Case Law for Foster Care & Adoption

 

Judges apply law to multiple real life situations. In order to accomplish this lawyers cite similar cases already decided by the court, or other cases which have persuasive value in obtaining favorable orders in their case. See: https://www.quora.com/Whats-the-purpose-of-case-law

-           Maine, Supreme Judicial Court. In the Adoption of Paisley: Docket Kno-17-328. Decided January 30, 2018. Following a judgment terminating biological parental rights, foster parents granted adoption over contested adoption petition from MA family who had previously adopted the child's siblings.

-           South Carolina, Department of Social Services v. Boulware, the Supreme Court ruled that a foster family had standing to pursue a private adoption of a child placed in their care. The Court found that because the foster parents were South Carolina residents who brought legal action before the state placed the child for adoption and before the state was vested with the authority to consent to an adoption, the foster family had standing to pursue a private action for adoption

-           A.M. by and through his Guardian ad Litem, and L.H. and R.H. v. A.C., and the People in the Interests of A.M. v. N.M., 2012CO16M (Colorado, February 25, 2013; Modified March 18). Court holds that foster parents of a child in the middle of a D&N proceeding can fully participate in such hearings.  Full foster parent participation still provides the parental protections in Mathews v. Eldridge. Here, foster parents properly gave opening and closing statements, cross-examined witnesses, raised objections, and fully participated in the termination hearing without limitation.  

-           New Hampshire: In re Athena D., No. 2010-500 (N.H. October 22, 2010), evidencing the Court allowing a cross and/or competing petitions for adoption between grandparents and a foster/adoptive family where the court then held one, combined, sixteen day, final hearing on both petitions.

-           New Hampshire: In re R.A. and J.M., 153 N.H. 82 (2005). To achieve the best interests of the child, Supreme Court precedent has held that it is important “to take into account the child’s relationship with others, not merely the biological or legal connection the child has, or does not have, with the third party.” It “believe[s] that familial relationships, aside from biological bonds, stem ‘from the emotional attachments that derive from the intimacy of daily association,’ and from the manner in which such relationships promote family life.”     

-           In Fresno County Dept. of Children and Family Services v. Sup…,122 Cal. App. 4th 626 (2004). The California Appellate Court upheld a ruling in favor of continuing placement with foster parents due to their significant attachment over placement with the children’s tribe. The court reasoned that this extraordinary emotional bond falls under the “good cause” exception to the Act.

-           In the Interest of D.C., 32 Kan. App 2d 962 (2004). The Kansas Appellate Court ruled that a lower court erred, in part, when it discounted the emotional bond between a foster child and her foster parents, which is one factor in the best interests of the child.

-           In re Adoption of Bernard A., 77 P. 3d 4 (2003). The Alaska Supreme Court ruled for a grant of adoption of a foster child by his foster parents. The child had continuously resided with his foster parents from the age of seven months to three years. The court reasoned it was in the child’s best interests to be adopted by his foster parents due to the significant bond with them.

-           In Gerweck v. Schoenradt, 793 N.E. 2d 1054 (2003). The Indiana Court of Appeals recognized the importance of parenting and bonding when it comes to adoption.

-           In re C.G.L. v. McDonald County Juvenile Office, 63 S.W. 3d 693 (2002) the Missouri Appellate court upheld a ruling in favor of foster parents adopting their foster child over the objections of the child’s grandparents and their Indian Tribe.

-           In re Interest of J.A., 42 P. 3d 215 (2002). The Kansas Appellate Court ruled a lower court erred when it granted an adoption by grandparents based solely on biological preference when the foster family had more of a relationship with the child. The court reasoned that the bond between the foster family and the child is a critical factor when determining the child’s best interest.

-           In re Dependency of J.S., 111 Wn. App. 796 (2002). The Washington Appellate Court reasoned that the best interest of the child was to remain in the placement where he was thriving, not to undergo the risk of transition. “An important objective is to maintain continuity in the child’s relationship with a parental figure, and to avoid numerous changes in custody if this is possible without harm to the child. Where possible, the initial placement shall be viewed as the only placement for the child.” (p. 130).

-           In the interest of C.J.R., 782 A. 2d 568 (2001). The Pennsylvania Supreme Court ruled in favor of foster parents adopting their foster child over placement with the biological grandparents. The court reasoned that the risks in moving the child from the foster home where she was secure and attached to were too great.

-           In re Annie A., 2001 ME 105: similarly In re Kayla M., 2001 ME 166 (2001). Maine’s Supreme Court upheld a lower court ruling that gave adoptive placement to the foster parents over the child’s grandparents. The court reasoned that significant bonding occurred between the child and her foster parents, and it was in her best interest to remain with them.

-          In re Joshua M. (1998) 66 Cal.App.4th 458, 475. Although the goal of the juvenile law is to reunite children with their parents whenever possible, this reunification must be accomplished within 18 months from the time the child is originally taken from his or her parents’ custody. (§ 366.25, subd. (a).) This strict time frame, in turn, is a recognition that a child’s needs for a permanent and stable home cannot be postponed for an extended period without significant detriment. (See § 352; 1 Goldstein, Freud and Solnit, Beyond the Best Interests of the Child, pp. 42-43;).

