July 22, 2004
Inside this Issue (click case name to jump to
summary):
Termination of
Parental Rights/Process
RHODE
ISLAND: In re Isabella C.
Termination
of Parental Rights/Grounds
CALIFORNIA: Paul W. v. Superior Court
Brazoria County Children’s Protective Services v.
Frederick
Termination of
Parental Rights/Process
ALABAMA: J.O.J.
v. R.R.
VIRGINIA: Foster v. Fairfax County Dep’t of Family
Services
SIGNIFICANT CASES
Termination of
Parental Rights/Process
RHODE ISLAND: In re Isabella
C.
The Supreme Court of Rhode
Island, under a clear and convincing standard of review, affirmed the
order of the Family Court to involuntarily terminate the biological
father’s parental rights to the minor child. The respondent argued that
the court erred in allowing the DCYF (Department of Children, Youth and
Families) to amend their termination petition to include an additional
justification for termination. The Supreme Court noted that Rule 18(a)
of the Rhode Island Family Court Rules of Juvenile Proceedings is silent
on whether amendments are permissible before adjudication by trial or
otherwise. Citing Rule 33, which allows the courts to interpret the
rules in a lawful manner, the court held that the amendment would not
further prejudice the respondent and was therefore allowable. With this
amendment, DCYF met its burden of showing by clear and convincing
evidence that the biological father was an unfit parent, and that it was
in the best interests of the child to terminate the father’s parental
rights.
Cite: No.
2002-400, 2004 R.I. LEXIS 157 (R.I. July 15, 2004)
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Other Cases of
Interest
Termination
of Parental Rights/Grounds
CALIFORNIA: Paul W. v.
Superior Court
In an unpublished opinion, a
California Court of Appeals denied the petitioner’s request for an
extraordinary writ to vacate the orders of the juvenile court
terminating reunification services and setting a Welfare and
Institutions Code §366.26 hearing. The juvenile court found that the
department had provided sufficient resources for reunification and that
the petitioner failed to regularly participate in and make substantive
progress in their court-ordered treatment plans. In a section 366.26
hearing, compliance with stipulated reunification conditions is not
determinative. The court must find, by a preponderance of the evidence,
that return of the child to parental custody would create a substantial
risk of detriment to the safety, protection, or physical or emotional
well-being of the child. Due to the petitioner’s attitude and
manipulative conduct in regards to the mother, his lying to the
department as to the location of the mother, and his resistance to work
with the department to comply sufficiently with the case plan, the
juvenile court properly terminated reunification services.
Cite: No. F045257, 2004 Cal. App. Unpub. LEXIS 6698 (Cal. App. Ct. July
15, 2004)
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Brazoria County Children’s Protective Services v. Frederick
The Texas Court of Appeals
reversed the order of the trial court and remanded the case for a new
trial. The appeals court found the trial court erred by granting a
motion for directed verdict in favor of Frederick, based on Tex. Fam.
Code Ann. § 161.001(2), because Children’s Protective Service’s (CPS)
evidence showed there were triable issues for the jury’s determination.
The appeals court found, when applying Tex. Fam. Code Ann. §
161.001(1)(Q), that parental rights may be terminated if the court
finds by clear and convincing evidence that the parent has knowingly
engaged in criminal conduct that has resulted in conviction of an
offense and imprisonment or the inability to care for the child for not
less than two years from the date of filing the petition for involuntary
termination of parental rights and that there were triable issues of
fact for the jury’s determination in relation to Frederick’s ability to
care for the child. The appeals court, applying Code Ann. §161.001(2),
considered nine factors for determining the best interests of the child
and found that the evidence showed issues for the jury’s determination
Cite: No. 01-02-01232-CV, 2004 Tex. App.
LEXIS 6354 (Tex. July 15, 2004)
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Termination of
Parental Rights/Process
ALABAMA: J.O.J. v. R.R.
The Alabama Civil Appeals Court
reversed in part and affirmed in part the order of the circuit court,
holding that the circuit court properly dismissed the biological
father’s appeal from the juvenile court’s dismissal of the mother’s
dependency action brought under Rule 41(a)(2), Ala. Rev. Civ. P,
due to the fact that the biological father failed to advance an argument
that the juvenile court’s dismissal constituted error. However, the
court of appeals reversed the circuit court’s ruling that the
biological father lacked standing under AUPA §§26-17-5 and 26-17-6
because the mother was currently married to another man at the time of
the birth of the minor child. Under AUPA, it is presumed that the spouse
is the biological father of the child, and this presumption may not be
challenged by a third party as long as the spouse persists in the
presumption of paternity. Without sufficient evidence to determine if
the ex-husband persisted in or disavowed this presumption of paternity,
this Court remanded this case with instructions for the circuit court to
appoint an administrator ad litem for the husband’s estate, and to
perform a hearing to determine this matter.
Cite: No. 2021136, 2021150, 2004 Ala. Civ. App. LEXIS 571 (Ala. Civ.
App. July16, 2004)
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VIRGINIA: Foster v. Fairfax County Dep’t of Family Services
The Virginia Court of Appeals affirmed an order of the trial court,
applying a clear and convincing standard of review as required under Va.
Code §16.1-283(C)(2). The trial court found that: (1) the termination
of parental rights was in the best interests of the child; (2)
“reasonable and appropriate” services had been offered to help the
mother to remedy the conditions which led to the child being placed in
foster care; and (3) despite the help offered, the parent failed to
remedy the conditions within a reasonable amount of time, not to exceed
twelve months from the time the child was placed into foster care. The
Court of Appeals found the record supported the trial court’s finding
that there was clear and convincing evidence parental rights should be
terminated and that the termination was in the best interests of the
child.
Cite: No. 0026-04-4, 2004 Va. App. LEXIS 346 (Va. July 20, 2004)
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July 15, 2004
Inside this Issue (click case name to jump to
summary):
Adoption Subsidies
In re
Hennessey-Martin
Adult Adoption
Walls v. Walls
Custody/Third Party Standing
P.B. v. T.H.
