Monday, May 13, 2013

NCALP- Weekly Case Summary

May 13, 2013

If you are unable to access the links on this page click here.
Follow us: NCALP - Facebook Blog - NCALP
CONNECTICUT: Adem v. Napolitano

The United States District Court for the District of Connecticut granted plaintiff’s motion for summary judgment in his case challenging defendant-United States Citizenship & Immigration Services’ (USCIS) denial of his I-730 Asylee Relative Petition on behalf of his asserted adoptive daughter, finding that the USCIS’s decision to deny the application was arbitrary and capricious. Here, plaintiff, who was granted asylum in the United States in 2006, petitioned defendant to grant asylum to his biological sister whom he claims is his adopted daughter. Plaintiff presented evidence showing that his sister had lived with him in Ethiopia from 1992 -2002 when he fled to the United States, he had continued to support her since that time, and he had received an Ethiopian community court decision showing he had adopted her through a customary adoption in Ethiopia. The USCIS denied the petition stating that plaintiff had not presented evidence sufficient to establish that he had adopted his sister through a customary adoption because at the time his sister moved in with him he had not yet reached the age of twenty-five, which was the required age for an adoptive parent under the Ethiopian Family Code of 2000. In addition, USCIS found that for immigration purposes, the adoption was finalized in 2007, the date the Ethiopian community court recognized the adoption, at which point the sister was 20 and, therefore, the adoption did not meet the immigration requirement of occurring before the adoptee’s 16th birthday. Plaintiff filed a complaint in the district court seeking review of the USCIS’ decision and subsequently filed a motion for summary judgment. The district court granted plaintiff’s motion for summary judgment finding the USCIS’ decision was arbitrary and capricious because it misapplied Ethiopian law, improperly discredited plaintiff’s expert, and misinterpreted the Ethiopian community court’s decision. First, the district court found that Ethiopia’s 1995 Report to the United Nations explicitly provided that adoptions in Ethiopia occur both through a customary process and a legal process under the 1960 Civil Code and that customary adoptions had the legal effect to provide the adoptive child rights to maintenance and inheritance from the adoptive parents. Second, the district court found that the Ethiopian court decision affirmed that a customary adoption had occurred in 1992. Finally, the district court noted that the USCIS’ reliance on the Ethiopian Family Code of 2000 was clear error as the relevant facts of the case took place in 1992, and the law did not apply retroactively. Therefore, the district court granted plaintiff’s motion for summary judgment and remanded the case for further review.
Cite: No. 12cv646; 2013 U.S. Dist. LEXIS 60724 (D. Conn. April 29, 2013)

Link to Full Opinion
OREGON: Dep’t. of Human Servs. V. J.R.L. (In re A.L.)
The Court of Appeals of Oregon reversed and remanded the juvenile court’s judgment denying appellant-mother’s motion to dismiss jurisdiction and wardship over her daughter and changing the permanency plan from reunification to adoption, concluding that the juvenile court erred in relying on facts outside the previous jurisdictional judgment. Appellant-mother’s daughter was placed in appellee-department’s custody and made a ward of the court after the juvenile court determined it had jurisdiction based upon appellant-mother’s admissions that she had allowed her daughter to be as risk of harm by living with a sexual offender, failed to provide stable housing and failed to meet her daughter’s educational needs. Subsequently, appellant-mother moved away from the sexual offender and worked on finding stable housing, but did not address her depression which was diagnosed during a psychological examination. At the end of a permanency hearing at which appellee-department sought to change the permanency plan from reunification to adoption, appellant-mother moved to have jurisdiction over her daughter terminated because the conditions alleged no longer existed; the juvenile court denied appellant-mother’s motion and changed the permanency plan to adoption. Appellant-mother appealed, arguing that the juvenile court improperly based its decision on mother’s mental health which was not one of the original issues. The court of appeals agreed with appellant-mother’s argument, holding that “a juvenile court cannot base it jurisdictional decision on facts that depart from the petition or jurisdictional judgment when neither the petition nor the jurisdictional judgment would put a reasonable parent on notice of what the parent must do to prevent the state from asserting or continuing jurisdiction over the child.” Here, the juvenile court based its decision upon mother’s mental health rather than the conditions that were present at the beginning of the case. Therefore, the appellate court reversed the juvenile court’s judgment and remanded the case in order for the juvenile court to reconsider the mother’s motion without relying on appellant-mother’s mental health.
Cite: No. A152500; 2013 Ore. App. LEXIS 474 (Ore. Ct. App. April 24, 2013)
NEW YORK: Admin. For Children’s Services v. Antoine N. (In re Dashawn W.)
The Court of Appeals of New York affirmed the appellate division’s order which found that appellant-father’s conduct was sufficient to demonstrate depraved indifference to his child’s life and, therefore, his children were severely abused and further found that the family court properly determined that aggravated circumstances excused appellee-Administration for Children’s Services from exercising diligent efforts to reunite appellant-father with his children. Appellant-father argued that his children were not “severely abused” as he did not demonstrate a “depraved indifference to human life” as defined by Penal Law. The Court of Appeals disagreed, holding that “jurisprudence under the Penal Law has no bearing on whether a child is severely abused within the meaning of Social Services Law § 384-b(8)(a)(i). For the purposes of that statute ‘circumstances evincing a depraved indifference to human life’ refers to risk intentionally or recklessly posed to the child by the parent’s abusive conduct.” In addition, appellant-father argued that appellee was required to make diligent efforts to reunify him and his children because a finding of “severe abuse” does not excuse the reunification requirements. The court of appeals disagreed again, holding that the family court properly found that diligent efforts to encourage reunification would be against the children’s best interests. Therefore, the court of appeals affirmed the appellate divisions order finding appellant’s children to be severely abused and excusing the appellee from making diligent efforts to reunite the family.
Cite: No. 71; 2013 N.Y. LEXIS 837; 2013 NY Slip Op 2774 (N.Y. April 25, 2013)