-          In re Chester County CYS v. Cunningham (1995) 540 Pa. 258 (1995) 656 A.2d 1346. The Opinion in Support of Affirmance today: Appellants should not be foreclosed from the opportunity to demonstrate to the court their continued worthiness and suitability to care for these children. We conclude that foster parents have standing to file a "Report of Intent to Adopt," even without the consent of the child placement agency. Thus, the Opinion in Support of Affirmance creates a rule which grants foster parents "standing" when the agency approves, yet refuses them "standing" when the agency disapproves. Under the general principles of standing, there is no logical reason to distinguish between the two situations on this basis. Admittedly, the concept of standing is an amorphous one. Usually, standing is a requirement that parties have sufficient interest or injury in a lawsuit to ensure that there is a legitimate controversy before the court. See 59 Am.Jur.2d § 30 Parties (1987). Here the Opinion in Support of Affirmance is not using the concept of standing in its generally accepted sense. Rather, it is being used as a policy tool to prevent foster parents from adopting their children absent the consent of the agency on a per se basis. Our law places the supervision of adoptions firmly under the control of the courts of this Commonwealth. It is the duty of the court to determine whether adoption of a child will be consistent with the child's welfare and best interests.

-           In re Custody of H.S.H.K., 533 N.W.2d 419 (Wis. 1995), cert. denied sub nom. Knott v. Holtzman, __ U.S. __, 116 S. Ct. 475 (1995), observed that while "[t]here is little uniformity in the case law concerning nonparental visitation over the objection of a biological or adoptive parent, . . . some courts have observed a judicial trend toward considering or allowing visitation to nonparents who have a parent-like relationship with the child if visitation would be in the best interest of the child." The trial court was held to have abused its discretion in denying visitation rights to the foster parents where a foster family had been the custodial family since birth of a five- year-old child.

-           In re Kieshia E., 6 Cal.4th 68, 77 (1993). “The de facto parenthood doctrine simply recognizes that persons who have provided a child with daily parental concern, affection, and care over substantial time may develop legitimate interests and perspectives, and may also present a custodial alternative, which should not be ignored in a juvenile dependency proceeding.”

-           In re Ashley K., 571 N.E.2d 905 (Ill. App. 1991). The court upheld the trial court's decision to grant visitation rights to the non-successful adoptive foster parents in In re Adoption of Francisco A., 866 P.2d 1175 (N.M. App, 1993), relying on the best interests of the child standard.

-           In re Buness v. Gillen, 781 P.2d 985 (AK 1989).  A stepfather sought custody of a child after he separated from the child’s mother, to whom he was never married.  Supreme Court noted that a non-parent who shares a “significant connection” with a child satisfies the requirement for standing. 

-           In Youngberg v. Romeo, 457 U.S. 307, 324, 102 S. Ct. 2452, 2462, 73 L. Ed. 2d 28 (1982) (addressing constitutional rights of individual involuntarily committed to state custody). Several circuits have in fact extended the substantive due process rights recognized in Youngberg to children in foster care. See, e.g., Norfleet v. Arkansas Dep't of Human Services, 989 F.2d 289 (8th Cir.1993) (surveying cases from the Second, Sixth, Seventh, and Eleventh Circuits). Seventh, and Eleventh Circuits). This court finds persuasive the principles adopted in other circuits extending Youngberg to the foster care context. At this juncture, it appears that plaintiffs have stated facts sufficient to support a claim that their rights to "reasonable care and safety" while in foster care have been violated. Accordingly, defendants' motion to dismiss this claim is denied.

-           New Hampshire: That In re Diana P., 120 N.H. 791, 793 (1980), interpreted in loco parentis to allow foster parents standing to bring a proceeding to terminate the rights of the natural parents, thus allowing them to adopt the child. In doing so, the Court emphasized that a parental relationship existed between the foster parents and the child, and placement of the child in foster care arose without the natural parent’s consent and without the intent that foster care would only be temporary until the child and the natural parent can reunite. The Court specifically noted that the foster parents would need to have cared for the child for long enough to have formed a “psychological family,” and that two or three years would seem sufficient to do so.

-           In Smith v. Organization of Foster Families, 431 U.S. 816 (1977). The District Court held that the State's pre-removal procedures are constitutionally defective, and that, "before a, foster child can be peremptorily transferred . . . to another foster home or to the natural parents . . . The foster parent is entitled to [an administrative] hearing at which all concerned parties may present any relevant information. . . ." In this litigation appellees, individual foster parents and a foster parents organization, sought declaratory and injunctive relief against New York State and New York City officials, alleging that the statutory and regulatory procedures for removal of foster children from foster homes violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The District Court held that the foster child had an independent right to be heard before being condemned to suffer "grievous loss."

-           In the Matter of Confesora Benitez, Appellant, v. Ana Llano et al., Respondents, 39 N.Y.2d 758 (1976). The court, acting in the best interest of the child, ruled that the child should remain in the custody of a second cousin who had served as foster parents. This was because of the extended period of the nonparental custody, the attachment of the child to the custodian, and the child's imminent attainment of majority.

