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November 19, 2009
ADOPTION/Stepparent Adoption
The
Supreme Court of Rhode Island affirmed the family court’s dismissal of
appellants’ stepparent adoption petition, holding that the family court lacked
jurisdiction because the appellants were not residents of the state of Rhode
Island. Under G.L. section 15-7-4, the family court has jurisdiction over all
adoptions by residents of Rhode Island, and by non-residents if the child is in
the care and custody of a child placing agency within the state. The supreme
court held that although the family court had issued a custody and support order
relating to the child four years previously when the mother and child lived in
the state, the court’s continuing jurisdiction over the custody order does not
confer jurisdiction over an adoption petition.
Cite: No. 2007-294-Appeal;
2009 R.I. LEXIS 123 (R.I. Nov. 6, 2009)
TERMINATION OF PARENTAL RIGHTS
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)
TERMINATION OF PARENTAL RIGHTS
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)
TERMINATION OF PARENTAL RIGHTS
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)
CHILD PROTECTION
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)
TERMINATION OF PARENTAL RIGHTS
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)
November 12, 2009
CHILD PROTECTION/Adjudication
The
Supreme Judicial Court of Massachusetts reversed the juvenile court’s order
that awarded temporary custody of appellant-infant Zita to the Department of
Children and Families (department) following a seventy-two hour hearing, finding
that the juvenile court erred when it relied on “improperly considered
facts.” The court found that the juvenile court based its decision to place
Zita in the temporary care of the department based on an unsworn petition that
was not properly admitted into evidence and on information the judge obtained
from involvement in the mother’s previous care and protection proceeding
regarding her two older children. In reversing, the court noted that in a care
and protection proceeding, “a judge may not rely on facts that are not
properly admitted in evidence.” Here, the court found, the trial judge
improperly relied on the department’s unsworn petition which was never
introduced into evidence and did not conform to the statutory requirements
regarding admitting reports into the record. The appeals court also stated,
“While a judge may take judicial notice of the fact that he sat on a related
case and also may take judicial notice of the docket entries in the prior case,
he may not judicially notice ‘facts or evidence brought out at the prior
hearing.’” The court found that the trial judge improperly relied heavily
upon facts obtained during the mother’s prior case that were not offered by
the department at the seventy-two hour hearing. After reviewing the juvenile
court’s order without the improperly considered evidence, the court found that
the department did not meet the burden of showing that appellant-infant was in
“immediate danger of serious abuse or neglect,” and, therefore, reversed the
order and remanded the case for further proceedings.
Cite: No. SJC-10433, 2009
Mass. LEXIS 678 (Mass. Nov. 4th, 2009)
TERMINATION OF PARENTAL RIGHTS/Child Support
In a
consolidated opinion, the Supreme Court of Appeals of West Virginia reversed
the Harrison County Circuit Court’s judgment denying appellant mother’s
request for child support from her child’s father whose parental rights had
been voluntarily terminated and, in the second reviewed case, affirmed the
Harrison County Circuit Court’s judgment requiring the child’s father to
pay child support after his rights had been terminated. The court held that a
2006 amendment to W.Va. Code, § 49-6-5(a)(6) did not change the
requirement that a parent whose rights had been terminated in an abuse or and
neglect proceeding must continue to pay child support for that child unless
the court finds that continued payment is not in the child’s best interest.
The court noted that the best interest of the child was the pole star by which
all proceedings involving children must be decided and allowing a parent who
voluntarily relinquishes his or her parental rights to avoid paying child
support would not be in the child’s best interest. In addition, the court
held that if the circuit court, in a rare instance, finds that requiring child
support would not be in the child’s best interest, it may deviate from the
Guidelines for Child Support found in the West Virginia statues, but it must
make a clear finding on record explaining its reasoning behind the decision.
Finally, the court held that the circuit court, not the family court,
maintains jurisdiction over the child support order even after the abuse and
neglect proceeding has concluded.
Cite: No. 34598, No. 34704; 2009 W. Va. LEXIS 96
(W.Va., October 29, 2009)
TERMINATION OF PARENTAL RIGHTS
The
United States Court of Appeals for the First Circuit affirmed the United
States District Court for the District of Maine’s order dismissing
plaintiff-biologica
Cite: No. 09-1174; 2009 U.S. App. LEXIS 24161 (1st
Cir. Nov. 4, 2009)
ADOPTION/Appeal
The
North Carolina Court of Appeals affirmed the trial court’s dismissal of the
motion for relief from an adoption order filed by appellants, the child’s
biological mother and paternal aunt and uncle, finding that appellants failed
to follow proper statutory procedure for challenging a final order of
adoption. The court noted that the legal procedure to challenge a final
adoption order is a civil proceeding under Chapter 48 of the North Carolina
General Statutes. Here, appellants filed their motion under the criminal
appeals statutes and, therefore, the court found that it was appropriate for
the district court to dismiss the motion for lack of subject matter
jurisdiction. Additionally, the court noted that although, based upon the
facts of the mother’s relinquishment, it appeared mother could have moved to
void the adoption based upon duress under Chapter 48, she failed to do so
properly and therefore the motion was properly dismissed.
Cite: No. COA09-592; 2009 N.C. App. LEXIS 1728 (N.C.
Ct. App. Nov. 3, 2009)
TERMINATION OF PARENTAL RIGHTS
The
Alabama Court of Civil Appeals reversed a juvenile court ruling terminating
the parental rights of appellant father, holding that the Department of Human
Resources failed to present clear and convincing evidence that the father was
unable or unwilling to care for the child. The juvenile court terminated the
parental rights of appellant, who primarily spoke Spanish, based upon the
communication barrier with his child, who primarily spoke English. The court
concluded that “the mere lack of the ability to communicate because of a
language barrier is not insurmountable, and in this case, it is insufficient
to serve as a basis for the termination of the father’s parental rights.”
Additionally, the court noted that the father was taking classes to learn
English, which he intended to continue, and at trial the father testified
partly in English. Also persuasive was the fact that the father and his wife
were found to be suitable to adopt an infant from a relative a year earlier.
Cite: No. 2080816, 2009 Ala. Civ. App. LEXIS 538
(Ala. Civ. App. Oct. 30, 2009)
TERMINATION OF PARENTAL RIGHTS
The
Missouri Court of Appeals, Eastern District, Division Four, reversed and
remanded an order of the trial court terminating the parental rights of
appellant mother, holding that the trial court erred in holding the
termination proceeding without appellant mother or her court-appointed
attorney present. In termination proceedings, RSMo section 211.462.2 requires
the parent be notified of the right to an attorney and that the court will
appoint one if they are indigent. The appeals court held that the trial court
erred in holding the termination hearing without appellant mother or her
attorney present where mother had actively participated in the proceedings
prior to the termination hearing, requested appointed counsel, and had not
specifically waived her right to an attorney.
Cite: No. ED92423; 2009 Mo. App. LEXIS 1528 (Mo. Ct.
