Family Law Prof Blog

Case Law Development: Termination of Parental Rights Does not End Child Support Obligation

In an unpublished opinion, the Illinois Supreme Court has held that the termination of parental rights does not extinguish a child support obligation unless the child is being adopted.  The court relied on the language of the Illinois statute, which refers to termination of parental obligations as to “a child sought to be adopted.”   The court stated: "We conclude that, after the entry of an order terminating parental rights, where the child is not adopted, [the Act] applies as its plain language indicates, only where the child is 'sought to be adopted'…. To hold that this language is of no effect, as respondent urges, would render the language superfluous or meaningless."  The court rejected the appeals court’s  interpretation of the “sought to be adopted” language as including any child 'available for adoption', noting that the legislature could have specifically used this language.

Three judges dissented, arguing that the court’s interpretation created significant inconsistencies in the law, both between the termination statute and the juvenile code and between this holding and prior precedent.

Illinois DHFS v. Warner, Ill., Illinois Supreme Court, January 25, 2008
Opinion on the web (last visited February 9, 2008 bgf)

Case Law Development: Burden of Proof of Indian Child Welfare Act Element of "Active Efforts" to Reunite

The Nebraska Supreme Court joins those states that interpret the Indian Child Welfare Act to require only clear and convincing proof that "active efforts have been made to provide remedial services and rehabilitative programs" 25 U.S.C. 1912(d) in order to terminate parental rights.  Other states have held that this element must be proven beyond a reasonable doubt.  The Nebraska Supreme Court analyzes the language of the ICWA and concludes  that the higher standard, mandated by the act for other elements of the ICWA, is not required for this element.

In re Walter W., 274 Neb. 859 (January 18, 2008)
Opinion online (last visited January 21, 2008 bgf)
An outline of the provisions of the ICWA is available at the Indian Child Welfare Law Center.

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)

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: Poverty Not A Basis for Termination of Parental Rights

The California Court of Appeals has issused an unpublished opinion that is an excellent case study of the relationship between poverty and termination of parental rights.  A presumed father's parental rights had been terminated because he was unable to provide a stable home for his children, even though he had been an involved, caring father and the child protective services had found no harm or threat of harm to them at any time.  The court of appeals reversed the termination, holding that the trial court must find that a presumed father is unfit before terminating parental rights.  The court commented:

DCFS may not bootstrap the fact that Gerardo was too poor to afford housing, which would not have served as a legitimate ground for removing the boys in the first place, to support findings of detriment, all of which flow directly from the circumstances of Gerardo's poverty and his concomitant willingness to leave his sons in his family's care while he stayed close, maintained familial ties and worked to raise rent money. This is particularly so when DCFS might have assisted Gerardo to obtain affordable housing, but made no effort to do so....It is not up to Gerardo to prove he is a fit parent. Rather, it is up to DCFS to satisfy its constitutional burden to establish, by clear and convincing evidence, that he is not.

In re G.S.R., Cal. App. Second Div.  (January 8, 2008)
Opinion online (last visited January 10, 2008 bgf)

Case Law Development: New Jersey Determines Standards for Ineffective Assistance of Counsel in TPR Cases

The Supreme Court of New Jersey resolved a number of issues regarding ineffective assistance of counsel in cases involving termination of parental rights.  In an opinion that provides a thorough survey of various state approaches to the issues presented, the court held that:

• the right to effective assistance of counsel in New Jersey is both statutory and constitutional
• the standard for reviewing effective assistance of counsel should be the Strickland standard rather than the "fundamentally fair" standard used by some states.
• the procedure for post trial examination of ineffective assistance claims should be by direct appeal rather than in post trial motions in the trial court.

In the Matter of Guardianship of AW and AR, 2007 NJ LEXIS 908 (NJ Sup. Ct. July 25, 2007)
Opinion online (last visited August 2, 2007 bgf)

Case Law Development: Reinstating Parental Rights after Termination

The California Court of Appeals has held that an individual who has had her parental rights terminated may not thereafter seek reinstatement of her legal rights through the presumed parenthood statute.  The case involved a mother whose parental rights were terminated and her child was adopted by his sibling's father, who thereafter allowed the child contact with the mother.  When the state brought a second dependency action against the adoptive father, both the mother and the child moved to allow mother to intervene in the action as a de facto parent. 

Mother argued that allowing assertions of presumed parent status when parental rights were previously terminated is proper in a second dependency proceeding against an adoptive parent, because “[f]or many children who were adopted by relatives or family friends, the social, emotional relationship between biological parent and child continues.”  Mother’s children wanted to return to her and mother’s social worker supported her position.

The court found that the plain language of the statute, however, would allow a collateral attack on a termination action and concluded that “any exception to the statute for circumstances such as those here would have to come from the Legislature. There is simply no statute that would allow [Mother] to be designated a presumed mother after the termination of her parental rights." 

