Must There be a Pending Adoption for TPR to Proceed?

March 25, 2015 § 2 Comments

We discussed the TPR statute yesterday in the context of the MSSC’s holding in Chism v. Bright that the statutory prerequisites in MCA 93-15-103(1) must be met before the chancellor may proceed to consider the grounds for termination of parental rights.

The last of those prerequisites is

… when adoption is in the best interest of the child, taking into account whether the adoption is needed to secure a stable placement for the child and the strength of the child’s bonds to his natural parents and the effect of future contacts between them …

In the COA case Farthing v. McGee, decided February 17, 2015, the chancellor ruled in part in a TPR case that the statute required a pending adoption action in order for TPR to proceed. The COA disagreed. Judge Maxwell wrote for a unanimous court, with Judge James specially concurring:

 ¶20. We also note the chancellor believed a pending adoption petition was a prerequisite to considering grounds for termination. But while an apparent concern of the statute is when a parent’s rights may be terminated for a child to be adopted, there is no statutory mandate that an actual petition must be filed before termination is sought. See Miss. Code. Ann. § 93-15-103(1). Instead, our supreme court recently reemphasized the court must consider if “adoption is in the best interest of the child” as one of the three prerequisites to considering grounds for parental-rights termination. Chism v. Bright, 152 So. 3d 318, 323 (¶15) (Miss. 2014) (emphasis added). Our high court made no mention of the necessity for a pending adoption petition.

¶21. On remand, the chancellor shall consider the GAL’s report when addressing the prerequisites of section 93-15-103(1), as discussed and emphasized by the supreme court in Chism, 152 So. 3d at 323 (¶15). If those prerequisites are deemed met, the chancellor shall address the abandonment-related grounds raised in Kristen’s termination request. [Footnote omitted]

So, until the supremes speak further on this topic, the rule is that the trial court must take into account whether adoption is in the best interest of the child, but no adoption action needs to have been filed.

This is the first case of which I am aware in which the courts have looked at TPR through the prism of Chism ( I know, I did that on purpose). Judge Maxwell’s opinion specifically mentions the abandonment language of prerequisite 1, which I discussed yesterday. That’s comforting and lends a little more weight to the idea that TPR might not be as moribund as we thought.

Switching Parents

March 18, 2015 § 1 Comment

A lawyer presented me with an interesting adoption query not too long ago. The natural parents are agreeable to the paternal grandmother adopting their child, but they want the father to retain his parental rights so that he can provide health insurance covering the child, and so that he can maintain a relationship and regain custody in the event that something happens to the grandmother. In essence, the parties propose substituting the grandmother for the mother. Can this be done?

The answer, in a word, is no.

That’s because MCA 93-17-13 precludes it. Here’s the pertinent language:

… and all parental rights of the natural parent, or parents, shall be terminated, except as to a natural parent who is the spouse of the adopting parent.

So the only situation in which the parental rights of a parent may survive adoption is where the spouse of a natural parent is adopting the child. In that case, the natural parent/spouse retains his or her parental rights.

The same result would obtain in a situation where the parties agree that a third party may adopt the child, but want to retain their parental rights for some reason. That is not permitted under the statute.

The essence of adoption is the severance of the legal relationship between the child and one or both parents, with a substitution of a new parental relationship. If the arrangement you propose to the court does not accomplish that within the parameters of 93-17-13, you need to think through some alternatives.

I posted in 2012 about a similar adoption conundrum. You can read about it here.

Clarifying Readoption

July 14, 2014 § Leave a comment

Readoption — the process of recognizing foreign adoptions in Mississippi — has become a more frequent phenomenon as parents wanting to adopt have found adoptable children in Russia, China, Thailand, and other countries.

Quite often readopting parents who have run a financially and emotionally exhausting gauntlet of obstacles in a foreign country return to Mississippi only to be confronted with similar hurdles in their home state.

SB 2180 amends the adoption statutes to allow a more streamlined procedure for readoption, and even includes forms for use in chancery court. It clarifies various nuances of readoption, including that only one readoption, in either this state or another state, is necessary, and that any subsequent adoption of the child would be a standard adoption, and not another readoption. The new provisions go into effect July 1, 2014.

If you handle readoptions you need to become familiar with these new provisions.

Parties in Adoptions

August 6, 2013 § Leave a comment

It’s obvious that the natural parents and adopting parents are necessary parties in adoption cases. But when you read MCA 93-17-5, you will see that the scope of persons to be included is considerably greater.

