Adoption | The Better Chancery Practice Blog

NAMING NAMES

January 29, 2013 § 1 Comment

The COA’s decision in Powell v. Crawley, handed down January 22, 2013, presents an opportunity to remind you of several aspects of name changes about which you need to be aware.

Christina Crawley gave birth to a baby daughter on January 29, 2010. The following day, Chase Powell, who was not married to Christina, signed two forms provided by the Mississippi Department of Health. The first form was an acknowledgment of paternity. The second was a “Name of Child Verification Form,” which included the following language:

By my signature[,] I verify and agree that the [c]hild’s name as it appears in Item 1 of the birth certificate and Item 1 of [the verification form] is the name to be given to the child by the mother and I, and the name is spelled in accordance with our wishes.

The verification form also included the following statement:

The name given a child on the Certification of Live Birth establishes the legal identity of that child, and as such attention to the spelling of the name must be exercised. Traditionally, the [c]hild’s last name is the same as the [f]ather’s last name as listed on the Certificate of Live Birth, or, in cases where the mother is not married at any time from conception through birth and there is no “Acknowledgment of Paternity,” the [c]hild’s name is the legal last name of the mother at the time of birth. However, parents are not required to follow tradition and may name the child any name of their choosing.

Chase verified the child’s name as Carsyn Michelle Crawley.

Nine months later, Chase filed a complaint in chancery court seeking an adjudication of paternity, child support, and visitation. He also asked to change Carsyn’s surname to Powell. At hearing, the matter was presented solely by argument of counsel, who offered the forms described above for the court’s inspection.

The chancellor ruled that Chase had waived his right to have the child’s surname changed when he signed the verification form.

The COA affirmed the chancellor’s decision, but not for the reason assigned by the trial judge. Judge Irving, writing for the majority, said:

“We need not decide whether the chancery court abused it[s] discretion in refusing to grant the requested relief because, as stated, Powell failed to make the State Board of Health a respondent. Therefore, the chancery court could not have granted the relief even if it had wanted to. See Tillman v. Tillman, 791 So. 2d 285, 289 (¶13) (Miss. Ct. App. 2001) (stating that it is the standard practice to affirm the trial court’s decision when the right result has been reached even if for the wrong reason).”

So here are a few nuggets to take away from this decision:

If you are seeking to change a person’s name only, then you proceed under MCA 93-17-1(1), which would obviously require in a case such as Chad Powell’s that the mother and father would be parties.
Another frequent cause of name changes is post-divorce, when the name change was not included in the divorce judgment and the petitioner wants a court order to get Social Security, driver’s license, retirement and other records straight. That kind of name change is also governed by MCA 93-17-1(1). It would be an ex parte action, since there is no other interested party.
If you wish to change the name on the birth certificate, then you proceed under MCA 41-57-23, which requires that you make the State Registrar of Vital Records a party. Typically, lawyers simply mail a copy of the complaint to the State Board of Health with a request for a response, and the agency will file an answer, most often either admitting the relief sought or leaving it up to the court. If you fail to make the agency a party, you can expect a result strikingly similar to Chad Powell’s.
MCA 93-17-1(2) allows the court to “legitimize” a child when the natural father marries the natural mother. Since that relief would include adding the father to the birth certificate, you should comply with MCA 43-57-23 and make the State Registrar of Vital Records a party.
There is a dearth of case law as to how the statutes authorizing establishment of paternity via acknowledgment interact with the statutes for parentage (paternity), child support, custody and visitation. If I were in practice, I think I would have advised Chase to file the parentage action as he did so as to open up all of the other relief incidental to being the father. Acknowledgment of paternity is only that; it does not confer visitation or custodial rights, does not set child support, and may even be set aside in certain conditions.
This decision sidestepped the question of the chancellor’s authority and scope of discretion in changing the child’s name. Since it is not res judicata as to the State Bureau of Vital Statistics, I would guess that Chase could file his suit again, this time making the agency a party. Maybe then we’ll get an answer.

