Thursday, February 26, 2009
An editorial by Professor Naomi Cahn of George Washington University School of Law and Adam Pertman, executive director of the Evan B. Donaldson Adoption Institute discuss a new research-based report by the Evan B. Donaldson Adoption Institute, "Old Lessons for a New World," which suggests that it may be time for federal and state regulation of assisted reproduction. "The report points out that adoption and assisted reproductive technology have much in common as "nontraditional" means of forming families, and that adoption's far-longer history of research, experience and evidence-informed policies therefore could help to improve practices in the world of assisted reproduction."
Wednesday, February 25, 2009
The legislature finds that considerable research shows a strong correlation between animal abuse, child abuse, and domestic violence. The legislature intends that perpetrators of domestic violence not be allowed to further terrorize and manipulate their victims, or the children of their victims, by using the threat of violence toward pets.
Tuesday, February 24, 2009
The Supreme Court released U.S. v. Hayes this morning. The issues and holding in the case are summarized in the first paragraph of Justice Ginsburg's 7-2 opinion:
"The federal Gun Control Act of 1968, 18 U. S. C. §921 et seq., has long prohibited possession of a firearm by any person convicted of a felony. In 1996, Congress extended the prohibition to include persons convicted of “a misdemeanor crime of domestic violence.” §922(g)(9). The definition of “misdemeanor crime of domestic violence,” contained in §921(a)(33)(A), is at issue in this case. Does that term cover a misdemeanor battery whenever the battered victim was in fact the offender’s spouse (or otherrelation specified in §921(a)(33)(A))? Or, to trigger thepossession ban, must the predicate misdemeanor identifyas an element of the crime a domestic relationship be-tween aggressor and victim? We hold that the domestic relationship, although it must be established beyond areasonable doubt in a §922(g)(9) firearms possession prosecution, need not be a defining element of the predi-cate offense."
Sunday, February 22, 2009
An interesting op-ed in the New York Times on same-sex marriage - - - and what makes it interesting is its authors:
David Blankenhorn is president of the Institute for American Values and the author of “The Future of Marriage.” Jonathan Rauch is a guest scholar at the Brookings Institution and the author of “Gay Marriage: Why It Is Good for Gays, Good for Straights and Good for America.”
The op-ed calls, predictably enough given its joint authorship, for a compromise:
clinging to extremes can also be quite dangerous. In the case of gay marriage, a scorched-earth debate, pitting what some regard as nonnegotiable religious freedom against what others regard as a nonnegotiable human right, would do great harm to our civil society. When a reasonable accommodation on a tough issue seems possible, both sides should have the courage to explore it.
Assigning students to research op-eds or read particular ones can bring current policy debates into our study of cases. And having law students write an op-ed - - - or perhaps two op-eds, one on each side - - - can be a great writing exercise and method of learning to articulate policy.
Friday, February 20, 2009
NPR's Michel Martin aired a segment this week about racial disproportionality and disparity in the child welfare system, a topic addressed previously on this Blog (including in an entry dated January 27, 2009). Guests included Kristen Weber of the Center for the Study of Social Policy, Bernadette Blount, a parent advocate with New York's Child Welfare Organizing Project, and Toni Heineman, Director of A Home Within. Click on this link and then click again on "listen here" to hear the program (17 mins 26 secs.)
(last visited MIF -2-20-2009)
Monday, February 16, 2009
Case Law Development: Limits of Right of Parent/Guarians to Refuse Medical Treatment for Adult Incompetent Child/Ward
The Pennsylvania Superior Court, in a case of first impression, explored the limits of a parent/guardian's right to refuse medical treatment for their adult incompetent child. The case involved a 50-year-old man with profound mental retardation. After a court had found that his disability was so severe that he is "unable to make, communicate or even participate in any decision relating to his estate or person", his parents had been named his plenary guardians.
The man developed aspiration pneumonia after he swallowed a hairpin and vomited. Doctors concluded that he needed to be placed on a mechanical ventilator to assist him in breathing. His parents tried to decline this treatment, but over their objection, the hospital placed him on a ventilator for about three weeks, after which he had recovered sufficiently to have the respirator removed.
The parents filed an action to declare that they had the authority to decline medical treatment. Finding that the matter, though moot in this case given the son's recovery, was capable of repetition and evading review, the trial court held a hearing on the matter and declined to grant the requested relief.
