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In an unpublished opinion, a California Court of Appeals denied the petitioner’s request for an extraordinary writ to vacate the orders of the juvenile court terminating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)
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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 6^th child, under Fla. Stat. §39.806(l)(i) DCF was authorized to file a petition for the termination of parental right to her 7^th 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 14^th 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).
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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)
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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. 7^th 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, 1^st Dist. May 7, 2004)
Web link: Click HERE for case
(May opinions for 1^st 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. 1^st Dist. May 12, 2004)
Web link: Click HERE for case

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)
Web Link: Click HERE for case

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)
Web Link: Click HERE for case

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: Click HERE for case

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: 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)
Web Link: Click HERE for case

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: Click HERE for 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)
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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)
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: Click HERE for case

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)
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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: Click HERE for case

TEXAS: Castorena v. Texas Dep't of Protective & Regulatory Services
A Texas Court of Appeals affirmed the lower court’s order terminating parental rights because clear and convincing evidence supported a finding of neglect and endangerment and termination was in the child’s best interest.
Cite: No. 03-02-00653-CV, 2004 WL 903906 (Tex. Ct. App. Apr. 29, 2004)
Web Link: Click HERE for case

Termination of Parental Rights- Process

Tennessee: In re B.N.S.
A Tennessee Court of Appeals reversed and remanded an order of a lower court terminating a mother’s parental rights to her child, finding that Marion County, where the lower court was located and where the child had previously lived with her aunt and uncle, was not the proper venue for the proceeding.  The appellate court found that Hamilton County was the first county to acquire jurisdiction over the case and had not subsequently relinquished or transferred jurisdiction.  Therefore, proper venue was not in Marion County because the Hamilton County Juvenile Court had already exercised jurisdiction, the child was no longer physically residing in Marion County, and the Department of Children’s Services in Marion County did not have legal custody of the child. 
Cite:  No. M2003-02524-COA-R3-PT, 2004 Tenn. App. LEXIS 263 (Tenn. Ct. App. Apr. 26, 2004)
Web Link: Click HERE for case

CALIFORNIA: Quentin v. Los Angeles County Superior Court
A California Court of Appeals granted a writ of relief vacating a juvenile court’s order setting a selection and implementation hearing.  The appellate court held that the biological father was entitled to presumed father status and to reunification services designed to assist him in developing a parental relationship with his daughter and only if he fails to develop such a relationship within a reasonable time may the court consider whether a new selection and implementation hearing would be appropriate.
Cite:  No. B172922, 2004 Cal. App. Unpub. Lexis 4031 (Cal. Ct. App. Apr. 27, 2004
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May 4, 2004

Inside this Issue (click case name to jump to summary):

Termination of Parental Rights/Process
OHIO: In re Williams

Adoption Procedure/Representation of Parties
NEW YORK: In re Gustavo G

Constitutional Issues/§ 1983
MINNESOTA: Ware v. Moe

Wrongful Adoption
SOUTH CAROLINA: Bergstrom v. Palmetto Health Alliance

Termination of Parental Rights/Appeals of Orders of Termination
Federal Law/Indian Child Welfare Act (“ICWA”)
CALIFORNIA: In re Christian A.

Termination of Parental Rights/Appeals of Orders of Termination
MINNESOTA: In re R.W.

Termination of Parental Rights/Process
TENNESSEE: In re M.E.W.

Termination of Parental Rights/Appeals of Orders of Termination
MONTANA: In re J.G.

Termination of Parental Rights/Process
CONNECTICUT: In re Samantha C.

Termination of Parental Rights/Notice Rights
INDIANA: Hancock v. Clay County Div. Of Family and Children

SIGNIFICANT CASES

Termination of Parental Rights/Process

OHIO: In re Williams
The Ohio Supreme Court affirmed the lower court’s judgment on the certified issue of whether children who are the subject of a motion to terminate parental rights are “parties” to that proceeding for the purposes of Juv.R. 4(A) and R.C. 2151.352, requiring the appointment of counsel.  The Court determined that a child who is the subject of a juvenile court proceeding to terminate parental rights is a party to that proceeding and, therefore, is entitled to independent counsel in certain circumstances.
Cite: 805 N.E. 2d 1110 (Ohio 2004)(April 14, 2004)
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Adoption Procedure/Representation of Parties

NEW YORK: In re Gustavo G
The Supreme Court of New York reversed the family court’s order dismissing the maternal grandmother’s adoption petition based upon the family court’s disqualification of the maternal grandmother’s counsel.  The court concluded that the family court improperly applied an unjustified per se disqualification rule and that the record clearly showed that the proposed adoption was in the child’s best interests.  The court remanded the matter with the direction to complete the adoption process.
Cite:  No. 1514, 2004 Ny App. Div. Lexis 4772 (NY App. Div. Apr. 22, 2004)
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Constitutional Issues/§ 1983

MINNESOTA: Ware v. Moe
The United States District Court for the District of Minnesota granted a motion for summary judgment for defendants, all social workers and police officers, in a 42 U.S.C. § 1983 action filed by plaintiff parents who alleged their Fourth Amendment rights were violated when defendants removed the plaintiffs’ three minor children from their home in response to reports of abuse.  The court held that qualified immunity shielded the defendants from liability because defendants did not violate clearly established constitutional rights.  The court found no law prohibiting police officers from conducting a protective search while executing a child custody order and, similarly, no law prevented them from taking the children’s necessities when removing the children from the home.  In this case, the court found that the government officials were acting properly when they searched the home because the officers were aware of recent domestic disturbances between the mother and father and the officials merely helped the mother collect the children’s necessities such as medications, diapers, and a child seat when leaving the home.
Cite:  No. 03-2504 ADM/JSM, 2004 U.S. Dist. LEXIS 6791, (D. Minn. Apr. 19, 2004).
Web link:  We were unable to locate this case on the Web

Wrongful Adoption

SOUTH CAROLINA: Bergstrom v. Palmetto Health Alliance
The Supreme Court of South Carolina affirmed in part and vacated in part the court of appeal’s decision affirming the trial court’s dismissal of daughter’s claim for intentional infliction of emotional distress and directed verdict on daughter’s negligence claim against hospital for allegedly failing to follow its adoption policies.  The court concluded that, because it had declared S.C. Code Ann. § 44-7-50 unconstitutional, the daughter was required to prove that the hospital acted recklessly not simply negligent and that the daughter had not met the requisite burden of production of evidence.  The daughter’s action for intentional infliction of emotional distress failed for similar reasons.  The court, however, concluded it was unnecessary to address the issues of duty or proximate cause and, therefore, vacated those portions of the court of appeals’ decision.
Cite: No. 25807, 2004 WL 834095 (S.C. Apr. 19, 2004)
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OTHER CASES OF INTEREST

Termination of Parental Rights/Appeals of Orders of Termination
Federal Law/Indian Child Welfare Act (“ICWA”)

CALIFORNIA: In re Christian A.
The California Court of Appeals affirmed a lower court’s order terminating parental rights, concluding that the court did not abuse its discretion in refusing to relieve a father of trial counsel and that ICWA notice requirements are met when the only error is not prejudicial and the birth mother does not contest the information the tribes received regarding maternal grandparents.
Cite:  No. B168619, WL 844046 (Cal. App. Apr. 21, 2004)
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Termination of Parental Rights/Appeals of Orders of Termination

MINNESOTA: In re R.W.
The Supreme Court of Minnesota affirmed the court of appeals’ decision affirming the district court’s judgment terminating the mother’s parental rights.  The Court concluded that the court of appeals erred in affirming termination based solely on the best interests of the children, but nonetheless affirmed the termination of the mother’s parental rights, concluding that the district court’s order terminating parental rights was based on clear and convincing evidence that statutory grounds for termination were met and that termination was in the best interests of the children.
Cite:  No. A03-262, 2004 Minn Lexis 200 (Minn. April 22, 2004)
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Termination of Parental Rights/Process

TENNESSEE: In re M.E.W.
The Tennessee Court of Appeals vacated and remanded a lower court’s order denying the Department of Children’s Services’ petition to terminate parental rights that was based on the mental incapacity of a mother who had continued to have a relationship with her children who had been in the same foster home for over seven years.  The Court concluded that the lower court had failed to make specific findings of fact and conclusions of law regarding the children’s best interests as required by a relevant state statue and that stipulations entered into by the parties could not replace an individualized, specific finding of the children’s best interests.
Cite:  No. M2003-01739-COA-R3-PT, 2004 Tenn. App. LEXIS 250 (Tenn. Ct. App. Apr. 21, 2004).
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Termination of Parental Rights/Appeals of Orders of Termination

MONTANA: In re J.G.
The Supreme Court of Montana affirmed the lower court’s order terminating the mother’s parental rights and awarding custody of the children to the Department of Public Health and Human Services with the right to consent to adoption, concluding that the mother did not successfully comply with her treatment plan, that her condition was unlikely to change within a reasonable amount of time, and that termination was in the children’s best interests.
Cite:  No. 03-146, 2004 WL 856779 (MT Apr. 20, 2004)
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Termination of Parental Rights/Process

CONNECTICUT: In re Samantha C.
The Connecticut Supreme Court reversed the trial court’s order terminating the Respondent’s parental rights as a result of the adverse inference drawn from the Practice Book, 2001 §34-1(f) which allowed a parent to remain silent and avoid compelled testimony which might incriminate him/her in any criminal matter.  The Court opined that the trial court was incorrect in inferring from Respondents’ silence that they were “continuing their volatile relationship and are unable to care for their Samantha’s needs,” and, therefore, terminating Respondents’ parental rights.  The Supreme Court held that the Respondents’ 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: SC 1689, 2004 Conn. LEXIS 167 (April 27, 2004)
Web Link: Click HERE for case

Termination of Parental Rights/Notice Rights

INDIANA: Hancock v. Clay County Div. Of Family and Children
The Indiana Court of Appeals affirmed the trial court’s order terminating the natural father’s parental rights, holding that removal was in the children’s best interest, the lack of the father’s signature on the case plan did not amount to a procedural violation, 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 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(April 27, 2004)
Web Link:  Click HERE for case
 

April 29, 2004

Inside this Issue (click case name to jump to summary):

Termination of Parental Rights/Appeals of Orders of Termination
COLORADO: In re A.J.C.

Putative Fathers
INDIANA: In re Fitz

Termination of Parental Rights/Process
ALABAMA: In re YM

Termination of Parental Rights/Representation of Parties
ILLINOIS: In re S.G., M.L. and T.L.

RIGHTS OF BIOLOGICAL RELATIVES
LOUISIANA: State ex rel. D.B v. M.O.
 

SIGNIFICANT CASES

Termination of Parental Rights/Appeals of Orders of Termination

COLORADO: In re A.J.C.
The Colorado Supreme Court reversed the district court’s determination that it was not able to exercise jurisdiction with respect to the failed adoption of a child born in Missouri.  The Colorado Supreme Court concluded that the Colorado district court could exercise jurisdiction for the purposes of determining the custody of a child because the Missouri court failed to conduct a best interest hearing which constituted a refusal to exercise jurisdiction in Missouri.  The Court also held that failed adoption proceedings do not in all cases require custody to be returned to the biological parents, first there must be a best interest hearing.
Cite: No. 04SA18, 2004 WL 764697 (Colo. Apr. 12, 2004).
Web Link: Click HERE for case

Putative Fathers

INDIANA: In re Fitz
An Indiana Court of Appeals affirmed a trial court’s judgment denying a father’s motion for relief from judgment after the trial court found his consent to adoption was irrevocably implied.  On appeal, the father argued that a sufficient fraud was committed on the court to enable him to obtain a relief from judgment, based on the fact that the original adoptive parents did not wish to contest the father’s rights to establish paternity and then subsequently withdrew from the adoption and caused a second set of adoptive parents to be substituted.  The appellate court concluded that the father was given notice of the mother’s intent to have the child adopted and because he did not file a paternity action within 30 days as required by state statute his consent to adoption was irrevocably implied.  Thus, the appellate court found that the identity of the adoptive parents at the time of his hearing was not relevant to the putative father’s duty to file a timely paternity action to preserve his right to contest to adoption.  Therefore, because the father did not show that the trial court’s finding that he failed to timely file a paternity action was procured, by fraud he was not permitted to challenge the adoption.
Cite: No. 29A04-0308-CV-384, 2004 Ind. App. LEXIS 607 (Ind. Ct. App. Apr. 12, 2004).
Web Link: Click HERE for case

OTHER CASES OF INTEREST

Termination of Parental Rights/Process

ALABAMA: In re YM
The Alabama Supreme Court affirmed the Court of Appeals’ ruling that a termination of parental rights hearing is an adjudicatory hearing and concluded that hearsay evidence was not competent evidence in an adjudicatory hearing unless one of the exceptions to the hearsay rule applied.   The Supreme Court found that the trial court erred in taking judicial notice of the contents of a court file which contained reports submitted by case workers, psychological evaluations of the children and reports from family-violence shelter personnel because these materials constituted hearsay evidence and therefore  were inadmissible.
Cite: No. 1020739, 2004 Ala Lexis 87 (Ala. Apr. 16, 2004).
Web link: We were unable to locate this opinion on the Web.

Termination of Parental Rights/Representation of Parties

ILLINOIS: In re S.G., M.L. and T.L.
An Illinois Court of Appeals affirmed the juvenile court’s finding of probable cause for placement of three children in temporary custody with the Illinois Department of Children and Family Services based on abuse and neglect charges filed against the mother, but reversed and remanded the case back to the trial court for appointment of new counsel for the mother on finding that the mother’s appointed attorney had previously represented the children as a guardian as litem and a per se conflict existed. The appellate court also held that a party in a Juvenile Court proceeding should be afforded the same standard of legal representation as a party in a criminal proceeding.
Cite: No. 5-02-0594, 2004 Ill. App. LEXIS 370 (Ill. Ct. App, Apr. 7, 2004).
Web Link: Click HERE for case

RIGHTS OF BIOLOGICAL RELATIVES

LOUISIANA: State ex rel. D.B v. M.O.
The Louisiana Court of Appeals affirmed the juvenile court’s decision to place the child in the home of his great-aunt because according to the Louisiana Children's Code the state must first look for the home of a relative in which to place a child taken from his biological parents.
Cite: No. 03-1408, 2004 WL 787227 (La. Ct. App. Apr. 14, 2004).
Web Link: Click HERE for case
 

April 15, 2004

Inside this Issue (click case name to jump to summary):

Termination of Parental Rights/Process
MISSOURI: In re K.A.W. and K.A.W.

Termination of Parental Rights/Grounds for Termination
OHIO: In re K.G.

Termination of Parental Rights/Appeals of Orders of Termination
NEBRASKA: In re Crystal C.

Adoption Consent Requirements/Who Need Not Consent
MISSOURI: In re S.J.S.

INHERITANCE RIGHTS IN ADOPTION
CALIFORNIA: Ehrenclou v. MacDonald

Adoption Procedure
OHIO: In re Samuel M.

Termination of Parental Rights/Appeals of Orders of Termination
NEW YORK: In re Deborah I.
MISSOURI: In re P.L.O. and S.K.O.
ILLINOIS: In re Dominique W.

Rights of Biological Relatives
LOUISIANA: In re T.M.