App. Oct. 27, 2009)
TERMINATION OF PARENTAL RIGHTS/Stepparent Adoption
The
Court of Appeals of the State of Washington, Division One, affirmed an order
of the trial court terminating the parental rights of appellant father and
granting the stepfather’s adoption petition, holding that the trial court
was not required to find that the children were at risk of harm in order to
find the father unfit. Unlike a dependency proceeding, RCW 26.33.120 only
requires a finding that the parent is unfit by clear and convincing evidence
and that termination is in the best interests of the child. While
incarceration alone is not grounds for termination, the appeals court found
that appellant father’s constitutional rights were not violated because he
had not seen the children in ten years, had not paid support, and was unable
to fulfill his parental responsibilities because he was incarcerated for
molestation and was not permitted contact with children as a condition of his
sentence.
Cite: No. 63873-4-I, 2009 Wash. App. LEXIS 2689
(Wash. Ct. App. Nov. 2, 2009)
November 10, 2009
ADOPTION/Rights of Biological Fathers
The
Supreme Court of Utah affirmed the district court’s order denying
appellant-father’s motion to dismiss in the pending adoption of his alleged
daughter, ruling that because appellant failed to comply with both New Mexico
and Utah law regarding establishment of parental rights, his consent to the
adoption was not necessary, the issue of whether he was denied due process was
moot, and he did not have standing to intervene in the adoption proceeding. The
court noted that, in Utah, parental rights may be established by an unmarried
biological father if the father can meet certain requirements, including proving
that he “complied with the statutory requirements in the state where the child
was conceived or where the father should have known the mother resided.” Here,
appellant was required to meet New Mexico’s statutory requirements as it was
the state in which the child was conceived. The court concluded that because the
adoption proceeding was already pending when he filed his paternity action,
appellant failed to establish his parental rights under Helen G. v. Mark J.H.,
175 P.3d 914 (N.M. 2008), in which the New Mexico Supreme Court held that in
order to timely file a paternity action, the alleged father must do so before
the initiation of adoption proceedings. The court held that since appellant
failed to meet New Mexico’s statutory requirements, his consent was not
necessary for the adoption and the district court did not err by denying
appellant’s motion to dismiss the adoption and that his failure to establish
his parental rights deprived him of any due process rights in regard to the
adoption proceeding and the right to intervene in the proceedings.
Cite: No. 20080554; 2009 UT
70; 2009 Utah LEXIS 195 (Utah October 27, 2009)
TERMINATION OF PARENTAL RIGHTS/Voluntary Relinquishment
The
Court of Appeals of Michigan affirmed the Wayne Circuit Court’s order
terminating respondent Gresham’s parental rights, holding that Gresham’s
voluntary release of her parental rights was executed properly under the
Adoption Code, and that the court’s acceptance of the relinquishment was in
the best interest of the children. In relation to Gresham’s claim that she
was not competent to execute releases of her parental rights, the court, while
noting she had not properly preserved the right to challenge the validity of
the voluntary release, decided to consider that claim in the interest of
justice. In support of this argument, Gresham argued that her release was not
voluntary under the Americans with Disabilities Act due to her history of
mental illness and diagnosis of schizophrenic bipolar disorder. The court
found this argument to be misguided because the case did not involve a request
to access services to accommodate a disability. The court further noted that,
under MCL 710.29(6), a parent’s relinquishment of parental rights may not be
executed until after a proper investigation and a judge or referee has fully
informed the parent of their legal rights and the consequences of such action.
Here, because the lower court was able to observe Gresham during numerous
child protection proceedings and directly informed her of the consequences of
relinquishing her parental rights, the appeals court concluded that trial
court did not abuse its discretion in accepting the releases. Also, the court
held that Gresham could succeed on her ineffective assistance of counsel claim
because there is no right to appointed counsel in voluntary adoption matters.
Cite: No. 290697; 2009 Mich. App. LEXIS 2207(Mich.
Ct. App. October 20, 2009)
ADOPTION/Consent/Indian Child Welfare Act
The
Oklahoma Court of Civil Appeals, Division One, affirmed the trial court’s
order granting a final decree of adoption of an Indian child by a non-Indian
family over the objection of the Cherokee Nation, based on the biological
parents’ unified decision to place their child with the adoptive family. The
Cherokee Nation argued that good cause did not exist to ignore the Indian
Child Welfare Act (ICWA) and the Oklahoma Indian Child Welfare Act’s
placement preferences, which direct that a child of Indian blood must be
placed either with relatives, members of the tribe, or another Indian family,
unless good cause exists for another placement. The appellate court found that
the trial court did not abuse its discretion in finding good cause existed
because the biological parents made a unified decision to place the child with
a non-Indian family, the child had been in the home since birth, and it was in
the child’s best interests to remain with the adoptive family. The appellate
court also noted that the trial court complied with ICWA and went to great
lengths to allow the Cherokee Nation to present evidence to support its
position and express any objections to the court’s ruling.
Cite: No. 106242; 2009 OK CIV APP 80; 2009 Okla. Civ.
App. LEXIS 52 (Okla. Ct. App. Decided – Sept. 11, 2009, Mandate Issued -
October 8, 2009)
ADOPTION/Stepparent Adoption
The
Court of Appeals of Ohio, Second Appellate District, affirmed the probate
court judgment denying a stepfather’s petition for adoption, holding that
the incarcerated biological father had justifiable cause for not supporting
his child and that he had attempted to communicate with the child within the
previous year. The court held that a parent’s incarceration does not
automatically dispense with the need for that parent’s consent to an
adoption. The stepfather argued that the biological father could not use
incarceration as an excuse for not paying child support because the biological
father had income but did not choose to use it to support the child. The court
found these arguments non-persuasive, noting that the income of $25 per month
was so minimal as to justify the father’s failure to pay child support.
Additionally, the court found the biological father had not failed to
communicate, as he had regularly sent letters and had petitioned an Indiana
court to compel the mother to bring the child to the prison for visits.
Cite: No.23511; 2009 Ohio App. LEXIS 4725 (Ohio Ct.
App., Oct. 23, 2009)
CHILD PROTECTION
The
Court of Appeal of California, Fifth Appellate District, affirmed an order of
the juvenile court removing the child from appellant mother and placing the
child in the care of the father, holding that the juvenile court was not
required to find that if the Indian child remained with appellant mother the
child would likely suffer “serious emotional or physical damage.” In
proceedings affecting Indian children, California Welfare and Institutions
Code section 361, subdivision (c) requires that the court hear expert
testimony supporting a finding that “continued custody of the child by the
parent or Indian custodian is likely to result in serious emotional or
physical damage to the child” before the child can be removed from the home.
The appeals court found that the juvenile court was not required to make such
a finding where the child was being placed in the care of the non-custodial
parent because the legislature did not include such situations in its
definition of “Indian child custody proceeding” and, therefore, the
finding of the juvenile should be affirmed.
Cite: No. FO56765; 2009 Cal. App. Lexis 1711 (Cal.