In re Cody B., 2007 Cal. App. LEXIS 1238 (July 27, 2007)
Opinion on line (last visited August 1, 2007 bgf)

Case Law Development: Tennessee Court Orders that Daughter Be Returned to Chinese Parents after Seven Years in Custody of Foster Parents

The Tennessee Supreme Court has ruled in the case of Anna Mae He (see Nov. 27, 2005 Family Law Prof post) reversing the termination of the parental rights of the Chinese couple who seven years ago had given their daughter to a couple in Tennessee for foster care. The trial court had predicated the termination on the ground that the parents abandoned A.M.H. by willfully failing to visit her for four months. The Tennessee Supreme Court held that, "because the undisputed evidence shows that there was animosity between the parties and that the parents were actively pursuing custody of A.M.H. through legal proceedings during the four-month period immediately preceding the filing of the petition for termination of parental rights, ...the trial court erred in finding a willful failure to visit..... we conclude that the parents’ consent to transfer custody and guardianship of A.M.H. to the appellees was not made with knowledge of the consequences of the transfer. Therefore, according the parents those superior rights to the custody of their child that constitutional law mandates, only a showing of substantial harm that threatens the child’s welfare may deprive the parents of the care and custody of A.M.H. Although A.M.H. has now been with the appellees for more than seven years, six of those years elapsed after the parents’ first unsuccessful legal filing to regain custody. Evidence that A.M.H. will be harmed from a change in custody because she has lived and bonded with the Bakers during the pendency of the litigation does not constitute the substantial harm required to prevent the parents from regaining custody."  The Court remanded for determination of a reunification plan.

In Re Adoption of AMH, January 23, 2007
Opinion on the web  (last visited January 24, 2007 bgf)

Also read news stories on the decision from the New York Times; USA Today; and the Memphis Eyewitness News (includes video interviews)

Case Law Development: The Power of A Christmas Card

Some Christmas cards are more important than others...

The Ohio Court of Appeals held this past week that, even though a father's sole contact with his child during the year was a Christmas card and gift card, this was sufficient "communication" with the child to require the father's consent to the child's step-father's petition to adopt the child.

The court's anaylsis was premised on a strict reading of the statutory requirement:

Our reading of the statute indicates that the legislature intended to adopt an
objective test for analyzing failure of communication ***. The legislature purposely avoided the confusion which would necessarily arise from the subjective analysis and application of terms such as failure to communicate meaningfully, substantially, significantly, or regularly. Instead, the legislature opted for certainty. It is not our function to add to this clear legislative language.

In re K.R.G., 2006 Ohio 6705 (December 18, 2006)

Opinion on the web (last visited December 23, 2006 bgf)

Use of Mandamus to Review Trial Court's Refusal to Dismiss Child Protective Actions

Texas statutes provide that, a trial court must dismiss a child protective action filed by the state if the court does not render a final order within one year of the appointment of the state Department as temporary managing conservator of a child (with a maximum extension of 180 days).  Two years ago, in a case in which the the dismissal deadline had passed during a trial, the parents filed for and obtained a writ of mandamus with the court of appeals.  The Texas Supreme Court stayed that writ (with the child presumably staying in foster care).  In a decision this week, the Texas Supreme Court held that accellerated appeal was an adequate remedy to address the trial court's refusal to dismiss the action and it was error for the court of appeals to grant a writ of mandamus.  The court qualified its holding and commented on the statute:

We do not hold that a party complaining of a trial court's failure to dismiss a SAPCR within the statutory deadline could never be entitled to mandamus relief, but under the facts of this case, we cannot conclude that an accelerated appeal was not an adequate remedy. Impending transfer of physical possession of the children or a trial court's unreasonable delay in entering a final decree might alter this conclusion, but this record raises neither concern. .... We recognize that in particular cases the statute could work injustice or encourage gamesmanship to push litigation beyond the deadline. We presume the Legislature recognized this also. But the Legislature also recognized that a statutory deadline would expedite the trial of these cases to help provide a modicum of certainty for children whose family situations are subject to the outcomes in these proceedings. It is not the Court's task to choose between competing policies addressed by legislative drafting.

One judge dissented, noting that mandamus has been used in numerous other contexts in which appeal is also available.  The dissenting judge questioned whether the parents would even be able to appeal the trial court's termination of their rights at this point. Under these circumstances, the dissent concluded, "The error was clear, and the solution straightforward — an order directing the trial court to dismiss the case. While the overall effect on the legal system of the trial court’s failure to dismiss may not be widespread, the consequence to the family in this case is
deep and potentially irremediable."

In re Tex. Dep't of Family & Protective Servs., 2006 Tex. LEXIS 1265 (December 15, 2006)
Opinion on the web
Dissenting Opinion (last visited December 20, 2006 bgf)

Case Law Development: A "Better Family" is Insufficient Justification for Termination of Parental Rights

The Texas Court of Appeals reversed a termination of a mother’s parental rights for insufficient evidence that the termination would be in the child’s best interests.  The court reviewed the testimony of the CASA volunteer’s observations and criticisms of mother’s parenting, making this a great case to turn into a class discussion problem given the extensive summaries of the testimony and the clear framing of the issue regarding what is minimally acceptable parenting.   

The case involved a mother and father whose two young children were removed from the home after a domestic violence incident in which each parent claimed the other was the aggressor.  There was also an admission by mother that she had smoked marijuana in front of the children.  The court concluded that, while these offending behaviors could form a basis for termination, they were not “egregious enough to warrant a finding that termination is in the children's best interest.”   

