Overview of Maryland Laws (Q&A)

Can non-residents adopt?

Yes, if the birth parents are Maryland residents and the child is born in Maryland.

Are independent (non-agency) adoptions legal in Maryland?

Yes.

Is advertising permitted?

Yes.

Can a paid intermediary such as an attorney locate a child for the adoptive parent?

No (fn.1).

What expenses can be paid?

Legal fees and medical expenses (fn.2).

Is a pre-placement home study required?

No (fn.3).

Are the adoptive parents required to disclose their identities to the birth parents?

No.

Can a birth parent sign a consent prior to the birth?

No.

How long must a birth parent wait after the birth before signing a consent?

No minimum time.

Where does a birth parent sign the consent?

Outside of court.

When does a consent become irrevocable?

30 days after signing.

Do adoptive parents normally receive the child directly from the hospital?

Yes.

What is required to facilitate the child's discharge from the hospital?

Adoptive parents must obtain custody order from the court.

When can the adoption be finalized?

Anytime after the consent(s) become irrevocable.

Is it a requirement that a separate attorney represent the birth parents?

Only if the birth parent is under 18 (fn.4).

Are any extra steps required when the child is born in a state other than the one in which the adoptive parents reside?

Yes (fn.5^).

Footnotes

1. For example, an attorney who is being paid for representing either the adoptive parents or the birth parents cannot refer the birth parents and the adoptive parents to each other or engage in such activities as showing a birth parent resumes of adoptive parents.
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2. The cost of psychological/social work counseling for the birth parents is considered to be a medical expense. Back to top /\

3. Although not required by local law or the courts, the better practice is for adoptive parents to undergo a pre-placement home study voluntarily since benefits are gained by the practice. For example, if the child is born in another state, the adoptive parents must present a home study to the officials of the Interstate Compact on the Placement of Children (ICPC) before the child can cross state lines. Back to top /\

4. Although not required by law (except in Maryland when a birth parent is under 18), the better practice is to always insist that the birth parents have an attorney separate from the attorney representing the adoptive parents. Ethics rules prevent one attorney from representing both sides in an adoption. To proceed with only one attorney and assert that the attorney only represents the adoptive parents is a dangerous fiction. Someone needs to explain the process to the birth parents and advise them of their rights. If the person giving the advice is the attorney who represents the adoptive parents, a potentially fatal defect has been built into the adoption. Under those circumstances, a birth parent could seek to overturn the adoption long after the placement based upon duress relating to the attorney's conflict of interest.
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5. The ICPC provides that a child cannot be taken across state lines for purposes of adoption unless ICPC approval is obtained. Experience shows that the adoptive parents can expect to remain in the other state with the newborn child for 3 to 14 days or more after the birth while the adoptive parents' attorney attempts to obtain ICPC approval. The ICPC process and the extra attorney services are not required if the birth occurs in the state where the adoptive parents reside. Back to top /\

Background of Maryland Adoption Laws

I. Brief history

A. In the last two decades, independent (non-agency) adoption has become much more prevalent.

B. In Maryland, independent adoption has received increasing attention which has led to changes in both agency practice and independent adoption practice.

In 1987, a panel of judges was appointed on behalf of the Maryland Judicial Conference to study independent adoption.

The above study led to a written report containing guidelines and recommendations for legislative and procedural changes.

Many of the recommended legislative changes found their way into law through SB 61 in 1992. The changes included such things as a requirement that a birth parent be advised of her/his option of receiving independent legal counsel and other counseling at the expense of the adoptive parents.

Also in 1992, the period during which a birth parent can revoke a consent to adoption was reduced from 90 days to 30 days.

C. The adoption rules of practice were completely revised effective 1/1/97.

D. The adoption statutes were recodified effective 1/1/06. The section numbers were changed, and some minor changes in the law were made.

E. Agency adoption and independent adoption procedures (e.g. revocation periods) are now set up so that the legal procedures are parallel and there is no legal advantage to one type of adoption over the other.

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II. Agency Adoption - Public and Private

A. Agency adoption in Maryland is conducted through either public child placing agencies (e.g. county department of social services) or private agencies (licensed child-placing agencies privately owned and operated). Residents of Maryland may work with public and private agencies located in Maryland or ones operating outside of the state.

B. In an agency adoption, a birth parent relinquishes his or her parental rights to the adoption agency by executing a consent in favor of the agency. The agency then places the child for adoption with adoptive parents selected by either the birth parent or the agency.

Following a required post-placement supervision period, the agency gives its consent to the adoption to the adoptive parents. The adoptive parents proceed to finalize their adoption by filing a petition for adoption in the circuit court in the county where they reside.

During the period of post-placement supervision following the placement of the child, the agency retains legal    custody of the child while the adoptive parents have physical custody. In the majority of agency adoption placements, either public or private, the child is placed directly with the adoptive parents following his or her birth. However, a newborn child may be placed in foster care during the period of time that the parental rights of the birth parents are being terminated.

C. The adoption of children who have been placed in foster care is conducted as an agency adoption. In those cases, the county department of social services acts in its capacity as a public child placing agency and works to terminate the parental rights of the biologic parents. The agency may then place the child for adoption with an existing foster family or another family selected to adopt the child.

D. In Maryland, the legal procedures for carrying out an agency adoption are found in the Family Law Article.

A birth parent wishing to place a child for adoption through an adoption agency must execute a consent to guardianship which permits the agency to ask the court to grant the agency guardianship with the right to consent to adoption.

