged on the English statute, we would have to determine, among other things, (1) whether that statute, which, to the best of our knowledge, has never been applied in the 379-year history of Maryland as a colony and State, is nonetheless currently a vital part of the Maryland common law, (2) if so, whether it is limited to plaintiffs, as it says, or should be extended by judicial fiat to defendants, like Ms. Frase, as well, (3) at what point the right attaches and how long it continues, and (4) if the right exists and the court is, indeed, required to appoint counsel, what would happen if the lawyer appointed, for one reason or another, refuses to take the case. Id. at 130, 379 Md. at 128 n.10. C. Appointment of Counsel for Child State-Initiated Proceedings State Statutes and Court Decisions Interpreting Statutes In Child In Need of Assistance (CINA) proceedings, the Department of Social Services alleges that a child has been abused or neglected, or has a developmental disability or mental disorder; and that the child's parents, guardian, or custodian do not give proper care and attention to the child's needs. Md. Code Ann., Cts. & Jud. Proc (f). A child who is the subject of a CINA petition is entitled to court-appointed counsel at every stage of the proceeding. Id (a). This includes the right to be represented on appeal. In re Sophie S., 167 Md. App. 91, 94, 891 A.2d 1125, 1126 n.3 (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 (d)(2)(i). Children in Maryland have a statutory right to court-appointed counsel in termination of parental rights matters initiated by the state. Md. Code Ann., Fam. Law 5-307(b). The court is required to appoint the child's original CINA attorney to continue representing the child, if that attorney has been provided under contract by the Department of Human Resources. If not, the court is to appoint new counsel. Id (b)(2). The attorney appointed to represent a child in a proceeding to terminate parental rights continues in the role of court-appointed counsel for the child until either adoption or long-term care short of adoption occurs. In re Adoption/Guardianship No. 3155, 103 Md. App. 300, 306, 653 A.2d 521, 523 (1995). 12

16 Federal Statutes and Court Decisions Interpreting Statutes The Indian Child Welfare Act (ICWA), which governs child welfare proceedings in state court, 3 provides the following with regard to any removal, placement, or termination of parental rights proceeding: The court may, in its discretion, appoint counsel for the child upon a finding that such appointment is in the best interest of the child. Where State law makes no provision for appointment of counsel in such proceedings, the court shall promptly notify the Secretary upon appointment of counsel, and the Secretary, upon certification of the presiding judge, shall pay reasonable fees and expenses out of funds which may be appropriated pursuant to section 13 of this title. 25 U.S.C. 1912(b). The federal Child Abuse Prevention and Treatment Act (CAPTA) provides: A State plan submitted under paragraph (1) shall contain a description of the activities that the State will carry out using amounts received under the grant to achieve the objectives of this subchapter, including (B) an assurance in the form of a certification by the Governor of the State that the State has in effect and is enforcing a State law, or has in effect and is operating a statewide program, relating to child abuse and neglect that includes-- (xiii) provisions and procedures requiring that in every case involving a victim of child abuse or neglect which results in a judicial proceeding, a guardian ad litem, who has received training appropriate to the role, including training in early childhood, child, and adolescent development, and who may be an attorney or a court appointed special advocate who has received training appropriate to that role (or both), shall be appointed to represent the child in such proceedings. 42 U.S.C. 5106a(b)(2). D. Appointment of Counsel for Child Privately Initiated Proceedings 3 While the ICWA does not appear to have a definitive statement about jurisdiction, 25 U.S.C. 1912(b) refers to state law not providing for appointment of counsel. Additionally, 25 U.S.C. 1912(a) states: In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. These provisions, plus the fact that child welfare proceedings typically occur in state court, suggest that ICWA applies in state law proceedings. 13

17 State Statutes and Court Decisions Interpreting Statutes In Maryland, a parent's rights may be terminated via "adoption without prior termination of parental rights" (initiated by a private party with the cooperation of the Department). Md. Code Ann., Fam. Law In such proceedings, Md. Code Ann., Fam. Law 5-307(b) provides the right to counsel for the child: (1) In accordance with paragraph (2) of this subsection, in a case under this subtitle, a juvenile court shall appoint an attorney to represent a child. (2) Unless a juvenile court finds that it is not in a child's best interests, the juvenile court: (i) if the attorney who currently represents the child in a pending CINA case or guardianship case is under contract with the Department to provide services under this subsection, shall appoint that attorney; and (ii) if the attorney who currently represents the child is not under contract with the Department, shall strike the appearance of that attorney. Md. Code Ann., Fam. Law 5-339, which governs adoptions done through the local department, specifies that a birth parent may consent to an adoption. Md. Code Ann., Fam. Law 5-3B-21, which governs independent adoptions, has consent procedures and a revocation period. It sets out various conditions for such consent to be valid, and contains a revocation period. Because "relinquishment" in Maryland is done as a consent to adoption, the parental right to counsel provisions for adoptions described above would apply to procedures around relinquishment of parental rights. In a private agency guardianship and adoption, the prospective adoptee has a right to counsel where he or she is at least 10 years old and is either a minor or under a disability. Id. 5-3A-07(b)(1). In an independent adoption, the prospective adoptee has a right to counsel where he or she is both under a disability and at least 10 years old. Id. 5-3B-06(b)(1). In a case with contested issues of child custody, visitation rights, or support, the court has discretion to appoint independent counsel for a child who is the subject of the case. Md. Code Ann., Fam. Law A court does not have the authority to appoint child's counsel when custody, support, or visitation are not contested but issues arise such as replevin, conversion, or return of the child's property. Van Schaik v. Van Schaik, 90 Md. App. 725, , 603 A.2d 908, (Md. Ct. Spec. App. 1992) (construing Md. Code. Ann., Fam. Law 1-202). State Court Rules and Court Decisions Interpreting Court Rules 14