While there is evidence in the record of Mother's poor parenting skills, poor decision making, and inadequate protection of the children in the past, the evidence is uncontradicted that Mother has done everything that CPS has required of her and more. There is evidence CPS's goal initially was to reunite the family. After Mother and Father divorced, the goal became placing the toddler with Mother and the infant with Father. No significant event occurred between the time CPS planned to return the children to appellant and the time CPS sought termination of Mother's parental rights other than her divorce from Father and Mother's move out of her brother's house and into a sparsely-furnished two-bedroom apartment CPS deemed "unsuitable." The best interest standard does not permit termination merely because a child might be better off living elsewhere.  Termination should not be used to merely reallocate children to better and more prosperous parents.  The evidence shows Mother has made significant progress, improvements, and changes in her life. The evidence also shows Mother has attended 100 percent of her visits with her children, and she obviously cares for her children.

In the Interest of C.E.K., 2006 Tex. App. LEXIS 9838 (November 14, 2006)
Opinion on the web (last visited November 15, 2006 bgf)

Case Law Development: Failure to Object to Absence of Attorney for Child in TPR Actions Precludes Later Appeal on that Basis

In a brief opinion, the Texas Court of Appeals raises yet another issue in the debate over how vigorously courts will enforce the child's right to representation in termination actions.  The court upheld the termination of a mother's parental rights, finding that her failure to object to the absence of the child's attorney ad litem at the termination hearing waived her right to raise the issue on appeal.  Dissenting Chief Justice Lopez was troubled by this outcome.  She pointed out that, while the court did appoint a substitute attorney ad litem upon the failure of the original attorney to appear, the termination hearing was nonetheless heard that same day.   Her dissent argues that, "Implicit in the mandatory requirement that an attorney ad litem be appointed is the requirement that the ad litem be present at the hearings in order to represent the child's interest. Just as a court's error in failing to appoint an ad litem can be raised for the first time on appeal... the ad litem's failure to appear at a hearing also should be permitted to be raised for the first time on appeal."

In the Interest of D.W., 2006 Tex. App. LEXIS 7005  (TEx App 4th Dist san antonio August 9, 2006)
Opinion on the web (last visited August 10, 2006 bgf)

Case Law Development: Egregious Abuse Against Child Sufficient Basis to Terminate Parental Rights as to Siblings

The Florida Court of Appeals holds that, under the terms of Florida statutes, egregious abuse directed at one sibling is sufficient, without more, to support termination of parental rights to another sibling. "The statute does not require additional proof to establish a likelihood that an abused child's sibling will also be abused.   Furthermore,  in some cases, a parent's conduct toward one child may demonstrate a "substantial risk of significant harm" to another child.

T.P. v. Dep't of Children & Family Servs., 2006 Fla. App. LEXIS 13254 (August 9, 2006)
Opinion on the web (last visited August 10, 2006 bgf)

Case Law Development: Court May Consider Even Brief Periods of Incarceration in TPR Actions

The Colorado Supreme Court has held that a trial court did not improperly consider the effect of a parent's criminal conviction and resulting incarceration in a termination of parental rights case.

Colorado law provides that parental incarceration alone, is insufficient for termination of parental rights.  However, the Colorado code requires a trial court to consider parental incarceration under two circumstances: "(1) if the parent is confined and not eligible for parole for at least six years after the date was adjudicated dependent or neglected; and (2) if the parent is confined and not eligible for parole for at least thirty-six months after the date a child, who is under the age of six when the petition is filed, is adjudicated dependent or neglected."

The question in this case was whether a court may consider periods of incarceration of less than thirty-six months. The Colorado Supreme Court concluded that "Because the primary and controlling issue in termination proceedings is the determination of what will best serve the interests and welfare of the child, a trial court may consider even a relatively short period of parental incarceration as a factor affecting parental fitness and the needs of a child who has been adjudicated dependent or neglected."

Part of the court's rationale for termination of father's rights in this case was that, while eligible, he had been denied parole because the parole board found him a danger to society.  Thus father could not comply with the treatment plan, which was premised on his parole.  The case provides an interesting comparison with the recent Wisconsin court case (see July 28th Family Law Prof post) addressing a similar issue.

In the interests of K.D., 2006 Colo. LEXIS 622 (July 31, 2006)
Opinion on the web (last visited August 1, 2006 bgf)

Case Law Development: Parent Whose Rights Have Been Terminated May Not Sue For Custody as a Nonparent

The Ohio Supreme Court has held that a natural parent who lost permanent custody of a child does not have standing to file a petition for custody of that child as a nonparent. The mother in this case had her child permanently placed with the state agency in 1997.  In 2003, after mother had substantially improved her circumstances and learned that her daughter had not been adopted and had not adjusted well to foster care, sought to restore her parental rights.  According to the court, however, a parent whose parental rights with respect to the child have been terminated may not request modification of a termination of parental rights. 

In re McBride, 110 Ohio St. 3d 19 (July 19, 2006)
Opinion on the web (last visited July 27, 2006 bgf)

Case Law Development: Incarceration Insufficient Basis for Termination of Parental Rights

The Wisconsin Supreme Court reversed a trial court court's termination of a mother's parental rights holding that the trial court had acted "solely due to Mother's status as an incarcerated person without regard for her actual parenting activities or the condition of her son in violation of Wis. Stat. § 48.415(2) and the mother's substantive due process rights."  The 4-2 decision turned on the fact that Mother had been told that a condition of getting her son back would be to find safe and suitable housing within 12 months, which would have been impossible since she was still incarcerated during that time.  The court ruled that conditions of return must be tailored to each individual case and that the nature of the parent's conviction and length of sentence can and should be among the considerations for parental unfitness, but not the only factor. Other factors cited include the likelihood that the child will be adopted, the child's age and health, the relationship between the parent and the child, the parent's level of cooperation, and the best interests of the child.

