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.

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.

BETTER CHANCERY PRACTICE FAQ

October 8, 2010 § 2 Comments

My 8.05 financial statements stink.  How can I improve them?

Here are Ten Tips for More Effective Rule 8.05 Financial Statements.

Is my estate ready to close?

Check out this Checklist for Closing an Estate.

I think I need to file a habeas action.  Any tips?

This Habeas Corpus Step by Step should help.

One more time: what are those child custody factors I need to prove at an upcoming trial?

The Albright factors are what you’re looking for.  

Help! We need to sell some real property in an estate, and I don’t know where to start?

How to Sell Real Property in an Estate may be just what you need. 

I’ve been asked to handle a minor’s settlement for a Jackson firm, and I’ve never done it before.  What do I need to do?

This Outline for Handling a Minor’s Settlement will get you started.

My mail has an MRCP 41(d) notice in it this morning.  I remember you said something about it, but I don’t have time to look for it.  Can you remind me what I am supposed to do?

<Sigh>  Here’s a post on what to do When Rule 41(d) Comes Knocking at Your Door

I need to prove the tax effects of alimony, but my client can’t afford to hire a CPA to come testify.  Any ideas on what I should do?

Try looking at Proving Tax Effects of Alimony.

My Chancery Judge is really nitpicky.  How can I draft my adoption Complaint to satisfy him?

Are you talking about me?  Whatever.  Here is a post on pleading Jurisdiction for Adoption.

Every time I go to court in Jackson, the lawyers there snicker about my countryfied attire.  Any suggestions?  I cannot afford another $100 contempt citation for punching out a lawyer in the courtroom.

You probably need to be charging more so that you can afford either a better wardrobe or more contempt fines.  Until you do, try reading “High Waters” and Burlap Suits.  It won’t change anything, but it may help you to feel better.

THE PRE-ADOPTION CONFERENCE

September 30, 2010 § 1 Comment

In the 12th District, we have long had a practice of requiring the attorney to appear personally to confer with the judge in a pre-adoption conference without the adoptive parent(s) in uncontested adoptions.

Some out-of-district lawyers question why we deem this necessary.

Imagine getting your client and spouse to take a day off of work, perhaps take the other children out of school, to travel to the courthouse for the long-anticipated day.  Spirits are high and festive.  A new member of the family is about to be welcomed in.  Or maybe not.

The judge calls you into chambers and points out that you have failed to obtain a statement from a physician, as required by the statute.  Or your pleading is inadequate under the new jurisdiction statute.

So your clients’ happy day turns to ashes and you are embarassed.

With a pre-adoption conference, you get the chance to learn what you need to do to get your case in shape so that your clients’ happy occasion can truly be happy.  When you file for an adoption that you know will be uncontested, call the court administrator and set up an appointment for a pre-adoption conference as soon as possible.  When the judge gives you the green light, you can set it for final presentation to the court. 

If you’re filing for adoption in another district, it would not hurt to ask the Chancellor for an appointment to look over your filing in advance of presenting it with your clients present.

MORE ON JURISDICTION FOR ADOPTION

June 16, 2010 § 5 Comments

I have already made the case for incorporating the adoption jurisdiction statute into your pleading forms here

What I want to emphasize is that there is so much more to the jurisdictional statute than just a change from 90-day to six-month residency since its amendment in 2007 that you need to be aware of and address.

The statute is § 93-17-3, MCA.  Pull out the statute and read it.  This is important.

Subsection (1) sets out five different, basic scenarios for jurisdiction: (a) that the minor lived in Mississippi with a parent, guardian, prospective adoptive parent or other person acting as a parent for six months AND there is available in Mississippi “substantial evidence concerning the minor’s present or future care”; or (b) the prospective adoptive parent lived in the state for six months AND there is available in Mississippi “substantial evidence concerning the minor’s present or future care”; or (c) the agency that placed the child for adoption is licensed in Mississippi and it is in the child’s best interest to adopt because the minor’s parents or the minor and the adoptive parents have a significant connection with this state AND there is available in Mississippi “substantial evidence concerning the minor’s present or future care”; or (d) the minor and the prospective adoptive parent are physically present in Mississippi and the child has been abandoned or there is an emergency to protect the child from mistreatment or neglect; or (e) no other state would have jurisdiction under prerequisites as (a) through (d), or another state has declined jurisdiction, and it is in the best interest of the minor for Mississippi to take jurisdiction.

From the foregoing, it is clear that it is not sufficient to allege merely that the parties have been residents of Mississippi for six months.  All of the applicable elements must be pled in order to invoke jurisdiction.

Subsections (2) and (3) prohibit Mississippi from taking jurisdiction where there is any action for custody of the minor pending in another state.   

In order to avoid problems with Section (2) and (3), the best practice would be to add an affirmative provision to your pleading addressing the jurisdictional issues raised in them, and adding a complete UCCJEA pleading would be prudent.

Subsection (4) limits adoption to an unmarried adult or a married person whose spouse joins in the petition.  Your pleading should make it clear what is the marital status of your adoptive parent(s).

Other provisions of Subsection (4):  The petition must be sworn and ” … filed in the chancery court of the county in which the adopting petitioner or petitioners reside or in which the child to be adopted resides or was born, or was found when abandoned or deserted, or in which the home is located to which the child has been surrendered by a person authorized to so do.” 

In my opinion, the pleading must set out one of the residency bases for jurisdiction, and it must be one that applies to the facts in your case.

The old requirements for a physician’s or nurse practitioner’s certificate and statement of property still continue in effect.

Subsection (4) also includes a requirement that the petitioner(s) must make an affidavit disclosing the amount of fees charged by adoption agencies or facilitators ” … and any other expenses paid by the petitioner or petitioners in the adoption process as of the time of filing the petition.”

In my opinion, the disclosure of fees and expenses requires a combination of any or as many of the following that apply: (a) a statement itemizing all such fees; (b) a statement that no fees have been incurred; (c) an itemization of “any other expenses.”  I believe that the phrase “any other expenses” includes attorney’s fees.

Adoption is a purely statutory creature.  Since it is in derogation of common law, the statute must be strictly construed and applied.  If you do not properly invoke jurisdiction of the court in your pleadings, you are running the risk that at some later point someone will try to get the adoption decree set aside — most likely after a wrongful death suit has been filed — and you will be embarassed or worse. 

Read the statute and plead it.  The extra trouble will be worth it.

JURISDICTION FOR ADOPTION

June 14, 2010 § 1 Comment

Effective July 1, 2007, Mississippi’s adoption statute was amended to change the residency requirement from 90 days to six months.  

§ 93-17-3, MCA, sets out the jurisdictional requirements, which now read more like the UCCJEA than like the old, familiar adoption statutes.  There are now jurisdictional requirements about availability in the state of information about the child, licensure of any adoption agency involved, and pendency of any adoption or custody proceeding in another state. 

PRACTICE TIP:  Get into your computers and add all of the statutory language verbatim into your adoption Complaint forms.  Then, when preparing your pleadings, strip out what does not apply.

Most judges I have spoken with agree that if the jurisdictional and other statutory language is not included in your Complaint, you will have to start over, which may include obtaining a second Consent or Joinder.

At least twice a month I have to point these matters out to attorneys.  Don’t embarass yourself with a client by being one of them.

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