Friday, May 25, 2012

NCALP Weekly Case Summary

May 25, 2012
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in Adoption and Child Welfare Topics
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PENNSYLVANIA: In re Adoption S.P. 

The Supreme Court of Pennsylvania reversed the superior court and reinstated the trial courts order terminating the appellant-fathers parental rights, holding that the trial court did not err when it considered appellant-fathers incarceration when making the termination decision as incarceration is one factor to consider and can be determinative of whether a parent is incapable of providing essential parental care, control or subsistence to their child. The supreme court noted that a trial court may terminate a parents rights under 23 Pa.C.S. § 2511(a)(2) if it finds evidence that, the repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control, or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will be remedied by the parent. Here, the trial court terminated appellant-fathers rights after finding that there was ample evidence to support termination under § 2511(a)(2) because the father and child did not have a relationship since he had been incarcerated during the childs entire life, father would not be able to provide for the child in the near future even if he was released due to his parole requirements, and the child had a strong bond with her half-sister which would be broken if she resumed a relationship with father. Appellant-father appealed the decision, claiming that the trial court impermissibly terminated his parental rights based upon his incarceration alone. The supreme court disagreed, finding that incarceration is one factor to be considered by the trial court and neither compels nor precludes termination, but it can be a determinative factor if it has and will continue to cause the child to be without proper care. The supreme court agreed with the trial court findings that there was ample evidence to support termination based upon appellant-fathers incarceration and lack of relationship with his child, and, therefore, the court reinstated the trial courts termination order.
Cite: No. 40 WAP 2011; 2012 Pa. LEXIS 1168 (Pa. May 17, 2012)

Link to Full Opinion

OHIO: In re J.T.F.

The Court of Appeals of Ohio, Second Appellate District, Greene County affirmed the probate courts order which denied appellant-legal custodians motion to intervene in a proceeding on appellees petition to adopt the minor child, holding that appellant did not have a legally protected interest in the childs adoption and had no claim or defense to present in the proceeding and, therefore, was not entitled to intervene in the proceeding. First, the court noted that in order to have a right to intervene under Civ. R. 24(a), a movant must claim an interest in the matter of the suit, and that the interest must be direct, substantial and legally protectable. Here, appellant was appointed as the childs legal custodian by the county juvenile court during a dependence proceeding. During the course of the dependency proceedings, the childs mother filed a petition in the probate court to place the child with appellees for the purposes of adoption. Appellant-legal custodian filed a motion to intervene in the adoption proceedings, but the probate court denied the motion. On appeal, appellant argued that she was entitled to intervene because as legal custodian she was entitled to consent to the adoption under 3107.06(D), which states consent must be given by any person or agency having permanent custody of the minor. The appellate court disagreed, finding that a legal custodian does not have permanent custody of a minor because permanent custody as defined by R.C. 2151.011(B)(32) gives all parental rights, duties, or obligations, to a public children's services agency or a private agency, not an individual person. Therefore, because appellant did not have a right to consent to the adoption, the court held that she did not have a legally protected interest or right to intervene in the adoption proceeding. In addition, the court found that appellant was not entitled to permissive intervention under Civ. R. 24(B) because she had no claim or defense to present at the adoption hearing as she was, again, not entitled to consent to the adoption. Therefore, the court of appeals held that the motion was properly denied by the probate court.
Cite: No. 12-CA-03, 2012 Ohio 2105; 2012 Ohio App. LEXIS 1845 (Oh. Ct. App. May 11, 2012)
TEXAS: Larson v. Giesenschlag 
The Court of Appeals of Texas, Third District, Austin, reversed the decision of the District Court of Comal County terminating appellant-fathers parental rights, holding that the trial court abused its discretion in denying appellants request to participate in the proceedings. Under Dodd v. Dodd, 17 S.W.3d 714, the court determined that all litigants have a constitutional right to be heard in a meaningful manner; an inmates right is not about his personal presence, but rather about his opportunity to present evidence to contradict that of the opposing party. Here, appellant was incarcerated at the time of the termination hearing and, although appellee-maternal grandfather did not dispute appellants right to be heard, he argued that appellant waived that right by failing to request an appearance. Relying on In re Daugherty, 42 S.W.3d 331, the court found that a litigant could request an opportunity to be heard through his or her actions, even if the request is not explicitly stated. Because appellant requested a continuance until he was able to participate, and further attempted to file objections and affidavits, the court determined that he had effectively requested an opportunity to be heard. Finding that the trial court had a duty to allow appellant to participate in some manner, whether personally or otherwise, the court reversed the judgment of the lower court and remanded the case for further proceedings. Cite: No. 03-10-00627-CV, 2012 Tex. App. LEXIS 3783 (Tex. Ct. App. May 11, 2012)

