Tuesday, May 20, 2014

NCALP Case Summary

May 19, 2014

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The Court of Appeals of Indiana affirmed the order of the trial court that Father’s consent was not required and approved the petition for adoption. Biological father drove while intoxicated killing a police officer. He was sentenced to thirty-one years in prison. During his incarceration father sent 5 to 6 letters each year to his child and made a couple of nominal support payments over 2 years. Eventually mother married another man and that man filed a petition to adopt. The court noted that the purpose of Indiana’s adoption statute is to protect and promote the welfare of children by providing them with stable family units. Father claims that his incarceration cannot be the sole reason for the court’s finding that he is unfit. The court noted that individuals who pursue criminal activity run the risk of being denied the opportunity to develop positive and meaningful relationships with their children. Here, father was sentenced to thirty –one years in prison for his criminal actions. The child would be close to 19 years old if released at his earliest release date. Father would be unable to provide physical care or financial support for the child within a meaningful time frame. The court affirmed the trial court’s finding of unfitness.
Cite: No. 71A03 -1309-JP-363 (Court of Appeals of Indiana, May 9, 2014) 2014 Ind. App. Unpub. LEXIS 633

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FLORIDA: In the Interest of I.B., a child
The Court of Appeals of Florida, Fifth District affirmed the order of the trial court striking the adoption consent form executed by the biological mother. When biological mother signed the first consent form her attorney was not present. Mother also did not understand certain terms used at the consent proceeding and no one explained to her what the consent meant. Mother also felt pressured by her family to agree to the foster parents adopting her child. The court of appeals agreed with the trial court’s conclusion that the mother did not fully understand what she was signing, and the evidence introduced at trial supported that conclusion. The court of appeals also noted that it was not the appellate court’s function to re-weigh the credibility of the witnesses, and although the evidence of duress may have been limited, the mother’s testimony apparently believed by the trial judge was sufficient to establish duress.
Cite: No. 5D13-2796 (Court of Appeal of Florida, Fifth District, May 9, 2014), 2014 Fla. App. LEXIS 6898
Link to Full Opinion BEST INTERESTS
VIRGINIA: Douglas v. Lynchburg Dep’t of Soc. Servs.
The Court of Appeals of Virginia affirmed the trial court’s order terminating Father’s parental rights to his three children, because father was responsible for the conditions leading to his children being placed in foster care. The court’s paramount consideration is the child’s best interests when addressing matters concerning the custody and care of a child. Biological father and mother had a prior history of domestic violence. Biological father also sold drugs from his home. Biological father’s actions following his children’s placement in foster care demonstrated his inability of unwillingness to substantially remedy the conditions that led to the children’s placement in foster care. The court also noted that the children were thriving in foster care, so the court affirmed the trial court ruling.
Cite: Record No. 2176-13-3 (Court of Appeals of Virginia, May 6, 2014), 2014 Va. App. LEXIS 167
Link to Full Opinion
CALIFORNIA: In re Riley T.,
The Court of Appeals affirmed the court’s order placing the child in biological mother’s care under the Supervision of the Department of Children and Family Services (Department) and directing her to participate in family maintenance services. Mother contends the court erred in failing to give proper notice in compliance with the Indian Child Welfare Act of 1978 and in failing to make a proper ICWA inquiry. Biological mother had left the child in the care of biological father. He apparently abused the child and child was left in mother’s care under DCFS’s supervision. Mother had previously denied any Indian heritage but did fill out an ICWA form stating she may have Indian heritage from a great, great, great grandmother. The Department followed up with an ICWA investigation, and the two tribes in question found no evidence that the child was a member of either tribe. The court of appeals noted that the purpose of ICWA is to protect and promote the interest of Indian children. ICWA requires notice to federally recognized tribes when there is reason to know an Indian child is affected by dependency proceedings. The Court described what is required in a notice to the tribe. The court concluded that since Mother had no specific tribal information there was no duty to notify a specific tribe. The court was required to make a finding as to whether ICWA applies to the proceedings, but in light of the fact that notices were sent and the agencies responded, the failure to make a finding in this case is not reversible error. Any error was harmless.
Cite: B249550 (Court of Appeal of California, Second Appellate District, May 7, 2014) 2014 Cal. App. Unpub. LEXIS 3223
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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