2017 Legislative Derail – Best Interest & Child Advocate Attorneys as DV Petitioners

The 2017 Maryland legislative session saw an attempt to add Best Interest (“BIA”) and Child Advocate Attorneys (“CAA”) to the categories of domestic violence petitioners. Specifically, the proposed bill would have allowed BIAs and CAAs to file domestic violence petitions on behalf of their child clients.

The Family & Juvenile Law Section opposed this bill – rightfully so – because of its numerous and significant unintended consequences. The bill passed the House unanimously, but died in Senate Judicial Proceedings Committee.

While the intention of the bill – to protect child clients from abuse – is noble, the perils outweigh the benefits. The bill was presented as a “technical” change…but is far from it.

First, an attorney’s obligations under Family Law Article, §1-202 could be read to impose a duty on a BIA/CAA – not existing under current law, Guidelines, and ethical rules – to file a Petition on behalf of a child client. Such a duty could run contrary to the wishes of the CAA child client who does not wish to file a Petition or require disclosure of otherwise privileged information. The duty to file may result in an increase in Petitions, and an increase in unsuccessful ones if the BIA/CAA is compelled to file despite reservations about the merits. For example, a BIA/CAA may be obligated to file a Petition based on nothing more than a child’s use of words like “fear”, “scared”, “safety” due to the subjective standards applied in DV proceedings. Taken together, the implied duty would have exposed the BIA/CAA to greater liability – both from filing or not filing a Petition – and probably would have reduced the number of attorneys willing to serve in this role.

Second, under current law, it is not contemplated or authorized in DV cases to grant custody to a third party, the State, or to remand a child into foster care. As written, the court can “award temporary custody of a minor child of the respondent and a person eligible for relief”, Family Law Article, §4-506(7). So, HB1297 would not protect the child who has one or two unfit, abusive parents. Nor would a custody case (in which the court is limited to granting custody to a party and may not grant custody to a non-participating third party). There are other remedies, such as CINA proceedings. It begs the appropriateness of a BIA/CAA filing a Petition when no parent has stepped up to do so. Likewise, there is a disconnect that custody can be granted of a child of the “respondent” and “person eligible for relief”, when neither parent has sought or is eligible for relief or both parents may be respondents. If not allowing a custody change, what is its purpose if the BIA/CAA can only seek no contact/stay away protections for a child remaining in an abusive parent’s custody?

Third, a BIA/CAA is not a witness, nor does he/she report to the court. Under current law, a Petition is filed either by a witness or a person with immunity (such as a State’s Attorney). A BIA/CAA is neither. The bill would have created an entirely new category of third person/non-parents entitled to file Petitions that impact important parental rights. Also, a BIA/CAA filing a Petition cannot sign the Petition as an affiant or testify at the Interim or Temporary Protective Order hearings. The Petition would require the child’s presence and testimony, which may be impossible to secure, conflict with a BIA’s obligation to the child’s best interests, may place a child at greater risk of harm, or conflict with a CAA’s duty of loyalty to the child client. The bill failed to address appropriate mechanisms for an attorney to file a Petition without violating Guidelines 2.2 and 2.3 and his/her ethical obligations.

Fourth, the bill was too broad. As written, a BIA/CAA could seek use and possession, emergency family maintenance, and other relief. Such remedies exceed the scope of representation outlined in the Guidelines governing the BIAs/CAAs representation.

Fifth, a BIA/CAA serves at the pleasure of and appointment by the court in a specific case. Would a BIA/CAA filing a Petition on behalf of a minor enter his/her appearance in a DV case without the benefit of appointment? Without a clear statutory mechanism to appoint the same BIA/CAA in the DV case, if that attorney is not subsequently appointed in the DV matter, he or she would have no authority to participate in or have a role in the subsequent DV proceedings. The bill did not address how this would be done, whether the court has clear authority to allocate the fees in a DV case, when that would be done, and notice.

Sixth and perhaps most importantly, the bill raised unanswered due process and procedural concerns. For example, if there are two parents, are both required to be respondents, to be served, and afforded the opportunity to participate? What impact could this have on the “non-abuser” parent? What if the “non-abuser” parent does not want the relief the BIA/CAA seeks? If custody is at issue, parents have constitutional rights to notice and an opportunity to be heard if their custody of a child is in jeopardy. The bill proposed an extraordinary remedy when many other options exist: filing an emergency motion in the underlying family case in which the BIA/CAA is already appointed; communicating with mandatory reporters (teachers/school personnel, therapists, pediatricians) about reportable abuse; notifying child protective services of abuse; pointing a parent to resources; educating a child client about contacting the police/911; contacting the State’s Attorney; etc. Alternatively, current law could be updated to allow children over a certain age to file a Petition him-/herself (as authorized in custody proceedings by a child age 16 or older; Family Law Article, §9-103).

Lastly, an obligation to serve the best interests of children does not impose the obligation to guarantee a child’s safety. This is not expected of Judges, child protective services, the State’s Attorney, law enforcement, or even parents. Each of whom has a unique role and duties in child-related matters. Just as a BIA/CAA has a unique role and duties. Undoubtedly, BIAs/CAAs represent the most vulnerable among us – our children – under far from ideal and often heart-breaking circumstances in high conflict custody cases. Such circumstances call upon a BIA/CAA to think outside the box and traditional remedies, but always act within the bounds of the law, the Order appointing the BIA/CAA, the Guidelines, and the Rules of Professional Conduct. As written, HB1297 would have gone far beyond, asking too much of the BIA/CAA.

To view HB1297: http://mgaleg.maryland.gov/2017RS/bills/hb/hb1297T.pdf

We shall see if this effort is renewed in the 2018 session.

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