Tuesday, November 5, 2013

NCALP- Weekly Case Summary

November 5, 2013
If you are unable to access the links on this page click here.
Follow us: NCALP - Facebook Blog - NCALP


November is National Adoption Month, a month set aside to raise awareness about the critical need for permanent homes for children in foster care. National Adoption Day will take place Wednesday, November 20, 2013 from 1:00 PM - 4:00 PM in Columbus, Ohio at the Franklin County Probate Court.

For more information on National Adoption Day, go to:
NEVADA: St. Mary v. Damon

In a de novo review, the Supreme Court of Nevada reversed the district court’s order which found appellant-birth mother was merely a surrogate, not a legal parent of the child, and refused to uphold a co-parenting agreement between the appellant and the appellee, the biological mother, concluding that the district court erred in failing to hold an evidentiary hearing on the matter of parentage. Here, appellant-birth mother gave birth to a child through in vitro fertilization using appellee-biological mother’s egg and an anonymous sperm donor. During the pregnancy, the couple entered into a co-parenting agreement, which provided that if the relationship ended both women would share the duties of raising the child. After the child was born, the couple’s relationship ended and appellee-biological mother filed a successful petition to be added to the child’s birth certificate as the mother. Appellant-birth mother then filed suit seeking custody and visitation with the child. After looking at the birth certificate order and concluding that biological mother’s status as the sole legal parent had already been determined, the district court limited its consideration to whether appellant was entitled to third-party visitation and barred consideration of her assertion of custody rights. After the hearing on visitation, the district court determined that appellant could not be awarded custody because previous orders determined she had no “biological or legal rights whatsoever,” and also concluded that the co-parenting agreement was void because surrogate agreements were only for married couples, which can only include one man and one woman under Nevada law. The supreme court disagreed, first concluding that “the Nevada Parentage Act and its policies permit a child created by artificial insemination, where one woman had her egg fertilized by a sperm donor and implanted into her female partner, to have two legal mothers.” Additionally, the court noted that when appellee was added to the child’s birth certificate, it did not undo or deny appellant-birth mother a parent-child relationship with the child holding, therefore, that the district court erred in concluding that appellant was a mere surrogate without holding an evidentiary hearing on the issue; the supreme court remanded the case for further inquiry into whether appellant is the child’s legal mother. Second, the supreme court concluded that “in the event that both parties are determined to be the child’s parents, nothing in Nevada law prevents two parents from entering into agreements that demonstrate their intent concerning child custody.” The court stated that if appellant-birth mother is found to be the child’s legal parent, the district court must consider the co-parenting agreement when making the child custody determination.
Cite: No. 58315; 309 P.3d 1027; 2013 Nev. LEXIS 84; 129 Nev. Adv. Rep. 68 (Nev. Oct. 3rd, 2013)

Link to Full Opinion

INDIANA: In re the Termination of the Parent-Child Relationship of: N.Q.
The Court of Appeals of Indiana reversed the trial court’s order terminating the parent-child relationship between appellant-parents and their children, finding that that trial court erred in relying primarily on evidence presented during a previous termination trial which took place a year and a half prior to this termination hearing. In this case, the trial court initially terminated appellant-parents’ rights in July 2011, but this termination order was reversed by the court of appeals’ order finding that “the children had not been removed from the Parents for at least six months under a dispositional decree when the termination petitions were filed….” In October 2012, a second termination hearing was held. At this hearing, appellant-parents presented evidence that they had become current on all of their past due bills, father had begun to receive disability payments and their house was kept clean. The trial court ordered termination of appellants’ rights and appellants once again appealed. The court of appeals noted that “our review of the record reveals that the trial court based its decision to terminate Parents’ parental rights to the children almost entirely on the evidence presented at the initial termination proceedings … and did not adequately account for the current conditions as required.” In addition, the court of appeals found that the parents presented evidence that their circumstances had changed significantly and DCS failed to investigate the parents’ current situation. Therefore, the court of appeals reversed the trial court’s order terminating appellant-parents’ rights and remanded the case for further proceedings.
Cite: No. 82A04-1301-JT-42; 2013 Ind. App. LEXIS 491 (Ind. Ct. App. Oct. 8th, 2013)

Link to Full Opinion
ILLINOIS: In re Able C.
The Appellate Court of Illinois, Second District, affirmed the trial court’s orders finding appellant-mother’s child to be neglected and adjudicating the child a ward of the court, holding that the trial court did not err in allowing appellant-mother to represent herself during the proceedings and the evidence was sufficient to support the neglect finding. Here, appellant-mother’s child was removed from her care at 7 days old due to allegations of neglect because appellant-mother’s other children had previously been removed from her custody and she had not remedied the cause of removal. At the adjudicatory hearing, appellant-mother, who was represented by private counsel, filed an appearance and requested to represent herself. After extensive questioning, the trial court granted appellant-mother’s request and found that the state had proven all three counts on its petition. Appellant-mother appealed, first contending that the trial court abused its discretion by allowing her to represent herself. The court of appeals disagreed, holding that although the trial court may have considered appellant-mother’s choice “to proceed pro se to be unwise, it should honor such an election out of ‘that respect for the individual which is the lifeblood of the law.’” Further, the court concluded that there was ample evidence to support the trial court’s finding of neglect. Therefore, the court affirmed the trial court’s orders.
Cite: No. 2-13-0263; 2013 IL App (2d) 130263; 2013 Ill. App. LEXIS 697 (Ill. Ct. App. Oct. 3rd, 2013)

Link to Full Opinion
MASSACHUSETTS: Adoption of Malik
The Appeals Court of Massachusetts dismissed appellant-mother’s appeal, finding that mother did not have standing to appeal the juvenile court’s order finding adoption by the child’s foster parents would serve his best interests. Here, appellant-mother and the biological father both stipulated to their unfitness and the termination of their parental rights. Appellant-mother’s stipulation included a provision that she desired to have her parents adopt Malik. Soon after, the juvenile court determined that the child’s foster parents, rather than biological grandparents, should adopt him; mother appealed that decision. The court of appeals first stated that following a termination order, a biological parent is without standing to determine the child’s future. In addition, the court concluded that appellant-mother’s stated preference for her parents to adopt the child gave her the opportunity to have the judge consider her plan but “does not confer upon her the right to challenge the judge’s determination….” Finally, the court noted that this decision does not mean that a biological parent cannot participate in a hearing to consider two competing adoption plans, but participation does not give the parent the right to challenge the adoption order.
Cite: No. 13-P-384; 2013 Mass. App. LEXIS 160 (Mass. Ct. App. Oct. 22, 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