January 19, 2008
Case Law Development: Errors in Appointing GAL Subject to Harmless Error Analysis
The California Supreme Court resolved a split among the courts of appeals in holding that a juvenile court's error in the procedure used to appoint a guardian ad litem for a parent in a dependency proceeding is subject to harmless error review. The father in this case, facing an action for termiantion of his parental rights, was appointed a GAL in an informal manner, with the trial court asking him if a "second attorney" would be useful to him, but without much further explanation. The Supreme Court found that the procedure did not comport with due process but found the error harmless because the record clearly established father's incompetency. His parentshad already been appointed conservators of his person under the probate code and he was found mentally incompetent to stand trial in criminal proceedings either shortly before or within days after the guardian ad litem appointment.
In re James F., (California Supreme Court January 15, 2008)
Opinion on web (last visited January 18, 2008 bgf)
January 18, 2008
Scholarships Available for AFCC’s 45th Annual Conference in Vancouver
The Association of Family and Conciliation Courts (AFCC) is offering scholarships to its 45th Annual Conference, Fitting the Forum to the Family: Emerging Challenges for Family Courts, May 28-31, 2008 at the Weston Bayshore in Vancouver, BC, Canada. Twenty-five conference scholarships, including international scholarships with travel stipends, will be granted.
AFCC’s 45th Annual Conference will convene leading judges, mediators, lawyers, parenting coordinators, custody evaluators, psychologists, social workers, researchers and others. The AFCC Annual Conference is the premier interdisciplinary family law, mental health and dispute resolution conference, featuring 80 sessions and 190 presenters from Australia, Canada, Ethiopia, Israel, New Zealand, South Africa, Taiwan, the United Kingdom and the United States. The conference features new programs on domestic violence, the child’s voice, high conflict families, child welfare and decision making, psychological testing, parenting coordination, collaborative law and mediation.
AFCC must receive all scholarship applications by February 29, 2008. The scholarship application, conference program brochure, online registration and more can be found on the AFCC Web site at Link. If you have any questions, please contact AFCC at AFCC website or (608) 664-3750.
By AFCC (last visited 1-18-08 NVS)
Culturally Sensitive Shelters
"After enduring seven years of beatings from her husband, a young Yemeni-American woman recently fled to a local shelter, only to find that the heavy black head scarf she wore as an observant Muslim provoked disapproval.
The shelter brought in a hairdresser, whose services she accepted without any misgivings. But once her hair was styled, administrators urged her to throw off her veil, saying it symbolized the male oppression native to Islam that she wanted to escape.
Instead the woman, who asked for anonymity because she feared further violence from her relatives, decamped to the Hamdard Center for Health and Human Services in suburban Chicago, a shelter that caters mainly to Muslim women by not serving pork and keeping prayer rugs handy. Such shelters are extremely rare nationwide, activists say, because Muslim Americans only recently began confronting the issue of spousal abuse."
By Neil MacFarquihar, N. Y. Times Link to Article (last visited 1-18-08 NVS)
January 15, 2008
Case Law Development: Can Delays Caused by Child Protective System Provide Basis for Adoption Outcome?
Justices of the California Court of Appeals disagreed over the effect of a two-year delay in terminating a mother's parental rights and in preventing the child's transfer to Florida to reside with her aunt. The majority opinion provides a detailed summary of the delays and difficulties in the case, summarized thus:
This is a dependency case in which a drug-addicted mother was arrested in California and extradited to Florida. Her nine-month-old daughter, who tested positive for opiates and cocaine because her mother was breastfeeding her while using drugs, was placed with foster parents. At the mother's request, her sister did everything she could to have the child placed with her in Florida, but the Florida child welfare authorities refused to expedite the process and almost a year elapsed before the Florida family obtained a foster care license. Meanwhile and inevitably, the child (now almost three years old and a complete stranger to her Florida family) bonded with her foster parents who are eager to adopt her. The dependency court, placing the child's best interests first, terminated the mother's parental rights and designated the foster parents as the child's prospective adoptive family.
The majority noted that the possibilities for mother's reunification were slim given her three-years sentence for her drug conviction. The majority also noted the aunt's reluctance to adopt the child, her limited financial ability to secure health care for the child, and concerns regarding Florida's child protection system's ability to monitor the case. The fact that the child had lived with the foster family in California for over two years and had never met the aunt was equally significant in the majority's analysis.