18 For guardianships of minors sought under the probate code, Md. R (a)(1) specifies that the court "may appoint an attorney for the minor. The fee of an appointed attorney shall be fixed by the court and shall be paid out of the fiduciary estate or as the court shall direct." In a comment to the Rule establishing the parameters for appointment of counsel in cases with contested issues of child custody, visitation rights, or support, the Rules provide that "[a] Court should provide for an adequate and effective attorney for a child in all cases in which an appointment is warranted, regardless of the economic status of the parties." Md. R (b). There are several potential roles a child's counsel can play, the purpose of each, their respective roles and obligations are detailed in an appendix to the Maryland Lawyers' Rules of Professional Conduct. Md. R (c)(1)(A); Md. R. Appx.: Maryland Guidelines for Practice for Court-Appointed Lawyers Representing Children in Cases Involving Child Custody or Child Access. Depending on the child's age and whether he or she has "considered judgment," the attorney will either act as a Child Advocate or a Best Interest Attorney. Id A Best Interest Attorney is appointed to protect a child's best interests without being bound by the child's directives or objectives, making an independent assessment of what is best for the child. Id A Child Advocate, on other hand, "should be appointed when the child is need of a voice in court, as in relocation cases, when there are allegations of child abuse, or where the child is sufficiently mature and sees his or her interests as distinct from the interests of the child's parents." Id Finally, the court may also appoint counsel to serve as a Child's Privilege Attorney, whose duty is to decide whether to assert or waive a privilege on behalf of the minor child. Id In a case involving child custody or child access, the court has discretion to appoint counsel for the child upon examining a number of factors. Md. R (b). The court will look to the evidence that the parties will potentially present, and the "available resources for payment." Id. If the court can obtain adequate information through reports by social services or a mental health professional, child's counsel may be less necessary. Id. The Rule suggests that cases most appropriate for appointment of counsel include those in which there is: (1) [a] request of one or both parties; (2) [a] high level of conflict; (3) inappropriate adult influence or manipulation; (4) past or current child abuse or neglect; (5) past or current mental health problems of the child or party; (6) special physical, educational, or mental health needs of the child that require investigation or advocacy; (7) actual or threatened family violence; (8) alcohol or other substance abuse; (9) consideration of terminating or suspending parenting time or awarding custody or visitation to a non-parent; (10) relocation that substantially reduces the child's time with a parent, sibling, or both; or (11) any other factor that the court considers relevant. 15

19 Id. 5. MISCELLANEOUS A. Civil Contempt Proceedings State Statutes and Court Decisions Interpreting Statutes Md. Code Ann., Crim. Proc (b)(1)(iv) specifies that an indigent defendant shall be provided representation by the Public Defender in "any [] proceeding in which confinement under a judicial commitment of an individual in a public or private institution may result." State Court Rules and Court Decisions Interpreting Court Rules In a proceeding for constructive civil contempt where incarceration is sought, the court shall provide written notice to the alleged contemnor of his or her right to counsel, including the benefits of representation. Md. R (c)(2)(C). The rule specifies that the defendant must be notified that "the Public Defender may provide a lawyer for you." Id. (emphasis added). In Blackston v. Blackston, the trial court improperly assumed the contemnor waived his right to counsel where the court failed to follow the procedure for establishing the waiver that Md. R (e) provides. 145 Md. App. 348, 802 A.2d 1124 (2002). The court must afford the defendant an opportunity to explain why he or she is appearing without counsel. Id. at 357, 802 A.2d at The Maryland Court of Special appeals has reinforced as recently as 2011 that "to find appellant in contempt and impose a sentence of incarceration" without first establishing that he has knowingly and voluntarily waived the right to counsel would "stand the purpose of Rule (e) on its head." Bradford v. State, 199 Md. App. 175, 201, 21 A.3d 123, 139 (2011). State Court Decisions Addressing Constitutional Due Process or Equal Protection Maryland extended the right to counsel to certain civil contempt cases in Rutherford v. Rutherford. 296 Md. 347, 464 A.2d 228 (1983). In that case, the court found an indigent defendant in a civil contempt proceeding could not be sentenced to actual incarceration unless he had first been afforded a right to counsel under the 14th Amendment of the U.S. Constitution and Article 24 of the Maryland Declaration of Rights. Id. at 363, 464 A.2d at 237. The court commented, that, "[a]s repeatedly pointed out in criminal and civil cases, it is the fact of incarceration, and not the label placed upon the proceeding, which requires the appointment of counsel for indigents." Id. at 361, 464 A.2d at 23. Subsequent to Rutherford, the U.S. Supreme Court declined to find a categorical right to counsel for an indigent defendant 16

