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In an unpublished opinion, a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