Tuesday, June 26, 2012

NCALP Weekly Case Summary

June 25, 2012

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ADOPTION/Rights of Unmarried Fathers
GEORGIA: Brewton v. Poss
The Court of Appeals of Georgia, Fourth Division, reversed the superior court’s order granting appellee-stepfather’s motion to quash appellant-putative biological father’s motion to sever his legitimization petition, holding that although legitimizations were intended to be separate proceedings, no party was prejudiced by appellant’s failure to properly file and, therefore, appellant’s motion to sever the proceedings should have been granted. In interpreting OCGA § 19-7-22, which governs legitimization petitions, the court concluded that petitions for legitimization should be filed as separate civil proceedings. Here, after learning of appellee’s petition to adopt the child, appellant filed a petition for legitimization of the child under the same civil case number as the adoption proceeding and did not pay an additional filing fee. Appellee-stepfather subsequently moved to quash the petition, which the trial court granted on the ground that appellant had failed to properly file the petition. Under OCGA § 1-3-1, the appellate court found that substantial compliance with any statutory requirement should be deemed sufficient, and no proceeding should be declared void for lack of compliance, unless expressly provided by law. Because appellant’s petition contained necessary information, was properly served, and was timely filed, the court determined that he had substantially complied with the statutory requirements. Accordingly, the lower court erred in granting appellee’s motion to quash, effectively prohibiting appellant from properly severing and refilling the action for legitimization.
Cite: No. A12A0098; 2012 Ga. App. LEXIS 524 (Ga. Ct. App. June 14th, 2012)