The Superior Court affirmed. The court reasoned that the parent's status as plenary guardians was different from that of a health care agent. A health care agent, created by an advanced directive in accordance with the state's Health Care Agents and Representatives Act, acts to carry out the principal's wishes. A guardian acts under the direction of the court to protect the best interests of the ward. This distinction, the court held that a plenary guardian's powers do not include the power to reject medical treatment on behalf of a ward who is neither permanently unconscious nor in end-stage terminal condition.
The court went on to address the parent's argument that the trial court infringed the incompetent’s common law right to refuse medical treatment, as vicariously asserted by the guardians. The court did held that the parents in this case had not met the extemely high burden of proof necessary to secure the authority to exercise this right. The court concluded that "Where a life-long incompetent adult has neither an end-stage medical illness nor is in a permanent vegetative state, and a plenary guardian seeks to decline life preserving medical treatment on behalf of the incompetent, if the plenary guardian fails to establish that death is in the incompetent's best interests, by clear and convincing proof, then the guardian does not have the legal authority to decline life preserving medical treatment on behalf of the incompetent."
In re D.L.H., 2009 Pa Super 25 (Superior Court of Pennsylvania, February 10, 2009)
Opinion online (last visited February 15, 2009 bgf)
Thursday, February 12, 2009
Pursuant to the New York State Family Court Act, domestic violence civil protection orders are available to "members of the same family or household," including those "who are or have been in an intimate relationship."
Two recent New York state trial court cases have applied the "intimate relationship" language. In R.M.W. v.G.M.M, the court found that two women who bore children fathered by the same man have an "intimate relationship" for purposes of this statute. In K.J. v. K.K., the court found that a woman has an "intimate relationship" with her biological daughter, even though the woman had relinquished the girl for adoption eight years earlier.
Tuesday, February 10, 2009
Case law Development: Contractual Liabliity for Failing to Represent in a Professionally Responsive Manner
In a case that reminds family law attorneys to carefully review what they promise in retainer agreements, the Maryland Court of Appeals held that an attorney's representations regarding the quality of their legal services may be enforceable under contract principles. The case involved an attorney sued his client, whom he had represented in a custody action, for more than $13,000 in unpaid legal fees. The client counterclaimed for the $24,525 in fees he had already paid, arguing that the attorney had breached his agreement to provide quality representation. The retainer agreement contained the following statement:
Thank you for expressing the desire for our firm and the attorneys herein, to represent you with reference to your marital difficulties. You may expect our firm to be both sensitive and professionally responsive to your situation.
The agreement went on to disclaim any warranties regarding outcomes in the case and to require the client to notify the attorney if he was dissatisfied with any aspect of the representation. On appeal from a jury verdict in favor of the client, the attorney argued that the court erred in not enforcing the arbitration clause. The court of appeals reviewed the split in authority nationally on the question of whether agreements requiring arbitration of incompetence claims are enforceable. However, the court concluded it need not reach that legal issue since the attorney's participation in the litigation had the effect of waiving the arbritration clause.
The attorney further argued that the client could not maintain a cause of action for breach of contract and that, even if that was permissible, the contract did not promise competent representation. The court of appeals disagreed, finding the contract a promise of competent representation, so that the trial court did not err in introducing expert testimony and giving jury instructions regarding competence. The court of appeals also affirmed the verdict for the entire amount of fees the client had paid the attorney.
Abramson v. Wildman (Md. Ct. Spec. App. February 4, 2009).
Read the opinion online (last visited February 10, 2009 bgf)
Monday, February 9, 2009
Professor Sara Benson, fellow LawProf blogger, and currently visiting assistant professor at the University of Illinois College of Law, has posted to SSRN a draft of her article: "Failure to Arrest: A Pilot Study of Police Response to Domestic Violence in Rural Illinois." The article is explores the issue through focus-groups of survivors. Professor Benson notes that "it is important to consider law enforcement response to domestic violence calls because police officers often serve as the gateway to the legal community through first-response action." The article "points out the disparity between law and action in rural Illinois as detailed by the survivor narratives." The article then proposes a method of strengthening police responses to domestic violence calls in rural areas. bgf
The Midwest Family Law Consortium is soliciting proposals for presentations and papers for its annual conference. The 2009 conference theme is "The Future of Family Law Education”
Do you have family law teaching ideas that you are willing to share? Would you like to talk with other professors about successes and frustrations related to teaching family law courses? This conference is for you!! The conference will be held on Friday, June 26 at William Mitchell College of Law in St. Paul, Minnesota.