Termination of Parental Rights/Process
Fla. Dep't of Children & Families v. F.L.
Termination of Parental Rights/Grounds
In the
Interest of A.S.W.
Walther v. Ark. Dep't of Human Servs.
Adoption/Rights
of Biological Relatives
In the Interest
of D.C.
ADOPTION/ICWA
In re Gerardo A.
In re C.F.
ASSISTED REPRODUCTION ISSUES
In re C.K.G.
SIGNIFICANT CASES
Adoption Subsidies
In re Hennessey-Martin
The Supreme Court of New
Hampshire affirmed the appellate court’s ruling that an adoption subsidy
would not count as a set-off against the non-custodial parent’s child
support obligation, and was not sufficient cause to deviate from the
state support guidelines. The Court interpreted RSA chapter 458-C
to mean that, in New Hampshire, adoption subsidies qualify as gross
income and therefore the petitioner was not entitled to a tax credit.
The court also held that the adoption assistance payments do not, in and
of themselves, justify a deviation from the child support guidelines
under RSA 458-C:5 absent an unsustainable exercise of discretion.
Cite: No.
2003-531, 2004 N.H. LEXIS 120 (N.H. June 30, 2004)
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Adult Adoption
Walls v. Walls
In reversing a ruling of the trial court, the Supreme Court of Georgia
held that OCGA §19-8-19(a)(1), which provides that adoption severs all
familial ties between the adoptee and his former relatives, cannot be
read to extinguish the legal status of “grandparent” held by the third
parties in this case. The plaintiff, an adult adoptee, was adopted by
his biological mother after the third parties’ (his previous
adoptive parents) motions to intervene in his divorce proceeding and to
secure temporary custody of his child were sustained. The trial court
concluded that the adult adoption proceeding severed all legal ties the
adoptive parents had to their former son and therefore they were not a
stipulated party permitted to intervene in his divorce proceedings under
OCGA §19-7-1(b.1). The Supreme Court of Georgia reversed the trial
court’s order because the intervention and order granting the third
parties temporary custody had already occurred. The court noted that
even if OCGA §19-8-19(a)(1), which affects documents executed prior to
the adoption, applies to relationships other than those of the adoptee,
it does not affect those “documents” or “instruments” which “expressly
include the individual by name.” Here, the child was named in the
petition; thus, the statute did not apply in this instance and the third
parties’ ties to their grandchild were not severed and they remained
entitled to intervene in the divorce proceedings.
Cite: No. S04A0419, 2004 Ga. LEXIS 553 (Ga. July 12, 2004)
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Custody/Third Party Standing
P.B.
v. T.H.
The Superior Court of New
Jersey affirmed trial court’s ruling, after remand, that a third party
had standing in a custody dispute under the test set forth in V.C.
v. M.J.B., 163 N.J. 200, 748 A. 2d 539. That case
established a four prong test to determine whether a third party had
become a psychological parent to a minor. Initially, the trial court
determined that the test was not applicable and determined that the
correct standard was best interest analysis. Under that standard, the
trial court concluded that the third party was the psychological parent
of the minor child, thereby entitling her to standing. The Superior
Court found error in the trial courts application of the best interest
test and remanded the case to the trial court with instructions to apply
the four prong test set forth in V.C. v. M.J.B. Under this test,
the petitioner must demonstrate the existence of four elements: (1) the
biological or adoptive parent consented to, and fostered, the
petitioner’s formation and establishment of a parent-like relationship
with the child; (2) the petitioner and the child lived together in the
same household; (3) the petitioner assumed the obligations of parenthood
by taking significant responsibility of the child’s care, education and
development, including contributing to the child’s support, without
expectation of financial compensation; and (4) the petitioner had been
in a parental role for a length of time sufficient to establish with the
child a bonded, dependent relationship parental in nature. The trial
court deemed the third party to be the psychological parent under this
test. Custody and visitation issues were then determined under a best
interest standard, with custody awarded to the third party.
Cite: No. A-0726-03T4, 2004 N.J. Super. LEXIS 254 (N.J. July 8, 2004)
Click HERE for case
Termination of Parental
Rights/Process
Fla. Dep't of
Children & Families v. F.L.
The Supreme Court of Florida
reversed an order of the court of appeals that declared Fla. Stat.
§39.806(l)(i), authorizing the filing of petition for termination of
parental rights when the parental rights of the parent to a sibling have
been terminated, involuntarily unconstitutional. The Supreme Court of
Florida found clear and convincing evidence that the biological mother
had failed to substantially comply with the conditions stipulated in her
case plans for reunification. Due to her noncompliance and the
involuntary termination of parental rights to her 6th child,
under Fla. Stat. §39.806(l)(i) DCF was authorized to file a petition for
the termination of parental right to her 7th child, the child
in question. In determining the constitutionality of statute the Court
reviews de novo the district court’s decision of
unconstitutionality and applies a strict scrutiny standard. The Court
held that statute in question is constitutional because it does not
facilitate a rebuttable presumption of termination due to the fact that
DCF must also prove reunification would be a substantial risk to the
child and that termination is the least restrictive way to protect the
child. During the termination hearing the burden of proof was
unconstitutionally placed upon the biological mother rather than DCF,
and therefore the case was remanded for the trial court to apply the
constitutional interpretation of Fla. Stat. §39.806(l)(i).
Cite: No. SC03-1602, 2004 Fla. LEXIS 984 (Fl. July 8, 2004)
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OTHER CASES OF INTEREST
Termination of Parental
Rights/Grounds
In the Interest of A.S.W.
The Supreme Court of Missouri
reversed the ruling of the trial court to terminate the father’s
parental rights under RSMO §211.447 (2000) due to the father’s
cognitive disorder resulting from an earlier accident. The Supreme Court
of Missouri determined that the trial court failed to meet their burden
of producing substantial evidence that additional services would not
enable the return of the minor to the father within an ascertainable
period of time. The trial court’s finding did not constitute clear,
cogent and convincing evidence that grounds existed to terminate the
father’s parental rights due to the father’s willingness to accept
assistance from his sister and from ongoing parenting programs that
would likely build a better parenting support network and lasting
parental adjustment.
