August 7, 2013
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ADOPTION/Subsidies
Cite: No. 12-2147; 2013 U.S. App. LEXIS 13605, 2013 WL 3336822 (4th Cir. S.C. July 3, 2013) Link to Full Opinion ARTIFICIAL REPRODUCTION WISCONSIN: Rosecky v. Schissel In an appeal before the court on certification by the court of appeals, the Supreme Court of Wisconsin reversed the circuit court’s determination that a parentage agreement between the parties to a surrogate pregnancy was not enforceable and its award of sole custody to the biological father and visitation to the biological mother/surrogate. The Roseckys entered into a parentage agreement with their friends the Schissels in which the parties agreed that Monica Schissel would become pregnant via artificial insemination with her egg and David Rosecky’s sperm. The parties further agreed that Monica would have no legal relationship with the child, nor would she have formal custody or visits with the child. All parties were represented by attorneys when entering the agreement. After Monica became pregnant, the parties had a falling out and Monica decided that she did not want to terminate her parental rights to the child. After the child’s birth, David was adjudicated as the father and the Roseckys were named the child’s guardians; Monica moved the circuit court for increased custody and placement of the child. The Roseckys argued that the parentage agreement was a valid contract and should be specifically performed. The circuit court found the parentage agreement to be unenforceable because it required Monica to terminate her parental rights; the Roseckys appealed and the court of appeals certified to the supreme court the question “whether an agreement for the traditional surrogacy and adoption of a child is enforceable.” First, the supreme court held that the parentage agreement, outside of the provisions regarding termination of the surrogate’s parental rights, was a valid, enforceable contract unless enforcement was not in the child’s best interests. Second, the court held that traditional contract defenses apply to parentage agreements. Finally, the court determined that the circuit court erred in making its custody decision without considering the parentage agreement. Therefore, the supreme court reversed the circuit court’s decision and remanded the case to the court for further proceedings. Cite: No. 2011AP2166; 2013 WI 66 (Wis. July 11, 2013) Link to Full Opinion
ADOPTION/Jurisdiction
KANSAS: In re Adoption of H.C.H. The Supreme Court of the State of Kansas reversed the court of appeals’ decision that affirmed the district court’s ruling that Kansas courts do not have jurisdiction over appellant-stepfather’s petition to adopt because a Mississippi court had entered a child-custody order involving the same child 12 years prior, holding that the lower courts erred in applying the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) to the case rather than K.S.A. 59-2127. The supreme court first noted that the lower court erred in relying on In re Adoption of Baby Girl B., 19 Kan. App. 2d 283 to support the conclusion that the UCCJEA provisions should apply, as the Kansas legislature had passed new pertinent legislation since that case had been decided. The supreme court thus looked at the new legislation and determined that K.S.A. 59-2127 applies to adoption petitions in which there was a previous child custody proceeding in another state and the UCCJEA applies only when K.S.A. 59-2127 incorporates its provisions. Second, the supreme court determined that the district court must apply K.S.A. 59-2127 to determine if the Mississippi court has continuing jurisdiction over the child-custody determination and, if it does, the district court must then determine if Mississippi is a convenient forum for the case under the provisions of K.S.A. 2012 Supp. 23-37,307. Therefore, the supreme court reversed the previous decisions in this case and remanded to the district court for further proceedings consistent with its decision.
TERMINATION OF PARENTAL RIGHTS/Procedure
MARYLAND: In re Adoption of Jayden G. The Court of Appeals of Maryland affirmed the Court of Special Appeals’ ruling that affirmed the juvenile court’s denial of appellant-mother’s motion to stay the termination of parental rights proceedings while her appeal of the plan change was pending and, in addition, affirmed the ultimate termination of appellant-mother’s parental rights, concluding that both actions were appropriate because they were in the child’s best interest. Here, appellant-mother appealed the juvenile court’s order changing the permanency plan from reunification to adoption in her child’s CINA case; this order triggered the department’s filing of the termination of parental rights petition. Appellant-mother filed a motion to stay the termination case until after her appeal of the change in the plan had concluded; the juvenile court denied her motion to stay. While the appeal was pending, appellant-mother’s parental rights to the child were terminated. Subsequently, the court of special appeals ruled in appellant-mother’s favor regarding the plan change, but her rights had already been terminated. Appellant-mother then appealed the order terminating her parental rights arguing that her rights should not have been terminated while the other appeal was pending; the court of special appeals affirmed the termination order. Upon review of both of the appeals, the court of appeals first held that the decision as to whether to stay the termination proceedings while an appeal of the plan change is pending is within the discretion of the juvenile court, but should be based upon what is in the child’s best interest. The court of appeals noted that the juvenile court was correct to denial appellant-mother’s motion to stay because the child had been in foster care for 27 months and further delay was not in his best interest. Second, the court of appeals concluded that termination of appellant-mother’s parental rights was warranted because there was ample evidence to show that appellant-mother was unfit and termination was in the child’s best interest. Therefore, the court of appeals affirmed the court of special appeals’ rulings.
CHILD PROTECTION/Disposition
Cite: No. 2209 EDA 2011; 2013 Pa. Super. LEXIS 1611; 2013 PA Super 165 (Pa. Super. Ct. July 3, 2013) Link to Full Opinion |
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