Link to Full Opinion
MASSACHUSETTS: Adoption of Norbert
The Appeals Court of Massachusetts affirmed the juvenile court’s decree terminating appellant-mother’s parental rights and dispensing with her consent to her children’s adoption, finding that although the trial judge’s conduct throughout the life of the case went beyond what was called for, it did not violate appellant-mother’s due process rights. Here, appellant-mother claimed that the termination decree should be reversed because the juvenile court judge erred by failing to recuse himself from the trial and acted improperly by questioning the witnesses extensively. The appellate court first found that the judge was not required to recuse himself because although the judge had been highly critical of the appellee-department’s actions in the case, the record failed to show any bias or prejudice towards appellant-mother. Second, the appellate court noted that although the judge did question the witnesses excessively during the trial, asking over 1,000 questions, there was no evidence that his behavior prejudiced appellant-mother in any way. Therefore, the appellate court affirmed the decree terminating appellant-mother’s parental rights.
Cite: No. 12-P-651; 2013 Mass. App. LEXIS 62 (Mass. Ct. App. April 25, 2013)

Link to Full Opinion
ADOPTION/Grandparent Visitation
LOUISIANA: Rogers v. Pastureaut
The Court of Appeal of Louisiana, First Circuit, affirmed the lower court’s judgment granting grandparent visitation rights to appellee-grandparents, the parents of the children’s deceased mother, finding that the lower court did not err in granting the grandparents visitation petition and finding appellant-parents in contempt. Here, appellee-grandparents filed a petition for visitation with their grandchildren after appellant-father, their former son-in-law, refused to allow them to have contact with the grandchildren after their daughter, the children’s mother, passed away from cancer. After the visitation petition was filed, the children’s step-mother adopted the children. Subsequently, the lower court granted the grandparents’ petition and found appellant-parents were in contempt for failing to facilitate the intermediate orders of visitation; appellant-parents appealed. First, the appellate court concluded that the ruling in the matter was properly rendered under LSA-R.S. 9-344, which states that grandparents can obtain visitation upon death of a party to the marriage, rather than LAS-Ch.C. art 1256, which provides for limited visitation by grandparents after an adoption, because appellee grandparents filed their petition prior to the adoption and because LSA-C.C. art. 136(E) provides that in event of a conflict, LSA-R.S. 9-344 must supersede the other grandparent visitation statutes. Second, the appellate court found that the lower court’s judgment did not violate appellant-parents’ constitutional rights as the lower court provided deference to the parents’ decisions, but ultimately found that visitation would be in the children’s best interest. Therefore, the appellate court affirmed the lower court’s judgment granting appellee-grandparents visitation with the children.
Cite: No. 2012 CU 2008; 2012 2008 (La. App. 1 Cir. 04/26/13); 2013 La. App. LEXIS 850 (La. Ct. App. April 26, 2013)
Link to Full Opinion
ARIZONA: Roberto F. v. Arizona Dep’t. of Economic Security The Court of Appeals of Arizona, Division One, Department D, vacated the trial court’s judgment terminating appellant-father’s parental rights, finding that the evidence was insufficient to support termination. First, the appellate court concluded that the trial court did not err in allowing the children’s foster parents to intervene in the dependency case based upon its finding that there were common questions of law and fact between the foster parents’ pending termination petition and the dependency proceeding. Further, the appellate court noted that there was sufficient evidence to show that the trial court could have reasonably determined that any prejudice suffered by appellant-father based upon the foster parents’ intervention was outweighed by the best interests of the children. Second, the appellate court found that the trial court erred in basing its termination judgment on the grounds of abandonment because this ground for termination was not added until the very end of the trial and appellant-father was, therefore, substantially prejudiced as he was unable to defend himself against the abandonment allegation. Finally, the appellate court found that although the children had been in care for 15 months, there was not sufficient evidence to show that appellant-father was incapable of providing proper and effective parental care in the near future. Appellant-father had completed everything the department had asked of him and had shown great progress in his parenting. Therefore, the court of appeals vacated the judgment terminating appellant-father’s parental rights.
Cite: No. 1 CA-JV 11-0253; 2013 Ariz. App. LEXIS 84 (Az. Ct. App. April 30, 2013)
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.

No comments:

Post a Comment