Wednesday, March 21, 2007

Case Law Development: Preference for De-Facto Parent Applies in Adoption Case rather than Placement with Relatives

The California Court of Appeals weighed the application of preferences for relatives versus caregivers in child protection cases in deciding whether a 10-year-old girl should be removed from the home of her de-facto parent and placed with her maternal aunt in Oregon.  The trial court had ordered the girl removed from her de-facto parent, placed her with her aunt with an adoption plan, and terminated the girl's parental rights.  Both the girl and her de facto parent appealed.  The court of appeals reversed, holding that the preference for placing children with relatives did not apply in this case because the child was already placed with the de-facto parent and no new placement was necessary.  While the de-facto parent had not yet been able to have the court designate her as a "prospective adoptive parent" (which provides more procedural protections), she intended to adopt the child, so that the caretaker preference standards should have been applied.  Aunt had argued that the caretaker preference could not come into play until after termination of parental rights, but the court of appeals concluded that the preference arose whenever adoption became the permanency plan.  The court concluded that the trial court had preferred placement with the aunt because it had misunderstood the impact of the relative placement and remanded for consideration of the de-facto parent's application "on a level playing field."

The case would make a fascinating case study, both for the careful legislative interpretation necessary to decide when each preference applies, and for consideration of the importance of timing and procedural posture in child protection cases. 

In re Lauren R., Cal. App. 4th District (March 19, 2007)
Opinion on web (last visited March 20, 2007 bgf)

http://lawprofessors.typepad.com/family_law/2007/03/case_law_develo.html

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