Ct. App. Oct. 26, 2009)
October 30, 2009
ADOPTION/Wrongful or Fraudulent Adoption
The Court
of Appeals of Mississippi affirmed the judgment of the Jefferson County Chancery
Court denying appellant Illinois Central Railroad Company’s (ICRC) motion to
intervene in an adoption case filed by a former employee, concluding that ICRC
lacked standing and that its motion to intervene was barred by the applicable
statute of limitations. ICRC filed its motion to intervene one year after a
former employee (Foster) adopted his grandchildren, alleging that the adoption
was fraudulent and filed only to allow Foster’s grandchildren to stand as
legal heirs to his retirement benefits and any settlement from an asbestos
lawsuit filed against ICRC. ICRC further contended Foster’s statement in his
adoption petition that he was “fit, suitable, and a proper person to adopt
said children” was false, as Foster was in fact battling terminal lung cancer
and died thirty-seven days after the adoption was finalized. The appeals court
held that ICRC lacked standing to intervene as its interest in the case was
purely economic. In addition, the court rejected ICRC’s argument that it did
not discover that the adoption was fraudulent until after depositions and
investigation in the case, ruling that its motion to intervene was untimely
under Mississippi law, which requires that an adoption be challenged within six
months after the order of adoption is issued The dissent argued that nothing in
the record demonstrated that the trial court was aware of Foster’s illness
and, thus, the court did not have all of the relevant information to make a
decision as to whether the adoption was in the best interest of the children.
The dissent further noted that prior Mississippi Supreme Court rulings have
given courts the authority to supersede a statute of limitations and vacate a
prior judgment that is void because it was obtained through fraud. The dissent
noted, “This case sets a dangerous economic precedent for the proper use of
adoptions.”
Cite: No.
2008-CA-00764-COA; 2009 Miss. App. LEXIS 714 (Miss. Ct. App. Oct. 20, 2009)
TERMINATION OF PARENTAL RIGHTS/ICWA
The
Supreme Court of Montana affirmed the district court’s order terminating
appellant mother’s parental rights, finding that the district court did not
err when it accepted appellant’s stipulation that her child was a “youth
in need of care” before it definitively established the child’s Indian
status, and that the district court did not abuse its discretion in
terminating appellant’s rights. Appellant argued that the district court
violated ICWA when it accepted her stipulation that her child was a “youth
in need of care” without first explaining the consequences, as required
under 25 U.S.C. §1913, and, therefore, the court’s adjudication of the
child as a youth in need of care was invalid. The supreme court disagreed,
finding that §1913 does not apply to involuntary termination proceedings
initiated by the Department of Health and Human Services but is only
applicable to voluntarily initiated termination or foster care proceedings.
Appellant also argued that the district court erred in relying on her
stipulation when it adjudicated the child as a “youth in need of care” and
terminated her parental rights before establishing the child’s Indian
status. Again, the supreme court disagreed, noting that even though the
child’s Indian status was not definitive during the proceedings, the court
did not err because the department involved the tribe and complied with ICWA
requirements throughout the proceedings.
Cite: No. DA 09-0178, 2009 MT 332; 353 Mont. 64;
2009 Mont. LEXIS 487 (Mont. Oct. 13, 2009)
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CHILD PROTECTION/Right of Intervention
The
Court of Appeals of Texas, First District, Houston, denied petitioner-great
uncle’s petition for writ of mandamus vacating the trial court’s order
denying his petition to intervene in a suit affecting the parent-child
relationship (SAPCR) between his niece and her children, finding that the
trial court did not abuse its discretion in striking the petition because it
was untimely. The court of appeals noted, “Delay in the prompt and permanent
placement of a child caused by the late filing of an intervention has been
held sufficient cause for a trial court to strike an intervention in a SAPCR.”
Here, the court found that the petition was untimely as petitioner waited
until the day before trial to seek writ of mandamus, and, if the SAPCR trial
did not go forward by the October 31st, 2009 deadline, the trial court would
be required to dismiss the case and return the children to their biological
parents. In addition, the court noted that the biological parents had the
opportunity to list the great uncle as a potential caregiver earlier in the
case.
Cite: NO. 01-09-00814-CV, NO. 01-09-00815-CV (Tex.
Ct App. Oct. 15, 2009)
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TERMINATION OF PARENTAL RIGHTS
The
Court of Appeals of North Carolina reversed the trial court’s order
terminating appellant mother’s parental rights to her child, who was being
raised by appellant’s aunt, holding that the trial court failed to make any
specific findings of neglect and abandonment supporting the termination order.
Appellant mother conceived the child as a result of a non-consensual sexual
encounter while in high school and, with the advice of her parents, asked her
aunt to take custody of the child. The aunt agreed to care for the child and,
except for some clothing provided by the mother, was the child’s sole
provider. Eventually the aunt moved to terminate appellant mother’s parental
rights; the trial court granted the motion, concluding that appellant
neglected and abandoned the child. The appellate court reversed, finding that
the trial court’s conclusion that appellant had neglected the child at the
time of the termination proceeding lacked support, and noting that there were
no past adjudications of neglect. The court also found that the trial court
failed to make specific findings regarding the mother’s abandonment of the
child, noting that while the mother had failed to provide any substantial
support for the child, the aunt had not requested it and that, although the
mother may have intended for the aunt to raise the child, she sought to retain
her rights to visitation, which she did in fact exercise on more than one
occasion. The appellate court reversed the trial court’s order of
termination and remanded the case for additional findings of fact.
Cite: No. COA09-562, 2009 N.C. App. LEXIS 1664 (N.C.
Ct. App. Oct. 20, 2009)
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ADOPTION/Effect of Adoption
The
Court of Appeals of Tennessee, at Jackson, reversed and remanded the chancery
court’s grant of summary judgment in favor of appellees, the adoptive and
step-grandchildren, finding that appellant, as the only biological
granddaughter, was the only “bodily heir” and, therefore, the only
grandchild entitled to take directly from the testator’s will. The court
noted that it must interpret a will “in the light of the law in existence at
the time of the death of the testator….” Here, the will was probated in
1942 and granted an interest to the “bodily heirs” of the testator’s
daughter, Nellie. The appellate court held that according to the law in place
in 1942, because one of appellees is adopted and the two other appellees are
stepchildren, none of the three are “bodily heirs” of Nellie and thus
cannot inherit under the will. In addition, under Tenn. Code Ann. §§ 9568,
9570 (1934), adoptees could only inherit from their parents and not from the
relatives of their parents. The court held that since appellees’ father did
not inherit from Nellie, as he had predeceased Nellie, the father’s interest
was “extinguished” and therefore, the adopted grandchild was precluded
from inheriting from Nellie’s estate through his adoptive father.
Cite: No. W2008-02548-COA-R3-CV; 2009 Tenn. App.