20 facing potential incarceration in a civil contempt proceeding under the federal Due Process Clause (at least where the plaintiff was neither the State nor represented by counsel). Turner v. Rogers, 131 S. Ct (2011). However, in DeWolfe v. Richmond, 76 A.3d 1019, 1029 (Md. 2013), the Maryland Court of Appeals stated: The principle set forth in Rutherford, that the due process right to counsel under Article 24 of the Declaration of Rights is broader than the right to counsel under Article 21 or the Sixth Amendment has been reaffirmed by the Court on numerous occasions. See, e.g., Grandison v. State, 425 Md. 34, 54, 38 A.3d 352, 364 (2012), cert. denied, U.S., 133 S.Ct. 844, 184 L.Ed.2d 667 (2013) ("'We recognized in Rutherford v. Rutherford, 296 Md. 347, 358, 464 A.2d 228 (1983) that the constitutional right to counsel is broader than the specific guarantee of the Sixth Amendment and Article 21 of the Maryland Declaration of Rights in that, under certain circumstances, the requirements of due process include a right to counsel, with appointed counsel for indigents, in civil cases or other proceedings not constituting stages of criminal trials...'") This suggests that Rutherford is still good law under the state constitution. B. Paternity Proceedings State Court Decisions Addressing Court's Inherent Authority In Turner v. Whitsted, the court noted that in a paternity action, "[w]hile [the child] is not a party to the action, Rule permits the physical examination of a party or a 'person in the custody or under the legal control of a party.' Consequently, the court might even appoint counsel to represent [the child's] interests if it believes that those interests might be compromised by the blood test. If [the child's] best interests would be jeopardized by submitting to a blood test, the child's representative may then request a protective order." 327 Md. 106, 116, 607 A.2d 935, 940 (1992). The court did not cite any particular authority for such appointment for the child, which suggests the court was relying on its inherent power to appoint. C. Proceedings for Judicial Bypass of Parental Consent for a Minor to Obtain an Abortion No law could be located regarding the appointment of counsel for indigent litigants in civil proceedings involving judicial bypass of parental consent for a minor to obtain an abortion. However, this jurisdiction might be one that does not require parental consent. D. Relief of Civil Liability During Emergencies 17

21 State Statutes and Court Decisions Interpreting Statutes In a proceeding regarding civil relief 4 during emergency periods, if a party who is a person in emergency management service or person suffering injury or damage fails to appear or is not represented by an attorney, the court may appoint an attorney to represent that party. Md. Code Ann., Pub. Safety (b)(1)(i). If the party is a defendant, on motion, the court shall appoint an attorney. Id (a)(3). E. Marriage Dissolution/Divorce Proceedings State Court Decisions Addressing Constitutional Due Process or Equal Protection Maryland provides no right to counsel in divorce proceedings. In Das v. Das, the appellant made two types of arguments in support of his claim to a right to counsel in divorce proceedings. Das v. Das, 133 Md. App. 1, 754 A.2d 441 (2000). He asserted a due process claim under article 24 of the Maryland Declaration of Rights, arguing that because he could have been held in contempt and thereby incarcerated for removing the child from the country and taking her to India, Rutherford v. Rutherford entitled him to counsel. Id. at 28, 754 A.2d 441, 456 (citing 296 Md. 347, 464 A.2d 228 (1983)). The court was unsympathetic, holding that had civil contempt proceedings arisen, the court would have had an opportunity to appoint counsel. In a footnote, the court acknowledged that the husband also invoked article 24 to assert that he had a right to counsel when "'disseized of his freehold... or in any manner... deprived of. 4 MD Code, Public Safety, states: (a) The purposes of this subtitle are: (1) to provide for, strengthen, and expedite national defense when emergency conditions threaten the peace and security of the United States and the State; and (2) to enable the State to fulfill more successfully the requirements of national defense. (b) To achieve these purposes, this subtitle temporarily suspends: (1) enforcement of civil liabilities against persons in emergency management service to enable them to devote their entire energy to the emergency management needs of the State and the United States; (2) enforcement of civil liabilities against persons suffering injury or damage to enable them to devote their entire energy to the cure or improvement of the injuries or damage suffered; and (3) legal proceedings and transactions that may prejudice the civil rights of persons in emergency management service or persons suffering injury or damage during the emergency period to which this subtitle is applicable. 18