Children who do not want to cut ties with their parents have a right to say so in court, even if their parents are ready to give them up for possible adoption, the state's highest court said yesterday.
The unanimous Court of Appeals ruling establishes a child's right to have a voice in child welfare proceedings that can turn him into a legal orphan.
"It is a very important ruling for children in the foster care system, who are among the most vulnerable members of our community," said Hannah E. M. Lieberman, director of advocacy of Legal Aid Bureau Inc. in Baltimore that represented four children in two challenges to the city's Department of Social Services efforts to cut ties with their parents. "It gives them an opportunity to explain to the court why their ties to their parents shouldn't be severed forever."
While other states have similar provisions, this puts Maryland near the forefront of states that afford children the opportunity to be heard, Lieberman said, because the decision was so clearly stated.
"It makes a lot of sense," said attorney Natalie Rees, a legal expert in adoption law. She called the ruling , a "minirevolution" because it guarantees the children -- the people whom the hearing is about -- a say if they want it.
That information helps a judge decide whether the child's best interest lies in ending what may be a tenuous relationship with parents they generally no longer live with and who may have troubles of their own.
"Let's say the child is a teen-ager, and the teen-ager says, 'Wait a minute, that's not what I want.' That may have an impact on the parent," Rees said.
The ruling occurs while the city is under a 1988 federal consent order to improve its child welfare and foster care system and as the federal government pushes states to speed adoptions.
"This is a victory for children and for their right to be heard," said Gary S. Posner, one of two attorneys representing the 9,000 children under the care of the Baltimore Department of Social Services in the federal case.
The appellate ruling is expected to affect a small number of cases around the state. The Department of Social Services had not seen the ruling and could not comment on it, said spokeswoman Sue Fitzsimmons.
When the Department of Social Services seeks to terminate parental rights, most parents do not object. The department had argued that it was up to a judge to decide whether to hold a hearing if the child objects, said C. J. Messerschmidt, assistant attorney general for the agency. No hearing was ordered for the four children.
She argued that the state also has an interest in securing a permanent home for a child taken from parents who do not meet the child's basic responsibilities and, to avoid lengthy limbo in foster care, a judge needs to be able to decide when the child's objections merit a hearing that can take days.
The Court of Appeals noted the Department of Social Services' desire to speed children toward adoption. But it said that the additional hearings from this "safeguard" would be minimal.
The termination of parental rights frees children for adoption. But it also creates some wards of the state who will never be adopted. Even the most tenuous ties to family can provide emotional stability for children who may spend a decade in foster care, Lieberman countered.
Until now, the child's role in termination of parental rights hearings has been unclear, said Baltimore Circuit Judge Martin Pierre Welch, who ruled that children did not have a right to a hearing. The judge presides over almost all of these cases in the city. He said that one out of the 40 or more he hears each month involves a child who objects.
Pub Date: 2/16/00