LEXIS 691 (Tenn. Ct. App. October 15, 2009)
October 21, 2009
ADOPTION/Rights of Same-Sex Couples/Custody
The
Supreme Court of Montana affirmed the district court’s order granting a
parental interest to appellee Kulstad in the two minor children adopted by her
former partner, appellant Maniaci. Kulstad and Maniaci had a ten year
relationship, during which, by agreement of both parties, the two children were
adopted by only Maniaci, as Montana law does not allow homosexual couples to
jointly adopt. Upon termination of the relationship, Kulstad filed a petition to
dissolve the party’s common law marriage, receive a parenting interest, and
distribute assets. The lower court ultimately rejected the dissolution portion
of the petition but concluded that Kulstad had established by clear and
convincing evidence that a child-parent relationship existed between her and the
two children and granted her a permanent parental interest in the children. The
supreme court agreed, rejecting Maniaci’s argument that the statute applied by
the lower court infringes on her constitutional right to parent her children by
failing to require that a court find a parent unfit prior to awarding a parental
interest to a nonparent. The court also rejected her argument that her children
do not have constitutionally protected rights outside of a showing of abuse,
neglect, or dependency; noting the 1999 amendments to the non-parental rights
statutes require the courts to balance “the constitutionally protected rights
of both parents and children in determining the best interest of the child.”
Finally, the court agreed that Kulstad acted as co-parent and stood in loco
parentis by demonstrating that she provided for the physical needs of the
children, as well as participated in the day-to-day care; rejecting Maniaci’s
argument that in order to stand in loco parentis, Kulstad had to demonstrate
that Maniaci voluntarily allowed the children to continuously remain exclusively
in Kulstad’s care and that Kulstad “stood in place of” Maniaci. The
concurrence further iterated that the opinion properly answered “whether
homosexuals in an intimate domestic relationship each have the right to parent
the children they mutually agreed that one party will adopt (or, presumably,
conceive).” The dissent argued that this decision weakens constitutional
rights of parents and opens a “pandora’s box of potential attacks upon the
right of fit and capable parents to raise their own children.”
Cite: No. DA 08-0483; 2009
MT 326; 2009 Mont. LEXIS 476 (Mont. October 6, 2009)
TERMINATION OF PARENTAL RIGHTS
The
Supreme Court of Connecticut reversed in part and vacated in part the
appellate court’s reversal of the trial court’s termination of mother’s
parental rights, holding that: (1) the Department of Children and Families
(Department) did not need to prove that it made reasonable efforts to reunify
mother and her child before the court can find that she is “unable or
unwilling to benefit from reunification efforts”; (2) the appellate court
improperly substituted its judgment for that of the trial court in finding
that mother was not able or willing to benefit from the Department’s
reunification services; and (3) the appellate court improperly reversed the
trial court’s decision to exclude from evidence a psychological evaluation
conducted of mother. The supreme court held that pursuant to General Statutes
(Rev. to 2005) § 17a-112(j)(1), the Department must prove either that it has
made reasonable efforts to reunify OR that the parent is “unable or
unwilling to benefit from reunification efforts”; either circumstance alone
is sufficient to satisfy the ground for termination, and the trial court found
that both had been satisfied in this case. Here, the supreme court found that
mother was not able or willing to benefit from reunification services by the
Department because she failed to accept any responsibility for the child’s
injuries, was unwilling to take steps necessary to protect the child from
future violence, and undermined the case plan services by secretly maintaining
a relationship with the child’s abusive father. Next, the supreme court
vacated the appellate court’s finding which substituted its judgment for the
trial court that mother was not able or willing to benefit from the
Department’s reunification services. The supreme court found that this issue
was moot as mother would not have been given any form of practical relief
should the decision have been in her favor because the Department had
successfully proven both grounds under § 17a-112(j)(1). Lastly, the supreme
court held that the appellate court improperly reversed the trial court’s
decision to exclude from evidence the psychological evaluation conducted of
mother, holding it was not an abuse of discretion to exclude the report
because it relied upon confidential information about the father and had not
been provided to the other parties prior to the trial. The supreme court
remanded the case to the appellate court to rule on mother’s claim that the
trial court should not have found that termination of her parental rights was
in the child’s best interest.
Cite: 293 Conn. 539; 2009 Conn. LEXIS 391 (Conn.
October 6, 2009)
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TERMINATION OF PARENTAL RIGHTS
The
Supreme Court of Georgia affirmed the juvenile court judgment which granted
the maternal aunt and uncle’s petition to terminate appellant-father’s
parental rights; the court also denied father’s constitutional challenge to
OCGA § 5-6-35(a)(12) which requires appeals of termination to be by
application rather than as a matter of direct appeal. The court found that
termination was proper under OCGA § 15-11-94, because there was evidence that
the child was deprived, a lack of proper parental care caused the deprivation,
the deprivation was likely to continue and cause serious harm to the child,
and termination would be in the child’s best interest. Here, the father was
incarcerated for child molestation and cruelty to children and the mother’s
whereabouts were unknown. The child was adjudicated “deprived” because she
was left without a legal custodian and the father stipulated to the
allegations in the deprivation petition. The court held that because the
father failed to appeal the deprivation order, the situation was such that
termination was warranted under § 15-11-94. In addition, the court held the
discretionary appeal process was constitutional as it does not implicate due
process or equal protection rights, and serves the legitimate interest of
making sure children achieve permanency in a timely manner.
Cite: S09A0931, 2009 Ga. LEXIS 507 (Ga. Oct. 5,
2009)
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TERMINATION OF PARENTAL RIGHTS
The
Supreme Court of Appeals of West Virginia affirmed the Circuit Court of
Mineral County’s order terminating appellant’s parental rights and denying
appellant’s motion for a post-dispositional improvement period and
post-termination visitation, holding that the circuit court’s findings were
not clearly erroneous. Appellant, the children’s legal guardian, argued that
the court erred by failing to order reunification with the children as
recommended by the department, and instead, ordering appellant’s rights to
be terminated. The supreme court noted the circuit court is granted discretion
to “determine whether the conditions of the improvement period have been
satisfied and whether sufficient improvement has been made in the context of
all the circumstance to justify the return of the child.” Here, the supreme
court found that the circuit court’s order was supported by evidence of
appellant’s lack of progress on her treatment plan and history of failing to
follow through with services, the unsanitary conditions of the home, and
appellant’s failure to appreciate the extent of the abuse suffered by the
children, and therefore, the termination order was proper.
Cite: No. 34599; 2009 W. Va. LEXIS 84 (W. Va.
October 9, 2009)
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ADOPTION/Effect of Decree
The
Court of Appeal of Louisiana, Third Circuit, reversed a judgment of the trial
court which granted joint custody to appellant Rider, the child’s adoptive
mother, and apellees, the child’s biological parents, holding that the
apellees, as non-legal parents, failed to show that remaining in Rider’s
custody would cause substantial harm to the child. La. Civ. Code art.133,
provides that if awarding sole custody of a child to one parent would cause
substantial harm to the child, then the court must award joint custody to the
person with whom the child has lived in a stable and loving environment. The
court noted that a parent has a “paramount” right to custody and a
non-parent asking for custody must show that awarding custody to the parent
would be detrimental to the child. Here, the court stated that the trial
court’s finding that Rider was entitled to joint custody of the child
negated the finding that Rider would cause substantial harm to the child and,
therefore, the appellants, as non-parents, were not entitled to custody of the
child.