SIGNIFICANT CASES

Termination of Parental Rights/Process

MISSOURI: In re K.A.W. and K.A.W.
The Missouri Supreme Court reversed and remanded the trial court’s order terminating a mother’s parental rights to twin girls, holding that the trial court’s findings were insufficient to warrant an order terminating the mother’s parental rights.  Mo. Rev. Stat.§ 211.447 encompasses both the “best interests of the child” test and the “parental fault” standard in determining whether termination of parental rights is appropriate and requires that there must be past dangerous behavior coupled with an indication of the likelihood of future harm in order to necessitate termination proceedings.  The Court found that even after two failed adoptions, the mother had not acted in a manner to warrant abuse, neglect or dependency charges.  Specifically, the Court concluded that the mother’s two attempts to place the children in an adopted home did not constitute severe or recurrent emotional abuse which would override her fundamental liberty interests and there was no evidence to support a finding that she was now incapable of caring for her children in the future simply because she had placed them for adoption in the past.
Cite: No. SC85683, 2004 Mo. LEXIS 43 (Mo. Mar. 30, 2004)
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Termination of Parental Rights/Grounds for Termination

OHIO: In re K.G.
The Ohio Court of Appeals reversed the trial court’s judgment terminating the father’s parental rights to his three minor children and placing them in the permanent custody of Wayne County Children Services Board.  The case presented an issue of first impression for the court; namely, whether a children services agency has authority to file a motion for permanent custody that alleges the so-called 12 of 22 grounds before the children have been in the temporary custody of the agency for a full 12 months.  The court held that the agency lacks authority to file for permanent custody on this basis until the children have been in its temporary custody for a full 12 months.  In this case, because the children had been in the temporary custody of the agency for only 10 months when the agency filed its petition for permanent custody, the agency had no authority to file the motion alleging the “12 of 22” grounds because those grounds did not yet exist.
Cite:  Nos. 01-1289 thru 01-1291, 2004 Ohio App. LEXIS 1290 (Ohio Ct. App. Mar. 24, 2004)
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Termination of Parental Rights/Appeals of Orders of Termination

NEBRASKA: In re Crystal C.
The Nebraska Court of Appeals reversed the decision of the lower court terminating the parental rights of a father to his daughter based on the lower court’s finding that the father’s absence from the state constituted abandonment under a relevant state statute.  The appellate court concluded the lower court erred in its finding because, while the total time the father had been absent from the state over the course of a two year period would support a finding of abandonment, the statute specifically required the absence to occur six months “immediately prior” to filing a petition for termination, and this requirement was not met here.
Cite: No.  A-03-651, 2004 Neb. App. LEXIS 62 (Neb. Ct. App. Mar. 23, 2004) 
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Adoption Consent Requirements/Who Need Not Consent

MISSOURI: In re S.J.S.
The Missouri Court of Appeals affirmed the trial court’s decision granting the stepfather’s adoption petition.  The court concluded that the trial court had jurisdiction to hear the matter because the child was in the lawful and actual custody of his stepfather for more than six months (the statutory period).  In addition, the court concluded that the trial court did not err in finding that the father willfully and continuously neglected to provide the child with the necessary care and protection and, therefore, that the father’s consent to the adoption of his child was not required.  The court agreed that the father’s providing medical insurance for the child was superficial and minimal at best in light of the father’s lack of commitment to having a relationship with his child.
Cite:  No. ED83155, 2004 Mo. App. LEXIS 409 (Mo. Ct. App. Mar. 23, 2004)
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OTHER CASES OF INTEREST

INHERITANCE RIGHTS IN ADOPTION

CALIFORNIA: Ehrenclou v. MacDonald
The California Court of Appeals affirmed a lower court’s ruling concerning adopted adults’ inheritance rights, concluding that their Colorado adoption made them heirs at law but did not confer any rights as children, nor qualify them as “issue” of the person adopting them.  The appellate court also held that under California law the phrase “children then living” in a trust document did not include adopted adults. 
Cite: No. G032020, 2004 WL 616203 (Ca Ct. App. Mar. 30, 2004)
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Adoption Procedure

OHIO: In re Samuel M.
An Ohio Court of Appeals affirmed a judgment of the lower court, which terminated a father’s and mother’s parental rights, denied the intervening paternal grandmother’s request for legal custody, and subsequently awarded permanent custody of the child to Lucas County Children’s Services, in order procure his adoption by a maternal aunt.  The appellate court found that under a relevant state statute, the lower court properly made the two required findings that were necessary before granting permanent custody (1) that it was in the child’s best interest to remain in the home of his maternal aunt, as he had for nearly one half of his life; and (2) that he could not, nor should not, be placed with either of his parents in a reasonable time, as they were both presently and had been previously, incarcerated on various charges and neither had participated in services offered to them.
Cite: No. L-03-1265, 2004 WL 628233(Ohio Ct. App. Mar. 31, 2004)
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Termination of Parental Rights/Appeals of Orders of Termination

NEW YORK: In re Deborah I.
The New York Appellate Division affirmed a trial court’s order terminating the mother’s parental rights finding the trial court determination that the mother’s mental retardation rendered her unable to care for the children was supported by clear and convincing evidence.
Cite:  No. 94023, 2004 N.Y. App. Div. LEXIS 3698 (Feb. 10, 2004)
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MISSOURI: In re P.L.O. and S.K.O.
The Supreme Court of Missouri affirmed the trial court’s decision terminating a mother’s parental rights, finding that there was sufficient evidence to support the termination order and concluding that no constitutional issue existed because §211.447 of Missouri Revised Statutes was a trigger, not a ground for termination.
Cite: No. SC85120, 2004 Mo. Lexis 36 (Mo. Mar. 30, 2004)
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ILLINOIS: In re Dominique W.
The Illinois Court of Appeals affirmed the circuit court’s order finding the mother unfit as a parent and terminating her parental rights, concluding (1) that the mother’s argument that the State’s petitions for termination were legally insufficient to allege that she was an unfit parent was waived due to her failure to object at the trial level to the pleading defect; (2) that the circuit court was not precluded from considering evidence of the mother’s conduct after the State filed its petitions for termination in making its finding of unfitness; (3) that the circuit court’s finding of unfitness was not against the manifest weight of the evidence; and (4) that the circuit court’s best interests determination was neither an abuse of discretion nor contrary to the manifest weight of the evidence.
Cite:  No. 1-03-0182, 2004 WL 583189 (Ill. App. Mar. 24, 2004)
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Rights of Biological Relatives

LOUISIANA: In re T.M.
The Louisiana Court of Appeals denied the grandparents’ motion to annul the judgment of the juvenile court and to stay all proceedings and affirmed the trial court’s judgment denying the grandparents’ request to obtain custody of the child from the State of Louisiana, Department of Social Services, Office of Community Services, concluding that the lower court’s judgment was not null as a result of the clerk’s failure to provide notice to the grandparents of the hearing and that the trial court’s specific finding that placement of the child with his grandparents was not in the child’s best interests defeated the grandparents’ superior right to custody over non-relatives.
Cite: No. 03-929, 2004 WL 574438 (La. App. 3d Cir. Mar. 24, 2004)
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March 30, 2004

Inside this Issue (click case name to jump to summary):

Termination of Parental Rights/Appeals of Orders of Termination
ILLINOIS: In re D.C.
NEW JERSEY:  N.J. Div. of Youth & Family Servs. v. A.R.G.

DEPENDENCY PROCEEDINGS/Dispositions
MONTANA: In re B.F.

PARTIES TO ADOPTION/Who May Adopt
NEW YORK: In re Adoption of Carolyn B.

dependency PROCEEDINGS/Dispositions
ALASKA: Bryanna B. v. State

Termination of Parental Rights/Appeals of Orders of Termination
FLORIDA: In re E.I.F.

ADOPTION CONSENT REQUIREMENTS/Who Must Consent
New York: In re Michael D.D.S.

SIGNIFICANT CASES

Termination of Parental Rights/Appeals of Orders of Termination

ILLINOIS: In re D.C.
Illinois Supreme Court affirmed judgment of court of appeals that reversed trial court’s order terminating parental rights of mother to child who was born within the statutory nine month period used to assess the mother’s fitness to parent her other children.  The State had filed a petition to terminate parental rights, relying on 750 Ill. Comp. Stat. Ann 50/1 (D)(m)(iii), which requires a showing that a parent failed to make reasonable progress toward reunification within any nine month period after the end of the initial nine month period following an adjudication of abuse or neglect.  The Supreme Court opined that because the youngest child of the mother was not adjudicated abused or neglected until April 27, 2001, the nine month period of 11/1/2000 to 7/31/2001 used by the State to demonstrate unfitness as to that child was not correct and, thus, the trial court could not have found, by clear and convincing evidence, that unfitness was proven as to that child.
Cite:  Docket No. 95841, 2004 Ill. LEXIS 364 (Ill.  March 18, 2004)
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NEW JERSEY:  N.J. Div. of Youth & Family Servs. v. A.R.G.
The New Jersey Supreme Court affirmed in part, modified in part, and remanded for further proceedings an order of the Superior Court, Appellate Division, which concluded that a father’s subjection of his child to “aggravated circumstances” involving severe and repetitive abuse excused the child welfare agency from reunification efforts.  Although approving the appellate court’s articulation of the standard for “aggravated circumstances” that justify waiver of reunification efforts (those involving abuse or neglect so severe or repetitive that reunification would jeopardize the child’s safety), the supreme court held that due process required the father to be noticed of the statutory waiver citation and the facts and theory the state would rely on to prove such “aggravated circumstances” existed.
Cite: No. A-29-03, 2004 N.J. LEXIS 143 (N.J. Mar. 17, 2004)
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DEPENDENCY PROCEEDINGS/Dispositions

MONTANA: In re B.F.
Guardians/foster parents appealed trial court’s judgment setting aside decree granting them guardianship of children until age of majority.  The judgment was based on allegations of children’s mother’s that purported fathers had not been given proper notice of the guardianship proceedings.  After mother placed the children temporarily with the guardians, court granted state department of health and human services temporary custody of children.  However, mother failed to complete drug abuse treatment program and faced criminal charges; the order of temporary custody was dissolved and the children were placed permanently in guardianship.  Mother filed petition to set aside guardianship, alleging that two men who had been identified as possible fathers of the children had not been notified of the proceedings.  The trial court sustained the motion; on appeal, the supreme court reversed and remanded, ruling that the mother did not have standing to assert a violation of the purported fathers’ due process rights.
Cite:  No. 03-499, 2004 Mont. LEXIS 67 (Mont. Mar. 16, 2004).
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PARTIES TO ADOPTION/Who May Adopt

NEW YORK: In re Adoption of Carolyn B.
Appellants, two professional women who had lived together for over 20 years in a committed relationship that was recognized by their church and registered in the Rochester city registry, appealed the dismissal by the Monroe County, New York, Family Court of their unopposed joint adoption petition that was endorsed by the placing agency.  On appeal, the Fourth Appellate Division of the Supreme Court of New York concluded that NY Dom. Rel. Law § 110 does not present a statutory impediment to the adoption by two unmarried persons of a child who is not the biological child of either of them.  That statute, the court noted, while neither expressly prohibiting nor permitting such adoptions, has the goal of encouraging as many adoptions as possible.  The court reversed the order, reinstated the adoption petition and remanded for further proceedings on the petition.
Cite: No. CAF 03-01032, 2004 N.Y. App. Div. LEXIS 3082 (N.Y. App. Div. March 19, 2004)
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OTHER CASES OF INTEREST

dependency PROCEEDINGS/Dispositions

ALASKA: Bryanna B. v. State
In an appeal by an aunt based on a statutory preference for relative placement, the Alaska Supreme Court affirmed a judgment of a superior court upholding the refusal of the Department of Health and Social Services to place a child in foster custody with the aunt. The aunt had sought custody of her twin sister’s daughter, who had been adjudged a child in need of aid. In affirming, the Court found the superior court’s findings were not clearly erroneous, but were properly based on the department’s and the court’s inference from conduct by the aunt that her interests were aligned with the mother’s and that the aunt thus would likely not comply with the child’s case plan.  The relative placement preference, the Court noted, was for the child’s benefit, not the relative’s, and was overcome with evidence that the placement would be injurious to the child.
Cite: No.S-11070, 2004 Alas. LEXIS 35(Alas. Mar. 19, 2004)
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Termination of Parental Rights/Appeals of Orders of Termination

FLORIDA: In re E.I.F.
Second District Court of Appeal of Florida affirmed an adjudication of dependency of a child, but reversed the order terminating the father’s parental rights and remanded for further proceedings.  The father was incarcerated when the child was born and not due for release until 2008.  His ex-wife testified that he had a drug problem and threatened her and their children with violence.  The father testified that he had undergone counseling and drug treatment and there was no evidence of violent acts toward his children for over a decade. This evidence, the appellate court held, did not support a finding that the father’s continued contact with the child would be detrimental to or threaten the child’s safety or well-being. The court also held that the expected length of incarceration did not support termination under Fla. Stat. ch. 39.806(1)(d)(1), which provides for termination if a parent’s incarceration will last a “substantial period” of the time before a child reaches age 18.
Cite: Case No. 2D02-5133 , 2004 Fla. App. LEXIS 3077 (Fla. App. Mar. 12, 2004)
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ADOPTION CONSENT REQUIREMENTS/Who Must Consent

New York: In re Michael D.D.S.
In a decision issued after trial, the Surrogate’s Court of Nassau County New York ruled that an adoption should proceed to finalization, despite the birth father’s refusal to consent, because the birth father did not establish his right to consent or object to the adoption.  The birth father did not maintain the statutory “substantial and repeated contact” with the child, as manifested by payment of support or regular communication, required to preserve his consent/objection rights. It was not necessary to reach the issue of whether the father had abandoned the child, because he did not establish his right of consent, a prerequisite to a determination of whether the right was forfeited through abandonment.
CITE: Dec. No.1084, 2004 N.Y. Misc. LEXIS 221 (N.Y. Misc. Mar. 19, 2004)
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March 24, 2004

Inside this Issue (click case name to jump to summary):

Termination of Parental Rights/Appeals of Orders of Termination
Adoption Procedure/Jurisdictional Issues
TENNESSEE: In re S.L.O.

Termination of Parental Rights/Appeals of Orders of Termination
TEXAS: In re T.H.
TENNESSEE: In re C.M.M.
WISCONSIN: In re Termination of Parental Rights to Mark J.M.

Termination of Parental Rights/Grounds
OREGON: In re S & R

SIGNIFICANT CASES 

Termination of Parental Rights/Appeals of Orders of Termination
Adoption Procedure/Jurisdictional Issues

TENNESSEE: In re S.L.O.
The Supreme Court of Tennessee reversed and remanded a ruling of the Court of Appeals that concluded that the circuit court lacked jurisdiction to hear an appeal from a juvenile court’s order denying as moot the child’s aunt and uncle’s petition for custody on grounds that the juvenile court’s earlier order terminating the adoptive parents’ parental rights deprived the court of jurisdiction to consider the aunt and uncle’s petition.  The Supreme Court concluded that the order the aunt and uncle sought to appeal de novo to the circuit court was properly appealed to that court because it was related to the dependency and neglect proceeding and not to the termination proceeding, which was appealed directly to the court of appeals.  Thus, the appeal to the circuit court was properly perfected.
Cite:  No. W2002-00905-SC-R11-CV, 2004 Tenn. LEXIS 182 (Tenn. Mar. 11, 2004)
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OTHER CASES OF INTEREST

Termination of Parental Rights/Appeals of Orders of Termination

TEXAS: In re T.H.
The Texas Court of Appeals reversed an order of the lower court terminating the parental rights of a father to his daughter after she came into custody of the Texas Department of Protective and Regulatory Services while the father was incarcerated, concluding the evidence to support the trial court’s finding that the father either engaged in conduct or placed his daughter in the care of those whose conduct posed a danger to her well-being was legally insufficient and noting that the criminal history of the father alone did not constitute involvement in conduct that endangered the emotional or physical well being of the child.
Cite: No. 06-03-00108-CV, 2004 Tex. App. LEXIS 2185 (Tex. Ct. App. Mar. 9, 2004).
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TENNESSEE: In re C.M.M. 
The Court of Appeals of Tennessee vacated the lower court’s order terminating mother’s parental rights.  The Court concluded that the record did not contain clear and convincing evidence that the Tennessee Department of Children’s Services made reasonable efforts to reunite the mother with her children, as required by Tenn. Code Ann. §36-1-113(c).
Cite: No. M2003-01122-COA-R3-PT, 2004 WL 438326 (Tenn. Ct. App. Mar. 9, 2004)
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WISCONSIN: In re Termination of Parental Rights to Mark J.M.
The Wisconsin Court of Appeals affirmed the circuit court’s order terminating the mother’s parental rights, concluding that the guardian ad litem’s conduct at and participation in the termination proceedings was not improper and, therefore, the mother’s counsel’s failure to raise any issue concerning the GAL did not constitute ineffective assistance of counsel.
Cite: No. 03-2660, 2004 Wisc. App. LEXIS 216 (Wisc. Ct. App. Mar. 10, 2004)
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Termination of Parental Rights/Grounds

OREGON: In re S & R
The Oregon Court of Appeals reversed the trial court’s denial of the state’s petition to terminate the mother’s parental rights, concluding that the State presented clear and convincing evidence to terminate the biological mother’s parental rights by proving that the mother failed to take sufficient responsibility to ensure that her children were safe from her husband, who had sexually abused the children on prior occasions and noting that a court need not await another episode of abuse before concluding that the harm was immediate enough to justify termination of the mother’s rights.
Cite: No. A121954, 2004 Ore. App. LEXIS 239 (Ore. Ct. App. Mar. 10, 2004)
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March 18, 2004

Inside this Issue (click case name to jump to summary):

Federal Law/Constitutional Issues
Foster Caregiver Liability
MAINE: Marr v. Schofield

Adoption Consent Requirements
MASSACHUSETTS: In re Saul

Termination of Parental Rights/Appeals of Orders of Termination
INDIANA: Peterson v. Marion Cty. Office of Family & Children
CALIFORNIA: In re Julian V.
NORTH CAROLINA: In re N.B.
OHIO: In re D.B.
MINNESOTA: In re Children of: M.E.S.O.-M

Foster Caregiver Rights
OHIO: In re G.R.

Adoption Consent Requirements
Step Parent Adoption
PENNSYLVANIA: In re K.G.M. and T.J.M

Parties to Adoption
Rights of Biological Relatives
KANSAS: In re S.C. and C.A.

