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The Missouri Bar

The Missouri Bar. Fall Committee Meetings November 18, 2011. Family Law Section Immigration Law Committee Juvenile Courts and Laws Committee . Joint CLE . Adoption Practice and Ethical Representation . 1.5 CLE Credit 1 Ethics Credit. General Topics. Overview of In re C.M.B.R.

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  1. The Missouri Bar Fall Committee Meetings November 18, 2011

  2. Family Law SectionImmigration Law CommitteeJuvenile Courts and Laws Committee Joint CLE

  3. Adoption PracticeandEthical Representation 1.5 CLE Credit 1 Ethics Credit

  4. General Topics • Overview of In re C.M.B.R. • Process and procedure of litigating the chapter 453 adoption with allegations pled under 211.447 • Special considerations with undocumented parents • Special considerations with undocumented children

  5. In re C.M.B.R 333 S.W.3d 793 Missouri Supreme Court January 25, 2011

  6. This Case Addresses Issues of: • Immigration and Resources • Due Process for Parents & Parties • Access to Courts for Parents & Parties • Timely Permanency for Children • Initial / Proper Placement of Children

  7. Factual Summary • Mother is an illegal immigrant from Guatemala. • She gives birth to Child on October 17, 2006, after entering the US (May 15, 2006). • She “parents” Child by herself until she is arrested. • She is arrested by immigration while working in a poultry plant (May 22, 2007). • She only speaks Spanish. • After her arrest, she arranges for her brother (Child’s uncle) to provide primary care for her infant Child but…

  8. Brother moves Child to their Sister (Child’s aunt), who later agrees to let a clergy family provide primary care for Child (time frame is unclear from case & record). • Clergy family knows a family who wants to adopt a child (September, 2007). • Adoptive Family meets Child (September 24, 2007). • Adoptive Family starts visiting with Child (October 3, 2007). • Adoptive Family files private action Petition for TPR / Adoption (October 5, 2007).

  9. Mother pleads guilty in federal court (October 11, 2007); she receives a two year sentence. • Mother is served with Adoption/TPR Petition and summons in jail (October 16, 2007). • Court schedules transfer of custody hearing; Mother is not listed in notice (October 17, 2007). • Transfer of Custody Hearing held & granted (October 18, 2007). • Mother writes to counsel for Adoptive Parents, protesting adoption & requesting visits (October 28, 2007).

  10. Court appoints first counsel for Mother (December 3, 2007) – notice mailed to Mother in jail, but service not accepted. • Adoption hearing set (notice filed December 3, 2007). • Adoptive parents direct their counsel to find a new attorney who speaks Spanish for Mother and they arrange to pay the fees. New counsel appointed (June 13, 2008). • New counsel speaks one time by phone and writes one letter to Mother.

  11. Contested Adoption / TPR Trial Day (October 7, 2008) • Three Count Petition: • Transfer of Custody & TPR (§ 453.040.7) • TPR (§ 211.447.2.b) • Grant the Adoption (in Child’s best interests). • Mother appeared by her counsel. • Counsel cross-examined witnesses, presented a letter from Mother and argued on her behalf. • After closing, the court granted the Petition. • Written order followed (October 9, 2008).

  12. Legal Holdings • Reversed and remanded; the failure to investigate and file required reports, prior to trial, is manifest error. Reviewed as “plain error.” • §211.447 & 455: Noinvestigationor social study of proposed adoptive parents was made prior to TPR being granted. • §453.070 & 077: No pre & post-placement assessments of Child with Adoptive Parents were presented to court for best interests.

  13. Process of litigating the Chapter 453 adoption with allegations pled under 211.447

  14. Adoptions pursuant to Chapter 453 only

  15. Jurisdictional Elements: • Pursuant to §453.010.1, • at least one of the following jurisdictional elements exists: • The person seeking to adopt resides in the county-§453.010.1(1) • The subject child was born in the county- §453.010.1(2) • The child is found within the county at the time the petition is filed - §453.010.1(3) • Either birth parent resides in the county- §453.010.1(4)

  16. Jurisdictional Elements: • Pursuant to §453.010.3, if the child to be adopted is under a court’s prior and continuing jurisdiction pursuant to Chapter 211, at least one of the following circumstances exists: • The Petitioner has petitioned the juvenile division which has jurisdiction over the child for permission to adopt. • If the Petitioner is requesting any alternate venue set forth in §453.010.1, the Petitioner has filed a motion with the juvenile division and the receiving court has provided consent before jurisdiction is transferred to a juvenile division in an alternative venue permitted under §453.010.1