Cite: No. 09-5; 2009 La. App. LEXIS 170 (La. Ct.
App. Oct. 7, 2009)
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ADOPTION/Procedure/Standing
The
Court of Appeals of South Carolina affirmed the Greenville County Family
Court’s order finding that appellants, the child’s former foster parents,
lacked standing to petition to adopt the child. Appellants petitioned to adopt
their former foster child four months after the child had been removed from
their home when they found out the child had been placed in a pre-adoptive
home with a single lesbian and not a young married couple, as they had
previously been told. The appellate court stated that petitioners did not have
standing to petition to adopt the child under section 63-9-60 of the South
Carolina Code as section (B) clarifies that “not just ‘any South Carolina
resident’ can petition to adopt a child when the child has been placed by
DSS in another home for the purposes of adoption.” Further, the court found
that appellants did not have standing due solely to the fact that they were
the child’s former foster parents, as any rights that they had to the child
ended when they did not administratively challenge the removal of the child
from their home. Finally, the court noted that the trial court did not err
when it did not address the child’s current foster mother’s sexual
orientation in regards to the child’s best interest as the trial court was
only evaluating the initial question of appellants’ standing to initiate the
proceeding.
Cite: No. 4621; 2009 S.C. App. LEXIS 477 (S.C. Ct.
App. Oct. 2, 2009)
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ADOPTION/Withdrawal of Consent
In a de
novo review, the Court of Appeals of Tennessee, at Nashville, affirmed the
juvenile court’s order that denied appellant biological mother’s petition
to revoke the surrender of her parental rights four months after it had been
approved, finding that the juvenile court did not deny appellant due process
by failing to appoint counsel for her. The appellate court noted that, at the
time of the surrender, appellant was asked by the juvenile court if she
desired to be represented by legal counsel or to consult with legal counsel
and appellant answered in the negative to both questions. Further, the court
noted that appellant made no attempt to revoke the surrender within the
revocation period and made no allegations that the revocation was given
improperly or fraudulently and, therefore, appellant was not entitled to
appointed counsel.
Cite: No. M2008-02401-COA-R3-JV; 2009 Tenn. App.
LEXIS 669 (Tenn.Ct. App. Oct. 6, 2009)
October 8, 2009
CHILD PROTECTION/Foster Care
The Court
of Appeal of Indiana reversed the Hendricks Circuit Court order requiring the
Indiana Department of Child Services (DCS) to pay the costs of the secure
detention of M.W., a foster child in the custody of DCS, and pay child support
for M.W. while she was incarcerated, finding that there was no statutory
authority requiring DCS to make such payments. The court noted that under I.C.
§ 31-40-1-2(c), “the department is not responsible for payment of any costs
of secure detention,” unless the department enters into a written agreement
agreeing to pay the costs. Here, M.W.’s family case manager requested M.W.’s
placement in secure detention after she was arrested and charged with possession
of a stolen vehicle, but never agreed to pay for the costs of incarceration. In
addition, the court noted that the Indiana Supreme Court previously held that
“when a relationship of in loco parentis exists, that status alone is
insufficient basis for imposing a child support obligation…,”;therefore, DCS,
although responsible for M.W., was not required to pay child support on her
behalf while she was incarcerated.
Cite: No.
32A01-0905-JV-259, 2009 Ind. App. LEXIS 2040 (Ind. Ct. App. Sept. 28th, 2009)
TERMINATION OF PARENTAL RIGHTS
The
Court of Appeal of Florida, First District, reversed and remanded two orders
of the trial court, one terminating the parental rights of appellant mother,
and the other declining to terminate the rights of the father but placing the
child in a permanent guardianship, holding there was insufficient evidence of
any ground which would allow for termination of only one parent’s rights.
Florida Statutes section 39.811(6) dictates the only circumstances under which
a court may terminate the rights of one parent while allowing the other parent
to maintain parental rights. The appeals court found there was not enough
evidence to support the trial court’s findings under section 39.811(6) that
only the mother’s rights should be terminated where the parents continued to
live together and the issues that led to the child being placed in protective
custody remained unremedied by either parent. Therefore, the case was remanded
for more specific and complete findings of fact to support such an order.
Cite: Nos. 1D09-1046 and 1D09-1049; 2009 Fla. App.
LEXIS 14424 (Fla. Ct. App. Sept. 29, 2009)
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TERMINATION OF PARENTAL RIGHTS
The
Court of Appeals of Tennessee, at Knoxville, affirmed a juvenile court ruling
terminating the parental rights of appellant mother, finding there was no
abuse of discretion in the juvenile court’s denial of the mother’s motion
to continue the termination hearing in order to remedy her “level of
understanding” of the proceeding. The appellate court noted that trial
courts have “wide discretion in determining whether a motion for continuance
should be granted,” and, once a termination petition has been filed, a court
cannot continue the hearing longer than six months unless it finds that doing
so would be in the child’s best interest. In this case, the court of appeals
found no abuse of discretion with the juvenile court’s decision, as it
considered that the child had been in foster care for over three years, the
child indicated she would like to be adopted, and the mother’s ability to
understand the hearing was unlikely to improve before it elected to proceed
despite the motion to continue.
Cite: No. E2009-00517-COA-R3-PT, 2009 Tenn. App.
LEXIS 649 (Tenn. Ct. App. Sept. 29, 2009)
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ADOPTION/Stepparent
The
Court of Appeals of Georgia, Second Division, reversed the Superior Court of
Carroll County’s order granting appellee stepmother’s petition to adopt
G.M.M., appellant biological mother’s daughter, finding that the there was
insufficient evidence to show that appellant failed to communicate with and
support G.M.M. without justifiable cause or that the conditions leading to
G.M.M.’s deprivation were likely to continue. Under OCGA § 19-8-6(a)-(b), a
court may terminate a parent’s rights if clear and convincing evidence
demonstrates that the parent abandoned the child or failed to support the
child for one year without justifiable cause. A court may also terminate a
parent’s rights under OCGA § 19-8-10 if there is clear and convincing
evidence that the parent has deprived the child and that the circumstances
leading to the deprivation are likely to continue. The superior court granted
the petition after finding that appellant had abandoned her daughter by
failing to communicate and pay child support while she was incarcerated for
drug charges. The appellate court disagreed, finding that there was not clear
and convincing evidence that appellant intended to sever her relationship with
G.M.M. sufficient to support a finding of abandonment, or a finding that she
failed to communicate with the child without justifiable cause or the
circumstances leading to the child’s deprivation were likely to continue.
The appellate court reversed the order terminating appellant’s parental
rights and, therefore, the petition to adopt was reversed by operation of law.
Cite: No. A09A1897, 2009 Ga. App. LEXIS 1133 (Ga.