The statute requires that the following persons be joined by process or by consent to the adoption:

  • the parent or parents, even though one or both are under twenty-one; or
  • if both parents are dead, then any two adult kin of the child within the third degree; or
  • if both parents are dead and an adult kin of the child has “possession” of the child, then that party must be joined or must consent; or
  • the guardian ad litem of an abandoned child, where it is alleged that the parents’ whereabouts are unknown after diligent search and inquiry; or

The statute goes on to say that “In addition,” the following shall be made parties:

  • person(s) having physical custody of the child, except foster parents via DHS.
  • any person who had been awarded custody of the child by a Mississippi court with jurisdiction;
  • the “agent of the county [DHS} that has placed the child” in foster care by agreement or court order;

A consent “may also be executed” and filed by an authorized representative of a “home to whose care a child has been delivered.”

Subsection (2) includes the important requirement that: “The child shall join in the petition by its next friend.”

If the child is more than 14 years old, subsection (4) requires that the child execute a sworn or acknowledged consent, or be joined by service of process.

If the child was born to parents who were not married to each other, the father has no right to object unless he has demonstrated within 30 days after the birth of the child “a full commitment to the responsibilities of parenthood.” Note that the language of the statute only says that the unwed, irresponsible parent has no right to object; it does not say that he is not entitled to notice, although it can be argued that notice is superfluous if he has no standing to object. Determination of the father’s rights may be made in a separate proceeding, pursuant to MCA 93-17-6.

In the recent case of Little v. Norman and DHS, decided July 23, 2013, the COA noted that a grandparent with custody who is required to be joined in the adoption may, nonetheless, have no right to stop it. The sourt stated in ¶16 that: “Mississippi Code Annotated section 93-17-5(1)(ii) (Rev. 2004) provides that certain people ‘shall be made parties to [an adoption] proceeding[,]’ including ‘[a]ny person to whom custody of such child may have been awarded by a court of competent jurisdiction of the State of Mississippi.’ Even so, the Mississippi Supreme Court has held that although a grandfather who was the legal custodian of a child was a necessary party to an adoption, his status did not provide him with ‘the prerogative of consenting to the adoption and by corollary, withholding consent and thereby thwarting the adoption.’” Martin v. Putnam, 427 So. 2d 1373, 1376 (Miss. 1983). And, by way of further explanation, continued in footnote 6 on the same page: “What purpose did the legislature intend by designating parties to an adoption proceeding whose consent was not necessary to its validity? We are of the opinion the legislature’s intention was to bring into the suit those persons most likely to be familiar with the background and needs of the person sought to be adopted so they could give testimony concerning his or her best interest. . . . This of course, accords with our many decisions concerning children wherein we have stated that the best interest of the child is paramount. The designated parties thus become witnesses concerning the facts known to them to aid the trial court in its solemn determination of whether to grant or deny an adoption. We think the testimony from those who are close kin to a child is most significant because, in theory, they love the child best and would give truthful testimony as to the child’s best and enduring interest.” Id., at 1376-77.

I stress with lawyers that it’s better to have to take an extra step in an adoption to get it right than to have to face a motion  to set it aside at a later date. Lack of jurisdiction over all the necessary parties is one of those flaws that can be fatal.

Termination in the Best Interest

July 23, 2013 § Leave a comment

The COA case of In Re: Adoption of H.H.O.W., decided March 12, 2013, illustrates the important principle at work in termination-of-parental-rights cases that it is the best interest of the child, and not mechanical application of the termination statutes, that will dictate the result.

In this case, the unmarried parents, Gavin and Brigit, had left their nine-month-old son, Henry, in the care of the father’s sister and her husband for more than three years, during which they had limited contact with the infant. When the caretakers filed to terminate parental rights of the parents and for adoption, a contest ensued and the chancellor ultimately found that the failure of the parents to visit the child had caused a “substantial erosion” of the parent-child relationship. The COA affirmed:

¶9. Relevant to the case at hand, section 93-15-103(3) provides:

Grounds for termination of parental rights shall be based on one or more of the following factors:

….

(b) A parent has made no contact with a child under the age of three (3) for six (6) months or a child three (3) years of age or older for a period of one (1) year; or

. . . .

(f) When there is an extreme and deep-seated antipathy by the child toward the parent or when there is some other substantial erosion of the relationship between the parent and child which was caused at least in part by the parent’s serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate, or prolonged imprisonment . . . .

