NCALP Weekly Case Summary

January 25, 2012

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Capital University Law School The National Center for Adoption Law & Policy proudly announce the seventh annual Child Welfare & Adoption Law Moot Court Competition March 9-10, 2012 Columbus, Ohio This year's problem is "Rethinking Permanency for Older Youth" and 21 teams from law schools around the country have registered to compete. We are in need of several attorneys to volunteer to judge the competition rounds and hope you might be interested. You may view the times for the rounds and also register to judge via the competition webpage at: http://law.capital.edu/mootcourt.aspx.

ADOPTION
ALASKA: In re Adoption of Xavier K.
In a de novo review, the Supreme Court of Alaska affirmed the superior court’s denial of appellant-biological mother’s petition to adopt her biological son, concluding “a biological parent adoption is permissible only where the petitioning parent does not have a legal parent-child relationship with the child.” Here, appellant-mother petitioned to adopt her son, alleging appellee-biological father’s consent was not needed due to abandonment, in an attempt to terminate appellee-biological father’s parental rights. The supreme court noted that there are two ways to involuntarily terminate a parent’s rights, adoption and proceedings under the Children in Need of Aid statute; an adoption operates to replace a parent, while a CINA proceeding emancipates the child from a parent’s legal bond. Here, appellant-mother’s petition was impermissible because she did not seek to replace appellee-biological father with another legally obligated adult and there was no pending CINA proceeding. In addition, the supreme court noted that the adoption statute allows a biological parent to adopt his or her child “for the purpose of creating the relationship of parent and child between them.” Here, appellant-mother and the child had an already established parent-child relationship, and therefore, appellant-mother did not qualify to adopt.
Cite: No. S-13838, 2012 Alas. LEXIS 6 (Alas. Jan. 13th, 2012)
Link to Full Opinion

TERMINATION OF PARENTAL RIGHTS

UTAH: K.F. v. State (State ex rel. S.F.)

The Court of Appeals of Utah affirmed the Fourth District Juvenile Court’s decision terminating the parental rights of appellant-father, holding that the lower court retained jurisdiction and dispositional authority over appellant-father’s children even after restoring them to appellant’s legal custody, and that it was in the children’s best interest to later terminate those rights. The court stated that under Utah Code Ann. § 78A-6-103, once a child has been adjudicated abused, neglected, or dependent, the court retains dispositional authority over the children as long as the court does not dismiss the case or terminate jurisdiction. Here, the court returned the children to appellant, but did not terminate the case and, therefore, retained subject matter jurisdiction when the children were subsequently returned to the department’s custody. Because the lower court retained jurisdiction over the children and did not alter the children’s status as neglected, it was not required to restart the child welfare proceedings upon their return to the department’s custody. The court was also not required to re-adjudicate the children before later terminating appellant’s parental rights. The appeals court also determined that the lower court did not violate appellant’s due process rights by denying his request for additional reunification services, holding that appellant had already received a year’s worth of services and that the court had discretion to deny such request under Utah Code Ann. § 78A-6-312. The court, in addition, rejected appellant’s argument that he was entitled to a permanency hearing within 30 days of dispositional hearing, as his rights were terminated before the deadline passed. Finally, the court of appeals found sufficient evidence to support the finding that appellant was unfit, based on the fact that he refused to cease contact with the children’s mother, and further put the children in violent situations. Additionally, the court found that the children’s emotional and mental needs were properly considered in determining that termination of appellant’s rights was in their best interest.
Cite: No. 20090484-CA; 2012 UT App. 10; 2012 Utah App. LEXIS 10 (Utah Ct. App. January 12th, 2012)

Link to Full Opinion

CHILD PROTECTION/Custody
NEBRASKA: State v. Marcos A. (In re Marcos S.A.)
The Nebraska Court of Appeals reversed the Juvenile Court of Douglas County’s order granting permanent custody of the children to the biological mother and relieving the court of jurisdiction over the children, holding that appellant-father’s procedural due process rights had been violated. The court held that, under In re Interest of Mainor T. & Estela T., 267 Neb. 232, notice must be reasonably calculated to inform a person of the subject and issues involved in a proceeding in order to satisfy due process requirements. The court also stated that an interested party must be afforded a reasonable opportunity to confront witnesses and present evidence. Here, the parties participated in seven review and permanent placement hearings with respect to the children. At the final hearing, the lower court, on its own motion, awarded permanent custody to the mother, although no party was informed that the issue of custody would be determined at that time. The Nebraska Court of Appeals found that although the lower court had jurisdiction to determine the custody of the children, it was not properly done at that hearing as appellant had not been given proper notice.
Cite: No. A-11-335; 19 Neb. App. 426; 2011 Neb. App. LEXIS 186 (Neb. Ct. App. Dec. 20, 2011)
Link to Full Opinion

ADOPTION/Rights of Biological Relatives
GEORGIA: Hudgins v. Harding
The Court of Appeals of Georgia, Third Division, reversed the trial court’s order denying appellant-biological grandmother’s petition for grandparent visitation rights, finding that the trial court erred in dismissing the petition based upon an obsolete version of the Grandparent Visitation Statute. The trial court denied appellant-grandmother’s visitation petition, finding that she was not eligible to seek visitation because the child was adopted by her step-father, not a blood relative. The court of appeals disagreed, finding that the current statute allowed biological relatives to seek visitation, subject to certain limitations, if the child was adopted by a blood relative or step-parent. The court of appeals reversed the trial court’s order and remanded the case to the trial court for further findings in relation to the correct statutory language.
Cite: No. A11A2247, 2012 Ga. App. LEXIS 37 (Ga. Ct. App. Jan. 18, 2012)
Link to Full Opinion

                

The preceding are summaries of adoption /child welfare law cases prepared by The National Center for Adoption Law & Policy. These summaries are provided for your convenience and information only and are not intended to be complete statements of the law embodied in the cases, interpretations of the law, or expressions of opinion as to the status of the law.  Some of the cases summarized may not be deemed "final" or "published" under the law of the jurisdiction in which the case was decided; such cases may therefore have limited precedential value.  For specific guidance on an adoption law issue, or for an interpretation of or an opinion about the law, we suggest that you consult a legal professional who is familiar with the laws of your jurisdiction.