TERMINATION OF PARENTAL RIGHTS

TENNESSEE: State v. Temple (In re B.T.)
The Court of Appeals of Tennessee, at Jackson, reversed the juvenile court’s judgment which terminated appellant father’s parental rights, finding the Department of Children’s Services (DCS) failed to make reasonable efforts to reunite father with his children. Although the appellate court found that father failed to comply with his permanency plans or remedy the persistent conditions that led to the children’s removal, the court noted that under Tennessee law, DCS is required to make reasonable efforts to “provide services related to meeting the needs of the child and the family.” Here, the court found that the critical issues preventing father’s reunification with his children related to housing and employment, but DCS provided father with services that were primarily focused on counseling and parenting skills, not housing or employment. Because DCS failed to provide services related to the critical issues impeding reunification, it failed to meet the statutory requirements regarding reasonable efforts. Further, the court found that DCS failed to assist father in establishing himself as the legal father of three of the five children at issue and, therefore, father’s rights could not be terminated under the “non-legal parent” termination statute. The court of appeals reversed the juvenile court judgment, dismissed the petition for termination of father’s rights and remanded the case for further proceedings.
Cite: No. W2008-02803-COA-R3-PT; 2009 Tenn. App. LEXIS 753 (Tenn. Ct. App. Nov. 5, 2009)
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TERMINATION OF PARENTAL RIGHTS

LOUISIANA: State ex rel. A.L.D.
The Third Circuit Court of Appeal of Louisiana reversed a district court ruling terminating appellant mother’s parental rights, finding that the state had not met the “heavy burden of presenting clear and convincing proof.” The state’s declared ground for termination was abandonment by way of failing to provide significant contributions to the child’s care and support for six consecutive months and failure to substantially comply with a case plan. In regards to the first ground, the court noted that there was no order for support and ruled that while a parent cannot avoid supporting a child simply because she was not ordered to do so, “it would be fundamentally unfair to allow the state to have it both ways—on one hand agree that [the mother] had no support obligation…and on the other hand to use Support Enforcement’s failure to assess an amount of support as a basis for termination of parental rights.” In regards to the second ground, the court noted that although the mother was still far from being able to reunite with her child, she had participated in all the services that were offered and made significant improvements in addressing the problems preventing reunification and, therefore, the state could not prove by clear and convincing evidence that mother’s rights should be terminated based on her failure to comply with the case plan.
Cite: No. 09-0820-JAC, 2009 La. App. LEXIS 1885 (La. Ct. App. 3 Cir. 11/04/09)
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TERMINATION OF PARENTAL RIGHTS

OHIO: In re. A.A.
The Court of Appeals of Ohio, Ninth Appellate District, Summit County, reversed and remanded the Summit County Court of Common Pleas, Juvenile Division’s judgment terminating the parental rights of appellant mother and placing her minor child in permanent custody of the Summit County Children Services Board (CSB), holding that CSB did not prove by clear and convincing evidence that permanent custody by the agency was in the best interest of the child. In concluding that CSB did not meet its burden of showing by clear and convincing evidence that permanent custody was in the child’s best interest, the court evaluated the best interest factors laid out in O.R.C. 2151.414, finding that the child had appropriate relationships with appellant and her family, and had a clear bond with appellant; the child’s wishes, as expressed through the guardian ad litem’s reports, were inconsistent with the guardian’s testimony; and appellant had substantially complied with her case plan requirements despite a slight delay in completion of the case plan due to CSB revisions occurring both before and after the motion for permanent custody.
Cite: No. 24817, 2009 Ohio 5884; 2009 Ohio App. LEXIS 4954 (Ohio Ct. App. Nov. 6, 2009)
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CHILD PROTECTION

NEVADA: Garcia v. Clark County
The United States District Court for the District of Nevada granted defendant county’s motion for summary judgment as to all defendants on plaintiffs’ § 1983 claim that defendants violated their right to a familial relationship with their granddaughter and daughter, who died while in foster care, and plaintiffs’ claim that defendants were negligent when they failed to properly monitor the child, holding that plaintiff’s failed to allege sufficient facts which would give rise to a claim under either theory. To establish a claim under 42 U.S.C. § 1983, a plaintiff must prove that someone acting pursuant to state law has violated the plaintiff’s constitutional rights. The court found that while the defendants owed the child a duty to protect her from harm because of the special relationship created by placing her in foster care, the plaintiffs, mother and maternal grand-mother of the deceased child, failed to offer any evidence that the county or Department of Family Services (DFS) had “engaged in deliberate indifference” in removing the child from her mother’s care and placing her in foster care. The court held that the plaintiffs had not put forth any disputed evidence that the defendants had acted unreasonably in the child’s placement and supervision and that defendants were entitled to summary judgment on that claim. Regarding the negligence claim, the court found that the plaintiffs had not put forth sufficient evidence to raise any genuine issue of material fact to support that the defendant county and foster parents had breached their duty to care for the child where there was clear evidence that the foster parents had taken appropriate steps to ensure that the child received the care she needed.
Cite: No. 2:07-CV-01507-RCJ-PAL; 2009 U.S. Dist. LEXIS 104940 (D. Nev. Nov. 10, 2009)
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TERMINATION OF PARENTAL RIGHTS

WISCONSIN: In re Deante R.
In an unpublished opinion, the Court of Appeals of Wisconsin, District Two, affirmed an order of the Circuit Court for Walworth County dismissing Walworth County Department of Health and Human Services’ (DHS) petitions to terminate the parental rights of Jeanna R. and Houston R., holding that the petitions were properly dismissed based on credible evidence that plaintiffs were insufficiently warned of the potential terminations and that the petitions were properly granted prior to the close of DHS’ case in chief. Here, the only order containing the required warning was provided to the parents over two years prior to the filing of the petition to terminate their parental rights, despite the fact that the order had been amended several times. Therefore, the court held that DHS failed to provide adequate notice of the warnings and, thus, the lower court properly dismissed the petitions for failure to warn the parents of the possibility of a filing of a termination petition. In relation to the timing of the petitions, the court noted that while Wisconsin law permits a defendant to move to dismiss on grounds of insufficient evidence at the close of petitioner’s evidence, such a motion is not prohibited at an earlier point in the proceedings. The court also found that making a ruling to dismiss a case is within a circuit court’s inherent authority to make certain rulings in the orderly administration of justice. Finally, the court noted that it would be absurd to rule that a motion to dismiss could not be based on testimony that demonstrates what could be an incurable deficiency of proof.
Cite: No. 2009AP1952; 2009 Wisc. App. LEXIS 870 (Wis. Ct. App. November 11, 2009)
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