Child Protection and Adoption

Chapter 16

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Final Exam Prep

What is a pendente lite motion? What are “cooling off” periods? What are interrogatories and who can they

be served on? With regard to alimony, when will a court

order an examination of one of the parties? What are depositions and where are they

conducted?

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Final Exam Prep

What is a motion for disclosure of assets and when would it be used?

Can a court modify pendente lite orders? Will a court validate a separation agreement

before a divorce is final? How is a separation agreement modified or

enforced?

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Final Exam Prep

Can lay witnesses testify at trial? Who is the first witness at a divorce trial? Are property divisions and lump sum alimony

modifiable? What happens if a spouse waives alimony? Will a court modify child support and child

custody and if so what test is used?

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Final Exam Prep

What is the UCCJA and the UCCJEA, and which came first?

What is the PKPA and how does it help people?

What is a motion for contempt and when is it used?

What is the Fugitive Felon Act?

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Final Exam Prep

Are child support arrearages modifiable? Are visitation orders modifiable? Is the separation agreement still a contract

once it merges with the divorce decree? Can the parties extend child support beyond

the age of the child’s majority? What are requests for admissions?

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Final Exam Prep

Do divorces have to be fault based? What are mandatory reporting laws? What is the effect of a decree of adoption

(new parental relationship/severe original one)

What is the test or standard before parental rights can be involuntarily terminated for unfitness?

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Final Exam Prep

What is the Child Protection Agency? Is a court hearing needed to terminate

parental rights if the parent consents? What is a court order? What is the financial disclosure affidavit? What is a subpoena? What did Tropea v. Tropea stand for?

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Final Exam Prep

What is forum shopping? What is contested v. uncontested? What is “parens patriae?” When do public agency adoptions occur? What is a default divorce? What is the “substantial change in

circumstances” test?

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Final Exam Prep

Presumption in cases of relocation for good faith motive…

What are home visits in agency adoptions? How do you define adoption? What is a restraining order? Review what happens when a child protection

worker investigates abuse. What are motion days?

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Child Protection

State must balance family integrity with protecting children

An intact family does not guarantee child safety:– Physical or mental abuse– Neglect of essential needs

Nutritional Health Educational Shelter Sanitation clothing

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In Parens Patriae

State’s right to intervene in family matters Child Protection agencies Mandatory reporters (required to report

abuse or neglect) include school & medical personnel

Hot lines permit anonymous complaints, typically from:– Neighbors– Relatives

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Investigation of Complaints

Visit the family Observations, interviews

– Substantiated – intervention– Unsubstantiated – no intervention, but report

remains on file

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Service Agreement

May assign treatment worker to assist in the home– Improper care issue, not intentional abuse– Can be corrected with assistance & monitoring

Enter into an agreement Parents must sign (assent) Worker monitors compliance

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Agreement

Lists required action, e.g.,– Maintain children’s health care– Seek treatment for parental substance abuse– Work out budget to provide necessaries– Obtain aid in providing:

Food Clothing Shelter Heat, etc.

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Temporary Custody

Children in imminent danger of harm Worker reports to supervisor Receives authorization to apply for a

temporary custody order Removes children from dangerous

environment Places them in temporary foster care

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The Hearing

Child Protection agency has an attorney to make the case that the children are in danger

Children have a GAL or attorney to represent their interests

Parents are afforded due process– Notice of action– Opportunity to present their side at a hearing– Legal assistance may be provided

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Reunification

The ultimate goal is to reunite the family and create a safe home environment

Courts may order specific requirements to be met before the children can be returned (specific steps or expectations)

These may include:– Substance abuse treatment– Parenting classes, domestic violence or anger

management counseling

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Other Specific Steps

Parents may need to:– Provide adequate housing– Find employment or complete job training– End criminal activities & comply with probation or

parole terms

Successful completion of the reunification plan will result in a hearing designed to end the state’s custody

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Failure to Complete Plan Objectives

State will set a review date (usually 1 year), and require proof that the plan objectives have been met

Failure can result in:– Extension (with a showing of good progress)– Ending the reunification effort

