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ADOPTION/Immigration
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
CHILD PROTECTION/Disposition
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)
CHILD PROTECTION/Adjudication
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
TERMINATION OF PARENTAL RIGHTS
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
TERMINATION OF PARENTAL RIGHTS
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.
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