The chancellor’s decision was grounded in subsection (3)(f), a finding of “substantial erosion of the relationship between the parent and child which was caused at least in part by the parent’s prolonged and unreasonable absence [and] unreasonable failure to visit.” This was supported by the uncontested fact that Brigit and Gavin failed to visit Henry for approximately three years, beginning when the child was only nine months of age. In response, Gavin and Brigit point to evidence of communication – they called approximately every two or three weeks – but there was also significant evidence showing that these attempts had been ineffective in preserving the parent/child relationship. We note that the statute provides that the erosion may be a result of either “prolonged and unreasonable absence” or “unreasonable failure to visit”; the law recognizes that communication in and of itself is not necessarily sufficient to preserve the parent/child relationship. Moreover, Gavin admitted in his testimony that, until Henry learned to talk, they did not speak directly with him on the phone, but instead Gavin spoke with Alexis about Henry …

The chancellor found it more credible that the caretakers had not withheld or alienated the child, and that the natural parents had been derelict in maintaining the relationship. This segment of the chancellor’s bench opinion was telling:

[Gavin and Brigit] wanted me to watch . . . [a video recording of some of their visits with Henry] . . . . [W]hat I see is a little boy playing with a man. What I see is a little boy . . . playing with another little girl. I don’t see a father and son relationship. It just could not possibly exist. That bond could not have been formed . . . [even if, i]ntellectually, [Henry] may understand that [Gavin] is his father . . . .

It’s easy to fall into the belief that one must simply prove one or more of the statutory grounds, such as failure to support for the prescribed period, or failure to maintain contact for the presecribed period, or any of the other elements, before the court may grant a termination of parental rights. This case points out an important point beyond mere mechanical application of the statute: that it is the impact of the parental conduct that matters more than simply ticking off the requirements of the statute. Where the parental behavior has caused the destruction of the relationship, the requirement of the statute has been satisfied.

CONSTITUTIONALLY UNPROTECTED FATHERS

April 9, 2013 § 2 Comments

If you do any adoption work, the case styled In the Matter of the Adoption of a Minor Child, A.S.E.L.: V.S.P v. M.J.W. and M.S.L., decided by the COA on April 2, 2013, is one you should be familiar with.

The facts are somewhat involved, but the essence is that Vincent, age 19, and Dana (pseudonyms), age 17, had a child together, whom they named Andy, born May 25, 2004. Vincent was not listed as the father on the birth certificate. Shortly after the birth, the young couple split and Dana moved from place to place with the baby. Vincent had little contact with Dana or the child, and he did nothing to help support his offspring.

Through a series of events, Dana’s brother Mark, and his wife, Melanie, obtained custody of Andy in youth court.

Melanie and Mark decided to adopt Andy, and in April, 2005, Dana signed a consent to adoption. Vincent was not made a party to the adoption because paternity had never been established. A judgment finalizing the adoption of the child by Mark and Melanie was entered December 16, 2005.

In September, 2009, nearly four years after the adption, Vincent filed an action to set it aside, claiming that it was void because he was not made a party, despite the fact that everyone involved should have known that he was the father, and that Dana was coerced into executing the consent.

The chancellor denied Vincent any relief, and he appealed. Judge Barnes, for the majority, wrote:

¶21.  … we note generally the setting aside of an adoption decree is disfavored in Mississippi. See [In Re Adoption of J.E.B., 822 So.2d 949, at 952] (¶10) (citing Humphrey v. Pannell, 710 So. 2d 392, 399 (¶35) (Miss. 1998)). There is a strong public policy declaration in Mississippi’s adoption statutes for the finality of adoption decrees. In re Adoption of M.D.T., 722 So. 2d 702, 705 (¶12) (Miss. 1998) (citing In re Adoption of R.M.P.C., 512 So. 2d 702, 707 (Miss. 1987)).

¶22. It is well established that the United States Supreme Court has offered constitutional protection to the rights of unwed fathers who have tried to have relationships with their children. Stanley v. Illinois, 405 U.S. 645, 651-59 (1972), held for the first time that under certain circumstances, such as when the putative father has participated in the care and custody of his child, the Constitution protected an unwed father’s parental rights. The Supreme Court clarified the rights of unwed fathers six years later in Quilloin v. Walcott, 434 U.S. 246 (1978), where the Court established the requirement of a meaningful relationship with the child, and not just proof of biology, in a putative father’s attempt to set aside an adoption. In Quilloin, the appellant did not petition for legitimation of his child for eleven years, between the child’s birth and the filing of the adoption petition. Id. at 249. The father failed to seek custody of the child, and never had significant responsibility for the child regarding supervision, education, and care. Id. at 247, 256. The Supreme Court held that the natural father’s substantive rights under the Due Process Clause were not violated by applying the “best interest of the child” standard in this instance, and the adoption was affirmed. Id. at 254, 256. In Caban v. Mohammed, 441 U.S. 380, 392-94 (1979), the Supreme Court concluded the unwed father, who had had custody of his children for several years and thereby established a significant, supportive relationship, should have the privilege of vetoing the adoption of his children, not merely receiving notice.

