NCALP Weekly Case Summary

October 5, 2012

If you are unable to access the links on this page click here. Follow us: CHILD PROTECTION NEBRASKA: In re Erick M. The Supreme Court of Nebraska affirmed the juvenile court’s judgment that denied appellant-juvenile’s motion requesting the juvenile court to issue an order finding that he was eligible for “special immigrant juvenile” (SIJ) status, holding that the juvenile court did not err in finding that appellant was not eligible for SIJ status because reunification with his mother was possible. Under 8 U.S.C. § 1101(a)(27)(J), a juvenile can petition for SIJ status if he can show that a state court has determined that he is a dependent or is in state custody, that “reunification with 1 or both” of the juvenile’s parents is not viable and that SIJ status is in the juvenile’s best interest. In this case, the reunification language was at issue. Appellant argued that he met the criteria because he could not be reunified with his father, whom he did not know, even though he could be reunified with his mother. Based on legislative history the appellate court concluded that Congress did not intend the statute to be disjunctive and held that the words “1 or both” in the statute did not mean a petitioner need to show only that reunification with one parent is not feasible. “If a juvenile lives with only one parent when a juvenile court enters a guardianship or dependency order, the reunification component … is not satisfied if a petitioner fails to show that it is not feasible to return the juvenile to the parent who had custody.” In this case, appellant was living with only his mother when he was adjudicated and there was no evidence that he would not be returned to his mother when he was discharged. Therefore, the appellate court affirmed the juvenile court’s judgment denying appellant’s request to be found eligible for SIJ status. Cite: No. S-11-919; 284 Neb. 340; 2012 Neb. LEXIS 104 (Neb. Sept. 14, 2012) Link to Full Opinion CHILD PROTECTION COLORADO: State ex rel. O.C. The Court of Appeals of Colorado, Division Seven, reversed the Jefferson County District Court order denying appellant-grandparents’ motion to intervene in the dependency proceeding, holding that grandparents are entitled to intervention as a matter of right under Colorado Law. The court interpreted C.R.C.P. 24 to permit intervention of interested parties in dependency and neglect proceedings and determined that the denial of appellants’ motion was a final, appealable order, citing People in Interest of M.D.C.M., 34 Colo. App. 91; People in Interest of C.P., 34 Colo. App. 54; Feigin v. Alexa Group Ltd., 19 P.3d 23. Here, the grandparents appealed the decision to deny their motion to intervene after the trial court concluded they did not meet the statutorily articulated custody requirement. However, the court determined that C.R.S. 19-3-507 was ambiguous and, relying on the legislature’s presumed knowledge of then existing law, determined that the custody requirement applied only to foster parents who wished to intervene. The court held that grandparents had the right to intervene in a dependency and neglect proceeding at any time after adjudication, regardless of whether the child was in their care. Accordingly, the denial of the motion to intervene was reversed and the case was remanded. Cite: No. 12CA0649; 2012 COA 161; 2012 Colo. App. LEXIS 1569 (Colo. Ct. App. 2012) Link to Full Opinion CHILD PROTECTION/Disposition ILLINOIS: People v. Bernadine L. (In re Rico L.) The Appellate Court of Illinois, First District, affirmed the Circuit Court of Cook County’s ruling vacating a protective supervision order and giving custody of appellant-adoptive mother’s child to DCFS, finding that the court had the right to do what was in the child’s best interests, even though it was not appellant’s fault that she could not meet the child’s needs. The court found that under In re P.P., 261 Ill. App. 3d 598, after a court has adjudicated a child neglected, it retains the right to alter the custody placement if the circumstances and best interests of the child warrant it. Here, appellant made an effort to care for the child, but her inability to deal with his repeated outbursts and psychiatric issues led the court to adjudicate him dependent; although he initially was placed in residential care, he was later returned home under an order of protective supervision. After the child did not show improvement, the court modified its decision, vacating the supervision order, finding appellant unable to care for the child, and granting custody to the DCFS. The court concluded that although the parties would have been better served by the filing of supplemental petitions or an order alleging a violation of the supervision order, the lower court still acted within its authority by considering the best interests of the child and modifying the order accordingly. See, In re C.H., 398 Ill. App. 3d 603. Cite: No. 1-11-3028; 2012 Ill. App. LEXIS 765; 2012 IL App (1st) 113028B (Ill. App. Ct., Sept. 14, 2012) Link to Full Opinion CHILD PROTECTION/Disposition NEW MEXICO: State ex rel. Children v. Laura, J. The Court of Appeals of New Mexico affirmed the district court’s order terminating appellant-mother’s parental rights, but remanded the case for further review after finding that appellee-department failed to consider appellant-Colin, mother’s cousin, as an appropriate relative placement for the child. The appellate court disagreed with appellant-mother’s argument that termination was improper, holding that there was clear and convincing evidence to support the termination of appellant-mother’s rights, finding appellee made reasonable efforts to accommodate her cognitive and emotional limitations through referral to services tailored to meet her needs, and that appellant-mother was afforded due process during the termination proceedings. Appellant-Colin argued that the district court erred by changing the child’s permanency plan from reunification to adoption without making reasonable efforts to identify and locate relatives as potential placements and that without the court first making the requisite finding that reasonable efforts with respect to placement of the child with him, progressing to the stage of termination of parental rights was improper. The appellate court first held that Colin had standing to appeal the termination order based on his party status as an intervenor in the underlying action. Next, the appellate court noted that under N.M.S.A § 32A-4-25.1, appellee-department “has a duty to make reasonable efforts to identify, locate, and conduct home studies on willing and appropriate relatives who could potentially serve as placement for a child.” Here, appellee-department knew about Colin’s interest in placement of the child and his certification as a foster parent for at least 3 months prior to changing the permanency plan to adoption, but did not consider placing the child with him. Therefore, the appellate court remanded the case to the district court in order for appellee-department to complete a home study on Colin and hold a hearing to determine the child’s best interests. Cite: No. 31,324; 2012 N.M. App. LEXIS 105 (N.M. Ct. App. Sept. 26, 2012) Link to Full Opinion TERMINATION OF PARENTAL RIGHTS WISCONSIN: Buffalo Cty. Dep’t. of Health & Human Servs. v. Jennifer C. The Court of Appeals of Wisconsin, District Three, affirmed the circuit court’s orders terminating appellant-mother’s parental rights to her three children, finding that the circuit court properly allowed a counselor to testify regarding the information that served as the basis of his opinions on appellant’s ability to complete her case plan within the next nine months. Here, appellant appealed the termination of her parental rights, arguing that the circuit court erred in admitting evidence regarding her past in the counselor’s report which stated that she suffered from post-traumatic stress disorder which impeded her ability to meet the needs of her children. The evidence specifically related to appellant’s childhood and three other children as to whom she had lost parental rights. The appellate court disagreed with appellant, finding that under Wisc. Stat. 907.03, the evidence was admissible because it formed the basis of the counselor’s opinions and his opinions were relevant as to whether mother would be able to complete her case plan within the next nine months. Therefore, the appellate court affirmed the circuit court’s order terminating parental rights. Cite: No. 2012AP1562, 2012AP1563, 2012AP1564; 2012 Wisc. App. LEXIS 756 (Wis. Ct. Ap. Sept. 25, 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.