ADOPTION IS FOREVER

September 27, 2012 § Leave a comment

Most attorneys who have been in practice any appreciable length of time have been confronted with this scenario: maternal grandma and grandpa want to adopt junior because momma and daddy are only 19 years old, prefer meth and weekend partying to raising the tad and are willing to “sign the papers,” and everyone agrees it would be best for junior, all things considered.

That’s pretty much what happened in the case of D.M. v. D.R., 62 So.3d 920 (Miss. 2011). The young parents relinquished their parental rights, and the maternal grandparents adopted the child by decree entered December 25, 2005. Unfortunately, the adoptive father (maternal grandfather) died four months to the day after the adoption, and the adoptive mother (maternal grandmother) died eight months to the day after the adoption. The adoptive mother had named her son as testamentary guardian of the child, but he renounced the appointment.

The court appointed a guardian ad litem, who recommended that the child be placed in the custody of the paternal grandparents. The natural mother attempted through various pleadings and proceedings to get custody of the child, but the chancellor ruled that she had abandoned the child by virtue of her consent to the adoption, and that she no longer was entitled to the natural parent presumption.

In upholding the chancellor’s ruling, the court quoted from its decision in Griffith v. Pell, 881 So.2d 184, 187-188 (Miss. 2004):

A parent has a constitutionally protected liberty interest in the “companionship, care, custody and management of his or her children.” Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). However, parental status that rises to the level of a constitutionally protected liberty interest does not rest solely on biological factors, but rather, is dependent upon an actual relationship with the child where the parent assumes responsibility for the child’s emotional and financial needs. As Justice Stewart observed in Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979) [Stewart, J., dissenting]: “Parental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring.”

The court went on to hold that the mother had voluntarily relinquished her parental rightt when she consented to the adoption, and that act surrendered the natural parent presumption. Grant v. Martin, 744 So.2d 817, 820 (Miss.App. 1999). The court rejected the mother’s argument that she was entitled to reinstatement of the natural parent presumption on death of the adoptive parents. In conclusion, the court stated:

An adoption, once entered, acts as an irrevocable surrender of all rights, obligations and privileges of the natural parent with and to the child. This surrender is not invalidated upon the deaths of the adoptive parents, and the natural parent is not entitled to resume the parent-child relationship, including the right to assert the natural parent presumption, upon the occurrence of that event.

You would do well to explain to all the parties at the table, including the natural parents, what they are giving up and what they are getting in such an arrangement. If I were doing it, I would get the natural parents to sign a paper for my file indicating that they understand they are giving up all rights, including the natural parent presumption and the right to regain custody in the future.

POST-ADOPTION DUTIES OF AN ATTORNEY

July 11, 2012 § Leave a comment

MCA 93-17-205 states in part:

“Counsel for the adoptive parents in the adoption finalization proceeding shall provide [the Bureau of Vital Statistics of the State Board of Health] with the information required in Subsections (1) and (3) of this section, and he shall also make such information a part of the adoption records of the court in which the final decree of adoption is rendered. This information shall be provided on forms prepared by the bureau.”

You can read subsections (1) and (3) for yourself to see what information is required.

The Lauderdale County Chancery Clerk’s office informally estimated for me that less than 10% of lawyers comply with the requirement of filing the information in the court file. I wonder how many file the required forms with the Bureau.

I have been presented with several petitions for disclosure of health information from adoption files, and in none of those files was there any health information other than the required physician’s affidavit.

The purpose of the law, obviously, is to preserve health and geneticc information that may be vital to an adoptee later in life. If you will read the disclosure statutes, you will find that the adoptee may petition the court to disclose certain information where necessary for health, and if that information is not in the file, then the adoptee’s only recourse is to look to the State Board of Health and hope that the attorney did his or her duty vis a vis that agency.