Dep't of Human Serv. v. Jodie W. (In re Max G. W.), 2006 WI 93 (July 11, 2006)
Opinion on the web (last visited July 27, 2006) bgf
Read news reports on the story in the Milwaukee Journal-Sentinal.

Case Law Development: No Need for Independent Counsel for Children in TPR Action if Children Do Not Consistently Disagree with GAL Recommendations

The Ohio Court of Appeals held that when the children who are the subject of a juvenile court proceeding to terminate parental rights do not express a consistent wish for placement contrary to the recommendation of their guardian ad litem, it is not necessary for the trial court to appoint independent counsel for the children.  The court noted that courts should conduct an in-camera, recorded, interview with the child to determine whether independent counsel is needed whenever a child's wishes are in conflict with the child's GAL's recommendation.  Courts should take into account "the maturity of the child and the possibility of the child's guardian ad litem (GAL) being appointed to represent the child." Because the magistrate in this case complied with these requirements and because the children were inconsistent in their expressed desire to live with their mother, the court of appeals found no error in refusing to appoint separate counsel for them.

In re Graham, 2006 Ohio 3170 (June 23, 2006)
Opinion on the web (last visited June 26, 2006 bgf)

Case Law Development: Appointment of GAL for parent in dependency action requires notice and hearing

The California Court of Appeals holds that a trial court's appointment of a guardian ad litem for a parent in a dependency proceeding requires due process protections.  In this case, Mother's court appointed counsel had sought appointment of a GAL at a hearing for which Mother had not appeared.  The sole basis for the appointment was counsel's statement that appointment of a GAL would assist him in representing Mother.  Mother had not been given any notice that the attorney would be making this request and was provided no opportunity to contest the appointment.  At a later date in the dependency action, both the attorney and GAL informed the court that a GAL was no longer needed and the court excused the GAL.  The court of appeals found that the failure to provide notice and a hearing to Mother violated her right to due process.  The court noted that appointment of a GAL transfers significant parenting rights and requies either parental consent or a hearing at which  "the court or counsel must explain the purpose of a guardian ad litem, why counsel believes the appointment is necessary, and what authority the parent will cede to the guardian ad litem. The parent must be given the opportunity to respond. At a minimum, the court should make an inquiry sufficient to satisfy it that the parent is, or is not, competent; i.e., whether the parent understands the nature of the proceedings and can assist the attorney in protecting his/her rights."(citations omitted)

Nonetheless, the court found that appointment of a GAL without due process was not a structural error automatically requiring reversal.  In this case, the court found the error was thus harmless beyond a reasonable doubt, concluding that both counsel and the GAL protected Mother's rights throughout the process and that the outcome would not have changed.

In re Enrique G. (June 19, 2006)
Opinion on the web (last visited June 21, 2006 bgf)

Case Law Development: Maine Health and Human Services Improperly Made End-of-Life decision for Child in Foster Care Absent Hearing to Air Parental Objections

In a unanimous ruling, the Main Supreme Court ruled that the Maine Department of Health and Human Services should not have made an end-of-life decision for a baby boy in foster care without a court hearing to air the parents' objections.  The agency had placed the child in a foster home and obtained a “do-not-resuscitate” order based on the opinion of doctors who concluded the child was brain injured and would not recover.  The injuries were allegedly suffered when the child was shaken by his father.

The court said that due process requires that parents be afforded the same procedural protections before approval of a do-not-resuscitate order (DNR) for their child as they are afforded prior to the termination of their parental rights.  When either or both parents, whose parental rights have not been terminated, object to a DNR for their child who is in the Department's custody, “the court must provide reasonable notice for a hearing, hold the hearing, and determine, by clear and convincing evidence, whether it is in the best interest of the child to give the Department the authority to issue a DNR.  As part of its assessment, the court should, at a minimum, consider: (1) the child's quality of life, including whether the child is in a persistent vegetative state; (2) what life‑sustaining treatment would be necessary; (3) the degree of pain the life‑sustaining treatment or the withholding of life-sustaining treatment would cause the child; (4) the long-term prognosis for the child; (5) the opinions of medical experts in regard to the foregoing considerations; and (6) the benefit or detriment to the child if the parents participate in the decision making.”  A copy of the Maine Supreme Court opinion In Re Matthew W. may be obtained by clicking here (last visited June 14, 2006, reo).

Case Law Development: State Must Prove Termination of Parental Rights Even if Parent Defaults

The Kentucky Court of Appeals took the rare action of reversing a trial court's termination of a mother's parental rights in a case in which she did not appear to contest the termination and the hearing on the matter lasted 15 minutes.  The state alleged medical neglect because one of the three children, who was born with severe medical problems, had been catheterized by another child.  The state alleged educational neglect as to a second child because he was reading far below his grade level.  As to all three children, the state maintained that mother did not maintain an appropriate home.  No evidence was submitted in the 15 minute hearing to support these allegations or the harm to the children. 