Cite: No. SC8579, 2004 Mo. LEXIS 89 (Mo. July 1, 2004)
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HERE for case
Walther v. Ark. Dep't of
Human Servs.
The Arkansas Court of Appeals
affirmed the ruling of the trial court, applying a clear and convincing
evidence standard of review as required under Ark. Code Ann. §
9-27-341(b)(3). The trial court found that (1) it was in the best
interest of the child to terminate parental rights; and (2) by leaving
the State of Arkansas without the child the appellant had abandoned the
minor. Under Ark. Code Ann. § 9-27-341(b)(1)(a), if the termination is
in the best interest of the child, and the child has been abandoned, the
courts have permissible grounds for an involuntary termination of
parental rights.
Cite: No.
CA03-1282, 2004 Ark. App. LEXIS 463 (Ark App. Ct. June 23, 2004)
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Adoption/Rights of Biological
Relatives
In the Interest of D.C.
The Kansas Court of
Appeals determined that under K.S.A. §38-1584 the district court was
well within its authority to review the reasonable efforts of the Kansas
Department of Social and Rehabilitative Services and the contracting
agencies’ efforts in placement determination. The court concluded that
when viewing sources for placement of a minor, primary consideration
must be given under the statute to granting custody to a relative of the
child. In determining whether an agency fulfilled its “reasonable
efforts” obligations in the placement of a minor, the district court
reviews findings of fact for substantial competent evidence of such
efforts. Here, due to the agency’s failure to send the Interstate
Compact request for an adoptive placement home study to the relatives
after being notified of their interest in adopting, and its failure to
comply with statutory notice requirements, the Kansas Court of Appeals
affirmed the district court’s ruling that the agency failed to implement
their policies and procedures equitably in an attempt to find the best
possible placement for the minor child.
Cite: No. 91,419, 2004 Kan. App. LEXIS 683 (Kan. App. Ct. July 9, 2004)
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ADOPTION/ICWA
In
re Gerardo A.
The California Court of
Appeals reversed the ruling of the trial court, and determined that the
department improperly failed to serve its completed
request-for-confirmation form, along with ICWA notice, to two vital
tribes. The court determined that the department, under the ICWA notice
provisions, complied with the letter requirement under 25 U.S.C. §
1912(a), but did not satisfy their legal obligation to provide a
complete notice of Indian heritage information it possessed to the
tribes entitled to such. Due to the department’s omission, the juvenile
court erred in finding at the dispositional hearing that ICWA did not
pertain to the children in question.
Cite: No.
F044674, 2004 Cal. App. LEXIS 1001 (Cal. App. June 24, 2004)
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In re
C.F.
The Iowa Court of Appeals,
under de novo review, affirmed the ruling of the juvenile court
that it was proper to place the minor children in question with a
settlement foster home. Due to the fact that one of the children was
undisputedly an “Indian child”, under ICWA, 25 U.S.C. § 1915(a), and
Iowa Code § 232B.9 (2003), a preference was to be given to her placement
with an Indian family, unless there was good cause shown to the
contrary. The Court determines whether good cause exists by the best
interest of the child, the wishes of the biological parents, the
suitability of persons for placement, and the child’s ties to the tribe.
The Iowa Court of Appeals determined, after weighing these factors, that
it was proper to place the minor child of Indian descent with the
settlement home, and that it would be in the best interest of the
children to remain at that location together.
Cite: No.
4-341/03-0961, 2004 Iowa App. LEXIS 798 (Iowa App. Ct. June 23, 2004)
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ASSISTED REPRODUCTION ISSUES
In
re C.K.G.
The Tennessee Court of Appeals
affirmed, using a de novo standard, the ruling of the juvenile
court that the surrogate female (petitioner) was the legal mother of
three minor children, with all rights, privileges and obligations as if
she were the biological mother. The biological father contended that
under Tennessee Code Ann. § 36-2-302 and Tennessee Code Ann. §
36-1-102(10), the surrogate female was not the “mother” of the children
and therefore had no legal rights as to the children. Jurisdictions are
split on which test to apply in this situation. Here, the appeals court
determined that Tennessee statutes did not control and that the trial
court did not err when looking to the intent of the parties. Both the
biological father and the surrogate mother signed contracts and agreed
to perceive the other as legal parents at the time of the in vitro
procedure. Therefore, the surrogate mother was to be viewed as a legal
parent under Tennessee law, and the biological father was estopped from
denying her status as such. The Court of Appeals ruled that, applying
the “best interest” test, the juvenile court properly granted the
surrogate mother primary custody.
Cite: No.
M2003-01320-COA-R3-JV, 2004 Tenn. App. LEXIS 394 (Tenn. App. Ct. June
22, 2004)
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June 24, 2004
Inside this Issue (click case name to jump to
summary):
PUTATIVE FATHERS
ARKANSAS: In re S.C.D.
TERMINATION OF
PARENTAL RIGHTS/Proceedings
TENNESSEE: In re A.J.H.
Custody
Determinations
KENTUCKY: Vinson v. Sorrell
ADOPTION CONSENT
REQUIREMENTS
NEW YORK: In re Hyacinth W.
PUTATIVE FATHERS
ARKANSAS: In re S.C.D.
The Arkansas Court of Appeals,
under de novo review, affirmed the trial court’s ruling that the
putative father had “otherwise legitimated” the child because of his
timely registration with the Arkansas Putative Father Registry, and his
filing of a petition for determination of paternity. Consequently, the
prospective adoptive parents were required to obtain his consent under
Ark. Code Ann. § 9-9-206. The appellate court chose not to apply
preceding cases stating that the filing of the adoption petition served
as a cutoff date to determine the rights of the parties involved,
because they were factually distinguishable from the present case. The
appellate court did not address the petitioner’s second issue of whether
the trial court should have granted the adoption petition.