  17. Other Jurisdictional Elements • Interstate Compact on the Placement of Children applies (see §210.620 et seq.) • Indian Child Welfare Act applies (see 25 U.S.C. §1901 et seq, regarding the applicability of ICWA and tribal notice and service requirements)

  18. What are § 211.447 grounds?

  19. What are § 211.447 grounds? • Information available to the juvenile officer or the division establishes that the child has been in foster care for at least fifteen of the most recent twenty-two months;

  20. What are § 211.447 grounds? • Information available to the juvenile officer or the division establishes that the child has been in foster care for at least fifteen of the most recent twenty-two months; • A court of competent jurisdiction has determined the child to be an abandoned infant. For purposes of this subdivision, an "infant" means any child one year of age or under at the time of filing of the petition.

  21. What are § 211.447 grounds?

  22. What are § 211.447 grounds? • A court of competent jurisdiction has determined that the parent has:

  23. What are § 211.447 grounds? • A court of competent jurisdiction has determined that the parent has: • Committed murder of another child of the parent;

  24. What are § 211.447 grounds? • A court of competent jurisdiction has determined that the parent has: • Committed murder of another child of the parent; or • Committed voluntary manslaughter of another child of the parent;

  25. What are § 211.447 grounds? • A court of competent jurisdiction has determined that the parent has: • Committed murder of another child of the parent; or • Committed voluntary manslaughter of another child of the parent; or • Aided or abetted, attempted, conspired or solicited to commit such a murder or voluntary manslaughter

  26. What are § 211.447 grounds? • A court of competent jurisdiction has determined that the parent has: • Committed murder of another child of the parent; or • Committed voluntary manslaughter of another child of the parent; or • Aided or abetted, attempted, conspired or solicited to commit such a murder or voluntary manslaughter ; or • Committed a felony assault that resulted in serious bodily injury to the child or to another child of the parent

  27. What are § 211.447 grounds? • The child has been abandoned. For purposes of this subdivision a "child" means any child over one year of age at the time of filing of the petition.

  28. What are § 211.447 grounds? • The child has been abused or neglected. • The Court must make findings on four specific conditions or acts of the parent relating to; • Mental Condition • Chemical Dependency • Severe act of Abuse • Repeated or Continuous failure to provide for the child

  29. What are § 211.447 grounds? • The child has been under the jurisdiction of the juvenile court for a period of one year, and the court finds that the conditions which led to the assumption of jurisdiction still persist, or conditions of a potentially harmful nature continue to exist, that there is little likelihood that those conditions will be remedied at an early date so that the child can be returned to the parent in the near future, or the continuation of the parent-child relationship greatly diminishes the child's prospects for early integration into a stable and permanent home • The Court must consider and make specific findings

  30. What are § 211.447 grounds? • The parent has been found guilty or pled guilty to a felony violation of chapter 566 when the child or any child in the family was a victim, or a violation of section 568.020 when the child or any child in the family was a victim. As used in this subdivision, a "child" means any person who was under eighteen years of age at the time of the crime and who resided with such parent or was related within the third degree of consanguinity or affinity to such parent

  31. What are § 211.447 grounds? • The child was conceived and born as a result of an act of forcible rape. When the biological father has pled guilty to, or is convicted of, the forcible rape of the birth mother, such a plea or conviction shall be conclusive evidence supporting the termination of the biological father's parental rights

  32. What are § 211.447 grounds? • The parent is unfit to be a party to the parent and child relationship because of a consistent pattern of committing a specific abuse, including but not limited to, abuses as defined in section 455.010, child abuse or drug abuse before the child or of specific conditions directly relating to the parent and child relationship either of which are determined by the court to be of a duration or nature that renders the parent unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental or emotional needs of the child

  33. Additional Elements of 211.447 • The juvenile court may terminate the rights of a parent to a child upon a petition filed by the juvenile officer or the division, or in adoption cases, by a prospective parent, if the court finds that the termination is in the best interest of the child and when it appears by clear, cogent and convincing evidence that grounds exist for termination pursuant to subsection 2, 4 or 5 of this section.

