NCALP: Case Summary

[Leonard Henderson]

August 22, 2012

If you are unable to access the links on this page click here. Follow us: TERMINATION OF PARENTAL RIGHTS ILLINOIS: People v. Nunu S. (In re Joshua S.) The Appellate Court of Illinois, Second District, affirmed the trial court’s judgment that terminated respondent mother’s parental rights, finding that the plea agreement respondent mother agreed to in her criminal case could not protect respondent mother’s parental rights even though the State agreed in the plea agreement that it would not seek to terminate her parental rights based upon the facts of the criminal case. Here, respondent-mother gave birth to her child outside and left him under a tree in the middle of the night; she later admitted the child was hers. In the criminal abandonment case, mother entered into a plea agreement in which the state agreed that it would not seek to terminate her parental rights based upon the abandonment of the child. Subsequently, the child’s GAL filed a motion to terminate mother’s rights, which was granted. Respondent mother appealed, arguing that termination of her parental rights based upon the abandonment was barred due to the plea agreement. The appellate court held that “the portion of the plea agreement relating to the State’s representation that it would not seek to terminate the respondent’s parental rights on the basis of the events is against public policy and thus unenforceable,” and noted further that the Illinois Supreme Court had previously held that "[p]arents may not bargain away their children's interests," Blisset v. Blisset, 526 N.E.2d 125 (1988). The appellate court also noted that the State’s Attorney is not the only party that may file a termination petition. Any interested adult may do so, and therefore, the State’s Attorney lacked the authority to limit the rights of other interested parties to act in the child’s best interest. Cite: No. 2-12-0197; 2012 Ill. App. LEXIS 604; 2012 IL App (2d) 120197 (Ill. App. Ct. July 20, 2012) Link to Full Opinion ICWA CALIFORNIA: People v. W.B. (In re W.B.) The Supreme Court of California upheld the judgment of the court of appeals which affirmed the Superior Court of Riverside County’s order placing appellant-minor in foster care, holding that ICWA notice requirements did not apply because the placement was based on appellant’s delinquent conduct rather than allegations of parental abuse or neglect. First, the supreme court determined that California’s ICWA requirements do not apply in most juvenile delinquency cases. The court found that, although the ICWA generally requires notice whenever a child is removed from the parental home, there is a specific exemption for removal based on what would be considered criminal conduct if committed by an adult at 25 U.S.C. § 1903(1). Here, appellant was placed in foster care after committing burglary and after a history of other offenses. He argued that the placement was improper because the court failed to provide notice of the proceeding pursuant to the ICWA. Relying on the statutory language of Cal. Wel. & Inst. Code § 224.1 and similar interpretations in other jurisdictions, the court held that the juvenile court has a duty to inquire about Indian status in all juvenile proceedings, but that additional ICWA procedures are not required in most delinquency cases. The supreme court further held that ICWA notice must be given in a delinquency case if the child will be placed outside of the home due to committing a “status offense” or for reasons based entirely on the parent’s neglect or abuse and termination of the parent’s rights will be considered. Because appellant was placed into foster care based upon conduct that would be considered criminal if he were an adult, and because termination of his mother’s rights was never contemplated, the ICWA notice requirements did not apply and the lower court properly placed appellant in foster care. Cite: No. S181638; 2012 Cal. LEXIS 7253 (Cal. Aug. 6, 2012) Link to Full Opinion ADOPTION OHIO: In re Adoption of: J.N.N.Z. The Court of Appeals of Ohio, Tenth Appellate District, Franklin County affirmed the probate court’s judgment which denied appellant-biological father’s Motion to Vacate the adoption of his child because the motion was barred by the one-year statute of limitations, finding that the probate court did not err in applying the statute of limitations. The appellate court noted that under O.R.C. 3107.16(B), an adoption decree cannot be questioned after one year has passed, barring special circumstances. The appellate court further held that a biological parent is precluded from “bringing an untimely action to vacate an adoption, even when there is a claim of inadequate notice of the proceedings, when the biological parent had actual knowledge of the adoption within the one-year statute of limitations.” Here, appellant-father claimed that he was not provided adequate notice of the adoption proceeding and, therefore, that the adoption should be vacated. The appellate