Divorce Law Journal

Adoptions Changes Sought, Panel Wants Safeguards For Removing Kids From Parents

Adoptions Changes Sought, Panel Wants Safeguards For Removing Kids From Parents is the title of a Lexington Herald-Leader article by Valarie Honeycutt Spears. Some quotes:

A task force studying the improper removal of children from their parents in Kentucky is for the second time asking the General Assembly to pass a reform bill.

State Rep. Darryl Owens, D-Louisville, is introducing legislation designed to put more safeguards into the process of removals by state social workers, into cases involving the termination of parental rights and into state adoptions from foster care in Kentucky.

If enacted, the bill would further protect the due process rights of parents, slightly increase accountability for the Kentucky Cabinet for Health and Family Services staff and provide increases in the fee scale for court-appointed attorneys for children and their parents.

The Cabinet's Blue Ribbon Panel on Adoption presented similar, though weaker, legislation, during the 2007 General Assembly, but it failed to become law. The task force had been led by former Secretary Mark D. Birdwhistell.

The story continues,

In Kentucky, there was no definitive word yesterday on whether there will be additional legislation filed in the 2008 General Assembly to open child protection courts, an issue that was a main focus of the Blue Ribbon panel.

Cabinet Undersecretary Tom Emberton Jr. told members of the Interim Joint Committee on Health and Welfare yesterday that regional meetings were being held across the state at the direction of Chief Justice Joseph E. Lambert to determine whether a bill should be filed.

Last week, Lambert stopped short of saying that legislation would be filed in the upcoming legislative session. But he said, "I support the concept of allowing greater public access to juvenile court proceedings."

One new provision in the legislation presented yesterday gives Kentucky's chief justice the ability to establish rules to manage juvenile and child protection cases. The legislation also calls for parents -- and children if they are old enough -- to meet with their court-appointed attorney before they go to court for the first time. That does not happen now.

And the bill says that as of July 1, 2010, attorneys would have to prove that they had received specialized training before they could be placed on a new list that would allow them to be appointed by the court to represent children and parents.

Under the proposed legislation, fees for court-appointed attorneys would be increased from $500 to as much as $1,500, but they would have to justify those fees to the state.

Thanks to Kentucky Law Review for catching this story.

Report on Opening Records for Adult Adoptees

From Madelyn Freundlich, 2007 November. New York NY: Evan B. Donaldson Adoption Institute in the report, "For the Records: Restoring a Right to Adult Adoptees," are the following findings, via the Family Law Prof Blog:

Prohibiting adopted people from getting their personal information raises significant civil rights concerns and potentially serious, negative consequences for their physical and mental health.
In states that now allow access, there has been no evidence that the legal changes have caused problematic behavior by adopted persons or damage to birthmother's lives.
Another assertion by critics of changing these laws - that abortion rates will rise and adoption rates will fall - is not supported by the evidence; in fact, it appears just the opposite occurs.
Based on its research and an analysis of its findings, the Institute's recommendations include:

Every state should amend its laws to restore unrestricted access for adult adopted persons to their original birth certificates - which, historically, had been their right nationwide.
Within three years of enactment, revisit state laws that create a "sandwich" situation in which some adult adopted persons get access to their documents while others do not.
Conduct research to expand the understanding of the experiences of adopted persons, birthparents and adoptive parents in relation to the issue of access to records."

KY Grandparent Visitation And Adoption; Zoeller v. Gutterman

ZOELLER V. GUTTERMAN
FAMILY LAW: GRANDPARENT VISITATION AND ADOPTION
2006-CA-002141
PUBLISHED: AFFIRMING
PANEL: THOMPSON, PRESIDING; NICKELL, STUMBO CONCUR
COUNTY: JEFFERSON
DATE RENDERED: 10/26/2007
Grandmother and her Husband appealed from TC’s order holding that Grandfather had standing to seek grandparent visitation and that visitation would be in the best interest of Grandchild.