Guardianship to a relative Long-term foster care Terminating parental rights and seeking adoption

placement

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Termination of Parental Rights

Severs the legal bond between parent & child May be of both or just one parent Will lose rights & duties:

– Support– Inheritance– Decision-making:

Health Education Welfare of the child

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Voluntary Termination of Parental Rights

Parent consents to court termination Court proceeding ends all legal rights Judge must, prior to termination:

– Confirm the parent wishes to have parental rights terminated

– Determine the consent is voluntary– Describe the rights that will be terminated– Determine the adequacy of legal representation

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Involuntary Termination

Child Protection Agency files a petition Describes the statutory grounds for the

termination– Absence of a parent/child relationship– Failure of the parent to comply with the

reunification agreement

Requires Clear & Convincing evidence (well beyond preponderance)

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The Child’s Best Interest

Beyond the statutory grounds, the termination must be in the child’s best interest

Has there been adequate time for completion of the reunification plan? Would the child be better off remaining in temporary care, with reunification still possible?

Does postponing the termination put the child in “limbo”, unable to be placed permanently?

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Adoption

Legal proceeding that inserts a biologically unrelated child into a family

The relationship is, for the most part, artificially consanguine

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Agency Adoptions

Public agencies– May be a branch of the child protection agency– Child is already under the custody of the state– Children have been in care for the duration of the

reunification plan– Children may have “bonded” with long-term foster

parents, who may be able to adopt them

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Private Agencies

Licensed by the state People seeking to adopt register with agencies, and

undergo examination– Physical & emotional environment– Home studies to determine the appropriateness of the

“match”

Initial placement is monitored before an adoption petition can be filed

A favorable evaluation will result in permanent placement of the child in the home

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Private Adoptions

Arranged directly between biological & adopting parents

No agency involvement Attorneys & physicians are frequently

involved in the placement Will still require home studies & monitoring of

the placement before finalization

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Stepparent Adoption

Spouse of the custodial parent adopts children

Non-custodial parent relinquishes parental rights– Gives up decision-making rights– Loses obligation to pay child support

Compared to other adoptions, a stream-lined process

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Consent

The custodial parent/spouse must consent to the adoption

The adoption will not affect his/her parental rights The non-custodial parent must also consent Objections may be over-ridden:

– Willful failure to pay child support (1 year)– Abandonment (no contact for 1 year)– Abuse or neglect of the child– Requirements vary from state to state

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Process

Petition filed in appropriate court Notice given to all concerned parties,

particularly the non-custodial parent who will lose parental rights

Child Support Enforcement Agency needs to confirm lack of support, if that is the basis for waiving the need for consent

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Child’s Best Interest

Child should be consulted about his/her feelings in the matter

Is there still a relationship with the non-custodial parent?

May require written consent of an older child in some jurisdictions

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Second Parent Adoptions

Where same sex couples are married (or, in California, are Domestic Partners), spouses or partners may use same process as stepparent adoption

In states where couples are not legally recognized, the approaches vary

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Gay Adoption

Single gay parents may adopt as individuals in many states– Although both partners may be psychological

parents or care-givers, some states will only recognize one mother or one father

– Other states permit “second mother” or “second father” adoptions, insuring parent/child relationships continue even if the couple separates

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Open Adoptions

The biological and adoptive parents (and sometimes the children) know each other’s identity, and may have continuing contact

May provide background information about health & cultural heritage

May be agency adoptions, or independent, or even “informal”

– Friends or relatives assume parental responsibility for children whose parents are not positioned to do so (frequently too young)

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Open Adoptions, cont.

May be through agency, with actual identity masked, but pertinent information released to both parties

There may be on-going communication:– Annual pictures– Letters, phone calls, e-mails– In-person visits

Despite contact, the biological parent has no further parental rights once the adoption is final

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Paralegal Role

Drafting open adoption agreements, pursuant to the laws of the state

May review agreements submitted May set up simple guidelines for permissible

communication for use after adoption

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THANK YOU!!!

What a fantastic class you’ve been