Cite: No.
03-1283, 2004 Ark. LEXIS 403 (Ark. Ct. App. June 17, 2004)
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TERMINATION OF PARENTAL
RIGHTS/Proceedings
TENNESSEE: In re A.J.H.
The Tennessee Supreme Court
affirmed the ruling of the trial court denying the grandparent’s motion
to intervene in a termination of parental rights case. The Court applied
a de novo standard in determining whether the trial court
correctly denied the grandparent’s motion to intervene as of right under
Rule 24 of the Tennessee Rules of Civil Procedure (2003). The Court
followed the majority of jurisdictions in holding that grandparents do
not have a right of intervention because the grandparental relationship
does not alone support intervention. In addition, under
Tennessee Code Annotated section
36-1-117(a)(1) (2001),
“grandparents” are not explicitly listed as a party with a mandatory
right to initiate termination proceedings. The Court also concluded that
the grandparent’s interests would be adequately represented by a party
already in the underlying suit, the child’s father. Lastly, the Court
held that even though the agency did not actively pursue other relatives
because the father was not forthcoming, the caseworkers had met their
statutory obligation to seek placement with the family.
Cite: No. M2003-02405-SC-S09-JV, 2004 Tenn. LEXIS 566 (Tenn. June 17,
2004)
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Custody Determinations
KENTUCKY: Vinson v. Sorrell
The Supreme Court of Kentucky
affirmed the ruling of the appeals court that the appellants neglected
to show that the birth father waived his superior right to custody
through a standard of clear and convincing evidence required under KRS §
403.270. The determination of waiver by the trial court failed to
demonstrate that the birth father expressly or intentionally
relinquished his parent right to custody. The Court found that the “best
interest test” applied at the trial level to determine waiver by the
birth father was the improper standard when determining a waiver of
parental rights. Due to the birth father’s action of paying child
support without a court order for approximately four years, and his
attempts to gain custody and visitation of his daughter, there was not
stringent evidence to meet the clear and convincing standard. The
Kentucky Supreme Court did not rule on the issue of the birth father
being unfit because no such finding was made by the trial court. Without
a finding that the parent is unfit or without clear and convincing
evidence of a knowing and voluntary surrender of parent rights, a parent
is entitled to custody in a dispute between a birth parent and a third
party who is not a de facto custodian.
Cite: No.
2002-SC-1012-DG, 2004 Ky. LEXIS 151 (KY. June 17, 2004)
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ADOPTION CONSENT REQUIREMENTS
NEW YORK: In re Hyacinth W.
Under New York Domestic
Relations Law § 111(1)(a), any child over the age of fourteen (14) must
consent to his or her adoption. Here, the minor had her 14th
birthday five (5) months prior to the courts dispositional hearing, and
therefore her consent to the adoption had to be obtained. The minor
clearly stated that she did not want to be adopted, and wanted to remain
with her biological family. However, due to the fact that the child has
reached the age of emancipation (18), the issue presented before this
court is moot. The Supreme Court of New York made it known that had they
reached the merits on appeal they would have found that the agency
failed to demonstrate that the father permanently neglected his
biological child, and satisfied his parental relationship requirements
set forth in Social Service Laws § 384-b.
Cite: No. 3658,
2004 N.Y. App. Div. LEXIS 8535 (N.Y. June 17, 2004).
Web Link:
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June 11, 2004
Inside this Issue (click case name to jump to
summary):
Termination of Parental Rights - Process
In re E.T. & B.T.
Rights of Grandparents and Other Biological Relatives
In re Josiah Z.
Termination of Parental Rights – Appeals of Orders of Termination
In re J.H.
In re D.R.
Federal Law: Indian Child Welfare Act
In re S.M.
SIGNIFICANT CASES
Termination of Parental Rights - Process
In re E.T. & B.T.
The Indiana Supreme Court
vacated an opinion of a court of appeals, which found that written
reports from a program for parents who were faced with termination of
parental rights were admissible under the business records exception to
the hearsay rule. The Indiana Supreme Court found that it was error for
the trial court to initially admit the reports because they fell outside
the business records exception insofar as information contained in the
reports was not solely the result of first hand observation, the reports
contained conclusory lay opinions, and the program did not appear to
rely on the reports to operate their business. However, the Court
concluded that the improper admission of evidence is harmless error if
the judgment is supported by independent evidence, as in this case, to
satisfy the reviewing court that there is not a substantial likelihood
that the questioned evidence contributed to the judgment.
Cite: No.
02S03-0308-JV-367, 2004 Ind. LEXIS 463 (Ind. May 20, 2004).
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Rights of Grandparents and Other
Biological Relatives
In re Josiah Z.
A California Court of Appeals
denied a paternal grandparent’s request to dismiss an appeal regarding
his request for custody of children because the dismissal was based
solely on appellate counsel’s analysis of the children’s best interests.
The court held that appellate counsel did not have the authority to
dismiss the children's appeal based on counsel's assessment of the
children's best interests because the provisions of Cal. Welf. & Inst.
Code § 317, which outlines the duties of trial counsel appointed to
represent children in dependency proceedings, does not apply to counsel
appointed for children in dependency appeals.
Cite: No.
F044121, 2004 WL 1109854 (Cal.
Ct. App. May 19, 2004)
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OTHER CASES OF INTEREST
Termination of Parental Rights –
Appeals of Orders of Termination
In re
J.H.
The Georgia Court
of Appeals reversed the juvenile court’s ruling terminating the parental
rights of the mother. The Court found that the two-part test requiring
a finding of parental misconduct or inability and the termination being
in the best interest of the child was not met with clear and convincing
evidence.
Cite:
2004 Ga. App. Lexis 709 (Ga. Ct. App. 2004)
Web Link:
We were unable to
locate this opinion on the Web. Access to the Georgia Court of
Appeals’ opinions is available by subscription to their online search
system. For more details go to
http://www.gaappeals.us/ and click on “Opinions”.