The dissent's opinion was sharply critical of an approach that did not give greater weight to parental rights and family-preferences in foster placement. The dissent opined that, "The majority's approach gives far too much weight to the amount of time that a child resides with a foster parent, gives inadequate weight to facts that warranted placement of [the child] with her aunt's family, and ignores the insidious effect on the child welfare system of using the failure of the system itself as justification for the termination of parental rights." On the issue of the Florida system's ability to monitor the aunt's care, the dissent sharply noted, "DFCS cited as an additional ground for denying placement with [aunt] and her family that the Florida child welfare system was not up to the job of monitoring [child's] placement with them. Although as Californians, we are confident that we do things better here than anywhere else, we doubt the citizens of Florida would share that view."
This case is a good read for any student studying the dynamics of the child welfare system.
In Re Lauren Z, California Court of Appeals, January 11, 2008
Opinion online (last visited January 14, 2008 bgf)
Case Law Development: Child Born As Result of Implantation of IVF Embryo After Father's Death Not Entitled to Inheritance Rights
Answering a certified question from the US District Court, the Arkansas Supreme Court has held that A child born in a test tube and implanted in his mother's womb after his father's death cannot necessarily be considered as an heir to his father's property. The critical issue according to the court was whether the date of conception for her child should be considered when the embryo was created or when the embryo was implanted in the mother's womb.
The case arose when a mother applied for child insurance benefits for her child implanted and born after father's death. Arkansas social service officials denied her request, saying the child was "conceived" after the father had died. The Arkansas social security administration argued that "conception" was defined as the onset of pregnancy or the implantation of an embryo in the womb. Mother argued that her child was "'conceived' at the time her egg was fertilized by the father's sperm,"
The court said the law on inheritance did not address in vitro fertilization and was adopted before the procedure was developed. But the court declined to offer a legal definition of conception, saying that was "not our role." "Were we to define the term 'conceive,' we would be making a determination that would implicate many public policy concerns, including, but certainly not limited to, the finality of estates." Instead, it urged the state legislature to address the question.
Finley v. Astrue, Arkansas Supreme Court (January 10, 2008)
Opinion online (last visited January 15, 2008 bgf)
January 14, 2008
Story of Twins who Married Fuels Legislative Debate & Final Exams
By now you've all had a student bring you the news reports of the twins separated at birth who later married not knowing they were siblings. (My students were sending me the article in droves because the fact situation formed the basis for one of the essay questions on last semester's final exam -- they couldn't believe my crazy exam story really happened). The case was brought to public attention in aid of legislative push in Parliament to give adopted children full access to their birth records during a debate on the Human Fertilisation and Embryology Bill. Read the Telegraph story on the legislation. (last visited January 14, 2008 bgf)
Case Law Development: Virginia Court Distinguishes Abandonment in Divorce and Elective Share Analysis
The Virginia Supreme Court found that the trial court did not err in ruling that an estranged husband was not eligible for an elective share of the spouse's augmented estate. The court noted that the record shows that both before and after the parties separated, the husband showed none of the normal indicia of supporting his spouse or of the marital relationship. The evidence was sufficient to support the trial court’s holding that he abandoned his wife prior to and continuing until the time of her death
The decision required the court to distinguish the term abandonment as used in divorce actions wtih the analysis of abandoment in this case:
While the term "abandonment" is similarly defined for purposes of domestic relations and elective share matters, there are significant differences in the analysis of the evidence when resolving the issue in the domestic relations and elective share contexts. For example, as we have noted, the relevant time period for determining abandonment for purposes of [elective share analysis] extends to the time of the deceased spouse's death and is not limited to the moment of separation, or the filing of a petition for divorce, as it is when abandonment is the ground upon which a divorce is sought. ... A second distinction is the effect of the parties' agreement to separate or to seek a divorce. In an elective share analysis, an agreed separation or petition for divorce is relevant evidence of the termination of cohabitation, but is not evidence which defeats a finding of willful abandonment. In contrast, such an agreed separation or divorce petition may preclude a claim of abandonment in a divorce action because a finding of abandonment in that context is based on fault which is inconsistent with parties agreeing to terminate cohabitation or to seek a divorce. With these distinctions in mind, we now turn to the evidence in this case. In this case, the mutual decision to cease cohabitation and Dorothy's divorce petition based on living separately for more than a year implies that the termination of the marital relationship was not the product of willful abandonment but rather an agreement between the parties.
The court found dispositive Husband's conduct during and after the separation in his failure to support or care for Wife.
Purce v. Patterson, (Virginia Supreme Court January 11, 2008)
Opinion online (last visited January 13, 2008 bgf)