court disagreed, stating that even if the notice had been inadequate, appellant-father had actual knowledge of the adoption within the one-year period and failed to act within the required time period. Cite: No. 12AP-51; 2012 Ohio App. LEXIS 3129; 2012 Ohio 3544 (Ohio Ct. App. July 7, 2012) Link to Full Opinion TERMINATION OF PARENTAL RIGHTS FLORIDA: V.M. v. Home at Last Adoption Agency The Court of Appeals of Florida, Fifth District, affirmed the trial court’s decision denying appellee-adoptive parents' petition to terminate appellant-father’s parental rights but reversed the trial court’s order adjudicating the child dependent and creating a case plan, finding that the trial court should have dismissed the petition to terminate parental rights entirely. Here, appellees-adoptive parents filed a petition to adopt the child, alleging that appellant-father had abandoned the child. At the conclusion of the trial, the trial court found that appellant’s wife had given custody of the child to the adoption agency without telling appellant or getting his consent; there was no evidence that appellant had abandoned the child. After denying the termination petition, the trial court proceeded to adjudicate the child dependent and ordered appellant to pay child support, enter into a case plan and have visitation with the child; appellant appealed. Florida Statute 63.089(5) states “[i]f the court does not find by clear and convincing evidence that parental rights of a parent should be terminated pending adoption, the court must dismiss the petition and [f]urther proceedings must be brought in a separate dependency action.” The appellate court noted that after the trial court found that there was insufficient evidence to support termination of his parental rights, the court had no choice but to dismiss the petition because Section 63.089(5) is clear and unambiguous in requiring the court to dismiss the petition upon finding that appellant's parental rights should not be terminated pending adoption. Therefore, any dependency proceedings would have to be filed separately in a dependency action and the trial court did not have the ability to create and adopt a case plan, order appellant to complete several tasks, and order child support and visitation. The trial court's creation of what it called a "private dependency" proceeding was not valid; thus, the appellate court reversed that portion of the trial court’s decision, and affirmed the trial court’s decision denying the petition to terminate the appellant father’s parental rights. Cite: Case No. 5D12-264; 2012 Fla. App. LEXIS 12219 (Fla. Ct. App. July 24, 2012) Link to Full Opinion CHILD PROTECTION/Adjudication/Disposition COLORADO: People ex rel. N.G. The Court of Appeals of Colorado, Division Four, vacated the orders of the El Paso County District Court granting permanent custody of the child to his maternal uncle and denying appellant-father’s petition for review of that order. The court held that the lower court erred in adjudicating the child dependent as to appellant based on the adjudication of dependency in regard to the child’s mother without considering appellant’s evidence. Here, the child was adjudicated dependent with respect to the mother, but appellant, the non-custodial parent, agreed to a no-fault admission to a deferred adjudication as he worked on a court-ordered plan. Subsequently, appellant-father motioned for custody of the child after receiving a favorable home study and complying with the case plan; DHS moved to allocate permanent parental responsibility to the child’s maternal uncle. After the lower court denied appellant’s motion and granted permanent custody to the uncle, appellant appealed. In interpreting C.R.S. § 19-3-505, the appellate court found that when an adjudication is deferred, the determination under the first cause is not final and a parent may seek to present probative evidence during the relevant deferral period. The appellate court noted that under Troxel v. Granville, 530 U.S. 57 (2000), a parent usually enjoys “the constitutional presumption that a fit parent makes decisions which are in his or her child’s best interests,” and concluded, as a matter of first impression, that the Troxel presumption should survive a preponderance determination at the adjudication phase of dependency proceedings, especially where that determination was based only on a parent’s no-fault admission. Here, the appellate court concluded that the lower court erred in adjudicating the child dependent as to appellant-father based upon the adjudication as to the mother without considering new evidence that the child would not be dependent if placed in appellant’s care and in failing to apply the Troxel presumption. Therefore, the appellate court remanded the case for findings as to whether the child is currently dependent as to father in light of the presumption of fitness. Cite: No. 23CA0417; 2012 COA 131; 2012 Colo. App. LEXIS 1250 (Colo. Ct. App. Aug. 2nd, 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.