In re
D.R.
The North Carolina Court of
Appeals reversed the lower court’s finding that the birth father had
abandoned his children, concluding that the findings of fact failed to
support a conclusion that the father abandoned his children, or showed a
willful intent to escape parental responsibility.
Cite:
No. COA03-578, 2004 WL 1093261 (N.C. Ct. App. May 18, 2004)
Web Link:
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Federal Law: Indian Child
Welfare Act
In re
S.M.
The California Court of Appeals
reversed the trial court judgment terminating parental rights of the
natural father based on the San Diego Health and Human Services Agency’s
failure to notify the Cherokee Nation of Oklahoma of the child’s
Cherokee Indian heritage as required under the Indian Child Welfare Act
[25 U.S.C. §1901, et. seq.]. However, the appellate court concluded that
if no tribe chooses to intervene after receiving proper notice under
ICWA, the Juvenile Court may reinstate the termination of parental
rights judgment.
Cite:
No. D042955, 2004
Cal. App. LEXIS 778 (Cal Ct. App. May 21, 2004)
Web Link:
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May 26, 2004
Inside this Issue (click case name to jump to
summary):
Assisted
Reproduction Issues
UNIFORM LAWS/Uniform Parentage Act (“UPA”)
CALIFORNIA: K.M. v. E.G.
WASHINGTON: In re
Parentage of L.B.
ADOPTION
PROCEDURE/Finality of Adoption Decree
UTAH:
State of Utah, in the interest of B.B., v. Scott
TEXAS: In the
Interest of Unborn Child
Putative
Fathers
MARYLAND: In re Thomas H.
Termination of
Parental Rights/Appeals of Orders
of Termination
ILLINOIS: In re Jaron Z.
CALIFORNIA: In re Isayah C.
Foster
Caregivers Rights
WASHINGTON: Smith v. Washington Department of Social and Health Services
ADOPTION Consent Requirements/Who
Need Not Consent
NEW YORK: In re Adoption of a Child Whose First Name is Chloe
SIGNIFICANT
CASES
Assisted
Reproduction Issues
UNIFORM LAWS/Uniform Parentage Act (“UPA”)
CALIFORNIA: K.M. v. E.G.
A California court of appeals
affirmed the lower court’s judgment for the birth mother in a custody
battle between lesbian partners over a child born from an in vitro
fertilization procedure using eggs donated by the other partner. The
court’s finding for the birth mother was based on substantial evidence
establishing that the parties intended the birth mother to be the sole
legal parent unless there was a formal adoption by the other partner.
Further, although the partners shared parenting responsibilities, the
egg donor never initiated formal adoption proceedings. Relying on the
“intention” test established under California case precedent, the court
concluded that the egg donor did not qualify as a natural parent under
Cal. Fam. Code § 7610(a) (the state Uniform
Parentage Act). In ruling, the court rejected the plaintiff’s arguments
based on her revised intentions toward the child, estoppel theories,
co-parenting rights, and the application of “best interests of the
child” analysis.
Cite:
Super.Ct. No. CV 020777, 2004 Cal. App. LEXIS 705 (Cal. App. 1 Dist. May
10, 2004)
Web Link:
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WASHINGTON: In re
Parentage of L.B.
A Washington Appeals Court
affirmed in part, reversed in part and remanded a decision of the lower
court, which dismissed a woman’s petition against the biological mother
of a child, who was conceived by artificial insemination during the
parties’ twelve-year intimate relationship. The woman sought to
establish either a co-parentage under the Washington Uniform Parentage
Act (UPA) or a right to visitation. The appellate court affirmed the
lower court’s decision regarding the UPA, finding that while the
previous version of the UPA may have provided a cause of action for a
same sex unmarried individual to pursue parentage based on artificial
insemination, the current Act’s omission of language regarding the
situation was deliberate, and as such the woman had no cause of action
under the current Act. However, the appellate court did find that a
common law claim of defacto parentage or psychological parentage existed
in the state and thus reversed and remanded that part of the decision.
The appellate court noted in order to entertain a petition under the
claim, the woman would have to prove the existence of a parent-child
like relationship, as well as a “triggering factor” such as the legal
parent’s denial of visitation, and that the relationship must have been
formed with the consent and encouragement of the biological parent.
Finally, the appellate court concluded that an action for visitation
under Washington’s third party visitation statute was not barred by the
decision of the United States Supreme Court in Troxel, and
distinguished the factual situation in Troxel from the present
case.
Cite: No. 52151-9-I, 2004 Wash. App. LEXIS 833 (May 3, 2004).
Web Link:
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ADOPTION PROCEDURE/Finality of
Adoption Decree
UTAH:
State of Utah, in the interest of B.B., v. Scott
After the termination of the
birth parent’s rights because of neglect, the child’s paternal aunt and
uncle and maternal grandparents filed competing custody and guardianship
petitions. The grandparents stipulated that they would withdraw their
petition if they were granted visitation rights; the juvenile court thus
granted the petition of the aunt and uncle, the Scotts, and entered a
pre-adoption order for visitation rights for the grandparents, the
Hardingers. The final adoption decree, however, failed to include
visitation rights for the Hardingers. After the Scotts curtailed their
visitation, the Hardingers filed a contempt motion and the Scotts
responded with a motion to quash, arguing that the juvenile court’s
jurisdiction ended with the entry of the adoption decree. The trial
court denied the Scotts’ motion and ordered visitation restored. The
court of appeals reversed, holding that the trial court lacked
jurisdiction to enforce the pre-adoption visitation order. On review,
the Supreme Court affirmed, holding that visitation order was a final
appealable order “because it left no question for further judicial
decree action concerning the juvenile court’s jurisdiction to enforce
the pre-adoption visitation order,” and that the juvenile court lacked
subject matter jurisdiction to enforce the order after the adoption
decree was entered because “the continuing jurisdiction of the court
terminates... upon order of the court.”