Ct. App. Sept. 25th, 2009)
September 17, 2009
CHILD PROTECTION/Adjudication
The
Supreme Court of Alaska affirmed the order of the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks, extending custody of Roberta, an
Indian child, to the Office of Children Services (OCS), holding that the
superior court correctly determined Roberta was a child in need of aid (CINA),
but remanded the case for the superior court to address whether “active
efforts” were being made by OCS in compliance with Rule 10.1(b) of Alaska’s
CINA statutes which states that a court must “‘inquire into and determine’
whether OCS has complied with the Indian Child Welfare Act’s placement and
active efforts requirements each time the court addresses a custody
extension.” Here, the supreme court found that the superior court failed to
inquire and make appropriate findings of “active efforts” prior to extending
OCS’s custody order. The court noted these inquiries are required to help the
court determine why reunification has not yet been achieved and to insure timely
permanence; and the importance is evident, especially in cases such as this
where reunification has been delayed for over four years.
Cite: No. S-13377, No. 6410;
2009 Alas. LEXIS 125 (Alaska September 11, 2009)
TERMINATION OF PARENTAL RIGHTS
The
Court of Appeals of Florida, Second District, reversed and remanded the
Circuit Court for Pinellas County’s order granting the motion for summary
judgment of appellee Gift of Life Adoptions (GLA) and terminating appellant
K.D.’s parental rights, finding that GLA failed to provide K.D. with timely
notice of the intended adoption plan. In its order, the circuit court reasoned
that K.D.’s consent to the adoption was not necessary because he had failed
to file a claim of paternity form with the proper office or a response
containing a pledge of commitment to the child as required by Florida Statute
§ 63.062(2). The court of appeals reversed the decision, noting that the
Florida Supreme Court has previously held that “an unmarried biological
father’s parental rights may not be terminated pending adoption unless he
was served with notice of the intended adoption plan and failed to comply as
directed within thirty days.” In this case, GLA served K.D. with notice of
the petition to terminate his rights after it had already been filed and never
served him with notice of the intended adoption plan, which deprived K.D. of
his 30 day window to comply with the statute’s requirements. The court
reversed the case and remanded to the circuit court instructing that K.D.
should be served with proper notice and given an opportunity to comply.
Cite: No. 2D08-6403, 2009 Fla. App. LEXIS 13481(Fla.
Ct. App. Sept. 11, 2009)
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TERMINATION OF PARENTAL RIGHTS
In a de
novo review, the Nebraska Court of Appeals reversed and remanded the County
Court for Hall County’s decision to terminate appellant Sonia M.’s
parental rights to her son Josiah for lack of clear and convincing evidence
sufficient to demonstrate that termination was warranted. The appellate court
noted that a parent’s incarceration, while properly considered in reference
to the parent’s abandonment and neglect of the child, cannot be the sole
basis for termination. In this case, the court found that the state failed to
present any evidence other than appellant’s incarceration to demonstrate
that appellant had abandoned and neglected her child. And although the state
had presented evidence of appellant’s past drug problems and incarceration
at the dispositional hearing, the exhibits were not properly entered into
evidence at trial and, therefore, could not be considered.
Cite: No. A-08/1214, 17 Neb. App. 919; 2009 Neb.
App. LEXIS 155 (Neb. Ct. App. Sept. 8, 2009)
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ADOPTION/Consent
The
Court of Appeals of Indiana affirmed the probate court’s ruling denying
appellant M.L.S.’s petition to adopt and granting the petition to adopt
filed by V.S. and L.S., finding that there is no basis under Indiana statute
or public policy to prohibit biological parents or other parties required to
consent to adoption from executing subsequent consents. The biological parents
of the children and the Marion County Department of Child Services (MCDCS)
executed consents allowing M.L.S. to adopt the children but, after the
consents were executed, evidence came to light that appellant’s teenage
child was accused of child molestation. Subsequently, the children were
removed from appellant’s home and both the parents and MCDCS executed
consents for V.S. and L.S. to adopt the children. M.L.S. argued that the
subsequent consents could not be recognized because the first consents had not
been withdrawn. The court disagreed, concluding that “parties whose consent
is required for an adoption to be granted may execute subsequent consents,”
as allowing competing adoption petitions permits the probate court to
determine which placement is in the child’s best interest. Also, the court
noted that appellant waived the issue of the authority of a successor judge to
make the adoption order as she failed to object on this ground to the probate
court. Finally, the court found there was sufficient evidence to support the
adoption and the analysis of the best interests of the children performed by
the probate court.
Cite: No. 49A02-0901-CV-60; 2009 Ind. App. LEXIS
1482 (Ind. Ct. App. Sept. 8, 2009)
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TERMINATION OF PARENTAL RIGHTS/Appeal
The
Court of Appeals of Texas, First District, Houston, reversed the portion of
the Harris County 314th District Court’s judgment terminating appellant’s
parental rights to C.M. and affirmed the portion of the judgment appointing
the Department of Family and Protective Services (DFPS) as sole managing
conservator of the child, holding that the evidence was legally insufficient
to support the trial court’s finding that appellant engaged in conduct that
endangered the child. The court, however, ruled that appointing a non-parent
as sole managing conservator was a separate and distinct issue as to which
DFPS provided evidence legally and factually sufficient to meet the
preponderance of the evidence standard. In reaching its decision, the court
found that while a reasonable fact finder could have formed a belief that the
appellant engaged in abusive conduct towards another child on one occasion,
thereby endangering the physical or emotional well-being of the child in
question, there was no evidence of abuse in the current case, nor would
appellant’s failure to visit the child in the last three months or her
failure to obtain prenatal care rise to a level that would constitute
endangering conduct. The court concluded that the child was removed due to
risk of harm, rather than actual direct abuse or neglect. In so concluding the
court noted its previous ruling that, in order to terminate a parent’s
rights under TEX. FAM. CODE ANN. § 161.001(1)(O), “the party seeking
termination must prove by clear and convincing evidence that the child subject
of the suit was removed due to abuse or neglect by the parent,” and that
proving risk of harm is insufficient to support termination of appellants
rights. In affirming the appointment of DFPS as sole managing conservator, the
court noted that there is a rebuttable presumption that it is in a child’s
best interest for his parents to be named joint conservators and in order to
rebut this presumption a trial court must find, as it did here, by a
preponderance of the evidence, that the appointment of a parent would cause
great harm to the child’s physical health or emotional development.
Cite: No. 01-08-01004-CV; 2009 Tex. App. LEXIS 7326
(Tex. Ct. App. Sept. 17, 2009)
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ADOPTION/Appeal
The
Court of Appeals of Michigan affirmed the circuit court’s order dismissing
appellants’ petition to adopt a minor child, finding that the circuit court
properly held that appellants failed to prove by clear and convincing evidence
that the superintendent of the Michigan Children's Institute (MCI) acted
arbitrarily and capriciously in withholding his consent to the adoption. A
circuit court's review of the superintendent's decision to deny consent is
restricted to whether the adoption petitioners establish by clear and
convincing evidence that the superintendent, who is also the guardian of
children in state custody, acted arbitrarily and capriciously. Here, the court
noted that appellants had failed to show any clear error in the circuit
court's assessment of the superintendent's decision as there was ample
evidence to support the decision. The superintendant had conducted a thorough
review of the case and personally met with the foster parent and child before
concluding that it would be emotionally harmful to remove him from the foster
parent's home. The court also rejected appellants’ argument that the circuit
court was required to evaluate the child’s best interests under MCL
710.22(g), finding that the circuit court is only required to conduct the best
interest evaluation after it finds the consent was withheld arbitrarily or
capriciously.