SIGNIFICANT CASES

Federal Law/Constitutional Issues
Foster Caregiver Liability

MAINE: Marr v. Schofield
The U.S. District Court for Maine denied a biological mother’s §1983 civil rights claim against a foster mother in a case where the foster mother had been previously convicted of manslaughter for the death of the child placed in her home.  The court dismissed the biological mother’s civil rights claims, finding that the foster mother was not a State actor who contributed to any deprivation of the biological mother’s rights.  Since the biological mother did not sufficiently prove that the State was a joint participant in any abuse of the child while the child was placed with the foster mother or that the foster mother’s conduct was entwined with the State under the available tests to find State action, the court denied the biological mother’s motion for partial summary judgment, granted the foster mother’s motion for partial summary judgment and dismissed the state law tort claims without prejudice.
Cite: No. 01-224-BC, 2004 U.S. Dist. LEXIS 3216 (Mar. 2, 2004)
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Adoption Consent Requirements

MASSACHUSETTS: In re Saul
A Massachusetts Court of Appeals affirmed a juvenile court’s decree dispensing with biological parents’ (who were both found to be mentally ill) consent to the adoption of their child.  The appellate court rejected the mother’s claim that diagnosis as to her mental illness should not have been admitted into evidence as it should have been subject to the psychotherapist-patient privilege.  The appellate court found where the diagnostic term does not reveal or convey the content of the privileged communications, it is not protected from disclosure by the privilege, and therefore no error was committed in admitting the mother’s psychiatric records.  The appellate court concluded that even if there had been an error with respect to the admission of the so-called privileged discussions, there was ample evidence apart from the challenged communications to find that the biological mother was unfit.  The appellate court also concluded that there was no error in the judge’s denial of the father’s request for post adoption visitation where the father was mentally ill, had never lived with the child and had limited visitation with the child.
Cite: No. 03-P-269, 2004 Mass. App. LEXIS 238 (Mass. Ct. App. Mar. 3, 2004). 
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OTHER CASES OF INTEREST

Termination of Parental Rights/Appeals of Orders of Termination

INDIANA: Peterson v. Marion Cty. Office of Family & Children
The Indiana Court of Appeals affirmed the trial court’s order terminating the mother’s parental rights, finding the trial court’s determination was not clearly erroneous where the mother’s evidence of “changed circumstances” was only her testimony and that of her new husband with no documentation to support her allegations. the mother alleged that her changed circumstances included her recent marriage, residence in a two-bedroom apartment, weekly visits with a counselor, biweekly visits with a therapist, compliance with her medication, participation in a parenting program, attendance at drug and alcohol counseling meetings, and enrollment in classes to be a social worker. The appellate court also concluded that on appeal it could not reweigh the evidence or judge the credibility of witnesses.
Cite: No. 49A02-0306-JV-461, 2004 Ind. App. LEXIS 331 (Ind. Ct. App. Mar. 4, 2004)
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CALIFORNIA: In re Julian V.
The California Court of Appeals affirmed the juvenile court’s order terminating a mother’s parental rights as to two of her children, concluding that the mother failed to carry her burden of showing the existence of a significant sibling relationship the severance of which would be detrimental to the children. 
Cite: No. D042433, 2004 Cal. App. Unpub. LEXIS 1867 (Cal. Ct. App. Mar. 2, 2004)
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NORTH CAROLINA: In re N.B.
A North Carolina Court of Appeals dismissed an appeal of an order terminating parental rights, concluding that a pending appeal of an adjudication of abuse and neglect is made moot by a subsequent termination of parental rights based on independent grounds.
Cite: No.  COA03-688, 2004 N.C. App. LEXIS 310 (N. C. Ct. App. Mar. 2, 2004)
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OHIO: In re D.B.
An Court of Appeals of Ohio affirmed the lower court’s decision terminating a father’s parental rights finding grounds for termination existed based upon factors listed in the Ohio statute because father had (1) failed to remedy the problems that initially caused the children to be removed; (2) abandoned the children; (3) was unwilling to provide basic necessities or prevent abuse; (4) committed abuse; and (5) instilled a likelihood that recurrence would threaten the children's safety.
Cite: No. 82450, 2004 WL 253468 (Ohio Ct. App. Mar. 3, 2004)
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MINNESOTA: In re Children of: M.E.S.O.-M
The Court of Appeals of Minnesota reversed and remanded the lower court’s termination of a father’s parental rights finding that the father substantially complied with the requirements in his case plan and the court could not terminate the father's parental rights based on a violation of the ambiguously worded court order.
Cite: No. A03-178, 2004 WL 384137 (Minn. App. March 2, 2004)
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Foster Caregiver Rights

OHIO: In re G.R.
An Ohio Court of Appeals reversed and remanded the lower court’s denial of a motion to vacate permanent custody and grant legal custody to the foster parents, concluding the trial court was required to consider all the evidence concerning the child’s custodial placement by holding a full dispositional hearing and providing notice to the guardian ad litem.
Cite: No. 83-146, 2004 Ohio App. LEXIS 886 (Ohio Ct. App. Mar. 4, 2004)
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Adoption Consent Requirements
Step Parent Adoption

PENNSYLVANIA: In re K.G.M. and T.J.M
The Superior Court of Pennsylvania vacated and remanded the order of the Court of Common Pleas, concluding that the trial court erred in concluding that the biological father had consented to the adoption where he had not been served properly with notice of the hearing.  The court also held that there must be strict compliance with statutory procedures regarding notice of hearing to the parent whose rights may be terminated.
Cite: No. J.S04045/04, 2004 PA Super 54 (Pa. Super. Ct. Mar. 5, 2004)
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Parties to Adoption
Rights of Biological Relatives

KANSAS: In re S.C. and C.A.
The Court of Appeals of Kansas dismissed a great-aunt’s appeal of a trial court’s ruling denying her interested party status in adoption proceedings.  The appellate court concluded that it lacked jurisdiction to consider her appeal because the relevant State statutes did not consider the denial of interested party status to be an adjudication or disposition that constituted an appealable order.
Cite: No. 90-597, 2004 Kan. App. Lexis 204 (Kans. Ct. App. Mar. 5, 2004)
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March 10, 2004

Inside this Issue (click case name to jump to summary):

Termination of Parental Rights – Involuntary
N.J. Div. of Youth & Family Servs. v. C.S.

Consent Requirements – Who Need Not Consent
OREGON: Ellis v. Kristich

Termination of Parental Rights – Process
COLORADO: In re S.G.

Termination of Parental Rights – Appeals of Orders of Termination
NEBRASKA: In re Adrian C.
ARKANSAS: Carroll v. Arkansas Dep’t of Human Services
CONNECTICUT: In re Alexander T.

Termination of Parental Rights – Process
UTAH: In re A.H.

SIGNIFICANT CASES

Termination of Parental Rights – Involuntary

N.J. Div. of Youth & Family Servs. v. C.S.
The New Jersey Superior Court reversed and remanded an order of the trial court that: (1. dismissed the New Jersey Department of Youth and Family Services’ (DYFS) complaint for guardianship, based on the conclusion that the mother’s parental rights should not be terminated; and (2. ordered DYFS to institute a reunification plan between the mother and her child instead of allowing a petition for guardianship so that the maternal aunt could adopt the child.  The appellate court found that the trial court made crucial findings that were unsupported by substantial, credible, evidence and also erred in concluding that DYFS failed to show, by clear and convincing evidence, that the first two prongs of the relevant state statute regarding the “best interest of the child” standard were satisfied in DYFS’ favor.  Under the first prong of the statute, the trial judge erred because no finding was made as to whether the mother’s actions had endangered the health and development of her daughter; instead, the trial judge focused on lifestyle changes of the mother, rather than extent of harm to the child.  Under the second prong, the appellate court found that the state did produce clear and convincing evidence that the mother was unable to eliminate harm to the child and alternatively, that the child would suffer undue harm by severing the psychological bond with her maternal aunt.
Cite: No. A-3053-02T4, 2004 N.J. Super. LEXIS 79 (Feb. 20, 2004)
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Consent Requirements – Who Need Not Consent

OREGON: Ellis v. Kristich
The Oregon Court of Appeals reversed the lower court’s order dismissing a father and stepmother’s petition for the stepmother’s adoption of the father’s child on grounds that the mother did not consent and that petitioners failed to establish the required basis for proceeding without the mother’s consent.  The appellate court found that the father and stepmother had established that mother willfully deserted or neglected to provide proper care and maintenance of the child without just and sufficient cause for more than a year before the filing of the petition and, therefore, the mother’s consent was not required.
Cite: No. A117366, 2004 Ore. App. LEXIS 199 (Ore. Ct. App. Feb. 25, 2004)
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OTHER CASES OF INTEREST

Termination of Parental Rights – Process

COLORADO: In re S.G.
The Colorado Court of Appeals affirmed the trial court’s judgment terminating father’s parental rights, finding that the trial judge did not abuse his discretion by: (1. denying the father's motions for recusal of the trial judge on grounds that the judge had heard the criminal case against the father for the murder of his wife, mother-in-law and father-in-law and the attempted murder of one of his daughters, in which the father was acquitted;  or (2.  by refusing to disqualify DCHS attorneys on grounds that they may be necessary witnesses.
Cite: No. 01CA2036, 2004 Colo. App. LEXIS 203 (Colo. Ct. App. Feb. 26, 2004)
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Termination of Parental Rights – Appeals of Orders of Termination

NEBRASKA: In re Adrian C.
The Nebraska Court of Appeals affirmed the lower court’s order terminating the parental rights of a mother to her three children under the Nebraska Indian Child Welfare Act, concluding that although the lower court erred in applying a lesser standard of reasonable efforts to preserve and reunify the family, the error was harmless because there was sufficient evidence presented to meet the higher standard of active efforts under the correct statute.
Cite: Nos. A-03-529 to 531, 2004 Neb. App. LEXIS 43 (Neb. Ct. App. Feb. 24, 2004)
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ARKANSAS: Carroll v. Arkansas Dep’t of Human Services
The Arkansas Court of Appeals affirmed the lower court’s order terminating the parental rights of parents to their two children, concluding the parents failed to secure stable housing and stable employment, failed to complete counseling sessions and would not comply with random drug testing, all of which was contrary to the children’s health, safety and well being.
Cite: No. CA-03-788, 2004 Ark. App. LEXIS 168 (Ark. Ct. App. Feb. 25, 2004)
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CONNECTICUT: In re Alexander T.
The Connecticut Court of Appeals affirmed the judgment of the trial court terminating the parental rights of a mother to two of her minor children, concluding the Connecticut Department of Children and Families had made reasonable efforts to reunify the mother with her children and sufficient evidence supported termination, including the fact that after the children were removed from their mother’s care, the mother had been arrested for assault, had not visited her children regularly, and had failed to attend regular counseling and drug screening appointments.
Cite: No. AC 23673, 2004 Conn. App. LEXIS 68 (Feb. 24, 2004).
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Termination of Parental Rights – Process

UTAH: In re A.H.
The Utah Court of Appeals reversed the trial court’s order terminating a non-custodial father’s parental rights, holding that, due to DCFS’s failure to provide notice of neglect proceedings to the non-custodial father, he was not given a meaningful opportunity to show an interest in his children, and his due process rights were thus violated.  The Court also held that DCFS is required to comply with rule 4 of the Utah Rule of Civil Procedure in effecting service.
Cite: No. 20030160-CA, 2004 UT App. Lexis 39 (Utah Ct. App. Feb. 20, 2004)
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March 2, 2004

Inside this Issue (click case name to jump to summary):

Appeal of Adjudication of Neglect
DISTRICT OF COLUMBIA: In re Te.L.

Adoption Procedure – Who Must Consent
OHIO: In re Doe

Adoption Procedure – Appointment of Guardian Ad Litem
CALIFORNIA: In re Logan A.

Termination of Parental Rights – Appeals of Orders of Termination
WASHINGTON: In re A.R.T
NORTH CAROLINA: In re Hopkins, Jr.

Termination of Parental Rights – Appeals of Orders of Termination
Indian Child Welfare Act
CALIFORNIA: In re J.K.

SIGNIFICANT CASES

Appeal of Adjudication of Neglect

DISTRICT OF COLUMBIA: In re Te.L.
The District of Columbia Court of Appeals vacated the trial court’s ruling that appellants’ five children were neglected, finding that neglect was not proven under the applicable statute.  Appellants argued that the adjudication of neglect was erroneous because there was no evidence that their five children had been without proper parental care.  The applicable statute defined a neglected child as one “who is in imminent danger . . . and whose sibling has been abused.” In the case, the trial court’s finding of neglect of appellants’ five children was based upon serious, disabling injuries suffered not by appellants’ five children, but by another child in appellants’ care, who was not a sibling of appellants’ children.  The appellate court remanded the case to the trial court for further proceedings and instructed the court to take into consideration that the applicable statute had changed since the trial court’s decision to now include the situation the children were in prior to the original hearing.
Cite:  Nos. 02-FS-560 et seq., 2004 D.C. App. LEXIS 51 (D.C. Feb. 19, 2004)
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Adoption Procedure – Who Must Consent

OHIO: In re Doe
An Ohio Court of Appeals affirmed a judgment of a lower court that denied a motion to withdraw consent to adoption filed by a child’s birth parents one month after the child’s birth and placement hearing.  The appellate court found that the birth parents’ consent to adoption was freely, knowingly, and voluntarily executed, because the magistrate fully informed them about the consequences of their decision.  This conclusion was supported by the record, which showed that the birth parents did not appear to be confused or doubtful of their decision and should have been able to understand the consequences because they were educated.  Furthermore, the appellate court found, the birth parents failed to demonstrate their consent was the result of fraud, undue influence, or duress, even though they apparently believed the adoptive parents’ attorney also represented them.  The appellate court also found that it was in the child’s best interest to remain with the adoptive parents as a great deal of time had passed and the child had bonded to the adoptive parents and any failure to strictly comply with the local rules governing adoption did not render the birth parents’ consent involuntary.
Cite: No. 03AP-917, 2004 Ohio App. LEXIS 666 (Ohio Ct. App. Feb. 17, 2004).
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OTHER CASES OF INTEREST

Adoption Procedure – Appointment of Guardian Ad Litem

CALIFORNIA: In re Logan A.
The California Court of Appeals reversed the juvenile court’s order appointing a guardian ad litem for mother because the court had not advised her of the circumstances surrounding the appointment.
Cite: No. C044396, 2004 WL 309334 (Col. Ct. App. Feb. 19, 2004)
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Termination of Parental Rights – Appeals of Orders of Termination

WASHINGTON: In re A.R.T
The Court of Appeals of Washington affirmed the trial court’s order terminating a father’s parental rights, finding it was not in the child's best interest to further delay a permanent placement where the paternal grandparents who, with the father’s support, had previously indicated interest in adopting the child, subsequently vacillated over whether they wished to be considered as an adoptive resource.
Cite: No. 29729-9-II, 2004 WL 303696 (Wash. Ct. App. Feb. 18, 2004)
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NORTH CAROLINA: In re Hopkins, Jr.  
The North Carolina Court of Appeals reversed in part and vacated in part a trial court ruling terminating the parental rights of both the mother and father.  The appellate court found the trial court lacked jurisdiction to terminate the rights of the father and the trial court erred in denying the mother’s request for court appointed counsel.
Cite: No. COA-03-31, 2004 N.C. App Lexis 266 (N.C. Ct. App. Feb. 17, 2004).
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Termination of Parental Rights – Appeals of Orders of Termination
Indian Child Welfare Act

CALIFORNIA: In re J.K.
The California Court of Appeals affirmed the trial court’s ruling terminating parental rights, finding that the notice provision of the Indian Child Welfare Act did not apply in the case.  The appellate court also concluded that in balancing the strength of the child’s relationship with the birth parents to the security of an adoptive family, the evidence weighed strongly in favor of termination of parental rights.
Cite: No. C043702, 2004 Cal. App. Unpub. Lexis 1467 (Cal Ct. App. Feb. 18, 2004)
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February 24, 2004

Inside this Issue:

Child Placement/”Best Interests”
WASHINGTON: In re Custody of Shields
OREGON: Wurtele v. Blevins

Adoption Consent Requirements – Who Must Consent
LOUISIANA: In re McLarrin

Termination of Parental Rights - Process
OHIO: In re Babbs
TENNESSEE: State v. McBee
MISSOURI: In re E.N.K.

Termination of Parental Rights - Appeals of Orders of Termination
OHIO: In re D.B.
PENNSYLVANIA: In re B.L.W.
NORTH CAROLINA: In re Mashburn
OHIO: In re M.W.

SIGNIFICANT CASES

Child Placement/”Best Interests”

"WASHINGTON: In re Custody of Shields
The Washington Court of Appeals affirmed the order of the trial court granting custody of the child to his stepmother over the objection of the child’s mother, holding that a nonparent can establish standing in a custody dispute with a parent without demonstrating that the parent is unfit, and concluding that the trial court’s finding of detriment to the child if he was placed with his biological mother was supported by evidence of actual detriment, which included the showing that the stepmother was the child’s psychological parent and the child was integrated into the stepmother’s family.
Cite: No. 21741-8-III, 2004 Wash. App. Lexis 215 (Wash. Ct. App. Feb. 12, 2004)
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OREGON: Wurtele v. Blevins
The Oregon Court of Appeals affirmed the order of the trial court granting custody of a father’s daughter to the child’s maternal grandparents, but awarding both the mother and father substantial parenting time.  The appeals court concluded: (1) that the grandparents rebutted the strong legal presumption that the legal parent acts in the child’s best interest; (2)  that allowing the grandparent’s petition for custody comported with the child’s best interest; and (3) that constitutionally sufficient compelling circumstances existed for denying the father custody.
Cite: No. A115793, 2004 Ore. App. Lexis 112 (Ore. Ct. App. Feb. 11, 2004)
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Adoption Consent Requirements – Who Must Consent

LOUISIANA: In re McLarrin
A Louisiana Court of Appeals affirmed a lower court’s order terminating a father’s parental rights, finding that the father had failed to show that he manifested a commitment to his parental responsibilities.  The appellate court found that the record supported the trial court’s conclusion that: (1) the father failed to carry his burden in showing a substantial commitment to the child; (2) he provided no financial support to mother or child; and (3) he failed to establish parental contact because he did not attempt to visit the child until the child was over a year and a half old.
Cite: No. 38,616-JAC, 2004 La. App. LEXIS 121 (La. Ct. App. Feb. 4, 2004).
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OTHER CASES OF INTEREST

Termination of Parental Rights - Process

OHIO: In re Babbs
The Ohio Court of Appeals reversed and remanded the order of the trial court granting permanent custody of a mother’s minor children to Franklin County Children Services, which was entered following a hearing from which the mother was absent.  The appeals court found there was no evidence in the record to support a finding that the mother had specific notice of the hearing on FCCS’ motion for permanent custody and that the notice of the hearing directed the mother to a non-existent courtroom.  Accordingly, the mother’s due process rights were violated as the result of the trial court’s failure to give notice and, therefore, the court erred in terminating the mother’s parental rights.
Cite:  No. 03AP-1011, 2004 Ohio App. LEXIS 542 (Ohio Ct. App. Feb. 10, 2004).
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TENNESSEE: State v. McBee
The Tennessee Court of Appeals remanded the decision of the lower court terminating the parental rights of a father to his two minor children.  The court concluded that the trial court failed to use the proper standard for terminating the father’s parental rights and failed to make the required findings of fact.  As a result, the court remanded the case to the trial court for the court to enter findings of fact in accordance with the relevant state statute.
Cite:  No. M2003-01326-COA-R3-PT, 2004 Tenn. App. LEXIS 85 (Feb. 9, 2004)
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MISSOURI: In re E.N.K. 
The Missouri Court of Appeals dismissed the appeal of the children’s aunt and uncle from the trial court’s judgment granting them co-guardianship of the children and not terminating the mother’s parental rights, concluding the trial court’s judgment was not final because the trial court failed to dispose of the rights of one of the natural fathers.
Cite: No. WD62789, 2004 WL 234658 (Mo. Ct. App. Feb. 10, 2004)
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Termination of Parental Rights - Appeals of Orders of Termination