-           Mundie v. Nassau County Department of Social Services, 88 Misc. 2d 273, 274 (Sup. Ct. NY, 1976). NY's Nassau County of Social Services removed a child from a foster home because of abuse allegations, prior to an investigation into the matter. The removal negated the ability of the foster parents to adopt the child, which had been pending approval prior to the allegations. The court mandated a hearing be held on the matter so foster parents could have the opportunity to be heard and ultimately ruled that the Department's decision to remove the child from the foster home and withhold consent for adoption was unwarranted. The child was ordered to be returned to the foster parents so that adoption proceedings may commence, even after the child had been living outside the foster home for approximately ten months. 

-           In re Adoption of Jacono, 426 Pa. 98, 100, 231 A.2d 295, 296 (1967) "Once an abandonment has been established, then and only then, it becomes the duty of the court to determine whether adoption of a child will be for the child's welfare and best interests."

-           In re Adoption of Hookey, 419 Pa. 583, 589, 215 A.2d 860, 863 (1966). The Act directs the courts to take testimony and, if necessary, to order an investigation to decide whether adoption suits, "the physical, mental, and emotional needs and the welfare of the child."   

Additional information with persuasive value:

-           Adoption and Safe Families Act (ASFA, 1997)

This Act acknowledges that “This is the first time in Federal law that a child’s health and safety must be the paramount consideration when any decision is made regarding a child in the Nation’s child welfare system.” (Ross, 2004, p 10). The ASFA provides a strong legal argument in favor of bonding and there is more than sufficient evidence of the legislative concern that Ali’s bonded relationship with me should most definitely be honored. Congress made clear that where it was not possible to be equally “fair” to children and their parents, ASFA requires courts to elevate the interests of the child over those of the parent. The ASFA implements child development principles set forth in the influential work of Joseph Goldstein, Albert Solnit, and Anna Freud (Goldstein et al. 1996). These principles include consideration of;

1) the child’s need for parental continuity—an adult who serves as the child’s  “psychological parent”;

2) the importance of instilling in the child the feeling of being safe, protected and loved; and

3) the child’s compressed sense of time and the concomitant urgency of resolution.”

 

See: https://www.congress.gov/105/plaws/publ89/PLAW-105publ89.pdf

See: Ross, Catherine J., (2004). A Delicate Task: Balancing the Rights of Children and Mothers in Parental Termination Proceedings. In Studies in Law, Politics and Society. Austin Sarat and Patricia Ewick, (Eds.), (pp. 10-11). Elsevier Publishing Company.

-           Uniform Adoption Act (UAA, 1994)

This Act encourages different kinds of people to adopt. No one may be categorically excluded from being considered as an adoptive parent. Nonetheless, pre-placement (except in stepparent adoptions and when waived by a court for good cause) as well as post-placement evaluations of prospective adoptive parents are required, whether initiated by an agency or directly by a birth parent, in order to determine the suitability of particular individuals to be adoptive parents. Individuals who have served as a minor child's foster or de facto parents are given standing to seek to adopt the child, subject to the particular child's needs.

UAA Section 2-103. Placement for Adoption by Agency:

(a) An agency authorized to place a minor for adoption shall furnish to an individual who inquires about its services a written statement of its services, including the agency's procedure for selecting a prospective adoptive parent for a minor and a schedule of its fees.

(b) An agency that places a minor for adoption shall authorize in writing the prospective adoptive parent to provide support and medical and other care for the minor pending entry of a decree of adoption. The prospective adoptive parent shall acknowledge in writing responsibility for the minor's support and medical and other care.

(c) Upon request by a parent who has relinquished a minor child pursuant to [Part] 4, the agency shall promptly inform the parent as to whether the minor has been placed for adoption, whether a petition for adoption has been granted, denied, or withdrawn, and, if the petition was not granted, whether another placement has been made.

See: http://www.uniformlaws.org/Act.aspx?title=Adoption%20Act%20%281994%29 

    

General Disclaimer: Thank you for visiting the FOSTERING CHANGE: Alliance for NH Foster Parents website. The information on this site is for personal and educational purposes only. Our organization disclaims any liability or responsibility arising from the usage or the content of our website or any suggestions from an Alliance representative. Please be sure to double check any referenced laws, rules or regulations as they may have been revised or eliminated. The Child Protection Act RSA 169-C mandates that any person who has reason to suspect that a child is being  abused, neglected, maltreated or exploited must make a report to the proper authorities.  All citizens in the state of NH are mandated as reporters for 169-C , therefore let it be known that  any information that is shared with an Alliance representative, which must be reported within the context of the law in accordance with 169-C, will be reported. If you know a child at risk, please call 9-1-1 and/or the DCYF Central Intake Hotline immediately at: 1-800-894-5533. 

  • @FosterChangeNH

©2017 by FOSTERING CHANGE: Alliance for NH Foster Parents. Proudly created with Wix.com