FACTS:
Grandchild was born to 15 year-old unwed Daughter, and no putative father was named. Daughter agreed that Grandmother and her Husband would be court-appointed guardians for Grandchild. Daughter died about two years later. Grandmother and Husband filed a Petition to adopt Grandchild in Jefferson Family Court, Division Three. Two weeks later, unaware of the pending adoption petition, Grandfather filed a petition for grandparent visitation in Jefferson Family Court, Division Four. The adoption petition was granted about a month later, prior to the entry of the grandparent visitation order. Grandfather than amended his petition in the visitation action, but Grandmother responded that he lacked standing to seek grandparent visitation because of the adoption. A GAL was appointed for grandchild. The GAL filed her report and motion requesting that Grandfather be granted immediate visitation. TC ultimately ordered that Grandfather have temporary visitation with Grandchild every weekend. After seeking a writ of prohibition from CA, which was denied, and receiving SC’s memorandum opinion affirming same, TC finally held evidentiary hearing. TC determined that Grandfather did have standing to proceed and that it was in Grandchild’s best interests to continue his relationship with Grandfather, and thus granted Grandfather’s petition and established terms of visitation. Grandmother and Husband filed CR 52 and 59 motions, both of which were denied, filed an appeal of these denials with CA, and subsequently filed a motion for intermediate relief with CA and requested emergency relief, which was denied.

ARGUMENTS AND ANALYSIS:
Grandmother and Husband contended that TC should have dismissed the case because Grandfather did not obtain a circuit court visitation order prior to the entry of the adoption decree, and KRS 405.021, the grandparent visitation statute, requires a visitation order to be issued by the circuit court prior to the termination of parental rights of a grandparent’s son or daughter to protect grandparent visitation rights with the children of that son or daughter. CA agreed that this was the correct interpretation of the statute, but that it was incorrectly applied as the case at bar did not concern termination of parental rights. CA found it to be even more important that the statute and cases interpreting it did not allude to situations where one grandparent used the adoption statute as a means to bypass the grandparents’ visitation statute, as CA found Grandmother to have done.

Because a parent’s rights lapse upon death, there is no contested proceeding to alert a grandparent that visitation rights need to be asserted. However, neither the adoption statute nor the grandparents’ visitation statutes require notice to a grandparent of a pending adoption petition. This could leave open the door to grandparents engaging in a race to the courthouse to conclude an adoption prior to the grandparent’s visitation petition. CA stated that the pending adoption petition in this case was such a significant fact that Grandmother and Husband were required to inform TC of its existence. CA found that Grandmother’s and Husband’s concealment of adoption petition was a “tactical maneuver to circumvent [Grandfather’s] right” to have TC determine whether visitation was in Grandchild’s best interest, and that such manipulation of the timing of the adoption precluded them from successfully challenging Grandfather’s standing.

Following the modified best interest standard for grandparents found in Vibbert v. Vibbert, 144 S.W.3d 292 (Ky. App. 2004), CA determined that, because there was strong evidence that Grandfather and Grandchild had a rewarding and loving relationship during Daughter’s lifetime and that Grandchild had established ties to Grandfather’s family, it was in Grandchild’s best interests to have visitation with Grandfather as established by TC.

As digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

M.B. v. D.W., Termination Of Parental Rights Of Transgendered Parent

M.B. v. D.W. ___S.W. 3d ___ (Ky. App. 2007), decided September 21, 2007.

TC granted a petition for adoption, which thereby terminated Father’s parental rights. The TC held, pursuant to statutory authority, that termination was appropriate because the child had suffered neglect and emotional harm. TC reasoned that the harm resulted from father’s failure to appropriately prepare the child, mentally, for the effects of his gender reassignment surgery. Due to the harm inflicted on the child it was in her best interest to grant the petition for adoption. Additionally, the TC held that Father had failed to financially support the child because he had not been paying his share of her insurance and medical expenses.
CA held, TC’s decision was supported by substantial evidence. Therefore, the court's decision to terminate parental rights and grant the adoption was not clearly erroneous. CA also opined that Father failed to preserve his argument that less drastic measures should have been taken. Regardless, CA reasoned that TC had made an implied finding that there were no less drastic measures. Finally, CA stated that it was not holding that gender reassignment is itself grounds for termination of parental rights. Instead, the CA stated that it was upholding TC’s decision because all of the statutory elements were meet and supported by substantial evidence.
Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates.