ANSWER TO THE ADOPTION PUZZLER

June 25, 2012 § 3 Comments

I posted An Adoption Puzzler last week that set out an interesting scenario. If you haven’t read it yet, take a minute to check it out.

The comments to the post are spot on, and I will mention them in a moment, but to get right to the heart of it, what the lawyer proposed simply will not fly because of MCA 93-17-13, which states, in part: ” … all parental rights of the natural parent, or parents, shall be terminated, except the spouse of the adopting parent.” In this case, then, the statute mandates that all parental rights of both the natural father and mother must be terminated, since the mother is not the spouse of the adopting parent.

There are lots of other implications raised by this proposal that bear discussion. Some of them:

Is it really in the child’s best interest? Yes, he will have insurance coverage, and possibly SS survivor benefits, but his grandfather will now be his father, his father in essence will be his brother, and if the mother’s rights are terminated, she will be a complete non-entity in his life. Is the grandfather fit at his age to raise this child to adulthood?
Does the mother understand that if her parental rights are terminated that she has no further recourse? Look at MCA 93-17-17, which says basically that only jurisdictional defects and failure to comply with the statutory procedures are grounds to set aside an adoption. A quite possible outcome later would be that, after the father gets out of prison he can re-adopt the child from the grandfather, doubly cutting the mother out of the child’s life.
Why are they attempting to accomplish by an adoption what could probably be achieved as effectively by guardianship or custody? Caveat: If you’re going to go the guardianship or custody route the mother needs to be advised of the deleterious effect either action would have on her natural parent presumption, which she would lose.
Is it ethical to promote such a drastic change in a child’s life and legal relationship to his parents merely to gain insurance coverage and possible SS benefits? Have you inquired what the arrangements will be in the future for the care of the child? If the mother’s rights are terminated, is she nonetheless going to continue to act as a parent? If so, aren’t you perpetrating a fraud on the insurance carrier and the SSA? If she is not going to continue, how suitable is a 72-year-old man to see to the needs of a toddler, and then a child, teenager and young man, over the span of the next 15 or so years.

David Linder’s comment hit the target by citing the code section, but the other comments all sounded the same alarms that I heard ringing in my head when I heard the proposal. When you’re confronted with questioning clients on a matter such as this you have to be ready to parse it thoroughly, filtering it through your knowledge of the statute law and cases, ethics, your experience, and — yes — your gut instinct.

Kudos to all of the commenters.

[Credit to Chancellor Debbra Halford for the reference to MCA 93-17-13]

AN ADOPTION PUZZLER

June 21, 2012 § 8 Comments

Here’s an adoption scenario I was presented with recently:

Natural father is convicted of a felony and sentenced to a long term in Parchman. Natural mother is left at home with one child, and is struggling financially. She does not want a divorce. Paternal grandfather, 72 years old and a widower, is willing to help by adopting the child. Natural dad will sign a consent. Jurisdiction and venue are proper. The adoption will allow the child to be covered by grandpa’s health insurance, and will have the added bonus of providing SS benefits for the child in the event that gramps kicks the bucket. Mom wants to continue to be the mom, so the adoption judgment will terminate natural dad’s parental rights, substitute the paternal grandfather for the natural father, and leave the mom in her position as mom. As the lawyer helpfully points out, it’s a win-win-win situation. Right?

You’re the special chancellor. How do you rule? What’s the basis for your ruling?

Answer later.

HB 1268 MERITS YOUR ATTENTION

June 5, 2012 § Leave a comment

Back in 2007, the legislature made some sweeping changes in the adoption statute, particularly with regard to jurisdiction and venue.

The 2012 legislature has made some more changes, embodied in HB 1268, which take effect July 1, 2012. That means that if you have an adoption pending on that date, you’d better be prepared to meet its requirements. I suggest you click on the link and print yourself a copy so you can change your office forms and procedures.