Cite:
No.
20020404, 2004 Utah LEXIS
70 (May 7, 2004)
Web Link:
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TEXAS: In the
Interest of Unborn Child
A Texas Court of
Appeals reversed the trial court’s ruling that a teenaged birth father’s
affidavit waiving interest in an unborn child, which he signed in his
principal’s office after it was faxed there by an adoption agency after
only briefly being advised of his rights, was valid. The day after
signing the waiver, the father attempted to revoke it and filed an
action to determine parentage. In a bench trial, the trial court ruled
that the affidavit complied with the statutory requirements for such
waivers and was irrevocable. The Appellate Court disagreed, ruling that
the affidavit was not irrevocable because it did not comply with the
statute, the father had not been given a copy as required, and a proper
agency had not been named as managing conservator of the child. Because
of the waiver’s invalidity, the court found the issue of whether it had
been voluntarily executed moot.
Cite:
NO.
07-03-0187-CV, 2004 Tex. App. LEXIS 4248 (Texas App. 7th
Dist. May 11, 2004)
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OTHER
CASES OF INTEREST
Putative Fathers
MARYLAND: In re Thomas H.
On review of an order of the
trial court in a child in need of assistance proceeding, the Court of
Appeals of Maryland dismissed the appeal of a putative father who was
alleged to have abused the child. The father, who had been adjudicated
the child’s legal father and had been her custodian for years, contested
a determination that was based on tests and other evidence that he was
not the father and thus not a party to the continued CINA proceeding.
The appellate court held that despite procedural lapses by the trial
court, it lacked jurisdiction over the appeal due to the father’s
failure to timely challenge his dismissal as a party.
Cite: Case
No. 92, 2004 Md. LEXIS 248
(Md.
App. May 10, 2004)
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Termination of Parental Rights/Appeals
of Orders of Termination
ILLINOIS: In re Jaron Z.
The Court of Appeals of Illinois affirmed a Cook County Court order
terminating a mother’s parental rights. The Appeals Court rejected the
mother’s argument that a second adjudication of neglect was required
prior to the termination of her parental rights because the children had
been returned to her home for a time period following the original
dependency adjudication, holding that the court maintained its
jurisdiction after the original adjudication. In addition, the court
found that the mother’s due process rights were not violated and that
the finding unfitness was not inconsistent with the evidence presented.
Cite: No.
1-03-0286, 2004 Ill App. Lexis 457 (Ill. App, 1st Dist. May
7, 2004)
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(May opinions for 1st Dist. may have not yet been posted;
check back later)
CALIFORNIA: In re Isayah C.
The Court of
Appeals of California reversed and remanded a Marin County Superior
Court order that declared child (one of 3 siblings of different fathers)
dependent and placed him with an aunt after his father, who had joint
legal custody with the mother and physical custody of the child, was
arrested for parole violation. The trial court had refused the father’s
request that he be permitted to retain custody and send his son to be
cared for with relatives until his release. The Appeals Court ruled that
the trial court had improperly focused on the impact on reunification
efforts with the mother that the child’s being sent to another city
would have, rather than on whether there was evidence that the son’s
placement with his father would threaten the child’s physical health and
protection from future harm. However, because the court had no
information on the current situation of the child and his family
members, it remanded the case to the trial court for further
proceedings.
Cite:
No.A103022, 2004
Cal. App. Lexis 720 (Cal.
App. 1st Dist. May 12, 2004)
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Foster Caregivers Rights
WASHINGTON: Smith v. Washington Department of Social and Health Services
The State Dep’t of Social and
Health Services revoked the foster care
license of appellant, an 82-year-old foster mother, based on an
administrative determination of neglect and dependency of the foster
children in the home. Appellant sued the Washington Dep’t of Social and
Health Services, alleging age discrimination as the basis for the loss
of the license. Affirming the trial court’s summary judgment
dismissing Appellant’s age discrimination civil suit, the Court of
Appeals held that the “unappealed administrative finding of neglect
disqualified Smith from providing foster care,” thus she could “not
establish that her performance as a licensee was satisfactory an element
of her prima facie case for age discrimination.”
Cite:
52444-5-I, 2004
Wash. App. LEXIS 953 (May 10, 2004)
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ADOPTION Consent Requirements/Who Need Not
Consent
NEW YORK: In re Adoption of a Child Whose First Name is Chloe
A Surrogates Court of New York granted
summary judgment on a stepfather’s petition to adopt his stepdaughter
without the biological father’s consent, which alleged consent was not
necessary due to the biological father’s abandonment of the child. The
court found summary judgment proper under the relevant state statute
because for six months or more the biological father evinced an intent
to forego his parental rights and obligations, manifested by his failure
to visit or communicate with the child, or persons having custody,
although he was able to do so. The Court found that the biological
father’s only communications with his child in the relevant six-month
period were a card/gift certificate for her birthday and possible the
same for Christmas. Thus, although the father lived locally, because he
made no attempt to write, visit, telephone or inquire about the child’s
well-being outside the above actions, a finding of abandonment was
warranted and the adoption could proceed without his consent.
Cite: No. X2003-62, 2004 N.Y. Misc. LEXIS 494 (May 3, 2004).
Web Link:
Click HERE for case
May 20, 2004
Inside this Issue (click case name to jump to
summary):
Adoption
Procedure/Representation of Parties
IOWA: In re S.A.J.B.
Termination of
Parental Rights/Process
NORTH CAROLINA: In re JD
OHIO: In Re Kristina Cravens
Termination of
Parental Rights/Grounds
TEXAS: In the Interest of
J.J.O.
Termination of
Parental Rights/Notice
CONNECTICUT: In re Samantha C.
INDIANA: In re Involuntary Termination of Parental Rights of S.P.H. and
H.P.H.
Termination of
Parental Rights/Appeals of Orders
of Termination
NEBRASKA: In re Larisa S.