Cite: No.290439, 2009 Mich. App. LEXIS 1907 (Mich.
Ct. App. Sept. 15, 2009)
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ADOPTION/Contested Adoption/ICWA
In an
memorandum opinion, the Intermediate Court of Appeals of Hawaii affirmed the
Family Court of the Fifth Circuit’s order granting biological mother’s
motion to dismiss appellants’ adoption petition, finding that the family
court had jurisdiction over the adoption proceeding and did not err in
granting the biological mother’s motion to dismiss. The court noted that
despite the child living in Germany and a German family court’s refusal to
return the child after the biological mother filed a petition under the Hague
Convention on the Civil Aspects of International Child Abduction, the Hawaii
family court had jurisdiction under HRS § 578-1, which provides jurisdiction
to the circuit in which the child was born; here, the child was born in Hawaii
and subsequently taken to Germany by the adoptive parents. The court also
found that the motion to dismiss the adoption petition was proper under the
Indian Child Welfare Act, which states, “The consent of the parent may be
withdrawn for any reason at any time prior to the entry of a final decree of
termination or adoption.” Here, the biological mother, a tribal-registered
Native American, withdrew her consent days after she placed the child and the
adoption was never finalized. Finally, the court found, as the dispositive
issue, that the German family court decision did not deprive the Hawaiian
family court of jurisdiction under the Indian Child Welfare Act.
Cite: No. 29147, 2009 Haw. App. LEXIS 606 (Haw. Ct.
App. Sept. 11, 2009)
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TERMINATION OF PARENTAL RIGHTS/Stepparent Adoption
The
Court of Appeals of Michigan reversed the circuit court’s order terminating
the parental rights of appellant mother, holding that the petitioners failed
to prove both elements required for termination of parental rights under the
adoption statute. M.C.L. 710.51(6) requires a showing that the non-custodial
parent had the ability to pay support for the child and failed to do so, and
also that the non-custodial parent failed to visit the child for at least two
years prior to the adoption petition in order for the court to terminate the
non-custodial parent’s parental rights. The appeals court found that the
even though it was undisputed that appellant mother never paid support for the
child, petitioners failed to provide the court with evidence of the appellant
mother’s ability to pay such support and, therefore, did not meet the
statutory requirements for terminating the parental rights of appellant.
Cite: No. 291231; 2009 Mich. App. LEXIS 1902 (Mich.
Ct. App. Sept. 17, 2009)
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CHILD PROTECTION
The
Court of Appeals of Oregon reversed and remanded the juvenile court’s
dismissal of DHS’s dependency petition for lack of jurisdiction and vacated
the juvenile court’s limited judgment vacating shelter care and requiring
the child to be returned to the mother, holding that DHS had presented
sufficient evidence for the court to assume jurisdiction. O.R.S.
419B.100(1)(c) grants the juvenile court jurisdiction in cases where the
“condition or circumstances are such as to endanger the welfare of the
[child].” The appeals court found that where DHS offered evidence to show
that the child had suffered past physical abuse, it did not matter whether the
abuse was suffered at the hands of the custodial or non-custodial parent for
purposes of jurisdiction; proof of culpability was not required to establish
the need for court protection. The court remanded the case to the juvenile
court to determine whether placement with the mother is appropriate.
Cite: No. A141483; 2009 Ore. App. LEXIS 1380 (Or.
Ct. App. Sept. 16, 2009)
September 17, 2009
TERMINATION OF PARENTAL RIGHTS
The
Supreme Judicial Court of Maine affirmed the judgment of the district court
terminating appellant-mother’s parental rights and placing the child in the
custody of appellant-father’s sister, and vacated and remanded the judgment
terminating father’s parental rights, ruling that there was not clear and
convincing evidence to support the court’s findings. The supreme court held
that in order to terminate parental rights, a court must find that a parent is
“unfit” by clear and convincing evidence and that state involvement is
required in order to protect the child from harm. Additionally, the supreme
court noted that according to case law, incarceration of a parent alone does not
provide sufficient grounds to terminate parental rights; rather, the court
should focus on whether, under the circumstances, the parent is capable of
maintaining a relationship with the child. Here, the record contained evidence
that the father had a history of anti-social behavior and abusing drugs, for
which he was incarcerated at the time of the hearing, but there was no evidence
that the father ever harmed his child or any other child. The supreme court also
highlighted the lower court’s emphasis on the fact that because the mother had
relocated the child to Maine from Texas without informing the father or his
extended family, a parent-child relationship did not exist between the child and
the father. Had the child been in Texas, the father’s extended family would
have facilitated visitations and nurtured a relationship between the child and
his father, while the father was incarcerated. Finally, the supreme court held
that the findings and the record lacked clear and convincing evidence showing
that the father is not fit to parent his child, and furthermore, that since he
is no longer incarcerated there is no evidence showing that a parent-child
relationship between the father and his child cannot be nurtured.
Cite: No. Pen-08-719, 2009
ME 95; 2009 Me. LEXIS 98 (Me. September 1, 2009)
ADOPTION/Rights of Biological Relatives
The
Superior Court of New Jersey, Appellate Division, affirmed the trial court’s
order declining to enforce visitation between D.C. and D.C., four-year old
twin girls, and their older half-siblings, N.J. and H.C., finding that
compelling visitation would not be in the twins’ best interest because they
had been in the custody of their foster mother for the vast majority of their
short lives, but that voluntary visitation, contingent on the agreement of the
foster parents, could be appropriate. Appellant N.J., an adult half-sibling,
sought to enforce the trial court’s previous visitation order, with which
the foster mother had not complied, and which the Division of Youth and Family
Services (DYFS) believed was not in the children’s best interest. The court
noted that under N.J.S.A. 30:4C-20 to -22, because DYFS had legal custody of
the children, it had the responsibility to decide whether the proposed
visitation was in the children’s best interest and appellant had provided no
evidence to rebut DYFS’ determination that visitation was not in the
children’s best interest. Further, the court, while sympathetic to
appellant’s desire to create a sibling unit, determined that the only
relationship that existed between the twins and appellant was biological and
attempting to create a relationship at this time was not in the children’s
best interest. Finally, the court stated that New Jersey’s sibling
visitation statute was not applicable as the New Jersey Supreme Court has
“expressly declined to address the question whether that statute confers
rights that survive a judgment terminating parental rights.”