Here is a summary of the changes:

The child (the term I will use for the person — adult or child — who is to be adopted) may not be placed in the home of or adopted by the adoptive parent(s) before a court-ordered or voluntary home study has been completed. MCA 93-17-3(6). (See comments below)
The required home study must be done by a licensed adoption agency, or a licensed, experienced social worker approved by the chancery court, or by the DHS “if required by MCA 93-17-11” (See comments below). MCA 93-17-3(6).
For out-of-state adopting parents, the Interstate Compact for Placement of Children (MCA 43-18-1, et seq.) must first be complied with. Evidence of placement approval (forms 100A and 100B) must be placed in the permanent adoption record file. Also, a minimum of two post-placement reports conducted by a licensed placement agency must be filed with DHS Interstate Compact for Placement of Children Office. MCA 93-17-3(7), a newly added provision.
The Indian Child Welfare Act (ICWA) must be complied with, if applicable. If the ICWA is not applicable, the petition must state that it is not applicable, or an affidavit to that effect must be on file before finalization. MCA 93-17-3(8), a newly added provision.
The post-adoption reports required in MCA 93-17-205 are changed. These are forms that are required to be filed with the State Department of Health, Bureau of Vital Records. MCA 93-17-205.

Comments: It is not at all clear to me how the new language in MCA 93-17-3 regarding home studies will interface with MCA 93-17-11. The language of section -3(6) starts out in seemingly mandatory fashion, but ends with “if required by Section 93-17-11” language. MCA 93-17-11 is the code section that allows the chancellor in his or her discretion to require a home study. My best guess is that the new language in -3(6) will be interpreted to define who has authority to do the home study that may be ordered by the court in -11.

Notice the ICWA pleading requirement. You’d best add it to your forms.

UPDATE ON LEGISLATION

April 19, 2012 § 2 Comments

I posted here and here about pending legislation that might affect your chancery court practice.

Here is a list of pending bills affecting the judiciary that are still alive (or as the legislators say, “not dead”).

As you can see, most of what has survived has to do with criminal laws and procedure, or domestic violence, with a couple of exceptions.

HB 484. Judicial and DA pay raise, 2012 version passed both houses and was signed into law.

HB 1268. Makes several significant changes to the adoption statutes, including a provision that an attorney representing an adoption agency must complete training, is in conference.

Believe it or not, that is all from the previous lists I posted that has made it this close to the finish line.

ADOPTION DECREE DO’S AND DON’TS

October 11, 2011 § 1 Comment

Before you draft your adoption final decree, be sure to read MCA §§ 93-17-13 and 29. There are some critical provisions in those statutes that you need to address.

Here are the highlights of 93-17-13:

DO include in your judgment a six-month interlocutory period unless the child to be adopted is the stepchild of a petitioner or is related to a petitioner by blood within the third degree, unless the chancellor has determined that the interlocutory period is not necessary for the benefit of the court; if the judge does waive the interlocutory period, DO include language in your final judgment that the interlocutory period is waived and the reason why.
If the chancellor shortens the interlocutory period by the length of time that the child has lived with the adoptive parent in their residence, DO include that explanation in your judgment.
DO include in your judgment that that the child shall (a) inherit from and through the adoptive parents and siblings as would a child of the full blood. The language of the statute is explicit, and you should track it verbatim.
DO specify in your judgment that the child, adoptive parent(s) and kin are all vested with all of the rights and responsibilities as if the child had been born to the adoptive parents as their natural child. Again, the language of the statute is explicit, and you would do well to copy it verbatim into your judgment.
DO adjudicate in the body of the decree that the name of the child is changed, if desired.

And here are the highlights of 93-17-29:

DON’T state the name of the natural parent or parents in the style of the case or where they can be spread on the minutes of the court.
DON’T state the name of the natural parent or parents in your final decree.
DON’T state the original name of the child or children in the style of the case. Use “the child named herein,” or “a minor child,” or words to that effect.
DON’T state the original name of the child or children in the decree unless the name of the child will be unchanged.