Link to Full Opinion

FLORIDA: Dept. of Children & Family Servs. v. K.D. 

The Court of Appeal of Florida, Second District, reversed the Circuit Court for Hillsborough Countys decision to grant permanent guardianship to the grandparents, rather than terminate the parental rights of the mother and father, holding that the trial court misapplied the least restrictive means test. Under Padgett v. Dept of Health & Rehabilitation Servs., 577 So.2d 565, the court found that termination of parents rights to one child based upon the abuse of a sibling was appropriate only when it could be determined that reunification would pose a substantial risk to the second child and that termination would be the least restrictive means of protecting the child from serious harm. Here, appellants-Department of Children Services and GAL sought to terminate both parents rights with respect to a set of twins, although the evidence showed that only one child had been abused. The appellate court determined that the trial court had properly considered the totality of the circumstances to find a nexus between the abuse of one child and the substantial risk of harm to the sibling. Under In re T.M., 641 So.2d 410, the court further found that the least restrictive means test did not require a good faith effort to rehabilitate the parent in instances of egregious abuse, and further found that the lower court erred in finding that the appellants failed to show that termination was the least restrictive means. The court additionally held that, even if the lower court had properly applied the test, it was precluded from granting permanent guardianship to the grandparents as a matter of law. The court determined that, by sua sponte placing the children, the trial court not only failed to order a statutorily authorized deposition, but also effectively modified the case plan for adoption without proper notice. Because the lower court erred in denying the petition for termination of parental rights and in granting permanent guardianship to the grandparents, the case was reversed and remanded.
Cite: No. 2D10-3474; 2012 Fla. App. LEXIS 7202 (Fla. App. Ct. May 9, 2012)
Link to Full Opinion


The Court of Appeals of California, Fourth Appellate District, Division Three, affirmed the juvenile courts order that siblings, A. and Ad., be placed separately, holding that the juvenile court was correct in rescinding its earlier order that the siblings not be placed in separate foster homes. Californias Welfare and Institutions Code § 16002 requires that siblings removed from their home and be placed together unless it has been determined that placement together is contrary to the safety or well-being of any siblings. Furthermore, §16002 requires the responsible agency to make a diligent effort to place siblings in the same foster care placement. In this case, the siblings had been in an emergency group home shelter for more than eight months, the appellee-agency had not been able to find any foster placement willing to accept them together, and at a meeting with all the professionals involved in the childrens case, it was collectively determined that it would be in each childs best interest to try to secure separate foster placements for them. Therefore, because appellee-agency had made significant efforts to place the children together and the professionals collectively agreed that separate placement would be in the childrens best interest, the juvenile court did not err when it rescinded its previous order requiring the children to be placed together. In addition, the appellate court held that the juvenile court did not err when it granted appellee-agencys request to administer psychotropic medication to Ad. without providing appellant-mother with a hearing on the matter. The appellate court noted that the juvenile court was correct in denying appellant-mothers request because it was untimely, but also noted that in the appellate courts view the rule regarding timeframes for requesting hearing on psychotropic medications needs to be amended as the timeframes are confusing.
Cite: No. G045896; 2012 Cal. App. LEXIS 569 (Cal. App. 4th Dist. May 15, 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.

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