Tuesday, December 20, 2005
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)
Sunday, December 18, 2005
The Supreme Judicial Court of Maine, in a 5-2 decision, reversed a trial court's determination that a Mother's parental rights should not be terminated even though it had found the Mother unfit. The trial court had found Mother unfit based on her "inability to identify men who present a risk of harm to herself and the children." Nonetheless, the court found that Mother had a strong bond with her two young children and that the children appeared to be doing well in the current situation of living with a foster family and visiting with Mother on weekends. Given that Maine has no open adoption, if Mother's parental rights were terminated and the foster parents were to adopt the children, the children would have no right to continued contact with Mother. Thus, the trial court had concluded that the current "equalibrium" was in the best interests of the children.
The supreme court held that the Maine statutes emphasize the importance of permanency and announced a new standard in applying the termination statute: "when a court applies the factors set forth in [the termination statute] to determine the best interest of a child for whom the court is considering the alternative of long-term foster care, it must address whether a compelling reason supports its conclusion that long-term foster care will serve the child's best interest over both the short and long-term." The court remanded to the trial court to consider its decision in light of this standard.
Dissenting justices would have left the enunciation of such a standard to the legislature.
In re Thomas H., 2005 ME 123 (December 14, 2005)
Opinion on the web at http://www.courts.state.me.us/opinions/2005%20documents/05me123th.htm (last visited December 17, 2005 bgf)
Tuesday, November 15, 2005
The South Dakota Supreme Court held that termination of parental rights actions are in the nature of a custody proceeding governed by the UCCJA. In this case, Mother and Father lived in Colorado. Father had been convicted of sexual assault and was imprisoned and mother was incapable of caring for their two children due to her drug addiction and other issues. Both sets of grandparents were vying for custody of the children. The Colorado court granted custody to the maternal grandparents, who lived in South Dakota. When Father was released from prison, both he and his parents filed an action in the Colorado courts for custody and visitation. Soon thereafter, the maternal grandparents filed an action in South Dakota for adoption and termination of Father's rights.
The maternal grandparents argued that South Dakota had jurisdiction because it was the only state that could grant the adoption (Colorado had no jurisdiction over adoption because the children no longer lived there). However, the South Dakota Supreme Court disagreed, noting that termination of parental rights must occur before an adoption can take place. The court held that, under the UCCJA, Colorado had continuing and exclusive jurisdiction over the case because termination of parental rights is a custody proceeding. Thus, maternal grandparents would be required to file an action for termination in Colorado first, and then, if successful, bring the action for adoption in South Dakota.
In the Matter of Adoption of H.L.C. and B.A.C., 2005 S.D. 110; 2005 S.D. LEXIS 172 (November 2, 2005)
Opinion on the web at http://www.sdjudicial.com/index.asp?category=opinions&nav=53&year=2005&month=11&record=1474 (Last visited November 14, 2005 bgf)
Friday, October 21, 2005
Case Law Development: Allowing Indigent Parents An Opportunity to Prove Ineffective Assitance of Counsel in Termination Cases
Concerned that indigent parents, whose parental rights have been terminated, are not given a realistic opportunity to develop a record on appeal due to the tight filing deadlines, the Texas Court of Appeals has held that appellate courts should use the remedy of abatement of the appeal and remand for the purposes of a developing a record when necessary to insure an adequate review of the issue of ineffective assistance of counsel. As the court noted, "In a parental-rights termination case where the parent asserts on appeal the ineffective assistance of trial counsel, but nothing in the record indicates trial counsel's reasons or strategies for the complained-of conduct, the lack of a record is practically always fatal to the parent's appellate issue under current Texas law." However because appeal must be taken within 30 days of the termination order, most indigent parents are unable to secure appellate counsel in time to develop this record. Thus, the court held that abatement and remand to the trial court for a "meaningful opportunity to develop an evidentiary record to support their ineffective assistance of counsel claims" is necessary to protect the parent's constitutional interests.
A brief but strongly worded dissent by one judge objects to "the new procedure created out of whole cloth by the majority" and asks, without elaboration, "Is it effective assistance of counsel or is it now the appointment of effective counsel?" Obviously the issue of how far appellate courts should go to review the conduct of attorneys in termination cases has been a point of some disagreement among members of the court for some time.
In the Interest of K.K., L.M., M.M., AND T.K., 2005 Tex. App. LEXIS 8647 (October 19, 2005)
Opinion on the web at http://www.10thcoa.courts.state.tx.us/opinions/HTMLopinion.asp?OpinionID=6898 & dissent at http://www.10thcoa.courts.state.tx.us/opinions/HTMLopinion.asp?OpinionID=6903 (last visited October 20, 2005 bgf)
Sunday, September 18, 2005
Case Law Development: Removing Children to Kinship Care in Another Country Superior to Termination of Parental Rights
The Iowa Court of Appeals reversed the termination of Mother’s parental rights in a case with international and cultural implications. The termination of Mother’s parental rights was based on her conviction of the federal crime of misprision of felony (not divulging information about a crime committed by the father of her children). The trial court’s best interests of the child determination disregarded the option of allowing the children to live in Mexico with Mother’s sister during the brief period of mother’s incarceration, because, during the 18 months the children were in five different foster homes in Iowa, they had “bonded into the English-speaking, Iowa culture.”
The court of appeals noted the overwhelming evidence that termination would not be in the best interests of the child and reversed. That evidence included favorable reports regarding the suitability of placing the boys in sister’s home -- reports that came from sources as diverse as the Mexican consulate, social workers in both countries, and even the boys’ current foster mother. In addition, all evidence pointed to the existence of an extremely strong mother-child bond, an “impeccable parenting history”, and the adaptability and resilience of the children. The court concluded that, while a conviction and sentence can serve as grounds for termination, in this case a termination would not serve the best interests of the children.
In the Matter of B.A. and R.A., 2005 Iowa App. LEXIS 1148 (September 14, 2005)
Opinion available on the web at http://www.judicial.state.ia.us/appeals/opinions/20050914/05-0011.asp (last visited September 17, 2005 bgf)
Tuesday, August 30, 2005
In re Dakota H., 2005 Cal. App. LEXIS 1351 (August 26, 2005)
This termination of parental rights case not only clearly describes the procedural stages of a termination case, but also demonstrates how the shift in the burden of proof and presumptions at various stages makes all the difference in the outcome. Moreover, the case is an example of a heart-wrenching story that leaves one wondering how well the legal system really serves the children and families involved.
Full text of opinion at: http://www.courtinfo.ca.gov/opinions/documents/D045824.PDF