Maine Supreme Court Rules Lesbian Couple May Adopt

The Family Law Prof Blog reports:

The Maine Supreme Judicial Court ruled unanimously today that state law does not preclude unmarried couples from jointly petitioning to adopt a child. The case involved a lesbian couple who had petitioned to adopt a 10-year-old girl and her 6-year-old brother, for whom the couple had been foster parents since 2001.

The court decided the case solely as a matter of statutory construction, reasoning that if it read the statute to prohibit joint petitions by unmarried persons, the statute would still clearly allow successive petitions by unmarried persons, leading to the same end result. "With this in mind, construing section 9-301 as prohibiting a joint petition by unmarried persons elevates form over substance to an illogical degree." In terms of reading the statute to effectuate the purposes of adoption law, the court noted that joint petitions serve the best interests of children in a variety of ways, by insuring continuity of care should one parent die, by enabling access to broader range of benefits from two parents rather than one, and "Most importantly, a joint adoption affords the adopted children the love, nurturing, and support of not one, but two parents."

Adoption of MA (Maine Supreme Court August 30, 2007)

The opinion is online.

I recently met with Christine Sun, an ACLU staff attorney, about our firm doing some pro bono appellate work and this was one issue we would like to see addressed in Kentucky. Same-sex adoption is legal in Indiana as we reported here, linking to an Indiana Law Blog post.

Adoption of Adult Partner

Both The Family Law Prof Blog and The Indiana Law Blog have posts about adult adoptions of a partner who becomes an heir. From The Family Law Prof Blog:

"On an island liberally sprinkled with the affluent and well-connected members of such clans as Bush, du Pont, Rockefeller and Cabot, the Watson family occupies a special place. The family, descendants of Thomas J. Watson Sr., the founder of I.B.M., owns more than 300 acres worth nearly $20 million on the northern tip of this sea-splashed idyll 90 miles northeast of Portland. Over four decades, various Watsons summering here have flown helicopters and other aircraft; driven antique cars and collected scrimshaw. The family has held an annual square dance at their compound, Oak Hill.

Recently, though, the Watson name has surfaced in a different context, a most unusual lawsuit. It concerns Olive F. Watson, 59, granddaughter of the I.B.M. founder and daughter of Thomas J. Watson Jr., the company’s longtime chief executive; and Patricia Ann Spado, 59, her former lesbian partner of 14 years.

In 1991, Ms. Watson, then 43, adopted Ms. Spado, then 44, under a Maine law that allows one adult to adopt another. The reason, Ms. Spado has contended in court documents, was to allow Ms. Spado to qualify as an heir to Ms. Watson’s estate. But less than a year after the adoption, Ms. Watson and Ms. Spado broke up. Then in 2004, Ms. Watson’s mother died, leaving multimillion-dollar trusts established by her husband to be divided among their 18 grandchildren.

Re-enter Ms. Spado with a claim: Because she was adopted by Olive F. Watson, she said, she is technically Thomas J. Watson Jr.’s 19th grandchild and is therefore eligible for a share of the trusts."

Marcia Oddi reports the story and gives the Indiana law at her post titled Adult adoption put to test in case where IBM founder's granddaughter adopted her lesbian companion, then couple split:

What is the law in Indiana? IC 31-19-2, re filing the petition for adoption, provides at section 1 that "An individual who is at least eighteen (18) years of age may be adopted by a resident of Indiana," but "If the court in which a petition for adoption is filed under this section considers it necessary, the court may order: (1) the type of investigation that is conducted in an adoption of a child who is less than eighteen (18) years of age; or (2) any other inquiry that the court considers advisable; before granting the petition for adoption."

Tennessee Court Orders that Daughter Be Returned to Chinese Parents after Seven Years in Custody of Foster Parents

We have been reading the news (New York Times, USA Today) of the Memphis child who will be returned in days to her biological parents, after being raised by another family for seven years. I have been waiting to see the Tennessee opinion, which is now online. I am glad I waited for the opinion before posting the news, because I was glad to learn there will be a reunification plan rather than a disastrous delivery of the child. The Family Law Prof Blog digests the case:

The Tennessee Supreme Court has ruled in the case of Anna Mae He (see Nov. 27, 2005 Family Law Prof post) reversing the termination of the parental rights of the Chinese couple who seven years ago had given their daughter to a couple in Tennessee for foster care. The trial court had predicated the termination on the ground that the parents abandoned A.M.H. by willfully failing to visit her for four months. The Tennessee Supreme Court held that, "because the undisputed evidence shows that there was animosity between the parties and that the parents were actively pursuing custody of A.M.H. through legal proceedings during the four-month period immediately preceding the filing of the petition for termination of parental rights, ...the trial court erred in finding a willful failure to visit..... we conclude that the parents’ consent to transfer custody and guardianship of A.M.H. to the appellees was not made with knowledge of the consequences of the transfer. Therefore, according the parents those superior rights to the custody of their child that constitutional law mandates, only a showing of substantial harm that threatens the child’s welfare may deprive the parents of the care and custody of A.M.H. Although A.M.H. has now been with the appellees for more than seven years, six of those years elapsed after the parents’ first unsuccessful legal filing to regain custody. Evidence that A.M.H. will be harmed from a change in custody because she has lived and bonded with the Bakers during the pendency of the litigation does not constitute the substantial harm required to prevent the parents from regaining custody." The Court remanded for determination of a reunification plan.

Adoption News Story Much Meatier Than Headline Suggests

"Kentucky looks to speed up adoptions", is the Courier-Journal front page headline reporting on the Blue Ribbon Panel on Adoption meeting in Frankfort yesterday. The online edition link to today's article was not yet available at the early hour of this posting. What an informative and productive meeting it appears to have been. Kentucky State Auditor Crit Luallen, a potential 2007 gubernatorial candidate, presented the results of an audit showing that children removed from homes because of abuse and neglect are waiting for adoption on average three years, longer than permitted by federal guidelines. The year long study makes no conclusions as to whether children are removed too hastily from homes, the issue that caused the panel to be formed in the first place. Mark D. Birdwhistle, chair of the panel stated that there are "pockets of problems" and acknowledged the need to have consistent standards across the state.
Many thoughtful and much needed ideas are being floated to this influential panel and discussed which is very welcome news. For example, yesterday auditor Luallen made recommendations for speeding up the three year wait for the 2000 children currently available for adoption, including creation of a birth father registry. We have reported on such a registry here and announced some new scholarly articles on these issues here.
Chief Judge, Jefferson Circuit Court, Family Division Stephen George and Family Court Judge Patricia Walker FitzGerald also presented to the panel the need for Guardians Ad Litem to be fairly paid and the need for attorneys to be appointed to represent parents at the initial temporary removal hearing. Judge George also said removing the confidentiality requirements of current law in dependency cases would make the family courts more accountable.
UPDATE: Here's the link to the Courier-Journal article by Deborah Yetter.

Storm v. Mullins, 199 S.W.3d 156 (Ky., 2006)

Storm v. Mullins, 199 S.W.3d 156 (Ky., 2006)

Issues and Holdings:
1. Whether the consent to custody form, signed by the mother, was sufficient to establish the mother’s consent to the paternal grandparents’ adoption of the children. The Supreme Court held that such form was not sufficient.
2. Whether the one-year statute of limitations period for challenging an adoption, set out in KRS 199.540(2), applied to the mother’s motion to set aside the adoption based on lack of consent and notice. The Supreme Court held that the statute of limitations barred the mother’s challenge based on lack of consent. However, the Court found the record inconclusive as to whether the notice requirement had been met, and remanded the case back to the trial court for further proceedings.

Rights of Unmarried Father To Child Placed For Adoption

Janet Janghahr's Florida Divorce Law Blog: reports: "An adoption agency notified a biological father that his baby was going to be adopted.
That was how the biological father allegedly first learned of the child’s existence.
By that time, the baby was two months old and had been living since he was three days old with the family that planned to adopt him.
Upon learning of the boy, the father sought custody of his son.
But the New Mexico trial court terminated his parental rights on the grounds that he had abandoned the baby and his mother, freeing the baby up to be adopted.
On appeal, the ruling was reversed and the father’s parental rights restored.
The case was remanded for a custody determination, but appeals are on the way."
Kentucky needs an overhaul of its legislation in this area. A potential father's registry would be a start.
Here's a related article from the New Mexican.
Yet, Jeanne Hannah of Updates in Michigan Family Law posted good analysis of the issue yesterday,Why We Need a Federal Putative Father Registry, persuasively arguing that even state registries are not adequate and that a federal law is needed.