LOUISIANA: In re L.B.W.
MINNESOTA: In re Welfare of Children of W.L.P and T.J.S.
CALIFORNIA: In re Crystalle W.
SIGNIFICANT CASES
Adoption Procedure/Representation of
Parties
IOWA: In re S.A.J.B.
Supreme Court of Iowa reversed and
remanded a lower court order denying an indigent mother’s request for
counsel at public expense to defend against an involuntary termination
of her parental rights. Under Iowa law, two statutes govern the
termination of parental rights. In one the action is initiated by the
state, while in the other the action is initiated by a private party,
such as a parent or prospective parent. The Supreme Court found that
under the statutory scheme, where a parent must defend against an
involuntary termination of parental rights brought by a private party,
the Equal Protection Clause of the Iowa Constitution guarantees an
indigent parent the right to counsel, as would similarly be guaranteed
to a parent under the first statute mentioned above.
Cite: No. 37 /
03-1364, 2004 Iowa Sup. LEXIS 165 (May 12, 2004).
Web Link:
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Termination of Parental Rights/Process
NORTH CAROLINA: In re JD
The Court of
Appeals of North Carolina reversed a district court’s order terminating
a mother’s parental rights. The appellate court concluded that the lower
court should have appointed a guardian ad litem for the mother under
state law requiring such appointment in cases where it is alleged that a
parent is incapable of providing proper care because of mental illness
or other similar cause, even though neglect and abuse of the child were
the actual grounds for termination pursued during the hearing and
ultimately adopted by the court as the basis for its order. The
appellate court noted that the trial court considered the mental health
issues in its dispositional order and that the evidence tended to show
that the mother’s mental health issues were so intertwined with the
child’s neglect to make separation of the two virtually impossible,
making appointment of a GAL necessary.
Cite:
No. COA03-71-2, 2004 N.C. App. Lexis 744 (N.C. Ct. App. May 4, 2004)
Web Link:
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OHIO: In Re Kristina Cravens
An Ohio Court of Appeals
reversed and remanded order of a lower court terminating a father’s
parental rights to his two-year-old daughter. The appellate court noted
that in order to terminate parental rights and award permanent custody
to an agency under a relevant state statute, two prongs of a permanent
custody test must be met: (1) that the child is abandoned, orphaned,
has been in temporary custody of an agency for 12 out of the last 22
months, or that the child cannot be placed with a parent in a reasonable
time; and (2) that the grant of permanent custody is in the best
interest of the child pursuant to consideration of all the relevant
factors enumerated in the statute. The appellate court found that,
while the first prong of the statute had been met, the lower court erred
as to the second prong because there was no indication in the record
that the lower court considered all of the factors in determining
the child’s best interest and subsequently failed to making findings
regarding the father on record as required.
Cite: No. 4-03-48, 2004 Ohio App. LEXIS 2109 (May 10, 2004)
Web Link:
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Termination of Parental Rights/Grounds
TEXAS: In the Interest of
J.J.O.
A Texas
Court of Appeals affirmed the trial court’s order terminating a mother’s
parental rights, finding that the mother engaged in conduct which
endangered the “physical or emotional well being” of the child. Under
the Texas statute, termination
of parental rights requires “more than a single act or omission” by the
parent and a termination proceeding is initiated as a result of “a
voluntary, deliberate, and conscious course of conduct by the parent”
which places the child in danger. The appellate court found that the
mother’s
refusal
to follow the case plan, her unstable lifestyle and her consistent drug
use, including during pregnancy, satisfied the criteria for termination
of her parental rights and placement of the children
with the foster family which met all of the children’s needs.
Cite: No.
02-03-00267-CV, 2004 Tex. App. LEXIS 4150 (Tex. Ct. App. May 6, 2004)
Web Link:
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OTHER CASES OF INTEREST
Termination of Parental Rights/Notice
CONNECTICUT: In re Samantha C.
The Connecticut Supreme Court
reversed the trial court’s order terminating a couples’ parental rights
as a result of the adverse inference drawn upon from the Practice Book,
2001 §34-1(f) which allows any parent to remain silent and avoid
compelled testimony which might incriminate them in any criminal
matter. The Supreme Court held that the trial court incorrectly
inferred from the respondents’ silence that they “are continuing their
volatile relationship and are unable to care for their Samantha’s needs”
and thereby terminated their parental rights. The Supreme Court held
that the parental rights should not have been terminated, without
notice, based solely on their failure to testify on their own behalf in
a termination of parental rights proceeding.
Cite:
No. SC16890, 2004 Conn.
LEXIS 167 (Conn. Apr. 27, 2004).
Web Link:
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INDIANA: In re Involuntary Termination of Parental Rights of S.P.H. and
H.P.H.
An Indiana Court of Appeals
affirmed the trial court’s order terminating a father’s parental rights
holding that: (1) removal was in the children’s best interest; (2) the
lack of the father’s signature on the case plan amounted to a procedural
violation; (3) the trial court’s failure to secure the father’s presence
at the termination hearing did not violate his due process rights since
he had notice and failed to request transportation from prison; and (4)
the evidence supported the lower court’s finding that conditions in the
home which lead to the children’s removal would not be promptly
remedied.
Cite:
No. 11A05-0401-JV-23, 2004 Ind. App. LEXIS 747 (Ind. Ct. App. Apr. 27,
2004)
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Termination of Parental Rights/Appeals
of Orders of Termination
NEBRASKA: In re Larisa S.
The Nebraska
Court of Appeals affirmed a juvenile court ruling that termination of
parental rights was in the child’s best interest because the father
failed to maintain substantial contact with the child during his
incarceration, the mother was found to be unstable and the children had
been out of the home for 15 or more months out of the preceding 22
months.
Cite:
No. A03-757, 2004 Neb. App. Lexis 110 (Neb. Ct. App. May 4, 2004).
Web Link:
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case
LOUISIANA: In re L.B.W.