Section 29 addresses confidentiality issues. Use your common sense. Any confidential information that you add to the style of your case will find its way into the docket entry and even into a publication notice. “Confidential information” in the sense of adoption embraces any information that will identify the child by original name, or that identifies either or both of the natural parents. I have seen publication notices that are blatant violations of this code section. Once that kind of improper publication is made, confidentiality for all intents and purposes is eliminated. If you have any doubts about how to style your case to avoid these problems, sit down with your chancellor and hash it out before you file your pleadings.

Some lawyers ask how to accomplish an adjudication of termination of parental rights without naming the terminated parent(s) in the final decree. Two methods come to mind: (1) enter a separate judgment specifically terminating the parental rights and reference that judgment in your final decree with language like “The parental rights of the natural parents were terminated by separate judgment in this action rendered March 16, 2011, which is incorporated herein by reference for all purposes;” or (2) in the final decree, simply state that the rights of the natural parents identified in the Complaint for Adoption are hereby terminated, etc.

I heard a report from another district that the State Board of Health is requiring that the name of the parent or parents whose rights are terminated must be included in the decree. If so, that agency is requiring by its directives a violation of the statute. Based on my training, background and experience, I take the position that the statutory law of Mississippi trumps agency directives every time.

IN LOCO PARENTIS TAKES ANOTHER HIT

June 6, 2011 § Leave a comment

In the COA case of Wells v. Smith, decided May 31, 2011, the appellate court was again confronted with a painful reality that chancellors are seeing more and more frequently: the situation where a child is raised by the grandparents because one or both of the natural parents has chosen to be absent from the child’s life, and the natural parent awakens one day to assert his or her parental rights.

In this most recent case, Tara Wells had given birth to a son, Jason, out of wedlock in 2003. Robert Johnson was Jason’s natural father. Tara and Jason lived with her mother, Sarah Smith, and her husband, William, for a time after the birth while she attended college. Tara’s college education spanned three years, and her time spent with Jason tapered off the longer she was in school. In April, 2006, Tara and Robert were married, and they moved to Washington, DC, where Robert was stationed with the military. Tara took Jason with her to live in DC, but returned him to live with the Smiths a short time later. After three months of marriage, Tara and Robert separated. Tara stayed in the DC area and Jason split time between there and Mississippi until November, 2006, when he returned to Mississippi for good.

In May, 2007, Tara signed over medical guardianship of Jason to the Smiths. Tara’s contact with Jason grew less and less. She allowed Jason to live with the Smiths, never asking to take him to live with her. In the meantime, Robert Johnson had been incarcerated in Virginia. In June, 2008, the Smiths filed pleadings in Mississippi seeking permanent custody of Jason. On October 1, 2008, they filed a petition for adoption and termination of Tara’s and Robert’s parental rights.

In December, 2008, Tara began living with another man, Neil Baker, and they were engaged in March, 2009, despite the fact that Tara was still married to Robert Johnson. Tara and Neil moved to Arizona. She was financially dependent on Neil, and he had never met Jason.

Also in December, 2008, Robert Johnson joined in the Smiths’ pleading for custody and consented to their being granted custody; he also consented to and joined in the petition for adoption.

In April, 2009, the court appointed a GAL. The GAL report recommended that the child stay with the Smiths. The GAL report, as well as the weight of proof at trial, established that the Smiths were the only mother and father Jason had ever known, and that their home was the only home he had ever had.

The chancellor relied on the doctrine of in loco parentis, in part on the GAL’s recommendation, to overcome the natural parent presumption and to find, applying the Albright factors, that Jason’s best interest would best be served by staying with the Smiths rather than his mother.

On appeal, the court analogized the case to the recent supreme court decision in Vaughn v. Davis, 36 So.3d 1261 (Miss. 2010), in which the court reversed and remanded for the chancellor to determine whether the father had relinquished the natural-parent presumption for reasons other than forfeiture by agreeing to a temporary custody order. The supreme court did not want to extend Grant v. Martin, 757 So.2d 264, 266 (Miss. 2000), which held that a parent’s agreement to a guardianship or custody judgment in a third party does create a forfeiture of the natural-parent presumption, to temporary orders, and wanted the chancellor to evaluate the proof to determine whether there was some other basis upon which to proceed.