In reversing, the court commented: "We are mindful of the enormous time pressures faced by both the family court and the attorneys involved in this case. But the state’s effort to sever permanently the relationship between parent and child is a serious affair, as evidenced by the heightened burden of proof required for termination. Based on the record before us, we believe that in its haste, the Cabinet failed to show the family court clear and convincing evidence that [mother's] parental rights should be terminated. After all, “[i]t is very well to say that those who deal with the Government should turn square corners. But there is no reason why the square corners should constitute a one-way street.”

V.S. v. Commonwealth of Kentucky, Kentucky Court of Appeals May 5, 2006
Opinion on the web (last visited May 30, 2006)

Read a news story on the decision by Valarie Honeycutt Spears of the Lexington Herald-Leader (last visited May 30, 2006)

Case Law Development: Unmarried Biological Father's Consent Required For Adoption If Paternity Uncontested in Other Prior Proceedings

The Florida Court of Appeals reversed a trial court's order of adoption without securing the consent of the biological father.  The child and Mother had both tested positive for cocaine at the child's birth.  As a result, the state initiated dependency proceedings and identified Father as the biological father, without objection. 

In an effort to avoid the dependency proceeding, Mother's parents brought an action to adopt the child, to which Mother consented.  The trial court found that Father's consent was not required because he had not timely registered in the putative father registry.

The court of appeals reversed, finding that the trial court erred in determining that the Florida statutes requiring registration in the putative father registry is the sole method of preserving an unmarried biological father's rights.  Rather, the court held, a court must obtain consent to adoption from any man who qualifies as a father under any of the statutory sections of the statute.  "Thus, subsection (b)5 [the putative father registry] is not a default provision under which all unmarried biological fathers must qualify to protect their parental rights -- it is merely one statutory method among five to identify a child's father."  The court went on to note that father's consent was required because he met the statutory section in which paternity has been "established by court proceeding." "The phrase "established by court proceeding" is not limited to a formal paternity adjudication under chapter 724, Florida Statutes (2004). Rather, any time a court makes a factual determination as to the identity of a minor child's father, and the determination is material in the proceeding before the court, that proceeding qualifies as a "court proceeding" under subsection (b)3."

The dissent argues that the majority's conclusion that father's consent was required under the adoption act was "unsupported by the facts, directly contravenes the expressed legislative intent set forth in the Florida Adoption Act, and directly conflicts with prior case law from this court as well as overwhelming precedent from around the country."

B.B. v. P.J.M. & K., 2006 Fla. App. LEXIS 8011 (May 22, 2006)
Opinion on the web (last visited May 23, 2006 bgf)

Case Law Development: Florida Rejects Habeas as Route to Raise Ineffective Assistance of Counsel in Termination of Parental Rights Actions

The Florida Court of Appeals holds that ineffective assistance of counsel claims in termination of parental rights proceedings may not be collaterally attacked through habeas corpus proceedings.  The opinion thoroughly reviews the treatment of this issue by other states (see extended post below for a summary).  The court comments that "The issue is difficult because it pits the protected interest in preserving the family and raising one's children against the manifest best interests of children and their need for permanency.... The very issue calls into play questions of procedure, time requirements, burdens of proof, and a balancing of interests." (internal quotations omitted) 

The court concludes that the "liberty interest at stake in criminal cases is simply not equivalent to that involved in custody cases involving children." The court noted several differences between termination proceedings and criminal proceedings regarding the standard of proof, role of the judge, and the critical role of time in termination proceedings.  The court also commented on the "perils inherent in the use of habeas corpus petitions, such as unlimited time to file the petition, the lack of any identified rules, the proper burden of proof, and the proper parties to such a petition" and concluded that "any attack on the effectiveness of counsel must come in the form of a direct appeal or a post-trial motion authorized by the rules."

The court did, however, certify the question to the Florida Supreme Court.

One dissenting judge would have permitted the use of habeas to review ineffective assistance of counsel claims in termination actions.

E.T. v. State & Dep't of Children & Families, 2006 Fla. App. LEXIS 6647   
(May 3, 2006)
Opinion on the web (last visited May 6, 2006 bgf)

Outside of Florida, thirty-one states have addressed the issue of ineffective assistance of counsel in TPR proceedings. Of those, twenty seven states (Alabama, Alaska, California, Colorado, Connecticut, Georgia, Illinois, Indiana, Iowa, Kansas, Massachusetts, Michigan, Missouri, Montana, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, Texas, Utah, and Virginia) have permitted the issue to be raised on direct appeal. Two states (Alabama, Wisconsin) have indicated the issue should be raised by post-trial motion, and only one state (California) has allowed the issue to be raised by habeas corpus petition. One state (Nevada) has disallowed a claim for ineffective assistance of counsel. Four states (North Dakota, Rhode Island, Tennessee, and Vermont) have declined to address the issue. And, fifteen states (Arizona, Arkansas, Delaware, Hawaii, Kentucky, Louisiana, Maine, Maryland, Minnesota, Mississippi, and Nebraska) have simply not addressed the issue.

