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Weekly Case Summary Archive

Archives are of cases prior to July 2004

 

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In an unpublished opinion, a California Court of Appeals denied the petitioner’s request for an extraordinary writ to vacate the orders of the juvenile court terminating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)
http://www.alalinc.net A paid registration is required for access on this site.
 

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)
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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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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).
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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).
Web Link: Click HERE for case


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)
Web Link: Click HERE for case

 

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)
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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)
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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)
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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).

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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)
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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)
Web Link: Click HERE for case


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)
Web link:
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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: Click HERE for case


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)
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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)

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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, t
ermination 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: Click HERE for case

 

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
).

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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).
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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)
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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)
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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)
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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)
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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)
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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:  Click HERE for case

 

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: Click HERE for case

TEXAS: Castorena v. Texas Dep't of Protective & Regulatory Servic