Tuesday, February 18, 2014

NCALP Weekly Case Summary

February 18, 2014
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2014 Wells Conference
The National Center for Adoption Law and Policy, in collaboration with Capital University Law Review,
is pleased to sponsor the 10th Annual Wells Conference on Adoption Law:
We Are Not All The Same: Meeting Children's Individual Needs .
Each year the Wells Conference attracts professionals and academics who
are pioneers and innovators in the fields of child welfare and adoption law. Date: March 6, 2014
Time: 8:45 am - 4:30 pm
Capital University Law School
303 East Broad Street
Columbus Ohio   43215
ILLINOIS: People v. Julia F.

In a de novo review, the Supreme Court of Illinois reversed the Appellate Court for the Fifth District’s judgment which reversed the circuit court’s order terminating appellee-mother’s parental rights after finding that the State’s failure to comply with the Adoption Act’s notice requirements precluded termination of appellee-mother’s parental rights because the notice defect constituted failure to state a cause of action in the State’s complaint. The supreme court disagreed and held that although the State failed to give proper notice, it nevertheless succeeded in stating a cause of action, and therefore, appellee-mother forfeited her right to appeal on this basis because she failed to raise the issue at the trial court level. The court noted that under section 1(D)(m)(iii) of the Adoption Act, the State is required to notify the parent which nine-month period it is relying on as its basis for the termination petition. Here, the State conceded that it did not state the nine-month period in either its complaint or in a subsequent notice to appellee-mother, but it contended that appellee forfeited her claim because she failed to raise it at the trial level. The supreme court first found that the State had failed to comply with the statute, but also stated that the allegations in the amended petition were sufficient to state a cause of action and to inform appellee as to the nature of the neglect charge. Further, the court found that although the State did not specify in a separate notice or at the hearing which nine-month period it was basing its allegations upon, it was apparent from the record that the parties proceeded as though all four nine-month periods were relevant. Finally, the supreme court noted that appellee failed to show any specific harm or prejudice that resulted from the State’s error. Therefore, the supreme court reversed the court of appeal’s judgment.
Cite: No. 115424, 2014 IL 115424 (Ill. Jan. 24, 2014)

Link to Full Opinion
KENTUCKY: D.L.B v. Cabinet for Health & Family Servs.
The Court of Appeals of Kentucky affirmed the family court’s involuntarily termination of the mother’s parental rights and reversed and remanded the voluntary termination of the father’s parental rights, holding that the mother’s failure to provide care, protection, and necessities was sufficient to involuntary terminate her rights, but the father’s voluntary termination did not comply with the statutory requirements. First, the mother alleged that her children were neglected, not abused, and thus the family court did not meet the statutory elements for termination. Accordingly, the court relied on KRS 625.090, stating that negligence, in addition to abuse, is a basis for termination, and, therefore the evidence was sufficient to terminate mother’s rights. Next, the court looked to KRS 6.25.040(2), which requires that to voluntary terminate his or her parental rights, a parent must file a verified petition which is signed by the Cabinet. Here, the father failed to file the petition with the circuit court and the Cabinet objected to the voluntary termination and therefore did not sign the required document. The appellate court remanded the case to the family court in order to make the father a party to the involuntary termination action and to conduct a termination hearing regarding father’s parental rights. Finally, the appellate court found that the family court erred when it excluded testimony of the children’s treating therapist regarding the children’s out-of-court disclosures regarding the parents’ abuse, holding that this testimony was admissible under the “state of mind” exception to the hearsay rule. Therefore, the appellate court affirmed in part and reversed in part the family court’s judgment.
Cite: Nos. 2012-CA-001797-ME & 2012-CA-002061-ME; 2014 Ky. App. LEXIS 2 (Ky. Ct. App. Jan. 3, 2014)
CHILD PROTECTION/Reunification Efforts
MARYLAND: In re Joy D.
The Court of Special Appeals of Maryland affirmed the juvenile court’s order granting the motion of the Baltimore City Department of Social Services (“BCDSS”) to waive its obligation to continue to make reasonable efforts to reunify appellant-mother with her daughter. The court of special appeals held that, “pursuant to the plain language of the statue, as well as the legislative history, that the language of CJP §3-812(d) is mandatory. When a local department requests the court to waive its obligation to continue reunification efforts, and the court finds, by clear and convincing evidence, that one of the statutory waiver conditions exists, including that the parent involuntarily lost parental rights to a sibling child, the court is required to grant the motion.” The court found that under Burch v. State, 358 Md. 278, 284, 747 A.2d 1209(2000), the use of the word “shall” in a statute “ordinarily indicates a mandatory intent, unless the context of the state indicates otherwise.” Therefore, CJP §3-812(d), which states that “if the court finds by clear and convincing evidence that any of the circumstances specified in subsection (b) of this section exists, the court shall waive the requirement that reasonable efforts by made to reunify the child with the child’s parent or guardian,” is interpreted by the court as to mean that a court has a “mandatory obligation to grant a motion filed by the local department to waive the obligation to continue to make reasonable efforts for reunification.” In this case, appellant mother argued that BCDSS still had an obligation to make reasonable efforts to reunify her with her daughter despite having her parental rights terminated to an older child. Because the juvenile court did not err in granting the motion to waive the obligation of BCDSS the judgment was affirmed.
Cite: No. 693; 2014 Md. App. LEXIS 5 (Md. Ct. Spec. App. Jan. 29, 2014)

Link to Full Opinion
NEBRASKA: State v. Kerri S. (In re Joseph S.)
In an issue of first impression, the Nebraska Court of Appeals affirmed the order of the juvenile court that found that appellant-mother’s children were not within the meaning of neglect under Nebraska statute and it was not in the children’s best interest to terminate appellant’s parental rights, holding that a parent’s noncompliance with voluntary services may not serve as the basis for termination of that parent’s rights. Here, appellant-mother’s children were returned to her care in November of 2011 after she successfully completed her court-ordered plan and the case was closed successfully. A few months later, the agency was contacted again about the family and appellant placed the children in the agency’s care voluntarily. When appellant failed to comply with the voluntary services, the agency filed a motion for temporary custody of the children and a motion for termination of parental rights. The juvenile court denied the motion to terminate appellant’s parental rights for failure to present a prima facie case because all the evidence presented was based upon appellant’s previous case with the agency and the voluntary placement period; the agency appealed. The appellate court agreed with the juvenile court finding that appellant-mother was not afforded due process throughout the voluntary phase of the case because she was not advised to consult with an attorney, informed of her right to request return of the children or given a hearing to address or refute the allegations against her during this time. The appellate court further stated that due to the lack of due process, appellant’s behavior during the voluntary basis period could not be presented as evidence to support the termination petition. Therefore, the appellate court affirmed the juvenile court’s order denying the agency’s petition to terminate appellant-mother’s parental rights.
Cite: No. A-13-339; 2014 Neb. App. LEXIS 25 (Neb. Ct. App. Jan. 21, 2014)
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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