Case Law Development: Agency Actions that Make Parent-Child Bonding Impossible Make Termination of Parental Rights Unconstitutional

The Illinois Court of Appeals reversed a trial court's termination of parental rights in a case in which mother's 10-month-old son and her older daughters had been removed for neglect.  The girls were placed with grandparents but the son was placed in a foster home.  Soon thereafter, mother was convicted of drug violations and incarcerated for two years.  After nine-months of incarceration, the court held a hearing and determined she was unfit.  During mother's incarceration, Mother was not allowed visitation with her children.  She was finally allowed telephone contact 16 months into her incarceration and later was allowed in-person visitation with daughters, but not her son. After her release from prison, and on the basis of an evaluation by a psychologist regarding the trauma of resuming visitation with her son, visitation was restricted to twice-monthly meetings in the social services offices with the foster mother present, and mother was not be be introduced as his mother but as a relative named "Jenny."

At a hearing regarding termination, mother was able to reverse the court's finding of unfitness regarding her daughters, with whom she had regular visitation, but the trial court found that the best interests of son were to terminate mother's rights as she had not bonded with her son and he was bonded with the foster family.  The court of appeals noted that the trial court was correct in focusing on the best interest of the child analysis at this point in the termination process since "once a finding of unfitness has been made, all considerations must yield to the best interest of the child."  The court's task at that point is to "assess the relative degree to which the child has bonded to his foster parents and his biological parent, taking into consideration the natural harm to the relationship caused by the parent's derelictions. ... However, it seems that any harm to the parent's relationship with the child must be assessed absent artificial or coercive intervention of others into the bonding process. Such an assessment could not be made in this case, and there has, therefore, been a fundamental injustice to respondent."

The court concluded that mother's constitutional rights would be violated if her parental rights were terminated given the agency's prior failure to promote visitation, much less reunification, and its deception of the son regarding his mother's identity. "The [termination] statute nowhere suggests or condones decisions of child welfare agencies, enforced by the courts, prior to the best interest hearing that allow a parent to believe that she is progressing toward reunification while ensuring that she will fail the best interest test. When the actions make the best interest hearing a futile gesture there has been a violation of due process tainting the constitutionality of the termination of respondent's parental rights."

In re O.S., 2006 Ill. App. LEXIS 333 (April 17, 2006)
Opinion on the web (last visited April 25, 2006 bgf)

Case Law Development: Familial Preference in Child Protection Placements

The Nevada Supreme Court granted a writ of mandamus to review a tragic case involving a child's placement upon removal from her Mother for abuse and neglect.  The court had placed the child with a foster family, rather than with the child's grandmother, without affording grandmother an opportunity to be heard on the matter.  This necessitated Grandmother's filing a separate guardianship proceeding, which the district court then denied because the child had already bonded with the foster family. 

The Nevada Supreme Court found that the court had erred in denying the guardianship petition because "the district court failed to ensure that [Grandmother] was involved in and notified of any plan for [Child's] temporary or permanent placement before the petition was filed and thereafter failed to give [Grandmother] the benefit of the familial preference for placement."  Examining United States Supreme Court cases and precedent from other states regarding the relative rights of foster parents and family members, the court concluded that "in denying [Grandmother's] visitation petition, the district court gave improper weight to the foster parents' wishes when determining [the child's] best interest." 

Matter of Guardianship of N.S., 122 Nev. Adv. Rep. 27, 2006 Nev. LEXIS 31 (March 16, 2006)
Opinion on the web (last visited March 21, 2006 bgf)

Case Law Developments: Counsel in TRP Not Ineffective for Failing to Investigate Effect of Adoption on Child's Tribal Rights and Benefits

The California Court of Appeals holds that a child's attorney in a termination of parental rights proceeding has not rendered ineffective assistance if the attorney does not investigate the effect of termination and adoption on the tribal identity and financial benefits that might flow from that decision. This case involved the termination of parental rights of a child who was a member of the Sycuan Band of the Kumeyaay Nation.   The Nation was not made a party to the termination proceedings, though it did oppose the termation, favoring guardianship instead. 

The child was eligible for certain tribal rights and benefits, including a monthly stipend of $1,500 to a trust, an increased monthly stipend after age 18, a free higher education, housing on reservation land, and lifetime medical and dental coverage.  Counsel for the child argued that these benefits and their possible loss were irrelevant to the proceedings and that an investigation of this issue would also require testimony regarding the prospective adoptive family's financial ability, all of which he asserted would be entirely speculative. 

The Court of Appeals agreed that Counsel did not render ineffective assistance in taking this approach, as even if termination of parental rights caused the child to lose her tribal benefits, "there is no statutory mechanism that permits the court to consider those interests when it selects the child's permanency plan... There is no general best interest exception to termination of parental rights under [the California statutes governing termination]."  Since the court concluded that there were no facts that would fit the case within one of the statutory exceptions precluding termination of parental rights, counsel's decision was at worst harmless error.

A dissenting judge would have found counsel's obligation to include investigating the effect of termination on the child's tribal benefits.

In re Barbara R., 2006 Cal. App. LEXIS 384 (March 20, 2006)
Opinion on the web (last visited March 21, 2006 bgf)

Case Law Development: California Appeals Court Rejects Michael Jackson’s Bid to Uphold Termination Order

California's 2nd District Court of Appeals refused to uphold a parental termination order between Michael Jackson and Debbie Rowe in which she had agreed not to contact their children following their divorce in 2000. She later gave up her parental rights. However, in 2004 Ms Rowe persuaded a Los Angeles Superior Court judge to overturn the order terminating her parental rights.