OHIO: In re D.B.
The Ohio Court of Appeals affirmed the trial court’s decision awarding permanent custody of appellant’s three children to the Cuyahoga County Department of Children and Family Services (“CCDCFS”) despite the guardian ad litem’s recommendation of a planned permanent living arrangement.  The appeals court found that the trial court was in no way bound by the guardian ad litem’s recommendation, as it contravened to the abundance of evidence demonstrated by CCDCFS that the children were at risk of physical and emotional abuse in the home.
Cite: No. 82450, 2004 Ohio App. LEXIS 618 (Ohio Ct. App. Feb. 12, 2004)
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PENNSYLVANIA: In re B.L.W.
The Superior Court of Pennsylvania affirmed the lower court’s order terminating the mother’s parental rights, concluding the mother lacked capacity to provide her child with a safe and healthy living environment and there was no evidence in the record that this fact could change.
Cite: No. 1851MDA2001, 2004 WL 253947 (Pa. Super. Ct. Feb. 12, 2004)
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NORTH CAROLINA: In re Mashburn
The North Carolina Court of Appeals affirmed an order terminating a mother’s parental rights, holding that the trial court did not err in admitting the testimony of investigators, a pediatrician, and a mental health professional regarding statements made by the children.  The appellate court also found that admission of a threat by the children’s grandfather was in error; however, such error was not prejudicial and did not warrant a new trial.
Cite:  No. COA02-1547, 2004 N.C. App. LEXIS 175 (N.C. Ct. App. Feb. 3, 2004)
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OHIO: In re M.W.
The Ohio Court of Appeals reversed a trial court’s order terminating a 17-year old mother’s parental rights, holding that the case plan seemed likely doomed to failure and therefore the trial court’s determination that the child could not be placed with the parent within a reasonable time was erroneous.
Cite:  No. 03CA008342, 2004 Ohio App. LEXIS 396 (Ohio Ct. App. Feb. 4, 2004)
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February 12, 2004

Rights of Grandparents and Other Biological Relatives

ARKANSAS: Cassidy v. Arkansas Dep’t of Human Servs.
The Arkansas Court of Appeals affirmed the trial court’s dismissal of the grandmother’s adoption petition.  The Court held it was not unreasonable for ADHS to withhold consent to an adoption by a grandmother where she lives in the same home as the mother whose parental rights were terminated.  The Court further noted that it is a duty of a person who has custody of a child pursuant to a dependency-neglect hearing to ensure that the child is not returned to the care of any person from whom the child was removed and that failure to abide by this statute is a criminal offense.
Cite: No. CA03-582, 2004 Ark. App. LEXIS 87 (Ark. Ct. App. Jan. 28, 2004) 
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Adoption Process & Consent

NORTH CAROLINA: In re Adoption of Shuler
A North Carolina Court of Appeals affirmed the judgment of a trial court denying a biological father’s motion to dismiss a petition for adoption of his son, finding that the biological father’s consent was not required for the adoption to proceed.  Under a relevant state statute, consent to adoption is necessary if the biological father; (1) acknowledges paternity before the filing of an adoption petition,  (2) provides support for the biological mother or child, and (3) has established or attempted to establish regular communication or visits with mother or child.  The appellate court found that the trial court’s record contained competent evidence that the father had failed to acknowledge paternity unconditionally before the filing of the adoption petition and that finding alone was sufficient to allow the adoption to proceed without his consent.
Cite: No. COA02-1607, 2004 N.C. App. LEXIS 115 (Jan. 20, 2004).
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Termination of Parental Rights - Process

TENNESSEE: Osborn v. Marr
The Supreme Court of Tennessee held that a biological mother did not have standing to file a petition to terminate the parental rights of the incarcerated biological father.  The Court held that the Tennessee statute concerning petitions for termination of an individual’s parental rights did not list biological parents as a party who had standing to file such a petition, and therefore, the court lacked subject matter jurisdiction.
Cite: No. M2001-02890-SC-R11-CV, 2004 Tenn. LEXIS 45 (Tenn. Jan. 23, 2004).
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Rights of Grandparents and Other Biological Relatives

CALIFORNIA (U.S. DIST. CT.): Miller v. Cal. Dept. of Social Services
The Ninth Circuit Court of Appeals affirmed the District Court’s decision that noncustodial, paternal grandparents, who were acting as de facto parents to grandchildren pending a dependency hearing in juvenile court, did not have substantive due process rights to maintain “family integrity and association” as parents of children.  The court also held that the grandparents did not possess a constitutional due process claim against the Dept. of Social Services when the grandfather’s name was placed on the California Child Abuse Central (CACI) Index.  Interpreting the “stigma-plus” test to support a defamation claim under §1983, the court held that grandparents do not have the same fundamental “liberty interest in making decisions about care, custody, and control of their children” and thus did not possess the requisite property or liberty interest to show a sufficient injury for the improper listing on the CACI index, nor was there a direct injury to reputation because the grandparents were in fact granted guardianship of the grandchildren after the grandfather’s name was placed on the CACI index.
Cite: No. 02-16780, 2004 U.S. App. LEXIS 900 (9^th Cir. Jan. 22, 2004).

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OTHER CASES OF INTEREST

Termination of Parental Rights - Process

CALIFORNIA: In re R.R.
The California Court of Appeals granted the petition for writ of habeas corpus of the petition, R.R., a dependent of the juvenile court, concluding that selecting adoption as the juvenile’s permanent plan could not be implemented without terminating the presumed father’s parental rights and directed the juvenile court to enter an order terminating the parental rights of James R. after proper notice and an opportunity to be heard.
Cite: No. D043317, 2004 Cal. App. LEXIS 103 (Cal. Ct. App. Jan. 27, 2004).
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Termination of Parental Rights – Appeals of Orders of Termination

ARKANSAS: Trout v. Arkansas Dep’t of Human Servs.
The Arkansas Court of Appeals reversed and remanded the trial court’s order terminating a mother’s parental rights to her two children, finding there was evidence of continuous and steady progress by the mother in addressing her problems and therefore the termination of her parental rights, based on grounds in the relevant statue, was not supported by clear and convincing evidence. 
Cite: No. CA03-332, 2004 Ark. App. LEXIS 91 (Ark. Ct. App. Jan. 28, 2004)
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FLORIDA: O.M. v. Dep’t of Children and Family Svcs.
The Court of Appeals of Florida affirmed the trial court’s order terminating parental rights as to one child (G.E.M), but reversed the decision of the trial court’s order terminating parental rights as to the remaining six children.  The appellate court held that as to the six children, both parents achieved substantial compliance with their numerous case plan requirements and the Department failed to show that termination was the least restrictive means to protect the children.  The court concluded that termination of parental rights as to the oldest child (G.E.M.) was proper base don the evidence which also included sexual abuse allegations.
Cite: No. 2D02-5538, 2003 FLA. App. Lexis 418 (Fla. Ct. App. Jan. 21, 2004).
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MISSOURI: In re S.J.H. and C.A.H.
The Missouri Court of Appeals reversed the trial court’s order terminating a mother’s parental rights, holding that non compliance with a written service agreement is not in itself grounds for termination but rather merely a factor to consider in determining whether the statutory grounds for termination exist.
Cite:  No. WD62904, 2004 Mo. App. LEXIS 53 (Mo. Ct. App. Jan. 20, 2004).
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Types of Adoption - Equitable Adoption

Coon v. American Compressed Steel
The Court of Appeals of Missouri affirmed the decision of the trial court denying appellant’s motion to intervene in proceedings before the family court, explaining that the family court’s "equitable adoption" is not an adoption and does not bind the defendants to recognize an adoption and that appellants, who are defendants in the wrongful death action, are not directly affected by the family court judgment and are entitled to contest the equitable adoption issues in the wrongful death case. 
Cite: No. WD62289, 2004 Mo. App. Lexis 130 (Mo. Ct. App. Jan. 30, 2004)
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February 2, 2004

Tort Liability of State Agency

KANSAS: Roe v. Dep't of Soc. & Rehab. Servs.
A Kansas Court of Appeals reversed and remanded for trial an order of summary judgment in favor of Defendant Kansas Department of Social & Rehabilitation Services (SRS), which ruled that SRS was not liable for abuse inflicted on a child by his birth father, resulting in permanent mental retardation.  The appellate court held that, on the facts presented in this case, SRS owed Baby Roe a duty of reasonable care arising under the Restatement (Second) of Torts § 324A because SRS undertook a monitoring role to see that the birth parents received the support services they needed to protect the child.  Accordingly, the court concluded that a jury must be permitted to decide the fact issues of whether SRS’ conduct measured up to the § 324A standard and, if not, whether its failure was the proximate cause of Baby Roe's injury.
Cite:  80 P.3d 1162 (Kan. Ct. App. Dec. 19, 2003, No. 89,462)
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Termination of Parental Rights - Appeals of Orders of Termination

MISSOURI: In re M.D.R.
The Supreme Court of Missouri heard a mother’s appeal from an order of termination in which she challenged the constitutionality of a statue that requires filing a petition for termination when a child has been in foster care for at least 15 of the pervious 22 months.  The Court concluded there was no constitutional issue based on its finding that the challenged statute does not make foster care custody for 15 months a grounds for termination, but rather only a deadline that triggers the state to file a petition to terminate parental rights on other grounds that identify conduct by the parent that demonstrates unfitness.  The Court transferred the case to the court of appeals to consider the mother’s challenge to the sufficiency of the court’s determinations under the other grounds for termination.
Cite:  No. SC85208, 2004 Mo. LEXIS 8 (Mo. Jan. 15, 2004)
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OTHER CASES OF INTEREST
 

Termination of Parental Rights – Appeals of Orders of Termination
Types of Adoption – Kinship/Relative

RHODE ISLAND: In re Abby D.
The Supreme Court of Rhode Island affirmed the lower court’s decree terminating the biological father’s parental rights and granting the adoption petition of the child’s biological mother and maternal grandfather, concluding that the father’s failure to communicate or contact this child for at least a 6-month period constituted a prima facie evidence of abandonment or desertion and that the mother and grandfather’s petition was permitted by Rhode Island’s statute allowing a grandparent to file an adoption petition with the consent of a natural, custodial parent.
Cite:  No. 2003-21, 2004 WL 57407 (R.I. Jan. 14, 2004).
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Termination of Parental Rights – Process
Who May Adopt – Same Sex Couples

In re Travis D. 
The California Court of Appeals dismissed a minor’s appeal of an order granting the petition of the Human Services Agency (HSA) for modification of a termination order which purported to prescribe the appropriate process for adoption by a same-sex couple, finding that the underlying issue of the proper procedure for adoption by a same-sex couple was not ripe, thus making the trial court’s declaration of the applicable law merely advisory.
Cite:   No. C043571, 2004 Cal. App. Unpub. LEXIS 151 (Cal. Ct. App. Jan. 9, 2004)
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Termination of Parental Rights – Appeals of Orders of Termination & Process

In re Antonio C.
The Ohio Court of Appeals affirmed the trial court’s order terminating a mother’s parental rights, holding that the trial court did not abuse its discretion, that the evidence supported the decision to terminate and that the mother’s right to effective assistance of counsel was not violated.
Cite: Nos. S-03-011 & -012, 2004 Ohio App. LEXIS 67 (Ohio Ct. App. Jan. 9, 2004).
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Termination of Parental Rights – Involuntary

In re A.R
The Superior Court of Pennsylvania affirmed the order of a lower court terminating the parental rights of a couple to their four children, concluding that the statutory requirements for termination were met because the children had been in foster care for more than 12 months, the conditions that led to their removal continued to exist and that environmental factors were not the sole consideration for termination, as the trial court properly weighed the needs and welfare of the children before terminating the parent’s rights.
Cite: No. 1967 Middle District Appeal 2002, 2003 PA Super 456 (Nov. 25, 2003)
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Termination of Parental Rights - Voluntary

In re Travis R.
The Court of Appeals of Connecticut affirmed the judgments of the trial court denying the mother’s motion to open the judgments of voluntary termination of her parental rights with respect to her two minor children, concluding the trial court did not abuse its discretion and the mother was not under duress when she gave her consent to the termination.
Cite: No. AC23919, 2003 WL 23019176 (Conn. Ct. App. Jan. 6, 2004)
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Termination of Parental Rights - Appeals of Orders of Termination

In re Flora  
The Massachusetts Court of Appeals affirmed the lower court’s decree terminating the parental rights of the mother to her son and the lower court’s finding of unfitness of the mother as to her daughter, but the court vacated the decree’s termination of the mother’s parental rights to her daughter based on the lower court’s failure to determine whether termination and post-termination visitation are in the daughter’s best interests.
Cite:  No. 02-P-1373, 2004 Mass. App. LEXIS 38 (Mass. Ct. App. Jan. 15, 2004)
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January 28, 2004

Termination of Parental Rights

NORTH CAROLINA--In re Canseco
The North Carolina Court of Appeals affirmed a lower court’s order that terminated a mother’s parental rights and reversed the lower court’s termination of the father’s parental rights.  The Court of Appeals concluded that the lower court’s findings supported the termination of the mother’s parental rights because she had willfully left her child in foster care for more that twelve months.  In reversing the termination of the father’s parental rights, the Court of Appeals concluded that the lower court’s findings did not support any statutory grounds for termination because the father’s inability to pay child support and remove the child from foster care was due to incarceration outside of the county.  The Court of Appeals further concluded that abuse of the child that occurred three years prior and resulted in the father being convicted of a felony did not support termination where the father had made steps to regain custody during that period.     
Cite:  NO. COA03-206, 2004 N.C. App. LEXIS 20 (Oct. 8 2003)
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FLORIDA--In Re: Guardianship of J.D.S.
A Florida court of appeals affirmed the trial court’s ruling and held that a Florida statute failed to provide for the appointment of a guardian for a fetus in an instance where a mentally retarded woman who was sexually abused became pregnant but was unable to provide for her own care and make her own decisions.  The court further concluded that the state is not required to appoint the fetus a guardian because to be appointed a guardian, a fetus must be considered to be a person; however, under Florida law, a fetus is not a person.  Additionally, the law safeguards the interests of the fetus because a guardian cannot authorize an abortion of the fetus unless two physicians make a certification in writing as to the pregnant woman’s health and the guardian obtains authority from the court to consent to the abortion.
Cite: No. 5D03-1921, 2004 Fla. App. LEXIS 161 (Jan. 9, 2004).
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GEORGIA--In re A.S.R.H
The Georgia Court of Appeals affirmed the trial court’s ruling regarding termination of the mother’s parental rights. The mother rarely visited the child, made only three child support payments and worked for only three months.  The court held that record showed clear and convincing evidence that the child would be harmed if the mother’s parental rights were not terminated. 
Cite:   2004 Ga App Lexis 3
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CALIFORNIA--In re Suzanna L. 
The California Court of Appeals reversed the trial court’s ruling regarding termination of the father’s parental rights The court held that the notice provision of the Indian Child Welfare Act had been improperly given.
Cite: 2004 Cal. App.Unpub. Lexis 33
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January 13, 2004

SIGNIFICANT CASES

Agency Liability

Office of the Child Advocate v. Lindgren
In response to a contempt motion filed against him, Defendant Director of state Department for Children, Youth, & Their Families (“DCYF”) moved to dismiss or, alternatively, to vacate a second amended consent decree entered in case filed 17 years previously by child advocacy office alleging DCYF’s “night to night” placement practice violated the constitutional rights of children in their custody.  Magistrate recommended motion be denied and Defendant objected, arguing that the Plaintiff lacked standing to sue, that Defendant was protected against claims by doctrine of sovereign immunity, and that the court should abstain from further action in the case on federalism principles.  District Court, after conducting de novo review, adopted report and recommendation of magistrate, holding that: (1 the issue of Plaintiff’s standing, while a procedural flaw in the case, was now irrelevant because court’s entry of consent decree insulated its judgment from attack on standing grounds; (2 that Ex Parte Young exception to Eleventh Amendment sovereign immunity, which allows suits for prospective injunctive relief against named state officials for ongoing federal law violations, was applicable to the case; and that (3 the Younger abstention doctrine did not apply to the case, as there were no pending state proceedings, and the Burford abstention doctrine did not apply, as there were no difficult questions of state law at issue.  In its ruling, the court noted that the next issue to be addressed, whether Defendant was in contempt of the consent decree, would involve a lengthy and extended process with many procedural issues.  Thus, the court suggested, that issue might be better resolved between the parties’ arms of state government.
Cite: Case No. 86-0723L, 2004 U.S. Dist. LEXIS 116 (D.R.I. Jan. 8, 2004)
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Termination of Parental Rights