First Report of Committee Studying "Quick Trigger" Adoptions

A Kentucky State Government press release sent after the first meeting of the committee studying "quick trigger" adoptions announces it will meet monthly and possibly recommend legislation in 2007. It is good news that the 12 member panel will personally be headed by The Kentucky Cabinet for Health and Family Services Cabinet Secretary Mark D. Birdwhistell.
The panel is getting off to a good start, said Tom Emberton Jr., commissioner of the Department for Community Based Services (DCBS), the office that oversees public adoptions.
Emberton said his staff is ready for the panel’s constructive evaluation.
“We look forward to working with this group to achieve good outcomes for children,” he said. “We are asking for an honest assessment of our practices.”
Thanks to Mike Stevens, of the Kentucky Law Blog, for forwarding the press release.

Same-Sex Adoption Legal in Indiana

Same-sex adoptions are legal in Indiana, as Indiana Supreme Court declines to review an Indiana Court of Appeals decision. The Indiana Law Blog has an extensive report on the issue.
Comment: In Kentucky we are reduced to encouraging our "brain drain" by advising clients to move across the river.

Committe To Address "Quick Trigger" Adoptions; Meeting Open To Public

The first meeting of the Kentucky Cabinet for Health and Family Services’ panel on adoption is scheduled for next week.
The meeting will be from 3 to 4:30 p.m. on Monday, Aug. 7, in the music room of the Berry Hill Mansion, 700 Louisville Road, Frankfort, KY.
The meeting is open to the public.
The 12-member group’s goal is to review the process and current practices that led to the termination of parental rights and adoption of children in the state’s child welfare system and to identify opportunities for improvement.
Monday’s agenda includes an overview of the 1998 federal Adoption and Safe Families Act.
Cabinet Secretary Mark D. Birdwhistell serves as the group’s chairman.

Death of Biological Parent Severs Step-parent/Step-child Relationship for Purposes of Adoption Statute

Death of Biological Parent Severs Step-parent/Step-child Relationship for Purposes of Alabama Adoption Statute, Hays v. Hays, 2006 Ala. Civ. App. LEXIS 352 (June 23, 2006), digested by the Family Law Prof Blog.

State to Hold Hearings on Quick Trigger Adoptions

The KentuckyLawBlog reports today that the state will hold hearings on children hastily removed from biological parents to facilitate "quick trigger" adoptions. The post links to a Lexington Herald-Leader story. The hearings in the legislature will begin June 21, 2006 at 1 p.m.

More On Same Sex Adoption in Indiana

More on Same Sex Adoption from the Indiana Law Blog:

 

Ind. Decisions - More on: AG asks Supreme Court to hear same-sex adoption question

Same Sex Adoption and Joint Adoption by Unmarried Couples in Indiana

The Indiana Law Blog posts thoughtful excerpts from an editorial in today's Fort Wayne News Sentinel concerning adoption by same sex couples.
The Indiana Law Blog also reports today that the Indiana Supreme Court has been asked to review a decision permitting joint adoption by an unmarried couple, citing conflicting lower court rulings

C.M.C. and C.L.C. v. A.L.W.; P.L.S.; and B.R.C.S.,a Minor; S.A.S. and T.L.S. v. A.L.W.; P.L.S.; and M.P.W., a Minor; S.A.S. and T.L.S. v. A.L.W.; P.L.S.; and A.L.W. II, a Minor, 180 SW3d 485 (Ky., App., 2005)

C.M.C. and C.L.C. v. A.L.W.; P.L.S.; and B.R.C.S.,a Minor;
S.A.S. and T.L.S. v. A.L.W.; P.L.S.; and M.P.W., a Minor;
S.A.S. and T.L.S. v. A.L.W.; P.L.S.; and A.L.W. II, a Minor,
180 SW3d 485 (Ky., App., 2005)
Adoption without the consent of living biological parent is
by its very nature a proceeding seeking the termination of a
parental right. When statutes conflict, the more specific statute
prevails. Held that a party denied right to adopt has a right of
appeal.