Jackson argued that because he did not stipulate to terminate Ms. Rowe’s parental rights, did not sign any document agreeing to the termination, did not attend the hearing on her motion to terminate, and did not have any advance notice she intended to move to terminate her parental rights, that the public policy calling for rejection of stipulated agreements in termination cases was not applicable. The court, however, said that it found “substantial evidence” in the record supporting the trial court’s finding that the termination hearing was a stipulated proceeding.

The court said that the termination order exceeded the trial court’s jurisdiction and contravenes “the public policy favoring that a child has two parents rather than one.” It also said that a court cannot enter a judgment terminating parental rights “based solely upon the parties’ stipulation that the child’s mother or father relinquishes those rights. . . . Where the welfare of children is involved as in divorce cases, parents cannot by contract so bind themselves as to foreclose the court from an inquiry as to what that welfare requires.”

The court also said that even if Mr. Jackson was correct, and he did not effectively stipulate to terminate Ms. Rowe’s parental rights, the result would be no different if based solely on her uncontested motion to terminate her parental rights. The reason for this is that the trial court had granted the requested termination without first ordering an investigation of the children’s circumstances by the Department of Children and Family Services or other appropriate agency as required by Family Code. It held that Ms. Rowe’s collateral attack on that order was not precluded by California law. Source: BBC News, bbc.co.uk. Please click here for the complete news story (last visited February 19, 2006, reo). Download here the slip opinion of the California Court of Appeals, Second District, In_re_Michael_Jackson.pdf (reo)

Case Law Development: Delaware Supreme Court Holds that Parents have Right To Counsel in Private TPR Actions

In a termination of parental rights proceeding brought by a private party, the Supreme Court of Delaware holds that “Because the jeopardy to the parent's rights is identical [as in an action brought by the state], we hold that a parent's right to seek court-appointed counsel is the same regardless of who initiates a termination proceeding.”

Walker v. Walker, 2006 Del. LEXIS 81 (February 9, 2006)

Opinion on the web (last visited February 14, 2006 bgf)

Case Law Development: TPR may be based on default judgment in TPR of other child

The Wisconsin Court of Appeals affirmed partial summary judgment in a termination of parental rights case in which the grounds for termination was that Mother’s rights to another child were involuntarily terminated within the prior three years.  The court rejected Mother’s argument that, because the prior termination was by default, it should not provide a basis for a second TPR, or – at least – that the state should be required to prove that there was sufficient evidence in the first proceedings for termination.  The court rejected both arguments, noting that the statute only requires that the first termination be “involuntary” not “contested.”  Requiring the court in the second termination to review the sufficiency of the evidence in the first proceeding would simply open that proceeding to collateral attack.

In re Brianca M.W., 2006 Wisc. App. LEXIS 111 (February 7, 2006)(BGF)

Case Law Development: Prenatal Drug Exposure by Father Basis for Terminating Parental Rights

The Idaho Supreme Court affirmed termination of a father's parental rights based on abandonment in a case in which Father, a "chronic methamphetamine addict" had "endangered his unborn child by encouraging Baby Doe's mother to use drugs with [him] up to one month before his daughter's birth."  The magistrate concluded that these actions "showed no regard whatsoever for the health and well-being of his unborn daughter" and the Supreme Court agreed.  Despite Father's declaration that having a child had changed his life and he vowed to get straight and that the court could not conclude he had abandoned a child before he had even had a chance to parent the child, the court found that he failed to bond with their newborn in the three months of supervised visitation he was given immediately after the child's birth and up until he was incarcerated for drug violations and that it was in the child's best interest that Father's rights be terminated.

Casi Found., Inc. v. Doe (In re Doe), 2006 Ida. LEXIS 3 (January 24, 2006)
Opinion available on the web (last visited January 25, 2006 bgf)

Case Law Development: Court May Not Terminate Parental Rights Based Soley on Agreement of Parents

The California Court of Appeals reaffirmed today that parents may not, by mutual agreement, waive their obligations toward their children.  After the birth of their child, Mother and Father agreed that Father would pay Mother a lump sum of $6500 and that his parental rights would be terminated.  They sought the court's enforcement of their agreement, arguing that they should have the same rights to determine their parenthood as do persons conceiving children through artificial technologies.  The trial court accepted this argument, finding that the parents had made a careful consideration that the best interests of the child would not be served by the sporadic contact with Father that they envisioned for the future. 

The court of appeals reversed, holding that "Parents have no right, in California, to waive or limit by agreement a child's right to support.... Public policy intervenes to protect the child's continued right to support. A judgment so terminating parental rights and the attendant obligation to support the child is void as a breach of public policy and as an act in excess of the court's jurisdiction."   The court distinguished the situations in which a father's parental rights are terminated in sperm donor cases as instances in which agreements are made pre-conception and without which no child would be born.  The court concluded that the trial court had no power to terminate rights outside the statutory standards for dependency, emancipation and adoption proceedings.  The court concluded: "How can matters that reside in the realm of human emotion and the bonds of intimacy be subject to contract or agreement, let alone serve as a basis for a court decision?"