Brogdon v. Brogdon
After the parents of a two month-old boy took him to the hospital with multiple leg fractures, the Department of Family and Children Services took the boy into emergency custody, gave temporary custody to his paternal grandfather, and filed a deprivation petition.  The juvenile court ordered a family reunification case plan, with which the parents failed to comply.  The court found the child deprived and that the deprivation would likely continue, but continued the reunification plan.  The parents continued to fail to comply; the court concluded reunification was no longer appropriate, and again adjudged the child to be deprived.  The grandfather filed to terminate parental rights in juvenile court, and the parents filed a complaint seeking modification of the grandfather’s temporary custody and to hold him in contempt for failure to let them visit the child.  The proceedings were transferred to superior court, which entered an order denying the parents' application for contempt and complaint for modification, granting the grandparents' adoption petition, and terminating the parents' rights to their child.  On appeal, Georgia Court of Appeals, Third Division, affirmed the superior court’s ruling, noting that any “rational trier of fact could have found by clear and convincing evidence that the natural parents' rights to custody of their child should have been terminated and the adoption granted.” 
Cite:  Cases No. A03A0252 & A03A0253, 2004 Ga. App. LEXIS 21 (Jan. 8, 2004)
Web Link:  http://www.gaappeals.us/  (click the link for “Opinions” to go to LexisOne.com and follow free registration directions to access full text of case)

J.F. v. Dep't of Children & Families
JF appealed termination of her parental rights over JF-1 and JF-2, arguing that Department of Children and Families did not show clear and convincing evidence to support the order.  JF previously had been convicted of manslaughter of her step-daughter.  After her 1999 release, in order to regain contact with JF-1, JF made efforts to comply with her ordered case plan and showed interest in possibly regaining custody of JF-1, although her psychological evaluation indicated signs of an inability to safely and appropriately parent.  During the proceedings, JF bore JF-2, and the court ordered the child to be sheltered.  Although the dependency proceedings were delayed because DCF could not locate the child, once located, JF-2 showed no signs of abuse.  DCF filed to terminate parental rights.  At the termination proceeding, the DCF expert and the GAL expressed concern that JF showed no remorse over the death of her stepchild and that she had anger management problems.  However, for two months she had maintained regular visitation with JF-1 and attended counseling. The trial court terminated her rights. On appeal, the Fourth District Court of Appeal of Florida reversed and remanded, finding DCF did not present clear and convincing evidence to terminate: DCF did not show that long-term therapy would not help JF’s anger management or that JF was to blame for missing counseling, the only part of the case plan she failed to complete.  Further, the court disagreed with DCF that no nexus need be shown between past and possible future abuse when a manslaughter conviction has resulted from past abuse.  The court concluded that the evidence did not support a finding that JF’s behavior was beyond her control, likely to continue, or would place the children at risk if her parental rights were not terminated.
Cite: 4D02-4225, 2004 Fla. App. LEXIS 36 (Jan. 7, 2004).
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Other cases of Interest

Inheritance Rights in Adoption

In re Estate of Pawlisch
H appeals from circuit court order concluding he is not the “issue” of C, his paternal uncle, by way of adoption.  While H was growing up he spent much time with his grandparents and C.  When H’s grandfather died, he left $30,000 to H in his will, with the residue of his estate to be divided equally among his sons (with C’s share to be placed in trust), and if they predeceased him, their issue.  At the time he executed his will, H’s grandfather also set up an irrevocable “Farm Trust” for C’s lifetime benefit, with the remainder on C’s death to go his living issue, and if none, to his brother J’s issue. Following his father’s death, C, age 66, adopted H, age 47, in part to secure the proceeds.  When C died, H and J’s issue claimed an interest in the Farm Trust proceeds.  The circuit court found the clear intent of the grandfather’s will was for the proceeds to go to J’s issue since C had no issue.  H appealed, arguing he was C’s issue based on the Farm Trust definition of “issue,” which should be applied to the will and that he was C’s “issue” pursuant to §  851.51(3) (1991-92).  The Fourth District Court of Appeals of Wisconsin affirmed, however, concluding: (1 the definition of “issue” laid out in the Farm Trust, which included issue by adoption, does not apply to the will because they are two separate documents that do not relate to a common transaction; and (2  H is not C’s “issue” under the statute because he was not adopted as a minor nor was he raised by C since he was 15.  Further, the grandfather’s separate bequeath to H showed his intent to exclude H from the other assets.
Cite: Appeal No. 03-1430, 2004 Wisc. App. LEXIS 4 (Jan. 8, 2004)
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Termination of Parental Rights

Williams v. Williams
JW, KW’s grandmother, filed a petition to terminate LW’s parental rights to KW.  When LW failed to respond, the trial court entered a default judgment terminating her parental rights.  LW’s motion for a new trial was overruled, and she appealed.  The Texas Court of Appeals, Third District, reversed and remanded for further proceedings.  The appeals court ruled that although JW failed to include her name on the service papers, LW’s own testimony established that she was properly served and she knew who the plaintiff was, so there was no confusion.  However, the appeals court held, the evidence was legally insufficient to support the trial court's judgment terminating LW’s parental rights.  The court noted that although a defendant’s failure to respond to a petition is normally taken as admission of the allegations, consideration of evidence and the perspective of the parents must be reviewed in relation to termination petitions.  Here, LW claimed her failure to appear was due in part to bad legal advice and misrepresentations made to her by JW.  In addition, the trial court’s overruling of her motion for a new trial denied LW the opportunity to respond to the allegations against her.  
Cite: Case No. 03-02-00723-CV, 2004 Tex. App. LEXIS 89 (Jan. 8, 2004)
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January 9, 2004

SIGNIFICANT CASES

Agency Liability

State, Div. Child & Fam. Servs.  v. District Court
Department of Children’s Services petitioned for writ of mandamus challenging family court’s order directing it to release to a child in its custody the names and addresses of the child’s siblings and those of the siblings’ adoptive parents so the child could serve her request for visitation on them.  In denying the petition, the state supreme court held that the family court was within its jurisdiction to order disclosure of the information to the child’s attorney for the sole purpose of effecting service. The court noted the close bond between the child and her siblings had been recognized in a family court order specifically providing for a visitation plan to be set up before any of the children were adopted.  Alluding to the Department’s disregard of this order, the court stated, “DCFS, as the minor girl's custodian, has a continuing obligation to act in her best interests. However, DCFS has acted exactly to the contrary by myopically promoting the adoptive families' privacy rights at the expense of the child's right of association with the only family that she has.” The court characterized as specious the Department’s argument that the child had no right to seek visitation because she failed to file for visitation prior to termination of her siblings’ parental rights; rather, the Department, as custodian of the minor child, had the obligation to file such a petition, not the child.
Cite: Case No. 40269, 2003 Nev. LEXIS 87 (December 30, 2003)
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Rights of Biological Relatives
Privacy of Records and Proceedings

Rowey v. Children’s Friend and Service
Plaintiffs, adoptive parents and children, sued adoption agency in 1998 on claims including misrepresentation and breach of duty related to adoption finalized in 1983.  Prior to child’s placement with them in 1982, parents had informed agency they would not take a child with special needs. Prior to finalization of the adoption, because of child’s negative behaviors, parents requested genetic history.  A brief history was provided in 1985, more than a year after finalization.  When child’s behavioral problems continued, one of her doctors requested additional history.  In 1995, agency informed adoptive parents of birth parents’ negative histories, including prenatal drug use by birth mother, for the first time.  Plaintiffs moved for partial summary judgment on their claims. Agency moved to strike parents’ supporting affidavits as contradictory to their deposition testimony. Although holding that resolution of Plaintiffs’ substantive claims on summary judgment was inappropriate because fact issues existed, the trial court found it proper to consider their claims related to statutes of limitations and child’s standing since these constituted affirmative defenses.  The court held the limitations period on parents’ claims was not tolled under state fraudulent concealment statute and those claims were thus time-barred; children’s claims were timely under application of the minority tolling statute; and adopted child’s alleged psychological injuries did not confer standing to sue upon her.  The court also struck certain affidavit statements, although holding the affidavits did not clearly contradict the deposition testimony.
Cite: C.A. No. 98-0136, 2003 R.I.Super LEXIS 153 (December 12, 2003)
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Types of Adoption – Stepparent
Putative Fathers – Notice of Adoption Proceedings

In re Adoption of S.A.J.
The Supreme Court of Pennsylvania affirmed an appellate court’s decision reversing and remanding the trial court’s order granting the putative father’s petition to vacate the final adoption decree providing for a stepfather to adopt his wife’s child.  The Supreme Court held that the doctrine of judicial estoppel barred the putative father from trying to obtain custody of the child and from claiming he was the father of the child based on his prior words and conduct because eleven years earlier, the putative father successfully maintained that he was not the father of the child in a child-support proceeding.
Cite:  No. 163 MAP 2002, 2003 Pa. LEXIS 2363 (Pa. Dec. 17, 2003)
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Termination of Parental Rights - Appeals of Orders of Termination

Adoption of Annalise
In an unpublished order, the Massachusetts Court of Appeals affirmed a decree of a lower court terminating a father’s parental rights to his daughter, concluding that he was unfit to provide the special care she required and that termination was in the child’s best interest because her foster parents wished to adopt her.  The appellate court found that the court was not required to reopen the proceedings or relitigate the father’s rights when the proposed adoptive parents ultimately decided against adopting the child, because the father had been found unfit.  Further, the appellate court found that the Department of Social Services met its burden of proving the father was unfit to parent his child by clear and convincing evidence and that the evidence the judge relied on to make subsidiary findings regarding the child’s special needs was not stale or erroneous.
Cite:  No. 02-P-1384, 60 Mass. App. Ct. 1108, 800 N.E.2d 347 (Mass. App. Ct. Dec. 18, 2003)(notation entry); 2003 WL 22956927
We were unable to locate this case on the Web.

Termination of Parental Rights - Involuntary

T.P. v. Dep’t of Children & Family Services
The Court of Appeals for the Fifth District of Florida affirmed the circuit court’s order terminating the mother’s parental rights to her child, relying on precedent from that District that the Florida statute providing for termination of parental rights to a child when parental rights to a sibling of the child have been previously involuntarily terminated.  The Court concluded that the behavior of the mother that led to termination of her parental rights with regard to her other children was an adequate indicator to uphold termination with respect to the child in question.  The Fourth district Court of Appeals of Florida recently held that the same statute relied upon by this Court was unconstitutional.  Thus, the Court certified this conflict.
Cite:  No. 5D02-3671, 2003 Fla. App. Lexis 18798 (Fla. Ct. App. Dec. 12, 2003)
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Foster Care and Constitutional Rights Issues

Braam ex rel. Braam v. State Dept. of Social and Health Services
The Washington Supreme Court vacated a trial court’s issuance of an injunction which mandated numerous changes to the state’s foster care system.   The Washington Supreme Court held that the jury was incorrectly instructed on the foster children’s substantive due process rights.  Specifically, the court held that the State, as custodian and caretaker of the children, is liable for harm allegedly caused by violation of a foster child’s substantive due process right to be free from unreasonable risk of harm and to reasonable safety only when the child’s care, treatment and services ‘substantially depart from the accepted professional judgment, standards or practice.’
The court further held that that in the class action, plaintiffs were not entitled to pursue any private cause of action under state statutes or the Child Welfare Act.
Cite:  No. 72598-5, 2003 Wash. LEXIS 894 (Wash. Dec. 18, 2003)
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Weatherford v. State
The Supreme Court of Arizona affirmed in part, and reversed in part, an appellate court’s ruling with respect to the circumstances under which a child placed in foster care may bring an action based upon 42 U.S.C. § 1983 against individual state workers for violating the foster child’s substantive due process rights.  The Court concluded that a foster child can establish § 1983 liability against a state official by showing that “the official, without justification, acted with deliberate indifference by placing a child in foster care or by maintaining a placement when the official knew that the placement exposed the child to danger or would have known of the danger but for the official’s deliberate indifference.”  Applying this standard, the Court found that the trial court’s grant of summary judgment was not proper under 42 U.S.C.A. § 1983, because there was a genuine issue of material fact as to whether the social workers acted with deliberate indifference in their placement and monitoring of the child.
Cite: No. CV-02-0369-PR, 2003 Ariz. LEXIS 143 (Ariz. Dec. 17, 2003)
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OTHER CASES OF INTEREST

Termination of Parental Rights – Process

In The Interest of B.C.
The Iowa Court of Appeals reversed the juvenile court’s order refusing to vacate a judgment terminating a father’s parental rights.  The appellate court held that the juvenile court did not have personal jurisdiction over the father at the time the termination order was entered because there was no publication notice in the file or a showing of diligent inquiry prior to service by publication.  Accordingly, the appellate court found that the termination order was void.  In addition, the appellate court concluded that the father was a necessary party to the termination proceedings because he was a known and living parent.
Cite:  No. 03-738, 2003 Iowa App Lexis 1091 (Iowa Ct. App. Dec. 10, 2003)
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In re Tanghe
Because the district court did not enter specific findings on the best interests of the children in a termination-of-parental-rights proceeding, the appellate court was unable to conduct an effective appellate review to determine whether the district court adequately considered the statutorily mandated best-interests factors. The appellate court therefore remanded the case for findings on the children's best interests.
Cite: Case No.  A03-760, 2003 Minn. App. LEXIS 1526 (December 30, 2003)
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December 18, 2003

SIGNIFICANT CASES

Termination of Parental Rights-Appeals From Orders of Termination
In re B.R.W.
The Okalahoma Court of Appeals reversed a lower court’s order which denied the biological father and stepmother’s motion to terminate the parental rights of the child’s biological mother without her consent and declare the child eligible for adoption.  In reversing, the appellate court concluded that the lower court committed a “fundamental error” by failing to appoint an independent attorney for the child to determine the child’s eligibility for adoption without parental consent.  The mother argued that this issue should not be decided on appeal because the issue was not raised below, however the court held that a “fundamental error” was an exception to the rule that issues not raised below could not be decided on appeal.
Cite: 78 P.3d 1243 (Okla. Civ. App. 2003)
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Termination of Parental Rights – Appeals of Orders of Termination

Rights of Grandparents and Other Biological Relatives
In re T.S.
A California Court of Appeals for the Third Appellate District affirmed the juvenile court’s order terminating a biological father’s and mother’s parental rights.   The court held there was substantial evidence to find  the children are “adoptable” by the children’s paternal grandparents.  The court also found that the grandparents need not undergo a physical examination in order to qualify to adopt the children and that the grandparents’ ages (58 and 61) were not legal impediments to the adoption.
Cite:  No. C043419, 2003 Cal. App. LEXIS 1801 (Cal Ct. App. Dec. 4, 2003).
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OTHER CASES OF INTEREST

Termination of Parental Rights – Appeals of Orders of Termination
Everett v. Everett
A North Carolina Court of Appeals reversed the trial court’s order which relieved the State social services agency from facilitating reunification efforts between the minor children and their biological father.  The appellate court held that such reunification efforts could not be terminated because the record did not show the efforts were futile.
Cite: No. COA03-316, 2003 WL 22844441 (N.C. Ct. App. Dec. 2, 2003).
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In re Dhermy
A North Carolina Court of Appeals affirmed the trial court’s order terminating a mother’s parental rights and concluded that, despite trial court’s failure to appoint a guardian ad litem, there was still clear and convincing evidence to substantiate termination of parental rights.
Cite: No. COA03-71, 2003 WL 22844240 (N.C. Ct. App. Dec. 2, 2003).
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State v. T.L.C. 
A Tennessee Court of Appeals vacated and remanded the trial court’s termination of a father’s parental rights and concluded that the trial court’s finding that the child was in all reasonable probability subject to abuse or neglect by the father was against the great weight of the evidence.
Cite: No. M2003-00509-COA-R3-JV, 2003 Tenn. App. LEXIS 848 (Tenn. Ct. App. Dec. 3, 2003)
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In re Muir
A Tennessee Court of Appeals vacated and remanded the trial court’s order denying the petition of a biological mother and her new husband seeking to terminate the parental rights of the biological father.  The trial court had previously held that the biological mother and new husband had not established by clear and convincing evidence that the biological father had abandoned the child.  However, the appellate court held that it was required to vacate and remand because the trial court’s order because the trial court failed to make the specific findings of fact and conclusions of law as required by Tenn. Code Ann. § 36-1-113(k).
Cite: No. M2002-02963-COA-R3-CV, 2003 Tenn. App. LEXIS 831 (Tenn. App. Nov. 25, 2003).
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In re A.R.M.F
A Pennsylvania Superior Court upheld a lower court’s decision that involuntarily terminated a couple’s parental rights to their two daughters, finding that under a relevant State statute the agency proved that parents demonstrated a continuing inability to care for the children through lack of judgment, martial instability, and refusal to seek counseling.  Furthermore, the appellate court found the agency met their burden of proof in presenting evidence that the children had been removed from the home for a statutory period of time and that termination would be in the children’s best interest.
Cite: No. 1046 EDA 2003, 2003 PA Super 469  (Pa. Super. Ct. Dec. 2, 2003).
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In re Amanda B.
A Court of Appeals of Oregon reversed a lower court’s decision terminating a mother’s parental rights , finding that the State failed to carry its burden of demonstrating that the mother was an unfit parent.  Under a relevant State statute, the appellate court did not find persuasive evidence of unfitness when considering the mother’s mental health at the time of the trial because the mother had been sober for 380 days and she had substantially met all the requirements of the service agreement she entered to result in reunification of her children.
Cite: Nos. J000777 & J000778, 2003 WL 22810312 (Or. Ct. App. Nov. 26, 2003)
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In re S.E.L.
A Texas Court of Appeals affirmed the trial court’s order terminating a mother’s parental rights.  The appellate court found that the trial court correctly determined that termination was in the best interests of the child due to the mother’s drug use and unstable lifestyle.
Cite: No. 13-03-213-CV, 2003 Tex. App. LEXIS 10184 (Tex. Ct. App. Dec. 4, 2003).
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December 11, 2003

FEATURED CASE

Adoption Assistance
Laws v. State ex rel. Okla. Dep't of Human Servs.
The plaintiff, Rita Laws, the adoptive mother of a 7 year old special needs child, challenged the legality of a state statute under which the maximum Title IV-E adoption subsidy payment level available to adoptive parents was less than that available to foster parents and the state Department’s denial of assistance to her at the foster care level under that statute. Laws contended that under federal law she was entitled to negotiate for Title IV-E funding up to the level available to foster parents.  The State argued that the statute merely set a permissible rate structure with a cap on payments subject to the foster care limit and that the rate structure in effect at the time of Laws’ adoption of the child did not require assistance to be negotiated up to the foster care rate.  The Oklahoma Court of Appeals agreed with Laws and ordered the State to allow Laws to negotiate for a subsidy rate up to the level of the maximum state foster care rate. The Oklahoma Supreme Court denied the State’s request that it review the Appeals Court’s decision.