  34. Additional Elements of 211.447 • The court shall evaluate and make findings on the following factors, when appropriate and applicable to the case: • (1) The emotional ties to the birth parent; • (2) The extent to which the parent has maintained regular visitation or other contact with the child;

  35. Additional Elements of 211.447 • The court shall evaluate and make findings on the following factors, when appropriate and applicable to the case: • (3) The extent of payment by the parent for the cost of care and maintenance of the child when financially able to do so including the time that the child is in the custody of the division or other child-placing agency;

  36. Additional Elements of 211.447 • The court shall evaluate and make findings on the following factors, when appropriate and applicable to the case: • (4) Whether additional services would be likely to bring about lasting parental adjustment enabling a return of the child to the parent within an ascertainable period of time; • (5) The parent's disinterest in or lack of commitment to the child;

  37. Additional Elements of 211.447 • The court shall evaluate and make findings on the following factors, when appropriate and applicable to the case: • (6) The conviction of the parent of a felony offense that the court finds is of such a nature that the child will be deprived of a stable home for a period of years; provided, however, that incarceration in and of itself shall not be grounds for termination of parental rights;

  38. Additional Elements of 211.447 • The court shall evaluate and make findings on the following factors, when appropriate and applicable to the case: • (7) Deliberate acts of the parent or acts of another of which the parent knew or should have known that subjects the child to a substantial risk of physical or mental harm.

  39. Why file § 211.447 grounds in your Chapter 453 adoption?

  40. Chapter 453 Adoption • FOR ADOPTION OF A CHILD UNDER AGE OF 18 YEARS: • Consent of adoptee • If over 14 years (§453.030.2) • The child’s mother • The child’s current adoptive parents • Other legally recognized mother or father

  41. Chapter 453 Adoption • FOR ADOPTION OF A CHILD UNDER AGE OF 18 YEARS: • Only the man who: • §453.030.3(2)(a) -- is presumed to be the father pursuant to subdivision (1), (2) or (3) of §210.822, or • §453.030.3(2)(b) -- has filed an action to establish his paternity in a court of competent jurisdiction no later than fifteen days after the birth of the child and has served a copy of the petition on the mother in accordance with §506.100, or • §453.030.3(2)(c) -- has filed with the putative father registry pursuant to §192.016, a notice of intent to claim paternity or an acknowledgment of paternity either prior to or within fifteen days after the child’s birth, and has filed an action to establish his paternity in a court of competent jurisdiction no later than fifteen days after the birth of the child

  42. Consent not required from: • §453.040(1) - a parent whose rights with reference to the child have been terminated pursuant to law; • §453.040(2) -- a parent who has legally consented to a further adoption of the child; • §453.040(3) -- a parent whose identity is unknown and cannot be ascertained at the time of the filing of the petition;

  43. Consent not required from: • §453.040(4) -- a man who has not been established to be the father and who is not presumed by law to be the father, and who after the conception of the child, executes a verified statement denying paternity and disclaiming any interest in the child and acknowledging that this statement is irrevocable when executed and follows the consent as set forth in §453.030;

  44. Consent not required from: • §453.040(5) -- a parent or other person who has not executed a consent and who, after proper service of process, fails to file an answer or make an appearance in a proceeding for adoption or for termination of parental rights at the time such cause is heard

  45. Consent not required from: • §453.040(6) -- a parent who has a mental condition which is shown by competent evidence either to be permanent or such that there is no reasonable likelihood that the condition can be reversed, and which renders the parent unable to knowingly provide the child the necessary care, custody and control;

  46. Consent not required from: • §453.040(7) -- a parent who has for a period of at least six months for a child one year of age or older, or at least sixty days for a child under one year of age, immediately prior to the filing of the petition for adoption, willfully abandoned the child or for a period of at least six months immediately prior to the filing of the petition for adoption, willfully, substantially and continuously neglected to provide him with necessary care and protection;

  47. Consent not required from: • §453.040(8) -- a parent whose rights to the child may be terminated for any of the grounds set forth in §211.447, and whose rights have been terminated after hearing and proof of such grounds as required by §§211.442-211.487.

  48. What is a Consent? • Do the forms comply with §453.030.4-§453.030.9? • Children’s Division Form CD 48 OR CD49 utilized • Forms may be found at: http://www.dss.mo.gov/cd/info/forms/

  49. Why Are Assessments Needed? • §453.070.1 (pre-placement) and §453.077.1 (post – placement) are required prior to adoption decrees being granted. • The court was provided only with a report as to whether the adoptive parents were suitable as “foster parents” (they were not suitable). No report informed the court about “Best Interests” Factors, such as: • The child’s suitability for adoption, or • Adoptive family’s fitness to be adoptive parents, or • The child’s post-placement adjustment with adoptive family, or • The adoptive family’s post-placement adjustment to Child.

  50. Chapter 453 Required Documents • Assessment of adoptive parents pursuant to §453.070 to be completed by ____________(person/agency), and to be submitted to the court prior to transfer of custody pursuant §453.110.6

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