The court went on to affirm the chancellor’s ruling, holding that if a biological father has failed to establish the quality of relationship described in the US Supreme Court decisions and in MCA 93-17-6, then he has no constitutionally protected right to process and participation in the proceeding, and failure to serve him with process does not void the adoption judgment.

Several observations:

  • Not a criticism of counsel, but wouldn’t it have been more prudent to get a consent from Vincent? The undisputed facts establish that he was agreeable with the adoption at the time it was in process. If he did not want to admit paternity, language could have been added to the consent to the effect that he did not know whether he was the father, but, in the event that he might be, he consented to the adoption. Lawyers sometimes yield to the client’s desire to do it the easiest way, when a little more trouble now could avoid lots more down the line.
  • Add some protective language to your consents. Add language to the effect that it was not coerced, was freely given, and that the signer knows and understands that it is irrevocable and can not later be undone. It may not be conclusive in a later attack, but it would certainly buttress the defense of the original judgment.
  • Ponder measures you can take to immunize your judgment from attack months and even years down the road. Make sure you have tended to every detail, especially jurisdictional detail, in strict compliance with the statutes. In the past few years, it has become increasingly common for parties to agree to one thing, and then to hire another lawyer to try to set the agreement aside. The more armor-plating you add to your judgments (and property settlement agreements and contracts, for that matter), the more likely it is that they will survive attack.  

THE RIGHT OF AN ADOPTED CHILD TO INHERIT FROM THE NATURAL PARENTS

January 30, 2013 § Leave a comment

Consider this scenario:

Father and Mother One have a daughter together, whom we will call Daughter One. Mother One dies and Father is remarried to Mother Two. Father and Mother Two have a daughter together, whom we will call Daughter Two. Soon after Daughter Two’s birth, Father and Mother Two are divorced. Mother Two remarries, and her new husband, with Father’s consent, adopts Daughter Two. Father never remarries, has no more children, and dies intestate. Who are his heirs?

If you answered both Daughter One and Daughter Two, you are correct.

MCA 93-17-13 specifies that ” … the natural parents and natural kindred of the child shall not inherit by or through the child, except as to a natural parent who is the spouse of the adopting parent, and all parental rights of the natural parent, or parents, shall be terminated except as to a natural parent who is the spouse of the adopting parent.” Nothing in the statute precludes the adopted child from inheriting from the natural parents.

In Alack v. Phelps, 230 So.2d 789, 793 (Miss. 1970), the Mississippi Supreme Court held:

While the effect of a final decree of adoption is that the natural parent or parents will not inherit by or through the child, and all parental rights are terminated, Mississippi’s adoption law does not state in any shape, form or fashion that the right of the child to inherit from its natural parents is terminated. We think the intent of the legislature is clear; they intended for the child to continue to inherit from his or her natural parents.

2 C.J.S. Adoption of Children s 63(c) page 454 (1936) succinctly states the applicable law in this way:

‘In the absence of a statute to the contrary, although the child inherits from the adoptive parent, he still inherits from or through his blood relatives, or his natural parents. In view of the tendency of the courts to construe adoption statutes so as to benefit the child, as pointed out above in s 6 of this Title, and also, in in view of the fact that a statute severing the relation between parent and child is in derogation of common law and should for that reason be strictly construed, it has been held that an adoption statute providing that the natural parents shall be divested of all legal rights and obligations with respect to such child should not be construed so as to deprive the child of its right to inherit from or through its natural parents. Under such a statute it cannot be assumed that the adopted child cannot inherit from its natural parent unless there is an express legislative declaration to that effect.’

There is no express legislative declaration to that effect in Mississippi’s adoption law.

This issue was presented to me recently when a lawyer inquired whether an adoption decree that included the express language that the minor child ” … shall inherit from the natural father” would comport with the law. And, if so, would it then mean in the fact scenario set out above that Daughter Two would be included as an heir. Based on my research, I believe it does, whether the express language is included in the adoption decree or not. Don’t you agree that there are some implications here for intestate estates?

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.

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.

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