A consent to guardianship is revocable for 30 days after it is signed. When the court grants the guardianship, the parental rights of the birth parents are terminated.

The above procedures put the agency in the position where the agency can give the adoptive parents a consent to adoption.

E. Adoptive parents who receive a child through a Maryland adoption agency should file a petition for adoption in the circuit court in their county of residence.

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III. Independent Adoption

A. Birth parents in Maryland may also place a child directly with adoptive parents.  In an independent adoption, the birth parent gives consent to the adoption of his or her child directly to the adoptive parents.  Legal custody of the child passes directly from the birth parents to the adoptive parents.

B. Independent adoption in Maryland is governed by the Family Law Article.

In Maryland, adoptive parents may learn of birth parents either through word-of-mouth contacts or newspaper advertisements.

In an independent adoption, the attorney representing the birth mother will often make arrangements with the hospital where the child is to be born so that (a) the adoptive parents will have access to the child in the nursery following birth and (b) the child will be discharged directly to the adoptive parents.

After the child is born, the birth mother will execute her consent to the adoption. This is usually done at the hospital in the presence of the birth mother's own attorney.

Just like the birth mother, the birth father of the child must consent to the adoption. If the birth father does not consent, he must be given notice of the proceeding by being served with a show cause order. Under certain circumstances (e.g. when identity is unknown), a birth father can be given notice by publication in the newspaper.

Before the adoptive parents take physical custody of the child, the law requires that a court order be obtained which grants legal custody to the parents.

A birth parent executing his or her consent to an adoption may revoke that consent for any reason for up to 30 days from its execution. A revocation must be in writing, signed by the revoking birth parent and filed with the clerk of the court.

C. Adoptive parents who have received a child through an independent adoption, will file a petition for adoption in the circuit court in the county where they reside. The court may then enter a final decree of adoption any time after the time for the birth parents to revoke their consents has expired.

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IV. Stepparent Adoption

A. A step-parent adoption is one in which the adopting parent is the spouse of one of the biologic parents. It is a form of independent adoption since the parties know each other and since the parental rights of the other biologic parent will pass directly to the adopting parent (without the legal rights passing through an agency).

B. It is simplest when the biologic parent whose parental rights are to be terminated voluntarily signs a consent. On the other hand, the same alternatives which apply to other independent adoptions apply to stepparent adoptions (e.g. show cause orders or publication).

C. The petition for adoption which is filed with the circuit court is not signed by the spouse who is the biologic parent.  That spouse signs a consent to adoption.

D. When the final decree of adoption is entered by the court, the rules require that the final decree state that the parental rights of the spouse who is the biologic parent are not affected.

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Ethical Considerations

I. Ethical considerations are important in all areas of the law. In the area of adoption law, they take on a heightened importance. Unjustifiably, the area of independent (non-agency) adoption is surrounded by the perception that the activity is somehow of borderline legality. The phrases "blackmarket" or "greymarket" are frequently but inaccurately used to describe independent adoption. In an effort to combat and eliminate this misperception, it is important that adoption lawyers take great care in order to avoid even the possible appearance of impropriety.

II. One area in which problems most frequently arise is that of conflict of interests. In any adoption proceeding there are a number of potentially conflicting interests. In an independent adoption proceeding, the interests of the birth parents, the adoptive parents and the child to be adopted are potentially conflicting. Recognition of this is contained in American Bar Association Informal Opinion No. 87-1523 (Feb. 14, 1987) which prohibits an attorney from representing both sides of an adoption proceeding. This prohibition has been codified in Maryland.

III. In agency adoptions, there is an additional potentially conflicting interest --that of the agency itself. The state of Maryland has become a forerunner by its recognition of this distinction. It is only natural for both adoptive parents and birth parents who approach an agency to place trust in the representatives of that agency since the agency is licensed by the state and since the matter involved is one which requires a degree of trust. If the agency in question has an attorney either in-house or employed as outside counsel, it would be logical but extremely dangerous for either the birth parents or the adoptive parents to assume that the attorney for the agency can give legal advice to them. Far too often, both birth parents and adoptive parents engage in the important legal transaction called an adoption without the benefit of any legal counsel whatsoever independent from the attorney representing the agency.

IV. Although it is recognized that an attorney cannot represent more than one side in an independent adoption, there is nothing in Maryland law which requires separate counsel for a birth parent unless the birth parent is under 18 years of age (in which case, court-appointed counsel is required). All that is required is that the birth parent be advised of the option of separate counsel at the expense of the adoptive parents. This leads some practitioners to contend that although there is only one attorney involved, he or she represents the adoptive parents and the birth parents simply have no attorney. The above contention is extremely dangerous. Either the birth parents are being advised by the adoptive parents' attorney (which is a conflict) or the birth parents have no one to explain to them even the most rudimentary aspects of the legal transaction. The better practice is to insist that the birth parents be represented by their own separate attorney in each case. If the attorney representing the adoptive parents is managing his or her case properly, there should never be a case in which birth parents are allowed to say they wish to proceed without counsel. The adoptive parents should be advised to stand their ground and not compromise on this important point.

Mark T. McDermott

Law Office of Mark T. McDermott
Suite 800
910-17th St., NW
Washington, DC 20006
202-331-1440
202-331-1442 (FAX)

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