Child Protection and Adoption

1. Child Protection and Adoption Chapter 16

2. 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?

3. 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?

4. 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?

5. 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?

6. 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?

7. 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?

8. 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?

9. 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?

10. 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?

11. 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

12. 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

13. Investigation of Complaints • Visit the family • Observations, interviews • Substantiated – intervention • Unsubstantiated – no intervention, but report remains on file

14. 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

15. 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.

16. 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

17. 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

18. 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

19. 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

20. 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

21. 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

22. 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

23. 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)

24. 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?

25. Adoption • Legal proceeding that inserts a biologically unrelated child into a family • The relationship is, for the most part, artificially consanguine

26. 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

27. 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

28. 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

29. 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

30. 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

31. 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

32. 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

33. 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

34. 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

35. 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)

36. 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

37. 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

38. THANK YOU!!! • What a fantastic class you’ve been 