Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Tuesday, April 25, 2006

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)

April 25, 2006 in Termination of Parental Rights | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 21, 2006

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)

March 21, 2006 in Termination of Parental Rights | Permalink | Comments (0) | TrackBack (0)

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)

March 21, 2006 in Adoption, Termination of Parental Rights | Permalink | Comments (0) | TrackBack (0)

Sunday, February 19, 2006

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, 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)

February 19, 2006 in Termination of Parental Rights | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 14, 2006

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)

February 14, 2006 in Termination of Parental Rights | Permalink | Comments (0) | TrackBack (0)

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)

February 14, 2006 in Termination of Parental Rights | Permalink | Comments (0) | TrackBack (0)

Friday, January 27, 2006

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)

January 27, 2006 in Termination of Parental Rights | Permalink | Comments (0) | TrackBack (0)

Sunday, January 15, 2006

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 (last visited January 13, 2006 bgf)

January 15, 2006 in Termination of Parental Rights | Permalink | Comments (0)

Tuesday, January 10, 2006

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 (last visited January 10, 2006 bgf)

January 10, 2006 in Termination of Parental Rights | Permalink | Comments (0)

Friday, December 30, 2005

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 (last visited December 29, 2005 bgf)

December 30, 2005 in Termination of Parental Rights | Permalink | Comments (0)

Sunday, December 25, 2005

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,  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 (last visited December 26, 2005 bgf)

December 25, 2005 in Termination of Parental Rights | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 20, 2005

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 (Last visited December 19, 2005 bgf)

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December 20, 2005 in Child Abuse, Termination of Parental Rights | Permalink

Sunday, December 18, 2005

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

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 (last visited December 17, 2005 bgf)

December 18, 2005 in Termination of Parental Rights | Permalink

Tuesday, November 15, 2005

Case Law Development: Jurisdiction of TPR and Adoption Cases under UCCJA

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 (Last visited November 14, 2005 bgf)

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November 15, 2005 in Adoption, Termination of Parental Rights | Permalink | Comments (0)

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 & dissent at (last visited October 20, 2005 bgf)

October 21, 2005 in Termination of Parental Rights | Permalink

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 (last visited September 17, 2005 bgf)

September 18, 2005 in Termination of Parental Rights | Permalink

Tuesday, August 30, 2005

Case Law Developments: A Case Study of Termination of Parental Rights Procedures

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:

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August 30, 2005 in Termination of Parental Rights | Permalink