INSIDE THIS ISSUE (click title to jump to the article):
ADOPTION/Indian Child Welfare Act (ICWA)
IOWA: In re N.N.E.
TERMINATION OF PARENTAL RIGHTS/Notice
NORTH CAROLINA: In re B.C.
PERMANENT CUSTODY/Adoption Plan
OHIO: In re R.G.
ADOPTION/Rights of Biological Relatives
TEXAS: In re S.L.M.
FEATURED CASE
ADOPTION/Indian Child Welfare Act (ICWA)
IOWA: In re N.N.E.
The Supreme Court of Iowa held that the Iowa Indian Child Welfare Act (ICWA) is unconstitutional as applied to voluntary termination cases because the act placed the right of the tribe to place the child with an Indian family over the rights of the parent to choose the adoptive parents. The federal ICWA allows for deviation from the enumerated placement preferences, i.e. placing an Indian child with a non-Indian family, if good cause is shown; good cause has been found to exist where the parent wishes to place his or her child with a non-Indian family. The court found that because the Iowa ICWA did not give parents the right to deviate from the placement preferences it violated the parent’s substantive due process right to the care, custody and control of his or her child. The court remanded the case to the juvenile court to make findings regarding whether good cause existed in this case permitting the mother to depart from the ICWA placement preferences. In addition, the court held that the tribe was entitled to notice of the proceedings once the petition to terminate the mother’s rights was filed and the tribe need not have legal representation in ICWA proceedings, but may be represented by a person who is authorized to speak on behalf of the tribe.
Cite: No. 20/07-0123; 2008 Iowa. Sup. Lexis 85 (Iowa Sup. Ct. June 13, 2008)
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OTHER CASES OF INTEREST
TERMINATION OF PARENTAL RIGHTS/Notice
NORTH CAROLINA: In re B.C.
The North Carolina Court of Appeals reversed the order of the trial court terminating a father’s parental rights, finding the mother’s petition to terminate his rights failed to allege sufficient facts to warrant a determination that grounds existed to terminate his parental rights. The petition claimed the child was the product of statutory rape and that the father willfully abandoned B.C. by failing to perform his obligations of parental care and support for over six consecutive months. In addition, the petition alleged the father had not contacted or supported the child for a six month period. On appeal, the father argued the trial court lacked subject matter jurisdiction to terminate his parental rights on the ground that he failed to establish paternity. The Court agreed, stating a petition to terminate parental rights is not required to be exhaustive or extensive, but “must put a party on notice as to what acts, omissions, or conditions are at issue.” Here, the Court found that the mother’s petition was not sufficient to put the father on notice that paternity would be at issue during the hearing, and therefore reversed the trial court’s order terminating the father’s parental rights on that ground. The father also asserted, and the Court agreed, that the trial court erred by finding grounds existed to terminate his parental rights based on failure to support the child because not all of the statutory criteria had been met.
Cite: No. COA07-1487; 2008 N.C. App. LEXIS 1160 (N.C. Ct. App. June 17, 2008)
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PERMANENT CUSTODY/Adoption Plan
OHIO: In re R.G.
The Ohio Court of Appeals, Second Appellate District, Montgomery County, reversed an order of the juvenile court awarding permanent custody of the minor child, R.G., to Montgomery County Children’s Services, holding that the agency failed to submit the required adoption plan pursuant to R.C. § 2151.413(E) and the juvenile court’s finding that this was in the child's best interest was based, in part, upon the incorrect finding of adoptability. The court found that permanent custody should not have been granted because the county failed to include a plan for adoption in the case plan and there was no credible evidence that R.G. was adoptable, as the only evidence presented was testimony that the agency believes all children are adoptable. Although the court has held that failing to file an adoption plan is not automatically fatal to the motion for permanent custody, the county must present sufficient evidence of the adoptability of the child. The court also concluded that the lower court’s ruling that permanent custody was in R.G.’s best interest was not supported by clear and convincing evidence because it was based on the earlier finding that R.G. was adoptable.
Cite: No. 22482; 2008 Ohio App. LEXIS 2411 (Ohio Ct. App. June 13, 2008)
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ADOPTION/Rights of Biological Relatives
TEXAS: In re S.L.M.
The Court of Appeals of Texas, Fourth District, San Antonio, affirmed the trial court’s decree that Gary and Cindy B., the adoptive parents of S.B., S.L.M.’s half-sibling, lacked standing to intervene in the adoption of S.L.M. or be appointed as S.L.M.’s sole managing conservators, and that S.B. lacked standing to seek visitation with S.L.M. The court held that Gary and Cindy B. could not intervene in the adoption proceeding because they had not had substantial past contact with S.L.M, as is required under Texas Family Code § 102.004(b), and they did not have a justiciable interest sufficient to override this requirement. Additionally, the court held that S.B. did not have standing to seek visitation with S.L.M. because under Texas Family Code § 102.0045 only a sibling over the age of 18 may petition for visitation. The court went on to explain that even if the statute provided standing to S.B. to petition for visitation, such visitation was not in S.L.M.’s best interest given the animosity between Gary and Cindy B. and S.L.M’s adoptive parents.
Cite: No. 04-07-00566-CV; 2008 Tex. App. LEXIS 4488 (Tex. Ct. App. June 18, 2008)
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The preceding are summaries of adoption/child welfare law cases prepared by The National Center for Adoption Law & Policy. These summaries are provided for your convenience and information only and are not intended to be complete statements of the law embodied in the cases, interpretations of the law, or expressions of opinion as to the status of the law. Some of the cases summarized may not be deemed "final" or "published" under the law of the jurisdiction in which the case was decided; such cases may therefore have limited precedential value. For specific guidance on an adoption law issue, or for an interpretation of or an opinion about the law, we suggest that you consult a legal professional who is familiar with the laws of your jurisdiction.
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