Laws’ adoption of the child, who was born on December 9, 1992, became final on January 1, 1999.  Because of a state subsidy payment scheme that allowed for an increase in benefits when a child turns 6, she had applied for Title IV-E assistance twice prior to the child turning 6 in December, 1998.  After an administrative hearing and review, the Department denied her request for assistance at the foster care rate because the payment schedule in effect at the time of the adoption allowed for a lower rate of assistance.  This ruling also held that Laws did not qualify for increased assistance under regulatory amendments to the payment scheme enacted in April 1999 that added additional levels of assistance, because those levels were available only to children who qualified for SSI and were approved by the state Developmental Disabilities Services Division (“DDSD”) for specialized foster care at the time the adoption was initiated or who were adopted by a special class of licensed foster parents. Laws’ child met neither criterion.

Laws ultimately was awarded the maximum level of benefits starting in January, 2000, after another regulatory change on October 19, 1999 that eliminated the previous distinction between adoptive and foster parents in the payment schedule.  The State denied benefits at the higher level for the prior period on grounds that her child had not been approved for DDS services.

Laws appealed these administrative rulings; on appeal the District Court affirmed the ruling to the extent that it denied Laws the opportunity to negotiate for the foster care rate beginning on the child’s 6^th birthday up to October 19, 1999, but ordered that the maximum level of payments begun in January, 2000 should be made retroactive to October 19, 1999.  Both parties appealed.

The Oklahoma Court of Appeals reversed and remanded that part of the order affirming the Department’s denial of Laws’ request to negotiate for the foster care rate from the child’s 6^th birthday until October 19, 1999, but affirmed the judgment to the extent that it made the assistance retroactive to that date.  The Court noted that the provision of the Adoption and Child Welfare Act of 1980 that limits adoption assistance to a level no higher than that available to foster parents is not a license to discriminate against adoptive parents and ruled that Oklahoma’s payment scheme limiting adoptive parents to a lesser amount was unlawful.  In addition, although holding that the District Court did not err in ruling that the child was retroactively eligible for increased benefits back to October 19, 1999,  the Court noted the ruling left unresolved the issue of the amount of assistance appropriate from the child’s 6^th birthday until that date.  Thus, the Court reversed the trial court’s ruling which denied Laws the right to negotiate for the higher amount for that period and remanded with instructions for the trial court to direct the State to negotiate with Laws for an amount not to exceed the foster care amount for that period.
Cite: Case No. 96,740; 2003 Okla. Civ. App. LEXIS 88 (August 5, 2003, decided)
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NOTE:  The National Center for Adoption Law & Policy participated in this case as an amicus curiae (friend of the court), arguing in support of all of the positions ultimately adopted by the Oklahoma Court of Appeals in its opinion partially affirming and partially reversing the district’s court’s ruling.  The Center periodically files amicus curiae briefs in cases pending in state and federal appeals courts when those cases significantly impact the formulation and development of the law of adoption.  Please contact our Director, Kent Markus, at kmarkus@law.capital.edu for more information on this program.

SIGNIFICANT CASES

Termination of Parental Rights - Process
In re H.S.W.C.-B & S.E.C.-B
The Supreme Court of Pennsylvania reversed the order of the superior court quashing York County Children and Youth Services’ appeal of the denial of its petition to change the goal from reunification to adoption and to involuntarily terminate the mother’s parental rights.  The Court concluded that all orders dealing with custody, visitation, termination, and the change of goals from reunification to termination are final when entered and thus appealable.  The Court further concluded that a stay should not be ordered and the underlying proceedings halted pending the appeal.
Cite:  No. J-85-2003, 2003 Pa. LEXIS 2198 (Pa. Nov. 25, 2003)
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Termination of Parental Rights - Process
In re Gales
The Ohio Court of Appeals affirmed the judgments of the trial court granting legal custody of the mother’s two minor children to the children’s paternal cousin.  The appellate court found the trial court did not err in failing to make a determination as to parental unsuitability before awarding legal custody to the cousin because the previous adjudication of the children as dependent necessarily encompassed a consideration of parental fitness, and therefore a separate finding of parental unsuitability was not necessary.  The appellate court also found there was no abuse of discretion in awarding custody to the cousin because the mother failed to attend counseling sessions; failed to complete less than half of the random drug screenings; provided almost non-existent financial assistance to the children; and the children showed improvement in their behavior and were well adjusted to the cousin.
Cite:  Nos. 03AP-445 & 446, 2003 Ohio App. LEXIS 5646 (Ohio Ct. App. Nov. 25, 2003)
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OTHER CASES OF INTEREST

Termination of Parental Rights – Appeals of Orders of Termination
In re C.J.F.
The Court of Appeals of Texas upheld the lower court’s decision terminating both mother and father’s parental rights, concluding there was enough evidence to establish endangerment, that termination was in the best interests of the child, and that the lower court did not err when admitted into evidence autopsy photos of another child of mother finding that the probative value was not substantially outweighed by the danger of unfair prejudice.
Cite:  No. 07-03-0171-CV, 2003 Tex. App. LEXIS 10009 (Tex. Ct. App. Nov. 25, 2003)
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December 3, 2003

CASES OF INTEREST

Rights of Grandparents and Other Biological Relatives

In re T.J.F.
The Indiana Court of Appeals reversed a lower court’s order that granted an adopted child’s biological sister post-adoption visitation rights and remanded with instructions to grant the adoptive parent’s motion to dismiss the guardian ad litem and the Office of Family and Children’s motion to permit biological sibling visitation.  The Court of Appeals concluded that the lower court lacked authority under the statute to order visitation between the adopted child’s biological sister and the adopted child, absent a specific authorization for the biological sister’s visitation in the adoption decree.
Cite: No. 02-A05-0212-CV-616, 2003 Ind. App. LEXIS 2107 (Ind. Ct. App. Nov. 13, 2003).
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In re Goff
The Ohio Court of Appeals, 11th District affirmed the lower court's order denying the paternal grandparents’ motion to intervene in their grandchild’s dependency hearing.  The court found that the grandparents failed to state how their presence in the proceedings was necessary and the grandparents’ intervention would not be in the best interest of the child.  The court also noted that the grandparents never obtained a legal right to have custody or visitation with the child before the dependency hearing.  In a second order entered in relation to this case, the court affirmed both the trial court’s denial of the father’s motion to dismiss or stay ruling on the county agency’s motion for permanent custody of his child pending the outcome of the grandparents’ appeal and the final judgment awarding permanent custody to the county.
Cite: No. 2003-P-0068, 2003 Ohio App. LEXIS 5442 (Ohio Ct. App. Nov. 14, 2003); No. 2003-P-0069, 2003 Ohio App. LEXIS 5444 (Ohio Ct. App. Nov. 14, 2003).
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Subsidies/Tax Credits

York County Children & Youth Servs. v. Dep’t of Pub. Welfare
The Commonwealth Court of Pennsylvania affirmed the Department of Public Welfare’s ruling, holding that an adopted daughter suffered from Reactive Attachment Disorder at or before the time of her adoption, and therefore, she had a "mental or emotional handicap" at the time she was adopted.  Because the adopted daughter was found to have a “mental or emotional handicap,” she met the requirements of a Pennsylvania statute (55 Pa. Code § 3140.202 (b)(4)(i)) authorizing adoptive families to apply for financial assistance on behalf of children who have a physical, mental or emotional handicap.
Cite: 833 A.2d 281 (Pa. Cmwlth. 2003).
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OTHER CASES OF INTEREST

Termination of Parental Rights - Appeals of Orders of Termination

In re Wilcoxen
An Ohio Court of Appeals affirmed a judgment of the lower court terminating a mother’s parental rights and awarding permanent custody to the Stark County Department of Jobs and Family Services (SCDJS).  The appellate court concluded the child could not be placed with either parent at this time and because the child had been in the temporary custody of SCDJS for 12 of the past consecutive 22 months, a grant of permanent custody to SCDJS was in the  best interests of the child.
Cite: No. 2003-CA-00221, 2003 Ohio App. LEXIS 5368 (Nov. 3, 2003)
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In re Angelique C.
A California Court of Appeals affirmed a lower court’s denial of reunification services for a father relying on a State statute that allowed the court to bypass reunification services if a parent’s relationship with a sibling of the minor child in question had been permanently severed.  The appellate court found that because the father had voluntarily relinquished his rights to this child’s sibling, and the evidence presented supported a finding that the father had not made reasonable efforts to treat the problems that led to the sibling’s removal, the trial court was correct in denying the father reunification services.
Cite: No. H024986, 2003 Cal. App. LEXIS 1718 (Nov. 19, 2003)
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§ 1983 Action for Violation of Due Process in Termination Cases

Meyers v. Franklin County Court of Common Pleas
The United States Court of Appeals for the Sixth Circuit affirmed the district court’s dismissal of a § 1983 suit brought against two Franklin County Judges, holding that both judges were immune since the parents brought the suit against them in their official capacities.
Cite: 2003 U.S. App. LEXIS 23556 (6^th Cir. 2003).
Web link:  We could not locate this case on the Web.

Indian Child Welfare Act

In re H.D.
An Illinois Court of Appeals affirmed the decision of the Circuit Court, holding that the Indian Child Welfare Act was not applicable because there was no information to support that the child was a member of an Indian tribe.
Cite: 797 N.E. 2d 1112 (Ill Ct. App. 2003).
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SNK v. State
The Supreme Court of Wyoming dismissed an appeal from the District Court of Park County stating that the challenge to the trial court’s decision that the Indian Child Welfare Act did not apply was moot because a subsequent court order granted the tribe the right to continue to participate in the child’s life.
Cite: No. C-03-5, 2003 WL 22479405 (Wyo. Nov. 4, 2003).
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Adoption Procedure

In re Eduardo A.
A California Court of Appeals reversed and vacated as moot the Superior Court of Los Angeles County and concluded that the court did not have jurisdiction over the children.
Cite: No.  B166189, 2003 WL 22725361 (Cal. Ct. App. Nov. 20, 2003)
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SB v. Dept. of Children and Family Services
A Florida Court of Appeals reversed and remanded the circuit court’s default entry, concluding that the circuit court had no authority to enter a default in case adjudicating dependency for the child simply because the father arrived late for the hearing.
Cite: No. 2D03-66, 2003 Fla. App. Lexis 16962 (Fla. Ct. App. Nov. 7, 2003).
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November 25, 2003

CASES OF INTEREST

Adoption Procedure – Representation of Parties

In re Broome
The Supreme Court of South Carolina agreed with the finding of the Sub Panel and Full Panel of the Commission on Lawyer Conduct that the respondent committed misconduct in three separate matters, including adoption-related proceedings, but concluded that the gravity of the respondent’s misconduct justified a 90-day suspension.  Respondent’s misconduct in the adoption-related proceedings stemmed from his initial representation of a married couple in an action to adopt an infant, his subsequent representation of the wife in action against the husband for maintenance, support and temporary custody after the wife moved out of the marital home, and his subsequent initiation of a separate action on behalf of the wife to adopt the infant while the first adoption proceeding remained pending.  The Court found the attorney violated several relevant Rules of Professional Conduct by deceiving and misleading the court to believe the first adoption action did not remain viable to other parties in both the complaint and the examination of the adoptive mother in court.  Additionally, the Court found that attorney had a duty to clarify the status of the first adoption proceeding and existence of the support action to the Court and should have notified all interested parties that the adoptive mother was filing a second adoption action on her own behalf.
Cite:  No. 25748, 2003 S.C. LEXIS 276 (S.C. Nov. 10, 2003).
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Termination of Parental Rights – Appeals of Orders of Termination
 

In re Termination of Parental Rights to Jonathon G.
The Wisconsin Court of Appeals affirmed the decision of the trial court to terminate the mother’s parental rights over her objections that there was insufficient evidence to support the jury’s conclusion that she failed to assume parental responsibility and that the trial court abused its discretion in terminating her parental rights, concluding there was sufficient evidence to uphold the jury’s finding and the court did not abuse its discretion.
Cite:  Nos. 03-2571 & 72, 2003 Wisc. App. LEXIS 1040 (Wisc. App. Nov. 11, 2003).
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Termination of Parental Rights - Involuntary

In Re J.R.C., III
The Louisiana Court of Appeals affirmed the juvenile court’s judgment terminating the alleged father’s parental rights and granting an intra-family adoption, concluding the juvenile court’s findings of fact, including its finding that the alleged father had not manifested a commitment to his parental responsibilities or established that he is a fit parent, were supported by the record, the legal analysis was correct and the facts were correctly applied to the law.
Cite: No. 03-CA-0761, 2003 La. App. LEXIS 3135 (La. Ct. App. Nov. 12, 2003).
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Rights of Grandparents and Other Biological Relatives

In re Huffer
The Ohio Court of Appeals affirmed the trial court’s award of custody of the child to her foster parents, concluding the trial court’s determination that it was in the best interest of the child for the foster parents to have legal custody, as opposed to the grandmother, was not against the great weight of the evidence, but noting that the issue was close.
Cite:  No. 2002 CA 96, 2003 Ohio 5964 (Ohio Ct. App. Nov. 7, 2003)
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Federal Law - Indian Child Welfare Act

In re Karla C.
The California Court of Appeals reversed and remanded the lower court’s order declaring appellants’ daughter a dependent of the court and removing her from parental custody, concluding the ICWA notice must be filed with the court and the error could not be deemed harmless because there was no suggestion in the record that the notice sent to the tribe contained the required information.
Cite:  No. D042048, D042060, 2003 Cal. App. LEXIS 1672 (Cal. Ct. App. Nov. 10, 2003)
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Putative Father – Notice of Adoption Proceedings

In re Christopher M.
The California Court of Appeals affirmed the lower court’s decision denying the alleged father a contested permanency hearing, concluding that the appellant’s right to assert a position regarding his parental status did not entitle him to a contested § 366.26 hearing and the court did not have to give appellant the notice and form provided for in § 316.2 because the minor’s paternity already had been established by a voluntary declaration of paternity.
Cite:  No. C043514, 2003 Cal. App. LEXIS 1673 (Cal. Ct. App. Nov. 10, 2003)
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Inheritance Rights – Intestate

Hulsey v. Carter
The Supreme Court of Georgia affirmed the lower court’s decision granting summary judgment in favor of decedent’s nieces and against decedent’s step daughter in an action brought by decedent’s step daughter seeking a declaration that she was the virtually adopted daughter of the decedent, concluding the step daughter failed to establish the first essential element for a virtual adoption, which requires that the contract for adoption be made by persons competent to contract for the child.
Cite:  No. S03A1310, 2003 Ga. LEXIS 953 (Ga. Nov. 10, 2003)
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Termination of Parental Rights – Appeals of Orders of Termination

In re Tanya F.
The California Court of Appeals affirmed the lower court’s order terminating the mother and father’s parental rights in their special needs child, concluding the parents were barred from raising a due process claim because no appeal was taken from the jurisdictional order and the court’s adoptability finding was supported by substantial evidence.
Cite:  No. 167320, 2003 Cal. App. Unpub. LEXIS 10596 (Cal. Ct. App. Nov. 12, 2003)
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November 18, 2003

SIGNIFICANT CASES

 

Indian Child Welfare Act (“ICWA”)

In re Adoption of Keith M.W.
The Alaska Supreme Court affirmed a trial court’s decree of adoption by a non-Indian couple based on a final decree terminating parental rights.  The Court found that the trial court’s finalization of the adoption by the non-Indian couple was valid because, although the Indian Child Welfare Act (ICWA) grants several placement preferences, a showing of good cause will justify deviation.  The Court held that the mother’s initial desire to deviate from the ICWA placement preferences by signing a document attempting to relinquish her parental rights to a non-Indian couple and a notarized letter expressing her wishes they adopt the child, which occurred after her withdrawal of consent to adoption, was a valid showing of good cause to deviate.  Additionally, although the Court found that under a relevant Alaska statute, her relinquishment of parental rights was invalid because it was conditioned on a specific couple adopting the child, the mother’s subsequent letter affirming her wishes to consent to adoption combined with the child’s bond with the adoptive parents supported deviation from the ICWA.
Cite: No. S-10489, 2003 WL 22463001 (Alaska Oct. 31, 2003).
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Agency/Professional Liability

Doe v. Lebbos
The Ninth Circuit Court of Appeals affirmed the district court’s ruling that a social worker is entitled to absolute immunity from prosecution on charges that the social worker fabricated evidence because his or her actions were part of the initiation and pursuit of child dependency proceedings.  The court held that although the social worker in this case violated the parent’s constitutional rights by taking their child to a sexual abuse examination without parental consent, the social worker is immune from suit because the rights at issue were not clearly established so that a reasonable social worker would recognize that his or her conduct was unlawful.
Cite: No. 02-16326, 2003 U.S. App. LEXIS 22632 (9^th Cir. Nov. 4, 2003).
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Rights of Grandparents and Other Biological Relatives
In re Adoption of B.T.
The Supreme Court of Washington held that while paternal grandmother and step-grandfather had standing to intervene in a post-termination of parental rights adoption proceeding, the petition of the grandmother and step-grandfather to adopt their granddaughter would not be afforded preferential status because, according to the Court, that would undermine the intent and purposes of dependency and adoption statutes.
Cite: No.  72809-7, 2003 Wash. LEXIS 731 (Wash. Oct. 30, 2003).
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OTHER CASES OF INTEREST