Kristine M. v. David P., 2006 Cal. App. LEXIS 34 (January 13, 2006)
Text of the opinion is on the web at http://www.courtinfo.ca.gov/opinions/documents/A109655.PDF (last visited January 13, 2006 bgf)

Case Law Development: Terminating Reunification Services to One Parent Only

The California Court of Appeals clarified the trial court's authority to terminate reunification services in child abuse and neglect actions.  In this case, the trial court had terminated father's reunification services at a 12-month review hearing, while at the same time extending reunification services to the child's mother to the 18-month review date. Father argued that this violated the trial court's statutory authority and was an abuse of discretion and a violation of his substantive due process. 

While noting that a trial court's discretion to terminate reunification services at an earlier stage is extremely limited, the court found that a trial court may terminate reunification services to a parent at the 12-month review and that it may do so without immediately setting the case for a termination of parental rights hearing. Moreover, the court found that "when reunification efforts continue for one parent after the 12-month review hearing, a court has the discretion to offer services to the nonreunifying parent, and in many cases may choose to do so. However, there is a secondary rationale for limiting services to the nonreunifying parent. The Legislature has recognized that in some circumstances, it may be fruitless to provide reunification services.... In such a case, the general rule favoring reunification services is replaced by a legislative assumption that offering services would be an unwise use of governmental resources.... Under these circumstances, the termination of reunification services to one parent is rationally related to the legitimate government interest in focusing government resources on the parent who has consistently visited the child, made significant progress in resolving problems, and demonstrated the capacity and ability both to complete the treatment plan and provide for the child's needs."

In re Alanna A., 2005 Cal. App. LEXIS 2028 (January 9, 2006)
Opinion on the web at http://www.courtinfo.ca.gov/opinions/documents/D046690.PDF (last visited January 10, 2006 bgf)

Case Law Development: Juvenile Courts May Hold Multiple Permanency Hearings

In a case of first impression, the Arizona Court of Appeals holds that in a proceeding for termination of parental rights, the statutory scheme does not prohibit more than one permanency hearing.  The children in this case were removed from the home and placed in foster care.  The court held a permanency hearing within 12 months of their entry into foster care, as required by statute, at which time the court approved a reunification plan.  Three months later, at a review hearing, the court found that the case plan should be changed to severance and adoption.  The state filed a motion for termination of parental rights.  Six months after the initial permanency hearing, the court held a pre-trial conference. Since Arizona Juvenile Court rules of procedure require termination trials to take place within 90 days of the permanency hearing, Mother requested that the motion for termination be dismissed.  The court did so, but also designated the pretrial conference as a permanency hearing.  The state re-filed the petition for termination and a trial was held two months later.  Thus the trial was timely if the second permanency hearing was proper but out of time if not.  The court held that nothing in the statutory scheme prohibited more than one permanency hearing and affirmed the juvenile court's order terminating Mother's parental rights.

Veronica T. v. Arizona Department of Economic Security, 2005 Ariz. App. LEXIS 170 (December 27, 2005) Opinion on the web at http://www.cofad1.state.az.us/opinionfiles/JV/JV050038.pdf (last visited December 29, 2005 bgf)

Washington Appeals Court Says Foster Children Who Habitually Violate Court Orders Can Be Jailed for Months

Youngsters who habitually violate court orders by running away from foster homes can be jailed for months for contempt of court. However, contempt may not to be used as a standard practice, a Washington state appeals panel ruled Tuesday. The unanimous decision by a three-judge panel upheld the use of “inherent contempt” by Yakima County Juvenile Court. Although  Washington State law permits the court to jail foster children for up to seven days, in this case the court used its “inherent power” to send three children to jail for 30 to 60 days. Source: AP, The Olypian, theolympian.com.  For more information, please click here (last visited December 25, 2005, reo).

The court opinion in In re the Dependency of A.K., 23018-0-III (Washington Court of Appeals 12/20/2005) can be found on the web at
http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.opindisp&docid=230180MAJ (last visited December 26, 2005 bgf)

Case Law Development: When is Spanking a Grounds for Termination of Parental Rights?

The Texas Court of Appeals concluded that "infrequent spankings of a child that leave "marks" or visible bruises 24 hours after the spanking" did not provide clear and convincing evidence of a parent's endangerment of the child to justify termination of parental rights.  The court's opinion explores the propriety of corporal punishment, noting that it is "an increasingly controversial subject."  The court cites a variety of cases from other jurisdictions and statistical reports on the declining frequency of corporal punishment, citing Deana Pollard, Banning Child Corporal Punishment, 77 TUL. L. REV. 575, 582 (2003).  The court also cited studies regarding the prevalence of corporal punishment and suggestions that this may be an effective discipline tool.  The court concluded that it is "not a court's function to determine whether parents measure up to an ideal, but to determine whether the child's welfare has been compromised." The court held that the evidence in this case was "both legally and factually insufficient to support a termination of parental rights."

In the Interest of J.A.J., 2005 Tex. App. LEXIS 10331  (December 13, 2005)
Opinion on the web at http://www.14thcoa.courts.state.tx.us/opinions/HTMLopinion.asp?OpinionID=81549 (Last visited December 19, 2005 bgf)

Case Law Development: Denying Termination of Parental Rights after a Finding of Parental Unfitness

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