The Vaughn decision pointed out the case of In re Leverock, 23 So.3d 424 (Miss. 2009), in which the natural father was found to have deserted his child by avoiding his moral and legal duties and parental obligations for in excess of two years.

The COA said in Wells:

“Although Vaughn was a case where the chancery court improperly found relinquishment of the natural-parent presumption due to the signing of a temporary custody order, it is analogous to this case. Here, the chancellor improperly relied on the doctrine of in loco parentis to find that the natural-parent presumption had been relinquished. We have been able to find no precedent for using that doctrine to overcome the natural-parent presumption. However, given the similarity of the facts in this case to Leverock and Vaughn, this case should be remanded to the chancery court to determine whether Tara deserted Jason, thus relinquishing her right to the natural-parent presumption. On remand, the chancery court should consider Jason’s circumstances at the time of remand.” [Emphasis added]

As in Davis, then, the Wells court directed the chancellor to find a basis other than the one he originally asserted as a basis to accomplish the best interest of the child. In Wells, the rejected basis was in loco parentis. I would guess that the definition of desertion to be applied by the trial judge will be MCA § 93-15-103(3).

The bottom line is that if you’re still barking up the in loco parentis tree, you are barking up the wrong tree. It simply won’t form the basis to overcome the presumption in favor of the natural parent. You’ll have to find another way to go in these very difficult, gut-wrenching cases.

MAKING SURE YOUR ADOPTION FLIES

March 21, 2011 § Leave a comment

Momma, daddy, baby, grandma and grandpa, Aunt JoAnn and Uncle Billy are all assembled expectantly with their digital cameras and mylar baloon bouquets awaiting that happy moment when the judge signs the adoption papers. Their party is deflated, though, when you glumly emerge from the judge’s office and report that there are still some papers you need to get straight before the judge will affix his signature. Hopes dashed, disappointments piqued, and disgruntled clients.

Adoptions are technical. Not the sort of thing you slap together and slide through with little thought.

Here are some tips to make your adoptions succesful:

Plead proper residence jurisdiction. MCA § 93-17-3 was amended almost four years ago to require six months’ residency, yet we still have lawyers pleading 90 days’ residency. Change your forms.
Plead venue. § 93-17-3 sets out several scenarios for venue. Select the one that fits your case and track the language of the statute.
There is a UCCJEA-like requirement in § 93-17-3(2) and (3). Be sure to plead what it requires about proceedings in other states.
Remember that the petition must be accompanied by an affidavit of a doctor or nurse practitioner as to the child’s health, and an affidavit as to the child’s property or lack thereof.
§ 93-17-3(4) also requires an affidavit of the petitioner(s) of all service fees charged by adoption agencies, as well as “all expenses paid … in the adoption process as of the time of filing the petition.” I interpret this to include attorney’s fees.
The petition must be sworn, per § 93-17-3(4).
§ 93-17-5 sets out the requirements as to who must be joined, and how. Note that § 93-17-5(2) requires that “The child shall join the petition by its next friend.”
Since MCA § 93-13-13 gives any minor over the age of 14 the right to select his or her guardian, you should have the adoptive child execute a joinder, if over the age of 14.

In this district we require a pre-adoption conference between the judge and the attorney. The judge will review your petition and affidavits, as well as your proposed judgment, and, if everything is in order, set a date for the final adoption. If some remedial work is needed, the judge will point out what needs to be done and send you on your way to get it done. Do not invite your clients to be there on the off-chance that the judge might approve the paperwork. That would defeat the purpose of the conference, and the judge has not necessarily built the extra time into his calendar to handle both the conference and the adoption.

Several other posts on adoption tips are here, here and here.

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