Please send workshop proposals to Nancy Ver Steegh at firstname.lastname@example.org (651-290-6342) before March 1, 2009. (Workshop proposals should include a 200 word abstract, a one-page outline, three learning objectives, and presenter contact information.) Selected papers will be published in a special issue of the Family Court Review. Please watch for more information at the conference website. The conference is sponsored by The Midwest Family Law Consortium: Indiana University School of Law – Indianapolis; University of Missouri-Kansas City School of Law; and William Mitchell College of Law; with the Academy of Matrimonial Lawyers, Minnesota Chapter; the Association of Family and Conciliation Courts; and Hofstra University School of Law, Center for Children, Families, and the Law.
Saturday, February 7, 2009
The Miami Herald reports that a federal judge in the Southern District of Florida will decide whether the tort case against a Miami hospital for failure to allow visitation to a same-sex parent could proceed to trial. The surviving woman, Janice Langbehn, is from Washington state and was on a cruise with her partner of seventeen years, and their three adopted children, when the now-deceased woman had a heart attack. The hospital refused visitation for over eight hours; Langbehn was allowed to see her partner receive last rites. A copy of the complaint in pdf is here; more information is available on the Lambda website here.
The tort suit brings Florida's "little DOMA" legislation into sharp relief - - - Florida has both a statute and a constitutional amendment defining marriage as limited to one man and one woman.
Thursday, February 5, 2009
According to the Children's Bureau of the U.S. Department of Health and Human Services, the following conferences about adoption and child welfare are scheduled to occur in the next few months:
- BACW 2009 Annual Conference
Bridging the Gap for Our Children, Our Legacy
Black Administrators in Child Welfare, Inc.
March 8–10, Long Beach, CA
- Fifth Annual Conference on Childhood Grief and Traumatic Loss
Restoring Joy to Children and Families
ICAN Associates, Inc.
March 26, Los Angeles, CA
- 36th Annual New England Adoption Conference
Adoption Community of New England, Inc.
March 28, Bellingham, MA
- 17th Annual Conference on Child Abuse and Neglect
Focusing on the Future: Strengthening Families and Communities
Children's Bureau, Office on Child Abuse and Neglect
March 30–April 4, Atlanta, GA
- 27th Annual Protecting Our Children National American Indian Conference on Child Abuse and Neglect
National Indian Child Welfare Association
April 19–22, Reno, NV
- American Adoption Conference 30th Annual Conference
April 22–26, Cleveland, OH
- NFPA 39th Annual Education Conference
Focus on the Future . . . Love a Child
National Foster Parent Association
May 4–8, Reno, NV
- Eighth Annual National Citizen Review Panel Conference
May 20–22, Jackson Hole, WY
Tuesday, February 3, 2009
In a brief opinion, a Surrogate Judge in New York recognized a Canadian same-sex marriage for probate purposes, declaring the surviving partner the "surviving spouse and sole distributee" and thus not requiring process to other members of the decedent's family.
A copy of the Kristin Booth Glen's opinion, published in the New York Law Journal, page 27, today, is available here and the front-page article is available here,
and continued here.
Monday, February 2, 2009
Completing a process begun in 2001, the Supreme Court of Ohio has adopted new rules governing the requirements for guardians ad litem in juvenile and domestic child custody cases. The new rule 48 provides that courts must enter an order appointing either a GAL or a GAL and attorney advocate for the child. The rule includes a broad range of responsibilities for Guardians ad Litem, which are mandated unless impracticable or inadvisable. These responsibilities include interviewing the parents and child and visiting the child in his or her residence. All GALs are required to file a written, final report at least seven days before a final hearing.
Read the new rule 48 here (as a word document).
The new rule follows an extensive study of the Ohio GAL system which examined GAL services provided to abused and neglected children throughout the state. The data for the study was collected through surveying guardians ad litem, juvenile/family court judges and through information contained in a sample of local court records. Many of the recommendations from that report have found their way into the new rule. Read the Ohio CASA/GAL Study Committee's Final Report: In the Interest of Abused and Neglected Children. (last visited Feb. 2, 2009 bgf)
The National Law Journal reports that Florida Bar's board of governors voted unanimously to file an amicus brief before the 3rd District Court of Appeal supporting a Miami-Dade circuit judge's ruling that declared unconstitutional the state's ban on gay adoptions. Circuit Judge Cindy Lederman ruled in November that the state's ban on gay adoption was unconstitutional. bgf