Rights of Grandparents and Other Biological Relatives

In re Caya B.
The Court of Special Appeals of Maryland reversed the decision of the Montgomery County Juvenile Court granting custody of a child to a maternal uncle and his wife because the juvenile court’s decision failed to address visitation between the child and her biological mother.
Cite: Nos. 1758, 2151, 2912, 2003 Md. App. Lexis 136 (Md. Nov. 3, 2003).
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Termination of Parental Rights – Appeals from Orders of Termination

In re Welfare of S.M.
The Washington Court of Appeals reversed a lower court’s order that terminated a father’s parental rights, holding that termination of parental rights was not in the best interest of the child.  The court concluded that even though there was substantial evidence to support the lower court’s finding that all services capable of correcting the father’s deficiencies had been offered, the lower court nonetheless erred in terminating the father’s parental rights where there was undisputed evidence of a strong bond between the father and child, and the father had not failed to provide the child with a loving and safe environment.
Cite: No. 29527-0-II, 2003 Wash. App. LEXIS 2576 (Wash. Ct. App. Nov. 4, 2003).
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In re Baby Girl Elliott
An Ohio Court of Appeals affirmed the decision of the Butler County Court of Common Pleas, finding that clear and convincing evidence supported the granting of permanent custody to county children services board because the biological father failed to provide a safe home environment to the child.
Cite: No. CA2003-04-096, 2003 WL 22470168 (Ohio Ct. App. Nov. 3, 2003).
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In re Children of Schauer
A Minnesota Court of Appeals affirmed the lower court’s decision to terminate the couple’s parental rights concluding that the lower court did not err when it found parents palpably unfit.
Cite:  No. A03-402, 2003 Minn. App. LEXIS 13 (Minn. Ct. App.  Nov. 4, 2003).
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November 11, 2003

SIGNIFICANT CASES

Termination of Parental Rights - Process

In re Adoption/Guardianship of Genara A.
Maryland’s Court of Special Appeals reversed and remanded the lower court’s order terminating the mother’s parental rights.  The court concluded that the mother had not consented to the termination of her parental rights as to her daughter by failing to object because the Baltimore City Department of Social Services’ petition had not been served properly.  Under the relevant statute, the Department was required to serve the mother’s attorney in her daughter’s CINA case, and the court held that service on the mother’s attorney in her son’s CINA case was insufficient, even though both attorneys were in the same office.
Cite:  No. 246, 2003 Md. App. LEXIS 131 (Md. Ct. App. Oct. 29, 2003)
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Foster Caregiver Rights

Barnett v. Oathout
The Supreme Court of Mississippi reversed and remanded the chancellor court’s judgment that found returning two children to their biological father was in the children’s best interests in an appeal by the boys’ foster mother, who claimed the chancellor placed too much emphasis on the natural parent presumption.  The Court noted it had abandoned the natural parent presumption and adopted a new standard for custody matters between a natural parent and third-parties.  Under this new standard, if a natural parent voluntarily relinquishes custody of a child, he or she also forfeits the right to rely on an existing natural parent presumption that the child’s best interest is in the custody of the parent.  A natural parent then may only reclaim custody of the child by showing by clear and convincing evidence that the change in custody is in the best interest of the child.  The Court found that, because the father admitted he gave durable custody to the foster mother, the chancellor court placed too much emphasis on the natural parent presumption.
Cite:  No. 2001-CA-01309-SCT, 2003 WL 22455642 (Miss. Oct. 30, 2003)
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Rights of Grandparents and Other Biological Relatives

In re Adoption of B.T.
The Supreme Court of Washington reversed in part the appellate court’s order reinstating an adoption petition brought by the grandparents of a child whose parents’ parental rights had been terminated.  The court concluded that grandparents who seek to intervene in a post-termination adoption proceeding have standing to seek adoption via statute, but, contrary to the court of appeal’s holding, their petition is not afforded preferential status.
Cite:  No. 72809-7, 2003 Wash. LEXIS 731 (Wash. Oct. 30, 2003)
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OTHER CASES OF INTEREST

Termination of Parental Rights – Appeals of Orders of Termination

In re McColloch
The Ohio Court of Appeals affirmed the decision of the juvenile court awarding permanent custody of three minor children to the Greene County Children’s Services Board, finding there was clear and convincing evidence supporting the juvenile court’s best interest determination.
Cite:  No. 02CA39, 40, 2003 Ohio App. LEXIS 5115 (Ohio Ct. App. Oct. 24, 2003)
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Finality of Adoption Decree

In re K.N.H, et al.
The Missouri Court of Appeals affirmed the circuit court’s judgment and decree of adoption, concluding there was clear, cogent and convincing evidence to support the lower court’s determination that the father abandoned the child for a period of six months prior to the filing of the adoption petition and that the adoptive parents had lawful custody of the child for a period of nearly six years prior to the filing of the petition.
Cite:  No. 25259, 2003 Mo. App. Lexis 1731 (Mo. Ct. App. Oct. 30, 2003)
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Putative Fathers - Notice of Adoption Proceedings

Mathews v. Hansen
The Indiana Court of Appeals affirmed the trial court’s dismissal of the alleged biological father’s challenge to the adoption decree, concluding the circumstances demonstrated he was time-barred from challenging the decree because he failed to register as a putative father and stating that the Indiana legislature intentionally promulgated that an adoption decree could not be attacked on the basis of lack of notice after the time limitations have expired.
Cite:  No. 45A05-0305-CV-221, 2003 Ind. App. LEXIS 2017 (Oct. 29, 2003)
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Termination of Parental Rights – Appeals of Orders of Termination

Nelson v. Petersburg Dep’t Soc. Servs.
The Virginia Court of Appeals affirmed the trial court’s decision terminating the father’s parental rights, holding that in a termination of parental rights case, the court will not review the trial court’s ruling for reversal unless the appellant stated the grounds for the objection at the time of the trial court’s ruling, and that endorsing an order by stating “seen and objected to” is insufficient to meet this requirement because it fails to sufficiently notify the trial court of the error claimed.
Cite:  No. 0683-03-2, 2003 Va. App. LEXIS 540 (Va. Ct. App. Oct. 28, 2003).
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Termination of Parental Rights - Appeals of Orders of Termination

In re A.C.
The Iowa Court of Appeals reversed an order terminating a father’s parental rights holding that under the applicable statute the child had not been out of the parent’s physical custody for six months before the termination hearing and that the state did not prove by clear and convincing evidence that the father had failed to make reasonable efforts to establish a meaningful relationship with his daughter as the DHS did not provide reasonable services for reunification as required by statute.
Cite:  No. 3-676/03-1314, 2003 Iowa App. LEXIS 911 (Iowa Ct. App. Oct. 29,2003)
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Termination of Parental Rights - Appeals of Orders of Termination

M.H. v. Dep't of Children & Families
The Florida Court of Appeals reversed the trial court’s order terminating a mother’s parental rights holding the record contained no evidence that the mother’s involvement with her children threatened them with harm of any kind, no evidence that the mother would not improve, or that termination was the least restrictive means of protecting the children.
Cite:  No. 1D03-0353, 2003 Fla. App. LEXIS 16113 (Fla. Ct. App. Oct. 28, 2003)
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November 4, 2003

SIGNIFICANT CASES

Termination of Parental Rights: Appeals of Orders of Termination

In re D.L.B.
The Supreme Court of Tennessee reversed an order that terminated a father’s parental rights based on abandonment.  The applicable statute stated that abandonment for purposes of terminating parental rights may be established by showing that that for four consecutive months prior to filing of a petition for termination the parent willfully failed to visit or support the child.  The Court held the trial court erred in computing the four-month period based on an earlier CASA termination petition that was dismissed and instead should have used the termination petition that initiated this case.
Cite:  No. W2001-02245-SC-R11-CV, 2003 Tenn. LEXIS 983 (Tenn. Oct. 20, 2003)
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In re A.B.
A Georgia  Court of Appeals reversed and remanded a lower court’s deprivation order relating to a mother’s youngest child.  The lower court’s basis for the deprivation order was the mother’s failure to protect the child’s siblings from abuse by her prior boyfriend, resulting in the death of a child.  The appellate court found that the record lacked clear and convincing evidence that the cause of the child’s status as deprived was from lack of proper parental control or care, that this cause is likely to continue, and that the continued deprivation would cause serious harm to the child.  Further, the appellate court found that because the record lacked proof of any of the statutorily prescribed aggravating circumstances that would excuse the need for  reasonable efforts to reunify a child with the parent, the lower court erred in excusing the State from making such efforts.
Cite: No. A03A1601, 2003 GA App Lexis 1293  (Ga. Ct. App. Oct. 21, 2003)
Web Link: To view opinion from the Court of Appeals website, go to http://www.gaappeals.us/ and then register for LEXIS.ONE online service.

OTHER CASES OF INTEREST

Involuntary Termination of Parental Rights

In re T.B.B., Jr.
The Superior Court of Pennsylvania affirmed a lower court ruling that held that Westmoreland County Children's Bureau acted reasonably in changing its goal from reunification to adoption after finding the mother could not rectify the trauma she caused to her children by duct taping them, malnourishing them, and making them eat fecal matter.  The Court held that the mother’s parental rights where properly terminated because the children had been in foster care for far longer than the statutory period and termination was in the children’s best interest.
Cite: Nos. 397WDA2003, 400WDA2003, 2003 PA Super Lexis 3695 (Pa. Sup. Ct. Oct. 23, 2003)
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In re S.D.
The North Carolina Court of Appeals upheld the lower court’s order terminating both a mother’s and a father’s parental rights, stating that there was clear and convincing evidence for terminating their rights.  The court found that the mother neglected the child, based upon her limited contact with the child, her failure to provide constant and consistent care and her failure to provide the child with a secure living arrangement.  As to the father, the court found that he had no contact with the child whatsoever.
Cite:  No. COA02-858, 2003 NC App Lexis 1945 (N.C. Ct. App. Oct. 21, 2003)
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In re Brittany S.
The Nebraska Court of Appeals affirmed the juvenile court’s ruling that the State is not required to provide a plan of rehabilitation when the court terminates the parent’s rights due to his or her inability to carry out parental responsibilities and the child has been placed outside of the parent’s home for at least 15 out of the last 22 months.
Cite: No. A-02-1396, 12 Neb. App. 208, 2003 Neb. App. LEXIS 273 (Oct. 21, 2003).
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Adoption Procedure

In re Holt
An Ohio Court of Appeals affirmed the Court of Common Pleas’ ruling that six days prior notice to the birth mother of a planned permanent living arrangement was sufficient notice.
Cite: No. 03-AP-355, 2003 Ohio App Lexis 4978 (Ohio Ct. App. Oct. 21, 2003)
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Termination of Parental Rights - Evidentiary Issues

Cummings v. Arkansas Department of Human Services
The Court of Appeals of Arkansas affirmed the order of the Circuit Court holding an edited videotape admissible and sufficient evidence to terminate parental rights.
Cite: No. CA03-385, 2003 WL 22407380 (Ark. Ct. App. Oct. 1, 2003)
Web link: The opinion has not been published on the Court’s website but a reference to the case citation is available at http://www.courts.state.ar.us/opinions/20031001.htm

October 28, 2003

SIGNIFICANT CASES

Termination of Parental Rights – Process

Means v. Ashby
A Tennessee Court of Appeals affirmed a trial court’s decision dismissing a petition seeking termination of parental rights and vacated an award of custody to the petitioners, the mother’s brother and sister-in-law.  The appellate court found that although the child was living with the petitioners, they could not prove that the parents’ failure to support or visit the child was willful, as required by the state statute to terminate parental rights on abandonment grounds.  The appellate court also found that the trial court erred in using a best interest of the child standard in deciding custody.  In an initial custody dispute between parents and non-parents, Tennessee law requires the court to use a substantial harm to the child standard. Because the father was not an original party to the custody order, the trial court erred in not using this standard.
Cite: No. M2002-00285-COA-R3-CV, 2003 Tenn. App. LEXIS 712  (Tenn. Ct. App. Oct. 6, 2003)
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Termination of Parental Rights – Appeals of Orders of Termination

Federal Law – Indian Child Welfare Act

Doe v. Mann
The United States District Court for  the Northern District of California dismissed a Native American mother’s suit challenging termination of parental rights.  The court held that the Rooker-Feldman doctrine did not bar federal district court’s review of a state court termination decision.  The Rooker-Feldman doctrine states that if claims in federal court are “inextricably intertwined” with the state court’s decision and the interpretation and application of state law, then the federal complaint must be dismissed for lack of subject matter jurisdiction.  The court also held the termination of parental rights was not in violation of the Indian Child Welfare Act (ICWA) as the act is not grounds to relitigate a claim.
Cite: 2003 WL 22255820 (N.D. Cal.)
Web link: We were unable to locate this case on the Web.

Termination of Parental Rights - Involuntary

In re Swisher
The Court of Appeals of Ohio reversed and remanded the lower court’s judgments overruling objections to and adopting two magistrate’s decisions granting Franklin County Children Services permanent custody of the appellant’s five minor children after the children were found living in deplorable conditions and suffering from various health ailments.  The Court held that the lower court erred in terminating the mother’s parental rights because neither the lower court nor the guardian ad litem asked the children if they wished to remain in their mother’s care.  On remand, the lower court is to determine if the children wish to stay with their mother, and if they wish to stay with the mother against the guardian ad litem’s recommendation, then to determine if the conflict of interest between the children and the guardian ad litem requires that counsel be appointed to represent the children’s interest in reunification.
Cite:  Nos. 02AP-1408 & 02AP-1409, 2003 Ohio App. LEXIS 4901 (Ohio Ct. App. Oct. 14, 2003)
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Agency Liability

J.H. v. Johnson
The Seventh Circuit Court of Appeals affirmed the District Court’s decision granting defendant Department of Children and Family Services employees’ motion for summary judgment on the children’s father’s § 1983 claim brought against them for their role in placing his children in foster homes where they were sexually abused.  Although defendants acted under color of state law, the court concluded that, under the modified deliberate indifference standard, the father did not establish that defendants knew of or suspected that the children were at risk of sexual abuse in the foster homes.  The court explained that a violation of state law does not per se make a state actor liable under § 1983 and knowledge or suspicion of abuse cannot merely be imputed from a statute.
Cite:  No. 02-194, 2003 U.S. App. LEXIS 20738 (7th Cir. Oct. 10, 2003)
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OTHER CASES OF INTEREST

Termination of Parental Rights - Process

In re Brooks
An Ohio Court of Appeals held that an agency requesting permanent custody of a child must have temporary custody of the child for 12 or more months of a consecutive 22-month period, and that the agency is not required to wait the entire 22-month period before filing a motion for permanent custody.
Cite:  No. 03AP-282, No. 03AP-442, 2003 Ohio App. LEXIS 4805 (Oct. 7, 2003).
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Termination of Parental Rights – Appeals of Orders of Termination

In re Holman
The North Carolina Court of Appeals affirmed a trial court’s order that terminated a father’s parental rights.  The appellate court concluded that that the trial court had subject matter jurisdiction over the action and that there was clear and convincing evidence to support the trial court's conclusion that the alleged father willfully abandoned his child.  Finally, the appellate court concluded that the trial court did not abuse its discretion in finding that it was in the child’s best interest to terminate the alleged father’s parental rights.
Cite: No. COA03-167, 2003 N.C. App. LEXIS 1839 (N.C. Ct. App. Oct. 7, 2003)
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In re Michael R.
A Wisconsin Court of Appeals affirmed the trial court’s order terminating a mother’s parental rights to her two sons.  The appellate court found that the trial court properly ordered termination even though the dispositional hearing was continued and occurred outside a statutorily prescribed forty-five day limit, because the mother and guardian ad litem agreed to waive the time limit, the mother did not want the hearing to occur soon, and the trial judge was ill.  The appellate court further found that the trial court complied with a relevant state statute when the court accepted the mother’s admissions to the allegations contained in the termination petition.  Finally, the trial court gave sufficient consideration to all the statutory factors it should consider when exercising discretion to terminate parental rights.
Cite: Nos. 03-0925, 03-0926, 2003 Wisc. App. LEXIS 944 (Wisc. Ct. App. Oct. 7, 2003).
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Inheritance Rights

Shippey v. Rogers
The Supreme Court of Wyoming reversed the district court’s order, holding that although an adopted child has a statutorily preserved right to inherit from his biological parents, an adopted child’s biological family members do not have a right to inherit from the adopted child under the State’s intestacy statutes.
Cite: No. 02-211, 2003 WY 125, 2003 Wyo. LEXIS 150 (Wyo. Oct. 1, 2003).
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Rights of Grandparents and Other Biological Relatives

In re the Custody of G.J.
The Indiana Court of Appeals reversed and remanded the trial court’s judgment granting the mother’s motion to dismiss the uncle’s action seeking custody of his deceased brother’s daughter, concluding the uncle had grounds to pursue the action because the child custody statute permits any person other than a parent to initiate an independent cause of action to seek custody.
Cite:  796 N.E.2d 756 (Ind. Ct. App. 2003)
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Termination of Parental Rights – Effect of Termination
Child Support

State ex rel. v. Overstreet
The Supreme Court of Oklahoma vacated the ruling of the court of appeals and affirmed the decision of the trial court, holding that the termination of a parent’s parental rights also terminated parental duties, including the obligation to pay child support.
Cite:  No. 97179, 2003 WL 22331844 (Okla. Oct. 14, 2003)
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Termination of Parental Rights - Process