The Court of Appeals of
Louisiana affirmed the lower court’s decision to terminate parental
rights finding that, according the relevant State statute, termination
of parental rights was proper because: (1) at least one year had elapsed
since the child was removed from the parent's custody pursuant to a
court order; (2) there had been no substantial parental compliance with
the case plan for services which had been previously filed by the
department and approved by the court as necessary for the safe return of
the child; and (3) despite earlier intervention, there was no reasonable
expectation of significant improvement in the parent's condition or
conduct in the near future, considering the child's age and his need for
a safe, stable and permanent home.
Cite: No.
38,679-JAC, 38,680-JAC, 2004 WL 951353 (La. Ct. App. Cir. May 5, 2004)
Web Link:
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MINNESOTA: In re Welfare of Children of W.L.P and T.J.S.
A Minnesota Court of Appeals
affirmed the lower court’s termination of parental rights finding the
parents to be palpably unfit as parents based upon a showing that
parental rights to one or more other children were involuntarily
terminated and the parents failed to rebut this presumption. The
appellate court also concluded that admitting to the allegations in a
petition to terminate parental rights does not convert the proceeding
into a voluntary termination of parental rights. To voluntarily
terminate parental rights, the parent must affirmatively demonstrate a
desire to terminate the parent-child relationship for good cause.
Cite: No.
A03-1593, A03-1603, 2004 WL 950016 (Minn. Ct. App. May 4, 2004)
Web Link:
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CALIFORNIA: In re Crystalle W.
A California Court of Appeals
affirmed the lower court’s order terminating parental rights and
allowing the child to be adopted by her foster parents, concluding that
the trial court is required to consider the sufficiency factual evidence
using a clear and convincing standard and if there is substantial
evidence to supports its conclusion the determination is not open to
review on appeal.
Cite:
No. F044469, 2004 WL 944503 (Cal. Ct. App. May 3, 2004)
Web Link: Click
HERE for case
May 13, 2004
Inside this Issue (click case name to jump to
summary):
Termination of
Parental Rights/Appeals of Orders
of Termination
FLORIDA: In re K.A.
IOWA: In re Termination of Parental Rights to Zachary B., et al.
Adoption
subsidies and Assistance
OHIO:
Glassco v. Ohio Dep't of Job & Family Servs.
Termination of
Parental Rights/Appeals of Orders
of Termination
MINNESOTA: In re Children
of J.C.
TEXAS: Castorena v. Texas Dep't of Protective & Regulatory Services
Termination of Parental Rights-
Process
Tennessee:
In re B.N.S.
CALIFORNIA: Quentin v. Los Angeles County Superior Court
SIGNIFICANT CASES
Termination of
Parental Rights/Appeals of Orders
of Termination
FLORIDA: In re K.A.
The Florida Court
of Appeals affirmed a lower court’s decision terminating parental rights
to a couple’s youngest child but reversed an order terminating parental
rights as to the two older children. The appellate concluded that there
was evidence of egregious conduct with regard to the treatment of the
youngest child (numerous physical injuries to the infant) which
supported termination of parental rights. However, the court determined
that termination of parental rights as to the older children was
erroneous because the Department of Children and Family Services failed
to present clear and convincing evidence that termination was in the
manifest best interest of the older children and that termination was
the least restrictive means to protect them.
Cite:
Nos. 2D03-866, 2D03-876, 2004 WL 902345 (Fla.
Ct. App. Apr. 28, 2004)
Web Link:
Click HERE for case
IOWA: In re Termination of Parental Rights to Zachary B., et al.
The Supreme Court of Wisconsin
affirmed the appellate court’s judgment reversing a lower court’s order
terminating a mother’s parental rights to her three children solely on
the ground of incestuous parenthood (Wis. Stat. § 48.415(7)) because it
violated the mother’s substantive due process rights by rendering her
unfit based solely on her status as an incest victim. The court
determined that the mother had a fundamental liberty interest in
parenting her children and the statute, as applied to a victim of
long-term and continuous incest, was not narrowly tailored to advance
the compelling state interests of protecting children from unfit
parents, it did not promote deterrence, and it did not protect children
from the psychological harm of being raised in an incestuous family.
Cite:
Nos. 03-0060
- 0062, 2004 WL 895842 (Wis. Apr. 28, 2004)
Web Link:
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Adoption subsidies and Assistance
OHIO:
Glassco v. Ohio Dep't of Job & Family Servs.
An Ohio Court of Appeals reversed and
remanded an order of the lower court, which affirmed an order of the
Ohio Department of Job and Family Services denying an adoptee’s
application for post-finalization adoption assistance benefits. The
appellate court found that the agency’s and lower court’s decisions
failed to analyze the issue of whether the child was eligible to receive
benefits in the proper context. The appellate court found that the
trial court should have first examined the requirements under a relevant
state statute to determine if the child was eligible for future
assistance benefits and then determine whether the child was eligible
for retroactive assistance benefits. The appellate court found that the
trial court erred by requiring the adoptee to prove she was a “special
needs” child, as she only had to prove that her adoptive parent had not
been informed of the adoption assistance program prior to the
finalization of adoption to show her eligibility for future benefits
under the state statute.
Cite:
No. 03AP-871, 2994 Ohio App. LEXIS 1866 (Ohio Ct. App. Apr. 29, 2004)
Web Link:
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OTHER CASES OF INTEREST
Termination of Parental Rights/Appeals
of Orders of Termination
MINNESOTA: In re Children of
J.C.
A Minnesota Court
of Appeals affirmed a lower court’s order terminating a mother’s
parental rights, concluding that the mother cited no authority to permit
review of evidentiary rulings that were not objected to at trial and not
assigned in a new-trial motion, and the grandmother’s unwillingness to
adopt the children was an insufficient basis for a remand.
Cite:
No. A03-1069, 2004 WL 885701 (Minn.
Ct. App. Apr. 27, 2004)
Web Link:
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TEXAS: Castorena v. Texas Dep't of Protective & Regulatory Servic