Link to Full Opinion
OHIO: In re N.C.
The Court of Appeals of Ohio, Eighth Appellate District, Cuyahoga County, reversed the Cuyahoga Court of Common Pleas’ order granting legal custody to appellee-father, holding that magistrate’s custody order was an abuse of discretion and against the manifest weight of the evidence where there was no full investigation and a failure by the agency to make reasonable efforts to reunify the child with appellant-mother. Here, appellant-mother’s child was placed in the temporary custody of the agency after allegations of abuse by appellant-mother. The agency placed the child with appellee-father, and shortly after, petitioned to give legal custody to appellee-father; mother appealed arguing that there was not enough evidence to support an award of legal custody and the agency failed to make proper reunification efforts. First, the appellate court found that the magistrate’s investigation was lacking because appellant-mother’s psychological evaluation results were pending at the time of the magistrate’s decision, the magistrate did not make any findings regarding the child’s best interest and appellee-father was never questioned as to whether he was able to assume legal custody. Next, the court found that it is the agency’s duty to make reasonable efforts to preserve or reunify the family unit. Here, although appellant failed to meet some of her case plan, it was through no fault of her own. Finding that the lower court abused its discretion in granting custody to appellee, the court reversed and remanded for further proceedings.
Cite: No. 97155, 2012 Ohio 2625; 2012 Ohio App. LEXIS 2314 (Ohio Ct. App., June 14, 2012)
OKLAHOMA: Taylor v. State (In re R.T.)
The Court of Civil Appeals of Oklahoma, Division Three, reversed and remanded the trial court’s order appointing appellant-mother’s parents as permanent guardians of appellant’s daughter, holding that the parties did not receive proper notice of the hearing and the trial court was not authorized to appoint the guardians because appellant’s daughter was never adjudicated deprived. First, the appellate court noted that because permanent guardianship proceedings result in a parent being deprived of a fundamental right, the right of the care, custody, companionship, and management of his or her child, the court must provide the parent all the statutory and constitutional safeguards, which under Oklahoma’s Children’s Code §1-4-710(B) includes serving notice on the parents. In this case, these safeguards were not followed because the record shows that proper notice was not served upon the mother or her attorney. While the appellant-mother had previously signed a waiver of notice, the court found that the state was not excused from providing notice of the hearing to appoint guardians because the previous waiver was not authorized by statute, and even if it was, appellant-mother did not waive her right to be notified if the state sought additional relief, such as child support. In addition, the appellate court noted that under § 1-4-709 in order to grant a permanent guardianship, the child must first be adjudicated deprived; in this case, the child had not been adjudicated deprived. Because the trial court erred in granting permanent guardianship in the absence of a deprived adjudication and notice was not served on the appellant mother or her attorney, the trial court's order appointing the grandparents as permanent guardians of appellant mother’s child was reversed and remanded.
Cite: No. 109762; 2012 OK CIV APP 57; 2012 Okla. Civ. App. LEXIS 38 (Okla. Ct. App. June 11, 2012)
Link to Full Opinion
TERMINATION OF PARENTAL RIGHTS WASHINGTON: Tucker v. Dep’t. of Soc. & Health Servs. (In re Dependency of J.A.F.) The Court of Appeals of Washington, Division One, affirmed the trial court’s decision to terminate appellant-parents’ parental rights to their three children, finding appellants’ claims that the trial court violated the Washington State Constitution by closing a portion of the termination trial to the public, proper notice was not given according to ICWA, and the continuation of the parent-child relationship with one of their children did not diminish that child’s prospects for early integration into a stable permanent home, were all without merit. First, the appellate court noted that under Article 1, section 10 of the Washington State Constitution, a court must apply factors which properly consider the publics’ right to open and public proceedings against the appellant’s interest in privacy before the court can close part of an open proceeding. If an appellant does not raise this issue in trial court, that appellant must demonstrate prejudice caused by the closed proceeding. In this case, because the appellants never raised the closed proceeding issue in the trial court, they needed to show prejudice. However, no prejudice existed because the facts elicited during the closed proceeding were independently established by other evidence in portions of the proceedings that were open to the public. Second, the appellate court found that appellants’ second claim that proper notice was not given according to ICWA did not have merit because notice had been sent to the BIA and the BIA responded that the children were not “Indian children.” Third, the court found that appellant-mother’s claim that continuing her relationship with one of her children did not diminish that child’s prospects for integration was also without merit. In order to terminate a parent's rights, under RCW 13.34.180, the state must establish, as one factor, that continuation of the parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home. The court is to focus whether the parent-child relationship impedes the child's prospects for integration, not that a stable and permanent home is available at the time of termination. In this case, the child decompensated and regressed during visits with her parents, and it was shown that the appellant mother’s mental health issues rendered her incapable of parenting or keeping her children safe; therefore, a continued relationship with the mother would harm the child. Because all three of the appellant-parents’ claims lacked merit, the court of appeals affirmed the trial court’s judgment terminating the appellants’ parental rights.
Cite: No. 67022-1-I; 2012 Wash. App. LEXIS 1406 (Wash. Ct. App. June 11, 2012)
Link to Full Opinion
TERMINATION OF PARENTAL RIGHTS OHIO: Richland County Children Servs. Bd. v. Adam The Court of Appeals of Ohio, Fifth Appellate District, Richland County affirmed the juvenile court’s denial of appellant-father’s motion to terminate a shared parenting plan, finding that the juvenile court lacked jurisdiction to hear the motion, and dismissed appellant father’s appeal of the denial of his motion to terminate his own parental rights, finding that the order was not final or appealable. First, under O.R.C. 3201.03, the appellate court found that a juvenile court does not have jurisdiction to grant any motion regarding an order issued by a domestic relations court, which is a separate division of the Court of Common Pleas. In the present case, the juvenile court did not err in denying appellant’s motion to terminate the shared parenting plan because the underlying order was issued by the domestic relations court and the juvenile court lacked jurisdiction to grant such a motion. Next, the appellate court noted that under Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 540 N.E.2d 266 (1989), if an order is not final and appealable, an appellate court does not have jurisdiction to review the matter and must dismiss it. In addition, under the requirements of R.C. 2505.02(B), for an order to be final and appealable, the order must affect a substantial right. In this case, the appellate court held that the juvenile court’s order denying appellant-father’s motion to terminate his own parental rights was not a final, appealable order because there is no substantial right to terminate one’s parental rights and because the trial court contemplated continued proceedings. Therefore, the court of appeals dismissed the appeal.
Cite: No. 2011CA0071; 2012 Ohio 2596; 2012 Ohio App. LEXIS 2285 (Ohio Ct. App., June 7, 2012)
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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