In re J.C.
The Court of Appeals of Iowa reversed and remanded a juvenile court order terminating the child’s parents’ parental rights, holding that the adoptive parents did not have standing to initiate a proceeding to terminate their own parental rights.
Cite:  No. 3-700, 2003 WL 22345729 (Iowa Ct. App. Oct. 15, 2003)
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Williams v. Chesterfield
The Court of Appeals of Virginia affirmed a trial court order terminating the mother’s parental rights, concluding the evidence was sufficient to support the termination and the social worker did not need personal knowledge of the facts recorded in the prior social worker’s notes for those notes to be admitted pursuant to the business records exception to the hearsay rule.
Cite:  No. 1152-03-2, 2003 WL 22330989 (Va. Ct. App. Oct. 14, 2003)
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In re Adoption of Baby W.
The Indiana Court of Appeals affirmed the judgment a trial court dismissing a putative father’s objection to an adoption petition filed by adoptive parents.  The putative father claimed that his procedural due process right to be advised of a constitutional right to counsel was violated when his parental rights were terminated.  The court held that, because the father had never showed an interest in taking responsibility for the child, he had merely an executory interest in forming a relationship with the child that had not ripened into one which was entitled to substantial protection under the Due Process Clause.  Additionally, the Court found the same counsel represented the father throughout all the paternity and adoption hearings; therefore, any error in the trial court’s failure to inform the father of right to counsel was harmless.
Cite: No. 14A01-0305-CV-189, 2003 Ind. App. LEXIS 1814 (Ind. Ct. App. Sept. 26, 2003)
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Statutes – Adoption and Safe Families Act

CASA v. Dep't of Servs. for Children, Youth & Their Families
The Supreme Court of Delaware affirmed the orders of the trial court granting legal guardianship of two minor children to non-relative foster parents, concluding the record supported a conclusion that the legal status of a standard guardianship satisfies the permanency requirements of the Adoption and Safe Families Act (AFSA) and was in the children’s best interest and, therefore, did not require a demonstration of compelling reasons why termination of parental rights and adoption would not be in the children’s best interest to be valid.
Cite:  No. 059,2003, 2003 Del. LEXIS 508  (Del. Oct. 7, 2003)
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Foster Caregiver Rights

Dep’t of Children & Families v. M.M.
The Florida Court of Appeals reversed the trial court’s order finding the Department in contempt for failing to transfer the child from a residential sex offender program to a therapeutic foster home, holding that the violation was not willful as the Department had made an effort to comply.
Cite:  No. 4D02-4087, 2003 Fla. App. LEXIS 15481 (Fla. Ct. App. Oct. 15, 2003)
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Termination of Parental Rights - Appeals of Orders of Termination

In re Rebecka P.
The Supreme Court of Nebraska reversed the trial court’s order terminating the father’s parental rights, holding the State had failed to prove by clear and convincing evidence that termination was in the child’s best interest, based on the court’s finding that, although the father had not accomplished all the goals in the rehabilitation plan, he had made progress and the father had developed a strong bond with the child that would be hurt if it were severed.
Cite:  No. S-02-1353, 2003 Neb. LEXIS 164 (Neb. Oct. 10, 2003)
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October 15, 2003

SIGNIFICANT CASES

United State Constitution – Equal Protection Clause
Presumed Father Status

In re Kyle F.
The California Court of Appeals reversed and remanded the trial court’s ruling that an unwed father who could have been charged with misdemeanor unlawful sexual intercourse could never qualify as a presumed father.  On appeal, the court concluded that neither case law nor statute preclude an 18-year-old unwed father from attempting to demonstrate a full commitment to assume his parental responsibilities toward a child born to a mother who was 16 at the time of conception.  The court explained that the trial court misconstrued prior case law by equating “unlawful sexual intercourse” with “nonconsensual sexual intercourse.”  Thus, while a person who forcibly rapes another should not be afforded constitutional protection in proceedings concerning the adoption of a child conceived during the rape, an unwed father should not be denied the constitutional right to develop a parental relationship with his child when he and the minor mother were relatively close in age and both willingly participated in the act. 
Cite:  No. F038536, 2003 Cal. App. LEXIS 1512 (Cal. Ct. App. Oct. 3, 2003).
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Adoption Subsidies


York County Children & Youth Servs. v. Dep't of Public Welfare
The Commonwealth Court of Pennsylvania affirmed the order of the Department of Public Welfare that affirmed an earlier order of the Department of Public Welfare Bureau of Hearings and Appeals sustaining the appeal of an adoptive father from the denial of the adoptive father’s request for adoption assistances by York County Children and Youth Services (Children Services).  The Court concluded that Children Services’ failure to inform the adoptive parent of relevant medical information and to provide a meaningful understanding of the adoption assistance program constituted extenuating circumstances, which justified retroactive application of an adoption subsidy. 
Cite: No. 660 C.D. 2003, 2003 Pa. Commw. LEXIS 695 (Pa. Commw. Oct. 1, 2003)
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Foster Caregiver Rights


In re Cheryl M.
The California Court of Appeals denied the Los Angeles County Department of Children and Family Services’ petition for a writ of mandate directing the dependency court to vacate its order denying the Department’s request for an order removing three children who were living with their aunt/de facto parent from the aunt pending the resolution of the Department’s supplemental petition, in which the Department alleged that placement with the aunt was no longer effective in the protection of the children due to the aunt’s conviction for two minor offenses concerning improper discipline of her own children.  The court explained that removal was not mandatory and the relevant statute did not deprive the dependency court of discretion to allow the children to remain in the aunt’s home.
Cite:  No. B166181, 2003 WL 22271195 (Cal. Ct. App. Oct. 2, 2003)
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OTHER CASES OF INTEREST

Termination of Parental Rights - Process

Daniel Y. v. Arizona Department of Economic Security and Andrew Y.
The Arizona Court of Appeals of Arizona vacated and remanded the order of the superior court terminating the father’s parental rights, holding that, under the circumstances of this case where it was unknown why the father’s two previously appointed counsel withdrew, the father had not knowingly or voluntarily waived his right to counsel.
Cite:  No. 1CA-JV 02-0121, 2003 WL 22251089 (Ariz. Ct. App. Oct. 10, 2003)
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Termination of Parental Rights - Involuntary

In re Jac’Quez N.
The Supreme Court of Nebraska reversed that part of the juvenile court’s order that failed to terminate the mother’s parental rights and remanded the cause with directions to the juvenile court to enter an order of termination, holding that reasonable efforts at reunification are not required when there is clear and convincing evidence of aggravating circumstances in which the abuse was so severe that an attempt at reunifying the child with the parents would compromise the safety of the child.
Cite: No. S-02-1381, 266 Neb. 782, 2003 Neb. LEXIS 157 (Neb. Sept. 26, 2003).
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Visitation Rights

Adoption of Felton
The Massachusetts Court of Appeals affirmed the lower court’s order denying post-adoption visitation to the mother despite the Department of Social Service’s belief that the children would benefit from limited contact with their mother, concluding there was insufficient evidence to show the “significant, existing bonds” necessary to warrant an order for post-adoption visitation.
Cite:  No. 03-P-439, 2003 WL 22244238 (Mass. Ct. App. Sept. 30, 2003)
Web link:  We were unable to locate this case on the web.


Termination of Parental Rights – Appeals of Orders of Termination


C.S. v. Virginia Beach Dept. of Soc. Serv.
The Virginia Court of Appeals reversed the lower court’s decision terminating the mother’s parental rights, finding that the mother had substantially remedied the problems that had originally led to the children’s placement in foster care.
Cite:  No. 3156-02-1, 2003 Va. App. LEXIS 499 (Va. Ct. App. Sept. 30, 2003)
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Effect of Adoption Decree


Adoption of Scott
The Massachusetts Court of Appeals affirmed the trial court’s order denying a biological mother’s motion for abuse of discretion that was filed after the completion of trial on a petition of the Department of Social Services to dispense with the need for her consent (and that of the father) to the adoption of her four year old son, concluding that, after it was determined that the biological mother was unfit, she had no right to determine the child's future, and absent extraordinary circumstance, a biological parent cannot rely on post-trial changes in the adoption plan to reopen proceedings. 
Cite: No. 02-P-1637, 59 Mass. App. Ct. 274  (Mass. Ct. App. Sept. 12, 2003)
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Rights of Grandparents and Other Biological Relatives
Adoption Process

Dep't of Children & Family Servs. v. B.Y
The Florida Court of Appeals affirmed the lower court’s order finalizing the adoption petition of a grandmother without the consent of the Department of Children and Family Services, concluding that Florida Statutes section 63.125 did not require a final home investigation because the statute provided an exception to the final home investigations requirement for individuals related to a child within the third degree of consanguinity.
Cite: No. 4D03-715, 2003 Fla. App. LEXIS 14815 (Fla. Ct. App. Oct. 1, 2003)
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September 23, 2003

SIGNIFICANT CASES

Termination of Parental Rights – Mediation Challenge

In re A.H. and D.H.
A Texas Court of Appeals of Texas affirmed the lower court’s order terminating a father’s parental rights.  The father argued on appeal that the mediated settlement he signed was not binding because the agreement failed to meet statutory requirements that the mediation was irrevocable, and that evidence presented by the guardian ad litem (GAL) was legally and factually insufficient to conform to the terms of the agreement.  The court found that the mediated settlement signed by the father clearly provided, in bold print at the bottom of pages to be signed, that the agreement was not subject to revocation.  Further, the court found that the GAL’s investigation was sufficient to meet the terms of the agreement.
Cite:  No. 05-03-00080-CV, 2003 Tex.App.LEXIS 7873 (Tex. Ct. App. Sept. 9, 2003)
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Claims Asserted Against State Agency

Eaton v. State Dept. of Social Services
The Washington Court of Appeals affirmed a lower court’s order granting summary judgment to a State agency and denying a father’s motion for summary judgment on his claims of malicious interference with the parent- child relationship, negligent investigation, and a violation of his rights under 42 U.S.C. § 1983.  On appeal, the father argued that collateral estoppel should apply based on issues previously litigated in an administrative proceeding.  The court held, however, that the father failed to meet the elements required for collateral estoppel because the relevant issues between this lawsuit and the prior administrative proceeding were not identical insofar as the prior administrative hearing focused on whether the father had either physically or emotionally abused his son.
Cite: No. 50780-0-I, 2003 Wash App LEXIS 1917 (Wash. Ct. App. Sept. 9, 2003)
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Who May Adopt

Gerweck v. Schoenradt
An Indiana Court of Appeals affirmed a trial court’s order granting an adoption petition of a man who cared for the child since birth, but was not the biological father of the child, and denying a petition to adopt by the biological mother’s maternal aunt and uncle.  On appeal the aunt and uncle claimed that the trial court erred in not appointing a guardian ad litem (GAL) for the child, abused its discretion when it relied on hearsay documents admitted without objection, and that denial of their petition and grant of father’s petition was contrary to law.  The appellate court found that because the trial court accepted a report from a court appointed special advocate, which statutorily functions in the same capacity as a GAL, the child’s interests were adequately represented and a GAL was not required in this case.  As for the other claims, the court found there was no reversible error and that the evidence supported the grant of father’s petition and denial of their petition.  Notably, the court “decline[d] to hold that biology is more important than a child’s relationship which a man who has been, as the trial court so aptly put it ‘[the child’s] father in terms that matter most.’”
Cite: No. 09A02-0211-CV-918, 793 N.E.2d 1054 (Ind. Ct. App. July 22, 2003)
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OTHER CASES OF INTEREST

Termination of Parental Rights: Appeals of Orders of Termination

In re J.F. and T.F.
The Missouri Court of Appeals affirmed an order terminating an incarcerated father’s parental rights, holding under the applicable statute it was the father’s responsibility to file for a writ of habeas corpus to insure his ability to attend the hearing and the court was under no obligation to file such a writ sua sponte.
Cite:  2003 Mo App LEXIS 1424 (Mo. Ct. App. Sept. 9, 2003)
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Representation of Parties: Guardian ad Litem

In re Antone C.
The Nebraska Court of Appeals modified the trial court’s denial of reasonable guardian ad litem (GAL) fees with respect to investigation and home visits.  However, the court affirmed the denial of 11 of the 14 hours spent on the GAL report, concluding that the time spent was unreasonable and unnecessary since much of the report was duplicative of the State agency’s report.
Cite:  No. A-02-849, 2003 Neb. App. LEXIS 244 (Neb. Ct. App. Sept. 9, 2003)
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Claims Against Foster Parents

Lehmann v. Dept. of Children and Family Serv.
The Appellate Court of Illinois, First District, Second Division reversed the circuit court’s order which reversed the State agency’s refusal to expunge child abuse allegations against foster parents.  The appellate court concluded that administrative appeals in the expungement process did not deprive the foster parents of their due process rights and, further, that when there is evidence sufficient to support a finding of child abuse, the allegations should not be expunged.  Accordingly, the court reinstated the State agency’s findings that the abuse allegations should not be expunged.
Cite:  No. 1-02-0472, 2003 Ill App. LEXIS 1122 (Ill. Ct. App. Sept. 9, 2003)
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Rights of Grandparents and Other Relatives

In re Hilliard
The Ohio Court of Appeals affirmed a lower court’s dismissal of a paternal grandmother’s motion to intervene in a stepparent adoption proceeding even though she had been granted visitation rights through the domestic court.  The appellate court concluded that the paternal grandmother was not entitled to intervene and that the lower court lacked jurisdiction to grant post adoption visitation rights. 
Cite: No. 8-03-13, 2003 Ohio App LEXIS 3968 (Ohio Ct. App. Aug. 25, 2003)
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In re Baby G.
In an unreported memorandum opinion, a Superior Court of Connecticut denied a mother’s petition to terminate a father’s parental rights to their son.  Previously, the mother had filed a petition for adoption in the Probate Court, attempting to effect the adoption of her son by her husband (the child’s stepfather).  When the biological father learned of the order granting the adoption, he filed a motion to reopen the order and requested paternity tests.  The Probate Court then vacated the adoption order and transferred the matter to the Superior Court.  Even though grounds existed to terminate the father’s parental rights, the Superior Court chose to make specific findings directed to the best interest of the child.  The Court found that although the father had no on-going parental relationship with the child, he was entitled to an opportunity to develop a relationship due to his efforts to build a relationship with child since the time he discovered the plans for adoption.  Furthermore, the Superior Court found that allowing the child to believe the stepfather was the child’s biological father would not serve the child’s best interests.
Cite: 2003 Conn. Super. Lexis 2280 (Aug. 21, 2003) (opinion subject to further appellate review)
Web Link: We were unable to locate this opinion on the Web.
 

September 30, 2003

SIGNIFICANT CASES

Termination of Parental Rights - Process

Nicholson v. Scoppetta
The United States Court of Appeals for the Second Circuit reviewed the district court’s ruling holding that allowing a state to remove a child from his or her parents because the parent exposed the child to incidents of domestic violence violates procedural and substantive due process rights.  Rather than deciding the case, the appellate court instead certified questions to the New York Court of Appeals because it was unclear whether New York law authorizes removal only where the child views the violence, or whether the law requires specific evidence of harm to the child that would occur if the state fails to remove the child.  The court hesitated to consider New York’s process for investigating child abuse because federal courts have less familiarity and expertise in this area.
Cite:  No. 02-7079, 2003 U.S. App. LEXIS 19076 (2nd Cir. Sept. 16, 2003)
Web link:  http://caselaw.lp.findlaw.com/data2/circs/2nd/027079p.pdf
 

Termination of Parental Rights – Appeals of Orders of Termination

Martin N. v. State
The Supreme Court of Alaska affirmed the lower court’s decision to terminate an incarcerated father’s parental rights, finding there was evidence that supported a substantial risk of future harm, the child was in need of aid due to a risk of mental injury, there was evidence that supported a finding that the father failed to make significant progress to correct his conduct, and the Department of Family and Youth Services made reasonable efforts to provide the father with family support services.
Cite:  No. S-10754, 2003 Alas. LEXIS 96 (Alas. Sept. 12, 2003)
Web link:  http:// www.state.ak.us/courts/ops/sp-5736.pdf 

Contested Adoption

Indian Child Welfare Act (“ICWA”)

In re Adoption of Bernard A
The Alaska Supreme Court affirmed the trial court’s denial of the grandparent’s adoption petition and granting of such a petition to the child’s foster parents.  The court held that placing more weight on the amount of time the child had spent in the care of his foster parents did not amount to a single factor outweighing all others in applying the best interest of the child test.  The court also held that ICWA was satisfied by placement with foster parents, as they were extended family even though more removed than the grandparents.  Also, the provision under ICWA giving the biological parent’s preference greater weight is not applicable here since the mother was “a demonstrably incompetent parent” and showed little interest in her child’s care.
Cite:  No. S-10771, 2003 Alas. LEXIS 97 (Alas. Sept. 12, 2003)
Web link:  http://www.state.ak.us/courts/ops/sp-5735.pdf

OTHER CASES OF INTEREST

Termination of Parental Rights - Process

Dep’t of Children & Families v. T.L.
The Florida Court of Appeals reversed the trial court’s temporary placement order placing the child with her aunt prior to the completion of the aunt’s background check and home study, holding that the trial court may not remove a child from his or her home and place the child with a relative without conducting a home study because the study is necessary to determine the child’s best interests.
Cite: No. 4D03-1624, 2003 Fla. App. LEXIS 13982 (Fla. Ct. App. Sept. 17, 2003)
Web link:  http:// www.4dca.org/Sept2003/09-17-03/4D03-1624.pdf
 

Termination of Parental Rights: Appeals of Orders of Termination

Adoption of Scott
The Massachusetts Court of Appeals affirmed the trial court’s decision denying the birth mother’s motion for abuse of discretion filed after the compl