NCALP Weekly Case Summary

August 7, 2013

Follow us: The National Center for Adoption Law & Policy is participating in Macy’s SHOP FOR A CAUSE on Saturday, August 24th.  HOW DOES IT WORK?  NCALP sells Macy’s Savings Passes to our supporters for $5 each.  NCALP keeps 100% of the proceeds from our Savings Pass sale.  On August 24th, the Savings Pass allows the purchaser to receive 25% off regular, sale and clearance merchandise (some exclusions apply) in any Macy's store nationwide AND be eligible to win a $500 Macy’s gift card.  Click here to purchase your Savings Pass. ADOPTION/Subsidies SOUTH CAROLINA: Hensley v. Koller The United States Court of Appeals, Fourth Circuit reversed the district court’s judgment denying defendant-Directors of South Carolina Department of Social Services’ motion for summary judgment, finding that although plaintiff-adoptive parents had a privately enforceable right to receive an adoption subsidy on behalf of their child, the plaintiffs did not plead any violation of that right. Here, plaintiff-adoptive parents filed a class action under 42 USC 1983 against defendant-directors of DSS claiming that the defendants violated plaintiffs’ rights when adoption assistance subsidies were reduced 3 years after the adoption subsidy agreement had been signed between the parties. The circuit court conducted a review under the Blessing test and found that §673(a)(3) gives “rise to a limited privately enforceable federal right cognizable under 42 USC 1983. But only violations of such enforceable rights can provide a basis for recovery.” Here, the court found that §673(a)(3) requires that parents agree to any adjustment in the subsidy amount except when the subsidy needs to be reduced in order to stay in line with foster care maintenance payment reductions. Here, the state reduced the plaintiffs’ adoption subsidy payment because the foster care maintenance payments were reduced. Therefore, there was no violation of the statute. 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. Cite: No. 107383; 2013 Kan. LEXIS 591, 2013 WL 3378679 (Kan. July 5, 2013) Link to Full Opinion 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. Cite: No. 84; 2013 Md. LEXIS 461, 2013 WL 3588889 (Md. July 16, 2013) Link to Full Opinion CHILD PROTECTION/Disposition PENNSYLVANIA: In re S.H. In a matter of first impression, the Superior Court of Pennsylvania affirmed the trial court’s order granting appellee-father a hearing on his petition to vacate the orders granting permanent legal custody of his children to their maternal grandparents and denying appellant-“Support Center for Child Advocates’” motion to quash, finding that neither the Pennsylvania Juvenile Act nor the Adoption and Safe Families Act of 1997, prohibit a parent petitioning for custody of his or her child that is subject to an award of permanent legal custody. First, the superior court found that the issues presented were not moot as they are capable of repetition and apt to evade appellate review. Second, the court noted that in an award of permanent custody, a juvenile court discontinues court intervention and awards custody of a dependent child on a permanent basis to a custodian, but the parent’s rights are not terminated. The court then noted that the legislature could not have intended a parent whose child has been placed into a legal custodianship to be barred from ever petitioning for custody of that child, because this would amount to a de facto termination of the parent’s rights. Termination of parental rights has a specific process that is addressed in separate statutes. In addition, the court found that under 23 Pa. Cons. Stat. Ann § 5324 “any custody order may be modified if it serves the ‘best interests of the child.’” Therefore, the superior court held that under relevant Pennsylvania and federal law, a parent is not prohibited “from petitioning the trial court to regain custody of a child who is the subject of an award of permanent legal custody.” Cite: No. 2209 EDA 2011; 2013 Pa. Super. LEXIS 1611; 2013 PA Super 165 (Pa. Super. Ct. July 3, 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.