Cite: No. A-1608-08T4; 2009 N.J. Super. Unpub. LEXIS
2354 (N.J. Super. Ct. September 3, 2009)
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TERMINATION OF PARENTAL RIGHTS/ICWA
In an
unpublished opinion, the Court of Appeals of Minnesota reversed the district
court’s denial of appellant Leech Lake Band of Ojibwe’s motion to transfer
jurisdiction of a termination of parental rights case to the tribal court,
concluding that good cause to deny the motion did not exist. Under the Indian
Child Welfare Act (“ICWA”), in cases where the Indian child does not live
on the reservation, the state and tribe have concurrent jurisdiction, but
there is a presumption in favor of tribal jurisdiction. In this case,
termination proceedings were accelerated and notice was only provided to the
tribe when the child was initially taken into custody by the county. Upon a
reversal of the initial termination of parental rights due to lack of further
notice to appellant tribe, the tribe filed a motion to transfer the proceeding
to tribal court. The district court denied motion stating that transfer was
inappropriate at the late stage in the proceedings as it would cause undue
hardship to the parties and was not in the best interests of the child. The
court of appeals held that trial court erred in concluding that transfer was
inappropriate because “the court is required to transfer a TPR proceeding
involving an Indian child to the jurisdiction of the child’s tribe absent
‘good cause to the contrary.’” The appellate court concluded that good
cause was not present in this case as the proceeding was not at an advanced
stage and there was no evidence that the transfer would cause any undue
hardship on the parties. Finally, the appellate court noted that “the policy
underlying ICWA is undermined when a district court denies the transfer of
jurisdiction to a tribe based on its own determination of an Indian child’s
best interests.”
Cite: No. A09-0509; 2009 Minn. App. Unpub. LEXIS
1015 (Minn. Ct. App. September 8, 2009)
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ADOPTION/Consent
The
Court of Appeals of Ohio, Second Appellate District, Montgomery County,
affirmed the probate court's decision that appellant biological father’s
consent was not required for the adoption of his minor child by the child’s
stepfather based on its determination that there was clear and convincing
evidence that appellant failed, without justifiable cause, to provide for the
maintenance and support of the child during the year preceding the petition.
Under O.R.C. 3107.07, consent to adoption by a biological parent is not
required if the parent “has failed without justifiable cause to provide for
the maintenance and support of the minor … for a period of at least one
year….” The court found that appellant’s in-kind support consisting of
one package of diapers, two cans of formula, and payment of child support to
appellant’s other biological children who resided with the child at issue
did not constitute maintenance and support. It also concluded that even though
a child support order was not entered against appellant for the child, he was
still obligated under common law and a signed paternity affidavit to support
the child. Finally, the court noted that appellant had failed to show
justifiable cause for failing to support the child. Therefore, the court found
that the probate court’s determination was not against the manifest weight
of the evidence.
Cite: No. 23413, 2009 Ohio 4576; 2009 Ohio App.
LEXIS 3854 (Ohio Ct. App. Sept. 4 2009)
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ADOPTION/Attorney’s fees
The
Superior Court of Pennsylvania reversed and remanded a trial court order
reducing the attorney fees charged for an adoption proceeding by appellants,
holding that the trial court lacked the authority to sua sponte reduce
attorney fees on the grounds that the fees were excessive or unreasonable. Pa.
O.C.R. 15.5 requires attorneys to disclose their fees to the court and 23 Pa.
C.S.A. §2533 requires an intermediary to give an accounting of their fees to
the court and allows the court to reduce these fees if they are excessive. The
superior court found that these statutes only granted the trial court the
authority to review the fees charged by attorneys and intermediaries, and to
reduce only those fees of intermediaries that they deem excessive. Therefore,
the trial court erred in reducing the attorney’s fees in the present case
where appellants did not act as intermediaries between the client seeking to
adopt and the child’s biological father, and where the client did not object
to the fees charged.
Cite: No. 1331 WDA 2008; 2009 PA Super 177; 2009 Pa.
Super. LEXIS 3274 (Pa. Super. Ct. Sept. 4, 2009)
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ADOPTION/Investigation of Placement
The
Court of Appeals of Ohio, Twelfth Appellate District, Madison County, affirmed
the juvenile court’s order that denied appellant foster-parent’s motion to
prevent the removal of a foster child from their home, finding that the
juvenile court did not abuse its discretion by denying the motion. Appellants
argued that the trial court’s decision was an abuse of discretion and that
the court failed to look towards the best interest of the child. The appellate
court noted that because children services had legal custody of the child, it
had the right to determine where the child should be placed, subject to review
of the juvenile court. The juvenile court found that removal was in the
child’s best interest as the foster father had been previously been
convicted of public indecency and the incident took place in the presence of
minors, the foster parents lacked candor regarding the incident, and the
guardian ad litem approved the removal of the child.
Cite: 2009 Ohio 4677; Ohio App. Lexis 3968 (Oh. Ct.
App. Sept. 8, 2009)
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TERMINATION OF PARENTAL RIGHTS
In a
summary dispositional order, the Intermediate Court of Appeals of Hawaii
vacated and remanded an order of the Family Court of the First Circuit (family
court) denying the Department of Human Services’ (DHS) motion for permanent
custody, holding that the family court applied the wrong interpretation of the
test for parental unfitness when determining whether DHS met its burden of
proof. Under Hawaii Revised Statutes § 587-73(a)(1) and (2), parental
unfitness is determined by a showing of clear and convincing evidence that the
parent is unwilling and unable to provide the child a safe family home and
will not be willing and able to provide a safe family home for the child
within a reasonably foreseeable time period. The Hawaii Supreme Court
interpreted this statute to mean that DHS must show the parent is either
unwilling or unable to provide the child with a safe family, not both. Here,
the intermediate court found that the family court failed to make a conclusive
determination regarding the ability of D.H.’s father to provide a safe
family home; the trial court’s conclusion that the father, “although
willing and able cannot provide [D.H.] with a safe family home” did not
effectively decide whether the father was unfit by the clear and convincing
evidence standard. The appellate court therefore vacated the family court’s
decision to deny the motion for permanent custody and remanded the case for
further proceedings on the father’s unfitness.
Cite: No. 29096, 2009 Haw. App. LEXIS 576 (Haw. Ct.
App. August 31, 2009)
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FEATURED NEWS ARTICLE
By: Associated Press
The United States Department of
Health and Human Services distributed $35 million to 38 states and Puerto Rico
as incentives for increasing the number of children adopted from foster care
under the Fostering Connections to Success and Increasing Adoptions Act of 2008
(FCSIAA). This incentive, originally part of the Adoption and Safe Families Act
of 1997, awards federal money to states for increasing the number of children
being adopted out of foster care. FCSIAA modified the original incentives,
providing states with more money if they were able to exceed foster care
adoption rates from previous years. Under the FCSIAA the state will receive
$4,000 for each child adopted over the state’s 2007 baseline number, an
additional $8,000 for each adopted child age nine or older, $4,000 for each
child with special needs over the previous rate and $1,000 for each child over
the highest adoption rate for all previous years. David Hansell, acting
assistant secretary for children and families, commented that he is very happy
with the results produced by these incentives.
Reuters, Sept. 14,
2009
